UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
September 1
2
, 2018
CARVANA CO.
(Exact name of registrant as specified in its charter)
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Delaware
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001-38073
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81-4549921
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(State or other jurisdiction of incorporation)
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(Commission File Number)
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(I.R.S. Employer Identification No.)
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1930 W. Rio Salado Parkway
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Tempe, Arizona 85281
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(Address of principal executive offices, including zip code)
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(480) 719-8809
(Registrant's telephone number, including area code)
N/A
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instructions A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company
ý
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
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Item 1.01 Entry into a Material Definitive Agreement.
On September 12, 2018, Carvana Co. (the “Company”) and Ernest C. Garcia III, the Company’s Chief Executive Officer, entered into a Contribution Agreement (the “Agreement”). Pursuant to the Agreement, Mr. Garcia will give back and contribute to the Company, at no charge, 164,835 shares of the Company’s Class A common stock (the “Share Contribution”). The Share Contribution is intended to fund restricted stock unit awards to employees of Carvana, LLC, a subsidiary of the Company, upon their satisfying certain employment tenure requirements. Although the Company does not expect Mr. Garcia to incur any tax obligations related to the Share Contribution, it has indemnified Mr. Garcia from any such obligations that may arise.
The Agreement is attached hereto as Exhibit 99.1 and incorporated herein by reference.
Cautionary Information Regarding Forward Looking Statements
This Current Report on Form 8-K contains forward-looking statements within the meaning of the federal securities laws. These forward-looking statements reflect the Company’s current expectations and projections with respect to, among other things, its financial condition, results of operations, plans, objectives, future performance, and business. These statements may be preceded by, followed by or include the words "aim," "anticipate," "believe," "estimate," "expect," "forecast," "intend," "likely," "outlook," "plan," "potential," "project," "projection," "seek," "can," "could," "may," "should," "would," "will," the negatives th
ereof and other words and terms of similar meaning. For a description of factors that may cause the Company’s actual results, performance or expectations to differ from any forward-looking statements, please review the information under the heading “Risk Factors” included in the Company’s Annual Report on Form 10-K for 2017 and its Quarterly Report on Form 10-Q for Q2 2018, and other documents of the Company on file with or furnished to the Securities and Exchange Commission. Any forward-looking statements made in this Current Report on Form 8-K are qualified by these cautionary statements, and there can be no assurance that the actual results or developments anticipated by the Company will be realized or, even if substantially realized, that they will have the expected consequences to, or effects on, the Company or its business or operations. You are cautioned not to place undue reliance on forward-looking statements, which reflect expectations only as of this date. Except as required by law, the Company undertakes no obligation to update publicly or revise any forward-looking statement, whether as a result of new information, future developments or otherwise. Actual outcomes and results may differ materially from what is expressed, implied or forecasted by the Company’s forward-looking statements.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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Date:
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September 12, 2018
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CARVANA CO.
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By:
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/s/ Paul Breaux
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Name:
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Paul Breaux
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Title:
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General Counsel,
Vice President and Secretary
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CARVANA CO.
CONTRIBUTION AGREEMENT
This Contribution Agreement (this “
Agreement
”) is made and entered into as of September 12, 2018 by and between Carvana Co., a Delaware corporation (the “
Company
”), and Ernest C. Garcia III (“
Mr. Garcia
”).
WHEREAS
, Mr. Garcia wishes to transfer 164,835 shares of the Company’s common stock to the Company (the “
Contributed Shares
”);
WHEREAS
, the Company desires to accept the Contributed Shares as a contribution to the capital of the Company; and
WHEREAS
, the Compensation and Nominating Committee of the Company desires to approve restricted stock awards to certain employees of the Company and its subsidiaries under the Carvana Co. Omnibus Incentive Plan in an aggregate number of shares of the Company’s common stock equivalent to the Contributed Shares.
NOW, THEREFORE
, the parties hereto agree as follows:
1.
Contribution
. Mr. Garcia, as of the date hereof, hereby contributes and transfers the Contributed Shares to the Company (the “
Contribution
”), without any cost or charge to the Company except as set forth in Section 5 below.
2.
Acknowledgement
. Mr. Garcia acknowledges that from and after the date hereof, the Company will be the owner of all right, title and interest in and to the Contributed Shares. In furtherance of the foregoing, from and after the date hereof, Mr. Garcia shall not at any time do or suffer to be done any act or thing which may adversely affect any rights of the Company in and to the Contributed Shares.
3.
Representations and Warranties
.
(a)
Company represents and warrants that: (i) it has all necessary power and authority to enter into and perform this Agreement, and (ii) this Agreement constitutes a valid and binding obligation which is enforceable against Company in accordance with its terms.
(b)
Mr. Garcia represents and warrants that: (i) he has good title to the Contributed Shares, free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest, (ii) he has all necessary power and authority to enter into and perform this Agreement, and (iii) this Agreement constitutes a valid and binding obligation which is enforceable against Mr. Garcia in accordance with its terms.
4.
Disclosure of Information
. Mr. Garcia believes he has received all the information he considers necessary or appropriate for deciding whether to contribute the Contributed Shares to the Company pursuant to this Agreement. Mr. Garcia further represents that he has had an opportunity to ask questions and receive answers from the Company regarding the business, properties, prospects and financial condition of the Company.
5.
Tax Indemnification
. The Company will be solely liable for, and shall indemnify and hold harmless Mr. Garcia for, any and all Taxes (as defined below) incurred by Mr. Garcia as a result of the Contribution. As used herein, “
Taxes
” means all federal, state, local, foreign and other income, net income, gross income, gross receipts, estimated, add-on minimum, sales, use, ad valorem, gift, transfer, franchise
,
profits, registration, license, lease, service, service use, withholding, payroll, employment, unemployment, social security, welfare, workers’ compensation, disability, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties, levies, tariff, impost, escheat or other taxes, fees, assessments or charges of any kind whatsoever.
6.
Further Assurances
. From time to time, and without any further consideration, the parties hereto agree to execute, acknowledge and deliver all such additional deeds, assignments, bills of sale, conveyances, instruments, notices, releases, acquittances and other documents, and to do all such other acts and things, all in accordance with applicable law, as may be necessary or appropriate (a) more fully to ensure that the applicable parties hereto own all of the properties, rights, titles, interests, estates, remedies, powers and privileges granted by this Agreement, or which are intended to be so granted, (b) more fully and effectively to vest in the applicable parties hereto and their respective successors and assigns beneficial and record title to the Contributed Shares assigned by this Agreement or intended to be so and (c) more fully and effectively to carry out the purposes and intent of this Agreement.
7.
No Third Party Rights
. The provisions of this Agreement are intended to bind the parties hereto as to each other and are not intended to and do not create rights in any other person or confer upon any other person any benefits, rights or remedies and no person is or is intended to be a third party beneficiary of any of the provisions of this Agreement.
8.
Specific Enforcement
. It is agreed and understood that monetary damages would not adequately compensate an injured party for the breach of this Agreement by any party, that this Agreement shall be specifically enforceable, and that any breach or threatened breach of this Agreement shall be the proper subject of a temporary or permanent injunction or restraining order. Further, each party hereto waives any claim or defense that there is an adequate remedy at law for such breach or threatened breach. In any action, proceeding or dispute, with or without litigation, arising out of this Agreement, the successful party therein, regardless of whether the matter is pursued to judgment or is voluntarily dismissed, shall be entitled to recover from the other party thereto the reasonable attorneys’ and paralegals’ fees and all other expenses and/or costs incurred by the successful party in connection therewith.
9.
Amendments and Waivers
. Any term hereof may be amended and the observance of any term hereof may be waived only with the written consent of each party hereto. Any amendment or waiver so effected shall be binding upon the Company and Mr. Garcia and any assignee or transferee thereof.
10.
Severability
. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
11.
Governing Law
. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware.
12.
Counterparts
. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
13.
Captions
. The captions, headings and arrangements used in this Agreement are for convenience only and do not in any way limit or amplify the terms and provisions hereof.
14.
Entire Agreement
. This Agreement contains the entire understanding of the parties and there are not further or other agreements or understandings, written or oral, in effect between the parties relating to the subject matter hereof except as expressly referred to herein
15.
Successors and Assigns
. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successor and assigns of the parties.
[Signature Page Follows]
IN WITNESS WHEREOF
, the parties have executed this Agreement as of the date first above written.
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CARVANA CO.
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By:
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/s/ Paul Breaux
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Name:
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Paul Breaux
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Title:
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General Counsel, Vice President and Secretary
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ERNEST C. GARCIA III
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/s/ Ernest C. Garcia III
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