S-8

As filed with the Securities and Exchange Commission on November 13, 2020

Registration No. 333-

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

Form S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

KAR Auction Services, Inc.

(Exact name of registrant as specified in its charter)

Delaware	20-8744739
(State or other jurisdiction of incorporation or organization)	(I.R.S. Employer Identification No.)

11299 N. Illinois Street Carmel, Indiana	46032
(Address of Principal Executive Offices)	(Zip Code)

KAR Auction Services, Inc. Amended and Restated Employee Stock Purchase Plan

(Full title of the plan)

Charles S. Coleman

Senior Vice President, General Counsel and Secretary

KAR Auction Services, Inc.

11299 N. Illinois Street

Carmel, Indiana 46032

(Name and address of agent for service)

(800) 923-3725

(Telephone number, including area code, of agent for service)

Copies to:

Gregory A. Fernicola

Dwight S. Yoo

Skadden, Arps, Slate, Meagher & Flom LLP

One Manhattan West

New York, New York 10001

Telephone: (212) 735-3000

Facsimile: (212) 735-2000

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer    ☒	Accelerated filer    ☐
Non-accelerated filer    ☐	Smaller reporting company    ☐
	Emerging growth company    ☐

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 7(a)(2)(B) of the Securities Act. ☐

CALCULATION OF REGISTRATION FEE

Title of securities to be registered	Amount to be registered(1)(2)	Proposed maximum offering price per share(3)	Proposed maximum aggregate offering price(3)	Amount of registration fee
Common stock, par value $0.01 per share	1,500,000	$17.56	$26,340,000	$2,873.69

(1)Represents 1,500,000 additional shares of common stock, par value $0.01 per share (“Common Stock”), of KAR Auction Services, Inc. (the “Company”) reserved for issuance under the KAR Auction Services, Inc. Amended and Restated Employee Stock Purchase Plan (the “Amended and Restated Plan”), which shares became available for issuance pursuant to approval of the Amended and Restated Plan by the Company’s stockholders on June 4, 2020.

(2)Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement on Form S-8 shall also cover any additional shares of Common Stock of the Company that may become issuable under the Amended and Restated Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the Company’s receipt of consideration which results in an increase in the number of outstanding shares of Common Stock.

(3)Estimated pursuant to Rule 457(c) and (h) under the Securities Act for the purpose of calculating the registration fee, based on $17.56 per share, the average of the high and low prices of the Common Stock in the “when-issued” trading market, as reported on the New York Stock Exchange on November 12, 2020.

PART I

REGISTRATION OF ADDITIONAL SECURITIES PURSUANT TO GENERAL INSTRUCTION E

This registration statement on Form S-8 (this “Registration Statement”) is being filed for the purpose of registering an additional 1,500,000 shares of common stock, par value $0.01 per share (“Common Stock”), of KAR Auction Services, Inc. (the “Company”) that may be issued and sold pursuant to the KAR Auction Services, Inc. Amended and Restated Employee Stock Purchase Plan (the “Amended and Restated Plan”). Accordingly, the contents of the previous Registration Statement on Form S-8 filed by the Company with the Securities and Exchange Commission (the “Commission”) on December 24, 2009 (File No. 333-164032) are hereby incorporated by reference in this Registration Statement pursuant to General Instruction E of Form S-8.

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428(b)(1) under the Securities Act of 1933, as amended, and the introductory note to Part I of Form S-8. The documents containing the information specified in Part I have been or will be delivered to the participants in the Plan as required by Rule 428(b).

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3.    Incorporation of Documents by Reference.

The following documents filed with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are hereby incorporated by reference in this Registration Statement and shall be deemed to be a part hereof (except for any portions of Current Reports on Form 8-K furnished pursuant to Item 2.02 or Item 7.01 thereof and any corresponding exhibits thereto not filed with the Commission):

(a)The Company’s Annual Report on Form 10-K for the year ended December 31, 2019 filed with the Commission on February 19, 2020;

(b)The Company’s Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 2020, June 30, 2020 and September 30, 2020 filed with the Commission on May 7, 2020, August 5, 2020 and November 4, 2020, respectively;

(c)The Company’s Current Reports on Form 8-K filed with the Commission on January 7, 2020, January 24, 2020, March 13, 2020, March 26, 2020 (Item 8.01 only), May 27, 2020, June 1, 2020, June 5, 2020, June 10, 2020, June 29, 2020, September 8, 2020, October 5, 2020 and November 12, 2020 (Item 2.01 only); and

(d)The description of the Common Stock contained in the Company’s Registration Statement on Form 8-A filed with the Commission on December 2, 2009, as amended by the description of Common Stock included in Exhibit 4.3 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2019.

All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered by this Registration Statement have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part thereof from the date of filing such documents (other than the portions of such documents, which by statute, by designation in such document or otherwise (including but not limited to information disclosed by the Company under Items 2.02 or 7.01 of any Current Report on Form 8-K), are not deemed filed with the Commission or are not regarded to be incorporated herein by reference).

Any statement contained in a document all or a portion of which is incorporated or deemed to be incorporated by reference in this Registration Statement shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document

which is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

Item 8.    Exhibits.

The following exhibits are filed herewith or incorporated herein by reference.

EXHIBIT INDEX

Exhibit No.	Description
3.1	Amended and Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit No. 3.1 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on August 3, 2016).
3.2	Second Amended and Restated By-Laws of the Company (incorporated by reference to Exhibit No. 3.1 to the Company’s Current Report on Form 8-K filed with the Commission on November 4, 2014).
4.1	KAR Auction Services, Inc. Amended and Restated Employee Stock Purchase Plan (incorporated by reference to Annex I to the Company’s Definitive Proxy Statement on Schedule 14A filed with the Commission on April 23, 2020).
5.1	Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.*
23.1	Consent of KPMG LLP, Independent Registered Public Accounting Firm.*
23.3	Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.1 hereto).*
24	Powers of Attorney (included as part of the signature page hereto).*

* Filed herewith.

2

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Carmel, State of Indiana, on November 13, 2020.

KAR AUCTION SERVICES, INC.

By: /s/ Eric M. Loughmiller    

Name:    Eric M. Loughmiller

Title:    Executive Vice President and Chief

Financial Officer

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Charles S. Coleman and Eric M. Loughmiller, his/her true and lawful attorney-in-fact and agents with full power of substitution and resubstitution, for him/her and in his/her name, place and stead, in any and all capacities, to sign any and all amendments (including pre-effective and post-effective amendments and registration statements filed pursuant to Rule 462 of the Securities Act of 1933) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he/her might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his/her substitute or substitutes, may lawfully do or cause to be done by virtue hereof. This power of attorney may be executed in counterparts.

Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated and on the dates indicated.

Signature	Title	Date
/s/ James P. Hallett	Chief Executive Officer (Principal Executive Officer), Chairman of the Board of Directors	November 13, 2020
James P. Hallett
/s/ Eric M. Loughmiller	Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)	November 13, 2020
Eric M. Loughmiller
/s/ David DiDomenico	Director	November 13, 2020
David DiDomenico
/s/ Carmel Galvin	Director	November 13, 2020
Carmel Galvin
/s/ Mark E. Hill	Director	November 13, 2020
Mark E. Hill
/s/ J. Mark Howell	Director	November 13, 2020
J. Mark Howell
/s/ Stefan Jacoby	Director	November 13, 2020
Stefan Jacoby
/s/ Michael T. Kestner	Director	November 13, 2020
Michael T. Kestner
/s/ Roy Mackenzie	Director	November 13, 2020
Roy Mackenzie
/s/ Mary Ellen Smith	Director	November 13, 2020
Mary Ellen Smith
/s/ Stephen E. Smith	Director	November 13, 2020
Stephen E. Smith

EX-5.1

EXHIBIT 5.1

SKADDEN, ARPS, SLATE, MEAGHER & FLOMLLP

ONE MANHATTAN WEST

NEW YORK, NY 10001

________

TEL: (212) 735-3000

FAX: (212) 735-2000

www.skadden.com

November 13, 2020

KAR Auction Services, Inc.

11299 N. Illinois Street

Carmel, Indiana 46032

Re:    KAR Auction Services, Inc.

Registration Statement on Form S-8

Ladies and Gentlemen:

We have acted as special United States counsel to KAR Auction Services, Inc., a Delaware corporation (the “Company”), in connection with the Registration Statement on Form S-8 of the Company (together with the exhibits thereto, the “Registration Statement”) to be filed on the date hereof with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933 (the “Securities Act”), on the date hereof, relating to the registration of up to an additional 1,500,000 shares of the Company’s common stock, par value $0.01 per share, issuable pursuant to the KAR Auction Services, Inc. Amended and Restated Employee Stock Purchase Plan (the “Plan”). Such additional 1,500,000 shares may be either newly issued by the Company or purchased on the open market. This opinion is limited to those shares that will be newly issued by the Company (the “Shares”). This opinion is being furnished at the request of the Company in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.

In rendering the opinion stated herein, we have examined and relied upon the following:

(a)the Registration Statement in the form to be filed with the Commission on the date hereof;

(b)the Plan;

KAR Auction Services, Inc.

November 13, 2020

Page 2

(c)an executed copy of a certificate of Charles S. Coleman, Senior Vice President, General Counsel and Secretary of the Company, dated the date hereof (the “Secretary’s Certificate”);

(d)a copy of the Company’s Amended and Restated Certificate of Incorporation (the “Amended and Restated Certificate of Incorporation”), certified by the Secretary of State of the State of Delaware as of November 6, 2020, and certified pursuant to the Secretary’s Certificate;

(e)a copy of the Company’s Second Amended and Restated By-Laws (the “Amended and Restated By-Laws”), as amended and in effect as of the date hereof and certified pursuant to the Secretary’s Certificate; and

(f)copies of certain resolutions of the Board of Directors of the Company, as certified pursuant to the Secretary’s Certificate.

We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and such agreements, certificates and receipts of public officials, certificates of officers or other representatives of the Company and others, and such other documents as we have deemed necessary or appropriate as a basis for the opinion stated below.

In our examination, we have assumed the genuineness of all signatures, including electronic signatures, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic, certified or photocopied copies, and the authenticity of the originals of such copies. In making our examination of executed documents, we have assumed that the parties thereto, other than the Company, had the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and the execution and delivery by such parties of such documents and the validity and binding effect thereof on such parties. As to any facts relevant to the opinion stated herein that we did not independently establish or verify, we have relied upon statements and representations of officers and other representatives of the Company and others and of public officials, including the facts and conclusions set forth in the Secretary’s Certificate.

In rendering the opinion stated herein, we have also assumed that (i) an appropriate account statement evidencing the Shares credited to a recipient’s account maintained with the Company’s transfer agent has been or will be issued by the Company’s transfer agent, (ii) the issuance of the Shares will be properly recorded in the books and records of the Company, (iii) each award agreement under which options, restricted stock, restricted stock units, performance awards or other awards are granted pursuant to the Plan will be consistent with the Plan and will be duly authorized, executed and delivered by the parties thereto, and (iv) the issuance of the Shares does not violate or conflict with any agreement or instrument binding on the Company (except that we do not make this assumption with respect to the Amended and Restated Certificate of Incorporation or the Amended and Restated By-Laws).

KAR Auction Services, Inc.

November 13, 2020

Page 3

We do not express any opinion with respect to the laws of any jurisdiction other than the General Corporation Law of the State of Delaware (the “DGCL”).

Based upon the foregoing and subject to the qualifications and assumptions stated herein, we are of the opinion that the Shares have been duly authorized by all requisite corporate action on the part of the Company under the DGCL and, when the Shares are issued to the participants in accordance with the terms and conditions of the Plan for consideration in an amount at least equal to the par value of such Shares, the Shares will be validly issued, fully paid and nonassessable.

We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.

    Very truly yours,

    /s/ Skadden, Arps, Slate, Meagher & Flom LLP

DSY

1902505-NYCSR03A - MSW

EX-23.1

EXHIBIT 23.1

Consent of Independent Registered Public Accounting Firm

The Board of Directors

KAR Auction Services, Inc.:

We consent to the incorporation by reference in the registration statement on Form S-8 of KAR Auction Services, Inc. of our report dated February 19, 2020, with respect to the consolidated balance sheets of KAR Auction Services, Inc. and subsidiaries as of December 31, 2019 and 2018, the related consolidated statements of income, comprehensive income, stockholders’ equity, and cash flows for each of the years in the three-year period ended December 31, 2019, and the related notes, and the effectiveness of internal control over financial reporting as of December 31, 2019, which reports appear in the December 31, 2019 annual report on Form 10‑K of KAR Auction Services, Inc.

Our audit report on internal control over financial reporting as of December 31, 2019, contains an explanatory paragraph that states that management has excluded from its assessment of the effectiveness of internal control over financial reporting as of December 31, 2019, the internal control over financial reporting associated with CarsOnTheWeb and Dent-ology (“2019 acquisitions”) with total assets of 3.3% and total revenues of 6.9% included in the consolidated financial statements of KAR Auction Services, Inc. and subsidiaries as of and for the year ended December 31, 2019.Our audit of internal control over financial reporting of KAR Auction Services, Inc. and subsidiaries also excluded an evaluation of the internal control over financial reporting of the 2019 acquisitions.

/s/ KPMG LLP

Indianapolis, Indiana

November 13, 2020