S-8

As filed with the Securities and Exchange Commission on June 4, 2021

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 2009 Omnibus Stock and Incentive Plan

(Full title of the plan)

Charles S. Coleman

Executive Vice President, Chief Legal Officer 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)

Copy 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	6,460,000	$17.945	$115,924,700	$12,647.38

(1)Represents 6,460,000 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 2009 Omnibus Stock and Incentive 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, 2021.

(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 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 $17.945 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 May 28, 2021.

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 6,460,000 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 2009 Omnibus Stock and Incentive 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 June 11, 2014 (File No. 333-196668) 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, 2020, filed with the Commission on February 18, 2021;

(b)The Company’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2021, filed with the Commission on May 5, 2021;

(c)The Company’s Current Reports on Form 8-K filed with the Commission on February 8, 2021 and March 2, 2021; 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 2009 Omnibus Stock and Incentive Plan (incorporated by reference to Annex I to the Company’s Definitive Proxy Statement on Schedule 14A filed with the Commission on April 23, 2021).
5.1	Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.*
23.1	Consent of KPMG LLP, Independent Registered Public Accounting Firm.*
23.2	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, 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 June 4, 2021.

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 Eric M. Loughmiller and Charles S. Coleman, and each of them, as his/her true and lawful attorneys-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 post-effective amendments) 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 required or necessary to be done in and about the premises, as fully to all intents and purposes as he/she may or could do in person, and hereby ratifies and confirms 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, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

Signature	Title	Date
/s/ Peter Kelly	Chief Executive Officer and Director (Principal Executive Officer)	June 4, 2021
Peter Kelly
/s/ Eric M. Loughmiller	Executive Vice President and Chief Financial Officer (Principal Financial Officer)	June 4, 2021
Eric M. Loughmiller
/s/ Scott Anderson	Chief Accounting Officer (Principal Accounting Officer)	June 4, 2021
Scott Anderson
/s/ James P. Hallett	Executive Chairman and Chairman of the Board of Directors	June 4, 2021
James P. Hallett
/s/ Carmel Galvin	Director	June 4, 2021
Carmel Galvin
/s/ Mark E. Hill	Director	June 4, 2021
Mark E. Hill
/s/ J. Mark Howell	Director	June 4, 2021
J. Mark Howell
/s/ Stefan Jacoby	Director	June 4, 2021
Stefan Jacoby
/s/ Michael T. Kestner	Director	June 4, 2021
Michael T. Kestner
/s/ Roy Mackenzie	Director	June 4, 2021
Roy Mackenzie
/s/ Mary Ellen Smith	Director	June 4, 2021
Mary Ellen 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

    June 4, 2021

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”), relating to the registration of up to an additional 6,460,000 shares of the Company’s common stock, par value $0.01 per share, issuable pursuant to the KAR Auction Services, Inc. Amended and Restated 2009 Omnibus Stock and Incentive Plan (the “Plan”). Shares issued under the Plan may be either newly issued by the Company or purchased on the open market. This opinion is limited to those additional 6,460,000 shares that may 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;

KAR Auction Services, Inc.

June 4, 2021

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(b)the Plan;

(c)an executed copy of a certificate of Charles S. Coleman, Executive Vice President, Chief Legal Officer 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 June 4, 2021 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

KAR Auction Services, Inc.

June 4, 2021

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(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).

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

EX-23.1

Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

We consent to the use of our report dated February 18, 2021, with respect to the consolidated financial statements of KAR Auction Services, Inc., and the effectiveness of internal control over financial reporting, incorporated herein by reference.

/s/ KPMG LLP

Indianapolis, Indiana

June 4, 2021