As filed with the Securities and Exchange Commission on
November 27, 1996
Registration No. ___________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
ACC CONSUMER FINANCE CORPORATION
--------------------------------
(Exact name of registrant as specified in its charter)
Delaware 33-0682821
- ----------- ----------
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
12750 High Bluff Drive, Suite 320
San Diego, California 92130
(619) 793-6300
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
1995 STOCK OPTION PLAN
(Full title of plan)
Rocco J. Fabiano,
Chief Executive Officer
ACC Consumer Finance Corporation
12750 High Bluff Drive, Suite 320
San Diego, California 92130
(619) 793-6300
(Name, address, including zip code, and telephone number of
agent for service of process)
Copy to:
Barbara L. Borden, Esquire
Sheppard, Mullin, Richter & Hampton LLP
501 West Broadway, 19th Floor
San Diego, California 92101
(619) 338-6500
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered* Per Share** Price** Fee
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Common 450,000 $9.25 $4,162,500 $1,261.36
Stock
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* Consists of shares of Common Stock which are issuable
under the 1995 Stock Option Plan (the "Plan") plus such
additional number of shares as may be required pursuant to
the Plan in the event of a stock dividend, stock split,
reverse stock split, recapitalization or other similar
change in the Common Stock of ACC Consumer Finance
Corporation (the "Company").
** Estimated only for the purpose of calculating the
registration fee, and based on the closing bid for shares
of the Company's Common Stock on November 20, 1996, as
reported by the Nasdaq National Market.
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PART II
Item 3 INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and
Exchange Commission (the "Commission") are incorporated herein
by reference:
(a) The Company's prospectus containing audited
financial statements for the fiscal year ended December 31,
1995, filed with the Commission on May 17, 1996, pursuant to
Rule 424(b) of the Securities Act;
(b) The Company's Quarterly Report on Form 10-Q for
the quarterly period ended June 30, 1996;
(c) The Company's Quarterly Report on Form 10-Q for
the quarterly period ended September 30, 1996;
(d) All other reports filed by the Company pursuant
to Section 13(d) or 15(d) of the Securities Exchange Act of
1934, as amended ("1934 Act"), since the end of the Company's
fiscal year ended December 31, 1995; and
(e) The description of the Company's shares of
Common Stock contained in the Company's Form 8-A Registration
Statement filed with the Commission on April 19, 1996.
All documents subsequently filed by the Company
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act,
prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or
which de-registers all securities then remaining unsold, shall
be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof from the date of
filing of such documents.
Item 4 DESCRIPTION OF SECURITIES
Not Applicable
Item 5 INTEREST OF NAMED EXPERTS AND COUNSEL
Not Applicable
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Item 6 INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article 9 of the Company's Bylaws generally provides
that the Company will indemnify its directors and officers to
the fullest extent authorized or permitted under the Delaware
General Corporation Law and that the Company will make
advancements of expenses at the request of a director or
officer. The Delaware General Corporation Law authorizes a
corporation, under certain circumstances, to indemnify its
directors and officers (including reimbursement of expenses
incurred).
The Company's Certificate of Incorporation generally
limits the personal liability of directors for monetary damages
for breaches of fiduciary duty. If a director were to breach
such duty in performing his or her duties as a director,
neither the Company nor its shareholders could recover monetary
damages from the director, and the only course of action
available to the Company's shareholders would be equitable
remedies, such as an action to enjoin or rescind a transaction
involving a breach of fiduciary duty. To the extent claims
against directors are limited to equitable remedies, the
provision in the Certificate of Incorporation may reduce the
likelihood of derivative litigation and may discourage
shareholders or management from initiating litigation against
directors for breach of fiduciary duty.
Under the Certificate of Incorporation, a director
shall remain liable for monetary damages to the extent provided
by applicable law (i) for any breach of the duty of loyalty to
the Company or its shareholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) pursuant to Section 174 of the
Delaware General Corporation Law and (iv) for any transaction
from which the director derived an improper personal benefit.
Delaware corporations are also authorized to obtain
insurance to protect directors and officers from certain
liabilities, including liabilities against which corporations
cannot indemnify their directors and officers. The Company
maintains directors and officers liability insurance providing
aggregate coverage in the amount of $10 million. The Company
also has agreements with certain of its directors and officers
providing for indemnification and advancement of expenses.
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Insofar as indemnification for liabilities arising
under the Securities Act of 1933 (the "1933 Act") may be
permitted to directors and officers pursuant to the
indemnification provisions described above, the Company has
been informed that in the opinion of the Commission such
indemnification is against public policy as expressed in the
1933 Act and is therefore unenforceable.
Item 7 EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable
Item 8 EXHIBITS
3.1 The Company's Bylaws.*
4.1 Copy of the ACC Consumer Finance
Corporation 1995 Stock Option Plan.*
4.2 Sample Incentive Stock Option Agreement and
Sample Nonqualified Stock Option
Agreement.*
5.1 Opinion of Sheppard, Mullin, Richter &
Hampton LLP
23.1 Consent of Sheppard, Mullin, Richter &
Hampton LLP (included in Exhibit 5.1).
23.2 Consent of independent auditors.
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* Incorporated by reference to exhibits filed with the
Commission in the Company's Registration Statement on Form
S-1 (Registration No. 33-98626).
Item 9 UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
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(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or
events arising after the effective date of the registration
statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in
the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement;
(iii) to include any material information with
respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (1)(i) and
(1)(ii) do not apply if the registration statement is on
Form S-3 or Form S-8, and the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or
Section 15(d) of the 1934 Act that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any
liability under the 1933 Act, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
The undersigned registrant hereby undertakes that,
for purposes of determining any liability under the 1933 Act,
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each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the 1934 Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the 1934 Act) that is
incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide
offering thereof.
Insofar as indemnification for liabilities arising
under the 1933 Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that
in the opinion of the Commission such indemnification is
against public policy as expressed in the 1933 Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the 1933 Act and will be governed by the final adjudication of
such issue.
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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
San Diego, State of California, on November 26, 1996.
ACC CONSUMER FINANCE CORPORATION,
a Delaware corporation
By /s/ Rocco J. Fabiano
-------------------------------
Rocco J. Fabiano, Chairman of the
Board and Chief Executive Officer
By /s/Rellen M. Stewart
-------------------------------
Rellen M. Stewart, Chief
Operating Officer, Chief
Financial Officer and Treasurer
Pursuant to the requirements of the Securities Act of
1933, the Registration Statement shall be signed by the
following persons in the capacities and on the dates indicated.
SIGNATURE CAPACITY DATE
- --------- -------- ----
/s/ Rocco J. Fabiano
- ------------------------ 11/26/96
Rocco J. Fabiano Chairman of the Board and
Chief Executive Officer
/s/Gary S. Burdick
- ------------------------ 11/26/96
Gary S. Burdick President
/s/ Rellen M. Stewart
- ------------------------ 11/26/96
Rellen M. Stewart Chief Operating Officer, Chief
Financial Officer and Treasurer
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/s/ Shaemus A. Garland
- ------------------------ 11/26/96
Shaemus A. Garland Vice President - Controller
/s/ Ethan J. Falk
- ------------------------ 11/26/96
Ethan J. Falk Director
/s/ Jack P. Fitzpatrick
- ------------------------ 11/26/96
Jack P. Fitzpatrick Director
/s/ Jeffrey S. Lambert
- ------------------------ 11/26/96
Jeffrey S. Lambert Director
/s/ Jeffrey E. Suskind
- ------------------------ 11/26/96
Jeffrey E. Susskind Director
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EXHIBIT INDEX
Exhibit
No. Description Page
- --------------------------------------------------------------------------------
5.1 Opinion of Sheppard, Mullin, Richter &
Hampton LLP 11
23.2 Consent of independent auditors. 12
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EXHIBIT 5.1
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SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
A Limited Liability Partnership Including Professional Corporations
Attorneys at Law
333 South Hope Street, Forty-Eighth Floor
Los Angeles, California 90071
Telephone (213) 620-1780
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Facsimile (213) 620-1398
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Writer's Direct Line Our File Number
November 25, 1996
NEW-58667
ACC Consumer Finance Corporation
12750 High Bluff Drive, Suite 320
San Diego, CA 92130
Re: Registration Statement on Form S-8
Dear Sirs:
ACC Consumer Finance Corporation (the "Company") has prepared and
will file, on the date of this opinion, with the Securities and Exchange
Commission a registration statement on Form S-8 (the "Registration Statement")
in connection with the registration under the Securities Act of 1933, as
amended, of 450,000 shares of Common Stock (the "New Stock") to be offered and
sold from time to time by the Company to participants in the ACC Consumer
Finance Corporation 1995 Stock Option Plan (the "Plan") upon the exercise of
options granted under the Plan. You have requested our opinion as to the
legality of the New Stock.
In connection with the furnishing of our opinion to you concerning
this matter, we have examined originals, certified copies or photostatic copies
of your Certificate of Incorporation (as amended) and Bylaws, the minutes and
written consents of your Board of Directors and stockholders, documents on file
with and certificates of the Delaware Secretary of State, the Registration
Statement and such other corporate records and other documents as we have deemed
relevant and necessary as the basis for the opinions set forth herein. In such
examinations, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as certified or photostatic
copies.
On the basis of the foregoing and in reliance thereon and after
consideration of such matters and laws as we deem applicable and relevant, we
are of the opinion that the New Stock, when issued and sold in the manner set
forth in the Registration Statement, will be legally and validly issued, fully
paid and nonassessable.
We consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
<PAGE>
EXHIBIT 23.2
The Board of Directors
ACC Consumer Finance Corporation
We consent to incorporation by reference in the registration statements on Form
S-8 of ACC Consumer Finance Corporation of our report dated April 15, 1996,
relating to the consolidated balance sheets of ACC Consumer Finance Corporation
and subsidiaries as of December 31, 1995 and 1994, and the related consolidated
statements of operations, shareholders' equity and cash flows for the year ended
December 31, 1995, the six-month transition period ended December 31, 1994 and
the period from July 15, 1993 (inception) through June 30, 1994, which report
appears in the prospectus filed with the Securities and Exchange Commission on
May 17, 1996 on Form S-1 of ACC Consumer Finance Corporation.
KPMG Peat Marwick LLP
San Diego, California
November 26, 1996
