<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 23, 1998
REGISTRATION NO. 333-______
===============================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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BNC MORTGAGE, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 33-0661303
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
1063 MCGAW AVENUE
IRVINE, CALIFORNIA 92614
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
EVAN R. BUCKLEY
CHIEF EXECUTIVE OFFICER
BNC MORTGAGE, INC.
1063 MCGAW AVENUE
IRVINE, CALIFORNIA 92614
(949) 260-6000
(NAME AND ADDRESS OF AGENT FOR SERVICE)
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COPIES TO:
THOMAS J. POLETTI, ESQ.
KATHERINE J. BLAIR, ESQ.
JEFFREY S. CANNON, ESQ.
FRESHMAN, MARANTZ, ORLANSKI,
COOPER & KLEIN
9100 WILSHIRE BOULEVARD, 8TH FLOOR
BEVERLY HILLS, CALIFORNIA 90212
TELEPHONE: (310) 273-1870
FACSIMILE: (310) 274-8357
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, check the following box: [X]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================
Proposed
Proposed Maximum
maximum aggregate
Amount to be offering price offering Amount of
TITLE OF SECURITIES TO BE REGISTERED registered per share(1) price(1) registration fee
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value................ 447,402 shares $9.500 $4,250,319 $1,181.59
Common Stock, $.001 par value................ 163,265 shares $6.100 $995,917 $276.87
Common Stock, $.001 par value................ 12,500 shares $11.000 $137,500 $38.23
Common Stock, $.001 par value(2)............. 176,833 shares $5.125 $906,218 $251.93
-------------- ---------- ---------
Total ....................................... 800,000 shares $6,289,954 $1,749.00
=================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h)(1) of the Securities Act of 1933.
(2) Proposed maximum offering price per share and Maximum aggregate offering
price are based on the last reported sales price of the Common Stock as
reported on the Nasdaq National Market on October 15, 1998, in
accordance with Rule 457 (c) of the Securities Act of 1933.
===============================================================================
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing information specified in this Part I are being
separately provided to the participants in the 1997 Stock Option, Deferred
Stock and Restricted Stock Plan as specified by Rule 428(b)(1).
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PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed with the Securities and Exchange
Commission (the "Commission") by BNC Mortgage, Inc. (the "Company") and are
incorporated by reference into this Registration Statement:
(a) Annual Report on Form 10-K for the fiscal year ended June 30, 1998,
as filed with the Commission pursuant to Section 13(a) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
(b) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, as filed with the Commission on
February 4, 1998 under the Exchange Act.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment to this registration statement indicating that all
securities offered hereby have been sold, or deregistering all securities
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of the filing of
such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is a Delaware corporation. Section 145 ("Section 145") of
the Delaware General Corporation Law (the "DGCL") provides that a Delaware
corporation has the power to indemnify its officers and directors under certain
circumstances. Article VII, Section 7.1 of the Company's Bylaws provides that
the Company shall indemnify its officers and directors to the fullest extent
permitted by the DGCL.
Subsection (a) of Section 145 empowers a corporation to indemnify any
director or officer, or former director or officer, who was, is, or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by, or in the right of, the corporation), for expenses
(including attorney's fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with such action, suit or
proceeding provided that such director or officer acted in good faith and in a
manner he or she reasonably believed to be in, or not opposed to, the best
interests of the corporation, and, with respect to any criminal action or
proceeding, provided that such director or officer had no cause to believe his
or her conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
director, officer, or former director or officer, who was, or is a party, or is
threatened to be made a party to any threatened, pending or completed action or
suit by, or in the right of the corporation to procure a judgment in its favor
by reason of the fact that such person acted in any of the capacities set forth
above, against expenses actually and reasonably incurred in connection with the
defense or settlement of such action or suit, provided that, such officer or
director acted in good faith and in a manner he or she reasonably believed to be
in, or not opposed to, the best interests of the corporation, except that no
indemnification may be made with respect of any claim, issue or matter as to
which such director or officer shall have been adjudged to be liable to the
corporation unless, and only to the extent that the Delaware Court of Chancery,
or the court in which such
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action was brought shall determine that despite the adjudication of liability,
but in view of all the circumstances of the case, such director or officer is
fairly and reasonably entitled to indemnity for such expenses which the court
shall deem proper.
Section 145 further provides that to the extent a director or officer of
a corporation has been successful in the defense of any action, suit or
proceeding referred to in subsections (a) and (b) or in the defense of any
claim, issue or matter therein, he or she shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him or her in
connection therewith; that indemnification provided for by Section 145 shall not
be deemed exclusive of any other rights to which the indemnified party may be
entitled; and that the corporation shall have the power to purchase and maintain
insurance on behalf of a director or officer of the corporation against any
liability asserted against him or her or incurred by him or her in any such
capacity or arising out of his or her status as such, whether or not the
corporation would have the power to indemnify him or her against such
liabilities under Section 145.
Article VIII of the Company's Certificate of Incorporation provides that
a director shall not be liable to the Company or its stockholders for monetary
damages for breach of his or her fiduciary duty as a director. It further
provides that the Company shall indemnify, in the manner and to the fullest
extent permitted by the Delaware Law (but in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than permitted prior thereto), any person (or the
estate of any person) who is or was a party to, or is threatened to be made a
party to, any threatened, pending or completed action, suit or proceeding,
whether or not by or in the right of the Corporation, and whether civil,
criminal, administrative, investigative or otherwise, by reason of the fact that
such person is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise. The
Certificate of Incorporation also provides that to the fullest extent permitted
by the Delaware Law, the indemnification provided herein shall include expenses
as incurred (including attorneys' fees), judgments, fines and amounts paid in
settlement, and any such expenses shall be paid by the Corporation in advance of
the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of the person seeking indemnification to repay such
amounts if it is ultimately determined that he or she is not entitled to be
indemnified. It further provides that no advance shall be made by the
Corporation if a determination is reasonably and promptly made by the Board of
Directors by a majority vote of a quorum of disinterested directors, or (if such
a quorum is not obtainable or, even if obtainable, a quorum of disinterested
directors so directs) by independent legal counsel to the Corporation, that,
based upon the facts known to the Board or such counsel at the time such
determination is made, (a) the party seeking an advance acted in bad faith or
deliberately breached his or her duty to the Corporation or its stockholders,
and (b) as a result of such actions by the party seeking an advance, it is more
likely than not that it will ultimately be determined that such party is not
entitled to indemnification pursuant to the provisions of Article VIII.
The Company has entered into indemnification agreements with each of its
executive officers and directors, pursuant to which, the Company has agreed to
indemnify each under certain circumstances, in the manner and to the fullest
extent permitted by the DGCL. In addition, the Company carries directors' and
officers' liability insurance covering its directors and officers against
liability asserted against or incurred by such person arising out of his or her
capacity as an officer or director, including any liability for violations of
the Securities Act or the Exchange Act, subject to some exclusions and coverage
limitations.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
Exhibit
Number Description
- ------ -----------
4.1* Specimen Certificate of the Company's Common Stock(1)
5.1 Opinion of Freshman, Marantz, Orlanski, Cooper & Klein
10.2* 1997 Stock Option Plan and Form of Agreements(1)
23.1 Consent of Freshman, Marantz, Orlanski, Cooper & Klein (included
in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
24.1 Powers of Attorney (included on the signature page hereto)
- ----------------------
* Incorporated by reference to, and all such exhibits have the corresponding
exhibit number filed as part of the registration statement on Form S-1 (File
No. 333-38651) and amendment nos. 1, 2 and 3 filed with the Securities and
Exchange Commission on October 24, 1997, February 3, 1998 and March 10, 1998,
respectively.
ITEM 9. UNDERTAKINGS.
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement and to include any
material information with respect to the plan of distribution not previously
disclosed in this Registration Statement, or any material change to such
information in this Registration Statement.
(2) That, for purposes of determining any liability under the Securities
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.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the Company's annual report pursuant to section 13(a) or
section 15(d) of the Exchange Act that is incorporated by reference in this
Registration Statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the provisions referenced in Item 6 of this
Registration Statement, or otherwise, the Company has been advised that in the
opinion of the Commission, such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company 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 the public policy expressed in the Securities
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, 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 Irvine, State of California, on October 22, 1998.
POWER OF ATTORNEY
We the undersigned directors and officers of BNC Mortgage, Inc., do
hereby constitute and appoint Kelly W. Monahan and Evan R. Buckley, or either of
them, our true and lawful attorneys and agents to do any and all acts and things
in our name and behalf in our capacities as directors and officers and to
execute any and all instruments for us and in our names in the capacities
indicated below, which said attorneys and agents, or either of them, may deem
necessary or advisable to enable said corporation to comply with the Securities
Act of 1933, as amended, and any rules, regulations, and requirements of the
Securities and Exchange Commission, in connection with this Registration
Statement, including specifically, but without limitation, power and authority
to sign for us or any of us in our names and in the capacities indicated below,
any and all amendments (including post-effective amendment) to this Registration
Statement; and we do hereby ratify and confirm all that the said attorneys and
agents, or either of them, shall do or cause to be done by virtue hereof.
BNC Mortgage, Inc.
By: /s/ KELLY W. MONAHAN
----------------------
Kelly W. Monahan
President
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 DATE INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ EVAN R. BUCKLEY Chairman of the Board, October 22, 1998
- ------------------------- Chief Executive Officer
Evan R. Buckley and Secretary
/s/ KELLY W. MONAHAN President, Chief Financial Officer October 22, 1998
- ------------------------- (principal financial and
Kelly W. Monahan accounting officer) and Director
/s/ JOSEPH R. TOMKINSON
- ------------------------- Director October 22, 1998
Joseph R. Tomkinson
/s/ KEITH C. HONIG
- ------------------------- Director October 22, 1998
Keith C. Honig
</TABLE>
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EXHIBIT INDEX
Exhibit
Number Description
- ------ -----------
4.1* Specimen Certificate of the Company's Common Stock(1)
5.1 Opinion of Freshman, Marantz, Orlanski, Cooper & Klein
10.2* 1997 Stock Option Plan and Form of Agreements(1)
23.1 Consent of Freshman, Marantz, Orlanski, Cooper & Klein (included
in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
24.1 Powers of Attorney (included on the signature page hereto)
- ----------------------
* Incorporated by reference to, and all such exhibits have the corresponding
exhibit number filed as part of the registration statement on Form S-1 (File
No. 333-38651) and amendment nos. 1, 2 and 3 filed with the Securities and
Exchange Commission on October 24, 1997, February 3, 1998 and March 10, 1998,
respectively.
<PAGE> 1
EXHIBIT 5.1
[LETTERHEAD OF FRESHMAN, MARANTZ, ORLANSKI, COOPER & KLEIN]
October 22, 1998
BNC Mortgage, Inc.
1063 McGaw Avenue
Irvine, California 92614
RE: REGISTRATION ON FORM S-8
1997 STOCK OPTION, DEFERRED STOCK AND RESTRICTED STOCK PLAN
-----------------------------------------------------------
Ladies and Gentlemen:
As counsel for BNC Mortgage, Inc. (the "Company"), we have participated in the
preparation of the Registration Statement which is to be filed on Form S-8 under
the Securities Act of 1933, as amended, relating to the offering of up to
800,000 shares of the Company's Common Stock (the "Shares") issuable upon the
exercise of stock options or awards granted or to be granted to certain
employees, officers, directors, consultants and advisors of the Company pursuant
to the 1997 Stock Option, Deferred Stock and Restricted Stock Plan (the "Plan").
This opinion is delivered in accordance with the requirements of Item 601(b)(5)
of Regulation S-K under the Securities Act.
For purposes of this opinion, we have examined such matters of law and
originals, or copies, certified or otherwise, identified to our satisfaction, of
such documents, corporate records and other instruments as we have deemed
necessary. In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as certified,
photostatic or conformed copies, and the authenticity of the originals of all
such latter documents. We have also assumed the due execution and delivery of
all documents where due execution and delivery are prerequisites to the
effectiveness thereof. We have relied upon certificates of public officials and
certificates of officers of the Company for the accuracy of material, factual
matters contained therein which were not independently established.
Based upon the foregoing and all other instruments, documents and matters
examined for the rendering of this opinion, it is our opinion that, when issued
pursuant to the exercise of options under the Plan, as contemplated in the
Registration Statement, the Shares will be validly issued, fully paid and
nonassessable.
We express no opinion as to the applicability or effect of any laws, orders or
judgments of any state or jurisdiction other than federal securities laws and
the substantive laws of the States of California and Delaware. Further, our
opinion is based solely upon existing laws, rules and regulations, and we
undertake no obligation to advise you of any changes that may be brought to our
attention after the date hereof.
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We consent to the filing of this opinion as an exhibit to the Registration
Statement.
By giving you this opinion and consent, we do not admit that we are experts with
respect to any part of the Registration Statement or Prospectus within the
meaning of the term "expert" as used in Section 11 of the Securities Act or the
rules and regulations promulgated thereunder by the SEC, nor do we admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act.
Very truly yours,
/s/ Freshman, Marantz, Orlanski, Cooper & Klein
FRESHMAN, MARANTZ, ORLANSKI, COOPER & KLEIN
a professional corporation
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
BNC Mortgage, Inc.
We consent to the incorporation by reference in the registration statement on
Form S-8 pertaining to the 1997 Stock Option, Deferred Stock and Restricted
Stock Plan of BNC Mortgage, Inc., of our report, dated September 14, 1998,
with respect to the consolidated financial statements of BNC Mortgage, Inc.
included in the Annual Report (Form 10-K) for the year ended June 30, 1998.
Ernst & Young LLP
Orange County, California
October 23, 1998
