<PAGE> 1
As filed with the Securities and Exchange Commission on May 30, 1997
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
LONG BEACH FINANCIAL CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 33-0739843
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
-------------------------
1100 Town & Country Road, Suite 900
Orange, California 92868
(714) 541-5378, Ext. 7408
(Address, including zip code, and telephone number,
including area code, of Registrant's Principal Executive Offices)
-------------------------
1997 STOCK INCENTIVE PLAN
(Full Title of Plan)
-------------------------
M. Jack Mayesh
Chief Executive Officer
LONG BEACH FINANCIAL CORPORATION
1100 Town & Country Road, Suite 900
Orange, California 92868
(714) 541-5378, Ext. 7408
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================================
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Securities to be Price Per Offering Registration
to be Registered Registered(1) Share(2) Price(2) Fee
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 3,000,000 shares $8.00 $24,000,000 $7,272.73
par value $.001 per share
============================================================================================================
</TABLE>
(1) There is also being registered hereunder such additional undetermined
number of shares of Common Stock that may be issued from time to time as a
result of the anti-dilution provisions of the Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(h) and 457(c), and based on the average of the high
and low prices of the Common Stock of Long Beach Financial Corporation as
reported on May 28, 1997 on The Nasdaq National Market System.
================================================================================
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INTRODUCTION
------------
This Registration Statement on Form S-8 is filed by Long Beach
Financial Corporation (the "Company") relating to 3,000,000 shares of the
Company's common stock, par value $.001 per share (the "Common Stock"), issuable
to eligible directors, officers, employees, consultants and advisors of the
Company and its affiliates under the Long Beach Financial Corporation 1997 Stock
Incentive Plan (the "Plan").
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
----------------------------------------------------
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* Information required by Part I of Form S-8 to be contained in the
Section 10(a) prospectus is omitted from this Registration Statement in
accordance with Rule 428 under the Securities Act of 1933, as amended
(the "Securities Act"), and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
Item 3. Incorporation of Documents by Reference.
The following documents, which previously have been filed by the
Company with the Securities and Exchange Commission (the "Commission"), are
incorporated herein by reference and made a part hereof:
(a) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form S-1 (No. 333-22013),
including any amendment or report filed for the purpose of
updating such description; and
(b) The Prospectus of the Company dated April 28, 1997, filed with
the Commission pursuant to Rule 424(b) under the Securities
Act in connection with the Company's Registration Statement on
Form S-1 (No. 333-22013).
All documents filed by the Company pursuant to Sections 13(a), 14 and
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
subsequent to the date of this Registration Statement and prior to the filing of
a post-effective amendment hereto that indicates that all securities offered
hereunder have been sold or that deregisters all securities then remaining
unsold shall be deemed to be incorporated by reference herein and to be a part
hereof from the date of filing of such documents.
For purposes of this Registration Statement, any statement contained in
a document incorporated or deemed to be incorporated herein by reference shall
be deemed to be modified or superseded to the extent that a statement contained
herein or in any other subsequently filed document that also is or is deemed to
be incorporated herein by reference modifies or supersedes such statement in
such document. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not applicable.
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Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145(a) of the Delaware General Corporation Law (the "GCL")
provides that a Delaware corporation may indemnify any person who was or is a
party 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) by
reason of the fact that such person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
against expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding if he or she 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, had no cause to believe his
or her conduct was unlawful.
Section 145(b) of the GCL provides that a Delaware corporation may
indemnify any person 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 by such person in connection with the defense or
settlement of such action or suit if he or she acted under similar standards,
except that no indemnification may be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable for
negligence or misconduct in the performance of his or her duty to the
corporation unless and only to the extent that the court in which such action or
suit was brought shall determine that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to be indemnified for such expenses which the court shall
deem proper.
Section 145 of the GCL 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, such officer or director shall be
indemnified against expenses 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 may purchase and maintain insurance on behalf
of a director or officer of the corporation against any liability asserted
against such officer or director and 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.
As permitted by Section 102(b)(7) of the GCL, the Company's Certificate
of Incorporation and Bylaws provide that a director shall not be liable to the
Company or its stockholders for monetary damages for breach of fiduciary duty as
a director. However, such provision does not eliminate or limit the liability of
a director for acts or omissions not in good faith or for breaching his or her
duty of loyalty, engaging in intentional misconduct or knowingly violating a
law, paying a dividend or approving a stock repurchase that was illegal, or
obtaining an improper personal benefit. A provision of this type has no effect
on the availability of equitable remedies, such as injunction or rescission, for
breach of fiduciary duty.
The Company's Certificate of Incorporation and Bylaws require the
Company to indemnify any person (or the estate of any person) who was or is 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
Company and whether civil, criminal, administrative or investigative or
otherwise by reason of the fact that such person is or was a director or officer
of the Company, or is or was serving at the request of the
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Company as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise, against expenses incurred (including
attorneys' fees), judgments, fines and amounts paid in settlement. Any such
expenses shall be paid by the Company 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 it if is ultimately
determined that he or she is not entitled to be indemnified.
Notwithstanding the foregoing, the Company will not make such an
advance 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 Company, that based on
the facts known to the Board of Directors 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 Company 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 the Certificate of
Incorporation and/or Bylaws.
The Company may, to the fullest extent permitted by the GCL, purchase
and maintain insurance on behalf of any such person against any liability that
may be asserted against such person. The Company may create a trust fund, grant
a security interest or use other means (including, without limitation, a letter
of credit) to ensure the payment of such sums as may become necessary or
desirable to effect the indemnification as provided in the Certificate of
Incorporation and Bylaws.
The Company may, but only to the extent that the Board of Directors may
authorize from time to time, grant rights to indemnification and to the
advancement of expenses to any employee or agent of the Company to the fullest
extent of the provisions described above as it applies to the indemnification
and advancement of expenses of directors and officers of the Company.
The Company has entered into Indemnification Agreements (the
"Indemnification Agreements") with its executive officers and directors. These
Indemnification Agreements require the Company to indemnify, in the manner and
to the fullest extent permitted by the GCL, each executive officer and director
if he or she is or was a party, or is threatened to be made a party to, any
action, suit or proceeding individually or in the right of the Company or any
subsidiary of the Company, by reason of (a) the fact that such executive officer
or director is or was an executive officer or director of the Company or any
subsidiary and/or (b) the fact that such executive officer or director is or was
serving at the request of the Company as a director or officer of another
corporation or other enterprise. The indemnification extends to all expenses as
incurred (including attorneys' fees), judgments, fines and amounts paid in
settlement of such action, suit or proceeding. The Company must further advance,
within 20 days of a written request, all expenses incurred by the executive
officer or director in connection with the investigation, defense, settlement or
appeal of any such action or proceeding; provided, however, that the executive
officer or director must repay such amounts advanced if it is ultimately
determined that he or she is not entitled to be indemnified by the Company.
Notwithstanding the foregoing, the Company will not make such an advance 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 quorum is not
obtainable or, even if obtainable, a quorum of disinterested directors so
directs) by independent legal counsel to the Company, that based on the facts
known to the Board of Directors 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 Company 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 the Indemnification Agreement.
Under the Indemnification Agreements, the executive officers and directors are
permitted to petition the court to seek recovery of amounts due under the
Indemnification Agreements and to recover the expenses of seeking such recovery
if he or she is successful. Absent the Indemnification Agreements,
indemnification that might be made available to executive officers and directors
could be changed by amendments to the Company's Certificate of Incorporation or
Bylaws. Benefits under the Indemnification Agreements are not available,
however, to indemnify an executive officer or director (a)
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with respect to proceedings or claims initiated by the executive officer or
director that are not by way of defense (unless authorized by the Board of
Directors); (b) with respect to liability for transactions from which the
executive officer or director derived an improper personal benefit; (c) if the
executive officer or director is determined to have committed acts of active and
deliberate dishonesty; (d) for expenses or liabilities that have been paid to
the executive officer or director under an insurance policy maintained by the
Company or otherwise by any other means; or (e) for an accounting of profits
realized from the purchase and sale of securities within the meaning of Section
16(b) of the Securities Exchange Act of 1934.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Amended and Restated Certificate of Incorporation of the
Company (filed as Exhibit 3.1 to the Company's Registration
Statement on Form S-1 (No. 333-22013) and incorporated herein
by reference)
4.2 Bylaws of the Company (filed as Exhibit 3.2 to the Company's
Registration Statement on Form S-1 (No. 333-22013) and
incorporated herein by reference)
5 Opinion of James J. Sullivan, Esq. as to the legality of the
securities being registered
23.1 Consent of Independent Auditors
23.2 Consent of Counsel (contained in Exhibit 5 hereto)
24 Power of Attorney (contained on signature page hereto)
Item 9. Undertakings.
(a) 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;
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(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;
(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 (a)(1)(i) and (a)(1)(ii) do not apply if 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
Exchange Act that are incorporated by reference in the Registration Statement.
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(2) That, for the purpose 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange 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.
(c) Insofar as indemnification for liabilities arising under the
Securities 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 Securities 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 of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by a final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for a 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 Orange, State of California, on May 30, 1997.
LONG BEACH FINANCIAL CORPORATION
By: /S/ M. JACK MAYESH
----------------------------------
M. Jack Mayesh
Chairman of the Board of Directors
and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints M.
JACK MAYESH, EDWARD RESENDEZ and JAMES J. SULLIVAN his or her true and lawful
attorneys-in-fact and agents, each acting alone, with full powers of
substitution and resubstitution, for him or her and in his or 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, each acting alone, with full powers and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as full to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming that all said attorneys-in-fact and
agents, each acting alone, or his or her substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities indicated
on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/S/ M. JACK MAYESH Chairman of the Board of Directors and May 30, 1997
- ------------------------- Chief Executive Officer
M. Jack Mayesh (Principal Executive Officer)
/S/ JAMES H. LEONETTI Chief Financial Officer May 30, 1997
- ------------------------- and Senior Vice President
James H. Leonetti (Principal Financial Officer)
/S/ BRETT ATKINSON Controller May 30, 1997
- ------------------------- (Principal Accounting Officer)
Brett Atkinson
/S/ EDWARD RESENDEZ President May 30, 1997
- ------------------------- and Director
Edward Resendez
/S/ DAVID S. ENGELMAN Director May 30, 1997
- -------------------------
David S. Engelman
/S/ C. STEPHEN MANSFIELD Director May 30, 1997
- -------------------------
C. Stephen Mansfield
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4.1* Amended and Restated Certificate of Incorporation of the Company
4.2* Bylaws of the Company
5 Opinion of James J. Sullivan, Esq. as to the legality of the securities
being registered
23.1 Consent of Independent Auditors
23.2 Consent of Counsel (contained in Exhibit 5 hereto)
24 Power of Attorney (contained on signature page hereto)
</TABLE>
- ---------------
* Incorporated herein by reference. See sequentially numbered page 5.
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Exhibit 5
[Long Beach Financial Corporation Letterhead]
May 29, 1997
Long Beach Financial Corporation
1100 Town & Country Road, Suite 900
Orange, California 92868
Re: Registration Statement on Form S-8 for 100,000 Shares of
Common Stock
Ladies and Gentlemen:
I am the General Counsel of Long Beach Financial Corporation (the
"Company"). In such capacity, I have participated in the preparation of a
Registration Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission to register 3,000,000 shares of
common stock, par value $.001 per share (the "Common Stock"), of the Company to
be issued pursuant to the Company's 1997 Stock Incentive Plan (the "Plan").
For purposes of rendering this opinion, I have made such inquiries and
examined, among other things, originals and copies, certified or otherwise
identified to my satisfaction, of such documents, corporate records and other
instruments as I have considered necessary or appropriate for purposes of this
opinion. For the purposes of such examination, I have assumed the genuineness of
all signatures on original documents and the conformity to original documents of
all copies submitted to me.
On the basis of and in reliance upon the foregoing examination and
assumptions, I am of the opinion that, assuming the Registration Statement shall
have become effective pursuant to the provisions of the Securities Act of 1933,
as amended, the shares of Common Stock being offered under the Plan, when issued
in accordance with the Registration Statement and the provisions of the Plan,
will be validly issued, fully paid and nonassessable.
I am admitted to practice law in the State of California; however, I am
generally familiar with the Delaware General Corporation Law as presently in
effect and have made such inquiries as I consider necessary to render the
opinions set forth herein relating to Delaware law. Except with respect to the
present general corporation laws of the State of Delaware, this opinion is
limited to the present laws of the United States of America and the State of
California and the present judicial interpretations thereof. No opinion is
expressed by me as to the effect of the laws of any other jurisdiction or as to
matters of conflict or choice of law. I undertake no obligation to advise you as
a result of facts or circumstances brought to my attention after the date
hereof.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/S/ JAMES J. SULLIVAN
James J. Sullivan
General Counsel, Secretary
and Executive Vice President
JJS/MDL
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Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Long Beach Financial Corporation on Form S-8 our report dated February 14,
1997, appearing in the Prospectus of the Company dated April 28, 1997, and filed
with the Securities and Exchange Commission pursuant to Rule 424(b) under the
Securities Act of 1933, as amended, in connection with the Company's
Registration Statement on Form S-1 (No. 333-22013).
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Costa Mesa, California
May 30, 1997
10
