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Commission File No.
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________________________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR (G) OF THE
SECURITIES EXCHANGE ACT OF 1934
_________________________________________
FIRST SIERRA FINANCIAL, INC.
(Exact name of registrant as specified in its charter)
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<S> <C>
DELAWARE 76-0438432
(State of incorporation or organization) (I.R.S. Employer
Identification No.)
TEXAS COMMERCE TOWER, SUITE 7050
600 TRAVIS STREET
HOUSTON, TEXAS 77002
(Address of principal executive offices) (Zip Code)
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Securities to be registered
pursuant to Section 12(b) of the Act:
None
If this Form relates to the registration of a class of debt securities and is
effective upon filing pursuant to General Instructions A.(c)(1), please check
the following box. [ ]
If this Form relates to the registration of a class of debt securities and is
to become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A.(c)(2), please check the following box. [ ]
Securities to be registered
pursuant to Section 12(g) of the Act:
Common Stock, par value $.01 per share
(Title of Class)
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
The class of securities to be registered hereby is the Common Stock,
par value $.01 per share (the "Common Stock"), of First Sierra Financial, Inc.,
a Delaware corporation (the "Company").
For a description of the Common Stock, see the information set forth
under the caption "Description of Capital Stock" in the Prospectus subject to
completion dated April 15, 1997 constituting a part of Amendment No. 2 to the
Company's Registration Statement on Form S-1 (Registration No. 333-22629), as
filed by the Company on April 15, 1997, which is incorporated herein by
reference. Such description is set forth in Exhibit 4 to this Registration
Statement.
ITEM 2. EXHIBITS.
1. Restated Certificate of Incorporation of the Company,
incorporated by reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-1, as amended (Registration
No. 333-22629).
2. Amended and Restated Bylaws of the Company, incorporated by
reference to Exhibit 3.2 to the Company's Registration
Statement on Form S-1, as amended (Registration No. 333-22629).
3. Form of Common Stock Certificate, incorporated by reference to
Exhibit 4.1 to the Company's Registration Statement on
Form S-1, as amended (Registration No. 333-22629).
*4. Copy of the information set forth under the caption
"Description of Capital Stock" in the Prospectus that is
included in the Company's Registration Statement on Form S-1,
as amended (Registration No. 333-22629).
*Filed herewith.
2
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities and
Exchange Act of 1934, the registrant has duly caused this registration
statement to be signed on its behalf by the undersigned, thereto duly
authorized.
FIRST SIERRA FINANCIAL, INC.
By \s\ SANDY B. HO
Name: Sandy B. Ho
Title: Chief Financial Officer
Date: May 5, 1997
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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1. Restated Certificate of Incorporation of the Company,
incorporated by reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-1, as amended (Registration
No. 333-22629).
2. Amended and Restated Bylaws of the Company, incorporated by
reference to Exhibit 3.2 to the Company's Registration
Statement on Form S-1, as amended (Registration No. 333-22629).
3. Form of Common Stock Certificate, incorporated by reference to
Exhibit 4.1 to the Company's Registration Statement on
Form S-1, as amended (Registration No. 333-22629).
*4. Copy of the information set forth under the caption
"Description of Capital Stock" in the Prospectus that is
included in the Company's Registration Statement on Form S-1,
as amended (Registration No. 333-22629).
*Filed herewith.
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EXHIBIT 4
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of 25,000,000 shares
of common stock, par value $.01 per share ("Common Stock"), and 1,000,000 shares
of preferred stock, par value $.01 per share ("Preferred Stock").
COMMON STOCK
As of April 15, 1997, 5,696,310 shares of Common Stock were outstanding and
held of record by ten persons. Upon completion of the Offering, 8,140,754 shares
of Common Stock will be outstanding, excluding 918,878 shares of Common Stock
issuable upon exercise of options to be granted under the 1997 Stock Option Plan
concurrently with the Offering and 198,397 shares of Common Stock issuable upon
exercise of the Warrants.
The holders of Common Stock are entitled to one vote for each share held on
all matters submitted to a vote of holders of Common Stock. The Common Stock
does not have cumulative voting rights, which means that the holders of a
majority of the voting power of shares of Common Stock outstanding are able to
elect all the directors and the holders of the remaining shares are not able to
elect any directors. Each share of Common Stock is entitled to participate
equally in dividends, if, as and when declared by the Company's Board of
Directors, and in the distribution of assets in the event of liquidation,
subject in all cases to any prior rights of outstanding shares of Preferred
Stock. The Company has never paid cash dividends on its Common Stock. The shares
of Common Stock have no preemptive rights, redemption rights, or sinking fund
provisions. The outstanding shares of Common Stock are, and the shares of Common
Stock offered hereby upon issuance and sale will be, duly authorized, validly
issued, fully paid and nonassessable.
PREFERRED STOCK
The Company is authorized to issue 1,000,000 shares of Preferred Stock. The
Company's Board of Directors may establish, without stockholder approval, one or
more classes or series of Preferred Stock having the number of shares,
designations, relative voting rights, dividend rates, liquidation and other
rights, preferences, and limitations that the Board of Directors may designate.
The Company believes that this power to issue Preferred Stock will provide
flexibility in connection with possible corporate transactions. The issuance of
Preferred Stock, however, could adversely affect the voting power of holders of
Common Stock and restrict their rights to receive payments upon liquidation of
the Company. It could also have the effect of delaying, deferring or preventing
a change in control of the Company. As of April 15, 1997, the Company's
outstanding Preferred Stock consisted of 56,718 shares of Series A Preferred
Stock and 43,691 shares of Series B Preferred Stock.
SERIES A PREFERRED STOCK
As of April 15, 1997, the Company had issued and outstanding 56,718 shares
of Series A Preferred Stock. These shares will remain outstanding after the
Offering. The following description is a summary of the Certificate of
Designation for the Series A Preferred Stock, and is qualified in its entirety
by reference to that document.
Dividends. The Series A Preferred Stock ranks, with respect to dividend
rights and distribution of assets on liquidation, senior and prior to the Common
Stock, on parity with the Series B Preferred Stock and junior to, or on parity
with, as the case may be, any other stock of the Company designated as senior
to, or on parity with, as the case may be, Series A Preferred Stock. Holders of
Series A Preferred Stock are entitled to receive non-cumulative annual cash
dividends of $1.86 per share payable annually when declared by the Board of
Directors. Upon any voluntary or involuntary liquidation, dissolution or winding
up of the Company, the holders of Series A Preferred Stock then outstanding will
be entitled to receive an amount of cash per share equal to $46.54607 before any
distribution is made on the Common Stock. As long as any shares of Series A
Preferred Stock are outstanding, the Company may not pay, declare or set apart a
dividend or distribution on the Common Stock (other than stock dividends or
distributions payable in Common Stock).
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Redemption. The Series A Preferred Stock is mandatorily redeemable by the
Company on December 31, 2001 (subject to conversion rights at any time on or
prior to November 30, 2001) at a redemption price of $46.54607 per share.
Conversion. The Series A Preferred Stock is convertible, at the option of
the holder thereof, at any time into Common Stock at a conversion rate of 5.47
shares of Common Stock for each share of Series A Preferred Stock, subject to
adjustment for stock dividends, stock splits and combinations.
Voting Rights. The shares of Series A Preferred Stock have general voting
rights on all issues submitted to the stockholders. Each share of Series A
Preferred Stock entitles the holder thereof to such number of votes per share as
shall equal the number of shares of Common Stock into which such shares of
Series A Preferred Stock are convertible.
Registration Rights. Until the earlier of December 31, 2001 or, as to any
holder of Series A Preferred Stock, (a) the date such holder owns less than the
equivalent of 5,000 shares of fully diluted Common Stock, or (b) the date on
which such holder is able to dispose of all shares of Common Stock issuable upon
conversion of the Series A Preferred Stock under Rule 144, the holders of Series
A Preferred Stock have piggyback registration rights with respect to any
offering by the Company or a stockholder of the Company of Common Stock to the
public for cash except for (i) offerings of shares issuable by the Company upon
the exercise of employee or director stock options, or (ii) offerings of shares
issued in mergers wherein the Company is the surviving corporation. The Company
is required to give holders of Series A Preferred Stock at least 30 days prior
written notice of the filing of any registration statement, specifying the
estimated price range of the offering covered thereby. The holders of the Series
A Preferred Stock have waived their registration rights with respect to the
Offering.
SERIES B PREFERRED STOCK
As of April 15, 1997, the Company had issued and outstanding 43,691 shares
of Series B Preferred Stock. These shares will remain outstanding after the
Offering. The following description is a summary of the Certificate of
Designation for the Series B Convertible Preferred Stock, and is qualified in
its entirety by reference to that document.
Dividends. The Series B Preferred Stock ranks, with respect to dividend
rights and distribution of assets on liquidation, senior and prior to the Common
Stock, on parity with the Series A Preferred Stock and junior to, or on parity
with, as the case may be, any other stock of the Company designated as senior
to, or on parity with, as the case may be, the Series B Preferred Stock. Holders
of Series B Preferred Stock are entitled to receive cumulative annual cash
dividends ranging from $1.14 to $2.29 per share, depending upon the number of
shares of Series B Preferred Stock which have then been released from escrow
pursuant to an escrow agreement between the Company and Valerie A. Hayes (the
"Escrow"). 21,845 shares of the Series B Preferred Stock issued to Valerie A.
Hayes are held pursuant to the Escrow and will be released therefrom pursuant to
certain earnout provisions contained in the Escrow Agreement. The earnout covers
an aggregate period of approximately 39 months (with the first earnings period
being approximately 15 months and the two succeeding earnings periods being 12
months each) and provides that approximately 7,281 shares of such Series B
Preferred Stock are to be released from the Escrow per earnings period if the
Corporate Capital Leasing division of the Company meets or exceeds an income
amount determined pursuant to a formula. If the Corporate Capital Leasing
division of the Company does not meet or exceed the required income amount in
any earnings period, then approximately 7,281 shares of such Series B Preferred
Stock are required to be cancelled. As of April 15, 1997, no shares of Series B
Preferred Stock had been released from the Escrow and the dividend rate in
effect for the Series B Preferred Stock was $1.14. Upon any voluntary or
involuntary liquidation, dissolution or winding up of the Company, except a
Redemption Acceleration Event (as defined below), the holders of Series B
Preferred Stock then outstanding will be entitled to receive an amount of cash
per share ranging from $28.61 to $57.22, depending upon the number of shares of
Series B Preferred Stock which have then been released from the Escrow, before
any distribution is made on the Common Stock. As of April 15, 1997, the
dissolution rate in effect for the Series B Preferred Stock was $28.61. As long
as dividends on the Series B Preferred Stock are in arrears or the Company shall
be obligated to, and shall have
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failed to redeem, any shares of Series B Preferred Stock which are mandatorily
redeemable or optionally redeemable following a Redemption Acceleration Event,
the Company may not pay or declare a dividend on the Common Stock (other than
distributions payable in Common Stock).
Redemption. The Series B Preferred Stock is mandatorily redeemable by the
Company on December 31, 2001 (subject to conversion rights at any time on or
prior to November 30, 2001) at a redemption price ranging from $28.61 to $57.22
per share, depending upon the number of shares of Series B Preferred Stock which
have then been released from the Escrow (the "Redemption Price"). As of April
15, 1997, the Redemption Price in effect for the Series B Preferred Stock was
$28.61. In addition, if the Company files for bankruptcy, a bankruptcy petition
is filed against the Company, the Company institutes insolvency proceedings,
fails to renew or extend the Letter of Credit described in the Agreement and
Plan of Reorganization dated as of October 15, 1996 between Valerie A. Hayes,
CCL, the Company and First Sierra Pennsylvania, Inc. (the "Reorganization
Agreement"), or fails to pay any dividends on the Series B Preferred Stock when
required pursuant to the Reorganization Agreement (each, a "Redemption
Acceleration Event"), then each holder of Series B Preferred Stock may, at such
holder's option, require the Company to redeem all of the shares of Series B
Preferred Stock held by such holder at the Redemption Price then in effect.
Conversion. The Series B Preferred Stock is convertible at any time, at the
option of the holder thereof, into Common Stock at a conversion rate of 5.47
shares of Common Stock for each share of Series B Preferred Stock. In addition,
shares of Series B Preferred Stock will be automatically converted by the
Company into shares of Common Stock at a conversion rate of 5.47 shares of
Common Stock for each share of Series B Preferred Stock if the Common Stock
trades at or above $12.33 per share (subject to adjustment for stock dividends,
subdivisions or split-ups, and reverse stock splits) for twenty consecutive
trading days and there is then in effect a registration statement and prospectus
covering the resale of the shares of Common Stock into which such shares of
Series B Preferred Stock are convertible.
Voting Rights. The shares of Series B Preferred Stock have general voting
rights on all issues submitted to stockholders. Each share of Series B Preferred
Stock entitles the holder thereof to such number of votes per share as shall
equal the number of shares of Common Stock into which such shares of Series B
Preferred Stock are convertible.
Registration Rights. Unless waived by written consent, the holders of
Series B Preferred Stock have piggyback registration rights on any offering by
the Company or by a stockholder of the Company of Common Stock to the public for
cash except for (i) offerings of shares issuable by the Company upon the
exercise of employee or director stock options, or (ii) offerings of shares
issued in mergers wherein the Company is the surviving corporation. The Company
is required to give holders of Series B Preferred Stock at least 15 days prior
written notice of the filing of a registration statement, specifying the
estimated price range of the offering covered thereby. The holders of the Series
B Preferred Stock have waived their piggyback registration rights with respect
to the Offering. In addition, during the period beginning on the 12-month
anniversary of the completion of the Offering and ending 48 months thereafter,
the holders of Series B Preferred Stock can demand, on one occasion,
registration of the shares of Common Stock which are issuable upon conversion of
their shares of Series B Preferred Stock, provided that the number of shares
proposed to be sold shall be at least equal to 25% of the aggregate number of
shares of Common Stock issuable upon conversion of all of the then outstanding
shares of Series B Preferred Stock. If a demand is made pursuant to the previous
sentence, then the Company is required to prepare and file a continuous or
"shelf" registration statement pursuant to Rule 415 under the Securities Act
respecting the sale from time to time of all of the shares of Common Stock
issuable upon conversion of the Series B Preferred Stock then outstanding.
WARRANTS
In connection with the First Union Credit Facility, First Union National
Bank of North Carolina was granted warrants (the "Warrants") to purchase 198,397
shares of the Company's Common Stock at an exercise price of $.0018 per share.
The Warrants are currently exercisable and have an expiration date of May 8,
2005. To date, none of the Warrants have been exercised. Pursuant to the warrant
agreement, holders of a majority of the shares of Common Stock to be acquired
upon exercise of the Warrants have the right on
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one occasion to demand registration of their registrable securities as well as
certain piggyback registration rights. Such registration rights terminate to the
extent such holders are able to sell the shares of Common Stock issuable upon
exercise of the Warrants under Rule 144(k) (or any successor provision). The
holder of the Warrants has waived its registration rights with respect to the
registration statement filed by the Company with respect to the Offering.
The Company has the option to purchase the Warrants at Fair Market Value
(as defined in the Warrant Agreement) on May 8, 2001 or upon the occurrence of
certain events, including an event of default under the First Union Credit
Facility.
DELAWARE LAW AND CERTAIN CHARTER PROVISIONS
The Company is a Delaware corporation and is subject to Section 203 of the
Delaware General Corporation Law. In general, Section 203 prevents an
"interested stockholder" (defined generally as a person owning 15% or more of
the Company's outstanding voting stock) from engaging in a "business
combination" (as defined in Section 203) with the Company for three years
following the date that person becomes an interested stockholder unless (a)
before that person became an interested stockholder, the Company's Board of
Directors approved the transaction in which the interested stockholder became an
interested stockholder or approved the business combination; (b) upon completion
of the transaction that resulted in the interested stockholder becoming an
interested stockholder, the interested stockholder owns at least 85% of the
voting stock outstanding at the time the transaction commenced (excluding stock
held by directors who are also officers of the Company and by employee stock
plans that do not provide employees with the right to determine confidentially
whether shares held subject to the plan will be tendered in a tender or exchange
offer); or (c) following the transaction in which that person became an
interested stockholder, the business combination is approved by the Company's
Board of Directors and authorized at a meeting of stockholders by the
affirmative vote of the holders of at least two-thirds of the outstanding voting
stock not owned by the interested stockholder.
Under Section 203, these restrictions do not apply to certain business
combinations proposed by an interested stockholder following the announcement or
notification of one of certain extraordinary transactions involving the Company
and a person who was not an interested stockholder during the previous three
years or who became an interested stockholder with the approval of a majority of
the Company's directors, if that extraordinary transaction is approved or not
opposed by a majority of the directors who were directors before any person
became an interested stockholder in the previous three years or who were
recommended for election or elected to succeed such directors by a majority of
such directors then in office.
Upon completion of the Offering, the Company's Board of Directors will be
divided into three classes. The directors of each class will be elected for
three-year terms, with the terms of the three classes staggered so that
directors from a single class are elected at each annual meeting of
stockholders. Stockholders may remove a director only for cause upon the vote of
at least 80% of the then outstanding shares of capital stock entitled to vote
upon the election of directors ("Voting Stock"). In general, the Board of
Directors, not the stockholders, has the right to appoint persons to fill
vacancies on the Board of Directors.
The Charter provides that special meetings of holders of Common Stock may
be called only by the Company's Board of Directors and that only business
proposed by the Board of Directors may be considered at special meetings of
holders of Common Stock.
The Charter provides that the only business (including election of
directors) that may be considered at an annual meeting of holders of Common
Stock, in addition to business proposed (or persons nominated to be directors)
by the directors of the Company, is business proposed (or persons nominated to
be directors) by holders of Common Stock who comply with the notice and
disclosure requirements set forth in the Charter. In general, the Charter
requires that a stockholder give the Company notice of proposed business or
nominations no later than 60 days before the annual meeting of holders of Common
Stock (meaning the date on which the meeting is first scheduled and not
postponements or adjournments thereof) or (if later) ten days after the first
public notice of the annual meeting is sent to holders of Common Stock. In
general, the notice must also contain information about the stockholder
proposing the business or nomination, the stockholder's interest in
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the business, and (with respect to nominations for director) information about
the nominee of the nature ordinarily required to be disclosed in public proxy
statements. The stockholder also must submit a notarized letter from each of the
stockholder's nominees stating the nominee's acceptance of the nomination and
indicating the nominee's intention to serve as director if elected.
The Charter provides that the affirmative vote of at least two-thirds of
the Voting Stock shall be required to approve any of the following proposed
transactions: (i) a merger or consolidation in which the Company shall not be
the surviving entity or shall survive only as a subsidiary of an entity; (ii) a
sale, lease or exchange or an agreement to sell, lease or exchange all or
substantially all of the assets of the Company to any other person or entity; or
(iii) the dissolution or liquidation of the Company.
The Charter authorizes the Board of Directors, without any action by the
stockholders of the Company, to issue up to 1,000,000 shares of Preferred Stock,
in one or more series and to determine the voting rights (including the right to
vote as a series on particular matters), preferences as to dividends and in
liquidation and the conversion and other rights of each such series. Because the
terms of the preferred stock may be fixed by the Board of Directors without
stockholder action, the preferred stock could be issued quickly with terms
designed to make more difficult a proposed takeover of the Company or the
removal of its management, thus affecting the market price of the Common Stock
and preventing stockholders from obtaining any premium offered by the potential
buyer. The Board of Directors will make any determination to issue such shares
based on its judgment as to the best interests of the Company and its
stockholders.
The Delaware General Corporation Law provides generally that the
affirmative vote of a majority of the shares entitled to vote on any matter is
required to amend a corporation's certificate of incorporation or bylaws, unless
the corporation's certificate of incorporation or bylaws requires a greater
percentage. The Charter provides that approval by the holders of at least 80% of
the Voting Stock is required to amend the provisions of the Charter previously
discussed and certain other provisions.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Common Stock is Harris Trust and
Savings Bank.
