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Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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FIRST SIERRA FINANCIAL, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 76-0438432
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
600 TRAVIS STREET, SUITE 7050
HOUSTON, TEXAS 77002
(Address of Principal Executive Offices)
FIRST SIERRA FINANCIAL, INC.
401(k) PLAN
(Full Title of the Plan)
THOMAS J. DEPPING
PRESIDENT
FIRST SIERRA FINANCIAL, INC.
600 TRAVIS STREET, SUITE 7050
HOUSTON, TEXAS 77002
(Name and Address of Agent For Service)
(713) 229-6800
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Securities to Amount to be Offering Price Per Aggregate Offering Amount of
be registered registered(1) Share(2) Price(2) Registration Fee
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Common Stock (par value $.01
per share) 100,000 Shares $ 18.125 $1,812,500 $504
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(1) Pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of plan
interests to be offered and sold pursuant to the plan described herein.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rules 457(c) and (h) under the Securities Act of 1933
on the basis of the average of the high and low prices of the Common
Share as quoted on The Nasdaq National Market on June 17, 1999.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference into this
registration statement:
(1) The Annual Report of First Sierra Financial, Inc. (the
"Company") on Form 10-K for the fiscal year ended December 31, 1998, which has
heretofore been filed by the Company with the Securities and Exchange Commission
(the "Commission") pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
(2) The Company's Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 1999, which has heretofore been filed by the
Company with the Commission pursuant to the Exchange Act.
(3) The description of the Company's Common Stock and Rights
to Purchase Shares of Junior Preferred Stock, Series C, contained in the
Company's Form 8-A Registration Statements for such securities.
(4) The Annual Report of the First Sierra Financial, Inc.
401(k) Plan (the "Plan") on Form 11-K for the year ended December 31, 1998.
All documents subsequently filed by the Company or the Plan pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing
of a post-effective amendment which indicates that all securities offered 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
part hereof from the date of filing of such documents (such documents, and the
documents enumerated above, being hereinafter referred to as "Incorporated
Documents"); provided, however, that the documents enumerated above or
subsequently filed by the registrant pursuant to Section 13(a), 13(c), 14 and
15(d) of the Exchange Act in each year during which the offering made by this
registration statement is in effect prior to the filing with the Commission of
the registrant's Annual Report on Form 10-K covering such year shall not be
Incorporated Documents or be incorporated by reference in this registration
statement or be a part hereof from and after the filing of such Annual Report on
Form 10-K.
Any statement contained in an Incorporated Document 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
Incorporated Document 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 4. DESCRIPTION OF SECURITIES.
The securities to be offered are registered under Section
12(g) of the Exchange Act.
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company, a Delaware corporation, is empowered by Section
145 of the Delaware General Corporation Law (the "DGCL"), subject to the
procedures and limitations stated therein, to 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 by reason of the fact that such person is
or was a director, officer, employee or agent of the Company, or is or was
serving at the request of the Company as a director, officer, employee or agent
of another corporation or other enterprise, against reasonable expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually incurred by him in connection with such action, suit or proceeding, if
such director, officer, employee or agent acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Company
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and, with respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. The Company is required by Section 145 to
indemnify any person against reasonable expenses (including attorneys' fees)
actually incurred by him in connection with an action, suit or proceeding in
which he is a party because he is or was a director, officer, employee or agent
of the Company or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation or other enterprise, if he has
been successful, on the merits or otherwise, in the defense of the action, suit
or proceeding. Section 145 also allows a corporation to purchase and maintain
insurance on behalf of any such person against any liability asserted against
him in any such capacity, or arising out of his status as such, whether or not
the corporation would have the power to indemnify him against such liability
under the provisions of Section 145. In addition, Section 145 provides that
indemnification pursuant to its provisions is not exclusive of other rights of
indemnification to which a person may be entitled under any bylaw, agreement,
vote of shareholders or disinterested directors, or otherwise.
Article XI of the Company's Restated Certificate of
Incorporation (the "Charter") provides that the Company shall indemnify and hold
harmless any person who was, is, or is threatened to be made a party to a
proceeding by reason of the fact that he or she (i) is or was a director or
officer of the Company or (ii) while a director or officer of the Company, is or
was serving at the request of the Company as a director, officer, partner,
venturer, proprietor, trustee, employee, agent, or similar functionary of
another foreign or domestic corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan, or other enterprise, to the
fullest extent permitted under the DGCL. The right to indemnification under
Article XI of the Charter is a contract right which includes, with respect to
directors and officers, the right to be paid by the Company the expenses
incurred in defending any such proceeding in advance of its disposition.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
Reference is made to the Exhibit Index.
Item 9. UNDERTAKINGS.
(1) The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement
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.
(b) That, for the purpose of determining any liability under
the Securities Act of 1933 (the "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.
(c) 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.
(2) Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions described in Item 6 or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the 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
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indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
(3) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the
registrant's annual report pursuant to section 13(a) or 15(d) of the
Act (and each filing of the Plan's annual report pursuant to section
15(d) of the 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
undersigned 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 Houston, State of Texas, on the 22nd day of
June, 1999.
FIRST SIERRA FINANCIAL, INC.
By: /s/ THOMAS J. DEPPING
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Thomas J. Depping
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned directors and
officers of First Sierra Financial, Inc., a Delaware corporation, which is
filing a Registration Statement on Form S-8 with the Securities and Exchange
Commission, under the provisions of the Securities Act of 1933, as amended (the
"Securities Act"), hereby constitute and appoint Thomas J. Depping and Sandy B.
Ho, and each of them, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign such Registration Statement and any
and all amendments, including post-effective amendments, to the Registration
Statement, and all other documents in connection therewith to be filed with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 22nd day of June, 1999:
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SIGNATURE TITLE
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/s/ THOMAS J. DEPPING President, Chief Executive Officer and Chairman of the
- --------------------------------------- Board of Directors (principal executive officer)
(Thomas J. Depping)
/s/ SANDY B. HO Executive Vice President and Chief Financial Officer
- --------------------------------------- (principal financial officer and principal accounting officer)
(Sandy B. Ho)
/s/ RICHARD J. CAMPO Director
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(Richard J. Campo)
/s/ ROBERT TED ENLOE, III Director
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(Robert Ted Enloe, III)
/s/ BRIAN E. McMANUS Director
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(Brian E. McManus)
/s/ NORMAN J. METCALFE Director
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(Norman J. Metcalfe)
/s/ DAVID C. SHINDELDECKER Director
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(David C. Shindeldecker)
/s/ DAVID L. SOLOMON Director
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(David L. Solomon)
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EXHIBIT INDEX
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EXHIBIT NUMBER DESCRIPTION
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4.1 Restated Certificate of Incorporation of the Company incorporated
herein by reference to Exhibit 3.1 to Registrant's Annual Report on
Form 10-K for the year ended December 31, 1998
4.2 Amended and Restated By-Laws of the Company, incorporated herein by
reference to Exhibit 3.1 to Amendment No. 3 to Registrant's
Registration Statement on Form S-1 (Registration No. 333-22629)
23 Consent of Arthur Andersen LLP.
24 Powers of Attorney (included with the signature page to the
Registration Statement)
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CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated May 20, 1999
included in First Sierra 401(k) Plan's Form 11-K for the year ended December 31,
1998 and to all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
Houston, Texas
June 22, 1999
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CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our reports dated February 17,
1999 included in First Sierra Financial, Inc.'s Form 10-K for the year ended
December 31, 1998 and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
Houston, Texas
June 22, 1999
