<PAGE>
As filed with the Securities and Exchange Commission on March 5, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
FRANCHISE MORTGAGE ACCEPTANCE COMPANY
(Exact Name of Registrant as Specified in its Charter)
------------------
Delaware 95-4649104
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
------------------
1888 Century Park East, Third Floor, Los Angeles, California 90067
(Address of Principal Executive Offices)
1997 Stock Option, Deferred Stock and Restricted Stock Plan
(Full Title of the Plan)
WAYNE L. KNYAL
1888 Century Park East, Third Floor, Los Angeles, California 90067
(Name and Address of Agent For Service)
(310) 229-2600
(Telephone Number, Including Area Code, of Agent for Service)
------------------
Copies to:
Mark J. Kelson, Esq.
Allen, Matkins, Leck, Gamble & Mallory LLP
1999 Avenue of the Stars, Suite 1800
Los Angeles, California 90067
Telephone: (310) 788-2429
Facsimile: (310) 788-2410
------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================================================
Proposed
Title of Securities Amount Proposed Maximum Maximum
To Be Registered To Be Offering Price Per Aggregate Amount of
Registered(1) Unit Offering Price (2) Registration Fee
- - - ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value............... 360,000 shares $18.00 $ 6,480,000.00 $1,801.44
- - - ----------------------------------------------------------------------------------------------------------------------------------
Common Stock, $.001 par value............... 130,000 shares $16.32 $ 2,121,600.00 $ 589.80
- - - ----------------------------------------------------------------------------------------------------------------------------------
Common Stock, $.001 par value............... 5,000 shares $22.86 $ 114,300.00 $ 31.78
- - - ----------------------------------------------------------------------------------------------------------------------------------
Common Stock, $.001 par value............... 1,857,897 shares $11.00 $20,436,867.00 $5,681.45
- - - ----------------------------------------------------------------------------------------------------------------------------------
Common Stock, $.001 par value............... 70,000 shares $ 6.50 $ 455,000.00 $ 126.49
- - - ----------------------------------------------------------------------------------------------------------------------------------
Common Stock, $.001 par value............... 7,000 shares $ 6.45 $ 45,150.00 $ 12.55
- - - ----------------------------------------------------------------------------------------------------------------------------------
Common Stock, $.001 par value............... 5,000 shares $ 5.63 $ 28,150.00 $ 7.83
- - - ----------------------------------------------------------------------------------------------------------------------------------
Common Stock, $.001 par value............... 436,665 shares $ 8.56 $ 3,737,852.40(3) $1,039.12
- - - ----------------------------------------------------------------------------------------------------------------------------------
Total 2,871,562 shares $33,418,919.40 $9,290.46
==================================================================================================================================
</TABLE>
(1) This Registration Statement also covers an indeterminate number of shares of
common stock of the Registrant which may be issuable by reason of stock
dividends, stock splits or similar transactions, in accordance with Rule
416.
(2) Estimated solely for the purpose of computing the amount of the registration
fee pursuant to Rule 457(h)(1).
(3) Estimated solely for the purpose of computing the amount of the registration
fee pursuant to Rule 457(c).
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) prospectus
The documents containing the information specified in Part I of Form S-8 and the
statement of availability of information and other information relating to the
Plan required by Item 2 of Part II of Form S-8 have previously been, or will be,
sent or given to the plan participants as specified by Rule 428(b)(1) of the
Securities Act of 1933, as amended (the "Securities Act"). Such documents are
not required to be and are not filed with the Securities and Exchange Commission
(the "Commission") either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424 of the Securities
Act. These documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Information Incorporated by Reference
- - - ----------------------------------------------
The documents listed in (a) through (c) below, which previously have been filed
by the Company with the Securities and Exchange Commission, are incorporated
herein by reference and made a part hereof. All documents subsequently filed by
the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act"), prior to the filing of a post-
effective amendment which indicates that all securities offered herein 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 a part
hereto from the date of filing of such documents.
(a) The Registrant's latest Annual Report on Form 10-K.
(b) All other reports filed by Registrant pursuant to Sections 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by the
above-referenced Annual Report.
(c) The section of the Registrant's Prospectus, dated November 18, 1997,
filed with the Commission under Rule 424(b) of the Securities Act, entitled
"Description of Capital Stock--Common Stock."
For purposes of this Registration Statement, any document or 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
subsequently filed document or a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated herein
by reference modifies or supersedes such document or 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.
Item 5. Interests of Named Experts and Counsel
- - - -----------------------------------------------
Michael L. Matkins, a member of the Registrant's Board of Directors, is a
partner at Allen, Matkins, Leck, Gamble & Mallory LLP, counsel for the
Registrant which is rendering an opinion in connection with this Registration
Statement. Mr. Matkins has been issued stock options under the Plan to purchase
up to 30,000 shares of the Registrant's Common Stock, which shares are subject
to this Registration Statement.
Item 6. Indemnification of Officers and Directors
- - - --------------------------------------------------
The Registrant is a Delaware corporation. Subsection (b)(7) of Section 102 of
the Delaware General Corporation Law (the "DGCL") enables a corporation in its
original certificate of incorporation or an amendment thereto to eliminate or
limit the personal liability of a director to the corporation or its
stockholders for monetary damages for violations of the director's fiduciary
duty, except (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (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 DGCL (providing for liability of directors for
II-1
<PAGE>
unlawful payment of dividends or unlawful stock purchases or redemptions) or
(iv) for any transaction from which a director derived an improper personal
benefit. Article SEVEN of the Registrant's Amended and Restated Certificate of
Incorporation provides that directors shall not be liable to the corporation or
its stockholders for monetary damages for breach of a fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which
the director derived an improper personal benefit.
Subsection (a) of Section 145 of the DGCL empowers a corporation to indemnify
any director or 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,
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 or officer of the corporation or is
or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' 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 in a manner 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 further that such director or officer has no reasonable
cause to believe his conduct was unlawful.
Subsection (b) of Section 145 of the DGCL empowers a corporation to indemnify
any director or 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 (including attorneys' fees) actually and reasonably
incurred in connection with the defense or settlement of such action or suit
provided that such director or officer acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
corporation, except that no indemnification may be made in 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 Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that despite the adjudication of liability but in view of all
of the circumstances of the case, such director or officer is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
Section 145 of the DGCL further provides that (i) 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 shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith; and (ii) indemnification and advancement of expenses
provided for, by, or granted pursuant to, Section 145 of the DGCL shall not be
deemed exclusive of any other rights to which the indemnified party may be
entitled. In addition, Section 145 of the DGCL empowers the corporation to
purchase and maintain insurance on behalf of any person who is or was a director
or officer of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him or incurred by 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 liabilities under Section 145 of the DGCL.
The Bylaws of the Registrant provide that (i) the Registrant is required to
indemnify its officers and directors to the fullest extent permitted by
applicable law; and (ii) the Registrant is required to advance expenses to its
officers and directors to the fullest extent permitted by applicable law,
including as permitted by Sections 145(a) and 145(b) of the DGCL.
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 Securities and Exchange 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 whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
Item 7. Exemption from Registration Claimed
- - - --------------------------------------------
Not applicable.
II-2
<PAGE>
Item 8. Exhibits
- - - -----------------
<TABLE>
<CAPTION>
Exhibits Description
- - - -------------------- ------------------------------------------------------------------------------------------------------
<C> <S>
3.1 Amended and Restated Certificate of Incorporation of Registrant (incorporated by reference to Exhibit
3.3 of Amendment No. 3 to the Registration Statement on Form S-1 of the Registrant (Registration No.
33-34481)).
3.2 Amended and Restated Bylaws of Registrant (incorporated by reference to Exhibit 3.4 of Amendment No. 3
to the Registration Statement on Form S-1 of the Registrant (Registration No. 33-34481)).
4.1 1997 Stock Option, Deferred Stock and Restricted Stock Plan (incorporated by reference to Exhibit 10.1
to the Registration Statement on Form S-1 of the Registrant (Registration No. 33-34481)).
5.1 Opinion of Allen, Matkins, Leck, Gamble & Mallory LLP
23.1 Consent of KPMG LLP
23.2 Consent of Allen, Matkins, Leck, Gamble & Mallory LLP (included in Exhibit 5.1)
24.1 Power of Attorney (see page II-5)
</TABLE>
_____________________
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.
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 and 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 percent 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 (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.
(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.
II-3
<PAGE>
(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 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 herein, 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 Registrant's Amended and Restated Certificate
of Incorporation and Bylaws, and the Delaware General Corporation Law, 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 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
Securities Act and will be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Los Angeles, California on February 28, 1999.
FRANCHISE MORTGAGE ACCEPTANCE COMPANY
By: /s/ Raedelle A. Walker
_________________________________________
Name: Raedelle A. Walker
Title: Executive Vice President and
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Wayne L. Knyal and Raedelle A. Walker and
each of them, individually and without the other, his attorney-in-fact, each
with the power of substitution, for him in any and all capacities to sign any
and all amendments to this Registration Statement (including post-effective
amendments) and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that each of said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue hereof.
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 dates indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
/s/ H. Wayne Snavely Chairman of the Board February 28, 1999
___________________________________
H. Wayne Snavely
/s/ Wayne L. Knyal President, Chief Executive Officer February 28, 1999
___________________________________ and Director (Principal Executive
Wayne L. Knyal Officer)
/s/ Raedelle A. Walker Executive Vice President and Chief February 28, 1999
___________________________________ Financial Officer (Principal
Raedelle A. Walker Financial and Accounting Officer)
/s/ Brad S. Plantiko Director February 28, 1999
___________________________________
Brad S. Plantiko
/s/ Richard J. Loughlin Director February 28, 1999
___________________________________
Richard J. Loughlin
/s/ Perry A. Lerner Director February 28, 1999
___________________________________
Perry A. Lerner
/s/ John E. Martin Director February 28, 1999
___________________________________
John E. Martin
/s/ Michael L. Matkins Director February 28, 1999
___________________________________
Michael L. Matkins
/s/ Ronald V. Davis Director February 28, 1999
___________________________________
Ronald V. Davis
</TABLE>
II-5
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Sequential Page
Number Description Number
- - - ------------------- -------------------------------------------------------------------- ------------------
<C> <S> <C>
3.1 Amended and Restated Certificate of Incorporation of Registrant
(incorporated by reference to Exhibit 3.3 of Amendment No. 3 to the
Registration Statement on Form S-1 of the Registrant (Registration
No. 33-34481)).
3.2 Amended and Restated Bylaws of Registrant (incorporated by reference
to Exhibit 3.4 of Amendment No. 3 to the Registration Statement on
Form S-1 of the Registrant (Registration No. 33-34481)).
4.1 1997 Stock Option, Deferred Stock and Restricted Stock Plan
(incorporated by reference to Exhibit 10.1 to the Registration
Statement on Form S-1 of the Registrant (Registration No. 33-34481)).
5.1 Opinion of Allen, Matkins, Leck, Gamble & Mallory LLP
23.1 Consent of KPMG LLP
23.2 Consent of Allen, Matkins, Leck, Gamble & Mallory LLP (included in
Exhibit 5.1)
24.1 Power of Attorney (see page II-5)
</TABLE>
<PAGE>
EXHIBIT 5.1
[Letterhead of Allen, Matkins, Leck, Gamble & Mallory LLP]
March 5, 1999
Franchise Mortgage Acceptance Company
1888 Century Park East, Third Floor
Los Angeles, California 90067
Ladies and Gentlemen:
As counsel for Franchise Mortgage Acceptance Company (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, (the
"Securities Act") relating to the offering of up to 2,871,562 shares of the
Company's Common Stock (the "Shares") issuable upon the exercise of stock
options and other awards granted to certain executive officers, employees and
directors 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 the
Shares have been validly authorized for issuance and, when issued and sold in
accordance with the terms set forth in the Registration Statement and the Plan,
and, when (a) the Registration Statement has become effective under the
Securities Act, (b) the pertinent provisions of any applicable state securities
law have been complied with, and (c) in the case of options and other awards
issued under the Plan, the Shares have been paid for, the Shares so issued will
be legally issued and will be 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 General Corporation Law of the State of 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.
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
Securities and Exchange Commission, 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/ ALLEN, MATKINS, LECK GAMBLE
& MALLORY LLP
<PAGE>
EXHIBIT 23.1
Consent of Independent Auditors'
The Board of Directors
Franchise Mortgage Acceptance Company:
We consent to the incorporation by reference in the registration statement on
Form S-8 of Franchise Mortgage Acceptance Company of our report dated January
21, 1998, relating to the balance sheets of Franchise Mortgage Acceptance
Company as of December 31, 1997 and 1996, and the related statements of
operations, changes in stockholders' or members' equity and cash flows for the
years ended December 31, 1997 and 1996, the six months ended December 31, 1995,
and the Predecessor six months ended June 30, 1995, which report appears in the
December 31, 1997, annual report on Form 10-K of Franchise Mortgage Acceptance
Company.
Los Angeles, California
March 5, 1999
