<PAGE> 1
As Filed With the Securities and Exchange Commission on July 23, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMERICAN NATIONAL FINANCIAL, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
CALIFORNIA 33-0731648
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
17911 VON KARMAN AVENUE, SUITE 200, IRVINE, CA 92614
(Address of Principal Executive Offices) (Zip Code)
</TABLE>
1999 STOCK OPTION PLAN
(Full title of the plan)
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full titles of the plan)
MICHAEL C. LOWTHER
CHIEF EXECUTIVE OFFICER
AMERICAN NATIONAL FINANCIAL, INC.
17911 VON KARMAN AVENUE, SUITE 200, IRVINE, CA 92614
(Name and address of agent for service)
(949) 622-4700
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================================
Title of Securities Amount To Be Proposed Maximum Proposed Maximum Amount of
To Be Registered Registered(1) Offering Aggregate Registration Fee
Price Per Share(2) Offering Price(2)
===============================================================================================
<S> <C> <C> <C> <C>
Common Stock,
no par value 1,775,000 shares(3) $5.094 $9,041,850 $2,513.63
Common Stock,
no par value 1,500,000 shares(4) $5.094 $7,641,000 $2,124.20
---------
$4,637.83
===============================================================================================
</TABLE>
(1) Also registered hereunder are an indeterminate number of shares which may
become issuable pursuant to the anti-dilution adjustment provisions of the
Registrant's 1999 Stock Option Plan (the "1999 Option Plan") and
Registrant's 1999 Employee Stock Purchase Plan (the "1999 Purchase Plan").
(2) In accordance with Rule 457(h), the aggregate offering price of shares of
Common Stock registered hereby is estimated, solely for purposes of
calculating the registration fee, on the basis of the price of securities
of the same class, as determined in accordance with Rule 457(c), using the
average of the high and low prices reported by the Nasdaq National Market
for the Common Stock on July 22, 1999, which was $5.094 per share.
<PAGE> 2
(3) Reserved for issuance under the 1999 Option Plan.
(4) Reserved for issuance under the 1999 Purchase Plan.
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by American National Financial, Inc. (the
"Registrant" or the "Company") with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are incorporated by reference in this registration statement:
(a) The Registrant's Annual Report on Form 10-K, as amended, for the
fiscal year ended December 31, 1998;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 1999;
(c) The Company's Current Report on Form 8-K dated June 30, 1999; and
(d) The description of the Registrant's common stock, no par value
per share (the "Common Stock"), contained in the Registrant's
Registration Statement filed under Section 12 of the Exchange
Act, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Registrant 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 of such securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the date of filing of such documents, except as to any
portion of any future annual or quarterly report to stockholders or document
that is not deemed filed under such provisions. For the purposes of this
Registration Statement, any statement in a document incorporated by reference
shall be deemed to be modified or superseded to the extent that a statement
contained in this Registration Statement modifies or supersedes a 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.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Articles of Incorporation provide that the liability of
the Registrant's directors for monetary damages shall be eliminated to the
fullest extent permissible under California law. This is intended to eliminate
the personal liability of a director for monetary damages in an action brought
by or in the right of the Registrant for breach of a director's duties to the
Registrant or its shareholders subject to certain limitations in Section 204 of
the California Corporations Code described below.
The Articles also provide that the Registrant is authorized to provide
indemnification to its agents (as defined in Section 317 of the California
Corporations Code), through the Registrant's Bylaws or through agreements with
such agents or both, for breach of duty to the Registrant and its shareholders,
in excess of the indemnification otherwise permitted by Section 317 of the
California Corporations Code,
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<PAGE> 4
subject to the limits on such excess indemnification set forth in Section 204 of
the California Corporations Code.
Section 317 of the California Corporations Code provides that a
corporation may indemnify an agent who is, or who is threatened to be made a
party to any proceeding (as that term is defined therein) for actions taken in
their corporate capacity upon a determination that such agent acted in good
faith and in a manner which such agent believed to be in the best interest of
the corporation. In addition, Section 317 provides for mandatory indemnification
of an agent who is successful on the merits in defense of any such proceeding.
Indemnification is prohibited under this section (with certain express
exceptions) in any circumstances where it appears that it would be inconsistent
with (i) any provision of the corporation's articles of incorporation or bylaws,
any resolution of the shareholders or any agreement in effect at the time of the
alleged cause of action asserted in the proceeding; and (ii) any condition
expressly imposed by a court in approving a settlement.
In addition, the ability of a corporation to indemnify its agents and to
eliminate the liability of a director for monetary damages is further limited by
Section 204 of the California Corporations Code which provides that a
corporation may not provide for indemnification of agents or eliminate the
liability of a director for monetary damages for (i) acts or omissions that
involve intentional misconduct or a knowing and culpable violation of law; (ii)
for acts or omissions that a director believes to be contrary to the best
interests of the corporation or its shareholders or that involve the absence of
good faith on the part of the director; (iii) for any transaction from which a
director derived an improper personal benefit; (iv) for acts or omissions that
show a reckless disregard for the director's duty to the corporation or its
shareholders in circumstances in which the director was aware, or should have
been aware, in the ordinary course of performing a director's duties, of a risk
of serious injury to the corporation or its shareholders; (v) for acts or
omissions that constitute an unexcused pattern of inattention that amounts to an
abdication of the director's duty to the corporation or its shareholders; (vi)
with respect to certain transactions, or the approval of transactions in which a
director has a material financial interest; and (vii) expressly imposed by
statute, for approval of certain improper distributions to shareholders or
certain loans or guarantees.
The Bylaws of the Registrant provide for indemnification of the
Registrant's officers, directors, employees, and other agents to the extent and
under the circumstances permitted by California law. The Bylaws further provide
that no indemnification shall be made in the case of a derivative suit in
respect to any claim as to which such person has been adjudged to be liable to
the corporation, except with court approval, nor shall indemnification be made
for amounts paid in settling or otherwise disposing of a threatened or pending
action, with or without court approval, or for expenses incurred in defending a
threatened or pending action which is settled or otherwise disposed of without
court approval. Indemnification under the Bylaws is mandatory in the case of an
agent of the Registrant (present or past) who is successful on the merits in
defense of a suit against him or her in such capacity. In all other cases where
indemnification is permitted by the Bylaws, a determination to indemnify such
person must be made by a majority of a quorum of disinterested directors, a
majority of disinterested shareholders, or the court in which the suits is
pending.
The Registrant has entered into agreements to indemnify its directors in
addition to the indemnification provided for in the Articles of Incorporation
and Bylaws. Among other things, these agreements provide that the Registrant
will indemnify, subject to certain requirements, each of the Registrant's
directors for certain expenses (including attorneys' fees), judgments, fines and
settlement amounts incurred by such person in any action or proceeding,
including any action by or in the right of the Registrant, on account of
services by such person as a director or officer of the Registrant, or as a
II-2
<PAGE> 5
director or officer of any other company or enterprise to which the person
provides services at the request of the Registrant.
The above provisions may have the effect of reducing the likelihood of
derivative litigation against directors and may discourage or deter shareholders
or management from bringing a lawsuit against directors for breach of their duty
of care, even though such an action, if successful, might otherwise have
benefitted the Registrant and its shareholders. At present, there is no
litigation or proceeding pending involving a director of the Registrant as to
which indemnification is being sought, nor is the Registrant aware of any
threatened litigation that may result in claims for indemnification by any
director.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant, 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed as part of this Registration Statement:
<TABLE>
<CAPTION>
Number Description
------ -----------
<S> <C>
4.1 1999 Employee Stock Purchase Plan
4.2 1999 Stock Option Plan.
5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional
Corporation.
23.1 Consent of KPMG LLP, independent auditors, with respect to
the consolidated financial statements of the Registrant.
23.2 Consent of Stradling Yocca Carlson & Rauth, a Professional
Corporation (included in the Opinion filed as Exhibit
5.1).
24.1 Power of Attorney (included on the signature page).
</TABLE>
II-3
<PAGE> 6
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 of 1933;
(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) of
this section 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 Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 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 of 1933 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 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 Act and will
be
II-4
<PAGE> 7
governed by the final adjudication of such issue.
II-5
<PAGE> 8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Irvine, State of California, on the 23rd day of
July, 1999.
AMERICAN NATIONAL FINANCIAL, INC.
By: /s/ MICHAEL C. LOWTHER
-----------------------------------------
Michael C. Lowther
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned directors and officers of American National
Financial, Inc., do hereby make, constitute and appoint Michael C. Lowther, Carl
A. Strunk and M'Liss Jones Kane, and each of them acting individually, our true
and lawful attorneys-in-fact and agents, with power to act without any other and
with full power of substitution, to do any and all acts and things in our name
and behalf in our capacities as directors and officers, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
or any related Registration Statement that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to
file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, 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 of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ MICHAEL C. LOWTHER Chief Executive Officer July 23, 1999
- ------------------------------------ (Principal Executive Officer)
Michael C. Lowther and Director
/s/ Carl A. Strunk Executive Vice President July 23, 1999
- ------------------------------------ and Chief Financial
Carl A. Strunk Officer (Principal
Financial and Accounting
Officer) and Director
/s/ WILLIAM P. FOLEY, II Director July 23, 1999
- ------------------------------------
William P. Foley, II
</TABLE>
<PAGE> 9
<TABLE>
<S> <C> <C>
/s/ WAYNE D. DIAZ Director July 23, 1999
- ------------------------------------
Wayne D. Diaz
/s/ DENNIS R. DUFFY Director July 23, 1999
- ------------------------------------
Dennis R. Duffy
/s/ BRUCE ELIEFF Director July 23, 1999
- ------------------------------------
Bruce Elieff
/s/ BARBARA A. FERGUSON Director July 23, 1999
- ------------------------------------
Barbara A. Ferguson
/s/ ROBERT MAJORINO Director July 23, 1999
- ------------------------------------
Robert Majorino
Director July , 1999
- ------------------------------------
Matthew K. Fong
</TABLE>
S-2
<PAGE> 10
EXHIBIT INDEX
<TABLE>
<CAPTION>
Number Description
------ -----------
<S> <C>
4.1 1999 Employee Stock Purchase Plan
4.2 1999 Stock Option Plan.
5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional
Corporation.
23.1 Consent of KPMG LLP, independent auditors, with respect to
the consolidated financial statements of the Registrant.
23.2 Consent of Stradling Yocca Carlson & Rauth, a Professional
Corporation (included in the Opinion filed as Exhibit
5.1).
24.1 Power of Attorney (included on the signature page).
</TABLE>
<PAGE> 1
EXHIBIT 4.1
AMERICAN NATIONAL FINANCIAL INC.
(A CALIFORNIA CORPORATION)
1999 EMPLOYEE STOCK PURCHASE PLAN
1. Purpose of Plan. The purpose of this 1999 Stock Purchase Plan (the
"Plan") is to encourage a sense of proprietorship on the part of employees of
American National Financial, Inc. (the "Company") and its subsidiary
corporations (as defined below) by assisting them in making regular purchases of
shares of stock of the Company, and thus to benefit the Company by increasing
such employees' interest in the growth of the Company and subsidiary
corporations and in such entities' financial success. Participation in the Plan
is entirely voluntary, and the Company makes no recommendation to its employees
as to whether they should participate.
2. Definitions.
2.1 "Base Earnings" shall mean the Employee's regular salary rate before
deductions required by law and deductions authorized by the Employee. In the
case of employees primarily compensated on a commission basis, Base Earnings
shall be no more than $5,000 per month. Base Earnings do not include: pay for
overtime, extended workweek schedules, or any other form of extra compensation;
payments by the Company or subsidiary corporations, as applicable, for social
security, workmen's compensation, unemployment compensation, any disability
payments or other payments required by statute; or contributions by the Company
or subsidiary corporations, as applicable, for insurance, annuity, or other
employee benefit plans.
2.2 "Board" shall mean the Board of Directors of the Company.
2.3 "Broker" shall mean the financial institution designated to act as
Broker under the Plan pursuant to Paragraph 17 hereof.
2.4 "Brokerage Account" shall mean an account established on behalf of
each Participant pursuant to Paragraph 9.1 hereof.
2.5 "Committee" shall mean a Stock Purchase Committee appointed by the
Board.
2.6 "Common Stock" shall mean the Common Stock of the Company.
2.7 "Company" shall mean American National Financial, Inc., a California
corporation, or any successor.
2.8 "Company Account" shall mean the account established in the name of
the Company pursuant to Paragraph 7.2 hereof.
2.9 "Employee" shall mean any person who is currently employed by the
Company or one of its subsidiary corporations for at least 20 hours per week and
has been so employed continuously during the preceding 90 days (provided that
the Board or the Committee may in its discretion waive such 90-day requirement),
excluding non-employees and persons on leave of absence. An Employee may also be
referred to herein as a Participant.
2.10 "Enrollment Form" shall mean the Employee Stock Purchase Plan
Enrollment Form.
2.11 "Interested Party" shall mean the persons described in Paragraph 16
hereof.
2.12 "Plan" shall mean this Employee Stock Purchase Plan.
2.13 "Subsidiary" shall mean a corporation, domestic or foreign, of which
not less than 50% of the voting shares are held by the Company or a subsidiary
corporation, whether or not such corporation now exists or is hereafter
organized or acquired by the Company or a subsidiary corporation.
3. Administration. The Plan shall be administered by the Board or, in the
discretion of the Board, by the Committee which shall consist of not less than
two persons to be appointed by, and to serve at the pleasure of, the Board. No
member of the Board or Committee who is not an Employee shall be eligible to
participate
1
<PAGE> 2
in the Plan. An aggregate of 1,500,000 shares of Common Stock shall be subject
to the Plan, provided that such number shall be automatically adjusted to
reflect any stock split, reverse stock split, stock dividend, recapitalization,
merger, consolidation, combination, reclassification or similar corporate
change. The Board or the Committee shall have full authority to construe,
interpret, apply and administer the Plan and to establish and amend such rules
and procedures as it deems necessary or appropriate from time to time for the
proper administration of the Plan. In addition, the Board or the Committee may
engage or hire such persons, including without limitation, the Broker, to
provide administrative, recordkeeping and other similar services in connection
with its administration of the Plan, as it may deem necessary or appropriate
from time to time. The members of the Board and the Committee and the officers
of the Company shall be entitled to rely upon all certificates and reports made
by such persons, including the Broker, and upon all opinions given by any legal
counsel or investment adviser selected or approved by the Board or the
Committee. The members of the Board and the Committee and the officers of the
Company shall be fully protected in respect of any action taken or suffered to
be taken by them in good faith in reliance upon any such certificates, reports,
opinions or other advice of any such person, and all action so taken or suffered
shall be conclusive upon each of them and upon all Participants. The Company
shall indemnify each member of the Board and the Committee and any other officer
or employee of the Company who is designated to carry out any responsibilities
under the Plan for any liability arising out of or connected with his or her
duties hereunder, except such liability as may arise from such person's gross
negligence or willful misconduct.
4. Eligibility. Any Employee as defined in Paragraph 2.9 shall be eligible
to participate in the Plan. Any Employee participating in the Plan who, after
the commencement of a particular Offering Period, as defined in Paragraph 5,
shall for any reason fail to meet the standards of eligibility, shall be
considered to have withdrawn from the Plan, effective as of the date upon which
the Participant shall have become ineligible. Any reference in this Plan to
withdrawal by a Participant from the Plan shall include ineligibility as
described in this Paragraph 4.
5. Offering Periods. Shares shall be offered pursuant to this Plan in
consecutive periods ("Offering Periods") of three months duration each,
commencing on the effective date of the Plan pursuant to Paragraph 22 and
continuing thereafter until terminated in accordance with Paragraph 15. The
Board shall have the power to change the duration of Offering Periods if such
change is announced at least 10 days prior to the scheduled beginning of the
first Offering Period to be affected.
6. Participation. Participation in the Plan is optional. An eligible
Employee may apply to participate in the Plan by submitting to the Company's
payroll office an Enrollment Form authorizing a payroll deduction and purchase
of shares. The Enrollment Form shall be on a form provided by the Company and
may be submitted to the Company at any time. Participation shall not be
effective until the Enrollment Form is reviewed and accepted by the Company by
written notice to the Employee. Once the Enrollment Form has been reviewed and
accepted by the Company, participation in the Plan shall commence immediately.
7. Payroll Deductions.
7.1 Election. At the time a Participant submits an Enrollment Form, the
Participant shall elect to have payroll deductions made on each payday during
the Offering Period at a whole percentage from 5% to 15% of the Base Earnings
which the Participant is to receive on such payday. In the case of Participants
primarily compensated on a commission basis, a Participant can elect to have
payroll deductions made on each payday during the Offering Period with
Participant's Base Earnings, defined as no more than $5,000 per month.
7.2 Holding of Funds. All payroll deductions authorized by each
Participant shall be held in an interest-bearing account with the Broker in the
name of the American National Financial, Inc. Employee Stock Purchase Plan (the
"Company Account") until used to purchase Common Stock and shall not be used for
any other purpose. The Company shall maintain records reflecting the amount in
the Company Account for each Participant. Interest accruing on the payroll
deductions credited to the Company Account shall be used to defray costs
associated with the engagement of the Broker and will not be available to
purchase shares of Common Stock under Paragraph 9. All withholding taxes in
connection with a Participant's payroll deduction shall be deducted from the
remainder of the Base Earnings paid to the Participant and not from the amount
to be placed in the Company Account. A Participant may not make any additional
payments into the
2
<PAGE> 3
Company Account except as provided in Paragraph 18. All amounts in the Company
Account derived from payroll deductions shall be referred to as the "Participant
Contribution."
7.3 Changes in Election. Participation in the Plan will continue until the
Participant withdraws from the Plan, is no longer eligible to participate or the
Plan is terminated. Such participation shall be on the basis of the payroll
deduction election submitted by such Employee to the Company and then currently
in effect. Each such election shall remain in effect until the effective date of
any change in the amount of payroll deduction as requested by the Participant
and accepted by the Company. To be effective in any Offering Period, a change in
the amount of payroll deduction must be requested in writing and submitted to
the Company. A Participant may change his withholding percentage at any time
during an Offering Period but only one time during any one Offering Period. If a
Participant's Base Earnings change during an Offering Period, the amount of the
payroll deduction will be changed to the figure reflecting the Participant's
previously elected deduction percentage applied to his or her new Base Earnings
(but will not in any event be in excess of 15% of the Participant's Base
Earnings).
8. Contribution by the Company or a Subsidiary. The Company or a Subsidiary
shall make matching contributions (the "Matching Contribution") as follows:
8.1 Officers and Directors as Participants. For each officer or director
of the Company or a Subsidiary who participates in the Plan and remains an
Employee of the Company or a Subsidiary for at least one year after the
termination of a particular Offering Period, the Company or Subsidiary shall
make upon the one year anniversary date after such Offering Period a Matching
Contribution equal to one-third of the number of shares purchased on behalf of
such Participant during such one year earlier Offering Period subject to
Paragraph 8.3. Withholding taxes as and when required in connection with such
Matching Contribution shall be withheld based upon the person's existing
withholding percentages or as otherwise required by law from the Participant's
Base Earnings. "Officer" shall mean president, secretary, vice president,
treasurer or assistant vice president and shall be determined as of the end of
an Offering Period.
8.2 Other Participants. For each Participant in the Plan (other than an
officer or director) who remains an Employee of the Company or a Subsidiary for
at least one year after the termination of a particular Offering Period, the
Company or Subsidiary shall make upon the one year anniversary date after such
Offering Period a Matching Contribution equal to one-third of the number of
shares purchased on behalf of such Participant during such one year earlier
Offering Period subject to Paragraph 8.3. Withholding taxes as and when required
in connection with such Matching Contribution shall be withheld based upon the
person's existing withholding percentages or as otherwise required by law from
the Participant's Base Earnings.
8.3 Fractional Share Calculations. Fractional shares shall not be issued
regarding the Matching Contribution. If the above calculation results in an
incremental share calculation which is .5 or greater, an additional whole share
shall be issued. If the above calculation results in an incremental share
calculation which is less than .5, no share shall be issued regarding such
fraction.
8.4 Timing of Withholding. The Company shall withhold taxes in two
subsequent pay periods or as otherwise required by law.
9. Purchase of Shares Regarding Participant's Contribution.
9.1 Brokerage Account. Following the acceptance by the Company of a
Participant's Enrollment Form, the Company shall direct the Broker to open and
maintain an account (the "Brokerage Account") in the name of such Participant
and to purchase shares of Common Stock on behalf of such Participant as
permitted under this Plan.
9.2 Delivery of Funds to Broker from Company. The Company, from time to
time during an Offering Period, shall deliver to the Broker an amount equal to
the total of all Participant Contributions together with a list of the amount of
such Contributions from each Participant.
9.3 Broker's Purchase of Shares. From time to time, the Broker, as agent
for the Participants, shall purchase as many full shares or fractional shares of
Common Stock as such Contributions will permit. The shares to be purchased shall
be purchased at the then current fair market value and may, at the election of
the
3
<PAGE> 4
Company, be either treasury shares, shares authorized but unissued, or shares
purchased on the open market. The amount of Common Stock purchased by the Broker
pursuant to this Paragraph 9.3 shall be allocated to the respective Brokerage
Account of each Participant on the basis of the average cost of the Common Stock
so purchased in proportion to the amount allocable to each Participant. At the
end of each Offering Period under the Plan, each Participant shall acquire full
ownership of all full shares and fractional shares of Common stock purchased for
his Brokerage Account. Unless otherwise requested by the Participant, all such
full shares and fractional shares so purchased shall be registered in the name
of the Broker and will remain so registered until delivery is requested in
accordance with Paragraph 9.5.
9.4 Fees and Commissions. The Company shall pay the Broker's
administrative charges for opening and maintaining the Brokerage Accounts for
active Participants and the brokerage commissions on purchases made for such
Brokerage Accounts which are attributable to Participant Contributions and
Matching Contributions under the Plan. Such Brokerage Accounts may be utilized
for other transactions as described in Paragraph 9.5 below, but any fees,
commissions or other charges by the Broker in connection with such other
transactions shall, in certain circumstances described in Paragraph 9.5, be
payable directly to the Broker by the Participant.
9.5 Participant Accounts with Broker. Each Participant's Brokerage Account
shall be credited with all cash dividends paid with respect to full shares and
fractional shares of Common Stock purchased pursuant to Paragraphs 9.3 and 10
unless such shares are registered in the Participant's name. Unless otherwise
instructed by the Participant, dividends on such Common Stock shall
automatically be reinvested in Common Stock as soon as practicable following
receipt of such dividends by the Broker. Applicable fees and brokerage
commissions on the reinvestment of such dividends will be payable by the
Participant. Any stock dividends or stock splits which are made with respect to
shares of Common Stock purchased pursuant to Paragraphs 9.3 and 10 shall be
credited to the Participant's Brokerage Account without charge. Any Participant
may request that a certificate for any or all of the full shares of Common Stock
credited to his Brokerage Account be delivered to him at any time; provided,
however, the Participant shall be charged by the Broker for any fees applicable
to such requests. A Participant may request the Broker at any time to sell any
or all of the full shares or fractional shares of Common Stock credited to this
Brokerage Account. Unless otherwise instructed by the Participant, upon such
sale, the Broker will mail to the Participant a check for the proceeds, less any
applicable fees and brokerage commissions and any transfer taxes, registration
fees or other normal charges which shall be payable by the Participant. Except
as provided in Paragraph 13, a request by the Participant to the Broker to sell
shares of Common Stock or for delivery of certificates shall not affect an
Employee's status as a Participant. A Participant who has a Brokerage Account
with the Broker may purchase additional shares of Common Stock of the Company
for his Brokerage Account at any time by separate purchases arranged through the
Broker. When any such purchases are made, the Participant will be charged by the
Broker for any and all fees and brokerage commissions applicable to such
transactions. In addition, any subsequent transactions with respect to such
shares acquired including, but not limited to, purchases, sales, reinvestment of
dividends, requests for certificates, and crediting of stock dividends or stock
splits, shall be at the expense of the Participant and the Broker shall charge
the Participant directly for any and all fees and brokerage commissions
applicable to such transactions.
10. Issuance of Shares Regarding Matching Contribution. Subject to
Paragraph 15, on the 10th day after the first anniversary of an Offering Period,
each Participant's direct employer shall make the Matching Contribution for each
qualified Participant in an amount described in Paragraph 8 by delivering to the
Broker an amount equal to the total funds necessary to make the Matching
Contributions described in Paragraph 8 together with a list of the number of
shares allocable to the Brokerage Account of each Participant. As soon as
practicable thereafter, the Broker shall purchase the number of shares of Common
Stock required in order to make the Matching Contributions. The shares to be
purchased shall be purchased at the then current fair market value and may, at
the election of the Company be either treasury shares, shares authorized but
unissued, or shares purchased on the open market. At the time of such purchases,
each Participant shall immediately acquire full ownership of all full shares of
Common Stock purchased. Unless otherwise requested by the Participant, all such
shares so purchased shall be registered in the name of the Broker and will
remain so registered until delivery is requested in accordance with Paragraph
9.5.
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11. Voting and Shares. All voting rights with respect to the full shares of
Common Stock held in the Brokerage Account of each Participant may be exercised
by each Participant and the Broker shall exercise such voting rights in
accordance with the Participant's signed proxy instruction duly delivered to the
Broker. Fractional shares cannot be voted.
12. Statement of Account. As soon as practicable after the end of each
Offering Period, the Broker shall deliver to each Participant a statement
regarding all activity in his or her Brokerage Accounting, including his or her
participation in the Plan for such Offering Period. Such statement will show the
number of shares acquired or sold, the price per share, the transaction date,
stock splits, dividends paid, dividends reinvested and the total number of
shares held in the Brokerage Account. The Broker shall also deliver to each
Participant as promptly as practicable, by mail or otherwise, all notices of
meetings, proxy statements and other material distributed by the Company to its
shareholders, including the Company's annual report to its shareholders
containing audited financial statements.
13. Withdrawal from the Plan. A Participant may withdraw from the Plan,
effective as of the end of any Offering Period, by giving written notice to the
Company not later than the 15th day prior to the end of such Offering Period.
Upon any such withdrawal, the Participant shall be entitled to receive as
promptly as possible from the Company all of the Participant's payroll
deductions credited to the Company Account in his or her name during the
applicable Offering Period, but shall not be entitled to the benefit of any
Matching Contributions. In the event a Participant withdraws from the Plan
pursuant to this Paragraph 13, the Company shall notify the Broker as soon as
practicable and the Broker shall maintain or close the Participant's Brokerage
Account in accordance with the procedures set forth in Paragraph 16. A
Participant who withdraws from the Plan may not reenter the Plan except by
execution and delivery of a new Enrollment Form and payroll deduction election,
and his or her participation shall be effective upon acceptance of the
Enrollment Form by the Company by written notice to the Employee not sooner than
30 days after receipt of the Enrollment Form, provided that the Company may in
its discretion accept an Enrollment Form prior to the expiration of such 30
days.
14. Termination of Employment. In the event of the termination of a
Participant's employment with the Company or a Subsidiary for any reason during
an Offering Period, including but not limited to the death of a Participant,
participation in the Plan shall terminate as well as any rights to further
Matching Contributions. The Participant or the personal representative of the
Participant shall be entitled to receive an amount of cash determined in the
same manner and payable at the same time as if the Participant had withdrawn
from the Plan by giving notice of withdrawal effective as of the date such
termination occurs. Notwithstanding the foregoing, termination of employment by
one employer for the purpose of being re-employed immediately by the Company or
one of its Subsidiaries shall not be considered termination under this Paragraph
14. Any reference in this Plan to withdrawal by a Participant from the Plan
shall include termination as described in this Paragraph 14. In the event of the
termination of a Participant's employment pursuant to this Paragraph 14, the
Company shall notify the Broker as soon as practicable and the Broker shall
maintain or close the Participant's Brokerage Account in accordance with the
procedures set forth in Paragraph 16.
15. Amendment, Suspension and Termination of Plan. This Plan may be amended
or terminated by the Board at any time and such amendment or termination shall
be communicated in writing to all Participants as soon as practicable after the
date of such Board action. If the Plan is terminated, each Participant shall be
entitled to receive as promptly as possible from the Company all payroll
deductions attributable to him or her which have not been used to purchase
Common Stock pursuant to Paragraph 9, together with the accrued interest on the
Participant's funds held in the Company Account (collectively, the "Account
Balance"), but he or she shall not be entitled to the benefit of any further
Matching Contributions with respect to such deductions or interest or otherwise
for any past or present Offering Periods. In any event this Plan shall terminate
20 years from the date the Plan is adopted or the date the Plan is approved by
the shareholders, whichever is earlier. In the event that the Company terminates
the Plan pursuant to this Paragraph 15, the Broker shall maintain or close the
Participant's Brokerage Accounts in accordance with the procedures set forth in
Paragraph 16. Notwithstanding any other provision to the contrary, any
provisions of this Plan may be amended by the Board or the Committee as required
to obtain necessary approvals of
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governmental agencies if such change does not materially alter the rights and
interests of shareholders of the Company. If there are any changes in the
capitalization of the Company, such as through mergers, consolidations,
reorganizations, recapitalizations, stock splits or stock dividends, appropriate
adjustments will be made by the Company in the number of shares of its Common
Stock subject to purchase under the Plan.
16. Disposition of Brokerage Account Following Withdrawal, Death,
Termination of Employment or Termination of Plan. As soon as practicable
following the notification of the withdrawal of a Participant from the Plan, the
notification of the termination of a Participant's employment with the Company
or a Subsidiary (which includes the death of the Participant) or of the
notification that the Plan is terminated pursuant to Paragraph 15 hereof, the
Broker shall notify the former Participant, or in the event of his death, his
designated beneficiary, if any, or if no designated beneficiary the estate of
the deceased Participant (collectively, an "Interested Party"), regarding the
disposition of the former Participant's or deceased Participant's Brokerage
Account. As soon as practicable following receipt of the notification set forth
in the preceding sentence, the Interested Party may request the Broker to
dispose of the former Participant's or deceased Participant's Brokerage Account,
at the Interested Party's expense, by any one of the following means:
(a) The Interested Party may request the Broker to maintain the former
Participant's or deceased Participant's Brokerage Account for the benefit
of the Interested Party or any other person. The Interested Party shall be
charged by the Broker for all maintenance fees and any and all other fees
in connection with the Brokerage Account.
(b) The Interested Party may request the Broker to sell all of the
full shares and fractional shares of Common Stock, if any, held in the
former Participant's or deceased Participant's Brokerage Account. Upon such
sale, the Broker will mail to the Interested Party a check for the
proceeds, less any applicable fees and brokerage commissions and any
transfer taxes, registration fees or other charges which shall be payable
by the Interested Party.
(c) The Interested Party may request the Broker to provide a
certificate for all of the full shares of Common Stock, if any, together
with a check in an amount equal to the proceeds of the sale of any
fractional shares of Common Stock held in the former Participant's or
deceased Participant's Brokerage Account, less any applicable fees and
brokerage commissions and any transfer taxes, registration fees or other
charges which are payable by the Participant.
Maintenance of the former Participant's or deceased Participant's Brokerage
Account pursuant to this Paragraph 16 shall confer no rights under the Plan.
17. Broker. The Broker shall be Merrill, Lynch, Pierce, Fenner & Smith
which has agreed to act as Broker for such period as is determined by the
Company. Either the Company or the Broker may terminate such designation at any
time upon 30 days' written notice. In the event of such termination of the
Broker, the Company may administer the Plan without the use of a Broker or may
appoint a successor Broker. Any successor Broker shall be vested with all the
powers, rights, duties and immunities of the Broker hereunder to the same extent
as if originally named as the Broker hereunder. The relationship between the
Broker and the Participant will be the normal relationship of a broker and its
client, and the Company assumes no responsibility in this respect.
18. Initial Contribution. Any Participant who files an Enrollment Form
prior to the first Offering Period may elect to make an initial contribution
("Initial Contribution") to be allocated to him or her in the Company Account,
by check payable to the Company, in any amount up to 15% of his or her Base
Earnings for the period between June 16, 1999 and the commencement of the first
Offering Period. The amount of the Initial Contribution shall be matched as
provided in Paragraph 8, and withholding taxes in connection with such Matching
Contribution shall be deducted in the same manner as provided in Paragraph 8.
18.1 Lump Sum Contribution. The Board and/or the Committee may from time
to time in its discretion allow any Participant in the Plan to make a lump sum
contribution ("Lump Sum Contribution") to be credited to him or her in the
Company Account, by check payable to the Company, in any amount up to 15% of his
or her Base Earnings, including commissions as set forth in Paragraph 7.1, for a
period prescribed by the Board and/or the Committee. The amount of the Lump Sum
Contribution shall be matched as
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provided in Paragraph 8, and withholding taxes in connection with such Matching
Contribution shall be deducted in the same manner as provided in Paragraph 8.
19. Conditions To Issuance of Shares. Shares shall not be issued under the
Plan unless issuance and delivery of such shares pursuant to the Plan shall
comply with all applicable provisions of law, domestic or foreign, including,
without limitation, the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, the rules and regulations promulgated
thereunder, the securities laws of the state in which any Employee resides, NASD
requirements and the requirements of any stock exchange upon which the Common
Stock may then be listed, and shall be further subject to the approval of
counsel for the Company with respect to such compliance. By execution of the
Enrollment Form the Participant covenants and agrees that all shares are being
purchased only for investment and without any present intention to sell or
distribute such shares.
20. Notice.
20.1 To Company or Subsidiaries. Any notice hereunder to the Company or to
its Subsidiaries shall be in writing and such notice shall be deemed made only
when delivered or three days after being mailed by certified mail return receipt
requested to the Company's principal office at 17911 Von Karman Avenue, Suite
200, Irvine, California 92614 or to such other address as the Company may
designate by notice to the Participants.
20.2 To Participant. Any notice to a Participant hereunder shall be in
writing and any such communication and any delivery to a Participant shall be
deemed made if mailed or delivered to the Participant at such address as the
Participant may have on file with the Company.
21. Miscellaneous.
21.1 No Limitation on Termination of Employment. Nothing in the Plan shall
in any manner be construed to limit in any way the right of the Company or any
of its Subsidiaries to terminate an Employee's employment at any time, without
regard to the effect of such termination on any right such Employee would
otherwise have under the Plan, or give any right to an Employee to remain
employed by the Company in any particular position or at any particular rate of
remuneration.
21.2 Liability. The Company, its Subsidiaries, any member of the Board or
Committee and any other person participating in any determination of any
question under the Plan, or in the interpretation, administration or application
of the Plan, shall have no liability to any party for any action taken or not
taken in good faith under the Plan, or based on or arising out of a
determination of any question under the Plan or an interpretation,
administration or application of the Plan made in good faith.
21.3 Captions. The captions of the paragraphs of this Plan are for
convenience only and shall not control or affect the meaning or construction of
any of its provisions.
21.4 Assignment. Any rights of Employees hereunder shall be
nonforfeitable, and no Account Balance or contribution made by any employer may
revert or inure to the benefit of the Company or any Subsidiary, provided that
no Participant shall be entitled to sell, assign, pledge or hypothecate any
right or interest in his or her Account Balance.
21.5 Governing Law. California Law governs this Plan.
21.6 Severability. In case any provision of this Plan shall be held
illegal or invalid for any reason, said illegality or invalidity shall not
affect the remaining parts hereof, but this Plan shall be construed and enforced
as if such illegal and invalid provision had never been inserted herein.
21.7 Successors. The provisions of this Plan shall bind and inure to the
benefit of the Company and its successors and assigns. The term "successors" as
used herein shall include any corporate or other business entity which shall by
merger, consolidation, purchase or otherwise acquire all or substantially all of
the business and assets of the Company, and successors of any such corporation
or other business entity.
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22. Effective Date of Plan. The Plan shall become effective upon the first
day of the month after which the Board approves the Plan, subject to
ratification by the shareholders of the Company, and all necessary approvals of
governmental agencies have been received.
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EXHIBIT 4.2
AMERICAN NATIONAL FINANCIAL, INC.
1999 STOCK OPTION PLAN
1. Purpose. The purpose of the American National Financial, Inc. 1999 Stock
Option Plan (the "Plan") is to encourage outstanding individuals to accept or
continue employment with American National Financial, Inc. (the "Company") and
its subsidiaries and to furnish maximum incentive to such employees to improve
operations and increase profits by providing such employees opportunities to
acquire shares of the Company's common stock ("Common Stock") on the terms
herein provided.
2. Administration. The plan will be administered by a committee of the
Board of Directors of the Company consisting of not less than three non-employee
directors as the Board may designate from time to time, all of whom qualify as
disinterested persons within the meaning of SEC Regulation
sec. 240.16b-3(c)(2)(I). Subject to the provisions of the Plan and such other
policies with respect thereto as may be established from time to time by the
Board, the Committee shall determine the individuals to whom options are to be
granted hereunder and the terms and conditions of such options. The Committee
shall also interpret the Plan, prescribe, amend, and rescind rules and
regulations relating thereto, and make all other determinations necessary or
advisable for the administration of the Plan, all in accordance with the terms
of the Plan and the best interests of the Company and its shareholders. A
majority of members of the Committee shall constitute a quorum and all
determinations of the Committee shall be made by a majority of its members. Any
determination of the Committee under the Plan may be made without notice or
meeting of the Committee by a writing signed by a majority of the Committee
members.
3. Participants. Options may be granted to officers and key employees of
the Company or any or all of its present or future subsidiaries, such key
employees being those employees to substantially contribute to the success of
the Company and its subsidiaries. A director of the Company or of a subsidiary
who is not also an employee of the Company or of a subsidiary shall not be
eligible to receive an option hereunder.
4. Shares Reserved Under the Plan. There is hereby reserved for issuance
under the Plan an aggregate of 1,775,000 shares of Common Stock, which may be
newly issued or treasury shares. Any shares subject to a stock option may
thereafter be subject to a new option under this Plan if there is a lapse,
expiration, or termination of any such option prior to the issuance of shares
thereunder.
5. Option Terms. The options granted hereunder will constitute nonqualified
stock options and will be subject to the following terms and conditions:
(a) Option Period. Options granted under the Plan shall be exercisable
in such installments and for such periods as may be fixed by the Committee
at the time of grant, but in no event shall any stock option extend for a
period of excess of twelve years from the date of grant.
(b) Option Price. Options granted hereunder shall have such per-share
option price as the Stock Option Committee may determine at the date of
grant. Such option price may be substantially less than the fair market
value of the Common Stock at the date of grant to reflect the application
of the optionee's deferred bonus. The Committee, in its discretion, may
also provide reductions in the option price during the option term to
reflect decreases in the fair market value of the stock and to encourage
holding of options by participants.
(c) Nontransferability. Each option granted under the Plan shall not
be transferable by the optionee other than by will or the laws of descent
and distribution and shall be exercisable during the optionee's lifetime
only by the optionee. In the event of the death of an optionee during
employment or within three months after termination of employment, any
option granted to the optionee shall be exercisable only within one year
after the date of death (but not beyond the original exercise period for
such option) and then only by the executor or administrator of the estate
of the deceased optionee or the person or persons to whom the deceased
optionee's rights under the option shall pass by will or the laws of
descent and distribution and only to the extent that the deceased optionee
was entitled to exercise at the date of death.
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(d) Termination of Employment. In the event that the employment of an
optionee shall be terminated other than by death, any outstanding options
shall be exercisable for a period of three months after the date of
termination but only within the original exercise period of such option.
Options shall not be affected by any change of employment so long as the
optionee continues to be an employee of the Company or a subsidiary.
Nothing in the Plan or in any option granted hereunder shall confer on any
employee any right to continue in the employ of the Company or any
subsidiary or to interfere with the right of the Company or any such
subsidiary to terminate employment at any time.
(e) Exercise. Exercise of any option hereunder shall be accompanied by
payment in cash of the exercise price and any taxes required to be withheld
in connection with exercise. The purchase price any required taxes may also
be paid by the delivery of shares of Common Stock then owned by the
participant valued by the Company on the date of delivery. The Committee
may also allow an optionee to elect to pay all or a portion of any required
taxes by having the Company withhold shares of Common Stock having a fair
market value equal to the amount of taxes required to be withheld.
6. Future Adjustment Provisions.
(a) If the Company shall at any time change the number of issued
shares of Common Stock without new consideration to the Company (by stock
dividend, stock split, or similar transaction), the total number of shares
covered by the outstanding option shall be adjusted so that the aggregate
consideration payable to the Company and the value of the option shall not
be changed.
(b) In the case of any merger, consolidation or combination of the
Company with or into another corporation other than a merger,
consolidation, or combination in which the Company is the continuing
corporation and which does not result in the outstanding Common Stock being
converted into or exchanged for different securities, cash, or other
property, or any combination thereof (an "Acquisition"), any optionee shall
have the right (subject to the provisions of the Plan and any limitations
applicable to the option) thereafter and during the term of the option to
receive upon exercise thereof the acquisition consideration receivable upon
such Acquisition by a holder of the number of shares of Common Stock which
might have been obtained upon exercise of the option or portion thereof, as
the case may be, immediately prior to such Acquisition.
7. Other Provisions. Any options granted under the Plan may also be subject
to such other provisions as the Committee determines appropriate, including
provisions to comply with federal and state securities laws, and understandings,
or conditions as to the optionee's employment in addition to those specifically
provided under the Plan.
8. Duration, Amendment, and Termination. No option shall be granted more
than ten years after the adoption of this Plan; provided, however, that the
terms and conditions applicable to any option granted within such period may
thereafter be amended or modified by mutual agreement between the Company and
the optionee of such other persons as may then have an interest therein. The
Board of Directors may amend the Plan from time to time or terminate the Plan at
any time. However, no action authorized by this paragraph shall adversely affect
any outstanding option without the optionee's consent.
9. Shareholder Approval. This Plan was adopted by the Board of Directors on
March 17, 1999, and was approved by the Shareholders on June 16, 1999.
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EXHIBIT 5.1
[STRADLING YOCCA CARLSON & RAUTH LETTERHEAD]
July 23, 1999
American National Financial, Inc.
17911 Von Karman Avenue
Suite 200
Irvine, California 92614
RE: Registration Statement on Form S-8
Ladies and Gentlemen:
At your request, we have examined the form of Registration Statement on
Form S-8 (the "Registration Statement") being filed by American National
Financial, Inc., a California corporation (the "Company"), with the Securities
and Exchange Commission in connection with the registration under the Securities
Act of 1933, as amended, of an aggregate of 3,275,000 shares of the Company's
common stock, no par value, issuable under the Company's 1999 Stock Option Plan
and the Company's 1999 Employee Stock Purchase Plan (collectively, the "Plans").
We have examined the proceedings heretofore taken and are familiar with
the additional proceedings proposed to be taken by the Company in connection
with the authorization, issuance and sale of the securities referred to above.
Based on the foregoing, it is our opinion that the 3,275,000 shares of
Common Stock, when issued under the Plans and against full payment therefor in
accordance with the terms and conditions of the Plans, will be legally and
validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ STRADLING YOCCA CARLSON & RAUTH
<PAGE> 1
EXHIBIT 23.1
Independent Auditor's Consent
The Board of Directors
American National Financial, Inc.:
We consent to the use of our reports incorporated herein by reference.
KPMG, LLP
Los Angeles, California
July 22, 1999
