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As Filed With the Securities and Exchange Commission on May 4, 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>
1998 STOCK INCENTIVE PLAN
(Full title 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 330,000 shares(3) $6.00 $1,980,000 $ 550.44
Common Stock,
no par value 2,320,000 shares(4) $5.47 $12,690,400 $3,527.93
---------
$4,078.37
===============================================================================================
</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 1998 Stock Incentive Plan (the "1998 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 (a) with respect to
presently outstanding options to purchase 330,000 shares of Common Stock, a
per share exercise price of $6.00, and (b) with respect to 2,320,000 shares
reserved for issuance under the 1998 Plan, 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 April 29, 1999, which was $5.47 per share.
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(3) Issuable upon exercise of options granted under the 1998 Plan which are
presently outstanding.
(4) Reserved for issuance under the 1998/ 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 for the fiscal year
ended December 31, 1998; and
(b) 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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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
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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* 1998 Stock Incentive 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>
- ----------
* Incorporated by reference to Exhibit 10.1 to the Registrant's Registration
Statement on Form S-1 (Reg. No. 333-62353).
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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
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governed by the final adjudication of such issue.
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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 30th day of
April, 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
- ------------------------------------ (Principal Executive Officer) April 30, 1999
Michael C. Lowther and Director
/s/ Carl A. Strunk
- ------------------------------------ Executive Vice President April 30, 1999
Carl A. Strunk and Chief Financial
Officer (Principal
Financial and Accounting
Officer) and Director
/s/ WILLIAM P. FOLEY, II
- ------------------------------------ Director April 30, 1999
William P. Foley, II
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ WAYNE D. DIAZ
- ------------------------------------ Director April 30, 1999
Wayne D. Diaz
/s/ DENNIS R. DUFFY
- ------------------------------------ Director April 30, 1999
Dennis R. Duffy
/s/ BRUCE ELIEFF
- ------------------------------------ Director April 30, 1999
Bruce Elieff
/s/ BARBARA A. FERGUSON
- ------------------------------------ Director April 30, 1999
Barbara A. Ferguson
/s/ ROBERT MAJORINO
- ------------------------------------ Director April 30, 1999
Robert Majorino
/s/ MATTHEW K. FONG
- ------------------------------------ Director April 30, 1999
Matthew K. Fong
</TABLE>
S-2
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
4.1* 1998 Stock Incentive 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>
- ----------------------
* Incorporated by reference to Exhibit 10.1 to the Registrant's Registration
Statement on Form S-1 (Reg. No. 333-62353).
<PAGE> 1
EXHIBIT 5.1
[STRADLING YOCCA CARLSON & RAUTH LETTERHEAD]
May 4, 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 2,650,000 shares of the Company's
common stock, no par value ("Common Stock"), issuable under the Company's 1998
Stock Incentive Plan (the "Plan").
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 2,650,000 shares of
Common Stock, when issued under the Plan and against full payment therefor in
accordance with the terms and conditions of the Plan, 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,
STRADLING YOCCA CARLSON & RAUTH
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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
April 30, 1999
