<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 24, 1996
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_________________________
US FACILITIES CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE 33-0097221
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
_________________________
650 TOWN CENTER DRIVE, SUITE 1600
COSTA MESA, CALIFORNIA 92626
(714) 549-1600
(Address, including zip code, and telephone number,
including area code, of Registrant's Principal Executive Offices)
_________________________
1991 DIRECTORS STOCK OPTION PLAN AMENDED AND RESTATED
AMENDED AND RESTATED 1991 EMPLOYEE STOCK OPTION PLAN
(Full Title of Plan)
_________________________
JOSE A. VELASCO
SENIOR VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
650 TOWN CENTER DRIVE, SUITE 1600
COSTA MESA, CALIFORNIA 92626
(714) 549-1600
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
_________________________
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE PRICE PER OFFERING REGISTRATION
TO BE REGISTERED REGISTERED SHARE(1) PRICE(1) FEE
- --------------------------------------------------------------------------------
Common Stock, $.01
par value 1,000,000 shares $17.1875 $17,187,500 $ 5,926.72
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(c) and 457(h) and based on the high and low prices of
the Common Stock of US Facilities Corporation as reported on May 21, 1996
on The Nasdaq National Market.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
INTRODUCTION
This Registration Statement on Form S-8 is filed by US Facilities
Corporation (the "Company") relating to (a) an additional 900,000 shares of the
Company's common stock, $.01 par value (the "Common Stock"), which includes
400,000 shares presently available under the Company's Amended and Restated 1991
Employee Stock Option Plan ("Plan") for issuance upon exercise of stock options
pursuant to the Plan, plus an additional 500,000 shares which may be added to
the Plan in future years; and (b) an additional 100,000 shares of the Company's
Common Stock issuable upon exercise of stock options pursuant to the Company's
1991 Directors Stock Option Plan Amended and Restated, and consists of only
those items required by General Instruction E to Form S-8.
INCORPORATION OF
PREVIOUSLY FILED REGISTRATION STATEMENT
The contents of the Registration Statement on Form S-8 (No. 33-41086),
previously filed with the Securities and Exchange Commission on June 7, 1991 by
the Company, are incorporated herein by reference and made a part hereof.
ITEM 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION
- ----------- -----------
4.1 Restated Certificate of Incorporation, as amended, as presently
in effect. Filed as Exhibits 3.1 and 3.1.1 to the Company's
Registration Statement on Form S-1 (No. 33-7534) and as Exhibit 3
to the Company's Current Report on Form 8-K dated May 24, 1990,
and incorporated herein by this reference.
4.2* Bylaws of the Company, as amended, as presently in effect.
4.3 Common Stock Certificate of the Company. Filed as Exhibit 4.1 to
the Company's Registration Statement on Form S-1 (No. 33-7534)
and incorporated herein by this reference.
4.4 Rights Agreement. Filed as Exhibit 2 to the Company's Current
Report on Form 8-K dated May 24, 1990, and incorporated herein by
this reference.
4.5 First Amendment to Rights Agreement. Filed as Exhibit 1 to the
Company's Current Report on Form 8-K dated January 16, 1992, and
incorporated herein by this reference.
2
<PAGE>
4.6 Second Amendment to Rights Agreement. Filed as Exhibit 10.1 to
the Company's Current Report on Form 8-K dated April 29, 1994,
and incorporated herein by this reference.
4.7 Third Amendment to Rights Agreement. Filed as Exhibit 4 to the
Company's Current Report on Form 8-K dated September 28, 1995,
and incorporated herein by this reference.
4.8 US Facilities Corporation Amended and Restated 1991 Employee
Stock Option Plan. Filed as Exhibit A to the Company's Proxy
Statement for the May 22, 1996 Annual Meeting of Stockholders,
and incorporated herein by this reference.
4.9 US Facilities Corporation 1991 Directors Stock Option Plan
Amended and Restated. Filed as Exhibit B to the Company's Proxy
Statement for the May 22, 1996 Annual Meeting of Stockholders,
and incorporated herein by this reference.
5* Opinion of Gibson, Dunn & Crutcher LLP as to the legality of the
securities being registered
23.1* Consent of KPMG Peat Marwick LLP
23.2* Consent of Gibson Dunn & Crutcher LLP (contained in Exhibit 5
hereto)
24* Power of Attorney (contained on signature page hereto)
- ---------------
* Describes the exhibits filed with this Registration Statement on
Form S-8.
3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1993, 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 Costa Mesa, State of California, on May 22, 1996.
US FACILITIES CORPORATION
By: /s/ JOSE A. VELASCO
----------------------
Jose A. Velasco
Senior Vice President, Secretary
& General Counsel
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
JOSE A. VELASCO and DAVID L. CARGILE his true and lawful attorneys-in-fact and
agents, each acting alone, with full powers of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this registration
statement and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, each acting alone, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, each acting alone, or his 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 dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ DAVID L. CARGILE Chairman of the Board, Chief
- ------------------------- Executive Officer and President May 22, 1996
David L. Cargile (Principal Executive Officer)
/s/ MARK BURKE Senior Vice President, Chief Financial
- ------------------------- Officer and Treasurer (Principal May 22, 1996
Mark Burke Financial and Accounting Officer)
/s/ HOWARD S. SINGER Director and Executive Vice
- ------------------------- President-Corporate Finance and May 22, 1996
Howard S. Singer Investor Relations
4
<PAGE>
/s/ CHARLES L. SCHULTZ Director May 22, 1996
- ------------------------------
Charles L. Schultz
/s/ BERNARD H. ROSS
- ------------------------------ Director May 22, 1996
Bernard H. Ross
/s/ KENNETH C. TYLER
- ------------------------------ Director May 22, 1996
Kenneth C. Tyler
/s/ JOHN F. KOOKEN
- ------------------------------ Director May 22, 1996
John F. Kooken
/s/ L. STEVEN MEDGYESY, M.D.
- ------------------------------ Director May 22, 1996
L. Steven Medgyesy, M.D.
5
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
- ----------- -----------
4.1 Restated Certificate of Incorporation, as amended, as presently
in effect. Filed as Exhibits 3.1 and 3.1.1 to the Company's
Registration Statement on Form S-1 (No. 33-7534) and as Exhibit 3
to the Company's Current Report on Form 8-K dated May 24, 1990,
and incorporated herein by this reference.
4.2* Bylaws of the Company, as amended, as presently in effect.
4.3 Common Stock Certificate of the Company. Filed as Exhibit 4.1 to
the Company's Registration Statement on Form S-1 (No. 33-7534)
and incorporated herein by this reference.
4.4 Rights Agreement. Filed as Exhibit 2 to the Company's Current
Report on Form 8-K dated May 24, 1990, and incorporated herein by
this reference.
4.5 First Amendment and Rights Agreement. Filed as Exhibit 1 to the
Company's Current Report on Form 8-K dated January 16, 1992, and
incorporated herein by reference.
4.6 Second Amendment to Rights Agreement. Filed as Exhibit 10.1 to
the Company's Current Report on Form 8-K dated April 29, 1994,
and incorporated herein by this reference.
4.7 Third Amendment to Rights Agreement. Filed as Exhibit 4 to the
Company's Current Report on Form 8-K dated September 28, 1995,
and incorporated herein by this reference.
4.8 US Facilities Corporation Amended and Restated 1991 Employee
Stock Option Plan. Filed as Exhibit A to the Company's Proxy
Statement for the May 22, 1996 Annual Meeting of Stockholders,
and incorporated herein by this reference.
4.9 US Facilities Corporation 1991 Directors Stock Option Plan
Amended and Restated. Filed as Exhibit B to the Company's Proxy
Statement for the May 22, 1996 Annual Meeting of Stockholders,
and incorporated herein by this reference.
5* Opinion of Gibson, Dunn & Crutcher LLP as to the legality of the
securities being registered.
6
<PAGE>
23.1* Consent of KPMG Peat Marwick LLP
23.2* Consent of Gibson, Dunn & Crutcher LLP (contained in Exhibit 5
hereto)
24* Power of Attorney (contained on signature page hereto)
- ------
* Describes the exhibits filed with this Registration Statement on Form S-8.
7
<PAGE>
Exhibit 4.2
[Logo]
US FACILITIES CORPORATION
BY-LAWS
ARTICLE I - STOCKHOLDERS
SECTION 1. ANNUAL MEETING.
An annual meeting of the stockholders, for the election of directors
to succeed those whose terms expire and for the transaction of such other
business as may properly come before the meeting, shall be held at such place,
on such date, and at such time as the Board of Directors shall each year fix,
which date shall be within thirteen months subsequent to the later of the date
of incorporation or the last annual meeting of stockholders.
SECTION 2. SPECIAL MEETINGS.
Special meetings of the stockholders of the Corporation may be called
by the Board of Directors pursuant to a resolution adopted by a majority of the
directors then in office. Special meetings of stockholders may not be called by
the stockholders. (Amended March 4, 1992)
SECTION 3. NOTICE OF MEETINGS.
Written notice of the place, date, and time of all meetings of the
stockholders shall be given, not less than ten nor more than sixty days before
the date on which the meeting is to be held, to each stockholders entitled to
vote at such meeting, except as otherwise provided herein or required by law
(meaning, here and hereinafter, as required from time to time by the Delaware
General Corporation Law or the Certificate of Incorporation of the Corporation).
When a meeting is adjourned to another place, date or time, written
notice need not be given of the adjourned meeting if the place, date and time
thereof are announced at the meeting at which the adjournment is taken;
provided, however, that if the
<PAGE>
date of any adjourned meeting is more than thirty days after the date for which
the meeting was originally noticed, or if a new record date is fixed for the
adjourned meeting, written notice of the place, date, and time of the adjourned
meeting shall be given in conformity herewith. At any adjourned meeting, any
business may be transacted which might have been transacted at the original
meeting.
SECTION 4. QUORUM.
At any meeting of the stockholders, the holders of one third (1/3) of
all the shares of the stock entitled to vote at the meeting, present in person
or by proxy, shall constitute a quorum for all purposes, unless or except to the
extent that the presence of a larger number may be required by law.
If a quorum shall fail to attend any meeting, the chairman of the
meeting or the holders of one-third (1/3) of the shares of stock entitled to
vote who are present, in person or by proxy, may adjourn the meeting to another
place, date, or time.
If a notice of any adjourned special meeting of stockholders is sent
to all stockholders entitled to vote thereat, stating that it will be held with
those present constituting a quorum, then except as otherwise required by law,
those present at such adjourned meeting shall constitute a quorum, and all
matters shall be determined by a majority of the votes cast at such meeting.
(amended May 16, 1994)
SECTION 5. ORGANIZATION.
Such person as the Board of Directors may have designated or, in the
absence of such a person, the chief executive officer of the Corporation or, in
his or her absence, such person as may be chosen by the holders of a majority of
the shares entitled to vote who are present, in person or by proxy, shall call
to order any meeting of the stockholders and act as chairman of the meeting. In
the absence of the Secretary of the Corporation, the secretary of the meeting
shall be such person as the chairman appoints.
SECTION 6. CONDUCT OF BUSINESS.
The Chairman of the Board of Directors shall preside at each meeting
of stockholders. In the absence of the Chairman, the meeting shall be chaired
by an officer of
2
<PAGE>
the Corporation in accordance with the following order: Vice Chairman of the
Board, Chairman of the Executive Committee of the Board, President, Executive
Vice President, Senior Vice President and Vice President. In the absence of all
such officers, the meeting shall be chaired by a person chosen to so act by the
vote of a majority of the shares of stock present in person or represented by
proxy and entitled to vote thereat. The Secretary of the Corporation, or in his
or her absence an Assistant Secretary, or in the absence of the Secretary and
all Assistant Secretaries, a person whom the Chairman of the meeting shall
appoint, shall act as Secretary of the meeting and keep a record of the
proceedings thereof.
The Board of Directors of the Corporation shall be entitled to make
such rules or regulations for the conduct of meetings of stockholders as it
shall deem necessary, appropriate or convenient. Subject to such rules and
regulations, if any, as adopted by the Board of Directors, the Chairman of the
meeting shall have the right and authority to prescribe such rules, regulations
and procedures and to do all such acts as, in the judgment of such Chairman, are
necessary, appropriate or convenient for the proper conduct of the meeting.
These rules, regulations and procedures may include, without limitation, (i)
establishing an agenda or order of business for the meeting, (ii) rules and
procedures for maintaining order at the meeting and the safety of those present,
(iii) limitations on participation in such meeting to stockholders of record of
the Corporation and their duly authorized and constituted proxies, and such
other persons as the Chairman shall permit, (iv) restrictions on entry to the
meeting after the time fixed for commencement thereof, (v) limitations on the
time allotted to questions or comment by participants, and (vi) regulation of
the opening and closing of the polls for balloting on matters which are to be
voted on by ballot. Further, to the extent determined by the Board of Directors
or the Chairman of the meeting, meetings of stockholders of the Corporation
shall not be required to be held in accordance with rules of parliamentary
procedure. (amended January 31, 1996)
SECTION 7. NOTICE OF STOCKHOLDER BUSINESS.
At an annual meeting of the stockholders, only such business shall
be conducted as shall have been properly brought before the meeting. To be
properly brought
3
<PAGE>
before an annual meeting, business must be (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board
of Directors, (b) otherwise properly brought before the meeting by or at the
direction of the Board of Directors, or (c) otherwise properly brought before
the meeting by a stockholder. For business to be properly brought before an
annual meeting by a stockholder, the stockholder must have given timely
notice thereof in writing to the Secretary of the Corporation. To be timely,
a stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the Corporation, not less than 90 days prior
to the meeting; provided, however, that in the event that less than 100 days'
notice or prior public disclosure of the date of the meeting is given or made
to stockholders, notice by the stockholder to be timely must be so received
not later than the close of business on the 10th day following the day on
which such notice of the date of the annual meeting was mailed or such public
disclosure was made. A stockholder's notice to the Secretary shall set forth
as to each matter the stockholder proposes to bring before the annual meeting
(a) a brief description of the business desired to be brought before the
annual meeting and the reasons for conducting such business at the annual
meeting, (b) the name and address, as they appear on the Corporation's books,
of the stockholder proposing such business, (c) the class and number of
shares of the Corporation which are beneficially owned by the stockholder,
and (d) any material interest of the stockholder in such business.
Notwithstanding anything in the By-Laws to the contrary, no business shall be
conducted at an annual meeting except in accordance with the procedures set
forth in this Section 7. The Chairman of an annual meeting shall, if the
facts warrant, determine and declare to the meeting that business was not
properly brought before the meeting and in accordance with the provisions of
this Section 7, and if he or she should so determine, he or she shall so
declare to the meeting and any such business not properly brought before the
meeting shall not be transacted.
4
<PAGE>
SECTION 8. PROXIES AND VOTING.
At any meeting of the stockholders, every stockholder entitled to vote
may vote in person or by proxy authorized by an instrument in writing filed in
accordance with the procedure established for the meeting.
Each stockholder shall have one vote for every share of stock entitled
to vote which is registered in his or her name on the record date for the
meeting, except as otherwise provided herein or required by law.
All voting, including on the election of directors but excepting where
otherwise required by law, may be by a voice vote; provided, however, that upon
demand therefore by a stockholder entitled to vote or his or her proxy, a stock
vote shall be taken. Every stock vote shall be taken by ballots, each of which
shall state the name of the stockholder or proxy voting and such other
information as may be required under the procedure established for the meeting.
Every vote taken by ballots shall be counted by an inspector or inspectors
appointed by the chairman of the meeting.
All elections shall be determined by a plurality of the votes cast,
and except as otherwise required by law, all other matters shall be determined
by a majority of the votes cast.
SECTION 9. STOCK LIST.
A complete list of stockholders entitled to vote at any meeting of
stockholders, arranged in alphabetical order for each class of stock and showing
the address of each such stockholder and the number of shares registered in his
or her name, shall be open to the examination of any such stockholder, for any
purpose germane to the meeting, during ordinary business hours for a period of
at least ten (10) days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified in the notice of
the meeting, or if not so specified, at the place where the meeting is to be
held.
The stock list shall also be kept at the place of the meeting during
the whole time thereof and shall be open to the examination of any such
stockholder who is present.
5
<PAGE>
This list shall presumptively determine the identity of the stockholders
entitled to vote at the meeting and the number of shares held by each of them.
SECTION 10. CONSENT OF STOCKHOLDERS IN LIEU OF MEETING
Any action required to be taken at any annual or special meeting of
stockholders of the corporation, or any action which may be taken at any annual
or special meeting of the stockholders, may be taken without a meeting, without
prior notice and without a vote, if a consent in writing, setting forth the
action so taken, shall be signed by the holders of outstanding stock having not
less than the minimum number of votes that would be necessary to authorize or
take such action at a meeting at which all shares entitled to vote thereon were
present and voted.
ARTICLE II - BOARD OF DIRECTORS
SECTION 1. NUMBER AND TERM OF OFFICE.
The number of directors shall be fixed from time to time exclusively
by the Board of Directors pursuant to a resolution adopted by a majority of the
directors then in office. The directors shall be divided into three classes, as
nearly equal in number as reasonably possible, with the term of office of the
first class to expire at the 1987 annual meeting of stockholders, the term of
office of the second class to expire at the 1988 annual meeting of stockholders
and the term of office of the third class to expire at the 1989 annual meeting
of stockholders. At each annual meeting of stockholders following such initial
classification and election, directors elected to succeed those directors whose
terms expire shall be elected for a term of office to expire at the third
succeeding annual meeting of stockholders after their election.
Section 2. VACANCIES AND NEWLY CREATED DIRECTORSHIPS.
Subject to the rights of the holders of any series of Preferred Stock
then outstanding, newly created directorships resulting from any increase in the
authorized number of directors or any vacancies in the Board of Directors
resulting from death, resignation, retirement, disqualification, removal from
office or other cause may be filled only by a majority vote of the directors
then in office, though less than a quorum, and
6
<PAGE>
directors so chosen shall hold office for a term expiring at the annual meeting
of stockholders at which the term of office of the class to which they have been
elected expires. No decrease in the number of directors constituting the Board
of Directors shall shorten the term of any incumbent director.
SECTION 3. REMOVAL.
Subject to the rights of the holders of any series of Preferred Stock
then outstanding, any directors, or the entire Board of Directors, may be
removed from office at any time, with or without cause, by the affirmative vote
of the holders of at least 66 2/3 percent of the voting power of all of the
then-outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single class.
(Amended June 5, 1986)
SECTION 4. REGULAR MEETINGS.
Regular meetings of the Board of Directors shall be held at such place
or places, on such date or dates, and at such time or times as shall have been
established by the Board of Directors and publicized among all directors. A
notice of each regular meeting shall not be required.
SECTION 5. SPECIAL MEETINGS.
Special meetings of the Board of Directors may be called by one-third
of the directors then in office (rounded up to the nearest whole number) or by
the chief executive officer and shall be held at such place, on such date, and
at such time as they or he or she shall fix. Notice of the place, date, and
time of each such special meeting shall be given each director by whom it is not
waived by mailing written notice not less than five days before the meeting or
by transmitting the text of the notice by telecopier (facsimile transmission) or
telegraph not less than twenty-four hours before the meeting. The method of
notice need not be the same for each director. Unless otherwise indicated in
the notice thereof, any and all business may be transacted at a special meeting.
(Amended September 2, 1987)
7
<PAGE>
SECTION 6. QUORUM.
At any meeting of the Board of Directors, a majority of the total
number of the whole Board shall constitute a quorum for all purposes. If a
quorum shall fail to attend any meeting, a majority of those present may adjourn
the meeting to another place, date, or time, without further notice or waiver
thereof.
Section 7. PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE.
Members of the Board of Directors, or of any committee thereof, may
participate in a meeting of such Board or committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other and such participation shall
constitute presence in person at such meeting.
SECTION 8. CONDUCT OF BUSINESS.
At any meeting of the Board of Directors, business shall be transacted
in such order and manner as the Board may from time to time determine, and all
matters shall be determined by the vote of a majority of the directors present,
except as otherwise provided herein or required by law. Action may be taken by
the Board of Directors without a meeting if all members thereof consent thereto
in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors.
SECTION 9. POWERS.
The Board of Directors may, except as otherwise required by law,
exercise all such powers and do all such acts and things as may be exercised or
done by the Corporation, including, without limiting the generality of the
foregoing, the unqualified power:
(1) To declare dividends from time to time in accordance with law;
(2) To purchase or otherwise acquire any property, rights or
privileges on such terms as it shall determine;
8
<PAGE>
(3) To authorize the creation, making and issuance, in such form as
it may determine, of written obligations of every kind, negotiable or non-
negotiable, secured or unsecured, and to do all things necessary in connection
therewith;
(4) To remove any officer of the Corporation with or without cause,
and from time to time to devolve the powers and duties of any officer upon any
other person for the time being;
(5) To confer upon any officer of the Corporation the power to
appoint, remove and suspend subordinate officers, employees and agents;
(6) To adopt from time to time such stock, option, stock purchase,
bonus or other compensation plans for directors, officers, employees and agents
of the Corporation and its subsidiaries as it may determine;
(7) To adopt from time to time such insurance, retirement, and other
benefit plans for directors, officers, employees and agents of the Corporation
and its subsidiaries as it may determine; and,
(8) To adopt from time to time regulations, not inconsistent with
these by-laws, for the management of the Corporation's business and affairs.
SECTION 10. COMPENSATION OF DIRECTORS.
Directors, as such, may receive, pursuant to resolution of the Board
of Directors, fixed fees and other compensation for their services as directors,
including, without limitation, their services as members of committees of the
Board of Directors.
SECTION 11. NOMINATION OF DIRECTOR CANDIDATES.
Subject to the rights of holders of any class or series of stock
having a preference over the Common Stock as to dividends or upon liquidation,
nominations for the election of Directors may be made by the Board of Directors
or a proxy committee appointed by the Board of Directors or by any stockholder
entitled to vote in the election of Directors generally. However, any
stockholder entitled to vote in the election of Directors generally may nominate
one or more persons for election as Directors at a meeting only if timely notice
of such stockholder's intent to make such nomination or nominations has been
9
<PAGE>
given in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the Corporation not less than 90 days prior to
the meeting; provided, however, that in the event that less than 100 days'
notice or prior public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received not
later than the close of business on the 10th day following the day on which such
notice of the date of the meeting was mailed or such public disclosure was made.
Each such notice shall set forth: (a) the name and address of the stockholder
who intends to make the nomination and of the person or persons to be nominated;
(b) a representation that the stockholder is a holder of record of stock of the
Corporation entitled to vote for the election of Directors on the date of such
notice and intends to appear in person or by proxy at the meeting to nominate
the person or persons specified in the notice; (c) a description of all
arrangements or understandings between the stockholder and each nominee and any
other person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder; (d) such other
information regarding each nominee proposed by such stockholder as would be
required to be included in a proxy statement filed pursuant to the proxy rules
of the Securities and Exchange Commission, had the nominee been nominated, or
intended to be nominated, by the Board of Directors; and (e) the consent of each
nominee to serve as a director of the Corporation if so elected.
In the event that a person is validly designated as a nominee in
accordance with this Section 11 and shall thereafter become unable or unwilling
to stand for election to the Board of Directors, the Board of Directors or the
stockholder who proposed such nominee, as the case may be, may designate a
substitute nominee upon delivery, not fewer than five days prior to the date of
the meeting for the election of such nominee of a written notice to the
secretary setting forth such information regarding such substitute nominee as
would have been required to be delivered to the Secretary pursuant to this
Section 11 had such substitute nominee been initially proposed as a nominee.
Such notice shall include a
10
<PAGE>
signed consent to serve as a Director of the Corporation, if elected, of each
such substitute nominee.
If the Chairman of the meeting for the election of Directors
determines that a nomination of any candidate for election as a Director at such
meeting was not made in accordance with the applicable provisions of this
Section 11, such nomination shall be void; provided, however, that nothing in
this Section 11 shall be deemed to limit any voting rights upon the occurrence
of dividend arrearages provided to holders of Preferred Stock pursuant to the
Preferred Stock designation for any series of Preferred Stock.
ARTICLE III - COMMITTEES
SECTION 1. COMMITTEES OF THE BOARD OF DIRECTORS.
The Board of Directors, by a vote of a majority of the whole Board,
may from time to time designate committees of the Board, with such lawfully
delegable powers and duties as it thereby confers, to serve at the pleasure of
the Board and shall, for those committees and any others provided for herein,
elect a director or directors to serve as the member or members, designating, if
it desires, other directors as alternate members who may replace any absent or
disqualified member at any meeting of the committee. Any committee so
designated may exercise the power and authority of the Board of Directors to
declare a dividend, to authorize the issuance of stock or to adopt a certificate
of ownership and merger pursuant to Section 253 of the Delaware General
Corporation Law if the resolution which designates the committee or a
supplemental resolution of the Board of Directors shall so provide. In the
absence or disqualification of any member of any committee and any alternate
member in his place, the member or members of the committee present at the
meeting and not disqualified from voting, whether or not he or she or they
constitute a quorum, may by unanimous vote appoint another member of the Board
of Directors to act at the meeting in the place of the absent or disqualified
member.
SECTION 2. CONDUCT OF BUSINESS.
Each committee may determine the procedural rules for meeting and
conducting its business and shall act in accordance therewith, except as
otherwise provided
11
<PAGE>
herein or required by law. Adequate provision shall be made for notice to
members of all meetings; one-third of the members shall constitute a quorum
unless the committee shall consist of one or two members, in which event one
member shall constitute a quorum; and all matters shall be determined by a
majority vote of the members present. Action may be taken by any committee
without a meeting if all members thereof consent thereto in writing, and the
writing or writings are filed with the minutes of the proceedings of such
committee.
ARTICLE IV - OFFICERS
SECTION 1. GENERALLY.
The officers of the Corporation shall consist of a President, one or
more Vice Presidents, a Secretary, a Treasurer and such other officers as may
from time to time be appointed by the Board of Directors. Officers shall be
elected by the Board of Directors, which shall consider that subject at its
first meeting after every annual meeting of stockholders. Each officer shall
hold office until his or her successor is elected and qualified or until his or
her earlier resignation or removal. The President shall be a member of the
Board of Directors. Any number of offices may be held by the same person.
SECTION 2. PRESIDENT.
The President shall be the chief executive officer of the Corporation.
Subject to the provisions of these by-laws and to the direction of the Board of
Directors, he or she shall have the responsibility for the general management
and control of the business and affairs of the Corporation and shall perform all
duties and have all powers which are commonly incident to the office of chief
executive or which are delegated to him or her by the Board of Directors. He or
she shall have power to sign all stock certificates, contracts and other
instruments of the Corporation which are authorized and shall have general
supervision and direction of all of the other officers, employees and agents of
the Corporation.
SECTION 3. VICE PRESIDENT.
Each Vice President shall have such powers and duties as may be
delegated to him or her by the Board of Directors. One Vice President shall be
designated by the
12
<PAGE>
Board to perform the duties and exercise the powers of the President in the
event of the President's absence or disability.
SECTION 4. TREASURER.
The Treasurer shall have the responsibility for maintaining the
financial records of the Corporation and shall have custody of all monies and
securities of the Corporation. He or she shall make such disbursements of the
funds of the Corporation as are authorized and shall render from time to time an
account of all such transactions and of the financial condition of the
Corporation. The Treasurer shall also perform such other duties as the Board of
Directors may from time to time prescribe.
SECTION 5. SECRETARY.
The Secretary shall issue all authorized notices for, and shall keep
minutes of, all meetings of the stockholders and the Board of Directors. He or
she shall have charge of the corporate books and shall perform such other duties
as the Board of Directors may from time to time prescribe.
SECTION 6. DELEGATION OF AUTHORITY.
The Board of Directors may from time to time delegate the powers or
duties of any officer to any other officers or agents, notwithstanding any
provision hereof.
SECTION 7. REMOVAL.
Any officer of the Corporation may be removed at any time, with or
without cause, by the Board of Directors.
Section 8. ACTION WITH RESPECT TO SECURITIES OF OTHER
CORPORATIONS.
Unless otherwise directed by the Board of Directors, the President or
any officer of the Corporation authorized by the President shall have power to
vote and otherwise act on behalf of the Corporation, in person or by proxy, at
any meeting of stockholders of or with respect to any action of stockholders of
any other corporation in which this Corporation may hold securities and
otherwise to exercise any and all rights and powers which this Corporation may
possess by reason of its ownership of securities in such other corporation.
13
<PAGE>
ARTICLE V - STOCK
SECTION 1. CERTIFICATES OF STOCK.
Each stockholder shall be entitled to a certificate signed by, or in
the name of the Corporation by, the President or a Vice President, and by the
Secretary or an Assistant Secretary, or the Treasurer or an Assistant Treasurer,
certifying the number of shares owned by him or her. Any of or all the
signatures on the certificate may be facsimile.
SECTION 2. TRANSFERS OF STOCK.
Transfers of stock shall be made only upon the transfer books of the
Corporation kept at an office of the Corporation or by transfer agents
designated to transfer shares of the stock of the Corporation. Except where a
certificate is issued in accordance with Section 4 of Article V of these by-
laws, an outstanding certificate for the number of shares involved shall be
surrendered for cancellation before a new certificate is issued therefore.
SECTION 3. RECORD DATE.
The Board of Directors may fix a record date, which shall not be more
than sixty nor less than ten days before the date of any meeting of
stockholders, nor more than sixty days prior to the time for the other action
hereinafter described, as of which there shall be determined the stockholders
who are entitled: to notice of or to vote at any meeting of stockholders or any
adjournment thereof; to express consent to corporate action in writing without a
meeting; to receive payment of any dividend or other distribution or allotment
of any rights; or to exercise any rights with respect to any change, conversion
or exchange of stock or with respect to any other lawful action.
Section 4. LOST, STOLEN OR DESTROYED CERTIFICATES
In the event of the loss, theft or destruction of any certificate of
stock, another may be issued in its place pursuant to such regulations as the
Board of Directors may establish concerning proof of such loss, theft or
destruction and concerning the giving of a satisfactory bond or bonds of
indemnity.
14
<PAGE>
SECTION 5. REGULATIONS.
The issue, transfer, conversion and registration of certificates of
stock shall be governed by such other regulations as the Board of Directors may
establish.
ARTICLE VI - NOTICES
SECTION 1. NOTICES.
Except as otherwise specifically provided herein or required by law,
all notices required to be given to any stockholder, director, officer, employee
or agent shall be in writing and may in every instance be effectively given by
hand delivery to the recipient thereof, by depositing such notice in the mails,
postage paid, or by sending such notice by pre-paid telegram or mailgram. Any
such notice shall be addressed to such stockholder, director, officer, employee
or agent at his or her last known address as the same appears on the books of
the Corporation. The time when such notice is received by such stockholder,
director, officer, employee or agent, or by any person accepting such notice on
behalf of such person, if hand delivered, or dispatched, if delivered through
the mails or by telegram or mailgram, shall be the time of the giving of the
notice.
SECTION 2. WAIVERS.
A written waiver of any notice, signed by a stockholder, director,
officer, employee or agent, whether before or after the time of the event for
which notice is to be given, shall be deemed equivalent to the notice required
to be given to such stockholder, director, officer, employee or agent. Neither
the business nor the purpose of any meeting need be specified in such a waiver.
ARTICLE VII - MISCELLANEOUS
SECTION 1. FACSIMILE SIGNATURES.
In addition to the provisions for use of facsimile signatures
elsewhere specifically authorized in these by-laws, facsimile signatures of any
officer or officers of the Corporation may be used whenever and as authorized by
the Board of Directors or a committee thereof.
15
<PAGE>
SECTION 2. CORPORATE SEAL.
The Board of Directors may provide a suitable seal, containing the
name of the Corporation, which seal shall be in the charge of the Secretary. If
and when so directed by the Board of Directors or a committee thereof,
duplicates of the seal may be kept and used by the Treasurer or by an Assistant
Secretary or Assistant Treasurer.
SECTION 3. RELIANCE UPON BOOKS, REPORTS AND RECORDS.
Each director, each member of any committee designated by the Board of
Directors, and each officer of the Corporation shall, in the performance of his
duties, be fully protected in relying in good faith upon the books of account or
other records of the Corporation, including reports made to the Corporation by
any of its officers, by an independent certified public accountant, or by an
appraiser selected with reasonable care.
SECTION 4. FISCAL YEAR.
The fiscal year of the Corporation shall be as fixed by the Board of
Directors.
SECTION 5. TIME PERIODS.
In applying any provision of these by-laws which require that an act
be done or not done a specified number of days prior to an event or that an act
be done during a period of a specified number of days prior to an event,
calendar days shall be used, the day of the doing of the act shall be excluded,
and the day of the event shall be included.
ARTICLE VIII - INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 1. RIGHT TO INDEMNIFICATION.
Each person who was or is made a party or is threatened to be made a
party to or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative ("proceeding"), by reason of the fact
that he or she or a person of whom he or she is the legal representative, is or
was a director or officer of the Corporation or is or was serving at the request
of the Corporation as a director or officer, employee or agent of another
corporation, or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether the basis of
such proceeding is
16
<PAGE>
alleged activity in an official capacity as a director, officer, employee or
agent or in any other capacity while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by the Corporation to the fullest
extent authorized by the Delaware General Corporation Law, as the same exists or
may hereafter be amended, (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said Law permitted the Corporation to provide prior
to such amendment) against all expenses, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection with any such proceeding and such indemnification shall continue
as to a person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of his or her heirs, executors and administrators;
PROVIDED, HOWEVER, that the Corporation shall indemnify any such person seeking
indemnity in connection with a proceeding (or part thereof) initiated by such
person only if such proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation. Such right shall be a contract right and shall
include the right to be paid by the Corporation expenses incurred in defending
any such proceeding in advance of its final disposition; PROVIDED, HOWEVER,
that, if the Delaware General Corporation Law requires, the payment of such
expenses incurred by a director or officer of the Corporation in his or her
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of such proceeding, shall be made only upon delivery to
the Corporation of an undertaking, by or on behalf of such director or officer,
to repay all amounts so advanced if it should be determined ultimately that such
director or officer is not entitled to be indemnified under this Section or
otherwise.
17
<PAGE>
SECTION 2. RIGHT OF CLAIMANT TO BRING SUIT.
If a claim under Section 1 is not paid in full by the Corporation
within ninety (90) days after a written claim has been received by the
Corporation, the claimant may at any time thereafter institute a proceeding
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such proceeding. It shall be a defense to any such
proceeding (other than a proceeding brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition where
the required undertaking, if any, has been tendered to this Corporation) that
the claimant has not met the standards of conduct which make it permissible
under the Delaware General Corporation Law for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation (including its Board
of Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such proceeding that indemnification
of the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the
proceeding or create a presumption that claimant has not met the applicable
standard of conduct.
SECTION 3. NON-EXCLUSIVITY OF RIGHTS.
The rights conferred on any person by Sections 1 and 2 shall not be
exclusive of any other right which such persons may have or hereafter acquire
under any statute, provision of the Certificate of Incorporation, by-law,
agreement, vote of stockholders or disinterested directors or otherwise.
SECTION 4. INSURANCE.
The Corporation may maintain insurance, at its expense, to protect
itself and any such director, officer, employee or agent of the Corporation or
another corporation,
18
<PAGE>
partnership, joint venture, trust or other enterprise against any such expense,
liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the Delaware
General Corporation Law.
ARTICLE IX - AMENDMENTS
The Board of Directors is expressly empowered to adopt, amend or
repeal By-laws of the Corporation. The stockholders shall also have power to
adopt, amend or repeal the By-laws of the Corporation. In addition to any vote
of the holders of any class or series of stock of this Corporation required by
law, by the certificate of incorporation of the Corporation or by these By-laws,
the affirmative vote of the holders of at least 66 2/3 percent of the voting
power of all of the then-outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required to adopt, amend or repeal any
provisions of the By-laws of the Corporation.
19
<PAGE>
Exhibit 5
May 22, 1996
(714) 451-3800 C 93268-00011
US Facilities Corporation
650 Town Center Drive, Suite 1600
Costa Mesa, California 92626
Re: Registration Statement on Form S-8 for
1,000,000 Shares of Common Stock
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the
"Registration Statement") to be filed by US Facilities Corporation, a Delaware
corporation (the "Company") with the Securities and Exchange Commission in
connection with the registration under the Securities Act of 1933, as amended
("Securities Act") of (a) 900,000 shares of the Company's common stock, $.01 par
value per share (the "Common Stock"), reserved for issuance under the Company's
Amended and Restated 1991 Employee Stock Option Plan (the "Employee Plan") and
(b) 100,000 shares of Common Stock reserved for issuance under the Company's
1991 Directors Stock Option Plan Amended and Restated (the "Directors Plan").
The Employee Plan and the Director Plan are herein referred to collectively as
the "Plans."
For purposes of rendering this opinion, we have made such legal and
factual examinations as we have deemed necessary under the circumstances and, as
part of such examination, we have examined, among other things, originals and
copies, certified or otherwise identified to our satisfaction, of such
documents, corporate records and other instruments as we have deemed necessary
or appropriate. For the purposes of such examination, we have assumed the
genuineness of all signatures on original documents and the conformity to
original documents of all copies submitted to us.
<PAGE>
US Facilities Corporation
May 22, 1996
Page 9
On the basis of and in reliance upon the foregoing, we are of the
opinion that assuming the Registration Statement shall have become effective
pursuant to the provisions of the Securities Act, the shares of Common Stock
being offered under the Plans, when issued in accordance with the provisions
of the Plans, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not thereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act.
Very truly yours.
/s/ Gibson, Dunn & Crutcher LLP
--------------------------------
GIBSON, DUNN & CRUTCHER LLP
RED/LRO/tq
<PAGE>
Exhibit 23.1
The Board of Directors
US Facilities Corporation:
We consent to the use of our report incorporated herein by reference in the
Registration Statement on Form S-8 of US Facilities Corporation of our report
dated February 6, 1996, relating to the consolidated balance sheets of
US Facilities Corporation and subsidiaries as of December 31, 1995 and 1994, and
the related consolidated income statements, statements of stockholders'
equity and cash flows for each of the years in the three-year period ended
December 31, 1995, and all related schedules, which report appears in the
December 31, 1995 annual report on Form 10-K of US Facilities Corporation.
Our report dated February 6, 1996, contains an explanatory paragraph stating the
Company adopted the provisions of the Financial Accounting Standards Board's
Statement of Financial Accounting Standards No. 115, "Accounting for Certain
Investments in Debt and Equity Securities" in 1994.
/s/ KPMG Peat Marwick LLP
Los Angeles, California
May 22, 1996
