As filed with the Securities and Exchange Commission on April 27, 2000.
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
Registration Statement Under
the Securities Act of 1933
MFN FINANCIAL CORPORATION
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 36-3627010
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
100 FIELD DRIVE, SUITE 340
LAKE FOREST, ILLINOIS 60045
(Address of Principal Executive Offices)
Executive Option Plan
MFN Financial Corporation Amended and Restated
1989 Stock Option and Incentive Compensation Plan
(Full Title of the Plans)
MARK E. DAPIER
EXECUTIVE VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
MFN FINANCIAL CORPORATION
100 FIELD DRIVE, SUITE 340
LAKE FOREST, ILLINOIS 60045
(Name and Address of Agent For Service)
(847) 295-8600
(Telephone number, including area code, of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered1 Per Share2 Price2 Fee
<S> <C> <C> <C> <C>
Common Stock (par value 1, 950,000 Shares $ 5.875 $ 11,456,250 $ 3,025
$.01 per share)
1 An undetermined number of additional shares may be issued if the
anti-dilution adjustment provisions of the plan become operative.
2 Estimated solely for the purpose of calculating the registration fee in
accordance with rule 457(c) and (h) under the Securities Act of 1933 on the
basis of the average of the high and low prices of the Common Stock as
reported on the OTC Bulletin Board on April 24, 2000.
</TABLE>
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents are incorporated by reference into
this registration statement:
(a) The Annual Report of MFN Financial Corporation, formerly
known as Mercury Finance Company (the "Company") on Form 10-K for the
year ended December 31, 1999, which has heretofore been filed by the
Company with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act of 1934, as amended (the "1934
Act").
(b) The description of the Company's Common Stock is
contained in the Company's Registration Statement on Form 8-A filed
with the Commission pursuant to Section 12 of the 1934 Act.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents (such documents, and the
documents enumerated above, being hereinafter referred to as "Incorporated
Documents"); provided, however, that the documents enumerated above or
subsequently filed by the registrant pursuant to Section 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934 in each year during which the
offering made by this registration statement is in effect prior to the filing
with the Commission of the registrant's Annual Report on Form 10-K covering such
year shall not be Incorporated Documents or be incorporated by reference in this
registration statement or be a part hereof from and after the filing of such
Annual Report on Form 10-K.
Any statement contained in an Incorporated Document shall be
deemed to be modified or superseded for purposes of this registration statement
to the extent that a statement contained herein or in any other subsequently
filed Incorporated Document modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this registration statement.
Item 4. Description of Securities.
-------------------------
The securities to be offered are registered under Section
12(g) of the 1934 Act.
Item 5. Interest of Named Experts and Counsel.
-------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Certain provisions of the General Corporation Law of the State
of Delaware provide that the Company may indemnify the directors and officers of
the Company and affiliated companies against liabilities and expenses incurred
by reason of the fact that such persons were serving in such capacities, subject
to certain limitations and conditions set forth in the statute. Article Six of
the Amended and Restated Certificate of Incorporation of the Company provides
that the Company shall indemnify its directors and officers to the fullest
extent permitted by Delaware law.
The Company has contractually agreed to indemnify, and advance
expenses to, its directors and officers pursuant to indemnification agreements
and to the fullest extent permitted by Delaware law or the Company's Certificate
of Incorporation. The indemnification agreements between the Company and its
directors and officers generally provide that the director or officer will be
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<PAGE>
entitled to such indemnification if such director or officer acted in good faith
and in a manner he/she reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal proceeding, had
no reasonable cause to believe his/her conduct was unlawful. The indemnification
agreements further provide that the director or officer will be entitled to
advancement of expenses upon an undertaking by such director or officer to repay
any advanced expenses if it is ultimately determined that the director or
officer is not entitled to be indemnified for such expenses. See the Form of
Indemnification Agreement between the Company and Certain Directors and
Officers, which the Company has filed with the Commission as Exhibit 10E to the
Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1999,
for more information.
The Company also maintains directors and officers liability
insurance covering certain directors and officers of the Company against claims
arising out of the performance of their duties.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
--------
Reference is made to the Exhibit Index.
Item 9. Undertakings.
------------
The 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 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.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933 (the "Act"), each such post-effective amendment shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(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.
(4) That, for the purposes of determining any liability under
the Act, each filing of the registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 (and where applicable
each filing of an employee benefit plan's annual report pursuant to 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.
(5) Insofar as indemnification for liabilities arising under
the Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in Item 6 or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
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<PAGE>
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the undersigned registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Chicago, State of Illinois, on the
26th day of April, 2000.
MFN FINANCIAL CORPORATION
By: /s/ Edward G. Harshfield
------------------------
Edward G. Harshfield
Chairman, President and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of MFN Financial
Corporation, hereby severally constitute Jeffrey B. Weeden and Edward G.
Harshfield, and each of them singly, our true and lawful attorneys with full
power to them, and each of them singly, to sign for us and in our names in the
capacities indicated below, the Registration Statement on Form S-8 filed
herewith and any and all amendments (including post-effective amendments) to
said Registration Statement, and generally to do all such things in our name and
behalf in the capacities indicated below to enable MFN Financial Corporation to
comply with the provisions of the Securities Act of 1933, as amended, and all
requirements of the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by our said attorneys, or any of
them, to said Registration Statement and any and all amendments thereto.
Pursuant to the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities indicated
on the 26th day of April, 2000.
Signature Title
/s/ Edward G. Harshfield Chairman and Chief Executive Officer
- ------------------------------ (principal executive officer)
Edward G. Harshfield
/s/ Mark D. Whitam Chief Financial Officer
- ------------------------------ (principal financial and accounting officer)
Mark D. Whitam
/s/ Robert Stucker Director
Robert Stucker
/s/ Andrew C. Halvorsen Director
- ------------------------------
Andrew C. Halvorsen
/s/ Martin L. Solomon Director
- ------------------------------
Martin L. Solomon
/s/ George R. Zoffinger Director
- ------------------------------
George R. Zoffinger
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<PAGE>
/s/ Michael A. Kramer Director
- ------------------------------
Michael A. Kramer
/s/ Thomas L. Gooding Director
- ------------------------------
Thomas L. Gooding
-6-
<PAGE>
EXHIBIT INDEX
Exhibit Number Description
- -------------- -----------
5 Opinion (including consent) of McDermott, Will & Emery
23.1 Consent of Grant Thornton LLP
23.2 Consent of Arthur Andersen LLP
Exhibit 5
McDermott, Will & Emery
227 West Monroe Street, Suite 3100
Chicago, Illinois 60606-5096
312-372-2000
April 27, 2000
Board of Directors
MFN Financial Corporation
100 Field Drive, Suite 340
Lake Forest, Illinois 60045
Re: Registration Statement on Form S-8; 950,000 shares of Common
Stock to be issued pursuant to the MFN Financial Corporation
Amended and Restated 1989 Stock Option and Incentive Stock Plan
and 1,000,000 shares of Common Stock to be issued pursuant to the
Executive Option Plan
---------------------
Gentlemen:
You have requested our opinion in connection with the above-referenced
Registration Statement on Form S-8 (the "Registration Statement") of MFN
Financial Corporation (the "Company"), to be filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, to register an
aggregate of 1,950,000 shares of the common stock of the Company, $.01 par value
(the "Common Stock"),which may be issued pursuant to (i) the MFN Financial
Corporation Amended and Restated 1989 Stock Option and Incentive Stock Plan and
(ii) the Executive Option Plan (together, the "Plans" ).
We have examined or considered:
1. A copy of the Company's Amended and Restated
Certificate of Incorporation.
2. The By-Laws of the Company.
3. Copies of resolutions duly adopted by the Board of
Directors and evidence of approval of the United
States Bankruptcy Court for the Northern District of
Illinois relating to the Plans.
In addition to the examination outlined above, we have conferred with
various officers of the Company and have ascertained or verified, to our
satisfaction, such additional facts as we deemed necessary or appropriate for
the purposes of this opinion. In our examination, we have assumed the
authenticity of all documents submitted to us as originals, the conformity to
the original documents of all documents submitted to us as copies, the
genuineness of all signatures on documents reviewed by us and the legal capacity
of natural persons.
<PAGE>
Based on the foregoing, we are of the opinion that all corporate
proceedings necessary for the authorization, issuance and delivery of the Common
Stock under the Plans have been duly taken and upon acquisition pursuant to the
terms of the Plan, the Common Stock will be validly issued, fully paid and
nonassessable. Members of our firm are admitted to the practice of law in the
State of Illinois and we express no opinion as to the laws of any jurisdiction
other than the laws of the State of Illinois, the general corporate law of the
State of Delaware and the laws of the United Stated of America. This opinion is
furnished to you solely for your benefit in connection with the filing of the
Registration Statement and is not to be used, circulated, quoted or otherwise
referred to for any other purpose without our prior written consent.
Notwithstanding the foregoing, we hereby consent to the references to our firm
in the Registration Statement and to the filing of this opinion by the Company
as an Exhibit to the Registration Statement. In giving this consent, we do not
hereby admit that we come within the category of persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the rules
and regulations of the Securities and Exchange Commission thereunder.
/s/ McDERMOTT, WILL & EMERY
Exhibit 23.1
Consent of Independent Certified Public Accountants
We have issued our report dated February 4, 2000, on the
consolidated balance sheet of MFN Financial Corporation and subsidiaries
(Reorganized Company) as of December 31, 1999 and the related consolidated
statements of income, changes in stockholders' equity and cash flows of MFN
Financial Corporation for the nine-month period from April 1, 1999 through
December 31, 1999 and of Mercury Finance Company (Predecessor Company) for the
three-month period ended March 31, 1999, included in its Annual Report on Form
10-K for the year ended December 31, 1999, filed with the Securities and
Exchange Commission. We hereby consent to the incorporation by reference of our
report in the Registration Statement (Form S-8) of MFN Financial Corporation,
pertaining to (i) the MFN Financial Corporation Amended and Restated 1989 Stock
Option and Incentive Compensation Plan and (ii) the Executive Option Plan.
/S/ GRANT THORNTON LLP
Chicago, Illinois
April 26, 2000
Exhibit 23.2
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the
incorporation by reference in the Registration Statement (Form S-8), pertaining
to (i) the MFN Financial Corporation Amended and Restated 1989 Stock Option and
Incentive Compensation Plan and (ii) the Executive Option Plan, of our report
dated March 10, 1999, included in MFN Financial Corporation's Form 10-K for the
year ended December 31, 1999 and to all references to our firm included in this
Registration Statement.
/S/ ARTHUR ANDERSEN LLP
Chicago, Illinois
April 25, 2000
