As filed with the Securities and Exchange Commission on November 23, 2004
Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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FREMONT GENERAL CORPORATION
(Exact name of Registrant as specified in its charter)
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NEVADA 95-2815260
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
2425 OLYMPIC BLVD., 3RD FLOOR
SANTA MONICA, CALIFORNIA 90404
(Address of principal executive offices)
FREMONT GENERAL CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN II
(Full title of the plan)
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ALAN W. FAIGIN
CHIEF LEGAL OFFICER, SECRETARY AND GENERAL COUNSEL
FREMONT GENERAL CORPORATION
2425 OLYMPIC BLVD., 3RD FLOOR
SANTA MONICA, CALIFORNIA 90404
(310) 315-5500
(Name and address and telephone number,
including area code, of agent for service)
Copies to:
RICHARD A. BOEHMER, ESQ.
O'MELVENY & MYERS LLP
400 SOUTH HOPE STREET
LOS ANGELES, CALIFORNIA 90071
(213) 430-6000
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CALCULATION OF REGISTRATION FEE
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MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER UNIT PRICE FEE
--------------------- -------------- -------- ----------- ------------
Deferred Compensation $60,000,000 (2) 100% $60,000,000 $7,602
Obligations (1)
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(1) The Deferred Compensation Obligations being registered are general unsecured
obligations of Fremont General Corporation to pay deferred compensation in the
future to participating members of a select group of management or highly
compensated employees in accordance with the terms of the Fremont General
Corporation Supplemental Executive Retirement Plan II.
(2) Estimated solely for purposes of determining the registration fee.
The Exhibit Index for this Registration Statement is at page 9.
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PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of
Form S-8 (plan information and registrant information) will be sent or given to
employees as specified by Securities Act Rule 428(b)(1). Such documents need not
be filed with the Securities and Exchange Commission (the "Commission") either
as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Securities Act Rule 424. These documents, which include
the statement of availability required by Item 2 of Form S-8, and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of
Form S-8 (Part II hereof), taken together, constitute a prospectus that meets
the requirements of Section 10(a) of the Securities Act.
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PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of Fremont General Corporation (the
"Company") filed with the Commission are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2003;
(b) The Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, 2004, June 30, 2004 and September 30, 2004; and
(c) The Company's Current Reports on Form 8-K filed with the
Commission on January 29, 2004, May 27, 2004, June 18, 2004 and October 28,
2004.
All reports and definitive proxy or information statements filed by the Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), after the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities then remaining unsold shall be deemed to be incorporated by reference
into this Registration Statement and to be a part hereof from the date of filing
of such documents. Any statement contained in a document incorporated or deemed
to be incorporated by reference herein 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 subsequently filed document which also is
incorporated by reference herein 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 Fremont General Corporation Supplemental Executive Retirement
Plan II (the "Plan") provides a select group of management or highly compensated
employees of the Company and certain of its subsidiaries with the opportunity to
defer the receipt of certain pre-tax cash compensation. Participants in the Plan
are key executives of the Company and certain of its affiliates who satisfy
certain eligibility requirements and who elect to participate in the Plan.
The obligations of the Company under the Plan (the "Deferred
Compensation Obligations") will be general unsecured obligations of the Company
to pay deferred compensation in the future to participating eligible employees
in accordance with the terms of the Plan from the general assets of the Company,
and will rank pari passu with other unsecured and unsubordinated indebtedness of
the Company from time to time outstanding. The Deferred Compensation Obligations
will be denominated and payable in United States dollars.
Under the Plan, participants may make annual irrevocable
elections to defer a specified portion of their compensation to be earned during
the following calendar year. The Company will credit an amount equal to the
compensation deferred by a participant to that participant's deferral account
under the Plan. In addition, the Company may credit matching amounts to the
participant's account so that the
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participant's combined matching contributions in this Plan and the Fremont
General Corporation and Affiliated Companies Investment Incentive Plan are equal
to the participant's deferral elections, but not to exceed 6% of the
participant's eligible compensation. The Company may also credit (1) ESOP
contributions above the maximum that may be contributed to the Fremont General
Corporation Employee Stock Ownership Plan under Internal Revenue Code limits
less any amount credited to the participant's account under a separate plan and
(2) discretionary contributions. Account balances will be credited with income,
gains and losses based on the performance of investment funds selected by the
participant from a list of funds designated by the Company. Participants are at
all times 100% vested in the amounts credited to their accounts except that
discretionary contributions may be subject to a vesting schedule. Participants
will be eligible to receive distributions of the Deferred Compensation
Obligations at a specified in-service distribution date or after their
separation from service in a lump sum pursuant to elections made under the rules
of the Plan. Key employees must wait 6 months after separation from service,
other than as a result of death, to receive a distribution.
No amount payable under the Plan shall be subject to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or
charge, voluntary or involuntary. Any attempt to dispose of any rights to
benefits payable under the Plan shall be void. The Deferred Compensation
Obligations are not subject to redemption, in whole or in part, prior to the
individual payment dates selected by the Participants. However, the Company
reserves the right to amend or terminate the Plan at any time.
The total amount of the Deferred Compensation Obligations is not
determinable because the amount will vary depending upon the level of
participation by eligible employees and the amounts of their salaries and
bonuses. The duration of the Plan is indefinite (subject to the Company's
ability to terminate the Plan). The Deferred Compensation Obligations are not
convertible into another security of the Company. The Deferred Compensation
Obligations will not have the benefit of a negative pledge or any other
affirmative or negative covenant on the part of the Company. Each participant
will be responsible for acting independently with respect to, among other
things, the giving of notices, responding to any requests for consents, waivers
or amendments pertaining to the Deferred Compensation Obligations, enforcing
covenants and taking action upon a default by the Company.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Restated Certificate of Incorporation limits the
monetary liability of its directors to the Company or its stockholders for
breach of such directors' fiduciary duty to the fullest extent permitted by the
law of the State of Nevada ("Nevada Law"), as it is amended from time to time.
Under the Company's Bylaws, the Company is required, to the
maximum extent and in the manner permitted by Nevada law, to indemnify each of
its directors and officers against expenses, judgments, fines, settlements, and
other amounts actually and reasonably incurred in connection with any
proceeding, arising by reason of the fact that such person is or was an agent of
the corporation. For the purposes of the Bylaws, a "director" or "officer" of
the Company includes any person (i) who is or was a director or officer of the
Company, (ii) who is or was serving at the request of the Company as a director
or officer of another corporation, partnership, joint venture, trust or other
enterprise, or (iii) who was a director or officer of a corporation which was a
predecessor corporation of the Company or of another enterprise at the request
of such predecessor corporation.
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The Company is also required to pay all expenses incurred in
defending any civil or criminal action or proceeding for which indemnification
is required under the Bylaws in advance of the final disposition of such action
or proceeding upon receipt of an undertaking by or on behalf of the indemnified
party to repay such amount if it shall ultimately be determined that the
indemnified party is not entitled to be indemnified as authorized in the Bylaws.
The Bylaws further provide that the Company shall have the power to purchase and
maintain insurance on behalf of any person who is or was a director or officer
of the Company against any liability asserted against or incurred by such person
in such capacity or arising out of such person's status as such, whether or not
the Company would have the power to indemnify such person against such liability
under the provisions of the Bylaws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
See the attached Exhibit Index at page 9.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus
required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any
facts or events arising after the effective date of
the Registration Statement (or the most recent
post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in
the information set forth in the Registration
Statement; and
(iii) To include any material
information with respect to the plan of distribution
not previously disclosed in the Registration Statement
or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant
to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement;
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof; and
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(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, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to
the securities offered 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 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions described in Item 6
above, or otherwise, the registrant has been advised that in the opinion of
the Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Santa Monica, State of California, on this 23rd day
of November, 2004.
FREMONT GENERAL CORPORATION
By: /s/ Alan W. Faigin
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Alan W. Faigin
Chief Legal Officer, Secretary
and General Counsel
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints James A. McIntyre, Louis J. Rampino and
Wayne R. Bailey, jointly and severally, as his or her attorney-in-fact and
agent, each with full power 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 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 and necessary to be done in
connection therewith, as fully and 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, or any of them, or their or his substitute, 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/ James A. McIntyre Chairman of the Board November 23, 2004
------------------------ of Directors
James A. McIntyre
/s/ Louis J. Rampino President and Chief November 23, 2004
------------------------ Executive Officer
Louis J. Rampino (Principal Executive Officer)
(Principal Executive Officer)
/s/ Wayne R. Bailey Executive Vice President November 23, 2004
------------------------ and Chief Operating Officer
Wayne R. Bailey and Director
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/s/ Patrick E. Lamb Senior Vice President, and November 23, 2004
------------------------ Chief Financial Officer and
Patrick E. Lamb Treasurer (Principal Financial
Officer and Principal Accounting
Officer)
/s/ Thomas W. Hayes Director November 23, 2004
------------------------
Thomas W. Hayes
/s/ Robert F. Lewis Director November 23, 2004
------------------------
Robert F. Lewis
/s/ Russell K. Mayerfeld Director November 23, 2004
------------------------
Russell K. Mayerfeld
/s/ Dickinson C. Ross Director November 23, 2004
------------------------
Dickinson C. Ross
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
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4 Fremont General Corporation Supplemental Executive Retirement Plan II
5 Opinion of O'Melveny & Myers LLP (opinion regarding legality of the
securities).
23.1 Consent of Ernst & Young LLP (Independent Registered Public Accounting
Firm).
23.2 Consent of O'Melveny & Myers LLP (included in Exhibit 5).
24 Power of Attorney (included in this Registration Statement at page 7).
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