As filed with the Securities and Exchange Commission on December 13, 2006
Registration No. 333-
==========================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FINANCIAL FEDERAL CORPORATION
(Exact name of registrant as specified in its charter)
Nevada 88-0244792
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
733 Third Avenue, New York, NY 10017
(Address of principal executive offices) (Zip Code)
2006 Stock Incentive Plan
Amended and Restated 2001 Management Incentive Plan
(Full title of the Plans)
Troy H. Geisser
Senior Vice President and Secretary
Financial Federal Corporation
733 Third Avenue, New York, NY 10017
(Name and address of agent for service)
(212) 599-8000
(Telephone number, including area code, of agent for service)
Copy to:
Jonathan M. Ocker, Esq.
Orrick, Herrington & Sutcliffe LLP
405 Howard Street, San Francisco, CA 94105
(415) 773-5700
CALCULATION OF REGISTRATION FEE
=========================================================================================================
Proposed Proposed
Title of Securities Amount Maximum Maximum
to be to be Offering Price Aggregate Amount of
Registered Registered (1) Per Share Offering Price Registration Fee
---------------------------------------------------------------------------------------------------------
Common Stock $0.50 par value per 2,500,000 $ 28.96 (2) $ 72,400,000 (2) $ 7,747
share (2006 Stock Incentive Plan)
Common Stock $0.50 par value per 750,890 $ 28.96 (2) $ 21,745,774 (2) $ 2,327
share (Amended and Restated 2001
Management Incentive Plan)
TOTAL: 3,250,890 $ 94,145,774 $10,074
---------------------------------------------------------------------------------------------------------
(1) Pursuant to Rule 416 under the Securities Act of 1933 as
amended, this Registration Statement also covers additional
securities that may be issued under the 2006 Stock Incentive
Plan or Amended and Restated 2001 Management Incentive Plan
as a result of stock splits, stock dividends or similar
transactions.
(2) Calculated solely for purposes of this offering under Rule
457(h) of the Securities Act of 1933, as amended, on the
basis of the average of the high ($29.13) and low ($28.78)
prices per share of Common Stock of Financial Federal
Corporation on December 12, 2006, as reported by The New
York Stock Exchange.
PART I
Information Required in the Section 10(a) Prospectus
Item 1. Plan Information*
----------------
Item 2. Registrant Information and Employee Plan Annual Information*
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*Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance
with the Note to Part I of Form S-8.
PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
---------------------------------------
The following documents filed by the Registrant under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), with
the Securities and Exchange Commission (the "Commission") are
incorporated herein by reference:
a. The Registrant's Annual Report filed on October 11, 2006 on
Form 10-K for the fiscal year ended July 31, 2006;
b. All reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Exchange Act since July 31, 2006; and
c. The description of the Registrant's common stock contained
in the Registrant's registration statement on Form 8-A filed
on July 13, 1998, 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 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.
Any statement contained in a document 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 in
a subsequently filed document which is also incorporated by reference
herein modifies or supersedes such statement.
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Item 4. Description of Securities
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers
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Section 78.7502 of the Nevada Revised Statutes permits a
corporation to provide discretionary indemnification to any person
against any threatened, pending or completed action, suit or
proceeding, except an action by or in the right of the corporation, by
reason of the fact that such person is or was a director, officer,
employee or agent, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
against expenses, including attorney's fees, judgments, fines and
amounts paid in settlements, if such indemnified person acted in good
faith and in a manner which such person reasonably believed to be in or
not opposed to the best interest of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to
believe such person's conduct was unlawful.
With respect to any threatened, pending or completed action or suit
by or in the right of the corporation, Section 78.7502 also permits a
corporation to provide discretionary indemnification if such
indemnified person acted in good faith and in a manner which such
person reasonably believed to be in or not opposed to the best
interests of the corporation; provided, however, that indemnification
may not be made for any claim, issue or matter as to which such a
person has been adjudged by a court of competent jurisdiction, after
exhaustion of all appeals therefrom, to be liable to the corporation or
for amounts paid in settlement to the corporation, unless and only to
the extent that the court in which the action or suit was brought or
other court of competent jurisdiction determines otherwise in light of
all the circumstances.
Section 78.7502 provides for mandatory indemnification against
expenses, including attorney's fees, actually and reasonably incurred
by such indemnified person in connection with the defense, to the
extent that a director, officer, employee or agent of a corporation has
been successful on the merits or otherwise in defense of any action,
suit or proceeding referred to in the preceding two paragraphs, or in
defense of any claim, issue or matter therein.
Section 78.751 of the Nevada Revised Statutes permits a corporation
to include in its articles of incorporation, bylaws, and/or agreements
between the corporation and its directors, officers, employees or
agents provisions expanding the scope of indemnification beyond that
specifically provided by current law, except that unless ordered by a
court or for the advancement of certain expenses, indemnification may
not be made to or on behalf of any director or officer if a final
adjudication establishes that such person's acts or omissions involved
intentional misconduct, fraud or a knowing violation of the law and was
material to the cause of action. Section 78.752 of the Nevada Revised
3
Statutes permits a corporation to purchase and maintain insurance or
make other financial arrangements on behalf of any such indemnified
persons.
The Ninth and Tenth Articles of Financial Federal Corporation's
Restated Articles of Incorporation provide for the indemnification of
directors and other persons to the fullest extent permitted by the
General Corporation Law of Nevada.
Article V, Section 5 of Financial Federal Corporation's Bylaws
provides that the Company shall indemnify to the full extent authorized
by law any person made or threatened to be made a party to an action,
suit or proceeding, whether criminal, civil, administrative or
investigative, by reason of the fact that such person or such person's
testator or intestate is or was a director, officer, employee or agent
of Financial Federal Corporation or is or was serving, at the request
of the Company, as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 as amended (the "Securities Act") 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 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 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 of 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.
The Registrant has also entered into separate indemnification
agreements with its directors and officers, in addition to the
indemnification provided for in the By-laws and Restated Articles of
Incorporation. These agreements, among other things, provide that the
Registrant will indemnify, to the fullest extent permitted by Nevada
law, its directors and officers for certain expenses, including
attorneys' fees, judgments, liabilities, fines, penalties and
settlement amounts incurred by a director or executive officer in any
action or proceeding arising out of such person's services as one of
its directors or executive officers, or any of its subsidiaries or any
other company or enterprise to which the person provides services at
the Registrant's request. The agreements also (i) provide for
indemnification rights regarding third-party claims and proceedings
brought by or in the right of the Company (ii) provide for advancing
expenses incurred by the indemnitee for any covered proceeding and
(iii) establish procedures and presumptions to determine whether
the indemnitee is entitled to indemnification.
The Registrant's officers and directors are covered by insurance
(with certain exceptions and limitations) that indemnifies them against
losses for which the Registrant grants them indemnification and for
which they become legally obligated to pay on account of claims made
4
against them for "wrongful acts" committed before or during the policy
period.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not applicable.
Item 8. Exhibits
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Exhibit Number Name
-------------- ----
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
23.1 Consent of KPMG LLP.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP
is contained in Exhibit 5.1.
24.1 Power of Attorney is included on signature page
of this Registration Statement.
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. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the dollar
value of securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with
the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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:
5
(A) Paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the
Registration Statement is on Form S-8, and the information required to
be included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in the Registration Statement; and
(B) Paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) above do not apply
if the Registration Statement is on Form S-3 or Form F-3 and the
information required to be included in a post-effective amendment by
those paragraphs is contained in reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in the Registration
Statement, or is contained in a form of prospectus filed pursuant to
Rule 424(b) that is part of 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.
(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 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to 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 foregoing provisions, 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.
6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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
New York, State of New York on December 12, 2006.
FINANCIAL FEDERAL CORPORATION
By: /s/ PAUL R. SINSHEIMER
--------------------------------
Paul R. Sinsheimer
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Financial
Federal Corporation, a Nevada corporation, do hereby constitute and
appoint Paul R. Sinsheimer and Troy H. Geisser, or any of them, the
lawful attorney-in-fact and agent with full power and authority to do
any and all acts and things and to execute any and all instruments
which said attorney and agent determines may be necessary or advisable
or required to enable said corporation to comply with the Securities
Act of 1933, as amended, and any rules or regulations or requirements
of the Securities and Exchange Commission in connection with this
Registration Statement. Without limiting the generality of the
foregoing power and authority, the powers granted include the power and
authority to sign the names of the undersigned officers and directors
in the capacities indicated below to this Registration Statement, to
any and all amendments, both pre-effective and post-effective, and
supplements to this Registration Statement, and to any and all
instruments or documents filed as part of or in conjunction with this
Registration Statement or amendments or supplements thereof, and each
of the undersigned hereby ratifies and confirms all that said attorney
and agent shall do or cause to be done by virtue hereof. This Power of
Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this
Power of Attorney as of the date indicated.
7
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
Signatures Title Date
---------- ----- ----
/s/ PAUL R. SINSHEIMER President and Chief December 12, 2006
------------------------ Executive Officer and
Paul R. Sinsheimer Chairman of the Board
of Directors
(Principal Executive
Officer)
/s/ STEVEN F. GROTH Senior Vice President December 12, 2006
------------------------ and Chief Financial
Steven F. Groth Officer (Principal
Financial Officer)
/s/ DAVID H. HAMM Vice President, December 12, 2006
------------------------ Treasurer and
David H. Hamm Controller (Principal
Accounting Officer)
/s/ LAWRENCE B. FISHER Director December 12, 2006
------------------------
Lawrence B. Fisher
/s/ MICHAEL C. PALITZ Director December 12, 2006
------------------------
Michael C. Palitz
/s/ LEOPOLD SWERGOLD Director December 12, 2006
------------------------
Leopold Swergold
/s/ H. E. TIMANUS, JR. Director December 12, 2006
------------------------
H.E. Timanus, Jr.
/s/ MICHAEL J. ZIMMERMAN Director December 12, 2006
------------------------
Michael J. Zimmerman
A majority of the Board of Directors
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EXHIBIT INDEX
Exhibit Number Name
-------------- ----
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
23.1 Consent of KPMG LLP.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP
is contained in Exhibit 5.1.
24.1 Power of Attorney is included on signature
page of this Registration Statement.