As filed with the Securities and Exchange Commission on September 16, 2004
Registration No. __________________
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NEW CENTURY FINANCIAL CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
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Delaware 33-0683629
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
18400 Von Karman Avenue, Suite 1000
Irvine, California 92612
(Address, Including Zip Code, of Principal Executive Offices)
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NEW CENTURY FINANCIAL CORPORATION
2004 PERFORMANCE INCENTIVE PLAN
(Full Title of the Plan)
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Brad A. Morrice
Vice Chairman, President and Chief Operating Officer
New Century Financial Corporation
18400 Von Karman Avenue, Suite 1000
Irvine, California 92612
(949) 440-7030
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
COPY TO:
David A. Krinsky, Esq.
O'Melveny & Myers LLP
610 Newport Center Drive, Suite 1700
Newport Beach, California 92660
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CALCULATION OF REGISTRATION FEE
----------------- ---------------- -------------- ------------- -------------
Proposed Proposed
Maximum Maximum
Title Of Amount Offering Aggregate Amount Of
Securities To Be Price Offering Registration
To Be Registered Registered Per Unit Price Fee
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Common Stock, $0.01 900,000(1) $54.19(2) $48,771,000(2) $6,180(2)
par value per share shares
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(1) This Registration Statement covers, in addition to the number of
shares of New Century Financial Corporation, a Delaware
corporation (the "Company" or the "Registrant"), common stock,
par value $0.01 per share (the "Common Stock"), stated above,
options and other rights to purchase or acquire the shares of
Common Stock covered by this Registration Statement and, pursuant
to Rule 416(c) under the Securities Act of 1933, as amended (the
"Securities Act"), an additional indeterminate number of shares,
options and rights that may be offered or issued pursuant to the
New Century Financial Corporation 2004 Performance Incentive Plan
(the "Plan") as a result of one or more adjustments under the
Plan to prevent dilution resulting from one or more stock splits,
stock dividends or similar transactions.
(2) Pursuant to Securities Act Rule 457(h), the maximum offering
price, per share and in the aggregate, and the registration fee
were calculated based upon the average of the high and low prices
of the Common Stock on September 13, 2004, as quoted on the
Nasdaq National Market.
The Exhibit Index for this Registration Statement is at page 8.
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PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form
S-8 will be sent or given to participants as specified by Securities Act Rule
428(b)(1).
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of the Company filed with the Securities and
Exchange Commission (the "Commission") are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for its fiscal year
ended December 31, 2003, filed with the Commission on March
15, 2004, as amended on April 13, 2004 (Commission File No.
000-22633);
(b) The Company's Quarterly Reports on Form 10-Q for its fiscal
quarters ended June 30, 2004 and March 31, 2004, filed with
the Commission on August 9, 2004 and May 10, 2004,
respectively (Commission File No. 000-22633);
(c) The Company's Current Reports on Form 8-K, filed with the
Commission on September 15, 2004, September 10, 2004,
September 1, 2004, August 17, 2004, August 2, 2004, July 20,
2004, July 13, 2004, July 2, 2004, June 28, 2004, June 17,
2004, June 1, 2004 (as amended July 7, 2004), May 20, 2004,
April 7, 2004 and January 14, 2004 (Commission File
No. 000-22633); and
(d) The description of the Company's Common Stock contained in its
Registration Statement on Form 8-A filed with the Commission
on June 2, 1997 (Commission File No. 000-22633), and any other
amendment or report filed for the purpose of updating such
description.
All documents subsequently 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"), 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 herein or in a document,
all or a portion of which is 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 other subsequently filed document which also is or is deemed to be
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 amended, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the issuance of Common Stock registered hereby is
passed on for the Company by Stergios Theologides, Esq. Mr. Theologides is the
Executive Vice President--Corporate Affairs, General Counsel and Secretary of
the Company and is compensated by the Company as an employee. Mr. Theologides
owns 18,635 shares of Common Stock and Company stock options to acquire up to
an additional 44,375 shares of Common Stock. Mr.Theologides is eligible to
receive stock awards by the Company under the Plan.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Certificate of Incorporation provides that to the
fullest extent permitted by applicable law a director of the Company shall not
be liable to the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director. Under the Delaware General Corporation Law,
liability of a director may not be limited (i) for any breach of the director's
duty of loyalty to the Company or its stockholders, (ii) for acts or omissions
not in good faith or that involve intentional misconduct or a knowing violation
of law, (iii) in respect of certain unlawful dividend payments or stock
redemptions or repurchases, and (iv) for any transaction from which the director
derives an improper personal benefit. The effect of the provisions of the
Company's Certificate of Incorporation is to eliminate the rights of the
Company and its stockholders (through stockholders' derivative suits on behalf
of the Company) to recover monetary damages against a director for breach of the
fiduciary duty of care as a director (including breaches resulting from
negligent or grossly negligent behavior), except as provided in the situations
described in clauses (i) through (iv) above. This provision does not limit or
eliminate the rights of the Company or any stockholder to seek nonmonetary
relief such as an injunction or rescission in the event of a breach of a
director's duty of care.
The Bylaws of the Company provide that the Company will indemnify its
directors and officers to the fullest extent permitted by the Delaware General
Corporation Law. In addition, the Company has entered into agreements with each
of the directors and officers of the Company pursuant to which the Company has
agreed to indemnify, subject to certain limitations, such director or officer
from claims, liabilities, damages, expenses, losses, costs, penalties or amounts
paid in settlement incurred by such director or officer in or arising out of his
capacity as a director, officer, employee and/or agent of the Company or any
other corporation of which such person is a director or officer at the request
of the Company to the maximum extent provided by applicable law. In addition,
such director or officer is entitled to an advance of expenses to the maximum
extent authorized or permitted by law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
See the attached Exhibit Index at page 8, which is incorporated herein
by reference.
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 this 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 this Registration Statement; and
(iii) To include any material information with respect
to the plan of distribution not previously disclosed
in this Registration Statement or any material change
to such information in this 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
with or furnished to the Commission by the Registrant pursuant to
Section 13 or 15(d) of the Exchange Act that are incorporated by
reference in this 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 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 this 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.
(h) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, executive 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.
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 Form S-8
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Irvine, State of California, on September 16,
2004.
NEW CENTURY FINANCIAL CORPORATION
By: /s/ ROBERT K. COLE
____________________________________
Robert K. Cole
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Robert
K. Cole and Brad A. Morrice, and each of them, acting individually and without
the other, as his or her true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him or her and in his or her name,
place, and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments, exhibits thereto and other documents in
connection therewith) to this Registration Statement, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
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 and about the premises, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or either of them
individually, or their or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
SIGNATURE TITLE DATE
/s/ ROBERT K. COLE
__________________ Chairman of the Board and Chief September 16, 2004
Robert K. Cole Executive Officer
(Principal Executive Officer)
/s/ PATTI M. DODGE
_____________________ Chief Financial Officer September 16, 2004
Patti M. Dodge (Principal Financial and
Accounting Officer)
/s/ BRAD A. MORRICE
_____________________ Vice-Chairman, President, Chief September 16, 2004
Brad A. Morrice Operating Officer and Director
/s/ EDWARD F. GOTSCHALL
______________________ Vice Chairman--Finance and Director September 16, 2004
Edward F. Gotschall
/s/ HAROLD A. BLACK
______________________ Director September 16, 2004
Harold A. Black
/s/ FREDRIC J. FORSTER
______________________ Director September 16, 2004
Fredric J. Forster
/s/ DONALD E. LANGE
______________________ Director September 16, 2004
Donald E. Lange
/s/ WILLIAM J. POPEJOY
______________________ Director September 16, 2004
William J. Popejoy
/s/ MICHAEL M. SACHS
______________________ Director September 16, 2004
Michael M. Sachs
/s/ TERRENCE P. SANDVIK
______________________ Director September 16, 2004
Terrence P. Sandvik
/s/ RICHARD A. ZONA
______________________ Director September 16, 2004
Richard A. Zona
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
4. New Century Financial Corporation 2004 Performance Incentive
Plan. (Filed as Annex D to the Company's Proxy Statement filed
with the Commission pursuant to Section 14(a) of the Exchange
Act on August 16, 2004 (Commission File No. 000-22633) and
incorporated herein by this reference.)
5. Opinion of Company Counsel (opinion re legality).
23.1 Consent of KPMG LLP (consent of Independent Registered
Public Accounting Firm).
23.2 Consent of Counsel (included in Exhibit 5).
24. Power of Attorney (included in this Registration Statement
under "Signatures").