As filed with the Securities and Exchange Commission on August 22, 2001
Registration No. 333- _________
SECURITIES AND EXCHANGE COMMISSION
Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
IMPAC MORTGAGE HOLDINGS, INC.
(Exact Name of Registrant as Specified in Its Charter)
Maryland 6798 33-0675505
(State or Other Jurisdiction (Primary Standard (I.R.S. Employer
of Incorporation Industrial Classification Identification No.)
or Organization) Code Number)
1401 Dove Street
Newport Beach, California 92660
(949) 475-3600
(Address of Principal Executive Offices)
Impac Mortgage Holdings, Inc., 2001 Stock Option, Deferred Stock, and
Restricted Stock Plan
(Full Title of the Plan)
Joseph R. Tomkinson
Chief Executive Officer
1401 Dove Street
Newport Beach, California 92660
(949) 475-3600
(Name, Address, and Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Thomas J. Poletti, Esq.
Katherine J. Blair, Esq.
David R. Schwartz, Esq.
Kirkpatrick & Lockhart LLP
10100 Santa Monica Boulevard
Seventh Floor
Los Angeles, CA 90067
Telephone: (310) 552-5000
Facsimile: (310) 552-5001
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [x]
CALCULATION OF REGISTRATION FEE
------------------------------------------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum
Offering Aggregate Amount of
Title of Securities to be Registered Amount to be Price per Offering Registration
Registered Share Price Fee
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Common Stock, $.001 par value, Issuable 780,000 shares(1) $7.68(3) $5,990,400.00 $1,497.60
under 2001 Stock Option, Deferred Stock,
and Restricted Stock Plan
------------------------------------------------------------------------------------------------------------
Common Stock, $.001 par value, Issuable 220,000 shares(2) $7.58(4) $1,667,600.00 $416.90
under 2001 Stock Option, Deferred Stock,
and Restricted Stock Plan
------------------------------------------------------------------------------------------------------------
TOTAL $7,658,000.00 $1,914.50
------------------------------------------------------------------------------------------------------------
(1) This total represents the number of shares subject to grants of options
issued to employees and directors on July 24, 2001 under the 2001 Stock
Option, Deferred Stock, and Restricted Stock Plan.
(2) This total represents the number of shares authorized but unissued under
the 2001 Stock Option, Deferred Stock, and Restricted Stock Plan.
(3) Price at which the options may be exercised, based upon the closing price
of the Common Stock as reported at the close of the American Stock Exchange
on July 24, 2001.
(4) Estimated in accordance with Rule 547(c) and (h) under the Securities Act
of 1933, as amended, solely for the purpose of calculating the total
registration fee. Computation based upon the average of the high and low
prices of the Common Stock as reported on the American Stock Exchange on
August 20, 2001.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing information specified in this Part I are being
separately provided to the Registrant's employees, officers, directors and
consultants as specified by Rule 428(b)(1).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed in paragraphs (a) through (d) below are hereby
incorporated by reference in this Registration Statement. All documents
subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act"), prior to the
filing of a post-effective amendment which indicates that all securities offered
herein 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 hereto from the date of filing of such documents.
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 2000 filed with the SEC on March 30, 2001.
(b) The Registrant's Quarterly Reports on Form 10-Q for the Quarters ended
June 30, 2001 and March 31, 2001.
(c) The Registrant's Current Reports on Form 8-K filed with the SEC on
July 31, 2001, June 27, 2001, June 1, 2001, March 30, 2001, March 5,
2001 and January 19, 2001.
(d) The description of the Common Stock contained in Registrant's
Registration Statement on Form S-3, filed with the Commission on June
20, 2001, entitled "Description of Capital Stock".
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Maryland General Corporation Law, as amended from time to time, permits
a Maryland corporation to include in its charter a provision limiting the
liability of its directors and officers to the corporation and its stockholders
for money damages except for liability resulting from (a) actual receipt of an
improper benefit or profit in money, property or services or (b) active and
deliberate dishonesty established by a final judgment as being material to the
cause of action. The Registrant's charter contains such a provision which
eliminates such liability to the maximum extent permitted by Maryland law.
The Registrant's charter authorizes it, to the maximum extent permitted by
Maryland law, to obligate itself to indemnify and to pay or reimburse reasonable
expenses in advance of final disposition of a proceeding to (1) any present or
former director or officer or (2) any individual who, while a director of
Registrant and at our request, serves or has served another corporation, real
estate investment trust partnership, joint venture, trust, employee benefit plan
or any other enterprise as a director, officer, partner or trustee of such
corporation, real estate investment trust partnership, joint venture, trust,
employee benefit plan or other enterprise
from and against any claim or liability to which such person may become subject
or which such person may incur by reason of his status as a present or former
director or officer of Registrant. The Registrant's bylaws obligate it, to the
maximum extent permitted by Maryland law, to indemnify and to pay or reimburse
reasonable expenses in advance of final disposition of a proceeding to (1) any
present or former director or officer who is made a party to the proceeding by
reason of his service in that capacity or (2) any individual who, while a
director of Registrant and at our request, serves or has served another
corporation, real estate investment trust partnership, joint venture, trust,
employee benefit plan or any other enterprise as a director, officer, partner or
trustee of such corporation, real estate investment trust partnership, joint
venture, trust, employee benefit plan or other enterprise and who is made a
party to the proceeding by reason of his service in that capacity. The charter
and bylaws of the Registrant also permit it to indemnify and advance expenses to
any person who served a predecessor of Registrant in any of the capacities
described above and to any of our employees or agents or a predecessor of
Registrant.
The Maryland General Corporation Law requires a corporation (unless its
charter provides otherwise, which the Registrant's charter does not) to
indemnify a director or officer who has been successful, on the merits or
otherwise, in the defense of any proceeding to which he is made a party by
reason of his service in that capacity. Maryland law permits a corporation to
indemnify its present and former directors and officers, among others, against
judgments, penalties, fines, settlements and reasonable expenses actually
incurred by them in connection with any proceeding to which they may be made a
party by reason of their service in those or other capacities unless it is
established that (1) the act or omission of the director or officer was material
to the matter giving rise to the proceeding and (i) was committed in bad faith
or (ii) was the result of active and deliberate dishonesty, (2) the director or
officer actually received an improper personal benefit in money, property or
services or (3) in the case of any criminal proceeding, the director or officer
had reasonable cause to believe that the act or omission was unlawful. However,
under Maryland law, a Maryland corporation may not indemnify for an adverse
judgment in a suit by or in the right of the corporation or for a judgment of
liability on the basis that personal benefit was improperly received, unless in
either case a court orders indemnification and then only for expenses. In
addition, the Maryland law permits a corporation to advance reasonable expenses
to a director or officer upon the corporation's receipt of (1) a written
affirmation by the director or officer of his good faith belief that he has met
the standard of conduct necessary for indemnification by the corporation and (2)
a written undertaking by him or on his behalf to repay the amount paid or
reimbursed by the corporation if it shall ultimately be determined that the
standard of conduct was not met.
In addition, the Registrant has entered into an Indemnity Agreement
(Exhibit 10.4 of its Registration Statement on Form S-11 (File No. 33-96670) and
Amendments No. 1, 2 and 3 filed with the Securities and Exchange Commission on
September 7, 1995, October 23, 1995, October 30, 1995 and November 8, 1995,
respectively) with its officers and directors.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Numbers
4.1* Impac Mortgage Holdings, Inc. 2001 Stock Option, Deferred Stock, and
Restricted Stock Plan.
4.2 Form of Stock Option Agreement for the Impac Mortgage Holdings, Inc. 2001
Stock Option, Deferred Stock, and Restricted Stock Plan.
5 Opinion of McKee Nelson LLP.
23.1 Consent of KPMG Certified Public Accountants.
23.2 Consent of McKee Nelson LLP (contained in Exhibit 5).
24 The Power of Attorney is contained in this registration statement on the
final page.
----------------------
* Previously filed with the Commission as Appendix A to the Registrant's
Definitive Proxy Statement on Schedule 14A filed with the Commission on April
30, 2001 and incorporated herein by reference.
Item 9. Undertakings.
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 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, 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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 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 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 hereunder, 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 Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Newport Beach, State of California, on this 22nd day
of August, 2001.
IMPAC MORTGAGE HOLDINGS, INC.
By: /s/ Richard J. Johnson
------------------------------
Richard J. Johnson, Executive Vice
President and Chief Financial
Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Impac Mortgage Holdings,
Inc., do hereby constitute and appoint Joseph R. Tomkinson or Richard J.
Johnson, and each of them, as his true and lawful attorneys-in-fact and agents,
with full power of substitution for him 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, 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 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 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.
Names Title Date
/s/ Joseph R. Tomkinson Chairman of the Board August 22, 2001
-------------------------- and Chief Executive
Joseph R. Tomkinson Officer (Principal
Executive Officer)
/s/ William S. Ashmore President and Director August 7, 2001
--------------------------
William S. Ashmore
Executive Vice President August 22, 2001
/s/ Richard J. Johnson and Chief Financial Officer
-------------------------- (Principal Financial and
Richard J. Johnson Accounting Officer)
/s/ James Walsh Director August 22, 2001
--------------------------
James Walsh
/s/ Frank P. Filipps Director August 22, 2001
--------------------------
Frank P. Filipps
/s/ Stephan R. Peers Director August 22, 2001
--------------------------
Stephan R. Peers
/s/ William E. Rose Director August 22, 2001
--------------------------
William E. Rose
/s/ Leigh J. Abrams Director August 7, 2001
--------------------------
Leigh J. Abrams