efc9-09827034758fms8.htm
As
filed with the Securities and Exchange Commission on October 26,
2009
UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
_________________________
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
_________________________
PennyMac
Mortgage Investment Trust
(Exact
name of registrant as specified in its charter)
Maryland
(State
or other jurisdiction of
incorporation
or organization)
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27-0186273
(I.R.S.
Employer
Identification
No.)
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27001
Agoura Road, Third Floor
Calabasas,
California
(Address
of principal executive offices)
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91301
(Zip
code)
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_________________________
PennyMac
Mortgage Investment Trust 2009 Equity Incentive Plan
(Full
title of plans)
_________________________
Jeff
Grogin
Chief
Legal Officer and Secretary
PennyMac
Mortgage Investment Trust
27001
Agoura Road, Third Floor
Calabasas,
California 91301
(Name and
address of agent for service)
(818)
224-7442
(Telephone
number, including area code, of agent for service)
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer”
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of
the Exchange Act.
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Large
accelerated filer [ ]
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Accelerated
filer [ ]
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Non-accelerated
filer [Ö] (Do
not check if a smaller reporting company)
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Smaller
reporting company [ ]
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________________________
Calculation
of Registration Fee
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Title
of securities to be registered
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Amount
to be
registered(1)
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Proposed
maximum offering price per share(2)
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Proposed
maximum aggregate offering price
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Amount
of registration
fee(3)(4)
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Common
shares of beneficial interest, par value $0.01
per share
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1,368,851
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$18.91
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$25,884,973
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$1,445
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(1)
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Pursuant
to Rule 416 under the Securities Act of 1933, the number of common shares
of beneficial interest (“common shares”) registered hereby includes an
indeterminate number of common shares that may be issued in connection
with share splits, share dividends or similar
transactions.
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(2)
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Represents
the average of the high and the low sales prices of the common shares on
the New York Stock Exchange on October 23,
2009.
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(3)
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Computed
in accordance with Rule 457(h) under the Securities Act of
1933.
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(4)
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The
registrant previously paid a fee of $41,850 in connection with the initial
filing of its Registration Statement on Form S-11 (File
No. 333-159460) with the Securities and Exchange Commission on May
22, 2009 (the “S-11 Registration Statement”) to register shares at a
proposed maximum aggregate offering price of $750,000,000. The registrant
sold 16,000,000 common shares at $20.00 per share under the S-11
Registration Statement. Pursuant to Rule 457(p) under the Securities Act
of 1933, the registrant is offsetting the entire registration fee of
$1,445 due under this Registration Statement against the $23,994 that is
remaining from the registration fee paid in connection with the S-11
Registration Statement.
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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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The
document(s) containing the information specified in this Part I will be
sent or given to participants in the PennyMac Mortgage Investment Trust
2009 Equity Incentive Plan in accordance with Rule 428 under the
Securities Act of 1933, as amended (the “Securities Act”). 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 Rule 424 promulgated
under the Securities Act. These document(s) and the documents incorporated
by reference in this Registration Statement pursuant to Item 3 of 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 Documents by Reference.
The
following documents filed by PennyMac Mortgage Investment Trust (the “Company”)
with the Commission pursuant to the Securities Act, and the Securities Exchange
Act of 1934, as amended (the “Exchange Act”) are incorporated by
reference:
(a)
The
Company’s prospectus filed pursuant to Rule 424(b) under the Securities Act on
July 31, 2009.
(b)
The
description of the Company’s common shares of beneficial interest contained in
the Company’s Registration Statement on Form 8-A filed under the Exchange Act on
July 23, 2009.
All
documents subsequently filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of 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 that 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.
None.
Item
6. Indemnification
of Trustees and Officers.
Maryland
law permits a Maryland real estate investment trust to include in its
declaration of trust a provision limiting the liability of its trustees and
officers to the real estate investment trust and its shareholders for money
damages except for liability resulting from (i) actual receipt of an
improper benefit or profit in money, property or services or (ii) active
and deliberate dishonesty that is established by a final judgment and is
material to the cause of action. The Company’s declaration of trust contains
such a provision and limits the liability of the Company’s trustees and officers
to the maximum extent permitted by Maryland law.
The
Company’s declaration of trust authorizes it, and its bylaws require it, to the
maximum extent permitted by Maryland law, to indemnify and pay or reimburse
reasonable expenses in advance of final disposition of a proceeding to
(i) any individual who is a present or former trustee or officer or
(ii) any individual who, while serving as the Company’s trustee or officer
and at its request, serves or has served as a trustee, director, officer,
partner, member, manager, employee or agent of another real estate investment
trust, corporation, partnership, limited liability company, joint venture,
trust, employee benefit plan or any 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 or her service in such capacity or capacities. The
Company’s declaration of trust and bylaws also permit the Company to indemnify
and advance expenses to any person who served any predecessor of the Company in
any of the capacities described above and to any employee or agent of the
Company or a predecessor of the Company. The Company also has entered into
indemnification agreements with its trustees and executive officers that address
similar matters, as described below.
Maryland
law permits a Maryland real estate investment trust to indemnify and advance
expenses to its trustees, officers, employees and agents to the same extent as
permitted for directors and officers of Maryland corporations. The Maryland
General Corporation Law (the “MGCL”) permits a Maryland 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 or threatened to be
made a party by reason of their service in those or other capacities unless it
is established that (i) the act or omission of the director or officer was
material to the matter giving rise to the proceeding and (a) was committed
in bad faith or (b) was the result of active and deliberate dishonesty,
(ii) the director or officer actually received an improper personal benefit
in money, property or services or (iii) 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 the MGCL, 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 a personal benefit
was improperly received unless, in either case, a court orders indemnification
and then only for expenses. In addition, the MGCL permits a corporation to
advance reasonable expenses to a director or officer upon the corporation’s
receipt of (i) 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 (ii) a written undertaking by him or
on his behalf to repay the amount paid or reimbursed by the corporation if it is
ultimately determined that the standard of conduct was not met.
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to trustees, officers or persons controlling the Company pursuant to
the foregoing provisions, the Company has been informed that in the opinion of
the Commission such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
The
Company has entered into customary indemnification agreements with each of its
trustees and executive officers that obligate the Company to indemnify them to
the maximum extent permitted under Maryland law. The agreements require the
Company to indemnify the trustee or officer, or the indemnitee, against all
judgments, penalties, fines and amounts paid in settlement and all expenses
actually and reasonably incurred by the indemnitee or on his or her behalf in
connection with a proceeding other than one initiated by or on the Company’s
behalf. In addition, the indemnification agreements require the Company to
indemnify the indemnitee against all amounts paid in settlement and all expenses
actually and reasonably incurred by the indemnitee or on his or her behalf in
connection with a proceeding that is brought by or on the Company’s behalf. In
either case, the indemnitee will not be entitled to indemnification if it is
established that one of the prohibitions on indemnification under Maryland law
exists.
In
addition, the indemnification agreements require the Company to advance, without
a preliminary determination of the indemnitee’s entitlement to indemnification
thereunder, reasonable expenses incurred by the indemnitee within ten days of
the receipt by the Company of a statement from the indemnitee requesting the
advance, provided the statement evidences the expenses and is accompanied
by:
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•
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a
written affirmation of the indemnitee’s good faith belief that he or she
has met the standard of conduct necessary for indemnification;
and
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•
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a
written undertaking by or on behalf of the indemnitee to repay the amount
if it is ultimately determined that the standard of conduct was not
met.
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The
indemnification agreement also provides for procedures for the determination of
entitlement to indemnification, including requiring that such determination be
made by independent counsel after a change in control of the
Company.
Item
7. Exemption
from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
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4.1
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Form
of Declaration of Trust of PennyMac Mortgage Investment Trust, as amended
and restated.*
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4.2
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Form
of Bylaws of PennyMac Mortgage Investment Trust.*
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4.3
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Specimen
Common Share Certificate of PennyMac Mortgage Investment
Trust.*
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4.4
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Form
of PennyMac Mortgage Investment Trust 2009 Equity Incentive
Plan.**
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4.5
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Form
of Restricted Share Unit Award Agreement under PennyMac Mortgage
Investment Trust 2009 Equity Incentive Plan.**
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5.1
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Opinion
of Venable LLP
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23.1
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Consent
of Deloitte & Touche LLP
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23.2
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Consent
of Venable LLP (included in Exhibit 5.1)
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24.1
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Power
of Attorney (included on the signature page to this Registration
Statement)
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________________
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*
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Incorporated
by reference from Amendment No. 1 to the Company’s Registration Statement
on Form S-11 (File No. 333-159460) filed with the Commission on June 24,
2009.
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**
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Incorporated
by reference from Amendment No. 3 to the Company’s Registration Statement
on Form S-11 (File No. 333-159460) filed with the Commission on July 24,
2009.
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Item
9. Undertakings.
(a)
The
undersigned registrant hereby undertakes:
(1)
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To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration
statement:
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(i)
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To
include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933;
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(ii)
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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)
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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 total 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
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more
than 20% change in the maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the effective registration
statement.
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(iii)
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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;
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provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this Section do not apply
if 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
Securities Exchange Act of 1934 that are incorporated by reference 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.
(b)
The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, 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.
(c)
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to trustees, 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 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 trustee, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
trustee, 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 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
Calabasas, State of California, on this 26th day of October, 2009.
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PENNYMAC
MORTGAGE INVESTMENT TRUST |
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By:
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/s/ Stanford L. Kurland |
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Name:
Stanford L. Kurland |
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Title: Chairman
of the Board and Chief Executive Officer |
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POWER
OF ATTORNEY
Each
person whose signature appears below constitutes and appoints Stanford L.
Kurland, Anne D. McCallion and David A. Spector, and each of them acting
individually, as his or her attorney-in-fact, for him or her in any and all
capacities, to sign any 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,
hereby ratifying and confirming all that each attorney-in-fact, or his or her
substitute, may 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
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Title
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Date
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/s/
Stanford L. Kurland
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Chairman
of the Board and Chief Executive Officer
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October
26, 2009
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Stanford
L. Kurland
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(principal executive officer) |
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/s/
Anne D. McCallion
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Chief
Financial Officer and Treasurer
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October
26, 2009
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Anne
D. McCallion
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(principal
financial officer) |
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/s/
David A. Spector
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President,
Chief Operating Officer
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October
26, 2009
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David
A. Spector
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and
Trustee
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/s/
Matthew Botein
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Trustee
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October
26, 2009
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Matthew Botein
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/s/
Scott W. Carnahan
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Trustee
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October
26, 2009
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Scott W. Carnahan
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/s/
Randall D. Hadley
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Trustee
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October
26, 2009
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Randall D. Hadley
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/s/
Clay A. Halvorsen
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Trustee
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October
26, 2009
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Clay A. Halvorsen
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/s/
Joel S. Marcus
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Trustee
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October
26, 2009
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Joel S. Marcus
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/s/
Stacey D. Stewart
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Trustee
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October
26, 2009
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Stacey D. Stewart
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/s/
Mark Wiedman
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Trustee
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October
26, 2009
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Mark Wiedman
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/s/
Frank P. Willey
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Trustee
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October
26, 2009
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Frank P. Willey
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