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FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF
THE SECURITIES EXCHANGE ACT OF 1934
IMPERIAL CREDIT COMMERCIAL HOLDINGS, INC.
(Exact Name of Registrant as Specified in its Charter)
Maryland 33-0745075
(State of Incorporation or Organization) (I.R.S. Employer Identification No.)
20371 Irvine Avenue, Santa Ana Heights, California 92707
(Address of principal executive offices)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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Common Stock, $.01 par value per share AMEX
Securities to be registered pursuant to Section 12(g) of the Act:
None.
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IMPERIAL CREDIT COMMERCIAL HOLDINGS, INC. - FORM 8-A
Item 1. Description of Registrant's Securities to be Registered.
Incorporated by reference to the section entitled "Description of
Securities" in that portion of the Prospectus contained in Registrant's
Registration Statement on Form S-11 filed with the Securities and Exchange
Commission on April 18, 1997 and Amendment No. 1 filed with the Securities and
Exchange Commission on June 10, 1997 (collectively, the "Registration
Statement"), at pages 84-89 of the Prospectus. A copy of pages 84-89 of the
Prospectus is attached hereto as Exhibit 3.1.
Item 2. Exhibits.
1.1 The Registrant's Charter (1)
1.2 The Registrant's Bylaws. (2)
2.1 Form of Common Stock Certificate. (3)
3.1 Pages 84-89 of the Prospectus.
________________
(1) Incorporated by reference to Exhibit 3.1 to the Registrant's Registration
Statement on Form S-11 and Amendment No. 1 thereto filed on April 18, 1997
and June 10, 1997, respectively.
(2) Incorporated by reference to Exhibit 3.2 to the Registrant's Registration
Statement on Form S-11 and Amendment No. 1 thereto filed on April 18, 1997
and June 10, 1997, respectively.
(3) Incorporated by reference to Exhibit 4.1 to the Registrant's Registration
Statement on Form S-11 and Amendment No. 1 thereto filed on April 18, 1997
and June 10, 1997, respectively.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, as amended, the Registrant has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereto duly
authorized.
June 11, 1997 IMPERIAL CREDIT COMMERCIAL HOLDINGS, INC.
By: /s/ Richard J. Johnson
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Richard J. Johnson
Senior Vice President, Chief Financial Officer and
Secretary
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EXHIBIT 3.1
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DESCRIPTION OF CAPITAL STOCK
GENERAL
The authorized stock of ICH consists of 46,000,000 shares of Common Stock,
$0.01 par value per share, 4,000,000 shares of Class A Non-Voting Common
Stock, $0.01 par value per share, 6,000,000 shares of Preferred Stock, $0.01
par value per share, and 4,000,000 shares of Class A Convertible Preferred
Stock, $0.01 par value per share. It is expected that meetings of the
stockholders of ICH will be held annually. Special meetings of the
stockholders may be called by the President, Chief Executive Officer, a
majority of the entire Board of Directors or a majority of the Unaffiliated
Directors and must be called upon the written request of holders of shares
entitled to cast at least a majority of all the votes entitled to be cast at
the meeting. The Charter reserves to ICH the right to amend any provision
thereof in the manner prescribed by Maryland law upon the affirmative vote of
stockholders entitled to cast at least a majority of all the votes entitled to
be cast on the matter.
COMMON STOCK
Each share of Common Stock is entitled to participate equally in dividends
when and as authorized by the Board of Directors and in the distribution of
assets of ICH upon liquidation. Each share of Common Stock is entitled to one
vote, subject to the provisions of the Charter regarding restrictions on
transfer of stock, and will be fully paid and nonassessable by ICH upon
issuance. Shares of Common Stock have no preference, conversion, exchange,
preemptive or cumulative voting rights. The authorized stock of ICH may be
increased and altered from time to time in the manner prescribed by Maryland
law upon the affirmative vote of stockholders entitled to cast at least a
majority of all the votes entitled to be cast on the matter. The Charter
authorizes the Board of Directors to reclassify any unissued shares of its
Common Stock in one or more classes or series of stock.
Class A Non-Voting Common Stock
Designation and Amount. Of the 50,000,000 shares of Common Stock which were
previously authorized, 4,000,000 shares were reclassified and designated as
Class A Non-Voting Common Stock (the "ICH Class A Stock").
Rights, Preferences and Privileges and Voting Rights. The ICH Class A Stock
has the identical preferences, conversion or other rights, restrictions,
limitations as to dividends or other distributions, qualifications or terms or
conditions of redemption as the Common Stock except that the holders of shares
of ICH Class A Stock are not entitled to any voting rights. If ICH issues
additional shares of its Common Stock as a dividend on its outstanding Common
Stock, ICH shall simultaneously issue as a dividend on its outstanding ICH
Class A Stock, pro rata among the holders thereof, that number of shares of
Class A Common Stock equal to the number of shares of ICH Common Stock issued
as a dividend multiplied by a fraction, the numerator of which is the number
of shares of ICH Class A Stock outstanding immediately before the record date
for the payment of the ICH Class A Stock dividend and the denominator of which
is the number of shares of ICH Common Stock outstanding immediately before the
record date for the payment of the ICH Common Stock dividend.
Conversion Rights. On any date on which shares of Common Stock are issued by
ICH increasing the number of shares of Common Stock issued and outstanding
(the "Conversion Date"), the shares of ICH Class A Stock held by each person
will automatically convert into that number of shares of Common Stock as
calculated below, except that those shares of ICH Class A Stock (collectively,
"Excess Shares") which would cause the holder thereof to own shares of ICH
Common Stock (i) in excess of the Limit or (ii) in violation of any stock
ownership limitation set forth in the ICH's Charter shall not be converted and
shall remain outstanding shares of ICH Class A Stock. "Limit" shall mean not
greater than 9.8% (in value or in number of shares, whichever is more
restrictive) of the aggregate of the outstanding shares of Common Stock of
ICH. The number and value of outstanding shares of Common Stock shall be
determined by the Board of Directors of ICH in good faith, which determination
shall be conclusive for all purposes hereof.
If, subsequent to the Conversion Date, the conversion of Excess Shares into
shares of ICH Common Stock would no longer cause the holder thereof to own
shares of ICH Common Stock (i) in excess of the Limit or
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(ii) in violation of any stock ownership limitation set forth in the Charter,
such shares shall automatically convert into that number of shares of ICH
Common Stock as calculated below, except that those Excess Shares which, if
converted pursuant to this provision, would cause the holder thereof to own
shares of ICH Common Stock (i) in excess of the Limit or (ii) in violation of
any stock ownership limitation set forth in the Charter shall not be converted
and shall remain outstanding shares of ICH Class A Stock.
The shares of ICH Class A Stock are convertible at the principal office of
ICH, and at such other office or offices, if any, as the Board of Directors
may designate, into fully paid and non-assessable shares of Common Stock of
ICH (calculated as to each conversion to the nearest whole share). The number
of shares of Common Stock to be issued upon conversion will be determined by
multiplying the number of shares of ICH Class A Stock to be converted by one,
subject to certain adjustments. No fractional shares of Common Stock will be
issued upon conversion of shares of ICH Class A Stock, and the number of
shares of Common Stock to be issued will be rounded to the nearest whole
share.
PREFERRED STOCK
The Charter authorizes the Board of Directors to issue shares of Preferred
Stock and to classify any unissued shares of Preferred Stock and reclassify
any previously classified but unissued shares of Preferred Stock from time to
time into one or more series of stock. The Preferred Stock may be issued from
time to time with such designations, preferences, conversion or other rights,
voting powers, restrictions, limitations as to dividends or other
distributions, qualifications or terms or conditions of redemption as shall be
determined by the Board of Directors subject to the provisions of the Charter
regarding restrictions on transfer of stock. Preferred Stock is available for
possible future financing of, or acquisitions by, ICH and for general
corporate purposes without further stockholder authorization. Thus, the Board
could authorize the issuance of shares of Preferred Stock with terms and
conditions which could have the effect of delaying, deferring or preventing a
change in control of ICH by means of a merger, tender offer, proxy contest or
other transaction that might involve a premium price for the holders of Common
Stock or otherwise be in their best interest. The Preferred Stock, if issued,
may have a preference on dividend payments which could reduce the assets
available to ICH to make distributions to the common stockholders.
Class A Convertible Preferred Stock.
Designation and Amount. Of the 10,000,000 shares of Preferred Stock which
were previously authorized, 4,000,000 shares were reclassified and designated
Class A Convertible Preferred Stock (the "ICH Preferred Stock"). In March
1997, IMH converted $15.0 million principal amount of promissory notes into an
aggregate of 3,000,000 shares of ICH Preferred Stock.
Dividends. Commencing on December 31, 1997, each holder of ICH Preferred
Stock will be entitled to receive, out of any funds legally available
therefor, when and if declared, dividends at the quarterly rate of $.10 per
share and no more, and thereafter quarterly on the last day of March, June,
September and December of each year that any ICH Preferred Stock is
outstanding. Such dividends will not be cumulative, and no rights will accrue
to holders of ICH Preferred Stock by reason of the fact that dividends on such
shares are not declared or paid in any prior quarter.
In determining whether a distribution (other than upon liquidation), by
dividend, redemption or other acquisition of shares or otherwise, is permitted
under Maryland law, amounts that would be needed, if the Company were to be
dissolved at the time of the distribution, to satisfy the preferential rights
upon dissolution of holders of shares of any class or series of stock whose
preferential rights upon dissolution are superior to those receiving the
distribution will not be added to the Company's total liabilities.
Distributions Upon Liquidation, Dissolution or Winding Up. Subject to
conversion as set forth below, upon any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company, subject to the prior
preferences and other rights of any class or series of stock ranking senior to
the ICH Preferred Stock as to
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the distribution of assets upon liquidation, dissolution or winding up of the
affairs of the Company, but before any distribution or payment will be made to
the holders of any class or series of stock ranking junior to the
ICH Preferred Stock as to the distribution of assets upon any liquidation,
dissolution or winding up of the affairs of the Company, the holders of ICH
Preferred Stock will be entitled to receive out of the assets of the Company
legally available for distribution to its stockholders liquidating
distributions in cash or property at its fair market value as determined by
the Board of Directors of the Company in the amount per share equal to the
liquidation preference, which is $5.00 per share. After payment of the full
amount of the liquidating distributions to which they are entitled, the
holders of ICH Preferred Stock will have no right or claim to any of the
remaining assets of the Company and will not be entitled to any other
distribution in the event of liquidation, dissolution or winding up of the
affairs of the Company.
In the event that, upon any such voluntary or involuntary liquidation,
dissolution or winding up, the legally available assets of the Company are
insufficient to pay the amount of the liquidation preference per share plus
the corresponding amounts payable on each class or series of other stock
ranking on a parity with the ICH Preferred Stock as to the distribution of
assets upon liquidation, dissolution or winding up of the affairs of the
Company, then the holders of the ICH Preferred Stock and all such other stock
will share ratably in any such distribution of assets in proportion to the
full liquidating distributions to which they otherwise would be respectively
entitled. Neither the consolidation or merger of the Company into or with
another corporation or corporations or trust or trusts nor the sale, lease,
transfer or conveyance of all or substantially all of the assets of the
Company to another corporation or any other entity shall be deemed a
liquidation, dissolution or winding up of affairs of the Company.
Voting Rights. The holders of shares of ICH Preferred Stock are not entitled
to any voting rights.
Conversion Rights. Upon any "Initial Public Offering," the shares of ICH
Preferred Stock held by each person will automatically convert into that
number of shares of Common Stock as calculated below, except that those shares
of ICH Preferred Stock which, if converted pursuant to this provision, would
cause the holder thereof to own shares of Common Stock (i) in excess of the
Limit or (ii) in violation of any stock ownership limitation set forth in the
Charter shall not be converted into shares of Common Stock. Any shares of
ICH Preferred Stock not converted into shares of Common Stock as a result of
the foregoing limitations shall on such date automatically convert into shares
of ICH Class A Stock at the same rate as shares of ICH Preferred Stock convert
into shares of Common Stock. If the aforementioned event does not occur, the
shares of ICH Preferred Stock shall remain outstanding. All ICH Preferred
Stock is automatically convertible upon the closing of this Offering into
shares of ICH Common Stock determined by multiplying the number of shares of
ICH Preferred Stock to be converted by a fraction, the numerator of which is
$5.00 and the denominator of which is the Subscription Price. "Initial Public
Offering" means the sale of Common Stock pursuant to the Company's first
effective registration statement covering the sale of such shares filed under
the 1933 Act provided such offering meets the following requirements: (i) said
offering raises gross proceeds of at least $10.0 million to the Company at a
per share offering price of no less than $5.00 per share and (ii) said
offering is completed on or before December 31, 1998.
The shares of ICH Preferred Stock also will be convertible at the principal
office of the Company, and at such other office or offices, if any, as the
Board of Directors may designate, into fully paid and non-assessable shares of
Common Stock or ICH Class A Stock, as the case may be, of the Company. The
number of shares of Common Stock or ICH Class A Stock, as the case may be, to
be issued upon conversion will be determined by multiplying the number of
shares of ICH Preferred Stock to be converted by the Conversion Rate.
"Conversion Rate" is determined by a fraction, the numerator of which will be
the liquidation preference and the denominator of which will be the IPO Share
Price. "IPO Share Price" means the gross per share price of the Company's
Initial Public Offering.
No fractional shares of Common Stock or ICH Class A Stock, as the case may
be, will be issued upon conversion of shares of ICH Preferred Stock and the
number of shares of Common Stock or ICH Class A Stock, as the case may be, to
be issued will be rounded to the nearest whole share.
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REPURCHASE OF SHARES AND RESTRICTIONS ON TRANSFER
For ICH to qualify as a REIT under the Code, no more than 50% in value of
its outstanding shares of stock may be owned, actually or constructively, by
or for five or fewer individuals (as defined in the Code to include certain
entities) during the last half of a taxable year (other than the first year
for which an election to be treated as a REIT has been made). In addition, a
REIT's stock must be beneficially owned by 100 or more persons during at least
335 days of a taxable year of 12 months or during a proportionate part of a
shorter taxable year (other than the first year for which an election to be
treated as a REIT has been made).
Because ICH expects to continue to qualify as a REIT, the Charter contains
restrictions on the transfer of Common Stock which are intended to assist ICH
in complying with these requirements. The Ownership Limit set forth in the
Charter prohibits any person, subject to certain specified exceptions
discussed below, from owning, actually or constructively, shares of Common
Stock in excess of 9.8% (in value or in number, whichever is more restrictive)
of the outstanding shares of Common Stock. The constructive ownership rules
are complex, and may cause shares of Common Stock owned actually or
constructively by a group of related individuals and/or entities to be
constructively owned by one individual or entity. As a result, the acquisition
of less than 9.8% of the shares of Common Stock (or the acquisition of an
interest in an entity that owns, actually or constructively, shares of Common
Stock) by an individual or entity, could nevertheless cause that individual or
entity, or another individual or entity, to own constructively in excess of
9.8% of the outstanding shares of Common Stock and thus violate the Ownership
Limit, or such other limit as provided in the Charter or as otherwise
permitted by the Board of Directors. The Board of Directors may, but in no
event will be required to, exempt a person from the Ownership Limit if it
determines that such person's ownership of shares of Common Stock will not
jeopardize ICH's status as a REIT. As a condition of such waiver, the Board of
Directors may require a ruling from the Internal Revenue Service or opinions
of counsel satisfactory to it and/or undertakings or representations from the
applicant with respect to ICH's status as a REIT.
ICH's Charter further prohibits (a) any person from actually or
constructively owning shares of Common Stock that would result in ICH being
"closely held" under Section 856(h) of the Code or otherwise cause ICH to fail
to qualify as a REIT, and (b) any person from transferring shares of Common
Stock if such transfer would result in shares of Common Stock being owned by
fewer than 100 persons. Any person who acquires or attempts or intends to
acquire actual or constructive ownership of shares of stock of ICH that will
or may violate any of the foregoing restrictions on transferability and
ownership is required to give written notice immediately to ICH and provide
ICH with such other information as it may request in order to determine the
effect of such transfer on its status as a REIT. The foregoing restrictions on
transferability and ownership will not apply if the Board of Directors
determines that it is no longer in the best interest of ICH to attempt to
qualify, or to continue to qualify, as a REIT. The Board of Directors may from
time to time increase or, subject to certain limitations, decrease the
Ownership Limit.
Pursuant to the Charter, if any purported transfer of Common Stock or any
other event would otherwise result in any person owning shares of Common Stock
in excess of the Ownership Limit or in ICH being "closely held" as described
above or otherwise failing to qualify as a REIT, then that number of shares of
Common Stock the actual or constructive ownership of which otherwise would
cause such person to violate such restrictions (rounded up to a whole share)
will be automatically transferred to a trustee (the "Trustee") as trustee of a
trust (the "Trust") for the exclusive benefit of one or more charitable
beneficiaries (the "Charitable Beneficiary"), and the intended transferee will
not acquire any rights in such shares. Shares held by the Trustee will
constitute issued and outstanding shares of Common Stock. The intended
transferee will not benefit economically from ownership of any shares held in
the Trust, will have no rights to dividends and will not possess any rights to
vote or other rights attributable to the shares held in the Trust. The Trustee
will have all voting rights and rights to dividends or other distributions
with respect to shares held in the Trust, which rights will be exercised for
the exclusive benefit of the Charitable Beneficiary. Any dividend or other
distribution paid prior to the discovery by ICH that shares of Common Stock
have been transferred to the Trustee will be paid with respect to such shares
to the Trustee upon demand and any dividend or other distribution authorized
but unpaid will be paid when due to the Trustee. Any dividends or
distributions so paid over to the Trustee will be held in trust for the
Charitable
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Beneficiary. Subject to Maryland law, effective as of the date that such
shares have been transferred to the Trustee, the Trustee will have the
authority (at the Trustee's sole discretion) (i) to rescind as void any vote
cast by an intended transferee prior to the discovery by ICH that such shares
have been transferred to the Trustee and (ii) to recast such vote in
accordance with the desires of the Trustee acting for the benefit of the
Charitable Beneficiary.
Within 20 days of receiving notice from ICH that shares of Common Stock have
been transferred to the Trust, the Trustee will sell the shares held in the
Trust to a person designated by the Trustee whose ownership of the shares will
not violate the ownership restrictions set forth in the Charter. Upon such
sale, the interest of the Charitable Beneficiary in the shares sold will
terminate and the Trustee will distribute the net proceeds of the sale to the
intended transferee and to the Charitable Beneficiary as follows: the intended
transferee will receive the lesser of (1) the price paid by the intended
transferee for the shares or, if the intended transferee did not give value
for the shares in connection with the event causing the shares to be held in
the Trust (e.g., in the case of a gift, devise or other such transaction), the
Market Price (as defined below) of the shares on the day of the event causing
the shares to be held in the Trust and (2) the price per share received by the
Trustee from the sale or other disposition of the shares held in the Trust.
Any net sales proceeds in excess of the amount payable to the intended
transferee will be immediately paid to the Charitable Beneficiary.
In addition, shares of Common Stock held in Trust will be deemed to have
been offered for sale to ICH, or its designee, at a price per share equal to
the lesser of (i) the price per share in the transaction that resulted in such
transfer to the Trust (or, in the case of a devise or gift, the Market Price
(as defined in the Charter) at the time of such devise or gift) and (ii) the
Market Price on the date ICH, or its designee, accepts such offer. ICH will
have the right to accept such offer until the Trustee has sold the shares held
in the Trust. Upon such a sale to ICH, the interest of the Charitable
Beneficiary in the shares sold will terminate and the Trustee will distribute
the net proceeds of the sale to the intended transferee.
The Charter defines the term "Market Price" on any date, with respect to any
class or series of outstanding shares of ICH's stock, as the Closing Price (as
defined below) for such shares on such date. The "Closing Price" on any date
shall mean the last sale price for such shares, regular way, or, in case no
such sale takes place on such day, the average of the closing bid and asked
prices, regular way, for such shares, in either case as reported in the
principal consolidated transaction reporting system with respect to securities
listed or admitted to trading on the NYSE or, if such shares are not listed or
admitted to trading on the NYSE, as reported on the principal consolidated
transaction reporting system with respect to securities listed on the
principal national securities exchange on which such shares are listed or
admitted to trading or, if such shares are not listed or admitted to trading
on any national securities exchange, the last quoted price, or, if not so
quoted, the average of the high bid and low asked prices in the over-the-
counter market, as reported by the National Association of Securities Dealers,
Inc. Automated Quotation System or, if such system is no longer in use, the
principal other automated quotation system that may then be in use or, if such
shares are not quoted by any such organization, the average of the closing bid
and asked prices as furnished by a professional market maker making a market
in such shares selected by the Board of Directors or, in the event that no
trading price is available for such shares, the fair market value of the
shares, as determined in good faith by the Board of Directors.
If any purported transfer of shares of Common Stock would cause ICH to be
beneficially owned by fewer than 100 persons, such transfer will be null and
void in its entirety and the intended transferee will acquire no rights to
such shares.
All certificates representing shares of Common Stock bear a legend referring
to the restrictions described above.
Under the Charter, every owner of a specified percentage (or more) of the
outstanding shares of Common Stock must file a completed questionnaire with
the Company containing the information regarding their ownership of such
shares, as set forth in the Treasury Regulations. Under current Treasury
Regulations, the percentage will be set between 0.5% and 5.0%, depending upon
the number of record holders of the Company's
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shares. In addition, each stockholder shall upon demand be required to
disclose to the Company in writing such information as the Company may request
in order to determine the effect, if any, of such stockholder's actual and
constructive ownership of Common Stock on the Company's status as a REIT and
to ensure such compliance with the Ownership Limit or such other limit as
otherwise prescribed by the Board of Directors.
The Charter provides that "disqualified organizations" within the meaning of
Section 860E(e)(5) of the Code, which generally include governmental entities
and other tax-exempt persons not subject to tax on unrelated business taxable
income, are ineligible to hold the Company's shares. Accordingly, the shares
offered hereby should not be purchased or held by such disqualified
organizations. See "Federal Income Tax Considerations."
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Company's Common Stock is
BankBoston, N.A., parent corporation to Boston EquiServe, L.P.
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