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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12 (b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
IMPERIAL CREDIT COMMERCIAL MORTGAGE
INVESTMENT CORP.
(Exact Name of Registrant as Specified in its Charter)
Maryland 95-4648345
(State of Incorporation) (I.R.S. Employer Identification No.)
11601 Wilshire Boulevard, Suite 2080
Los Angeles, California 90025
(Address of Principal Executive Offices)
Securities to be registered pursuant to Section 12(b) of the Act:
None
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, par value $.0001 per share.
(Title of Class)
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IMPERIAL CREDIT COMMERCIAL MORTGAGE INVESTMENT CORP. - FORM 8-A
Item 1. Description of Registrant's Securities to be Registered.
Pages 114 to 117 under the caption "Description of Capital Stock" of
the Preliminary Prospectus dated September 12, 1997, contained in the
Registration Statement on Form S-11 (Registration No. 333-32683) under the
Securities Act of 1933, as amended, initially filed by Imperial Credit
Commercial Mortgage Investment Corp., a Maryland corporation (the "Company"),
with the Securities and Exchange Commission (the "Commission") on August 1,
1997, as amended by Amendment No. 1 thereto filed with the Commission on
September 12, 1997 (as amended, the "S-11 Registration Statement"), are
incorporated herein by reference.
Item 2. Exhibits.
1. Charter of the Company, filed with the Commission as Exhibit 3.1
to the S-11 Registration Statement, is incorporated herein by
reference.
2. Bylaws of the Company, filed with the Commission as Exhibit 3.2
to the S-11 Registration Statement, are incorporated herein by
reference.
3. Specimen of Certificate of Common Stock, par value $.0001 per
share, of the Company, filed with the Commission as Exhibit 4.1
to the S-1 Registration Statement, is incorporated herein by
reference.
4. Pages 114 to 117 under the caption "Description of Capital Stock"
of the Company's Preliminary Prospectus dated September 12, 1997,
contained in the S-11 Registration Statement, are incorporated
herein by reference.
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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.
September 16, 1997 IMPERIAL CREDIT COMMERCIAL MORTGAGE INVESTMENT CORP.
By: /s/ MARK S. KARLAN
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Mark S. Karlan
President and Chief Executive Officer
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EXHIBIT 4
DESCRIPTION OF CAPITAL STOCK
GENERAL
The Charter provides that ICCMIC may issue up to 500,000,000 shares of
capital stock, all of which shall initially be classified as Common Stock
($0.0001 par value). The Board of Directors may classify and reclassify any
unissued shares of capital stock by setting or changing in any one or more
respects the preferences, conversion or other rights, voting powers,
restrictions, limitations as to dividends, qualifications or terms or conditions
of redemption of such shares of capital stock. Upon completion of this
offering, 25,000,000 shares of Common Stock will be issued and outstanding, and
7,500,000 shares of Common Stock will be reserved for issuance upon exercise of
options, and no preferred stock will be issued and outstanding.
COMMON STOCK
All outstanding shares of Common Stock will be duly authorized, fully paid
and nonassessable upon the Closing. Subject to the preferential rights of any
other shares or series of shares of capital stock, holders of Common Stock are
entitled to receive non-cumulative dividends if and when authorized and
declared by the Board of Directors out of assets legally available therefor and
to share ratably in the assets of ICCMIC legally available for distribution to
its stockholders in the event of its liquidation, dissolution or winding-up
after payment of, or adequate provision for, all known debts and liabilities of
ICCMIC. ICCMIC intends to pay quarterly dividends.
Each outstanding share of Common Stock entitles the holder to one vote on
all matters submitted to a vote of stockholders, including the election of
directors, and, except as otherwise required by law or except as provided with
respect to any other class or series of shares of capital stock, the holders of
Common Stock will possess the exclusive voting power. There is no cumulative
voting in the election of directors, which means in all elections of directors,
each holder of Common Stock has the right to cast one vote for each share of
stock for each candidate. For a discussion of the voting rights of holders of
the Common Stock, including the provisions specifying the vote required by
security holders to take action, see "Certain Provisions of Maryland Law and of
ICCMIC's Charter and Bylaws."
No holder of any Common Stock shall have any preemptive right to subscribe
for a purchase any stock or other securities of ICCMIC other than such, if any,
as the Board of Directors, in its sole discretion, may determine.
Certain provisions of ICCMIC's Charter and Bylaws and certain provisions of
Maryland law could have the effect of delaying, deferring or preventing a change
in control of ICCMIC. See "Certain Provisions of Maryland Law of ICCMIC's
Charter and Bylaws."
PREFERRED STOCK
The Charter authorizes the Board of Directors to classify and reclassify
unissued capital stock into shares of preferred stock ("Preferred Stock") of one
or more series without the approval of the stockholders. Because the Board of
Directors has the power to establish the preferences and rights of each class or
series of Preferred Stock, the Board of Directors may afford the holders of any
series or class of Preferred Stock preferences, powers and rights, voting or
otherwise, senior to the rights of the holders of Common Stock. The Board of
Directors could authorize the issuance of Preferred Stock with terms and
conditions which could have the effect of discouraging a takeover or other
transaction which holders of some, or a majority, or the shares of Common Stock
might believe to be in their best interests or in which holders of some, or a
majority, of the shares of Common Stock might receive a premium for their shares
of Common Stock over the then market price of such shares of Common Stock. As of
the date hereof, no shares of Preferred Stock are outstanding and the Company
has no current plans to issue Preferred Stock.
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RESTRICTIONS ON TRANSFER
For ICCMIC to qualify as a REIT under the Code, it must meet certain
requirements concerning the ownership of its outstanding shares of capital
stock. Specifically, not more than 50% in value of ICCMIC's outstanding capital
stock may be owned, directly or indirectly, by five or fewer individuals (as
defined in the Code to include certain entities) during the last half of a
taxable year (other than its 1997 taxable year), and ICCMIC 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 its
1997 taxable year). See "Federal Income Tax Considerations--Requirements for
Qualification."
Because the Board of Directors believes it is essential for ICCMIC to
continue to qualify as a REIT, the Charter, subject to certain exceptions and
waivers described below, provides that no person may own, or be deemed to own by
virtue of the attribution provisions of the Code, more than 9.9% of the number
of outstanding shares of Common Stock or of any series of Preferred Stock (the
"Ownership Limitation").
Subject to certain exceptions described below, the Charter provides that
any purported transfer of shares of Common Stock or Preferred Stock (or certain
other events) that would (i) result in any person owning, directly or
indirectly, shares of Common Stock or Preferred Stock in excess of the Ownership
Limitation, (ii) result in the shares of Common Stock or Preferred Stock,
collectively, being owned by fewer than 100 persons (determined without
reference to any rules of attribution), (iii) result in ICCMIC being "closely
held" within the meaning of section 856(h) of the Code, (iv) cause ICCMIC to
own, actually or constructively, 10% or more of the ownership interests in a
tenant of the Company's real property, within the meaning of section
856(d)(2)(B) of the Code or (v) result in such shares being owned by a
disqualified organization, (each of the foregoing shall be referred to herein as
a "Prohibited Transfer Event"), shall be void ab initio as to the transfer of
that number of shares that would otherwise be beneficially owned (determined
without reference to any rules of attribution) by the transferee, and the
intended transferee shall acquire no rights in such shares of Common Stock or
Preferred Stock. For purposes of the foregoing, a "Disqualified Organization"
means (A) the United States, any State or political subdivision thereof, any
foreign government, any international organization, or any agency or
instrumentally of the foregoing, (B) any organization (other than a cooperative
described in section 521 of the Code) which is exempt from tax unless such
organization is subject to the tax imposed by section 511 of the Code and (C)
any organization described in section 1381 (a)(2)(C) of the Code.
If there is a Prohibited Transfer Event, except as described below, the
purported transferor shall cease to own any right or interest in the number of
shares that would otherwise be transferred and such shares will be designated as
"Shares-in-Trust" and transferred automatically to a trust (the "Trust")
effective on the day before the purported transfer of such shares of Common
Stock or Preferred Stock. The record holder of the shares of Common Stock or
Preferred Stock that are designated as Shares-in-Trust (the "Prohibited Owner")
will be required to submit such number of shares of Common Stock or Preferred
Stock to ICCMIC for registration in the name of the Trust. The trustee of the
Trust (the "Trustee") will be designated by ICCMIC, but will not be affiliated
with ICCMIC. The beneficiary of the Trust (the "Beneficiary") will be one or
more charitable organizations that are named by ICCMIC.
Shares-in-Trust will remain issued and outstanding shares of Common Stock
or Preferred Stock and will be entitled to the same rights and privileges as all
other shares of the same class or series. The Trustee will receive all dividends
and distributions on the Shares-in-Trust and will hold such dividends or
distributions in trust for the benefit of the Beneficiary. The Trustee will vote
all Shares-in-Trust. The Trustee will designate a permitted transferee of the
Shares-in-Trust, provided that the permitted transferee (i) purchases such
Shares-in-Trust for valuable consideration and (ii) acquires such
Shares-in-Trust without such acquisition resulting in a transfer to another
Trust.
The Prohibited Owner with respect to Shares-in-Trust will be required to
repay to the Trustee the amount of any dividends or distributions received by
the Prohibited Owner (i) that are attributable to any Shares-in-Trust and (ii)
the record date of which was on or after the date that such shares became
Shares-in-Trust. The Prohibited Owner generally will receive from the Trustee
the lesser of (i) the price per share such Prohibited Owner paid
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for the shares of Common Stock or Preferred Stock that were designated as
Shares-in-Trust (or, in the case of a gift or devise, the Market Price (as
defined below) per share on the date of such transfer) or (ii) the price per
share received by the Trustee from the sale of such Shares-in-Trust. Any amounts
received by the Trustee in excess of the amounts to be paid to the Prohibited
Owner will be distributed to the Beneficiary.
The Shares-in-Trust will be deemed to have been offered for sale to ICCMIC,
or its designee, at a price per share equal to the lesser of (i) the price per
share in the transaction that created such Shares-in-Trust (or, in the case of a
gift or devise, the Market Price per share on the date of such transfer) or (ii)
the Market Price per share on the date that ICCMIC, or its designee, accepts
such offer. ICCMIC will have the right to accept such offer for a period of
ninety days after the later of (i) the date of the purported transfer which
resulted in such Shares-in-Trust or (ii) the date ICCMIC determines in good
faith that a transfer resulting in such Shares-in-Trust occurred.
"Market Price" on any date shall mean the average of the Closing Price (as
defined below) for the five consecutive Trading Days (as defined below) ending
on such date. The "Closing Price" on any date shall mean the average of the high
bid and low asked prices in the over-the-counter market, as reported by The
Nasdaq Stock Market. "Trading Day" shall mean any day other than a Saturday, a
Sunday or a day on which banking institutions in the State of New York are
authorized or obligated by law or executive order to close.
Any person who acquires or attempts to acquire shares of Common Stock or
Preferred Stock in violation of the foregoing restrictions, or any person who
owned shares of Common Stock or Preferred Stock that were transferred to a
Trust, will be required (i) to give immediately written notice to ICCMIC of such
event and (ii) to provide to ICCMIC such other information as it may request in
order to determine the effect, if any, of such transfer on ICCMIC's status as a
REIT.
All persons who own, directly or indirectly, more than 5% (or such lower
percentages as required pursuant to regulations under the Code) of the
outstanding shares of Common Stock or Preferred Stock must, within 30 days after
January 1 of each year, provide to ICCMIC a written statement or affidavit
stating the name and address of such direct or indirect owner, the number of
shares of Common Stock or Preferred Stock owned directly or indirectly, and a
description of how such shares are held. In addition, each direct or indirect
stockholder shall provide to ICCMIC such additional information as ICCMIC may
request in order to determine the effect, if any, of such ownership on ICCMIC's
status as a REIT and to insure compliance with the Ownership Limitation.
The Ownership Limitation generally will not apply to the acquisition of
shares of Common Stock or Preferred Stock by an underwriter that participates in
a public offering of such shares. In addition, the Board of Directors, upon
receipt of a ruling from the Service or an opinion of counsel and upon such
other conditions as the Board of Directors may direct, may exempt a person from
the Ownership Limitation under certain circumstances. The foregoing restrictions
will not be removed until the Board of Directors determines that it is no longer
in the best interests of ICCMIC to attempt to qualify, or to continue to
qualify, as a REIT and there is an affirmative vote of two-thirds of all of the
votes ordinarily entitled to be cast in the election of directors, voting
together as a single class at a regular or special meeting of the stockholders
of ICCMIC.
All certificates representing shares of Common Stock or Preferred Stock
will bear a legend referring to the restrictions described above.
The Ownership Limitation could have the effect of discouraging a takeover
or other transaction in which holders of some, or a majority, of shares of
Common Stock might receive a premium for their shares of Common Stock over the
then prevailing market price or which such holders might believe to be otherwise
in their best interest.
DIVIDEND REINVESTMENT PLAN
ICCMIC may implement a dividend reinvestment plan whereby stockholders may
automatically reinvest their dividends in ICCMIC's Common Stock. Details about
any such plan would be sent to ICCMIC's stockholders following adoption thereof
by the Board of Directors.
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REPORTS TO STOCKHOLDERS
ICCMIC will furnish its stockholders with annual reports containing
information regarding the business and performance of the Company, including
audited financial statements certified by independent public accountants and
distribute quarterly reports containing unaudited financial information for each
of the first three quarters of the year.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Common Stock is U.S. Stock
Transfer Corporation.
LISTING OF THE COMMON STOCK
The Common Stock has been approved for listing on the Nasdaq National
Market, subject to official notice of issuance.
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