SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-A/A
(AMENDMENT NO. 1)
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) (IRS Employer Identification No.)
11601 Wilshire Boulevard., Suite 2080
Los Angeles, California 90025
(Address of principal executive offices) (Zip Code)
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If this form relates to the If this form relates to the
registration of a class of securities registration of a class of securities
pursuant to Section 12(b) of the pursuant to Section 12(g) of the
Exchange Act and is effective Exchange Act and is effective
pursuant to General Instruction pursuant to General Instruction
A.(c), please check the following A.(d), please check the following
box. [ ] box. [X]
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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:
Preferred Share Purchase Rights
(Title of Class)
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The undersigned registrant hereby amends and restates Items 1 and 2 of
its Registration Statement on Form 8-A (File No. 0-23089), filed with the
Securities and Exchange Commission on September 22, 1998 (as amended, the "Form
8-A") relating to the Rights Agreement, dated as of September 21, 1998 (the
"Rights Agreement"), between Imperial Credit Commercial Mortgage Investment
Corp. (the "Company") and U.S. Stock Transfer Corporation, as Rights Agent (the
"Rights Agent"). The purpose of this amendment is to report the First Amendment
to the Rights Agreement, dated as of July 22, 1999 (the "Amendment"). The
Amendment was entered into simultaneously with the execution and delivery of the
Merger Agreement, dated as of July 22, 1999, by and among the Company, Imperial
Credit Industries Inc., a California corporation ("ICII") and ICCMIC Acquisition
Corp. ("Merger Sub"), a Maryland corporation and wholly owned subsidiary of ICII
(the "ICII Merger Agreement").
ITEM 1. DESCRIPTION OF SECURITIES TO BE REGISTERED.
On September 18, 1998, the Board of Directors of the Company declared a
dividend of one preferred share purchase right (a "Right") for each outstanding
share of common stock, par value $0.0001 per share, of the Company (the "Common
Shares"). The dividend was paid on September 21, 1998 (the "Record Date") to the
stockholders of record at the close of business on that date. The description
and terms of the Rights are set forth in the Rights Agreement.
Purchase Price. Each Right entitles the registered holder to purchase
from the Company one one-hundredth of a share of Series A Junior Participating
Preferred Stock of the Company, par value $0.0001 per share (the "Preferred
Shares"), at a price of $40 per one one-hundredth of a Preferred Share (the
"Purchase Price"), subject to adjustment.
Flip-In.* In the event that any person or group of affiliated or
associated persons (other than (a) the Company, (b) any subsidiary of the
Company, (c) any employee benefit plan of the Company or any subsidiary of the
Company or (d) any entity holding Common Shares for or pursuant to the terms of
any such plan) acquires beneficial ownership of 10% or more of the outstanding
Common Shares (an "Acquiring Person") (with exceptions for persons who
beneficially own 10% or more of the outstanding Common Shares as of the date of
the Agreement or who beneficially own 10% or more as a result of the Company's
acquisition of Common Shares), each holder of a Right, other than Rights
beneficially owned by the Acquiring Person (which will thereafter be void), will
thereafter have the right to receive upon exercise that number of Common Shares
having a market value of two times the exercise price of the Right.
Flip-Over.* If the Company is acquired in a merger or other business
combination transaction or 50% or more of its consolidated assets or earning
power are sold after a person or group has become an Acquiring Person, each
holder of a Right (other than Rights
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* The descriptions of the Rights Agreement provisions in the asterisked sections
are given before the effect of the Amendment. See the description of the First
Amendment to the Rights Agreement.
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beneficially owned by Acquiring Person, which will be void) will thereafter have
the right to receive that number of shares of common stock of the acquiring
company which at the time of such transaction will have a market value of two
times the exercise price of the Right.
Transfer and Detachment.* Until the earlier of (i) 10 days following a
public announcement that a person or group of affiliated or associated persons
have acquired beneficial ownership of 10% or more of the outstanding Common
Shares; or (ii) 10 business days (or such later date as may be determined by
action of the Board of Directors of the Company prior to such time as any person
or group of affiliated persons becomes an Acquiring Person) following the
commencement of, or announcement of an intention to make, a tender offer or
exchange offer the consummation of which would result in the beneficial
ownership by a person or group of 10% or more of the outstanding Common Shares
(the earlier of such dates being the "Distribution Date"), the Rights will be
represented, with respect to any of the Common Share certificates outstanding as
of the Record Date, by such Common Share certificate with a copy of this Summary
of Rights attached thereto. Until the Distribution Date (or earlier redemption
or expiration of the Rights), the Rights will be transferred with and only with
the Common Shares, and transfer of those certificates will also constitute
transfer of these Rights.
As soon as practicable following the Distribution Date, separate
certificates evidencing the Rights ("Right Certificates") will be mailed to
holders of record of the Common Shares as of the close of business on the
Distribution Date and such separate Right Certificates alone will thereafter
evidence the Rights.
Exercisability.* The Rights are not exercisable until the Distribution
Date. The Rights will expire on September 21, 2008 (the "Final Expiration
Date"), unless the Final Expiration Date is extended or unless the Rights are
earlier redeemed or exchanged by the Company, in each case, as described below.
Adjustments. The Purchase Price payable, and the number of Preferred
Shares or other securities or property issuable, upon exercise of the Rights are
subject to adjustment from time to time to prevent dilution in the event of
stock dividends, stock splits, reclassifications, or certain distributions with
respect to the Preferred Shares. The number of outstanding Rights and the number
of one one-hundredths of a Preferred Share issuable upon exercise of each Right
are also subject to adjustment if, prior to the Distribution Date, there is a
stock split of the Common Shares or a stock dividend on the Common Shares
payable in Common Shares or subdivisions, consolidations or combinations of the
Common Shares. With certain exceptions, no adjustment in the Purchase Price will
be required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional Preferred Shares will be issued (other than
fractions which are integral multiples of one one-hundredth of a Preferred
Share, which may, at the election of the Company, be evidenced by depositary
receipts) and, in lieu thereof, an
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* The descriptions of the Rights Agreement provisions in the asterisked sections
are given before the effect of the Amendment. See the description of the First
Amendment to the Rights Agreement.
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adjustment in cash will be made based on the market price of the Preferred
Shares on the last trading day prior to the date of exercise.
Preferred Shares. Preferred Shares purchasable upon exercise of the
Rights will not be redeemable. Each Preferred Share will be entitled to a
minimum preferential quarterly dividend payment of $1 per share but will be
entitled to an aggregate dividend of 100 times the dividend declared per Common
Share. In the event of liquidation, the holders of the Preferred Shares will be
entitled to a minimum preferential liquidation payment of $100 per share but
will be entitled to an aggregate payment of 100 times the payment made per
Common Share. Each Preferred Share will have 100 votes, voting together with the
Common Shares. Finally, in the event of any merger, consolidation or other
transaction in which Common Shares are exchanged, each Preferred Share will be
entitled to receive 100 times the amount received per Common Share. These rights
are protected by customary antidilution provisions.
The value of the one one-hundredth interest in a Preferred Share
purchasable upon exercise of each Right should, because of the nature of the
Preferred Shares' dividend, liquidation and voting rights, approximate the value
of one Common Share.
Exchange.* At any time after any person or group becomes an Acquiring
Person, and prior to the acquisition by such person or group of 50% or more of
the outstanding Common Shares, the Board of Directors of the Company may
exchange the Rights (other than Rights owned by the Acquiring Person, which will
have become void), in whole or in part, at an exchange ratio of one Common
Share, or one one-hundredth of a Preferred Share (subject to adjustment).
Redemption.* At any time prior to any person or group becoming an
Acquiring Person, the Board of Directors of the Company may redeem the Rights in
whole, but not in part, at a price of $0.0001 per Right (the "Redemption
Price"). The redemption of the Rights may be made effective at such time on such
basis with such conditions as the Board of Directors in its sole discretion may
establish. Immediately upon any redemption of the Rights, the right to exercise
the Rights will terminate and the only right of the holders of Rights will be to
receive the Redemption Price.
Amendments.* The terms of the Rights may be amended by the Board of
Directors of the Company without the consent of the holders of the Rights,
except that from and after such time as any person or group of affiliated or
associated persons becomes an Acquiring Person no such amendment may adversely
affect the interests of the holders of the Rights.
Rights and Holders. Until a Right is exercised, the holder thereof, as
such, will have no rights as a stockholder of the Company, including, without
limitation, the right to vote or to receive dividends.
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* The descriptions of the Rights Agreement provisions in the asterisked sections
are given before the effect of the Amendment. See the description of the First
Amendment to the Rights Agreement.
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Anti-Takeover Effects. The Rights have certain anti-takeover effects.
The Rights will cause substantial dilution to a person or group that attempts to
acquire the Company on terms not approved by the Company's Board of Directors.
The Rights should not interfere with any merger or other business combination
approved by the Board of Directors since the Rights may be redeemed by the
Company at the Redemption Price prior to the time that a person or group has
acquired beneficial ownership of 10% or more of the Common Shares.
The Rights Agreement specifying the terms of the Rights and the press
release announcing the declaration of the Rights are attached hereto as exhibits
and are incorporated herein by reference. The foregoing summary of the Rights
Agreement is qualified in its entirety by reference to the full text of such
exhibit.
FIRST AMENDMENT TO THE RIGHTS AGREEMENT. The Amendment provides, among
other things, that ICII, will not be deemed to be an Acquiring Person by virtue
of the approval, execution or delivery of the ICII Merger Agreement, or by
virtue of the merger of Merger Sub with and into ICCMIC (the "ICII Merger"). In
addition, the Amendment provides that neither a Share Acquisition Date or a
Distribution Date will be deemed to occur as a result of the approval, execution
or delivery of the ICII Merger Agreement or the commencement or consummation of
the ICII Merger.
The Amendment also amends the Rights Agreement to provide that the
Rights shall expire immediately prior to the effective time of the ICII Merger.
The Amendment is attached hereto as an exhibit and is incorporated
herein by reference. The foregoing summary of the Amendment is qualified in its
entirety by reference to the full text of such exhibit.
ITEM 2. EXHIBITS.
1 Rights Agreement, dated as of September 21, 1998, between
Imperial Credit Commercial Mortgage Investment Corp., a
Maryland corporation, and U.S. Stock Transfer Corporation, as
Rights Agent (incorporated by reference to Exhibit 4.2 of the
Company's Current Report on Form 8-K, filed with the
Securities and Exchange Commission on September 22, 1998).*
2 Press Release, dated September 21, 1999 (incorporated by
reference to Exhibit 99.2 of the Company's Current Report on
Form 8-K, filed with the Securities and Exchange Commission
on September 21, 1998).*
3 Amendment, dated as of July 22, 1999, to the Rights
Agreement, dated as of September 21, 1998, between Imperial
Credit Commercial Mortgage Investment Corp., a Maryland
corporation, and U.S. Stock Transfer Corporation, as Rights
Agent.
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* Previously filed.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this amendment to the registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized.
Dated: July 29, 1999
IMPERIAL CREDIT COMMERCIAL
MORTGAGE INVESTMENT CORP.
By: /s/ Norbert M. Seifert
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Name: Norbert M. Seifert
Title: Senior Vice President and
General Counsel
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EXHIBIT LIST
Exhibit
No. Description
1 Rights Agreement, dated as of September 21, 1998, between
Imperial Credit Commercial Mortgage Investment Corp., a
Maryland corporation, and U.S. Stock Transfer Corporation, as
Rights Agent (incorporated by reference to Exhibit 4.2 of the
Company's Current Report on Form 8-K, filed with the
Securities and Exchange Commission on September 22, 1998).*
2 Press Release, dated September 21, 1999 (incorporated by
reference to Exhibit 99.2 of the Company's Current Report on
Form 8-K, filed with the Securities and Exchange Commission
on September 21, 1998).*
3 Amendment, dated as of July 22, 1999, to the Rights
Agreement, dated as of September 21, 1998, between Imperial
Credit Commercial Mortgage Investment Corp., a Maryland
corporation, and U.S. Stock Transfer Corporation, as Rights
Agent.
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* Previously filed.
EXHIBIT 3
FIRST AMENDMENT TO RIGHTS AGREEMENT
THIS FIRST AMENDMENT (the "Amendment"), dated as of July 22, 1999, to
the Rights Agreement (the "Rights Agreement"), dated as of September 21, 1998,
between Imperial Credit Commercial Mortgage Investment Corp., a Maryland
corporation (the "Company"), and U.S. Stock Transfer Corporation, as Rights
Agent.
WHEREAS, the Company intends to enter into a Merger Agreement, dated as
of July 22, 1999, with Imperial Credit Industries, Inc. ("ICII") and Merger Sub
("Merger Sub") (as it may be amended from time to time, the "ICII Merger
Agreement"), pursuant to which Merger Sub will merge with and into the Company
(the "ICII Merger") upon the terms and subject to the conditions set forth
therein;
WHEREAS, the Board of Directors of the Company believes that it is
advisable and in the best interests of the Company and its stockholders that the
transactions contemplated by the ICII Merger Agreement be consummated on the
terms set forth therein;
WHEREAS, the Board of Directors of the Company believes that it is in
the best interests of the Company and its stockholders that the Rights Agreement
be amended as set forth herein; and
WHEREAS, Section 27 of the Rights Agreement authorizes the Board of
Directors of the Company and the Rights Agent to adopt the proposed amendment
without the approval of the holders of the Company's Right Certificates;
NOW, THEREFORE, in consideration of the recitals (which are deemed to
be a part of this Amendment) and agreements contained herein, the parties hereto
agree to amend the Rights Agreement as follows:
1. Section l(a) of the Rights Agreement is hereby amended by adding the
following sentences at the end thereof:
Neither ICII nor any other Person, shall be deemed to be an
Acquiring Person by virtue of the Merger Agreement, dated as
of July 22, 1999, by and among the Company, ICII and Merger
Sub (the "ICII Merger Agreement"), or by virtue of the merger
of Merger Sub with and into the Company (the "ICII Merger").
2. Section l(u) of the Rights Agreement is hereby modified and amended by adding
the following sentence at the end thereof:
Notwithstanding anything in this Agreement to the Contrary, a
Shares Acquisition Date shall not be deemed to have occurred
solely as a result of (i) the approval, execution or delivery
of the ICII Merger Agreement or (ii) the commencement or
consummation of the ICII Merger.
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3. Section 3(a) of the Rights Agreement is hereby modified and amended by adding
the following sentence at the end thereof:
Notwithstanding anything in this Agreement to the contrary, a
Distribution Date shall not be deemed to have occurred solely
as a result of (i) the approval, execution or delivery of the
ICII Merger Agreement, (ii) the commencement or consummation
of the ICII Merger or (iii) the announcement or disclosure of
any of the foregoing.
4. Section 7(a) of the Rights Agreement is hereby modified and amended by
deleting the word "or" immediately prior to clause (iii) thereof, and by
inserting the following immediately following clause (iii) and prior to the
period at the end of such sentence:
, or (iv) the time immediately prior to the Effective Time (as
defined in the ICII Merger Agreement).
5.Section 13 of the Rights Agreement is hereby amended
by adding the following sentence at the end thereof:
Notwithstanding anything in this Agreement to the contrary,
none of (i) the approval, execution or delivery of the ICII
Merger Agreement, or (ii) the commencement or consummation of
the ICII Merger, shall be deemed to be events of the type
described in the first sentence of this Section 13 and shall
not cause the Rights to be adjusted or exercisable in
accordance with, or any other action to be taken or obligation
to arise pursuant to, this Section 13.
6.Section 15 of the Rights Agreement is hereby modified and
amended by adding the following sentence at the end thereof:
Nothing in this Agreement shall be construed to give any
holder of Rights or any other Person any legal or equitable
rights, remedy or claim under this Agreement in connection
with (i) the approval, execution or delivery of the ICII
Merger Agreement or (ii) the commencement or consummation of
the ICII Merger.
7.Section 25 of the Rights Agreement is hereby modified and
amended by adding a new section (c) at the end thereof:
(c) Notwithstanding anything in this Agreement to the contrary,
there is no right to notice under this Agreement in connection
with (i) the approval, execution or delivery of the ICII
Merger Agreement or (ii) the commencement or consummation of
the ICII Merger.
8. Section 29 of the Rights Agreement is hereby modified and
amended by adding the following sentence at the end thereof:
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Nothing in this Agreement shall be construed to give any
holder of Rights or any other Person any legal or equitable
rights, remedies or claims under this Agreement by virtue of
(i) the approval, execution or delivery of the ICII Merger
Agreement or (ii) the commencement or consummation of the ICII
Merger.
9. Capitalized terms used but not defined herein shall have the meaning assigned
to such terms in the Rights Agreement.
10. Except as expressly amended hereby, the Rights Agreement remains in full
force and effect.
11. This Amendment shall be deemed to be a contract made under the laws of the
State of Maryland, and for all purposes shall be governed by and construed in
accordance with the laws of such State applicable to contracts made and
performed entirely within such State.
12. If any term, provision, covenant or restriction of this Amendment is held by
a court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the other terms, provisions, covenants and restrictions of this
Amendment, and of the Rights Agreement, shall remain in full force and effect
and shall in no way be affected, impaired or invalidated.
13. This Amendment shall not be amended or modified in any manner unless such
amendment or modification is in writing and is executed by each of the parties
hereto.
14. This Amendment may be executed in any number of counterparts and each of
such counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
IMPERIAL CREDIT COMMERCIAL
MORTGAGE INVESTMENT CORP.
Attest:
By /s/ Norbert Seifert By /s/ Mark Karlan
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Name: Norbert Seifert Name: Mark Karlan
Title: Senior V.P. and General Counsel Title: President and CEO
U.S. STOCK TRANSFER CORPORATION
Attest:
By /s/ Enrique Artaza By /s/ Richard C. Brown
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Name: Enrique Artaza Name: Richard C. Brown
Title: Senior Vice President Title: Vice President
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