S-8: Initial registration statement for securities to be offered to employees pursuant to employee benefit plans
Published on June 21, 2000
As filed with the Securities and Exchange Commission on June 21, 2000
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement
Under the Securities Act of 1933
AMERICA FIRST MORTGAGE INVESTMENTS, INC.
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(Exact name of registrant as specified in its charter)
Maryland 13-3974868
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
399 Park Avenue, 36th Floor,
New York, New York 10022
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(Address of principal executive offices) (Zip code)
AMERICA FIRST MORTGAGE INVESTMENTS, INC.
1997 STOCK OPTION PLAN
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(Full title of the plan)
Stewart Zimmerman
President
America First Mortgage Investments, Inc.
399 Park Avenue, 36th Floor,
New York, New York 10022 (212) 935-8760
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(Name and address of agent for service) (Telephone number, including area
code, of agent for service)
Copies to:
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Steven P. Amen, Esq.
Kutak Rock LLP
1650 Farnam Street
Omaha, Nebraska 68102
(402) 346-6000
Calculation of Registration Fee
(1) Estimated pursuant to Rule 457(h) and (c) solely for purposes of
calculating the registration fee. The price per share is estimated to be
$5.25 based on the average of the high ($5.25) and low ($5.25) sale prices for
the Common Stock in the New York Stock Exchange on June 19, 2000, as reported
in the Wall Street Journal on June 20, 2000, 1999.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, previously filed with the Securities and Exchange
Commission by America First Mortgage Investments, Inc. (the "Registrant")
pursuant to Securities Exchange Act of 1934, as amended (the "Exchange Act"),
are incorporated herein by reference:
(a) the Registrant's Annual Report on Form 10-K for the year ended December
31, 1999;
(b) the Registrant's Quarterly Report on Form 10-Q for the quarter ended March
31, 2000;
(c) all other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by the
Annual Report on Form 10-K referred to in (a) above; and
(d) the description of the Registrant's Common Stock contained in Amendment
No. 1 to the Registrant's Registration Statement on Form S-4 (File No.
333-46179) filed with the Securities and Exchange Commission on February 13,
1998.
Each document filed by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment that indicates
that all securities offered herein have been sold or that deregisters all such
securities then remaining unsold shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the
respective date of filing such documents.
Any statement contained in a document 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
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
superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Under the Maryland General Corporation Law (the "MGCL"), each director of the
Registrant is required to perform his duties as a director in good faith, in a
manner he believes to be in the best interest of the Registrant and with the
care than an ordinary prudent person in a like position would use under
similar circumstances. Acts or omissions of a director not amounting to a
violation of this statutory standard may not be the basis for imposition of
any liability of the director, either for legal or equitable relief. The MGCL
permits a Maryland corporation to include in its charter a provision limiting
the liability of its directors and officers to the corporation and its
stockholders for money damages except for liability resulting from (i) actual
receipt of an improper benefit or profit in money, property or services or
(ii) active and deliberate dishonesty established by a final judgment as being
material to the cause of action. The Amended and Restated Articles of
Incorporation (the "Articles") contain such a provision which eliminates such
liability to the maximum extent permitted by the MGCL. The Articles (i)
require the Registrant, to the maximum extent permitted by Maryland law, to
indemnify and to pay or reimburse reasonable expenses in advance of final
disposition of a proceeding to its directors and officers, whether serving the
Registrant, or at its request, any other entity and (ii) authorize the
Registrant, to the maximum extent permitted by Maryland law, to indemnify and
to pay or reimburse reasonable expenses in advance of final disposition of a
proceeding to other employees and agents, whether serving the Registrant, or
at its request, any other entity. The MGCL requires a corporation (unless its
charter provides otherwise, which the Registrant's Articles do not) to
indemnify a director or officer who has been successful, on the merits or
otherwise, in the defense of any proceeding to which he is made a party by
reason of his service in that capacity.
The MGCL permits a corporation to indemnify its present and former directors
and officers, among others, against judgments, penalties, fines, settlements
and reasonable expenses actually incurred by them in connection with any
proceeding to which they may be made a party by reason of their service in
those or other capacities unless it is established that (a) the act or
omission of the director or officer was material to the matter giving rise to
the proceeding and (i) was committed in bad faith or (ii) was the result of
active and deliberate dishonesty, (b) the director or officer actually
received an improper personal benefit in money, property or services or (c) in
the case of any criminal proceeding, the director or officer had reasonable
cause to believe that the act or omission was unlawful. However, a Maryland
corporation may not indemnify for an adverse judgment in a suit by or in the
right of the corporation, or in a suit claiming improper benefit, except for
expenses ordered by a court. In addition, the MGCL permits a corporation to
advance reasonable expenses to a director or officer upon the corporation's
receipt of (a) 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 as authorized by the Bylaws and (b) a
written statement by or on his behalf to repay the amount paid or reimbursed
by the corporation if it shall ultimately be determined that the standard of
conduct was not met.
Stewart Zimmerman, the President and Chief Executive Officer of the
Registrant, William Gorin, the Executive Vice President and Secretary of the
Registrant, and Ronald Freydberg, the Senior Vice President of the Registrant,
are each employed by America First Mortgage Advisor Corporation, an advisor to
the Registrant (the "Advisor"). Under their employment agreements with the
Advisor, the Advisor is required to indemnify such officers to the fullest
extent permitted by New York law in effect as of the date of each respective
employment contract against all costs, expenses, liabilities and losses
(including, without limitation, attorneys' fees, judgments, fines, penalties,
ERISA excise taxes and amounts paid in settlement) reasonably incurred by such
officers in connection with any action, suit or proceeding, whether civil,
criminal, administrative or investigative, in which such officer is made, or
threatened to be made, a party to, or a witness in, such action, suit or
proceeding by reason of the fact that he is or was an officer, director or
employee of the Advisor, as the case may be, or is or was serving as an
officer, director, member, employee, trustee or agent of any other entity
(including the Registrant) at the request of the Advisor.
Section 722 of the New York Business Corporation Law ("NYBCL") provides that a
corporation may indemnify a director or officer of the corporation under
certain circumstances.
A director or officer of the corporation who is made, or is threatened to be
made, a party to an action or proceeding other than one by or in the right of
the corporation to procure a judgment in its favor, may be indemnified by the
corporation against judgments, fines, amounts paid in settlement and
reasonable expenses (including attorney's fees actually and necessarily
incurred as a result of such action or proceeding, or any appeal therein).
Such director or officer must have acted in good faith and for a purpose which
he reasonably believed to be in the best interests of the corporation in order
to be indemnified. Additionally, in order to be indemnified in a criminal
action or proceeding as described in this paragraph, such director or officer
must have had no reasonable cause to believe that his conduct was unlawful.
A corporation may also indemnify a director or officer of the corporation who
is made, or threatened to be made, a party to an action by or in the right of
the corporation to procure a judgment in its favor, against amounts paid in
settlement and reasonable expenses (including attorney's fees actually and
necessarily incurred by him in connection with the defense or settlement of
such action) or in connection with an appeal therein. In order to be
indemnified in such actions or proceedings, the director or officer must have
acted in good faith, for a purpose he reasonably believed to be in the best
interests of the corporation. However, a director or officer may not be
indemnified if (1) a threatened action, or a pending action is settled or
otherwise disposed of, or (2) such officer or director is adjudged liable to
the corporation, unless a court of competent jurisdiction determines that, in
view of all the circumstances of the case, the director or officer is fairly
and reasonably entitled to indemnity for such portion of the settlement amount
and expenses as the court deems proper.
Under the NYBCL, the termination of any such civil or criminal action or
proceeding by judgment, settlement, conviction or upon a plea of nolo
contendere, or its equivalent, does not in itself create a presumption that
any such director or officer did not act in good faith, for a purpose which he
reasonably believed to be in the best interests of the corporation or that he
had reasonable cause to believe that his conduct was unlawful.
Additionally, the directors and officers of the Registrant may be indemnified
pursuant to the terms of a Directors and Officers Liability insurance policy
maintained by the parent company of the Advisor.
To the extent that the foregoing provisions concerning indemnification apply
to actions arising under the Securities Act, the Registrant has been advised
that, in the opinion of the Securities and Exchange Commission, such
provisions are contrary to public policy and therefore are not enforceable.
Item 7. Exemption from Registration Claimed.
Not Applicable
Item 8. Exhibits.
The following is a complete list of exhibits filed as part of this
Registration Statement. Exhibit numbers correspond to the numbers in the
Exhibit Table of Item 601 of Regulation S-K.
Exhibit Number Description
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4(a) Specimen of Certificate of the Registrant's Common Stock, par
value $0.01 per share (incorporated by reference to Exhibit
4.1 of the Registrant's Registration Statement on Form S-4
(Commission file No. 333-46179) dated February 12, 1998)
4(b) The Registrant's Amended and Restated 1997 Stock Option Plan
(incorporated by reference to Exhibit 10.5 of the Registrant's
Annual Report on Form 10-K for the year ended December 31, 1999
(Commission file No. 001-13991))
5 Opinion of Kutak Rock LLP
23(a) Consent of Kutak Rock LLP (contained in its opinion filed as
Exhibit 5)
23(b) Consent of PricewaterhouseCoopers LLP
Item 9. Undertakings
The undersigned Registrant hereby undertakes:
(a)(l) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement to include any
material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement;
(2) That, for the purpose of determining any liability under the Securities
Act of 1933 (the "Act"), 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; and
(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) That, for purposes of determining any liability under the Act, each filing
of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
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.
(h) That, insofar as indemnification for liabilities arising under the Act may
be permitted to directors, officers and controlling persons of the Registrant
as described in Item 6 hereof 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 director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with
the securities being registered, 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, as amended, 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 New York, State of New York, on June
19, 2000.
AMERICA FIRST MORTAGE INVESTMENTS, INC.
By /s/ Stewart Zimmerman
Stewart Zimmerman,
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities indicated as of June 19, 2000.
Signature Title
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/s/ Stewart Zimmerman President and Chief Executive Officer
Stewart Zimmerman (principal executive officer) and Director
/s/ Gary N. Thompson Chief Financial Officer and Treasurer
Gary N. Thompson (principal financial officer and principal
accounting officer)
/s/ Michael B. Yanney
Michael B. Yanney Director, Chairman of the Board
/s/ Michael L. Dahir
Michael L. Dahir Director
/s/ George Janzen
George Janzen Director
/s/ George H. Krauss Director
George H. Krauss
/s/ Gregor Medinger
Gregor Medinger Director
/s/ W. David Scott
W. David Scott Director
EXHIBIT INDEX
Exhibit Number Description
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4(a) Specimen of Certificate of the Registrant's Common Stock, par
value $0.01 per share (incorporated by reference to Exhibit
4.1 of the Registrant's Registration Statement on Form S-4
(Commission file No. 333-46179) dated February 12, 1998)
4(b) The Registrant's Amended and Restated 1997 Stock Option Plan
(incorporated by reference to Exhibit 10.5 of the Registrant's
Annual Report on Form 10-K for the year ended December 31,
1999 (Commission file No. 001-13991))
5 Opinion of Kutak Rock LLP
23(a) Consent of Kutak Rock LLP (contained in its opinion filed as
Exhibit 5)
23(b) Consent of PricewaterhouseCoopers LLP
EXHIBIT 5
OPINION OF KUTAK ROCK LLP
June 19, 2000
Board of Directors
America First Mortgage Investments, Inc.
36th Floor
399 Park Avenue
New York, NY 10022
Ladies and Gentlemen:
We have acted as counsel to America First Mortgage Investments, Inc., a
Maryland corporation (the "Company") in connection with the filing of a
registration statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Act"). The Registration Statement
relates to 1,000,000 shares of the Company's common stock, par value $.01 per
share (the "Common Stock"), issuable pursuant to the exercise of options which
may be granted to directors, officers and employees of the Company or certain
of its affiliates under the terms of the Company's Amended and Restated 1997
Stock Option Plan (the "Plan"). In rendering this opinion, we have reviewed
such documents and made such examinations of law as we deemed necessary for
purposes hereof. Based on, and subject to the foregoing, it is our opinion
that the shares of Common Stock, when issued and paid for in accordance with
the Plan, will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not admit that we come
within the category of persons whose consent is required under Section 7 of
the Act or the rules and regulations of the Securities and Exchange Commission
thereunder.
Sincerely,
/s/ KUTAK ROCK LLP
KUTAK ROCK LLP
EXHIBIT 23(b)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 25, 2000, relating to the
financial statements of America First Mortgage Investments, Inc. (the
"Company"), which appears in the Company's Annual Report on Form 10-K for the
year ended December 31, 1999.
/s/ PricewaterhouseCoopers LLP
New York, New York
June 19, 2000