10-K/A: Annual report pursuant to Section 13 and 15(d)
Published on March 31, 2009
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
10-K/A
(Amendment
No. 1)
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(Mark
One)
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þ
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ANNUAL
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
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For the
fiscal year ended December 31, 2008
or
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o
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TRANSITION
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
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For the
transition period from _______________ to _______________
Commission
file number 1-9819
DYNEX
CAPITAL, INC.
(Exact
name of registrant as specified in its charter)
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Virginia
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52-1549373
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(State
or other jurisdiction of
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(I.R.S.
Employer
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incorporation
or organization)
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Identification
No.)
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4991
Lake Brook Drive, Suite 100, Glen Allen, Virginia
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23060
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(Address
of principal executive offices)
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(Zip
Code)
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(804)
217-5800
(Registrant’s
telephone number, including area code)
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Securities
registered pursuant to Section 12(b) of the Act:
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Title of each
class
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Name of each exchange
on which registered
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Common
Stock, $.01 par value
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New
York Stock Exchange
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Series
D 9.50% Cumulative Convertible
Preferred
Stock, $.01 par value
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New
York Stock Exchange
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Securities
registered pursuant to Section 12(g) of the Act: None
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Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined in
Rule 405 of the Securities Act.
Yes o No þ
Indicate
by check mark if the registrant is not required to file reports pursuant to
Section 13 or 15(d) of the Act.
Yes o No þ
Indicate
by check mark whether the registrant (1) has filed all reports required to be
filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the registrant was required
to file such reports), and (2) has been subject to such filing requirements for
the past 90 days.
Yes þ No o
Indicate
by check mark if disclosure of delinquent filers pursuant to Item 405 of
Regulation S-K (§229.405 of this chapter) is not contained herein, and will not
be contained, to the best of registrant’s knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form 10-K
or any amendment to this Form 10-K.o
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. (Check one):
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Large
accelerated filer
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o
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Accelerated
filer
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þ
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Non-accelerated
filer
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o (Do
not check if a smaller reporting company)
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Smaller reporting
company
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o
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Indicate
by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of the Act).
Yes o No þ
As of
June 30, 2008, the aggregate market value of the voting stock held by
non-affiliates of the registrant was approximately $86,604,355 based on the
closing sales price on the New York Stock Exchange of $8.80.
Common
stock outstanding as of March 27, 2009 was 12,169,762 shares.
DOCUMENTS
INCORPORATED BY REFERENCE
Portions
of the Definitive Proxy Statement for the registrant’s 2009 annual meeting of
shareholders, expected to be filed pursuant to Regulation 14A within 120 days
from December 31, 2008, are incorporated by reference into Part
III.
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EXPLANATORY
NOTE
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This
Amendment No. 1 to the Annual Report on Form 10-K (the “Form 10-K/A”) of Dynex
Capital, Inc. (the “Company”) for the year ended December 31, 2008 is being
filed to amend Part IV, Item 15, Exhibits and Financial Statement
Schedules, to include the financial statements of Copperhead Ventures,
LLC pursuant to Rule 3-09 of the Securities and Exchange Commission’s Regulation
S-X. Item 15 is also being amended to file Exhibit 23.2, the consent
of Copperhead Ventures, LLC’s independent auditors related to their opinion
contained in this filing. In accordance with Rule 12b-15 under the
Securities Exchange Act of 1934, as amended, the text of the amended Item 15 is
set forth in its entirety herein, including those portions of the text that have
not been amended from that set forth in the original filing of the Company’s
Form 10-K for the year ended December 31, 2008. This Amendment
No. 1 does not otherwise update any information or exhibits as originally filed
and does not otherwise reflect events occurring after the original filing date
of our 2008 Annual Report.
This Form
10-K/A has been signed as of a current date and all certifications of the
Company’s Chief Executive Officer and Chief Financial Officer are given as of a
current date. Accordingly, this Form 10-K/A should be read in
conjunction with our filings made with the SEC subsequent to the filing of the
Form 10-K for the year ended December 31, 2008, including any amendments to
those filings.
1
PART
IV
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ITEM
15.
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EXHIBITS,
FINANCIAL STATEMENT SCHEDULES
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(a) Documents filed as part of
this report:
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1.
and 2.
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Financial
Statements and Schedules
The
information required by this section of Item 15 is set forth in the
Consolidated Financial Statements and Reports of Independent Registered
Public Accounting Firm beginning at page F-1 of this annual report on Form
10-K. The index to the Financial Statements is set forth at
page F-2 of this annual report on Form
10-K.
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3.
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Exhibits
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Number
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Exhibit
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3.1
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Restated
Articles of Incorporation, effective July 9, 2008 (incorporated herein by
reference to Exhibit 3.1 to Dynex’s Current Report on Form 8-K filed July
11, 2008).
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3.2
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Amended
and Restated Bylaws, effective March 26, 2008 (incorporated herein by
reference to Exhibit 3.2 to Dynex’s Current Report on Form 8-K filed April
1, 2008).
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8.1
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Opinion
of Troutman Sanders, LLP with respect to certain tax matters (incorporated
herein by reference to Exhibit 8.1 to Dynex’s Annual Report on Form 10-K
for the year ended December 31, 2008).
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10.1*
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Dynex
Capital, Inc. 2004 Stock Incentive Plan (incorporated herein by reference
to Exhibit 10.1 to Dynex’s Annual Report on Form 10-K for the year ended
December 31, 2004).
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10.1.1*
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409A
Amendment to Dynex Capital, Inc. 2004 Stock Incentive Plan, dated December
31, 2008 (incorporated herein by reference to Exhibit 10.1.1 to Dynex’s
Annual Report on Form 10-K for the year ended December 31,
2008).
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10.2*
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Form
of Stock Option Agreement for Non-Employee Directors under the Dynex
Capital, Inc. 2004 Stock Incentive Plan (incorporated herein by reference
to Exhibit 10.2 to Dynex’s Quarterly Report on Form 10-Q for the quarter
ended June 30, 2005).
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10.3*
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Form
of Stock Appreciation Rights Agreement for Senior Executives under the
Dynex Capital, Inc. 2004 Stock Incentive Plan (incorporated herein by
reference to Exhibit 10.3 to Dynex’s Quarterly Report on Form 10-Q for the
quarter ended June 30, 2005).
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10.4
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Limited
Liability Company Agreement of Copperhead Ventures, LLC dated September 8,
2006 (portions of this exhibit have been omitted pursuant to a request for
confidential treatment) (incorporated herein by reference to Exhibit 10.1
to Dynex’s Quarterly Report on Form 10-Q for the quarter ended September
30, 2006).
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2
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Number
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Exhibit
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10.5*
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Severance
Agreement between Dynex Capital, Inc. and Stephen J. Benedetti dated June
11, 2004 (incorporated herein by reference to Exhibit 10.5 to Dynex’s
Annual Report on Form 10-K for the year ended December 31,
2007).
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10.5.1*
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409A
Amendment to Severance Agreement between Dynex Capital, Inc. and Stephen
J. Benedetti, dated December 31, 2008 (incorporated herein by reference to
Exhibit 10.5.1 to Dynex’s Annual Report on Form 10-K for the year ended
December 31, 2008).
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10.6*
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Employment
Agreement, dated as of March 31, 2008, between Dynex Capital, Inc. and
Thomas B. Akin (incorporated herein by reference to Exhibit 10.6 to
Dynex’s Current Report on Form 8-K filed April 4, 2008).
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10.7*
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Dynex
Capital, Inc. 401(k) Overflow Plan, effective July 1, 1997 (incorporated
herein by reference to Exhibit 10.7 to Dynex’s Quarterly Report on Form
10-Q for the quarter ended March 31, 2008).
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10.8
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Sales
Agreement, dated as of March 16, 2009, between Dynex Capital, Inc. and
Cantor Fitzgerald & Co. (incorporated herein by reference to Exhibit
10.8 to Dynex’s Annual Report on Form 10-K for the year ended December 31,
2008).
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21.1
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List
of consolidated entities of Dynex (incorporated herein by reference to
Exhibit 21.1 to Dynex’s Annual Report on Form 10-K for the year ended
December 31, 2008).
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23.1
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Consent
of BDO Seidman, LLP (incorporated herein by reference to Exhibit 23.1 to
Dynex’s Annual Report on Form 10-K for the year ended December 31,
2008).
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23.2
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Consent
of BDO Seidman, LLP (filed herewith).
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31.1
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Certification
of principal executive officer pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002 (filed herewith).
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31.2
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Certification
of principal financial officer pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002 (filed herewith).
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32.1
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Certification
of principal executive officer and principal financial officer pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002 (filed
herewith).
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99.1
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Financial
Statements of Copperhead Ventures, LLC and the report of independent
registered public accounting firm thereon (filed herewith).
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________________________________________
* Denotes management
contract.
(b) Exhibits: See
Item 15(a)(3) above.
(c) Financial Statement
Schedules: None.
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SIGNATURES
Pursuant
to the requirements of Section 13 or 15(d) of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned, thereunto duly authorized.
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DYNEX CAPITAL, INC.
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(Registrant)
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March
31, 2009
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/s/
Stephen J. Benedetti
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Stephen
J. Benedetti, Executive Vice President, Chief Operating Officer and Chief
Financial Officer
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