S-8: Initial registration statement for securities to be offered to employees pursuant to employee benefit plans
Published on May 22, 2009
As filed
with the Securities and Exchange Commission on May 22, 2009
Registration
No.
333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
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DYNEX
CAPITAL, INC.
(Exact
name of registrant as specified in its charter)
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Virginia
(State
or other jurisdiction of
incorporation
or organization)
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52-1549373
(I.R.S.
Employer
Identification
No.)
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4991
Lake Brook Drive, Suite 100
Glen
Allen, VA
(Address
of Principal Executive Offices)
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23060
(Zip
Code)
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DYNEX
CAPITAL, INC. 2004 STOCK INCENTIVE PLAN
(Full
title of the plan)
Stephen
J. Benedetti
4991
Lake Brook Drive
Suite
100
Glen
Allen, VA 23060
(804)
217-5800
(Name,
address and telephone number, including area code, of agent for
service)
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.
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Large
accelerated filer ¨
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Accelerated
filer þ
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Non-accelerated
filer ¨
(Do
not check if a smaller reporting company)
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Smaller
reporting company ¨
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The
Commission is requested to mail signed copies of all orders, notices and
communications to:
James
J. Wheaton, Esq.
Troutman
Sanders LLP
222
Central Park Avenue, Suite 2000
Virginia
Beach, VA 23462
Telephone: (757)
687-7719
Facsimile: (757)
687-1501
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CALCULATION
OF REGISTRATION FEE
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Title
of securities
to
be registered
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Amount
to be registered2
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Proposed
maximum offering price per share
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Proposed
maximum
aggregate offering price
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Amount
of registration fee
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Common
Stock1
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110,000
shares
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$8.553
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$940,500.003
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$52.48
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1 Common
Stock, $0.01 par value, offered by Dynex Capital, Inc. (the “Company”) pursuant
to outstanding options granted under the Dynex Capital, Inc. 2004 Stock
Incentive Plan (the “Plan”). In connection with the approval on May
13, 2009 by the Company’s shareholders of the Dynex Capital, Inc. 2009 Stock and
Incentive Plan, no additional awards will be granted under the
Plan.
2 Pursuant
to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities
Act”), this registration statement also covers an indeterminate number of
additional shares that may be offered and issued to prevent dilution resulting
from stock splits, stock dividends or similar transactions as provided in the
Plan.
3 Pursuant
to Rule 457(h) under the Securities Act, the proposed maximum offering price and
proposed maximum aggregate offering price of shares subject to outstanding
options are estimated solely for the purpose of calculating the registration fee
and are based on the weighted average exercise price of options granted under
the Plan outstanding as of the date of the filing of this registration
statement.
Part
I — Information Required in the Section 10(a) Prospectus
Item
1. Plan
Information.*
Item
2. Registrant Information and
Employee Plan Annual Information.*
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*
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The
information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this registration statement in accordance with
the Note to Part I of Form S-8 and Rule
428.
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Part
II — Information Required in the Registration Statement
Item
3. Incorporation of Documents
by Reference.
The Company hereby incorporates by
reference into this registration statement the following documents:
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(a)
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The
Company’s Annual Report on Form 10-K for the fiscal year ended
December 31, 2008, filed with the Securities and Exchange Commission
(the “Commission”) on March 16, 2009, and Amendment No. 1 to the Company’s
Annual Report on Form 10-K/A for the fiscal year ended December 31,
2008, filed with the Commission on March 31,
2009;
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(b)
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The
Company’s Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 2009, filed with the Commission on May 11,
2009;
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(c)
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The
Company’s Current Report on Form 8-K, filed with the Commission on April
3, 2009, the Company’s Current Report on Form 8-K, filed with the
Commission on May 15, 2009 (the “May 15 Current Report”), and Amendment
No. 1 to the May 15 Current Report filed with the Commission on May 15,
2009; and
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(d)
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The
description of the Company’s capital stock contained in the Registration
Statement on Form 8-A, filed pursuant to Section 12(b) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”) on January 17, 1989,
including any amendment or report filed for the purpose of updating such
description.
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All documents filed by the Company
subsequent to the date of this registration statement pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act and prior to the filing of a
post-effective amendment hereto which either indicates that all securities
offered hereby have been sold or deregisters all such securities then remaining
unsold, shall also be deemed to be incorporated by reference into this
registration statement and to be a part hereof from their respective dates of
filing. Any statement in this registration statement, or in a
document incorporated or deemed incorporated herein, shall be deemed to be
modified or superseded to the extent that a statement contained in a
subsequently filed document which is, or is deemed to be, incorporated by
reference herein modifies or supersedes such statement. Any statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this registration statement.
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Item
4. Description of
Securities.
Not applicable.
Item
5. Interests of Named Experts
and Counsel.
Not applicable.
Item
6. Indemnification of Directors
and Officers.
The Virginia Stock Corporation Act and
the Company’s articles of incorporation provide for indemnification of the
Company’s directors and officers in a variety of circumstances, which may
include liabilities under the Securities Act. The Company’s articles
of incorporation require indemnification of directors and officers with respect
to certain liabilities, expenses, and other amounts imposed on them by reason of
having been a director or officer, except in the case of willful misconduct or a
knowing violation of criminal law. The Company also carries insurance
on behalf of directors, officers, employees or agents which may cover
liabilities under the Securities Act.
Under the Virginia Stock Corporation
Act, a Virginia corporation may not indemnify for an adverse judgment in a suit
by or in the right of the corporation or for a judgment of liability on the
basis that personal benefit was improperly received, unless in either case a
court orders indemnification and then only for expenses. In addition,
the Virginia Stock Corporation Act permits a corporation to advance reasonable
expenses to a director or officer upon the corporation’s receipt
of:
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·
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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 company; and
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·
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a
written undertaking by the director or on the director’s behalf to repay
the amount paid or reimbursed by the corporation if it is ultimately
determined that the director did not meet the standard of
conduct.
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Insofar as the foregoing provisions
permit indemnification of directors, officers or persons controlling the Company
for liability arising under the Securities Act, the Company has been informed
that in the opinion of the Commission, this indemnification is against public
policy as expressed in the Securities Act and is therefore
unenforceable.
Item
7. Exemption from Registration
Claimed.
Not applicable.
Item
8. Exhibits.
An Exhibit Index appears at page 7
hereof.
Item
9. Undertakings.
(a) The
undersigned registrant hereby undertakes:
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(1) To file, during any period in which
offers or sales are being made, a post-effective amendment to this registration
statement:
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(i)
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To
include any prospectus required by Section 10(a)(3) of the Securities
Act;
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(ii)
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To
reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in the volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in the volume
and price represent no more than a 20% change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in
the effective registration
statement;
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(iii)
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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;
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Provided, however, that
paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to
be included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) That, for the purpose of
determining any liability under the Securities 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.
(b) The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the 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.
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(h) Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the 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.
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SIGNATURES
Pursuant to the requirements of the
Securities Act of 1933, 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 Glen Allen, Commonwealth
of Virginia, on May 21, 2009.
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Dynex
Capital, Inc.
(Registrant)
By: /s/
Stephen J. Benedetti
Stephen
J. Benedetti
Executive
Vice President, Chief Operating
Officer
and Chief Financial Officer
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POWERS OF
ATTORNEY
AND
SIGNATURES
KNOW ALL MEN BY THESE PRESENTS, that
each person whose signature appears below hereby constitutes and appoints Thomas
B. Akin and Stephen J. Benedetti, and each of them, with full power of
substitution, as his attorneys-in-fact and agents for him and in his name and on
his behalf as a director and/or officer of Dynex Capital, Inc. to prepare,
execute and file any and all amendments, including post-effective amendments, or
supplements to this registration statement on Form S-8, including any amendment
to this registration statement for the purpose of registering additional shares
in accordance with General Instruction E to Form S-8, and other documents
(including any necessary amendments thereof) which such attorneys-in-fact may
deem appropriate or necessary and to cause the same to be filed with the
Commission.
Pursuant to the requirements of the
Securities Act of 1933, this registration statement has been signed by the
following persons in the capacities and on the date indicated.
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Signature
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Title
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Date
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/s/
Thomas B. Akin
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Chairman
of the Board and
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May
21, 2009
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Thomas
B. Akin
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Chief
Executive Officer
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(Principal
Executive Officer)
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/s/
Stephen J. Benedetti
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Executive
Vice President,
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May
21, 2009
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Stephen
J. Benedetti
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Chief
Operating Officer and
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Chief
Financial Officer
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(Principal
Financial Officer)
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/s/
Jeffrey L. Childress
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Vice
President and Controller
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May
21, 2009
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Jeffrey
L. Childress
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(Principal
Accounting Officer)
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/s/
Leon A. Felman
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Director
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May 14,
2009
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Leon
A. Felman
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/s/
Barry Igdaloff
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Director
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May 14,
2009
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Barry
Igdaloff
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/s/
Daniel K. Osborne
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Director
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May 14,
2009
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Daniel
K. Osborne
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/s/
James C. Wheat, III
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Director
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May 14,
2009
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James
C. Wheat, III
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EXHIBIT
INDEX
Exhibit
No. Description
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4.1
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Dynex
Capital, Inc. 2004 Stock Incentive Plan (incorporated by reference to
Exhibit 10.1 to the Company’s Form 10-K for the fiscal year ended December
31, 2004 filed on April 14, 2005).
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4.1.1
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409A
Amendment to Dynex Capital, Inc. 2004 Stock Incentive Plan, dated December
31, 2008 (incorporated by reference to Exhibit 10.1.1 to the Company’s
Form 10-K for the fiscal year ended December 31, 2008 filed on March 16,
2009).
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5.1
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Opinion
of Troutman Sanders LLP with respect to the validity of the Common Stock,
filed herewith.
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23.1
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Consent
of Troutman Sanders LLP (contained in Exhibit 5
hereto).
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23.2
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Consent
of BDO Seidman, LLP, filed
herewith.
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24.1
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Powers
of Attorney (included on the signature page of this registration
statement).
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