As filed with the Securities and Exchange Commission on June 17, 2002
Registration No. ______________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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REDWOOD TRUST, INC.
(Exact Name of registrant as specified in its charter)
MARYLAND 68-0329422
------------------------------- ----------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) I.D. Number)
591 Redwood Highway, Suite 3100
Mill Valley, CA 94941
(415) 389-7373
(Address of Principal Executive offices)
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Redwood Trust, Inc.
Executive Deferred Compensation Plan
(Full title of the Plan)
-----------------------------
George E. Bull, III
Chairman of the Board and Chief Executive Officer
REDWOOD TRUST, INC.
591 Redwood Highway, Suite 3100
Mill Valley, CA 94941
(415) 389-7373
(Name, Address, including zip code, and telephone number, including area code,
of Agent for Service)
-----------------------------
PLEASE SEND COPIES OF COMMUNICATIONS TO:
Phillip R. Pollock, Esq.
Tobin & Tobin
500 Sansome Street, 8th Floor
San Francisco, California 94111
(415) 433-1400
-----------------------------
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CALCULATION OF REGISTRATION FEE
=========================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED(1) REGISTERED(4) PER SECURITY(2) PRICE(2) REGISTRATION FEE(2)
---------------------------------------------------------------------------------------------------------
Executive Deferral
Obligations(2) $20,000,000 100% $20,000,000 $1,840.00
Common Stock
par value $.01
per share(3)
---------------------------------------------------------------------------------------------------------
Total $20,000,000 $20,000,000 $1,840.00
=========================================================================================================
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
as amended, this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the Redwood Trust, Inc. Executive
Deferred Compensation Plan (the "Plan").
(2) The Executive Deferral Obligations are unsecured obligations of Redwood
Trust, Inc. to pay deferred compensation in the future in accordance with the
terms of the Plan.
(3) Subject to Footnote (4), there is being registered hereunder an
indeterminate number of shares of Common Stock as may be issued pursuant to the
Plan.
(4) In no event will the aggregate maximum offering price of all securities
issued pursuant to this Registration Statement exceed $20,000,000.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information required by Part I (plan
information and registrant information) will be sent or given to employees as
specified by Rule 428(b) (1). Such documents need not be filed with the
Securities and Exchange Commission ("Commission") either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424. These documents and the documents incorporated by reference in the
registration statement pursuant to Item 3 of Part II of this form, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act of 1933, as amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
There are incorporated herein by reference the following documents
heretofore filed by the Company with the Commission:
(a) Our Annual Report on Form 10-K, and amendments thereto on Form
10-K/A, for the fiscal year ended December 31, 2001;
(b) Our Quarterly Report on Form 10-Q for the fiscal quarter ended
March 31, 2002; and,
(c) The description of our Common Stock included in our registration
statement on Form 8-A filed July 18, 1995 (Reg. No. 0-26434) and as amended by
Form 8-A/A filed August 4, 1995, under the Exchange Act.
2
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the filing of a post-effective amendment indicating that
such Shares have been sold, or deregistering all of the Shares that, at the time
of such post-effective amendment, remain unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing of such documents (the "Incorporated Documents");
provided, however, the documents enumerated above or subsequently filed by the
Registrant under such Sections of the Exchange Act in each year during which the
offering made by the Registration Statement is in effect prior to the filing
with the Commission of the Registrant's Annual Report on Form 10-K covering such
year shall not be Incorporated Documents to be incorporated by reference in this
Registration Statement or be a part hereof from and after the filing of such
Annual Report on Form 10-K.
Any statement contained herein or in any document incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any other
subsequently filed document, which also 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.
ITEM 4. DESCRIPTION OF SECURITIES
Under Redwood Trust, Inc.'s Executive Deferred Compensation Plan (the
"Plan"), the Registrant will provide a select group of management, highly
compensated employees and independent directors the opportunity to defer
compensation and receive payment at a later date or dates in cash (the
"Executive Deferral Obligations") or shares of the Registrant's common stock
that Plan participants may purchase with funds accrued in their deferral
accounts as described below. The obligations of the Registrant will be unsecured
general obligations of the Registrant to pay the deferred compensation in the
future and will rank with other unsecured and unsubordinated debt of the
Registrant.
Participants may make irrevocable elections to defer receipt of their
annual Base Salary, Annual Bonus, Cash DERs, Incentive Payments, Retainers or
Fees (each such election shall be referred to as a "Deferral Election" and the
amount deferred pursuant to such an election the "Deferral") for a Plan Year in
accordance with the Plan rules.
Participants will be eligible to make a Deferral Election only if they are
Employees or Directors on the dates such elections are made.
All amounts deferred pursuant to a Participant's Deferral Elections under
the Plan will be allocated to a bookkeeping account in the name of the
Participant ("Deferral Account") and the Registrant will maintain a separate
subaccount under a Participant's Deferral Account for each Deferral. Deferrals
will be credited to the Deferral Account as of the Deferral Crediting Date
coinciding with or next following the date on which, in the absence of a
Deferral Election, the Participant would otherwise have received the Deferral. A
"Deferral Crediting Date" means the business day coinciding with or next
following the date the Compensation being deferred would otherwise have been
received by the Participant.
A Participant must make an investment election at the time of each Deferral
Election. The investment election must be made pursuant to such rules as the
Registrant may prescribe and must designate the portion of the Deferral which is
to be treated as invested in each investment alternative. The Plan provides for
two investment alternatives as follows:
(1) STOCK EQUIVALENT ACCOUNT. Under the Stock Equivalent Account, the
value of the Participant's Deferral will be determined as if the Deferral were
invested in the Company's common stock as of the Deferral Crediting Date. For
all Deferrals other than Deferrals of Incentive Payments, the number of shares
of common stock equivalents to be credited to the Participant's Deferral Account
and appropriate subaccounts on each Deferral Crediting Date will be determined
by dividing the Deferral to be "invested" on that date by the closing price of
the Company's common stock on the New York Stock Exchange Composite Transaction
Tape on the business day preceding the Deferral Crediting Date ("Market Value").
Fractional stock equivalents will be computed to two decimal places. In the case
of Deferrals of Incentive Payments, the number of shares of common stock
equivalent shares to be credited to the Deferral Account will be the number of
shares of common stock which would otherwise have been payable under the
Incentive Payment to the Participant on or prior to the Deferral Crediting Date
but as to which the Participant has elected to defer delivery pursuant to the
terms of the Plan. An amount equal to the number of common stock equivalents
multiplied by the dividend paid per share on the Company's common stock on each
dividend record date will be payable in cash to the Participant on the related
dividend payment date. The Participant may elect at the time of the Deferral
Election to have such amount credited to the Interest Account. Except as the
Committee may otherwise permit upon request of the Participant, the number of
shares of the Company's common stock to be paid to a Participant on a
Distribution Date with respect to any Deferral subaccount in the Stock
Equivalent Account will be equal to the number of common stock equivalents
accumulated in the Deferral subaccount as of such Distribution Date divided by
the total number of payments remaining to be made from such Deferral subaccount.
Shares of common stock paid in respect of an Incentive Payment Deferral will be
deemed to be issued and delivered pursuant to the incentive plan of the Company
under which such Incentive Payment was granted; all other shares paid to
Participants will be deemed to be issued and delivered pursuant to the Plan. All
payments from the Stock Equivalent Account will be made in whole shares of the
Company's common stock with fractional shares credited to federal income taxes
withheld.
3
(2) INTEREST ACCOUNT. Under the Interest Account, interest will be credited
to each subaccount in the Participant's Deferral Account once per year as of
each January 1 (a "Valuation Date"). The rate of interest to be applied on each
Valuation Date shall be the Rate of Return for the most recent calendar year
ended prior to such Valuation Date. The Rate of Return shall be applied to the
average balance in each subaccount during such prior fiscal year, such average
balance to be computed on an actual daily basis and excluding any amounts
distributed during such prior fiscal year to the Participant. Calculation of the
interest credits shall be made as soon as practicable following the completion
of the independent accountant's audit of the Company's financial statements each
year and the Committee's determination of the proper Rate of Return for that
year, and application of the interest credits will be effective as of the
applicable Valuation Date. Any Participant's distributions made prior to the
completion of the Committee's determination of the Rate of Return shall be based
upon the conservative estimate by the Chief Financial Officer of the Company of
the credits to be applied, if any, once the Committee has determined the Rate of
Return, and following the Committee's determination of any adjustments necessary
to reflect the proper credits will be made with the Participant on May 1 of that
year. With respect to the distribution of a Deferral subaccount in the Interest
Account, except as the Committee may otherwise permit upon request of the
Participant, the amount to be paid to the Participant from such subaccount on a
Distribution Date shall be the sum of (A) an amount determined by dividing the
balance in the subaccount as of the latest Valuation Date (including interest
accrued through the latest Valuation Date) by the total number of payments
remaining to be made from such Deferral subaccount and (B) interest accrued
during the Plan Year of distribution on the amount determined under (A) for the
Interim Period at the Interim Rate of Return. Each lump sum payment, each
installment payment and any other payment of balances in the Participant's
Interest Account shall be accompanied by an amount of accrued interest on such
payment at the Interim Rate of Return for the Interim Period. All payments from
the Interest Account shall be made in cash.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 2-418 of the Corporations and Associations Article of the Annotated
Code of Maryland provides that a Maryland corporation may indemnify any director
of the corporation and any person who, while a director of the corporation, is
or was serving at the request of the corporation as a director, officer,
partner, trustee, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust, or other enterprise or employee benefit plan,
is made a party to any proceeding by reason of service in that capacity unless
it is established that the act or omission of the director was material to the
matter giving rise to the proceeding and was committed in bad faith or was the
result of active and deliberate dishonesty; or the director actually received an
improper personal benefit in money, property or services; or, in the case of any
criminal proceeding, the director had reasonable cause to believe that the act
or omission was unlawful. Indemnification may be against judgments, penalties,
fines, settlements, and reasonable expenses actually incurred by the director in
connection with the proceeding, but if the proceeding was one by or in the right
of the corporation, indemnification may not be made in respect of any proceeding
in which the director shall have been adjudged to be liable to the corporation.
Such indemnification may not be made unless authorized for a specific proceeding
after a determination has been made, in the manner prescribed by the law, that
indemnification is permissible in the circumstances because the director has met
the applicable standard of conduct. On the other hand, the director must be
indemnified for expenses if he has been successful in the defense of the
proceeding or as otherwise ordered by a court. The law also prescribes the
circumstances under which the corporation may advance expenses to, or obtain
insurance or similar protection for, directors.
The law also provides for comparable indemnification for corporate officers
and agents. The Registrant's Charter provides that its directors and officers
shall, and its agents in the discretion of the Board of Directors may, be
indemnified to the fullest extent required or permitted from time to time by the
laws of Maryland.
The Maryland General Corporation Law (the "Maryland GCL") permits the
charter of a Maryland corporation to include a provision limiting the liability
of its directors and officers to the corporation and its stockholders for money
damages except to the extent that (i) it is proved that the person actually
received an improper benefit or profit in money, property or services for the
amount of the benefit or profit in money, property or services actually
received, or (ii) a judgment or other final adjudication is entered in a
proceeding based on a finding that the person's action, or failure to act, was
the result of active and deliberate dishonesty and was material to the cause of
action adjudicated in the proceeding. The Company's Charter contains a provision
providing for elimination of the liability of its directors and officers to the
Company or its stockholders for money damages to the maximum extent permitted by
Maryland law from time to time.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
4
ITEM 8. EXHIBITS
3.3.3* Bylaws of the Registrant, dated January 24, 2002.
5.1 Opinion of Tobin & Tobin, a professional corporation, as to legality
(including consent of such firm)
5.2 Opinion of GnazzoThill, A Professional Corporation, as to certain
ERISA matters (including consent of such firm)
8.1 Opinion of GnazzoThill, A Professional Corporation, as to certain
tax matters (including consent of such firm)
10.14.7 2002 Redwood Trust, Inc. Executive Deferred Compensation Plan
23.1 Consent of Tobin & Tobin (included in Exhibit 5.1)
23.2 Consent of GnazzoThill, A Professional Corporation (included in
Exhibits 5.2 and 8.1)
23.3 Consent of PricewaterhouseCoopers LLP, independent accountants.
24.1 Power of Attorney (included in signature page)
-------------
* Incorporated by reference to the correspondingly numbered exhibit to the
current report on Form 10-K filed by the Registrant with the Securities and
Exchange Commission on April 1, 2002 (Commission file no. 1-13759).
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) 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;
(iii) 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.
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 the periodic reports filed by the Registrant pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, 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.
(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) 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 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.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 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 Securities and Exchange Commission,
such indemnification is against public policy as expressed in the Act and
5
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 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, 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 Mill Valley, County of Marin, State of California, on
June 10, 2002.
REDWOOD TRUST, INC.
By: /s/ George E. Bull III
------------------------------
George E. Bull III
Chairman of the Board and
Chief Executive Officer
We, the undersigned Directors and Officers of Redwood Trust, Inc., do
hereby constitute and appoint George E. Bull III, Douglas B. Hansen and Harold
F. Zagunis, and each of them individually, our true and lawful attorney[s] and
agent[s], to do any and all acts and things in our name and behalf in our
capacities as directors, officers and to execute any and all instruments for us
and in our names in the capacities indicated below, which said attorney[s] and
agent[s] may deem necessary or advisable to enable said corporation to comply
with the Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission, in connection with this
Registration Statement, including specifically, but without limitation, power
and authority to sign for us or any of us in our names and in the capacities
indicated below, any and all amendments (including post-effective amendments)
hereof; and we do hereby ratify and confirm all that the said attorneys and
agents shall do or cause to be done by virtue hereof.
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 dates indicated:
SIGNATURE POSITION DATE
--------- -------- ----
/s/ George E. Bull III Chairman of the Board and Chief June 10, 2002
----------------------------- Executive Officer and Director
George E. Bull III (principal executive officer)
/s/ Douglas B. Hansen President and Director June 10, 2002
-----------------------------
Douglas B. Hansen
/s/ Harold F. Zagunis Chief Financial Officer, June 10, 2002
----------------------------- Treasurer, Vice President,
Harold F. Zagunis Controller and Secretary
(principal financial officer and
principal accounting officer)
/s/ Thomas C. Brown Director June 10, 2002
-----------------------------
Thomas C. Brown
/s/ Mariann Byerwalter Director June 10, 2002
-----------------------------
Mariann Byerwalter
/s/ Charles J. Toeniskoetter Director June 10, 2002
-----------------------------
Charles J. Toeniskoetter
6
SIGNATURE POSITION DATE
--------- -------- ----
/s/ Richard D. Baum Director June 10, 2002
-----------------------------
Richard D. Baum
/s/ David L. Tyler Director June 10, 2002
-----------------------------
David L. Tyler
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
members of the registrant's compensation committee (which administers the Plan)
have duly caused this registration statement to be signed on behalf of the Plan
by the undersigned, thereunto duly authorized, in the City of Mill Valley,
County of Marin, State of California, on June 10, 2002.
REDWOOD TRUST, INC.
EXECUTIVE DEFERRED COMPENSATION PLAN
By: Redwood Trust Compensation Committee
We, the undersigned members of the compensation committee of Redwood Trust,
Inc., do hereby constitute and appoint George E. Bull III , Douglas B. Hansen
and Harold F. Zagunis, and each of them individually, our true and lawful
attorney[s] and agent[s], to do any and all acts and things in our name and
behalf in our capacities as members of the compensation committee and to execute
any and all instruments for us and in our names in the capacities indicated
below, which said attorney[s] and agent[s] may deem necessary or advisable to
enable said corporation to comply with the Securities Act of 1933, as amended,
and any rules, regulations and requirements of the Securities and Exchange
Commission, in connection with this Registration Statement, including
specifically, but without limitation, power and authority to sign for us or any
of us in our names and in the capacities indicated below, any and all amendments
(including post-effective amendments) hereof; and we do hereby ratify and
confirm all that the said attorneys and agents shall do or cause to be done by
virtue hereof.
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 dates indicated:
SIGNATURE POSITION DATE
--------- -------- ----
/s/ Thomas C. Brown Member of Compensation Committee June 10, 2002
-----------------------------
Thomas C. Brown
/s/ Mariann Byerwalter Member of Compensation Committee June 10, 2002
-----------------------------
Mariann Byerwalter
/s/ Richard D. Baum Member of Compensation Committee June 10, 2002
-----------------------------
Richard D. Baum
/s/ David L. Tyler Member of Compensation Committee June 10, 2002
-----------------------------
David L. Tyler
7
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION OF DOCUMENT PAGE NO.
----------- ----------------------- --------
3.3.3* Bylaws of the Registrant, dated January 24, 2002.........
5.1 Opinion of Tobin & Tobin, a professional corporation,
as to legality (including consent of such firm)..........
5.2 Opinion of GnazzoThill, A Professional Corporation,
as to certain ERISA matters (including consent of
such firm)...............................................
8.1 Opinion of GnazzoThill, A Professional Corporation,
as to certain tax matters (including consent of
such firm)...............................................
10.14.7 2002 Redwood Trust, Inc. Executive Deferred Compensation
Plan.....................................................
23.1 Consent of Tobin & Tobin (included in Exhibit 5.1).......
23.2 Consent of GnazzoThill, A Professional Corporation
(included in Exhibits 5.2 and 8.1).......................
23.3 Consent of PricewaterhouseCoopers LLP, independent
accountants..............................................
24.1 Power of Attorney (included in signature page)...........
---------
* Incorporated by reference to the correspondingly numbered exhibit to the
current report on Form 10-K filed by the Registrant with the Securities and
Exchange Commission on April 1, 2002 (Commission file no. 1-13759).