As filed with the Securities and Exchange Commission on May 15, 2008
Registration No. 333-150610
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
JER INVESTORS TRUST INC.
(Exact name of registrant as specified in its charter)
| Maryland | 75-3152779 | |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification Number) |
1650 Tysons Boulevard, Suite 1600
McLean, Virginia 22102
(703) 714-8000
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Daniel T. Ward
Secretary
JER Investors Trust Inc.
1650 Tysons Boulevard, Suite 1600
McLean, Virginia 22102
(703) 714-8000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
David J. Goldschmidt
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, NY 10036-6522
(212) 735-3000
As soon as practicable after this registration statement becomes effective
(Approximate date of commencement of proposed sale to the public)
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ¨
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ¨
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
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):
| Large accelerated filer ¨ | Accelerated filer x | |
| Non-accelerated filer ¨ (Do not check if a smaller reporting company) | Smaller reporting company ¨ |
CALCULATION OF REGISTRATION FEE
| Title of each class of securities to be registered | Amount to be registered (1)(2)(3) | Proposed maximum offering price per unit (1) | Proposed maximum aggregate offering price (2)(3) | Amount of registration fee | ||||
Common Stock, par value $0.01 per share | ||||||||
Preferred Stock, par value $0.01 per share | ||||||||
Depositary Shares (3) | ||||||||
Debt Securities | ||||||||
Subscription Rights | ||||||||
Warrants | ||||||||
Total | $250,000,000 | 100% | $250,000,000 | $9,825(4) | ||||
| (1) | Not specified as to each class of securities to be registered pursuant to be registered pursuant to General Instruction II.D of Form S-3 under the Securities Act of 1933. |
| (2) | The registrant is hereby registering an indeterminate principal amount and number of each identified class of its securities up to a proposed maximum aggregate offering price of $250,000,000, which may be offered from time to time in unspecified numbers at unspecified prices. The registrant has estimated the proposed maximum aggregate offering price solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act of 1933. Securities registered hereunder may be sold separately, together or as units with other securities registered hereunder. The registrant is hereby also registering an indeterminate principal amount of each identified class of its securities that may be purchased by underwriters to cover over-allotments, if any. |
| (3) | The registrant is hereby registering such indeterminate amounts of debt securities and an indeterminate number of shares of common stock, preferred stock and depositary shares as may be issued upon conversion of or exchange for any other debt securities, preferred stock or depositary shares that provide for conversion of or exchange for other securities, or upon exercise of subscription rights or warrants for such securities. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of common stock, preferred stock, subscription rights, warrants or debt securities. |
| (4) | Previously paid. |
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
The sole purpose of this Amendment No. 1 to Registration Statement No. 333-150610 of JER Investors Trust Inc. on Form S-3 (the “Registration Statement”) is to file Exhibit 4.10 (JER Investors Trust Inc. Indenture dated as of May 15, 2008), which contains an executed version of the form of indenture previously filed with the Registration Statement on May 2, 2008.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 14. | Other Expenses of Issuance and Distribution. |
The following table sets forth the costs and expenses expected to be incurred in connection with the sale and distribution of the securities being registered, all of which are being borne by the registrant. All amounts except the SEC registration fee are estimates.
Securities and Exchange Commission registration fee | $ | 9,825 | |
Trustee fees | 25,000 | ||
Printing and engraving expenses | 100,000 | ||
Legal fees and expenses | 250,000 | ||
Accounting fees and expenses | 100,000 | ||
Miscellaneous | 15,175 | ||
Total | $ | 500,000 | |
| Item 15. | Indemnification of Directors and Officers. |
Maryland law 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 (a) actual receipt of an improper benefit or profit in money, property or services or (b) active and deliberate dishonesty established by a final judgment and which is material to the cause of action. The Company’s charter contains such a provision which eliminates directors’ and officers’ liability to the maximum extent permitted by Maryland law.
The charter authorizes the Company, to the maximum extent permitted by Maryland law, to obligate itself to indemnify any present or former director or officer or any individual who, while a director or officer of the Company and at the request of the Company, serves or has served another corporation, real estate investment trust, partnership, joint venture, trust, employee benefit plan or other enterprise as a director, officer, partner or trustee, from and against any claim or liability to which that person may become subject or which that person may incur by reason of his or her status in any of the foregoing capacities and to pay or reimburse their reasonable expenses in advance of final disposition of a proceeding. The by-laws obligate the Company, to the maximum extent permitted by Maryland law, to indemnify any present or former director or officer or any individual who, while a director of the Company and at the request of the Company, serves or has served another corporation, real estate investment trust, partnership, joint venture, trust, employee benefit plan or other enterprise as a director, officer, partner or trustee and who is made a party to a proceeding by reason of his service in that capacity from and against any claim or liability to which that person may become subject or which that person may incur by reason of his or her status in that capacity and to pay or reimburse their reasonable expenses in advance of final disposition of the proceeding. The charter and by-laws also permit the Company to indemnify and advance expenses to any person who served a predecessor of the Company in any of the capacities described above and to any employee or agent of the Company or a predecessor of the Company.
Maryland law requires a corporation (unless its charter provides otherwise, which the Company’s charter does not) to indemnify a director or officer who has been successful in the defense of any proceeding to which he is made a party by reason of his service in that capacity. Maryland law 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, under Maryland law, a Maryland 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, Maryland law 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
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conduct necessary for indemnification by the corporation and (b) a written undertaking by him or on his behalf to repay the amount paid or reimbursed by the corporation if it is ultimately determined that the standard of conduct was not met.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or persons controlling the registrant pursuant to the foregoing provisions, the registrant has been informed 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.
The Company has also agreed to indemnify its directors and executive officers to the maximum extent permitted by Maryland law, and pay such persons’ expenses in defending any civil or criminal proceeding in advance of final disposition of such proceeding.
| Item 16. | Exhibits and Financial Statement Schedules. |
See the Exhibit Index, which is incorporated herein by reference.
| Item 17. | Undertakings. |
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. Notwithstanding the foregoing, any increase or decrease in 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 volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) to include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of 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.
(4) That, for the purpose of determining liability under the Securities Act of 1933, to any purchaser:
(i) Each prospectus filed by a Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date
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shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of a Registrant under the Securities Act of 1933, as amended, to any purchaser in the initial distribution of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
(6) That, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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.
(7) 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 provisions described under Item 15 above, 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 Securities Act of 1933 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 Securities Act of 1933 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-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the County of Fairfax, Commonwealth of Virginia, on May 15, 2008.
| JER INVESTORS TRUST INC. | ||||
| By: | /s/ Joseph E. Robert, Jr. | |||
| Name: | Joseph E. Robert, Jr. | |||
| Title: | Chief Executive Officer | |||
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by Joseph E. Robert, Jr., and by J. Michael McGillis for himself and as attorney-in-fact for each of the other persons named below, in the capacities and on the dates indicated.
Signature | Title | Date | ||
/s/ Joseph E. Robert, Jr. Joseph E. Robert, Jr. | Chairman of the Board and Chief Executive Officer (Principal Executive Officer) | May 15, 2008 | ||
* Keith W. Belcher | Vice Chairman of the Board and Executive Vice President | May 15, 2008 | ||
* Mark S. Weiss | President and Director | May 15, 2008 | ||
/s/ J. Michael McGillis J. Michael McGillis | Chief Financial Officer and Treasurer (Principal Financial Officer and Principal Accounting Officer) | May 15, 2008 | ||
* Daniel J. Altobello | Director | May 15, 2008 | ||
* Frank J. Caufield | Director | May 15, 2008 | ||
* James V. Kimsey | Director | May 15, 2008 | ||
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* Peter D. Linneman | Director | May 15, 2008 | ||
* W. Russell Ramsey | Director | May 15, 2008 | ||
| *By: | /s/ J. Michael McGillis J. Michael McGillis | Attorney-in-Fact | May 15, 2008 | |||
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EXHIBIT INDEX
Exhibit | Description | |
| 1.1 | Form of Underwriting Agreement for common stock, preferred stock, depositary shares, subscription rights, warrants or debt securities to be filed as an exhibit to a Current Report of the Company on Form 8-K and incorporated by reference herein. | |
| 4.1 | Form of Certificate for Common Stock.* | |
| 4.2 | Articles Supplementary with respect to any preferred stock issued hereunder to be filed as an exhibit to a Current Report of the Company on Form 8-K and incorporated by reference herein. | |
| 4.3 | Form of Preferred Stock Certificate to be filed as an exhibit to a Current Report of the Company on Form 8-K and incorporated by reference herein. | |
| 4.4 | Form of Deposit Agreement to be filed as an exhibit to a Current Report of the Company on Form 8-K and incorporated by reference herein. | |
| 4.5 | Form of Depositary Receipt to be filed as an exhibit to a Current Report of the Company on Form 8-K and incorporated by reference herein. | |
| 4.6 | Form of Subscription Rights Agreement to be filed as an exhibit to a Current Report of the Company on Form 8-K and incorporated by reference herein. | |
| 4.7 | Form of Subscription Rights Certificate to be filed as an exhibit to a Current Report of the Company on Form 8-K and incorporated by reference herein. | |
| 4.8 | Form of Warrant Agreement to be filed as an exhibit to a Current Report of the Company on Form 8-K and incorporated by reference herein. | |
| 4.9 | Form of Warrant Certificate to be filed as an exhibit to a Current Report of the Company on Form 8-K and incorporated by reference herein. | |
| 4.10 | JER Investors Trust Inc. Indenture dated as of May 15, 2008. | |
| 4.11 | Form of Debt Security (included in Exhibit 4.10). | |
| 5.1 | Opinion of DLA Piper US LLP relating to the legality of the securities being registered. † | |
| 5.2 | Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.† | |
| 8.1 | Opinion of Skadden, Arps, Slate, Meagher & Flom LLP as to certain tax matters. † | |
| 12.1 | Statement of Computation of Ratio of Earnings to Fixed Charges. † | |
| 23.1 | Consent of Ernst & Young LLP. † | |
| 23.2 | Consent of DLA Piper US LLP (contained in Exhibit 5.1). | |
| 23.3 | Consent of Skadden, Arps, Slate, Meagher & Flom LLP (contained in Exhibit 5.2). | |
| 24.1 | Powers of Attorney.† | |
| 25.1 | Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of The Bank of New York, as trustee under the Indenture.† | |
| * | Incorporated by reference to the Registrant’s Registration Statement on Form S-11 (Registration No. 333-122802), as amended. Such Registration Statement was originally filed with the Securities and Exchange Commission on February 14, 2005. |
| † | Previously filed. |
