As filed with the Securities and Exchange Commission on October 28, 2021
Registration Statement No. 333-260140
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 2
to
Form S-11
FOR REGISTRATION UNDER THE SECURITIES ACT OF 1933
OF SECURITIES OF CERTAIN REAL ESTATE COMPANIES
Claros Mortgage Trust, Inc.
(Exact name of registrant as specified in its governing instruments)
c/o Mack Real Estate Credit Strategies, L.P.
60 Columbus Circle, 20th Floor
New York, NY 10023
(212) 484-0050
(Address, including Zip Code, and Telephone Number, including Area Code, of Registrant’s Principal Executive Offices)
J.D. Siegel, Esq.
c/o Mack Real Estate Credit Strategies, L.P.
60 Columbus Circle, 20th Floor
New York, NY 10023
(212) 484-0050
(Name, Address, including Zip Code, and Telephone Number, including Area Code, of Agent for Service)
Copies to:
William J. Cernius, Esq. Brent T. Epstein, Esq. | Edward F. Petrosky, Esq. James O’Connor, Esq. | |
Latham & Watkins LLP | Sidley Austin LLP | |
650 Town Center Drive, 20th Floor | 787 Seventh Avenue | |
Costa Mesa, CA 92626 | New York, NY 10019 | |
Tel (714) 755-8172 | Tel (212) 839-5300 | |
Fax (714) 755-8290 | Fax (212) 839-5599 |
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this registration statement.
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, check the following box: ☐
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) 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 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 post-effective amendment filed pursuant to Rule 462(d) 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 delivery of the prospectus is expected to be made pursuant to Rule 434, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer | ☐ | Accelerated filer | ☐ | |||
Non-accelerated filer | ☒ | Smaller reporting company | ☐ | |||
Emerging growth company | ☒ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities to be Registered | Amount to be Registered(1) | Proposed Maximum Offering Price Per Share(2) | Proposed Maximum Offering Price(1)(2) | Amount of Registration Fee(3) | ||||
Common Stock, $0.01 par value per share | 8,050,000 | $19.65 | $158,182,500 | $14,664 | ||||
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(1) | Includes 1,050,000 shares of common stock that the underwriters have the option to purchase. |
(2) | Estimated solely for purposes of calculating the registration fee in accordance with Rule 457(a) under the Securities Act of 1933, as amended. |
(3) | 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, as amended, or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
Claros Mortgage Trust, Inc. is filing this Amendment No. 2 (the “Amendment”) to its Registration Statement on Form S-11 (Registration No. 333-260140) (the “Registration Statement”) as an exhibit-only filing. Accordingly, this Amendment consists only of the facing page, this explanatory note, Part II of the Registration Statement, the signature page to the Registration Statement and the filed exhibits. The preliminary prospectus is unchanged and has therefore been omitted.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 31. Other Expenses of Issuance and Distribution.
The following table shows the fees and expenses, other than the underwriting discount, to be paid by us in connection with the sale and distribution of the securities being registered hereby. All amounts except the SEC registration fee are estimated.
SEC registration fee | $ | 14,664 | ||
FINRA filing fee | 23,227 | |||
Stock exchange listing fee | 270,000 | |||
Legal fees and expenses | 3,775,434 | |||
Printing and engraving expenses | 710,000 | |||
Transfer agent’s fees and expenses | 27,474 | |||
Accounting fees and expenses | 1,100,625 | |||
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Total | $ | 5,921,424 | ||
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Item 32. Sales to Special Parties.
Not applicable.
Item 33. Recent Sales of Unregistered Securities.
During the three years preceding the filing of this registration statement on Form S-11, we have issued the following unregistered securities:
(a) Issuance of Common Stock Pursuant to a Private Placement
We completed a private placement offering of shares of our common stock to certain “qualified purchasers” as such term is defined in Section 2(a)(51) of the Investment Company Act of 1940, as amended, or the 1940 Act and “accredited investors,” as defined in Rule 501 of Regulation D under the Securities Act, as described below:
• | In the second quarter of 2018, we issued 19,451,583 shares of common stock for an aggregate purchase price of $387,305,000. In connection with these issuances, we paid aggregate placement agent fees of $4,013,600 to unaffiliated third parties. |
• | In the third quarter of 2018, we issued 20,533,575 shares of common stock for an aggregate purchase price of $404,010,003.50. In connection with these issuances, we paid aggregate placement agent fees of $2,005,625 to unaffiliated third parties. |
• | In the fourth quarter of 2018, we issued 1,595,250 shares of common stock for an aggregate purchase price of $31,905,000. In connection with these issuances, we paid aggregate placement agent fees of $78,000 to an unaffiliated third party. |
• | In the first quarter of 2019, we issued 3,100,750 shares of common stock for an aggregate purchase price of $62,015,000. |
• | In the second quarter of 2019, we issued 8,652,278 shares of common stock for an aggregate purchase price of $170,942,987.50. In connection with these issuances, we paid aggregate placement agent fees of $1,812,000 to unaffiliated third parties. |
• | In the third quarter of 2019, we issued 1,098,350 shares of common stock for an aggregate purchase price of $21,967,000. |
• | In the fourth quarter of 2019, we issued 14,460,441 shares of common stock for an aggregate purchase price of $284,169,980. In connection with this issuance, we paid aggregate placement agent fees of $2,496,449.49 to unaffiliated third parties. |
• | In the first quarter of 2020, we issued 3,500,000 shares of common stock for an aggregate purchase price of $70,000,000. |
In conducting this private placement, we relied upon the exemption from registration provided by Rule 506(b) of Regulation D under the Securities Act.
(b) Grants of Restricted Stock Units
On April 4, 2019, we issued 2,499,997 restricted stock units to certain of our Sponsor’s principals and senior management and other related parties under our 2016 Incentive Award Plan. The restricted stock units were issued pursuant to written compensatory plans or arrangements in reliance on the exemption provided by Rule 701 promulgated under the Securities Act, or pursuant to Section 4(a)(2) under the Securities Act, relative to transactions by an issuer not involving any public offering, to the extent an exemption from such registration was required.
Item 34. Indemnification of Directors and Officers.
Maryland law permits a Maryland corporation to include in its charter a provision eliminating 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 that is established by a final judgment and is material to the cause of action. Our charter contains such a provision which eliminates directors’ and officers’ liability to the maximum extent permitted by Maryland law.
Our charter obligates us, to the maximum extent permitted by Maryland law in effect from time to time, to indemnify and, without requiring a preliminary determination of the ultimate entitlement to indemnification, pay or reimburse reasonable expenses in advance of final disposition of a proceeding to:
• | any present or former director or officer who is made or threatened to be made a party to, or witness in, the proceeding by reason of his or her service in that capacity; or |
• | any individual who, while a director or officer of the Company and at our request, serves or has served as a director, officer, partner, member, manager, trustee, employee or agent of another corporation, real estate investment trust, partnership, limited liability company, joint venture, trust, employee benefit plan or other enterprise and who is made or threatened to be made a party to, or witness in, the proceeding by reason of his or her service in that capacity. Our charter also permits us to indemnify and advance expenses to any person who served a predecessor of ours in any of the capacities described above and to any employee or agent of the Company or a predecessor of the Company. |
The rights to indemnification and advancement of expenses provided by our charter and bylaws shall vest immediately upon an individual’s election as a director or officer of ours.
The MGCL requires us (unless our charter provides otherwise, which it does 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 or she is made or threatened to be made a party by reason of his or her 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 or in which they may be made or threatened to be made a party or witness 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 the MGCL, a Maryland corporation may not indemnify a director or officer 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 a personal benefit was improperly received, unless in either case a court orders indemnification, and then only for expenses. 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 or her good faith belief that he or she has met the standard of conduct necessary for indemnification by the corporation, and (b) a written undertaking by him or her or on his or her behalf to repay the amount paid or reimbursed by the corporation if it is ultimately determined that the appropriate standard of conduct was not met.
We intend to enter into indemnification agreements with our directors and executive officers. These agreements will require us to indemnify these individuals to the fullest extent permitted under Maryland law and our charter against liabilities that may arise by reason of their service to us, and to advance expenses incurred as a result of any proceeding against them as to which they may be indemnified. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors or executive officers, we have been informed that in the opinion of the SEC such indemnification is against public policy and is therefore unenforceable. The indemnification provided under the indemnification agreements will not be exclusive of any other indemnity rights.
In addition, our directors and officers are indemnified for specified liabilities and expenses pursuant to the organizational documents of certain of our subsidiaries.
Furthermore, our officers and directors will be indemnified against specified liabilities by the underwriters, and the underwriters will be indemnified against certain liabilities by us, under the underwriting agreement relating to this offering. See “Underwriting.”
Item 35. Treatment of Proceeds from Stock Being Registered.
None of the proceeds of this offering will be credited to an account other than the appropriate capital share account.
Item 36. Financial Statements and Exhibits.
(a) Financial Statements. See page F-1 for an index to the financial statements included in the registration statement.
(b) Exhibits. The following is a complete list of exhibits filed as part of the registration statement, which are incorporated herein:
** | Previously filed |
† | Indicates a management contract or compensatory plan or arrangement |
Item 37. Undertakings.
(a) 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 SEC such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue.
(b) The undersigned registrant hereby further undertakes that:
(1) For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus 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.
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-11 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 October 28, 2021.
Claros Mortgage Trust, Inc. |
By: | /s/ Richard J. Mack |
Name: | Richard J. Mack | |
Title: | Chief Executive Officer |
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.
Signatures | Title | Date | ||
/s/ Richard J. Mack Richard J. Mack | Chief Executive Officer and Chairman of the Board of Directors (Principal Executive Officer) | October 28, 2021 | ||
* J. Michael McGillis | President, Chief Financial Officer and Director (Principal Financial and Accounting Officer) | October 28, 2021 | ||
* Steven L. Richman | Director | October 28, 2021 | ||
* Andrew Silberstein | Director | October 28, 2021 | ||
* David Haltiner | Director | October 28, 2021 |
* By: | /s/ Richard J. Mack | |
Richard J. Mack | ||
Attorney-in Fact |