SEC Form S-8 filed by AG Mortgage Investment Trust Inc.
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Registration No. 333 -
As filed with the Securities and Exchange Commission, May 7, 2025
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
AG MORTGAGE INVESTMENT TRUST, INC.
(Exact name of registrant as specified in its charter)
| Maryland | 27-5254382 | |||||||
| (State or other jurisdiction of incorporation or organization) | (I.R.S. employer identification number) | |||||||
| 245 Park Avenue, 26th Floor New York, New York 10167 | ||||||||
| (212) 692-2000 | ||||||||
AG Mortgage Investment Trust, Inc. 2025 Equity Incentive Plan
(Full title of the plan)
Jenny B. Neslin
General Counsel
AG Mortgage Investment Trust, Inc.
245 Park Avenue, 26th Floor
New York, New York 10167 Telephone: (212) 692-2000
(Name, address and telephone number, including area code, of agent for service)
Copies of communications to:
Robert K. Smith, Esq.
Hunton Andrews Kurth LLP
2200 Pennsylvania Ave NW
Washington, DC 20037
Telephone: (202) 955-1500
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. ☐
EXPLANATORY NOTE
This Registration Statement on Form S-8 is being filed by AG Mortgage Investment Trust, Inc. (the “Registrant,” “Company,” “we” and “our”) to register (i) 800,000 shares (the “Newly Authorized Shares”) of the Company’s common stock, $0.01 par value per share (the “Common Stock”), reserved for issuance under the 2025 Equity Incentive Plan (the “2025 Plan”), (ii) 350,781 shares (the “Prior Plan Shares”), which represents the aggregate number of shares that remain available for issuance under the Company’s 2020 Equity Incentive Plan (the “Prior Plan”) (which as of May 4, 2025, was 220,781 shares of common stock), plus any shares of common stock subject to outstanding awards under the Prior Plan that become forfeited or otherwise lapse, and (iii) an estimated 349,219 shares of Common Stock (the “2025 Plan Forfeitures/Lapses,” and together with the Newly Authorized Shares, the Prior Plan Shares, collectively, the “Shares”) relating to awards that may be issued under the 2025 Plan that are forfeited or otherwise lapse.
The actual number of Shares to be issued under the 2025 Plan may be significantly less than 1,500,000 shares of Common Stock depending on, among other variables, the number of actual Prior Plan Shares and 2025 Plan Forfeitures/Lapses that become forfeited or otherwise lapse.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I are not required to be filed with the Securities and Exchange Commission (the “Commission”) as part of this Registration Statement on Form S-8 in accordance with Rule 428 of the Securities Act. The documents containing information specified in the instructions to Part I of Form S-8 will be sent or given to individuals participating in the 2025 Plan as specified by Rule 428(b)(1) of the Securities Act. Those documents and the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Company with the Commission are incorporated by reference in this Registration Statement:
(a)The Company’s Annual Report on Form 10-K for the year ended December 31, 2024, filed with the Commission on March 4, 2025;
(b)The information specifically incorporated by reference into the Company’s Annual Report on Form 10-K for the year ended December 31, 2024 from the Company’s Definitive Proxy Statement on Schedule 14A, filed with the Commission on March 21, 2025;
(c)The Company’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2025, filed with the Commission on May 7, 2025;
(d)The Company’s Current Report on Form 8-K filed with the Commission on February 18, 2025; and
(e)the description of the Company’s Common Stock contained or incorporated in the Company’s Registration Statement on Form 8-A, filed with the Commission on April 25, 2011 (File No. 001-35151), as updated by the description contained in Exhibit 4.5 to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2024, filed with the Commission on March 4, 2025, and including any other amendments or reports filed for the purpose of updating such descriptions.
All documents subsequently filed by the registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (other than portions of those documents furnished or otherwise not deemed to be filed), prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining 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.
Any statement contained in a document incorporated or deemed to be incorporated by reference in this Registration Statement shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in this Registration Statement or in any other contemporaneously or subsequently filed document which also is or is deemed to be incorporated by reference in this Registration Statement modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Unless expressly incorporated by reference into this Registration Statement, nothing in this Item 3 shall be deemed to incorporate information furnished by the Registrant on Form 8-K (pursuant to the requirements of Regulation FD or otherwise) that, pursuant to and in accordance with the rules and regulations of the Commission, is not deemed “filed” for purposes of the Exchange Act.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. 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 (1) actual receipt of an improper benefit or profit in money, property or services or (2) active and deliberate dishonesty established by a final judgment as being material to the cause of action. Our charter contains a provision that eliminates such liability to the maximum extent permitted by Maryland law.
The MGCL requires a Maryland corporation (unless its charter provides otherwise, which our charter 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 Maryland 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 or threatened to be made a party by reason of their service in those or other capacities unless it is established that (1) the act or omission of the director or officer was material to the matter giving rise to the proceeding and (A) was committed in bad faith or (B) was the result of active and deliberate dishonesty, (2) the director or officer actually received an improper personal benefit in money, property or services, or (3) 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. A court may order indemnification if it determines that the director or officer is fairly and reasonably entitled to indemnification, even though the director or officer did not meet the prescribed standard of conduct or was adjudged liable on the basis that personal benefit was improperly received. However, indemnification for an adverse judgment in a suit by us or in our right, or for a judgment of liability on the basis that personal benefit was improperly received, is limited to expenses. In addition, the MGCL permits a corporation to advance reasonable expenses to a director or officer upon the corporation’s receipt of (1) 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 (2) 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.
Our charter authorizes us to obligate ourselves and our bylaws obligate us, to the fullest 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; and
•any individual who, while our director or officer and at our request, serves or has served as a director, officer, partner or trustee of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise.
Our charter and bylaws also permit 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 us or a predecessor of us.
We have entered into indemnification agreements with each of our directors and executive officers that provide for indemnification to the maximum extent permitted by Maryland law.
It is the position of the Commission that indemnification of directors and officers for liabilities arising under the Securities Act is against public policy and is unenforceable pursuant to Section 14 of the Securities Act.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed herewith or incorporated by reference as part of the registration Statement:
| Exhibit No. | Description | ||||
| 4.1 | |||||
| 4.2 | |||||
| 4.3 | |||||
| 4.4 | |||||
| 4.5 | |||||
| 4.6 | |||||
| 4.7 | |||||
| 4.8 | |||||
| 4.9 | |||||
| 4.10 | |||||
| 5.1 | |||||
| 23.1 | |||||
| 23.2 | |||||
| 23.3 | |||||
| 24.1 | Power of Attorney (included on signature page hereto).* | ||||
| 107 | |||||
_________________
* Filed herewith.
Item 9. Undertakings.
(a) Rule 415 offering.
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;
(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 20% 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 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 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; and
(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) Filings incorporating subsequent Exchange Act Documents by Reference.
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.
(h) Filing of Registration Statement on Form S-8.
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 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.
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 New York, State of New York on May 7, 2025.
| /s/ Thomas J. Durkin | ||||||||||||||
| By: | Thomas J. Durkin | |||||||||||||
| Chief Executive Officer and President | ||||||||||||||
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Jenny B. Neslin and Anthony W. Rossiello, his or her true and lawful attorneys-in-fact and agents, each acting alone, with full powers of substitution and resubstitution, for him or her or in his or her name, place and stead, in any and all capacities to sign any and all amendments or post-effective amendments to this registration statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, each acting alone, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, each acting alone, or his substitute or substitutes, may lawfully 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 indicated, as of May 7, 2025.
| By: | /s/ Thomas J. Durkin | Chief Executive Officer, President and Director (Principal Executive Officer) | |||||||||
| Thomas J. Durkin | |||||||||||
| By: | /s/ Anthony Rossiello | Chief Financial Officer and Treasurer (Principal Financial and Accounting Officer) | |||||||||
| Anthony Rossiello | |||||||||||
| By: | /s/ Nicholas Smith | Chief Investment Officer and Director | |||||||||
| Nicholas Smith | |||||||||||
| By: | /s/ Debra Hess | Non-Executive Chair of the Board of Directors | |||||||||
| Debra Hess | |||||||||||
| By: | /s/ Dianne Hurley | Director | |||||||||
| Dianne Hurley | |||||||||||
| By: | /s/ Matthew Jozoff | Director | |||||||||
| Matthew Jozoff | |||||||||||
| By: | /s/ M. Christian Mitchell | Director | |||||||||
| M. Christian Mitchell | |||||||||||