As filed with the Securities and Exchange Commission on August 22, 2001
Registration No. 333- _________
SECURITIES AND EXCHANGE COMMISSION
Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
IMPAC MORTGAGE HOLDINGS, INC.
(Exact Name of Registrant as Specified in Its Charter)
Maryland 6798 33-0675505
(State or Other Jurisdiction (Primary Standard (I.R.S. Employer
of Incorporation Industrial Classification Identification No.)
or Organization) Code Number)
1401 Dove Street
Newport Beach, California 92660
(949) 475-3600
(Address of Principal Executive Offices)
Impac Mortgage Holdings, Inc., 2001 Stock Option, Deferred Stock, and
Restricted Stock Plan
(Full Title of the Plan)
Joseph R. Tomkinson
Chief Executive Officer
1401 Dove Street
Newport Beach, California 92660
(949) 475-3600
(Name, Address, and Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Thomas J. Poletti, Esq.
Katherine J. Blair, Esq.
David R. Schwartz, Esq.
Kirkpatrick & Lockhart LLP
10100 Santa Monica Boulevard
Seventh Floor
Los Angeles, CA 90067
Telephone: (310) 552-5000
Facsimile: (310) 552-5001
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, check the following box. [x]
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum
Offering Aggregate Amount of
Title of Securities to be Registered Amount to be Price per Offering Registration
Registered Share Price Fee
- ------------------------------------------------------------------------------------------------------------
Common Stock, $.001 par value, Issuable 780,000 shares(1) $7.68(3) $5,990,400.00 $1,497.60
under 2001 Stock Option, Deferred Stock,
and Restricted Stock Plan
- ------------------------------------------------------------------------------------------------------------
Common Stock, $.001 par value, Issuable 220,000 shares(2) $7.58(4) $1,667,600.00 $416.90
under 2001 Stock Option, Deferred Stock,
and Restricted Stock Plan
- ------------------------------------------------------------------------------------------------------------
TOTAL $7,658,000.00 $1,914.50
- ------------------------------------------------------------------------------------------------------------
(1) This total represents the number of shares subject to grants of options
issued to employees and directors on July 24, 2001 under the 2001 Stock
Option, Deferred Stock, and Restricted Stock Plan.
(2) This total represents the number of shares authorized but unissued under
the 2001 Stock Option, Deferred Stock, and Restricted Stock Plan.
(3) Price at which the options may be exercised, based upon the closing price
of the Common Stock as reported at the close of the American Stock Exchange
on July 24, 2001.
(4) Estimated in accordance with Rule 547(c) and (h) under the Securities Act
of 1933, as amended, solely for the purpose of calculating the total
registration fee. Computation based upon the average of the high and low
prices of the Common Stock as reported on the American Stock Exchange on
August 20, 2001.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing information specified in this Part I are being
separately provided to the Registrant's employees, officers, directors and
consultants as specified by Rule 428(b)(1).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed in paragraphs (a) through (d) below are hereby
incorporated by reference in this Registration Statement. 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 (the "Exchange Act"), prior to the
filing of a post-effective amendment which indicates that all securities offered
herein 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 hereto from the date of filing of such documents.
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 2000 filed with the SEC on March 30, 2001.
(b) The Registrant's Quarterly Reports on Form 10-Q for the Quarters ended
June 30, 2001 and March 31, 2001.
(c) The Registrant's Current Reports on Form 8-K filed with the SEC on
July 31, 2001, June 27, 2001, June 1, 2001, March 30, 2001, March 5,
2001 and January 19, 2001.
(d) The description of the Common Stock contained in Registrant's
Registration Statement on Form S-3, filed with the Commission on June
20, 2001, entitled "Description of Capital Stock".
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 Maryland General Corporation Law, as amended from time to time, 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 as being material to the
cause of action. The Registrant's charter contains such a provision which
eliminates such liability to the maximum extent permitted by Maryland law.
The Registrant's charter authorizes it, to the maximum extent permitted by
Maryland law, to obligate itself to indemnify and to pay or reimburse reasonable
expenses in advance of final disposition of a proceeding to (1) any present or
former director or officer or (2) any individual who, while a director of
Registrant and at our request, serves or has served another corporation, real
estate investment trust partnership, joint venture, trust, employee benefit plan
or any other enterprise as a director, officer, partner or trustee of such
corporation, real estate investment trust partnership, joint venture, trust,
employee benefit plan or other enterprise
from and against any claim or liability to which such person may become subject
or which such person may incur by reason of his status as a present or former
director or officer of Registrant. The Registrant's bylaws obligate it, to the
maximum extent permitted by Maryland law, to indemnify and to pay or reimburse
reasonable expenses in advance of final disposition of a proceeding to (1) any
present or former director or officer who is made a party to the proceeding by
reason of his service in that capacity or (2) any individual who, while a
director of Registrant and at our request, serves or has served another
corporation, real estate investment trust partnership, joint venture, trust,
employee benefit plan or any other enterprise as a director, officer, partner or
trustee of such corporation, real estate investment trust partnership, joint
venture, trust, employee benefit plan or other enterprise and who is made a
party to the proceeding by reason of his service in that capacity. The charter
and bylaws of the Registrant also permit it to indemnify and advance expenses to
any person who served a predecessor of Registrant in any of the capacities
described above and to any of our employees or agents or a predecessor of
Registrant.
The Maryland General Corporation Law requires a corporation (unless its
charter provides otherwise, which the Registrant's 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 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 (1) 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, (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 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, the Maryland law 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 good faith belief that he has met
the standard of conduct necessary for indemnification by the corporation and (2)
a written undertaking by him or on his behalf to repay the amount paid or
reimbursed by the corporation if it shall ultimately be determined that the
standard of conduct was not met.
In addition, the Registrant has entered into an Indemnity Agreement
(Exhibit 10.4 of its Registration Statement on Form S-11 (File No. 33-96670) and
Amendments No. 1, 2 and 3 filed with the Securities and Exchange Commission on
September 7, 1995, October 23, 1995, October 30, 1995 and November 8, 1995,
respectively) with its officers and directors.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Numbers
4.1* Impac Mortgage Holdings, Inc. 2001 Stock Option, Deferred Stock, and
Restricted Stock Plan.
4.2 Form of Stock Option Agreement for the Impac Mortgage Holdings, Inc. 2001
Stock Option, Deferred Stock, and Restricted Stock Plan.
5 Opinion of McKee Nelson LLP.
23.1 Consent of KPMG Certified Public Accountants.
23.2 Consent of McKee Nelson LLP (contained in Exhibit 5).
24 The Power of Attorney is contained in this registration statement on the
final page.
- ----------------------
* Previously filed with the Commission as Appendix A to the Registrant's
Definitive Proxy Statement on Schedule 14A filed with the Commission on April
30, 2001 and incorporated herein by reference.
Item 9. 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 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.
(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.
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 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 hereunder, 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.
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 Newport Beach, State of California, on this 22nd day
of August, 2001.
IMPAC MORTGAGE HOLDINGS, INC.
By: /s/ Richard J. Johnson
------------------------------
Richard J. Johnson, Executive Vice
President and Chief Financial
Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Impac Mortgage Holdings,
Inc., do hereby constitute and appoint Joseph R. Tomkinson or Richard J.
Johnson, and each of them, as his true and lawful attorneys-in-fact and agents,
with full power of substitution for him in any and all capacities, to sign any
and all amendments (including 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, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, 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, or any of them, or their 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 and on the dates indicated.
Names Title Date
/s/ Joseph R. Tomkinson Chairman of the Board August 22, 2001
- -------------------------- and Chief Executive
Joseph R. Tomkinson Officer (Principal
Executive Officer)
/s/ William S. Ashmore President and Director August 7, 2001
- --------------------------
William S. Ashmore
Executive Vice President August 22, 2001
/s/ Richard J. Johnson and Chief Financial Officer
- -------------------------- (Principal Financial and
Richard J. Johnson Accounting Officer)
/s/ James Walsh Director August 22, 2001
- --------------------------
James Walsh
/s/ Frank P. Filipps Director August 22, 2001
- --------------------------
Frank P. Filipps
/s/ Stephan R. Peers Director August 22, 2001
- --------------------------
Stephan R. Peers
/s/ William E. Rose Director August 22, 2001
- --------------------------
William E. Rose
/s/ Leigh J. Abrams Director August 7, 2001
- --------------------------
Leigh J. Abrams
EXHIBIT 4.2
IMPAC MORTGAGE HOLDINGS, INC.
2001 STOCK OPTION, DEFERRED STOCK
AND RESTRICTED STOCK PLAN
STOCK OPTION AGREEMENT
(EMPLOYEE)
NAME: _______________
This AGREEMENT is made effective as of the ___day of ___________, _______
(the "Option Grant Date"), by and between Impac Mortgage Holdings, Inc., a
Maryland corporation (the "Company") and ________________ (the "Optionee").
RECITALS
WHEREAS, the Company has established the 2001 Stock Option, Deferred Stock
and Restricted Stock Plan (the "Plan") effective as of _______ __, 2001, and
WHEREAS, pursuant to the provisions of said Plan, the Administrator has
granted to the Participant by action duly taken on ________ __, 200_, (the
"Award Date") a stock option award (the "Stock Option Award") based upon the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of services rendered and to be rendered by
the Participant and the mutual promises and covenants made herein, the mutual
benefits to be derived therefrom and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
AGREEMENT
1. The Option(s). The Optionee may, at his/her option, purchase all or any
part of an aggregate of __________ shares of Common Stock (the "Optioned
Shares"), at the price of $_________ per share (the "Option Price"), on the
terms and conditions set forth herein.
2. Option Type; Exercise Dates and Exercise. Options intended to qualify as
Incentive Stock Options are designated by an "ISO" under the category "Type."
Options intended as separate Non-Qualified Stock Options are designated by a
"NQSO" under the category "Type." The Option(s) shall be exercisable as to the
specified number of Optioned Shares on and after the "First" dates and on or
before the "Last" dates set forth below:
Type Number of Shares First and Last Date
- ---- ---------------- -------------------
Optionee acknowledges that he/she understands he/she has no right
whatsoever to exercise the Option(s) granted hereunder with respect to any
Optioned Shares covered by any installment until such installment accrues (and
is thus vested) as provided above. Optionee further understands that the
Option(s) granted hereunder shall expire and become unexercisable as provided in
Section 4(c) below.
In the event, within twelve (12) months after a Change in Control, the
Optionee's employment terminates other than (i) for Cause, (ii) voluntary
termination by the Optionee, or (iii) death or disability of the Optionee, fifty
percent (50%) of the unvested Optioned Shares shall vest upon the date of such
termination. The Board of Directors of the Company reserves the right to modify
the terms of this acceleration if such acceleration would materially affect the
ability of an acquiring entity to use "pooling of interests" accounting in
connection with any acquisition of the Company. For the purposes of the
foregoing, a "Change in Control" shall have the meaning set forth in Section
9(b) of the Plan. For purposes of this Agreement, "Cause" shall mean (i) an act
of dishonesty in connection with the Optionee's responsibilities as an employee
of the Company; (ii) the Optionee's conviction of, or plea of nolo contendere
to, a felony or a crime involving moral turpitude, (iii) the Optionee's
misconduct which has an adverse effect on the Company, or (iv) the Optionee's
failure to perform his or her employment duties.
3. Method of Exercise. This Option shall be deemed exercised as to the
shares to be purchased when written notice of such exercise has been given to
the Company at its principal business office by the Optionee with respect to the
Common Stock to be purchased. Such notice shall be accompanied by full payment
in cash or cash equivalents as determined by the Administrator. As determined by
the Administrator, in its sole discretion, payment in whole or part may also be
made (i) in the form of unrestricted Stock already owned by the Optionee, or, in
the case of the exercise of a Non-Qualified Stock Option, Restricted Stock
subject to an Award hereunder (based, in each case, on the Fair Market Value of
the Stock), (ii) by cancellation of any indebtedness owed by the Company to the
Optionee, (iii) by a full recourse promissory note executed by the Optionee,
(iv) by requesting that the Company withhold whole shares of Common Stock then
issuable upon exercise of the Stock Option (based on the Fair Market Value of
the Stock), (v) by arrangement with a broker which is acceptable to the
Administrator where payment of the option price is made pursuant to an
irrevocable direction to the broker to deliver all or part of the proceeds from
the sale of the shares underlying the option to the Company, or (vi) by any
combination of the foregoing; provided, however, that in the case of an
Incentive Stock Option, the right to make payment in the form of already owned
shares may be authorized only at the time of grant. Any payment in the form of
Stock already owned by the Optionee may be effected by use of an attestation
form approved by the Administrator. If payment of the
option exercise price of a NQSO is made in whole or in part in the form of
Restricted Stock or Deferred Stock, the shares received upon the exercise of
such Option (to the extent of the number of shares of Restricted Stock or
Deferred Stock surrendered upon exercise of such Option) shall be restricted in
accordance with the original terms of the Restricted Stock or Deferred Stock
award in question, except that the Administrator may direct that such
restrictions shall apply only to that number of shares surrendered upon the
exercise of such Option.
4. Governing Plan. This Agreement hereby incorporates by reference the Plan
and all of the terms and conditions of the Plan as heretofore amended and as the
same may be amended from time to time hereafter in accordance with the terms
thereof, but no such subsequent amendment shall adversely affect the Optionee's
rights under this Agreement and the Plan except as may be required by applicable
law. The Optionee expressly acknowledges and agrees that the provisions of this
Agreement are subject to the Plan; the terms of this Agreement shall in no
manner limit or modify the controlling provisions of the Plan, and in case of
any conflict between the provisions of the Plan and this Agreement, the
provisions of the Plan shall be controlling and binding upon the parties hereto.
The Optionee also hereby expressly acknowledges, represents and agrees as
follows:
(a) Acknowledges receipt of a copy of the Plan, a copy of which is attached
hereto and by reference incorporated herein, and represents that he/she is
familiar with the terms and provisions of said Plan, and hereby accepts this
Agreement subject to all the terms and provisions of said Plan.
(b) Agrees to accept as binding, conclusive and final all decisions or
interpretations of the Administrator upon any questions arising under the Plan.
(c) Acknowledges that he/she is familiar with Sections of the Plan
regarding the exercise of the Option(s) and represents that he/she understands
that said Option(s) must be exercised on or before the "Last" exercise date
noted above in Section 2 or such other date as set forth in the Plan, whichever
is earlier.
(d) Acknowledges, understands and agrees that the existence of the Plan and
the execution of this Agreement are not sufficient by themselves to cause any
exercise of any Option(s) granted as an Incentive Stock Option to qualify for
favorable tax treatment through the application of Section 422 of the Internal
Revenue Code; that Optionee must, in order to so qualify, individually meet by
his own action all applicable requirements of Section 422, including without
limitation the following holding period and employment requirements:
(1) holding period requirement: no disposition of an Optioned Share may be
made by Optionee within two (2) years from the date of the granting of the
Option(s) nor within one (1) year after the transfer of such Optioned Share to
him/her, and
(2) employment requirement: at all times during the period beginning on the
date of the granting of the Option(s) and ending on the day three (3) months
before the date of exercise, the Optionee must have been an employee of the
Company, its Parent, or a Subsidiary
of the Company, or a corporation or a parent or subsidiary of such corporation
issuing or assuming the Option(s) in a transaction to which Section 425(a) of
the Internal Revenue Code applies, except where the termination of employment is
by means of the employee's disability, in which case said three (3) month period
may be extended to one (1) year, as provided under Internal Revenue Code Section
422.
5. Representations and Warranties. Optionee hereby represents to the
Company that each of the Options evidenced hereby and the shares purchasable
upon exercise thereof are being acquired only for investment and without any
present intention to sell or distribute such securities.
6. Options Not Transferable. No Stock Option shall be transferable by the
Optionee other than by will or by the laws of descent and distribution.
Incentive Stock Options shall be exercisable, during the Optionee's lifetime,
only by the Optionee or, with respect to Non-Qualified Stock Options, in
accordance with the terms of a qualified domestic relations order.
7. No Enlargement of Employee Rights. Nothing in this Agreement shall be
construed to confer upon the Optionee (if an employee) any right to continued
employment with the Company or to restrict in any way the right of the Company
to terminate his/her employment. Optionee acknowledges that in the absence of an
express written employment agreement to the contrary, the Company may terminate
Optionee's employment with the Company at any time, with or without cause.
8. Withholding of Taxes. Optionee authorizes the Company to withhold, in
accordance with any applicable law, from any compensation payable to him any
taxes required to be withheld by federal, state or local law as a result of the
grant of the Option(s) or the issuance of stock pursuant to the exercise of such
Option(s).
9. Laws Applicable to Construction. This Agreement shall be construed and
enforced in accordance with the laws of the State of California.
10. Agreement Binding on Successors. The terms of this Agreement shall be
binding upon the executors, administrators, heirs, successors, transferees and
assignees of the Optionee.
11. Costs of Litigation. In any action at law or in equity to enforce any
of the provisions or rights under this Agreement or the Plan, the unsuccessful
party to such litigation, as determined by the court in a final judgment or
decree, shall pay the successful party or parties all costs, expenses and
reasonable attorneys' fees incurred by the successful party or parties
(including without limitation costs, expenses end fees on any appeals), and if
the successful party recovers judgment in any such action or proceeding such
costs, expenses and attorneys' fees shall be included as part of the judgment.
12. Necessary Acts. The Optionee agrees to perform all acts and execute and
deliver any documents that may be reasonably necessary to carry out the
provisions of this Agreement, including but not limited to all acts and
documents related to compliance with federal and/or
state securities laws.
13. Counterparts. For convenience this Agreement may be executed in any
number of identical counterparts, each of which shall be deemed a complete
original in itself and may be introduced in evidence or used for any other
purpose without the production of any other counterparts.
14. Invalid Provisions. In the event that any provision of this Agreement
is found to be invalid or otherwise unenforceable under any applicable law, such
invalidity or unenforceability shall not be construed as rendering any other
provisions contained herein invalid or unenforceable, and all such other
provisions shall be given full force and effect to the same extent as though the
invalid and unenforceable provision was not contained herein.
15. Limitation on Value of Optioned Shares. Optionee acknowledges that the
Plan provides that the aggregate fair market value (determined as of the date
hereof) of the shares of Common Stock to which Options granted as Incentive
Stock Options are exercisable for the first time by Optionee during any calendar
year under all incentive stock option plans of the Company and any future
Subsidiary shall not exceed $100,000. It is understood and agreed that should it
be determined that an Option if granted as an Incentive Stock Option hereunder
would exceed such maximum, such Option shall be considered granted as a
Non-Qualified Stock Option to the extent, but only to the extent of such excess.
This limitation shall not apply to any option granted as a Non-Qualified Stock
Option.
IN WITNESS WHEREOF, the Company and the Optionee have executed this
Agreement effective as of the date first written hereinabove.
IMPAC MORTGAGE HOLDINGS, INC. OPTIONEE
By:
------------------------------------ -----------------------------------
Name:
-----------------------------
Title:
-----------------------------
-----------------------------------
(Print Name)
Address of Optionee:
- ---------------------------------------- -----------------------------------
(Social Security)
- ----------------------------------------
- ----------------------------------------
By his or her signature below, the spouse of the Optionee, if such Optionee
be legally married as of the date of his execution of this Agreement,
acknowledges that he or she has read this Agreement and the Plan and is familiar
with the terms and provisions thereof, and agrees to be bound by all the terms
and conditions of said Agreement and said Plan document.
-----------------------------------
Spouse
Dated:
----------------------------
By his or her signature below the Optionee represents that he or she is not
legally married as of the date of execution of this Agreement.
-----------------------------------
Optionee
Dated:
----------------------------
EXHIBIT 5
OPINION AND CONSENT OF MCKEE NELSON LLP
August 17, 2001
Impac Mortgage Holdings, Inc.
1401 Dove Street
Newport Beach, California 92660
Re: Registration Statement on Form S-8
Dear Ladies and Gentlemen:
We have acted as Maryland counsel to Impac Mortgage Holdings, Inc., a
Maryland corporation (the "Company"), in connection with the registration on
Form S-8 (the "Registration Statement") under the Securities Act of 1933, as
amended, of 1,000,000 shares of common stock, $0.01 par value per share (the
"Shares") under the Impac Mortgage Holdings, Inc. 2001 Stock Option, Deferred
Stock, and Restricted Stock Plan (the "2001 Stock Plan").
This opinion is being furnished in accordance with the requirements of Item
8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K.
In connection with this opinion, we have reviewed the Company's
Registration Statement, which is to be filed on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Act"), covering
1,000,000 shares of the Company's Common Stock (the "Shares") issuable under the
Plan; the organizational documents of the Company; certain of the Company's
proceedings as reflected in its minute books; and such other records as we have
deemed relevant.
In our examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the conformity to
originals of all documents submitted to us as certified, photostatic or
conformed copies, and the authenticity of the originals of all such latter
documents. We have also assumed the due execution and delivery of all documents
where due execution and delivery are prerequisites to the effectiveness thereof.
We have relied upon certificates of public officials and certificates of
officers of the Company for the accuracy of material, factual matters contained
therein which were not independently established.
Based on such review, we are of the opinion that if, as and when the Shares
are issued and sold (and the consideration therefor received) pursuant to the
provisions of option agreements or stock issuance agreements duly authorized,
executed and delivered under the 2001 Stock Plan and in accordance with the
Registration Statement, such Shares will be duly authorized, validly issued,
fully paid and nonassessable.
We express no opinion as to the applicability or effect of any laws, orders
or judgments of any state or jurisdiction other than the substantive laws of the
State of Maryland. This opinion letter is rendered as of the date first written
above and we disclaim any obligation to advise you of facts, circumstances,
events or developments which hereafter may be brought to our attention and which
may alter, affect or modify the opinion expressed herein. Our opinion is
expressly limited to the matters set forth above.
We consent to the filing of this opinion letter as an exhibit to the
Registration Statement and further consent to the use of our name wherever
appearing in the Registration Statement.
By giving you this opinion and consent, we do not admit that we are experts
with respect to any part of the Registration Statement within the meaning of the
term "expert" as used in Section 11 of the Securities Act of 1933, as amended,
or the rules and regulations promulgated thereunder by the SEC, nor do we admit
that we are in the category of persons whose consent is required under Section 7
of the Securities Act of 1933, as amended.
This opinion is being furnished for your benefit. Accordingly it may not be
relied upon by, quoted in any manner to, or delivered to any other person or
entity (except Kirkpatrick & Lockhart LLP, counsel to the Company) without, in
each instance, our prior written consent.
Very truly yours,
/s/ MCKEE NELSON LLP
-----------------------------------
MCKEE NELSON LLP
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Impac Mortgage Holdings, Inc.
We consent to the use of our report incorporated herein by reference.
/s/ KPMG LLP
Orange County, California
August 14, 2001