As filed with the Securities and Exchange Commission on November 25, 2013
Registration No. 001-36174
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
NMI Holdings, Inc.
(Exact name of registrant as specified in its charter)
Delaware | 45-4914248 | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) | |
2100 Powell Street, 12th Floor
Emeryville, CA 94608
(855) 530-6642
(Address of principal executive offices) (Zip Code)
NMI Holdings, Inc. 2012 Stock Incentive Plan
(Full title of the Plan)
Glen Corso |
EVP General Counsel |
2100 Powell Street, 12th Floor |
Emeryville, CA 94608 |
(Name and address of agent for service)
(510) 858-0410 |
(Telephone number, including area code, of agent for service)
Copies to:
David E. Shapiro, Esq. |
Wachtell, Lipton, Rosen & Katz |
51 West 52nd Street |
New York, New York 10019 |
Telephone: (212) 403-1000 |
Facsimile: (212) 403-2000 |
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 definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer | ¨ | Accelerated Filer | ¨ | |
Non-accelerated filer | x | (Do not check if a smaller reporting company) | Smaller reporting company | ¨ |
CALCULATION OF REGISTRATION FEE
Title of securities to be registered | Amount to be registered | Proposed maximum offering price per share | Proposed maximum aggregate offering price | Amount of registration fee |
Class A common stock, $0.01 par value per share, to be issued upon exercise of options under the NMI Holdings, Inc. Stock Incentive Plan | 3,062,579 (1) | $10.31 (2) | $31,637,049 (2) | $4,067 |
Class A common stock, $0.01 par value per share, to be issued under the NMI Holdings, Inc. Stock Incentive Plan | 2,437,421 (1) | $13.95 (3) | $34,002,023 (3) | $4,379 |
(1) Pursuant to Rule 416(a) under the Securities Act of 1933 (the “Securities Act”), this registration statement shall also be deemed to cover any additional securities to be offered or issued in connection with the provisions of the above-referenced plan, which provide for adjustments in the amount of securities to be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.
(2) | Estimated in accordance with Rule 457(h) under the Securities Act, solely for the purpose of calculating the registration fee. The price of $10.31 represents the weighted average exercise price for outstanding options as of November 22, 2013. |
(3) | Estimated in accordance with Rule 457(h) under the Securities Act, solely for the purpose of calculating the registration fee. The price of $13.95 represents the average of the high and the low sale prices of the Class A common stock on the Nasdaq Global Market on November 22, 2013. |
EXPLANATORY NOTE
The purpose of this Form S-8 Registration Statement is to register an aggregate of 5,500,000 shares of NMI Holdings, Inc. (“we,” “our,” “us,” “NMI” or the “Company”) Class A Common Stock, par value $0.01 per share (the “Common Stock”), that may be offered pursuant to the NMI Holdings, Inc. 2012 Stock Incentive Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I will be sent or given to employees as specified by Rule 428(b)(1) of the Securities Act. Such documents need not be filed with the Securities and Exchange Commission (the “Commission”) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II hereof, 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 with the Commission by the Company are incorporated in this Registration Statement by reference:
1. | The Company’s final prospectus dated November 7, 2013 and filed with the Commission on November 8, 2013 pursuant to Rule 424(b)(4) under the Securities Act of 1933 in connection with the Company’s initial public offering Registration Statement on Form S-1 (File No. 333-191635); |
2. | The Company’s other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act"), as amended since the end of the fiscal year covered by the document listed in the first item above; and |
3. | The description of the Common Stock, set forth in the Company’s resale shelf Registration Statement on Form S-1 filed June 21, 2013 (Commission File Number 333-189507) and any amendments, reports or other filings filed with the Commission for the purpose of updating that description. |
To the extent that any information contained in any report on Form 8-K, or any exhibit thereto, was furnished to, rather than filed with, the Commission, such information or exhibit is specifically not incorporated by reference.
All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered hereunder have been sold or which deregisters all of the securities offered then remaining unsold, shall be deemed to be incorporated herein by reference and to be a part hereof from the date of filing of such documents.
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 Company is a Delaware corporation.
Section 102(b)(7) of the Delaware General Corporation Law (“DGCL”) permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL (regarding, among other things, the payment of unlawful dividends or unlawful stock purchases or redemptions), or (iv) for any transaction from which the director derived an improper personal benefit. Our amended and restated certificate of incorporation provides for such limitation of liability.
Section 145(a) of the DGCL empowers a corporation to indemnify any director, officer, employee or agent, or former director, officer, employee or agent, who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation), by reason of such person’s service as a director, officer, employee or agent of the corporation, or such person’s service, at the corporation’s request, as a director, officer, employee or agent
of another corporation or enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding; provided that such director or officer acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the corporation; and, with respect to any criminal action or proceeding, provided that such director or officer had no reasonable cause to believe his conduct was unlawful.
Section 145(b) of the DGCL empowers a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred in connection with the defense or settlement of such action or suit; provided that such director or officer acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification may be made in respect of any claim, issue or matter as to which such director or officer shall have been adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such director or officer is fairly and reasonably entitled to indemnity for such expenses that the court shall deem proper. Notwithstanding the preceding sentence, except as otherwise provided in our amended and restated by-laws, we shall be required to indemnify any such person in connection with a proceeding (or part thereof) commenced by such person only if the commencement of such proceeding (or part thereof) by any such person was authorized by our Board.
In addition, our second amended and restated certificate of incorporation provides that we must indemnify our directors and officers to the fullest extent authorized by law. We are also expressly required to advance certain expenses to our directors and officers and carry directors’ and officers’ insurance providing indemnification for our directors and officers for some liabilities. We believe that these indemnification provisions and the directors’ and officers’ insurance are useful to attract and retain qualified directors and executive officers.
We have also entered into indemnification agreements with each of our directors and certain officers. The indemnification agreements provide, among other things, for indemnification to the fullest extent permitted by law and our amended and restated certificate of incorporation and by-laws against any and all expenses and liabilities, including judgments, fines, penalties, interest and amounts paid in settlement of any claim with our approval and counsel fees and disbursements. The indemnification agreements also provide for the advancement or payment of expenses to the indemnitee and for reimbursement to us if it is found that such indemnitee is not entitled to such indemnification under applicable law and our amended and restated certificate of incorporation and by-laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The list of exhibits is set forth under “Exhibit Index” at the end of this registration statement and is incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
A. | The undersigned registrant hereby undertakes: |
(1)To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii)To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. 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 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) above do not apply if the registration statement is on Form S-8, and 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 Securities Exchange Act of 1934 that are incorporated by reference in the registration statement.
(2)That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3)To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act 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.
C. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the 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 of 1933 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 Emeryville, California on November [25], 2013.
NMI Holdings, Inc.
(Registrant)
By: /s/ Bradley M. Shuster
Name: Bradley M. Shuster
Title: | Chairman, President and Chief Executive Officer |
Each person whose signature appears below hereby constitutes and appoints Bradley M. Shuster, John M. Sherwood, Jr. and Glen S. Corso, and each of them acting individually, as his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, to execute for him and in his name, place and stead, in any and all capacities, any and all amendments (including post-effective amendments) to this registration statement and any registration statement for the same offering covered by this registration statement that is to be effective upon filing pursuant to Rule 462 promulgated under the Securities Act of 1933, as amended, as the attorney-in-fact and to file the same, with all exhibits thereto and any other documents required in connection therewith with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents and their substitutes, 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 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 substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this amendment to its registration statement has been signed below by the following persons in the capacities and on the dates indicated:
Signature | Title | Date | ||
/s/ Bradley M. Shuster | Chairman, President and Chief Executive Officer | November 25, 2013 | ||
Bradley M. Shuster | (Principal Executive Officer) | |||
/s/ John M. Sherwood, Jr. | Chief Financial Officer | November 25, 2013 | ||
John M. Sherwood, Jr. | (Principal Financial and Accounting Officer) | |||
/s/ Steven L. Scheid | Director | November 25, 2013 | ||
Steven L. Scheid | ||||
/s/ James G. Jones | Director | November 25, 2013 | ||
James G. Jones | ||||
/s/ John Brandon Osmon | Director | November 25, 2013 | ||
John Brandon Osmon | ||||
/s/ Michael Montgomery | Director | November 25, 2013 | ||
Michael Montgomery | ||||
/s/ Michael Embler | Director | November 25, 2013 | ||
Michael Embler | ||||
/s/ James H. Ozanne | Director | November 25, 2013 | ||
James H. Ozanne | ||||
EXHIBIT INDEX
Exhibit Number | Description | ||
3.1 | Second Amended and Restated Certificate of Incorporation (incorporated herein by reference to Exhibit 3.1 to the Company's Form S-1 Registration Statement (Registration No. 333-191635), filed on October 9, 2013) | ||
3.2 | Amended and Restated By-Laws (incorporated herein by reference to Exhibit 3.2 to the Company's Form S-1 Registration Statement (Registration No. 333-191635), filed on October 9, 2013) | ||
4.1 | Registration Rights Agreement between NMI Holdings, Inc. and FBR Capital Markets & Co., dated April 24, 2012 (incorporated herein by reference to Exhibit 4.2 to the Company's Form S-1 Registration Statement (Registration No. 333-191635), filed on October 9, 2013) | ||
4.2 | Registration Rights Agreement by and between MAC Financial Ltd. and NMI Holdings, Inc., dated April 24, 2012 (incorporated herein by reference to Exhibit 4.3 to the Company's Form S-1 Registration Statement (Registration No. 333-191635), filed on October 9, 2013) | ||
4.3 | Registration Rights Agreement between FBR & Co., FBR Capital Markets LT, Inc., FBR Capital Markets & Co., FBR Capital Markets PT, Inc. and NMI Holdings, Inc., dated April 24, 2012 (incorporated herein by reference to Exhibit 4.4 to the Company's Form S-1 Registration Statement (Registration No. 333-191635), filed on October 9, 2013) | ||
5.1 | Opinion of Wachtell, Lipton, Rosen & Katz | ||
10.1 | NMI Holdings, Inc. 2012 Stock Incentive Plan (incorporated herein by reference to Exhibit 10.1 to the Company's Form S-1 Registration Statement (Registration No. 333-191635), filed on October 9, 2013) | ||
23.1 | Consent of BDO USA, LLP | ||
23.2 | Consent of Wachtell, Lipton, Rosen & Katz (included in Exhibit 5.1) | ||
24.1 | Power of Attorney (included on signature page) | ||
EXHIBIT 5.1
November 25, 2013
NMI Holdings, Inc.
2100 Powell Street, 12th Floor
Emeryville, CA 94608
Ladies and Gentlemen:
We have acted as special counsel to NMI Holdings, Inc., a Delaware corporation (the “Company”), in connection with the Registration Statement on Form S-8 (the “Registration Statement”, which term does not include any other document or agreement whether or not specifically referred to therein or attached as an exhibit or schedule thereto) relating to the registration under the U.S. Securities Act of 1933, as amended (the “Securities Act”), of up to 5,500,000 shares of Class A common stock, par value $0.01 per share, of the Company (the “Shares”) which may be issued pursuant to the NMI Holdings, Inc. 2012 Stock Incentive Plan (the “Plan”). In connection with the foregoing, you have requested our opinion with respect to the following matters.
For the purposes of giving the opinion contained herein, we have examined the Registration Statement. We have also examined the originals, or duplicates or certified or conformed copies, of such corporate records, agreements, documents and other instruments, including the certificate of incorporation and bylaws of the Company, and have made such other investigations as we have deemed relevant and necessary in connection with the opinions set forth below. As to questions of fact material to this opinion, we have relied, with your approval, upon oral and written representations of officers and representatives of the Company and certificates or comparable documents of public officials and of officers and representatives of the Company.
In making such examination and rendering the opinions set forth below, we have assumed without verification the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the authenticity of the originals of such documents submitted to us as certified copies, the conformity to originals of all documents submitted to us as copies, the authenticity of the originals of such documents, that all documents submitted to us as certified copies are true and correct copies of such originals and the legal capacity of all individuals executing any of the foregoing documents. We have also assumed that the Shares, when issued, will be duly authenticated by the transfer agent and registrar for the Shares.
EXHIBIT 5.1
Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that when the Shares have been issued in accordance with the provisions of the Plan, the Shares will be validly issued, duly authorized, fully paid and nonassessable.
We are members of the bar of the State of New York, and we do not express any opinion herein concerning any law other than the Delaware General Corporation Law (including the statutory provisions, all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting the foregoing).
This opinion letter speaks only as of its date and is delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act. We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement. In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act, and the rules and regulations of the SEC promulgated thereunder.
Very truly yours,
/s/ Wachtell, Lipton, Rosen & Katz
EXHIBIT 23.1
Consent of Independent Registered Public Accounting Firm
NMI Holdings, Inc.
Emeryville, California
We hereby consent to the incorporation by reference in the Prospectus constituting a part of this Registration Statement of our report dated February 14, 2013, relating to the consolidated financial statements, of NMI Holdings, Inc. (A Development Stage Company), appearing in the Company’s Final prospectus dated November 7, 2013 and filed with the Commission on November 8, 2013 pursuant to Rule 424(b)(4) under the Securities Act in connection with the Company’s registration statement on Form S-1 (File No. 333-191635)
We also consent to the reference to us under the caption “Experts” in the Prospectus.
/s/BDO USA, LLP
San Francisco, California
November 25, 2013
EXHIBIT 23.2
Consent of Independent Registered Public Accounting Firm
NMI Holdings, Inc.
Emeryville, California
We hereby consent to the incorporation by reference in the Prospectus constituting a part of this Registration Statement of our report dated June 14, 2013, relating to the consolidated financial statements, of MAC Financial Holdings Corporation (A Development Stage Company), appearing in the Company’s Final prospectus dated November 7, 2013 and filed with the Commission on November 8, 2013 pursuant to Rule 424(b)(4) under the Securities Act in connection with the Company’s registration statement on Form S-1 (File No. 333-191635)
We also consent to the reference to us under the caption “Experts” in the Prospectus.
/s/BDO USA, LLP
San Francisco, California
November 25, 2013