As filed with the Securities and Exchange Commission on May 15, 2012
Registration No. 333-
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Western Asset Mortgage Capital Corporation
(Exact name of registrant as specified in its charter)
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Delaware |
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27-0298092 |
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(State or other jurisdiction of
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(I.R.S. Employer
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385 East Colorado Boulevard Pasadena, California |
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91101 |
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(Address of principal executive offices) |
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(Zip code) |
Western Asset Mortgage Capital Corporation Equity Plan
(Full title of the plan)
Charles A. Ruys de Perez
Secretary
Western Asset Mortgage Capital Corporation
385 East Colorado Boulevard
Pasadena, California 91101
(626) 844-9400
(Name and address, including zip code, and telephone number, including
area code, of agent for service)
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
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Large Accelerated filer o |
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Accelerated filer |
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Non-Accelerated filer x (Do not check if a smaller reporting company) |
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Smaller Reporting Company |
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities to
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Amount to be
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Proposed Maximum
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Proposed Maximum
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Amount of
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Common Stock, $0.01 par value per share |
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257,176 |
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18.78 |
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4,829,765.28 |
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$ |
553.50 |
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(1) Represents the maximum number of shares of the Registrant’s Common Stock, par value $0.01 per share (the “Common Stock”), issuable under the Western Asset Mortgage Capital Corporation Equity Plan (the “Plan”) as of May 15, 2012. Pursuant to the Plan, the maximum number of shares of Common Stock reserved for the grant of awards thereunder is equal to 3.0% of the issued and outstanding shares of Common Stock (on a fully diluted basis) at the time of the grant of the award (other than any shares of Common Stock issued or subject to awards made pursuant to the Plan or the Western Asset Mortgage Capital Corporation Manager Equity Plan), less any shares of Common Stock issued or subject to awards granted under the Western Asset Mortgage Capital Corporation Manager Equity Plan. Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers an additional indeterminate amount of shares to be offered or sold pursuant to the Plan and shares that may become issuable under the Plan by reason of certain corporate transactions or events, including any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of the registrant’s outstanding shares of common stock.
(2) Estimated solely for the purpose of calculating the registration fee pursuant to paragraphs (c) and (h) of Rule 457 under the Securities Act, on the basis of the average of the high and the low sales prices of the Common Stock on the New York Stock Exchange on May 14, 2012.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information. *
Item 2. Registrant Information and Employee Plan Annual Information. *
* The documents containing the information specified in this 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 “SEC”) 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 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 previously filed by Western Asset Mortgage Capital Corporation (the “Company”) with the SEC are incorporated by reference in this registration statement:
(a) The Company’s prospectus, dated May 9, 2012, filed pursuant to Rule 424(b) under the Securities Act (the “Prospectus”); and
(b) The description of the Company’s Common Stock, contained in the Company’s Registration Statement on Form 8-A filed with the SEC on May 7, 2012 to register the Common Stock under the Exchange Act of 1934, as amended, (the “Exchange Act”) including any amendment or report filed for the purpose of updating such description.
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 to this registration statement that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be 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 subsequently filed document that also is or is deemed to be incorporated by reference in this registration statement, modifies or supersedes such prior statement. Any statement contained in this registration statement shall be deemed to be modified or superseded to the extent that a statement contained in a subsequently filed document that is or is deemed to be incorporated by reference in this registration statement modifies or supersedes such prior statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 102 of the Delaware General Corporation Law, as amended, or the DGCL, allows a corporation to eliminate the personal liability of a director of a corporation to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except where the director breached his duty of loyalty to the corporation or its stockholders, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock purchase or redemption in violation of Delaware corporate law or obtained an improper personal benefit.
Section 145 of the DGCL provides, among other things, that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the corporation’s request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with the action, suit or proceeding. The power to indemnify applies (i) if such person is successful on the merits or otherwise in defense of any action, suit or proceeding or (ii) if such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The power to indemnify applies to actions brought by or in the right of the corporation as well, but only to the extent of defense expenses, (including attorneys’ fees but excluding amounts paid in settlement) actually and reasonably incurred by the indemnified person and not to any satisfaction of judgment or settlement of the claim itself, and with the further limitation that in such actions no indemnification shall be made in the event such person is adjudged liable to the corporation unless a court believes that in light of all the circumstances indemnification should apply.
Section 174 of the DGCL provides, among other things, that a director who willfully and negligently approves of an unlawful payment of dividends or an unlawful stock purchase or redemption may be held liable for such actions. A director who was either absent when the unlawful actions were approved or dissented at the time, may avoid liability by causing his dissent to such actions to be entered in the books containing the minutes of the meetings of the board of directors at the time the action occurred or immediately after the absent director receives notice of the unlawful acts.
Article Sixth of the Company’s certificate of incorporation provides that the Company’s directors shall not be personally liable to the Company and the Company’s stockholders except for liability (i) for any breach of the director’s duty of loyalty to us or any stockholder (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, pursuant to Section 174 of the DGCL, or for any transaction from which the Director derived an improper personal benefit.
The Company’s bylaws and certificate of incorporation provide that the Company may indemnify any person who is or was a director, officer, employee or agent of the Company to the fullest extent permitted by Delaware law. The indemnification provisions contained in the Company’s bylaws and certificate of incorporation are not exclusive of any other rights to which a person may be entitled by law, agreement, vote of stockholders or disinterested directors or otherwise.
In connection with the Company’s initial public offering, the Company entered into separate indemnification agreements with each of its directors and officers. Each indemnification agreement provides, among other things, for indemnification to the fullest extent permitted by Delaware law and the Company’s amended and restated certificate of incorporation and amended and restated bylaws. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the Company pursuant to the foregoing provisions, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits .
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Exhibit
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Description |
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3.1* |
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Amended and Restated Certificate of Incorporation of Western Asset Mortgage Capital Corporation |
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3.2* |
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Amended and Restated Bylaws of Western Asset Mortgage Capital Corporation |
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5.1 |
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Opinion of Skadden, Arps, Slate, Meagher & Flom LLP (including consent of such firm) |
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10.1** |
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Form of Western Asset Mortgage Capital Corporation Equity Plan |
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10.2 |
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Form of Restricted Stock Award Agreement for independent directors |
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23.1 |
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Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.1) |
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23.2 |
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Consent of PricewaterhouseCoopers LLP |
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24.1 |
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Power of Attorney (included on signature page) |
* Incorporated by reference to the like-numbered exhibit to Amendment No. 10 to the Company’s Registration Statement on Form S-11 (Registration No. 333-159962), filed with the SEC on May 8, 2012.
** Incorporated by reference to Exhibit 10.5 to Amendment No. 9 to the Company’s Registration Statement on Form S-11 (Registration No. 333-159962), filed with the SEC on April 30, 2012.
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;
(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% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
(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:
(A) paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the 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.
(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, 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.
(c) 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 Securities and Exchange 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 Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing the Registration Statement on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in City of Pasadena, State of California, on May 15, 2012.
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WESTERN ASSET MORTGAGE CAPITAL CORPORATION |
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By: |
/s/ GAVIN L. JAMES |
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Name: |
Gavin L. James |
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Title: |
President and Chief Executive Officer |
POWER OF ATTORNEY
Each of the undersigned officers and directors of Western Asset Mortgage Capital Corporation, a Delaware corporation, hereby constitutes and appoints Charles A. Ruys de Perez and Stephen Venable and each of them, severally, as his attorney-in-fact and agent, with full power of substitution and resubstitution, in his name and on his behalf, to sign in any and all capacities this Registration Statement on Form S-8 and any and all amendments (including post- effective amendments) and exhibits to this Registration Statement on Form S-8 and any and all applications and other documents relating thereto, with the Securities and Exchange Commission, with full power and authority to perform and do any and all acts and things whatsoever which any such attorney or substitute may deem necessary or advisable to be performed or done in connection with any or all of the above-described matters, as fully as each of the undersigned could do if personally present and acting, hereby ratifying and approving all acts of any such attorney or substitute.
Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the date indicated.
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Signature |
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Title |
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Date |
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/s/ GAVIN L. JAMES |
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President, Chief Executive Officer and Director |
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May 15, 2012 |
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Gavin L. James |
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(principal executive officer) |
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/s/ BRUCE D. ALBERTS |
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Interim Chief Financial Officer (principal financial |
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May 15, 2012 |
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Bruce D. Alberts |
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officer and principal accounting officer) |
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/s/ EDWARD D. FOX |
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Director |
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May 15, 2012 |
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Edward D. Fox |
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/s/ M. CHRISTIAN MITCHELL |
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Director |
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May 15, 2012 |
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M. Christian Mitchell |
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/s/ RICHARD W. ROLL |
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Director |
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May 15, 2012 |
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Richard W. Roll |
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EXHIBIT INDEX
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Exhibit
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Description |
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3.1* |
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Amended and Restated Certificate of Incorporation of Western Asset Mortgage Capital Corporation |
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3.2* |
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Amended and Restated Bylaws of Western Asset Mortgage Capital Corporation |
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5.1 |
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Opinion of Skadden, Arps, Slate, Meagher & Flom LLP (including consent of such firm) |
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10.1** |
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Western Asset Mortgage Capital Corporation Equity Plan |
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10.2 |
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Form of Restricted Stock Award Agreement for independent directors |
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23.1 |
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Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.1) |
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23.2 |
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Consent of PricewaterhouseCoopers LLP |
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24.1 |
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Power of Attorney (included on signature page) |
* Incorporated by reference to the like-numbered exhibit to Amendment No. 10 to the Company’s Registration Statement on Form S-11 (Registration No. 333-159962), filed with the SEC on May 8, 2012.
** Incorporated by reference to Exhibit 10.5 to Amendment No. 9 to the Company’s Registration Statement on Form S-11 (Registration No. 333-159962), filed with the SEC on April 30, 2012.
Exhibit 5.1
[Skadden, Arps, Slate, Meagher & Flom LLP Letterhead]
May 15, 2012
Western Asset Mortgage Capital Corporation
c/o Western Asset Management Company
385 East Colorado Boulevard
Pasadena, California 91101
Re: Western Asset Mortgage Capital Corporation
Registration Statement on Form S-8 (File No. 333- )
Ladies and Gentlemen:
We have acted as special counsel to Western Asset Mortgage Capital Corporation, a Delaware corporation (the “Company”), in connection with the Registration Statement on Form S-8 of the Company (the “Registration Statement”) to be filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), on the date hereof, relating to the registration of 257,176 shares (the “Plan Shares”) of the Company’s common stock, par value $0.01 per share (the “Common Stock”), issuable pursuant to the Western Asset Mortgage Capital Corporation Equity Plan (the “Plan”)
This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the “Act”).
In connection with this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of: (i) the Registration Statement; (ii) the Plan; (iii) the Amended and Restated Certificate of Incorporation of the Company, as currently in effect and as certified by the Secretary of State of the State of Delaware (the “Charter”); (iv) the Amended and Restated By-Laws of the Company, as currently in effect (the “By-Laws”); and (v) certain resolutions of the Board of Directors of the Company (the “Board”) relating to (A) the adoption of the Plan, (B) the reservation of the Plan Shares, (C) the filing of the Registration Statement, and (D) the grant, immediately following the filing and effectiveness of the Registration Statement, pursuant to the Plan of an aggregate of 4,500 shares of restricted Common Stock to certain non-employee directors of the Company (the “Restricted Plan Shares”).
We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and such agreements, certificates of public officials, certificates of officers or other representatives of the Company and others, and such other documents, certificates and records as we have deemed necessary or appropriate as a basis for the opinion set forth herein.
In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic, certified, conformed or photostatic copies, and the authenticity of the originals of such copies. In making our examination of executed documents, we have assumed that the parties thereto, other than the Company, had the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and the execution and delivery by such parties of such
documents and the validity and binding effect thereof on such parties. As to any facts material to the opinion expressed herein which we have not independently established or verified, we have relied upon statements and representations of officers and other representatives of the Company and others. We have also assumed that:
(a) the Board, or a duly authorized committee thereof, will take all necessary corporate action, including under the terms of the Plan, to authorize and approve the issuance of the Plan Shares other than the Restricted Plan Shares (the “Available Plan Shares”);
(b) the consideration received by the Company for each Plan Share delivered pursuant to the Plan shall not be less than the par value of the Common Stock;
(c) the Company and any relevant optionholder will have executed a grant certificate, award certificate or other agreement relating to such options (the “Grant Certificate”) in accordance with the terms of the Plan; and
(d) the Company has received and will receive in full all consideration recited in the resolutions of the Board of Directors (or duly authorized committee thereof) approving the issuance of the Restricted Plan Shares and the Available Plan Shares, respectively.
Members of our firm are admitted to the bar in the State of New York, and we do not express any opinion as to the laws of any jurisdiction other than the corporate laws of the State of Delaware, and we do not express any opinion as to the effect of any other laws on the opinion stated herein.
Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that:
1. When the Board, or a duly authorized committee thereof, has taken all necessary corporate action to authorize and approve the issuance of the Available Plan Shares and when the Available Plan Shares are issued in accordance with the terms of the Plan, and, with respect to the Available Plan Shares issuable upon the exercise of options, the Grant Certificates, and the issuance thereof is duly registered in the Company’s books and records, the Available Plan Shares will be validly issued, fully paid and nonassessable.
2. The Restricted Plan Shares have been duly authorized for issuance, and when issued in accordance with the terms of the Plan and the issuance thereof is duly registered in the Company’s books and records, the Restricted Plan Shares will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission.
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Very truly yours, |
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/s/ Skadden, Arps, Slate, Meagher & Flom LLP |
Exhibit 10.2
WESTERN ASSET MORTGAGE CAPITAL CORPORATION
EQUITY PLAN
FORM OF RESTRICTED STOCK AWARD AGREEMENT
THIS RESTRICTED STOCK AWARD AGREEMENT, (the “Agreement”), dated as of , 2012 (the “Grant Date”), is made by and between Western Asset Mortgage Capital Corporation, a Delaware corporation (the “Company”), and [ ] (the “Grantee”).
WHEREAS, the Company has adopted the Western Asset Mortgage Capital Corporation Equity Plan (the “Plan”), pursuant to which the Company may grant to the Grantee shares of Stock which are restricted as to transfer (shares so restricted hereinafter referred to as “Restricted Stock”);
WHEREAS, the Grantee is a natural person who is providing bona fide services to the Company on the date of this Agreement;
WHEREAS, the Company desires to grant to the Grantee the number of shares of Restricted Stock provided for herein;
NOW, THEREFORE, in consideration of the recitals and the mutual agreements herein contained, the parties hereto agree as follows:
Section 1. Grant of Restricted Stock Award
(a) Grant of Restricted Stock. The Company hereby grants to the Grantee [ ] shares of Restricted Stock on the terms and conditions set forth in this Agreement and as otherwise provided in the Plan.
(b) Incorporation of Plan. The provisions of the Plan are hereby incorporated herein by reference. Except as otherwise expressly set forth herein, this Agreement shall be construed in accordance with the provisions of the Plan and any capitalized terms not otherwise defined in this Agreement shall have the definitions set forth in the Plan. The Board shall have final authority to interpret and construe the Plan and this Agreement and to make any and all determinations thereunder, and its decision shall be binding and conclusive upon the Grantee and its representatives in respect of any questions arising under the Plan or this Agreement.
Section 2. Terms and Conditions of Award
The grant of Restricted Stock provided in Section 1(a) shall be subject to the following terms, conditions and restrictions:
(a) Ownership of Shares. Subject to the restrictions set forth in the Plan and this Agreement, the Grantee shall possess all incidents of ownership of the Restricted Stock granted hereunder, including the right to receive dividends and distributions with respect to such Stock, as set forth in clause (b) below, and the right to vote such Stock.
(b) Payment of Dividends and Distributions . The Grantee shall be entitled to receive dividends and distributions which become payable on the Restricted Stock at the time such dividends and distributions are paid to other holders of Stock. Stock distributed in connection with such a dividend or distribution shall be subject to restrictions and a risk of forfeiture to the same extent as such Restricted Stock.
(c) Restrictions. Restricted Stock and any interest therein, may not be sold, assigned, transferred, pledged, hypothecated or otherwise disposed of prior to the lapse of restrictions set forth in this Agreement applicable thereto, as set forth in Section 2(e). The Board may in its discretion, cancel all or any portion of any outstanding restrictions prior to the expiration of the periods provided under Section 2(e).
(d) Certificate; Restrictive Legend. The Grantee agrees that any certificate issued for Restricted Stock prior to the lapse of any outstanding restrictions relating thereto shall be inscribed with the following legend:
This certificate and the shares of stock represented hereby are subject to the terms and conditions, including forfeiture provisions and restrictions against transfer (the “Restrictions”), contained in the Western Asset Mortgage Capital Corporation Equity Plan and an agreement entered into between the registered owner and Western Asset Mortgage Capital Corporation. Any attempt to dispose of these shares in contravention of the Restrictions, including by way of sale, assignment, transfer, pledge, hypothecation or otherwise, shall be null and void and without effect.
(e) Lapse of Restrictions; Forfeiture. Except as may otherwise be provided herein, the restrictions on transfer set forth in Section 2(c) shall lapse with respect to 33.33% of the shares of Restricted Stock granted hereunder on the first anniversary of the Grant Date, 33.33% of the shares of Restricted Stock granted hereunder on the second anniversary of the Grant Date and 33.34% of the shares of Restricted Stock granted hereunder on the third anniversary of the Grant Date, subject to the Grantee’s continuing to provide services to the Company as of such vesting date.
Upon each lapse of restrictions relating to Restricted Stock, the Company shall issue to the Grantee a stock certificate representing a number of shares of Stock, free of the restrictive legend described in Section 2(d), equal to the number of shares subject to this Restricted Stock award with respect to which such restrictions have lapsed. If certificates representing such Restricted Stock shall have theretofore been delivered to the Grantee, such certificates shall be returned to the Company, complete with any necessary signatures or instruments of transfer prior to the issuance by the Company of such unlegended shares of Stock.
Upon termination of the Grantee’s service to the Company, any as yet unvested Restricted Stock and unvested dividends and distributions thereon shall be immediately forfeited. Such Restricted Stock and any unvested dividends or distributions with respect to Restricted Stock forfeited pursuant to this Section 2(e) shall be transferred to, and reacquired by, the Company without payment of any consideration by the Company, and neither the Grantee nor any of the Grantee’s successors or assigns shall thereafter have any further rights or interests in such shares, certificates, dividends and distributions. If certificates containing restrictive legends shall have theretofore been delivered to the Grantee, such certificates shall be returned to the Company, complete with any necessary signatures or instruments of transfer.
Section 3. Miscellaneous
(a) Notices. Any and all notices, designations, consents, offers, acceptances and any other communications provided for herein shall be given in writing and shall be delivered either personally or by registered or certified mail, postage prepaid, which shall be addressed, in the case of the Company to the Secretary of the Company at the principal office of the Company and, in the case of the Grantee, at the address most recently on file with the Company.
(b) No Right to Continued Service. Nothing in the Plan or in this Agreement shall confer upon the Grantee any right to continue in the service of the Company or shall interfere with or restrict in any way the right of the Company, which is hereby expressly reserved, to terminate the Grantee’s service to the Company.
(c) Bound by Plan. By signing this Agreement, the Grantee acknowledges that the Grantee has received a copy of the Plan and has had an opportunity to review the Plan and has agreed to be bound with respect to all the terms and provisions of the Plan.
(d) Successors. The terms of this Agreement shall be binding upon and inure to the benefit of the Company, its successors and assigns, and of the Grantee and the Grantee’s successors and assigns.
(e) Invalid Provision. The invalidity or unenforceability of any particular provision thereof shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision had been omitted.
(f) Modifications. No change, modification or waiver of any provision of this Agreement shall be valid unless the same be in writing and signed by the parties hereto.
(g) Entire Agreement. This Agreement and the Plan contain the entire agreement and understanding of the parties hereto with respect to the subject matter contained herein and therein and supersede all prior communications, representations and negotiations in respect thereto.
(h) Governing Law. This Agreement and the rights of the Grantee hereunder shall be construed and determined in accordance with the laws of the State of Delaware.
(i) Headings. The headings of the Sections hereof are provided for convenience only and are not to serve as a basis for interpretation or construction, and shall not constitute a part, of this Agreement.
(j) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
* * * Remainder of page left intentionally blank * * *
EXHIBIT 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Western Asset Mortgage Capital Corporation (a corporation in the development stage) of our report dated April 26, 2012 relating to the balance sheet of Western Asset Mortgage Capital Corporation, which appears in Western Asset Mortgage Capital Corporation’s Registration Statement on Form S-11 (Registration No. 333-159962) and related Prospectus filed with the Securities and Exchange Commission.
/s/ PricewaterhouseCoopers LLP
Los Angeles, California
May 15, 2012