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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 23, 1998
REGISTRATION NO. 333-40813
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 7
TO
FORM S-11
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ANTHRACITE CAPITAL, INC.
(Exact Name of Registrant as Specified in its Governing Instruments)
------------------------------
345 PARK AVENUE, 29TH FLOOR, NEW YORK, NEW YORK 10154
(212) 754-5560
(Address, Including Zip Code, and Telephone Number, including Area Code, of
Registrant's Principal Executive Offices)
------------------------------
HUGH R. FRATER
PRESIDENT
ANTHRACITE CAPITAL, INC.
345 PARK AVENUE, 29TH FLOOR
NEW YORK, NEW YORK 10154
(212) 754-5560
(Name, Address, Including Zip Code, and Telephone Number, Including
Area Code, of Agent for Service)
------------------------------
COPIES TO:
<TABLE>
<S> <C>
VINCENT J. PISANO, ESQ. GEORGE C. HOWELL III, ESQ.
SKADDEN, ARPS, SLATE RANDOLPH F. TOTTEN, ESQ.
MEAGHER & FLOM LLP HUNTON & WILLIAMS
919 THIRD AVENUE 951 EAST BYRD STREET
NEW YORK, NEW YORK 10022 RICHMOND, VIRGINIA 23219
TELEPHONE: (212) 735-2790 TELEPHONE: (804) 788-8200
FACSIMILE: (212) 735-2000 FACSIMILE: (804) 788-8218
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the same
offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT BEING OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
BEING REGISTERED REGISTERED (1) SHARE PRICE(2) REGISTRATION FEE
<S> <C> <C> <C> <C>
Common Stock, par value $0.001 per share 23,000,000 shares $16.00 $368,000,000 $108,560(3)
</TABLE>
(1) Includes 3,000,000 shares of Common Stock which may be purchased by the
Underwriters to cover over-allotments, if any (the "Underwriting").
(2) Estimated based on a bona fide estimate of the maximum offering price $16.00
solely for the purpose of calculating the registration fee pursuant to Rule
457(a) of the Securities Act of 1933.
(3) Previously paid.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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ITEM 30. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Not Applicable.
ITEM 31. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by the Registrant in connection
with the sale of Common Stock being registered. All amounts are estimates except
the SEC registration fee and the NASD filing fee.
<TABLE>
<CAPTION>
AMOUNT TO BE PAID
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<S> <C>
SEC Registration Fee...................................................................... $ 108,560
NYSE listing fee.......................................................................... 147,600
NASD filing fee........................................................................... 30,500
Printing and engraving expenses........................................................... 200,000
Legal fees and expenses................................................................... 400,000
Blue sky fees and expenses................................................................ 5,000
Accounting fees and expenses.............................................................. 40,000
Transfer agent and Registrar fees......................................................... 10,000
Miscellaneous............................................................................. 63,340
Total..................................................................................... 1,000,000
</TABLE>
* To be provided by amendment.
ITEM 32. SALES TO SPECIAL PARTIES
None.
ITEM 33. RECENT SALES OF UNREGISTERED SECURITIES.
None
ITEM 34. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by the MGCL, the Company's Articles of Incorporation obligate
the Company to indemnify its present and former directors and officers and the
Manager and its employees, officers, directors and controlling persons and to
pay or reimburse reasonable expenses for such persons in advance of the final
disposition of a proceeding to the maximum extent permitted from time to time by
Maryland law. The MGCL permits a corporation to indemnify its present and former
directors and officers, among others, against judgments, penalties, fines,
settlements and reasonable expenses actually incurred by them in connection with
any proceeding to which they may be made a party by reason of their service in
those or other capacities, unless it is established that (a) the act or omission
of the director or officer was material to the matter giving rise to such
proceeding and (i) was committed in bad faith, or (ii) was the result of active
and deliberate dishonesty, (b) the director or officer actually received an
improper personal benefit in money, property or services, or (c) in the case of
any criminal proceeding, the director or officer had reasonable cause to believe
that the act or omission was unlawful. The Bylaws of the Company implement the
provisions relating to indemnification contained in the Company's Articles of
Incorporation. The MCGL permits the charter of a Maryland corporation to include
a provision limiting the liability of its directors and officers to the
corporation and its stockholders for money damages, except to the extent that
(i) the person actually received an improper benefit or profit in money,
property or services, or (ii) a judgment or other final adjudication is entered
in a proceeding based on a finding that the person's action, or failure to act,
was the result of active and deliberate dishonesty and was material to the cause
of action adjudicated in the proceeding. The Company's Articles of Incorporation
contain a provision providing for
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elimination of the liability of its directors or officers to the Company or its
stockholders for money damages to the maximum extent permitted by Maryland law
from time to time. In addition, the officers, directors, and controlling persons
of the Company are indemnified against certain liabilities by the Company under
the Purchase Agreement relating to this Offering. The Company will maintain for
the benefit of its officers and directors, officers' and directors' insurance.
The Underwriting Agreement (Exhibit 1.1) also provides for the
indemnification by the Underwriters of the Company, its directors and officers
and persons who control the Company within the meaning of Section 15 of the
Securities Act with respect to certain liabilities, including liabilities
arising under the Securities Act.
ITEM 35. TREATMENT OF PROCEEDS FROM STOCK BEING REGISTERED.
Not applicable.
ITEM 36. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements included in the Prospectus are:
Balance sheet at March 5, 1998
Notes to financial statements
All schedules have been omitted because they are not applicable.
(b) Exhibits
<TABLE>
<C> <S>
** 1.1 Form of Underwriting Agreement
** 3.1 Articles of Incorporation of the Registrant
** 3.2 Bylaws of the Registrant
5.1 Opinion of Miles & Stockbridge
8.1 Opinion of Skadden, Arps, Slate. Meagher & Flom LLP
**10.1 Management Agreement between the Registrant and BlackRock Financial
Management, Inc.
**10.6 Form of 1998 Stock Option Incentive Plan
**21.1 Subsidiaries of the Registrant
**23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in
Exhibit 8.1)
23.3 Consent of Miles & Stockbridge (included in Exhibit 5.1)
**24.1 Power of Attorney (included on page II-5)
**99.1 Consents to be named as a director pursuant to Rule 438
</TABLE>
* To be filed by amendment.
** Previously filed.
ITEM 37. UNDERTAKINGS
The undersigned Registrant hereby undertakes to provide to the Underwriters
at the closing of the Offering certificates in such denominations and registered
in such names as required by the Underwriters to permit prompt delivery to each
purchaser.
Insofar as indemnification by Registrant for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling person of
the Registrant pursuant to the provisions referenced in Item 34 of this
Registration Statement or otherwise, the Registrant has been advised that in
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the opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act, and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer,
or controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered 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 Securities Act and will be governed by the final adjudication
of such issue.
The undersigned Registrant hereby undertakes:
That for purposes of determining any liability under the Securities Act, the
information omitted from the Prospectus filed as part of this Registration
Statement in reliance upon Rule 430A and contained in a form of prospectus filed
by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of this Registration Statement as of
the time it was declared effective.
For the purpose of determining any liability under the Securities Act, each
post-effective amendment that contains a form of prospectus shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
The registrant undertakes to file a sticker supplement pursuant to Rule
424(c) under the Act during the distribution period describing each property not
identified in the prospectus at such time as there arises a reasonable
probability that such property will be acquired and to consolidate all such
stickers into a post-effective amendment filed at least once every three months,
with the information contained in such amendment provided simultaneously to the
existing stockholders. The post-effective amendment shall include audited
financial statements meeting the requirements of Rule 3-14 of Regulation S-X
only for properties acquired during the distribution period.
The registrant undertakes to send to each stockholder at least on an annual
basis a detailed statement of transactions with the Manager or its affiliates,
and of fees, commissions, compensation and other benefits paid, or accrued to
the Manager or its affiliates for the fiscal year completed, showing the amount
paid or accrued to each recipient and the services performed.
The registrant undertakes to provide to the stockholders the financial
statements required by Form 10-K for the first full year of operations of the
Company.
The registrant also undertakes to file, after the end of the distribution
period, a current report on Form 8-K containing the financial statements and any
additional information required by Rule 3-14 of Regulation S-X, to reflect each
commitment (i.e., the signing of a binding purchase agreement) made after the
end of the distribution period involving the use of 10% or more (on a cumulative
basis) of the net proceeds of the offering and to provide the information
contained in such report to stockholders at least once each quarter after the
distribution period of the offering has ended.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-11 and has duly caused this Amendment
to the Registration Statement to be signed on its behalf by the undersigned,
thereto duly authorized, in the City of New York, State of New York, on the 20th
day of March, 1998.
ANTHRACITE CAPITAL, INC.
BY: /S/ RICHARD SHEA
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Richard Shea
CHIEF OPERATING OFFICER AND CHIEF
FINANCIAL OFFICER
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment to the Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
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/s/ LAURENCE D. FINK Chairman of the Board
- ------------------------------ 3/20/98
Laurence D. Fink
/s/ HUGH R. FRATER President (Principal
- ------------------------------ Executive Officer) 3/20/98
Hugh R. Frater
Chief Operating Officer and
/s/ RICHARD SHEA Chief Financial Officer
- ------------------------------ (Principal Financial and 3/20/98
Richard Shea Accounting Officer)
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MILES & STOCKBRIDGE LETTERHEAD
EXHIBIT 5.1
March 23, 1998
Anthracite Capital, Inc.
345 Park Avenue, 29th Floor
New York, New York 10154
Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933 (the
"Act") of 23,000,000 shares of the Common Stock, par value $.001 per share (the
"Common Stock") of Anthracite Capital, Inc., a Maryland corporation (the
"Company"), on its Registration Statement on Form S-11 (Registration No.
333-40813) filed with the Securities and Exchange Commission on the date hereof
(the "Registration Statement"), we have examined such corporate records,
certificates and documents as we deemed necessary for the purpose of this
opinion. Based on that examination, we advise you that in our opinion the Common
Stock to be offered by the Company has been duly authorized and, when sold under
the circumstances contemplated in the Registration Statement, will be legally
issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving our consent, we do not thereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Act or the rules and regulations of the Securities and Exchange Commission
thereunder. The opinion expressed herein is limited to the matters set forth in
this letter and no other opinion should be inferred beyond the matters expressly
stated.
Very truly yours,
MILES & STOCKBRIDGE P.C.
By: /s/ Principal
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Principal
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Exhibit 8.1
March 23, 1998
ANTHRACITE CAPITAL, INC.
345 Park Avenue, 29th Floor
New York, New York 10154
Re: Certain Federal Income Tax Consequences
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Ladies and Gentlemen:
You have requested our opinion concerning certain U.S. federal income
tax consequences in connection with the underwritten public offering (the
"Offering") of Common Stock , par value $.001 per share of Anthracite Capital,
Inc., a Maryland corporation (the "Company"), pursuant to the Registration
Statement on Form S-11 (File no. 333-40813) (the "Registration Statement") filed
with the Securities and Exchange Commission on March 23, 1998. Unless otherwise
specifically defined herein, all capitalized terms have the meanings assigned to
them in the Registration Statement.
In connection with the Offering we have acted as counsel to the
Company, and we have assisted in the preparation of the Registration Statement
and certain other documents. In formulating our opinion, we have reviewed the
Registration Statement, the Articles of Incorporation and the Bylaws (including
any amendments thereto) of the Company, and such other documents and information
provided by you as is relevant to the Offering. In addition, you have provided
us with certain representations of officers of the Company relating to, among
other things, the proposed operation of the Company. For purposes of our
opinion, we have not made an independent investigation of the facts set forth in
such representations, the Registration Statement or any other documents. We
have, consequently, relied on your representations that the information
presented in such documents or otherwise furnished to us accurately and
completely describes all
<PAGE>
material facts relevant to our opinion. No facts have come to our attention,
however, that would cause us to question the accuracy and completeness of such
information, facts or documents in a material way. In addition, to the extent
that any of the representations provided to us by officers of the Company
relates to matters set forth in the Internal Revenue Code of 1986, as amended
(the "Code"), or the regulations promulgated thereunder by the U.S. Treasury
Department (the "Regulations"), we have reviewed with such officers the relevant
portions of the Code and the applicable Regulations. We have also relied upon
the opinion of Miles & Stockbridge dated March 23, 1998 filed as Exhibit 5.1 to
the Registration Statement with respect to certain matters of Maryland law.
In rendering our opinion, we have assumed that the transactions
contemplated by the foregoing documents have been or will be consummated in
accordance with their terms, and that such documents accurately reflect the
material facts of such transactions. In rendering our opinion, we have also
considered and relied upon the Code, the Regulations, pertinent judicial
authorities, rulings of the U.S. Internal Revenue Service and such other
authorities as we have considered relevant. It should be noted that such laws,
Code, Regulations, judicial decisions, administrative interpretations and other
authorities are subject to change at any time and, in some circumstances, with
retroactive effect. A change in any of the authorities upon which our opinion
is based could affect our conclusions herein.
Based on the foregoing, we are of the opinion that, provided the
Company makes all elections and conforms with the procedural steps required for
qualification and taxation as a real estate investment trust ("REIT"), beginning
with its taxable year ending December 31, 1998, the Company will be organized in
conformity with the requirements for qualification as a REIT under the Code, and
the Company's proposed method of operation will enable it to meet the
requirements for qualification and taxation as a REIT under the Code. We are
also of the opinion that the descriptions of the law contained in the
Registration Statement under the caption "Federal Income Tax Consequences" are
correct in all material respects, and the discussion thereunder fairly
summarizes the material federal income tax consequences to a holder of an
investment in the Common Stock. As noted in the Registration Statement, the
Company's qualification and taxation as a REIT depends upon its ability to meet,
through actual annual operating results, certain requirements, including
requirements relating to distribution levels and diversity of stock ownership,
and the various qualification tests imposed under the Code, the results of which
will not be reviewed by us. Accordingly, no assurance can be given that the
actual
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results of the Company's operation for any one taxable year will enable the
Company to satisfy the requirements for qualification and taxation as a REIT
under the Code.
Other than as expressly stated above, we express no other opinion.
This opinion is intended for the exclusive use of the person to
whom it is addressed and investors purchasing Common Stock in the Offering
and it may not be used, circulated, quoted or relied upon for any other
purpose without our prior written consent; provided, however, that we consent
to the filing of this opinion as an exhibit to the Registration Statement and
to the reference to Skadden, Arps, Slate, Meagher & Flom LLP in the
Registration Statement. In giving this consent, we do not thereby admit that
we are within the category of persons whose consent is required under Section
7 of the Securities Act of 1933, as amended, or the rules or regulations of
the Securities and Exchange Commission thereunder. This opinion is expressed
as of the date hereof and the date of effectiveness of the Registration
Statement and we disclaim any undertaking to advise you of any subsequent
changes of the matters stated, represented, or assumed herein or any
subsequent changes in applicable law.
Very truly yours,
/s/ SKADDEN, ARPS, SLATE MEAGHER & FLOM LLP
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SKADDEN, ARPS, SLATE MEAGHER & FLOM LLP
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