As filed with the Securities and Exchange Commission on June 30, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3D
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)
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345 PARK AVENUE, 29TH FLOOR, NEW YORK, NEW YORK 10154
(212) 409-3333
(Address, Including Zip Code, and Telephone Number, including Area Code, of
Registrant's Principal Executive Offices)
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HUGH R. FRATER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
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:
VINCENT J. PISANO, ESQ.
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
919 THIRD AVENUE
NEW YORK, NEW YORK 10022
TELEPHONE: (212) 735-2790
FACSIMILE: (212) 735-2000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: as soon
as effective
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [X ]
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, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please 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 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. [ ]
CALCULATION OF REGISTRATION FEES
============================================================================
Proposed Maximum Proposed
Title of Shares Amount Aggregate Maximum Amount of
to be to be Price Per Aggregate Registration
Registered Registered Per Share(1) Offering Price Fee
----------------------------------------------------------------------------
Common Stock,
$.001 par
value per share 2,000,000 $ 13.5625 $27,125,000 $8,002.00
============================================================================
(1) Calculated pursuant to Rule 457(c) of the rules and regulations under
the Securities Act of 1933, as amended, and is based on a per share
price of $13.5625, the average of the high and low prices of the
Company's Common Stock reported on the New York Stock Exchange
Composite Tape on June 26, 1998.
PROSPECTUS
ANTHRACITE CAPITAL, INC.
DIVIDEND REINVESTMENT AND
STOCK PURCHASE PLAN
The Dividend Reinvestment and Stock Purchase Plan (the "Plan") of
Anthracite Capital, Inc. (the "Company") provides both existing
stockholders (the "Stockholders") of the Company's common stock ("Common
Stock") and interested new investors with a convenient and cost effective
method to purchase shares of the Common Stock. A participant in the Plan
may purchase additional shares of Common Stock by reinvesting some or all
cash dividends paid on the Company's outstanding Common Stock.
Stockholders that elect to participate in the Plan may also make monthly
optional cash purchases ("Optional Cash Purchases") which are subject to a
minimum monthly purchase limit of $100 and a maximum monthly purchase limit
of $5,000. Interested investors not currently stockholders may make
initial cash purchases ("Initial Cash Purchases") which are subject to a
minimum monthly purchase limit of $250 and a maximum monthly purchase limit
of $5,000. The price to be paid for each share of Common Stock purchased
directly from the Company under the Plan will be a price equal to the
market price (as defined herein) of the Common Stock less a discount
ranging from 0% to 5% (the "Discount Rate"). The price of the shares of
Common Stock purchased on the open market will be the average price of all
shares of Common Stock purchased for all Participants in the Plan without
any discount.
The Prospectus relates to the offer and sale of up to 2,000,000
authorized but unissued shares of Common Stock under the Plan.
Participants should retain this prospectus for future reference. The
Company's Common Stock is listed on the New York Stock Exchange under the
symbol "AHR".
Plan Highlights:
- Any registered stockholder may elect to participate in the Plan.
- Interested investors, not currently stockholders of the Company, may
make their initial investment in the Company through the Plan.
- 0% to 5% discount on shares of Common Stock purchased directly from
the Company.
- No brokerage fees on purchases made in the open market except to the
extent such fees exceed 5%.
- Certificate safekeeping in book entry form at The Bank of New York,
at no charge to Participant.
- Recordkeeping and reporting will be provided, at no charge to
Participant.
- Full or partial dividend reinvestment options.
- Optional and Initial Cash Purchases.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE
COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE
No person has been authorized to give any information or to make any
representations not contained in this Prospectus regarding the Company or
the offering made hereby and, if given or made, such information or
representations must not be relied upon as having been authorized by the
Company. This Prospectus does not constitute an offer to sell or a
solicitation of an offer to buy any securities other than the securities to
which it relates, nor does it constitute an offer to or solicitation of any
person in any jurisdiction in which such offer or solicitation would be
unlawful. Neither delivery of this Prospectus nor any sale made hereunder
shall create an implication that information contained herein is correct as
of any time subsequent to the date hereof.
The date of this Prospectus is June 30, 1998.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). Such
reports, proxy statements and other information filed by the Company can be
inspected and copied (at prescribed rates) at the public reference
facilities maintained by the Commission at 450 Fifth Street N.W.,
Washington, D.C. 20549, and at its Regional Offices located at
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661 and 7 World Trade Center, Suite 1300, New York, New York,
10048. The Company files information electronically with the Commission,
and the Commission maintains a Web Site that contains reports, proxy and
information statements and other information regarding registrants
(including the Company) that file electronically with the Commission. The
address of the Commission's web site is http://www.sec.gov.
This prospectus constitutes a part of a Registration Statement on Form
S-3 together with all exhibits referred to as the Registration Statement
(the "Registration Statement") filed by the Company with the Commission
under the Securities Act of 1933, as amended (the "Securities Act"). This
prospectus omits certain information contained in the Registration
Statement, and reference is hereby made to the Registration Statement for
further information with respect to the Company and the shares offered
hereby. Any statement contained or incorporated by reference herein
concerning the provisions of any document is not necessarily complete, and
in each instance, reference is made to the copy of such document filed as
an exhibit to the Registration Statement or otherwise filed with the
Commission. Each such statement is qualified in its entirety by such
statement.
INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, filed with the Commission pursuant to the
1934 Act, are incorporated by reference in this Prospectus:
1. The audited balance sheet of the Company at March 5, 1998
contained in the Company's Registration Statement on Form S-11 (File No.
333-40813);
2. The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998, including exhibits thereto; and
3. The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A under the 1934 Act, including
any amendment or report filed to update the description.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act of 1934, prior to filing a post-effective
amendment which indicates that all securities offered hereby have been sold
or which deregisters all securities offered hereby then remaining unsold,
shall be deemed to be incorporated by reference herein and shall be deemed
to be a part hereof from the date of the filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified, superseded or replaced
by a statement or information contained in any other subsequently filed
document incorporated herein by reference. Any such statement so modified,
superseded or replaced shall not be deemed, except as so modified,
superseded or replaced, to constitute a part of this Prospectus.
Anyone receiving a copy of this Prospectus may obtain, without charge,
a copy of any of the documents incorporated by reference herein, except for
any exhibits to such documents. Written requests should be mailed to
Anthracite Capital, Inc., 345 Park Avenue, New York, New York 10154, or
call (212) 409-3333.
THE COMPANY
Anthracite Capital, Inc. (the "Company"), a Maryland corporation, was
formed in November 1997 to invest in multifamily, commercial and
residential mortgage loans, mortgage-backed securities and other real
estate related assets in both U.S. and non-U.S. markets. The Company uses
its equity capital and borrowed funds to seek to achieve strong investment
returns by maximizing the spread of investment income (net of credit
losses) earned on its real estate assets over the cost of financing and
hedging these assets. The Company will elect to be taxed as a real estate
investment trust ("REIT") under the Internal Revenue Code of 1986, as
amended (the "Code"). The Company generally will not be subject to federal
income tax to the extent that it distributes its net income to its
stockholders and maintains its qualification as a REIT.
The day-to-day operations of the Company are managed by BlackRock
Financial Management, Inc. (the "Manager"), subject to the direction and
oversight of the Company's Board of Directors, which consists of six
members, four of whom are unaffiliated with the Manager or its affiliates.
The Manager, a Delaware corporation, is a subsidiary of PNC Bank, National
Association.
DIVIDEND AND DISTRIBUTION POLICY
The Company intends to pay dividends and to make such distributions to
its stockholders in amounts such that all or substantially all of its
taxable income in each year (subject to certain adjustments) is distributed
so as to qualify as a REIT under the Code. Taxable income, if any, not
distributed through regular dividends will be distributed annually in a
special dividend. All distributions will be made by the Company at the
discretion of the Board of Directors and will depend on the earnings of the
Company, financial condition of the Company, maintenance of REIT status and
such other factors as the Board of Directors may deem relevant from time to
time.
USE OF PROCEEDS
The net proceeds to the Company from the sale of shares of Common
Stock offered hereby will be used for general corporate purposes.
SUMMARY OF THE PLAN
The Plan provides Stockholders and other investors with a convenient
and economical way to purchase shares of Common Stock through the
reinvestment of all or a portion of their cash dividends paid on Common
Stock in additional shares of Common Stock. There is no minimum or maximum
limitation on the amount of dividends a Participant may reinvest under the
Plan. In addition to the reinvestment of dividends, Stockholders who are
Participants in the Plan may invest additional funds through Optional Cash
Purchases of not less than $100 and not more than $5,000 per month (except
in cases covered by a Request for Waiver, as discussed below). Persons not
currently Stockholders of the Company may become Participants by making an
Initial Cash Purchase of not less than $250 and not more than $5,000 to
purchase shares under the Plan (except in cases covered by a Request for
Waiver). For purposes of these limitations, all Plan accounts under the
common control or management of a Participant may be aggregated at the
Company's sole discretion. Optional Cash Purchases and Initial Cash
Purchases (collectively "Cash Purchases") in excess of $5,000 may be made
only upon acceptance by the Company of a completed Request for Waiver form
from a Participant.
To fulfill Plan requirements, shares of Common Stock may be purchased
directly from the Company or, at the Company's election, in the open market
or in privately negotiated transactions. Shares purchased directly from
the Company under the Plan (whether in connection with Cash Purchases of
$5,000 or less per month or reinvestment of dividends) may be issued at a
discount of 0% to 5% (the "Discount Rate") below the Market Price for
Dividend Reinvestments and the Market Price for Cash Purchases (both as
defined herein). As of the date of this Prospectus, the discount is 3%,
but is subject to change from time to time or discontinuance at the
Company's discretion for future investment periods, without prior notice to
the Participants, after a review of current market conditions, the level of
participation in the Plan, the Company's current and projected capital
needs, and the Company's need to maintain its status as a REIT for tax
purposes. The Company may establish a different discount ranging from 0%
to 5% (the "Waiver Discount") regarding shares purchased from the Company
for Cash Purchases exceeding $5,000 per month and approved by the Company
pursuant to a Request for Waiver. The Company may also, without prior
notice to Participants, change its determination that shares of Common
Stock will be purchased by the Plan Administrator directly from the Company
or on the open market. No discount will be offered on shares purchased
under the Plan in the open market or in privately negotiated transactions.
Each month, at least three business days prior to the first day of the
relevant Pricing Period (as defined herein), the Company may establish a
Waiver Discount and Threshold Price applicable to Cash Purchases exceeding
$5,000. The Waiver Discount, which may vary each month from 0% to 5%, will
be established in the Company's sole discretion after a review of current
market conditions, the level of participation in the Plan and the Company's
current and projected capital needs. With respect to Cash Purchases that
exceed $5,000 only, for each Trading Day (as defined herein) of the related
twelve-day Pricing Period on which the Threshold Price is not satisfied,
one-twelfth of a Participant's Cash Purchase will be returned without
interest. Cash Purchases that do not exceed $5,000, and the reinvestment
of dividends in additional shares of Common Stock, will not be subject to
such Threshold Price, if any. If shares are purchased under the Plan other
than directly from the Company, no discount will be offered and no
Threshold Price will be applicable.
In deciding whether to approve a Request for Waiver, the Company will
consider relevant factors including, but not limited to, whether the Plan
is then acquiring newly issued or treasury shares directly from the Company
or acquiring shares from third parties in the open market or in privately
negotiated transactions, the Company's needs for additional funds, the
attractiveness of obtaining such additional funds through the sale of
Common Stock as compared to other sources of funds, the purchase price
likely to apply to any sale of Common Stock under the Plan, the Participant
submitting the request, the extent and nature of such Participant's prior
participation in the Plan, the number of shares of Common Stock held by
such Participant and the aggregate amount of cash investments for which
Requests for Waiver have been submitted by all Participants. If such
requests are submitted for any Cash Purchase Investment Date (as defined
herein) for an aggregate amount in excess of the amount the Company is then
willing to accept, the Company may honor such requests in order of receipt,
pro rata or by any other method that the Company in its sole discretion
determines to be appropriate. A broker, bank or other nominee may reinvest
dividends and make Cash Purchases on behalf of Beneficial Owners. Cash
Purchases submitted by brokerage firms or other nominees on behalf of
Participants will be aggregated for purposes of determining whether the
$5,000 limit would be exceeded.
From time to time, financial intermediaries, including brokers and
dealers, and other persons may engage in positioning transactions in order
to benefit from the discount from market price of the Common Stock acquired
under the Plan. Such transactions may cause fluctuations in the trading
volume of the Common Stock. Financial intermediaries and such other
persons who engage in positioning transactions may be deemed to be
underwriters. The Company has no arrangements or understandings, formal or
informal, with any person relating to the sale of shares to be received
pursuant to the Plan. The Company reserves the right to modify, suspend or
terminate participation in the Plan by otherwise eligible persons in order
to eliminate practices which are inconsistent with the purpose of the Plan.
Subject to the availability of shares of Common Stock registered for
issuance under the Plan, there is no total maximum number of shares that
can be issued pursuant to the reinvestment of dividends and no pre-
established maximum limit applicable to cash investments that may be made
pursuant to Cash Purchases. As of the date hereof, 2,000,000 shares of
Common Stock have been registered and are available for sale under the
Plan.
Shares purchased directly from the Company through dividend
reinvestment and Cash Purchases under the Plan will be issued without a
sales commission. If the shares of Common Stock to be purchased under the
Plan are purchased in the open market instead of directly from the Company,
the Company will pay any brokerage fees or commissions on such purchases,
up to 5% of the purchase price of the shares of the Common Stock. Any
commissions in excess of 5% will be paid by the Participants on a pro rata
basis. The Discount Rate will not apply to open market purchases or to
privately negotiated purchases of Common Stock.
Participants in the Plan who reinvest dividends will be treated as
having received a dividend for federal income tax purposes. See "The Plan-
-Federal Income Tax Consequences." Participants will have limited control
regarding the specific timing of optional cash purchases and sales under
the Plan. Furthermore, Participants will generally be unable to depend on
the availability of a market discount regarding shares acquired under the
Plan. See "The Plan--Advantages and Disadvantages."
THE PLAN
The Dividend Reinvestment and Stock Purchase Plan was adopted by the
Board of Directors on June 10, 1998.
ADVANTAGES AND DISADVANTAGES
Advantages
o The Plan provides Participants with the opportunity to purchase
additional shares of Common Stock, if desired, by automatically
reinvesting all or a portion of their cash dividends on Common Stock
in the Plan.
o In addition to the reinvestment of dividends, the Plan provides
Stockholders with the opportunity to make monthly investments of
Common Stock through Optional Cash Purchases, subject to a minimum and
maximum amount. Optional Cash Purchases may be made by check, money
order, wire transfer, or electronic funds transfer from a pre-
designated bank account. Optional Cash Purchases may be made
occasionally or at regular intervals, as the Participant desires.
Participants may make Optional Cash Purchases even if dividends on
their shares of Common Stock are not being reinvested.
o The Plan also provides non-stockholders of the Company the opportunity
to become Participants by making an Initial Cash Purchase in the
Company's Common Stock, subject to a minimum and maximum amount.
o Shares purchased directly from the Company through dividend
reinvestment under the Plan will be issued without a sales commission
and may be issued at the Discount Rate to the Market Price for
Dividend Reinvestments (as defined herein). If the Company should
elect that the shares of Common Stock to be purchased under the Plan
are to be purchased in the open market instead of directly from the
Company, the Company will pay any brokerage fees or commissions on
such purchases, up to 5% of the purchase price of the shares of the
Common Stock. Any commissions in excess of 5% will be paid by the
Participants on a pro rata basis. The Discount Rate will not apply
to open market purchases or to privately negotiated purchases of
Common Stock.
o Shares purchased directly from the Company for investment through Cash
Purchases under the Plan will be issued without a sales commission and
may be issued at the Discount Rate to the Market Price for Cash
Purchases (as defined herein). If the Company elects that the shares
of Common Stock to be purchased under the Plan are to be purchased in
the open market instead of directly from the Company, the Company will
pay any brokerage fees or commissions on such purchases, up to 5% of
the purchase price of the shares of the Common Stock. Any
commissions in excess of 5% will be paid by the Participants on a pro
rata basis. The Discount Rate will not apply to open market
purchases or to privately negotiated purchases of Common Stock.
o Funds invested in the Plan are fully invested through the purchase of
fractions of shares, as well as whole shares, and proportionate cash
dividends on fractions of shares are used to purchase additional
shares.
o Participants may direct the Plan Administrator to transfer, at any
time and at no cost to the Participant, all or a portion of the
Participant's shares in the Plan to a Plan account for another person.
o The Plan offers a "share safekeeping" service whereby, at no cost,
Participants may deposit their Common Stock certificates with the Plan
Administrator and have their ownership of such Common Stock maintained
on the Plan Administrator's records as part of their Plan account.
o Participants will receive statements containing year-to-date
information on all Plan transactions in a Participant's account within
a reasonable time after a transaction occurs, designed to simplify the
Participants' record keeping.
Disadvantages
o Participants in the Plan who reinvest dividends will be treated as
having received dividend income on the dividend payment date (the
"Dividend Payment Date") for federal income tax purposes; such
dividend will generally give rise to a tax liability notwithstanding
the fact that no cash was paid to Participants. See "Federal Income
Tax Consequences."
o No interest will be paid by the Company or the Plan Administrator on
dividends or funds for Cash Purchases held pending reinvestment or
investment or to be returned to the Participant. In addition, Cash
Purchases exceeding $5,000 per month may be subject to return to the
Participant (in whole or proportionate part) without interest in the
event that (i) a Threshold Price has been established with respect to
shares to be purchased from the Company, and (ii) such Threshold Price
is not met for any day on which the New York Stock Exchange ("NYSE")
is open for trading ("Trading Day") during the twelve Trading Days
prior to the date scheduled for investment of the funds contributed
for Cash Purchases for that month (the "Pricing Period").
o Participants will have limited control regarding the specific timing
of purchases and sales under the Plan. Because purchases under the
Plan will be made no earlier than twelve Trading Days following
receipt of an investment instruction, and because sales under the Plan
will be effected by the Plan Administrator only as soon as practicable
after its receipt of such instructions, Participants may be unable to
achieve the same level of control over purchase and sale timing that
they might have for investments made outside the Plan. The market
price of the shares of Common Stock may fluctuate between the time of
receipt of an investment instruction and the time at which the shares
of Common Stock are purchased.
o A Participant's investment in the shares of Common Stock held in a
Participant's Account is no different than an investment in directly
held shares of Common Stock in this regard. A Participant bears the
risk of loss and the benefits of gain from market price changes for
all of a Participant's shares of Common Stock. NEITHER THE COMPANY
NOR THE PLAN ADMINISTRATOR CAN GUARANTEE THAT SHARES OF COMMON STOCK
PURCHASED UNDER THE PLAN WILL, AT ANY PARTICULAR TIME, BE WORTH MORE
OR LESS THAN THEIR PURCHASE PRICE.
o The Company, in its sole discretion, without prior notice to
Participants, may change its determination as to whether shares of
Common Stock will be purchased by the Plan Administrator directly from
the Company or through open market or privately negotiated purchases,
instead of directly from the Company. No Discount Rate will be
applied on shares purchased under the Plan in the open market or in
privately negotiated purchases. The Company, without prior notice to
Participants, may lower or eliminate the Discount Rate on shares to be
purchased directly from the Company for future investment periods.
As a result, Participants will generally be unable to depend on the
availability of a market discount regarding shares acquired under the
Plan. Participants may obtain the applicable Discount Rate by
telephoning the Company at (212) 409-3333 three business days prior to
the first day of the Pricing Period.
o With respect to Cash Purchases (including Cash Purchases exceeding
$5,000 per month), while the Plan allows the Company to establish a
Discount Rate from the Market Price for Cash Purchases of the shares,
there can be no assurance that such Market Price for Cash Purchases,
as so discounted, will not be equal to or greater than the purchase
price of the shares on the relevant date of investment of the funds
contributed for Cash Purchases (the "Cash Purchase Investment Date").
ADMINISTRATION
The Plan is administered by The Bank of New York (the "Plan
Administrator"), the Transfer Agent and Registrar for the Company. As the
agent for participating stockholders ("Participants"), the Plan
Administrator will administer the Plan in accordance with the terms and
conditions of the Plan as set forth herein.
PARTICIPATION
Participation in the Plan is open to any person or entity, whether or not
a Stockholder of the Company, who fulfills the requirements for
participation described below under "Participation Options." A Stockholder
who owns shares of Common Stock in their own name is referred to herein as
a "Stockholder of Record." A Stockholder of Record may participate directly
in the Plan. A Stockholder who beneficially owns shares of Common Stock
that are registered in a name other than such Stockholder's name (for
example, where shares are held in the name of a broker, bank or other
nominee) is referred to herein as a "Beneficial Owner." Beneficial Owners
may participate in the Plan by either (i) becoming a Stockholder of Record
by having one or more shares transferred into its own name, or (ii)
coordinating their participation with their broker, bank or other nominee
who is the record holder to participate on their behalf. A prospective
investor who holds no shares of Common Stock may also participate, at their
option, either directly or through a broker, bank or other nominee by
following the enrollment procedures described below.
Stockholders who are not citizens or residents of the United States for
federal income tax purposes, and Stockholders owning, actually or
constructively (taking into account the constructive ownership provisions
applicable to REITs in the Internal Revenue Code of 1986, as amended (the
"Code")), Common Stock in an amount equal to or greater than 9.8% of the
outstanding Common Stock (the "Ownership Limit") will not be eligible to
participate in the Plan. To the extent consistent with Sections 856
through 860 of the Code, and in accordance with the provisions of the
Company's Amended and Restated Articles of Incorporation, the Company's
Board of Directors may waive the Ownership Limit for, and at the request
of, certain purchasers to allow participation in the Plan.
The Plan is intended for the benefit of investors in the Company and not
for persons or entities who accumulate accounts under the Plan over which
they have control for the purpose of exceeding the $5,000 per month maximum
without seeking the advance approval of the Company or who engage in
transactions that cause or are designed to cause aberrations in the price
or trading volume of the Common Stock. Notwithstanding anything in the
Plan to the contrary, the Company reserves the right to exclude from
participation in the Plan, at any time, (i) persons or entities who attempt
to circumvent the Plan's standard $5,000 per month maximum by accumulating
accounts over which they have control or (ii) any other persons or
entities, as determined in the sole discretion of the Company. For
purposes of this limitation, the Company reserves the right to aggregate
all Cash Purchases for Participants with more than one account using the
same name, address or social security or taxpayer identification number.
For Participants unable to supply a social security or taxpayer
identification number, participation may be limited by the Company to only
one Participant's Account. Also for the purpose of such limitations, all
Participant's Accounts that the Company believes to be under common control
or management or to have common ultimate beneficial ownership may be
aggregated. In the event the Company exercises its right to aggregate
investments and the result would be an investment in excess of $5,000
without an approved Request for Waiver, the Company will return, without
interest, as promptly as practicable, any amount in excess of the
investment limitations.
PARTICIPATION OPTIONS
The Authorization Form appoints the Plan Administrator as agent for the
Participant and directs the Company to pay to the Plan Administrator such
Participant's cash dividends on all or a specified number of shares of
Common Stock owned by the Participant ("Participating Shares"), as well as
on all whole and fractional shares of Common Stock credited to a
Participant's Plan account ("Plan Shares"). The Authorization Form directs
the Plan Administrator to purchase on the Dividend Reinvestment Date
additional shares of Common Stock with such dividends. The Authorization
Form also directs the Plan Administrator to purchase on the relevant Cash
Purchase Investment Date additional shares of Common Stock with Cash
Purchases of not more than $5,000, if any, made by Participants. See "Cash
Purchases---Waiver of Maximum Cash Purchase Limitation" below for a
discussion of the requirements for Cash Purchases exceeding $5,000. See
"Broker and Nominee Form" below for a discussion of the requirements for
Optional Cash Purchases of a Beneficial Owner and Initial Cash Purchases of
an investor who is not a Stockholder of the Company, whose broker, bank or
other nominee holds or will hold such investor's shares in the name of a
major securities depository. The Authorization Form also directs the Plan
Administrator to reinvest automatically all subsequent dividends on Plan
Shares. Dividends will continue to be reinvested until the Participant
specifies otherwise by contacting the Plan Administrator, withdraws from
the Plan, or the Plan is terminated.
The Authorization Form provides for the purchase of additional shares of
Common Stock through the following investment options:
Full Dividend Reinvestment. The Plan Administrator will apply any cash
dividends on all shares of the Common Stock then or subsequently registered
in the Plan under the Participant's name, and all cash dividends on Plan
Shares, together with any Optional Cash Purchases or Initial Cash Purchase,
toward the purchase of additional shares of Common Stock.
Partial Dividend Reinvestment. The Plan Administrator will apply cash
dividends on shares of Common Stock then registered in the Plan under the
Participant's name and specified on the Authorization Form, and all cash
dividends on Plan Shares, together with any Optional Cash Purchases or
Initial Cash Purchase, toward the purchase of additional shares of Common
Stock.
Cash Purchases. The Plan Administrator will only apply voluntary cash
contributions for Cash Purchases received from the Participant toward the
purchase of additional shares of Common Stock. The Participant will
continue to receive cash dividends on shares of Common Stock registered in
the Plan under the Participant's name in the usual manner.
Each Participant may select either one of the dividend reinvestment
options and/or the Cash Purchase option. In each case, dividends will be
reinvested on all Participating Shares and on all Plan Shares held in the
Plan account, including dividends on Common Stock purchased with any
Initial Cash Purchases, until a Participant specifies otherwise by
contacting the Plan Administrator, or withdraws from the Plan altogether,
or until the Plan is terminated. If a Participant would prefer to receive
cash payments of dividends on Plan Shares rather than reinvest such
dividends, those shares must be withdrawn from the Plan by written
notification to the Plan Administrator. See "Termination of Participation"
below. Participants may change their investment options at any time by
requesting a new Authorization Form and returning it to the Plan
Administrator.
Participation in the Plan will begin upon receipt of a properly completed
Authorization Form and/or Broker and Nominee Form (and, in cases of cash
investments exceeding $5,000, receipt and approval by the Company of a
properly completed Request for Wavier). The funds for a Cash Purchase may
be submitted with the initial Authorization Form. Thereafter, it will not
be necessary to submit an additional Authorization Form and Cash Purchases
may be made monthly or periodically at the election of the Participant.
Once an Authorization Form has been submitted, it is not necessary to
submit one with subsequent Cash Purchases. See "The Plan---Purchase and
Price of Shares" for more details on Cash Purchases and Dividend
Reinvestments.
With respect to the dividend reinvestment portion of the Plan, the
Authorization Form (and the Broker Nominee Form if necessary) must be
received by the Plan Administrator at least two (2) calendar days prior to
the Record Date established for a particular dividend in order for a
Stockholder to be eligible for reinvestment of such dividends under the
Plan for that related dividend; otherwise, reinvestment will begin on the
Dividend Reinvestment Date following the next record date. With respect to
Cash Purchases, the Plan Administrator must receive the Authorization Form,
good funds, and the Broker and Nominee Form if necessary, at least one
business day prior to the commencement of the Pricing Period in order for a
Participant's Cash Purchase to be invested on the related Cash Purchase
Investment Date, otherwise; such authorization will be effective as of the
next Cash Purchase Investment Date and the funds will be returned to the
Participant as provided in "The Plan---Purchase and Price of Shares." With
respect to existing Stockholders, if the Authorization Form (and the
Broker Nominee Form if necessary) is received in the period between any
Record Date and Dividend Payment Dates that dividend will be paid in cash
and your initial dividend reinvestment will begin on the next Dividend
Reinvestment Date.
BROKER AND NOMINEE FORM
The Broker and Nominee Form provides the only means by which a broker,
bank or other nominee holding shares of a Beneficial Owner, or planning to
hold shares of an interested investor who is not currently a Stockholder of
the Company, in the name of a major securities depository may invest Cash
Purchases within the minimum and maximum investment limitation established
for the Plan (see "Cash Purchases" below) on behalf of such Beneficial
Owner or interested investor. A Broker and Nominee Form must be delivered
to the Plan Administrator each time such broker, bank or other nominee
transmits Cash Purchases. Broker and Nominee Forms may be obtained at any
time by telephoning the Plan Administrator at (800) 524-4458.
The Broker and Nominee Form and appropriate instructions must be received
by the Plan Administrator not later than 12:00 Noon, New York City time, on
the business day immediately preceding the relevant Pricing Period in order
to be invested on the Cash Purchase Investment Date, otherwise the Cash
Purchase will be returned, without interest.
Shares issued pursuant to a properly completed Broker and Nominee Form
will not be deemed Plan Shares. Therefore, subsequent dividends will be
paid in cash unless otherwise instructed by the Beneficial Owner (see
"Participation" above for a discussion of the requirements for Beneficial
Owner participation in the reinvestment of dividends).
COSTS
The Company will pay all administrative costs of the Plan. Participants
pay no brokerage commissions, fees, expenses or service charges under the
Plan in connection with purchases under the Plan; provided, however, a
Beneficial Owner may be required to pay a fee to a broker, bank or other
nominee participating on behalf of such Beneficial Owner. If the Company
elects that the shares of Common Stock to be purchased under the Plan are
to be purchased in the open market instead of directly from the Company,
the Company will pay any brokerage fees or commissions on such purchases up
to 5% of the purchase price of the shares of Common Stock. Any commissions
in excess of 5% will be paid by the Participants on a pro rata basis. When
shares of Common Stock are sold by the Plan Administrator for a
Participant, the Participant will be responsible for any commissions, fees,
expenses, service charges or other expenses incurred pursuant to the sale
of such shares of Common Stock. No service fees will be charged to
Participants making optional cash purchases through electronic fund
transfers. However, the financial institution designated by a Participant
on the Authorization Form (and the Broker Nominee Form if necessary) may
charge a fee for participating in the electronic fund transfer.
Participants will be charged the Plan Administrator's prevailing fees for
dishonored checks and failed electronic fund transfers due to insufficient
funds.
ACCOUNTS AND STATEMENTS
The Plan Administrator will establish an account under the Plan for each
Participant (the "Participant's Account"), and will credit to the
Participant's Account cash received by the Plan Administrator for the
Participant from cash dividends paid on the shares of Common Stock,
including those full and fractional shares of Common Stock (computed to
three decimal places) acquired under the Plan, and all voluntary cash
contributions for Cash Purchases received by the Plan Administrator from
the Participant.
As soon as practicable after the purchases of shares of Common Stock have
been completed, the Plan Administrator will send each Participant a
statement of their account ("Account Statement"). The Account Statement
will confirm the transaction and itemize any previous investment activity
for the calendar year. Each Participant, by participating in the Plan,
agrees to notify the Plan Administrator promptly in writing of any change
of address. ACCOUNT STATEMENTS SHOULD BE RETAINED BY THE PARTICIPANT FOR
HIS OR HER OWN RECORDS.
PURCHASE AND PRICE OF SHARES
Dividend Reinvestment. The Plan Administrator will apply cash credited
to the Participant's Account to the purchase of full and/or fractional
interests in shares of Common Stock and will credit the number of shares of
Common Stock so purchased to the Participant's Account. The Plan
Administrator will apply such funds toward the purchase of shares of Common
Stock in the open market or from authorized but unissued shares of Common
Stock for the Participant's Account.
(1) Discount Rate on Dividend Reinvestments. The price of the
authorized but unissued shares of Common Stock purchased by the Plan
Administrator directly from the Company pursuant to the reinvestment of
dividends will be issued at the Discount Rate to the then current Market
Price for Dividend Reinvestments as of the Dividend Reinvestment Date (as
defined below). The Discount Rate is subject to change for future dividend
reinvestments, or complete discontinuance at the Company's discretion,
without prior notice to the Participants after a review of current market
conditions, the level of participation in the Plan and the Company's
current and projected capital needs. Participants may obtain the
applicable Discount Rate by telephoning the Plan Administrator at (800)
524-4458 three business days prior to the Dividend Reinvestment Date. The
Discount Rate will only be in effect for purchases of shares of Common
Stock directly from the Company; if the Company elects to purchase the
shares in the open market or in privately negotiated transactions, the
Discount Rate will not be applied to such purchases for the Participant's
Account.
(2) Price per Share for Reinvested Dividends. The "Market Price for
Dividend Reinvestments" per share of Common Stock acquired directly from
the Company shall be the average of the daily high and low sales prices,
computed to four decimal places, of the shares of Common Stock as reported
on the NYSE on the Dividend Reinvestment Date, or if no trading occurs in
the Common Stock on the Dividend Reinvestment Date, the average of the high
and low sales prices for the first Trading Day immediately preceding the
Dividend Reinvestment Date for which trades are reported. If publication
of the sales price of the Common Stock on any Dividend Reinvestment Date
does not take place or contains a reporting error, the Market Price for
Dividends Reinvestments purchased from the Company shall be determined by
the Plan Administrator or the Company on the basis of such market quotation
as they deem appropriate. No shares of Common Stock will be purchased from
the Company under the Plan at less than par value ($.001 per share of
Common Stock). In addition, no shares of Common Stock will be purchased at
a price which reflects a greater than 5% discount from the fair market
value of such shares on the date of purchase. If the Company elects to
purchase the shares on the open market or in privately negotiated
transactions, the price per share of Common Stock acquired through such
open market or privately negotiated transactions will be the weighted
average of the actual prices paid, computed to four decimal places, for all
the Common Stock purchased by the Plan Administrator in connection with
such open market purchases, without application of the Discount Rate. The
Plan Administrator shall pay brokerage commissions in an amount determined
by the prevailing rates at the time of purchase. Such commissions will be
reimbursed by the Company, but in no event shall the Company be obligated
to pay commissions in excess of five percent (5%) of the purchase price of
the shares of Common Stock. Any commissions in excess of five percent (5%)
will be paid by the Participants on a pro rata basis. Such open market
purchases may be made, at the Plan Administrator's option, on any
securities exchange where the shares of Common Stock are traded, in the
over-the-counter market or in negotiated transactions with third persons,
and may be on such terms as to price, delivery, and otherwise as the Plan
Administrator may determine.
(3) Dividend Reinvestment Date. The date for the reinvestment of
dividends (the "Dividend Reinvestment Date") will be on or within thirty
(30) days after the Dividend Payment Date except where reinvestment of such
funds at a later date is necessary or advisable under applicable securities
laws. Under normal market conditions, the funds are expected to be
reinvested on the Dividend Payment Date.
Cash Purchases. A Stockholder may also make Optional Cash Purchases of
shares of Common Stock, subject to a minimum of $100 and a maximum of
$5,000 (except in cases covered by a Request for Waiver as discussed
below). New investors, not currently Stockholders of the Company, may make
Initial Cash Purchases subject to a minimum of $250 and a maximum of $5,000
(except in cases covered by a Request for Waiver). For purposes of these
limitations on Cash Purchases, all Plan accounts under the common control
or management of a Participant may be aggregated at the Company's sole
discretion.
(1) Discount Rate on Cash Purchases. The price of the authorized but
unissued shares of Common Stock purchased by the Plan Administrator
directly from the Company for Cash Purchases not in excess of the $5,000
maximum may be issued at the Discount Rate to the then current Market Price
for Cash Purchases as of the Cash Purchase Investment Date. The Discount
Rate is subject to change for future investment periods, or complete
discontinuance at the Company's discretion, without prior notice to the
Participants after a review of current market conditions, the level of
participation in the Plan and the Company's current and projected capital
needs. Participants may obtain the applicable Discount Rate by telephoning
the Plan Administrator at (800) 524-4458 three business days prior to the
Dividend Reinvestment Date. The Discount Rate will only be in effect for
purchases of shares of Common Stock directly from the Company; the Discount
Rate will not be applied to purchases for the Participant's Account in the
open market or in privately negotiated transactions.
(2) Price per Share for Cash Purchases. The "Market Price for Cash
Purchases" per share shall be the average of the daily high and low sales
prices, computed to four decimal places, of the shares of Common Stock as
reported on the NYSE during the Pricing Period prior to the related Cash
Purchase Investment Date; provided, however, that the Market Price for
Cash Purchases shall not be less than a price which reflects a 5% discount
from the fair market value of such shares on the date of purchase. If
publication of the sales price of the Common Stock on the Cash Purchase
Investment Date does not take place or contains a pricing error, the
Market Price for Cash Purchases purchased from the Company shall be
determined by the Plan Administrator or the Company on the basis of such
market quotation as they deem appropriate. No shares of Common Stock will
be purchased from the Company under the Plan at less than par value ($.001
per share of Common Stock). No commission shall be paid with respect to
purchases of authorized but unissued shares of Common Stock directly from
the Company. If the Company elects to purchase the shares on the open
market or in privately negotiated transactions, the price per share of
Common Stock acquired through such open market or privately negotiated
transactions will be the weighted average of the actual prices paid,
computed to four decimal places, for all the Common Stock purchased by the
Plan Administrator in connection with such open market purchases, without
application of the Discount Rate. The Plan Administrator shall pay
brokerage commissions in an amount determined by the prevailing rates at
the time of purchase. Such commissions will be reimbursed by the Company,
but in no event shall the Company be obligated to pay commissions in
excess of five percent (5%) of the purchase price of the shares of Common
Stock. Any commissions in excess of five percent (5%) will by paid by the
Participants on a pro rata basis. Such open market purchases may be made,
at the Plan Administrator's option, on any securities exchange where the
shares of Common Stock are traded, in the over-the-counter market or in
negotiated transactions with third persons, and may be on such terms as to
price, delivery, and otherwise as the Plan Administrator may determine.
(3) Waiver of Maximum Cash Purchase Limitation. Cash Purchases in
excess of $5,000 may be made only upon acceptance in writing by the Company
of a completed written Request for Waiver form from the Participant. A
Request for Waiver must be received by the Company at its corporate address
or via facsimile at (212) 754-8777 no later than 2:00 p.m., New York City
time, on the second business day preceding the relevant Pricing Period.
Request for Waiver forms may be obtained from the Plan Administrator by
telephone at (800) 524-4458. The Company may establish a discount rate
different than the Discount Rate, ranging from 0% to 5% (the "Waiver
Discount") regarding shares purchased from the Company for Cash Purchases
exceeding $5,000 per month and approved by the Company pursuant to a
Request for Waiver. Participants may obtain the applicable Waiver Discount
by telephoning the Plan Administrator at (800) 524-4458 three business days
prior to the first day of the Pricing Period. It is solely within the
Company's discretion as to whether any such approval for cash investments
in excess of $5,000 will be granted. In deciding whether to approve a
Request for Waiver, the Company will consider relevant factors including,
but not limited to: whether the Plan is then acquiring newly issued or
treasury shares directly from the Company or acquiring shares from third
parties in the open market or in privately negotiated transactions; the
Company's need for additional funds; the attractiveness of obtaining such
additional funds through the sale of Common Stock as compared to other
sources of funds; the purchase price likely to apply to any sale of Common
Stock under the Plan; the Participant submitting the request; the extent
and nature of such Participant's prior participation in the Plan; the
number of shares of Common Stock held by such Participant and the aggregate
amount of cash investments for which Requests for Waiver have been
submitted by all Participants. If such requests are submitted for any Cash
Purchase Investment Date for an aggregate amount in excess of the amount
the Company is then willing to accept, the Company may honor such requests
in order of receipt, pro rata or by any other method that the Company
determines in its sole discretion to be appropriate. The Company
anticipates that it will respond to each Request for Waiver by the close of
business (7:00 p.m., New York City time) on the second business day
preceding the relevant Pricing Period. Any Request for Waiver accepted by
the Company will be subject to all the terms and conditions otherwise
applicable to Cash Purchases, except those terms and conditions expressly
changed by this Section.
(4) Threshold Price. Notwithstanding anything contained herein to the
contrary, the Company may establish for each Pricing Period a threshold
price applicable to Cash Purchases made pursuant to Requests for Waiver
approved by the Company (the "Threshold Price"). The Threshold Price, if
any, will be established by the Company at least three business days prior
to the first day of the Pricing Period, and will be established in the
Company's sole discretion after a review of current market conditions and
other relevant factors. Participants may obtain the applicable Threshold
Price and Waiver Discount by telephoning the Plan Administrator at (800)
524-4458. The Threshold Price will be a stated dollar amount that the
average of the high and low sale prices of the Common Stock on the New
York Stock Exchange for a Trading Day of the Pricing Period must equal or
exceed. In the event that such Threshold Price is not satisfied for a
Trading Day of the Pricing Period, then such Trading Day and the trading
prices for that day will be excluded from (i) the Pricing Period and (ii)
the determination of the purchase price of the Common Stock for all cash
investments made pursuant to Requests for Waiver approved by the Company.
Thus, for example, if the Threshold Price is not satisfied for three of
the twelve Trading Days, then the price of the Common Stock will be based
upon the remaining nine Trading Days for which the Threshold Price was
satisfied.
Each Trading Day of a Pricing Period for which the Threshold Price is not
satisfied will cause the return of a portion of any cash investments made
pursuant to Requests for Waiver approved by the Company. The returned
amount will equal one-twelfth of such cash investments for each Trading Day
that the Threshold Price is not satisfied. Thus, for example, if the
Threshold Price is not satisfied for three Trading Days, then 3/12 (i.e.,
25%) of such cash investments will be returned without interest.
The Threshold Price and return procedure discussed above apply only to
Cash Purchases made pursuant to Requests for Waiver approved by the Company
and not to the reinvestment of dividends or Cash Purchases that do not
exceed $5,000.
(5) Cash Purchase Investment Date. The Cash Purchase Investment Date
for Cash Purchases will occur on or about the third from the last business
day of each month, or in the case of purchases in the open market, no later
than the last business day of each month.
(6) Timing and Procedure for Cash Purchases. Each month the Plan
Administrator will apply a Cash Purchase for which good funds are timely
received to the purchase of shares of Common Stock for the account of the
Participant on the next Cash Purchase Investment Date. In order for funds
to be invested on the next Cash Purchase Investment Date, the Plan
Administrator must have received the following in a timely fashion: (i) the
Authorization Form (if the person is not yet enrolled as a Participant) and
the Broker and Nominee Form (if necessary) at least one business day before
the commencement of the Pricing Period; (ii) the Request for Waiver (if
applicable) no later than 2:00 p.m., New York City time, two business days
before the commencement of the Pricing Period; and (iii) a check, money
order or wire transfer no later than one business day prior to the
commencement of the related Pricing Period (the "Cash Purchase Due Date")
although the Company may, within its sole discretion, accept such funds
after the Cash Purchase Due Date in cases of unanticipated delay or
inadvertence by the Participant. Such check, money order or wire transfer
must have cleared before the related Cash Purchase Investment Date. Wire
transfers may be used only if approved verbally in advance by the Plan
Administrator. Instructions for Wire Transfers and Electronic Funds
Transfers can be obtained by telephoning the Plan Administrator at (800)
524-4458. Checks and money orders are accepted subject to timely
collection as good funds and verification of compliance with the terms of
the Plan. Checks or money orders should be made payable to "The Bank of
New York Anthracite Capital, Inc. Dividend Reinvestment and Stock
Purchase Plan." Checks must be drawn on a U.S. bank payable in U.S. funds
or they will be returned to the Participant. In addition, third party
checks will be returned to the Participant. Checks returned for any reason
will not be resubmitted for collection. Participants will be charged the
Plan Administrator's prevailing fees for dishonored checks and failed
electronic fund transfers due to insufficient funds. Generally, Cash
Purchases received more than ten business days before the commencement of
the Pricing Period or after the Cash Purchase Due Date will be returned to
Participants without interest at the end of the Pricing Period; such Cash
Purchases may be resubmitted by a Participant prior to the commencement of
the next or a later Pricing Period.
Upon a Participant's written request using the transaction request form
attached to the bottom portion of the dividend reinvestment statement and
received by the Plan Administrator no later than two business days prior to
the Pricing Period, a timely Cash Purchase not already invested under the
Plan will be canceled or returned to the Participant as soon as practical.
However, in the latter event, no refund of a check or money order will be
made until the funds have been actually received by the Plan Administrator.
Accordingly, such refunds may be delayed up to three weeks. In making
purchases for the Participant's Account, the Plan Administrator may
commingle the Participant's funds with those of other Participants in the
Plan. NO INTEREST WILL BE PAID ON FUNDS HELD BY THE PLAN ADMINISTRATOR
PENDING INVESTMENT OR RETURN TO THE PARTICIPANT. FUNDS FOR CASH PURCHASES
DO NOT CONSTITUTE DEPOSITS OR SAVINGS ACCOUNTS AND ARE NOT INSURED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
RETURNED CHECKS OR FUNDS TRANSFER POLICY
The Plan Administrator reserves the right to debit additional shares
of Common Stock from a Participant's Account if the sale of the shares
purchased is not sufficient to cover the returned check amount and
associated fees.
BROKERAGE
All purchases and sales of Common Stock on the open market will be
executed through BNY ESI & Company, Inc., 101 Barclay Street, New York, New
York, 10286.
VOTING OF SHARES HELD UNDER THE PLAN
Each Participant will be able to vote all shares of Common Stock
(including fractional shares) credited to the Participant's Account. The
Plan Administrator will not vote shares of Common Stock that it holds for a
Participant's Account except as directed by the Participant. All shares of
Common Stock in the Participant's Account will be added to the shares of
Common Stock registered in the Participant's name on the stockholder
records of the Company, if any, and the Participant will receive one proxy
for all such shares of Common Stock which proxy will be voted as the
Participant directs or the Participant may vote all shares of Common Stock
in person at the stockholders' meeting.
CERTIFICATES
Shares of Common Stock purchased under the Plan are registered in the
name of a nominee and shown on each Participant's Account Statement.
However, a Participant may request a certificate for any of the whole
shares of Common Stock which have accumulated in such Participant's Account
by writing a letter of instruction to the Plan Administrator. Each
certificate issued will be registered in the name or names in which the
account is maintained, unless otherwise instructed in writing. If the
certificate is to be issued in a name other than the name on the
Participant's Account, the Participant or Participants must have his or her
signature(s) guaranteed by a commercial bank or a broker that is a member
of the medallion signature guarantee program. Certificates for fractional
shares of Common Stock will not be issued in any case. Dividends will
continue to be paid on the cumulative holdings of both full and fractional
shares of Common Stock remaining in the Participant's Account and will
automatically be reinvested until such time as the shares of Common Stock
are sold or otherwise transferred or until the Participant terminates
participation in the Plan. A book-to-book transfer involves transferring
shares from an existing Participant's Account in the Plan to a new
Participant's Account. Book-to-book transfers will be permitted if all
proper transfer requirements are satisfied. If the new Participant is an
existing Stockholder, all shares in that new Participant's Account will be
coded for reinvestment unless the Plan Administrator is notified otherwise.
For more information on book-to-book transfers, telephone the Plan
Administrator at (800) 524-4458.
Participants who wish to do so may deposit currently held certificates
registered in their names with the Plan Administrator for credit under the
Plan. There is no charge for such deposits, and by making such deposit the
Participant will be relieved of the responsibility for loss, theft or
destruction of the certificate. Shares of Common Stock credited to a
Participant's Account may not be pledged or assigned, and any attempted
pledge or assignment is void. A Participant who wishes to pledge or assign
shares of Common Stock credited to the Participant's Account must first
withdraw such shares of Common Stock from such Participant's Account.
TERMINATION OF PARTICIPATION
A Participant may terminate participation in the Plan at any time by
notifying the Plan Administrator in writing. Unless the termination notice
is received by the Plan Administrator at least two (2) business days prior
to any Dividend Record Date or Cash Purchase Investment Date, it cannot be
processed until after purchases made from the dividends paid or Cash
Purchases submitted have been completed and credited to the Participant's
Account. All dividends with a record date after timely receipt of notice
for termination will be sent directly to the Participant. The Plan
Administrator may terminate the Participant's Account by notice in writing
mailed to the Participant. Any full or fractional interests in shares of
Common Stock may be aggregated and sold with the other terminating
Participants. The proceeds to each Participant, in each case, will be the
average sales price per share of all shares so aggregated and sold
multiplied by the number of full or fractional shares of Common Stock sold
by the Participant, less the Participant's pro rata share of any brokerage
commissions and other costs of sale. Once termination has been effected,
the Plan Administrator will issue to the Participant, without charge,
certificates for the full shares of Common Stock held in the Participant's
Account or, if so requested, sell the full shares of Common Stock held
under the Plan, deduct brokerage commissions, transfer taxes and a service
charge (if any) and deliver the proceeds to the Participant. The value of
the Participant's interest in any fractional share of Common Stock held in
his account at termination will be paid by check, less the Participant's
share of any related expenses. A Participant will also be entitled to the
uninvested portion of any funds received for Optional Cash Purchases if
notice of termination is received prior to the date when the Plan
Administrator becomes obligated to pay for purchased shares of Common
Stock.
If a Participant disposes of all shares of Common Stock represented by
certificates registered in his own name on the books of the Company but
does not give notice of termination under the Plan, the Plan Administrator
may continue to reinvest the dividends on the shares of Common Stock under
the Plan until otherwise directed.
A Participant who changes his or her address must notify the Plan
Administrator immediately. If a Participant changes residences to a state
where the shares of Common Stock offered pursuant to the Plan are not
registered or exempt from registration under applicable securities laws,
the Company may deem the Participant to have terminated participation in
the Plan.
STOCK DIVIDENDS, STOCK SPLITS AND STOCKHOLDER RIGHTS OFFERINGS
Any stock dividends or stock splits distributed by the Company on shares
of Common Stock held by the Plan Administrator for the Participant will be
credited to the Participant's Account. In the event the Company makes
available to its stockholders rights to purchase additional shares of
Common Stock or other securities, the Participant will receive appropriate
instructions in connection with all such rights directly from the Plan
Administrator in order to permit a Participant to determine what action he
or she desires to take. Transaction processing under the Plan may be
curtailed or suspended until the completion of any stock dividend, stock
split or stockholder rights offering.
PLAN ADMINISTRATOR'S RESPONSIBILITIES
The Plan Administrator shall not be liable hereunder for any act done in
good faith, or for any good faith omission to act, including without
limitation, any claims of liability (1) arising out of failure to terminate
any Participant's Account upon such Participant's death prior to receipt of
notice in writing of such death and (2) with respect to the prices at which
shares of Common Stock are purchased or sold for the Participant's Account
and the times such purchases or sales are made.
All notices from the Plan Administrator to a Participant will be mailed
to the Participant's last address of record, which will satisfy the Plan
Administrator's responsibility to give notice.
TERMINATION OF THE PLAN
The Company reserves the right to suspend or terminate the Plan in whole
or part at any time. Notice will be sent to Participants of any suspension
or termination as soon as practicable after such action by the Company.
AMENDMENTS TO THE PLAN
The Plan may be amended or supplemented by the Plan Administrator or the
Company at any time or times, including the period between the Dividend
Record Date and the related Dividend Reinvestment Date. Any such amendment
may include an appointment by the Plan Administrator of a successor Plan
administrator under the terms and conditions contained herein. Notice will
be sent to Participants of any amendments as soon as practicable after such
action by the Company. Any amendment or supplement shall conclusively be
deemed to be accepted by the Participant unless, prior to the effective
date thereof, the Plan Administrator receives written notice of termination
of the Participant's Account.
APPLICABLE LAW
The terms and conditions of the Plan and its operation shall be governed
by the internal laws of the State of Maryland.
INTERPRETATION AND REGULATION OF THE PLAN
THE COMPANY RESERVES THE RIGHT, WITHOUT NOTICE TO PARTICIPANTS, TO
INTERPRET AND REGULATE THE PLAN AS IT DEEMS NECESSARY OR DESIRABLE IN
CONNECTION WITH ITS OPERATION. ANY SUCH INTERPRETATION AND REGULATION
SHALL BE CONCLUSIVE. Neither the Company nor the Plan Administrator, in
administering, interpreting or performing their duties under the Plan, will
be liable for any act committed or omitted in good faith, including,
without limitation, any act giving rise to a claim of liability arising
from (i) the times and prices at which shares of Common Stock are purchased
or sold for a Participant's Account or (ii) fluctuations in the market
price of the Common Stock.
INQUIRIES ABOUT THE PLAN
All terminations, withdrawals, sale of shares and change of addresses
should be directed to:
The Bank of New York
Dividend Reinvestment Department
P.O. Box 1958
Newark, New Jersey 07101-9774
All other correspondence and questions regarding the Plan, a
Participant's Account, and the Discount Rate, Waiver Rate, or Threshold
Price should be directed to:
Anthracite Capital, Inc. Dividend Reinvestment and Stock Purchase Plan
c/o The Bank of New York
P.O. Box 1258
Church Street Station
New York, New York 10286-1254
Telephone: (800) 524-4458
or
Anthracite Capital, Inc.
Dividend Reinvestment and Stock Purchase Plan
345 Park Avenue
New York, New York 10154
Telephone: (212) 409-3333
Facsimile: (212) 754-8777
FEDERAL INCOME TAX CONSEQUENCES
The following discussion summarizes the principal federal income tax
consequences, under current law, of participation in the Plan. It does not
address all potentially relevant federal income tax matters, including
consequences peculiar to persons subject to special provisions of the
federal income tax law (such as banks, insurance companies, and foreign
persons). The discussion is based on the Code, regulations promulgated
thereunder, and rulings of the Internal Revenue Service (the "IRS") all of
which are subject to change, possibly with retroactive effect. No ruling
of the IRS has been issued or will be received regarding the Plan. THE
FOLLOWING DISCUSSION IS GENERAL INFORMATION ONLY, AND PARTICIPANTS SHOULD
CONSULT THEIR TAX ADVISORS TO DETERMINE THE PARTICULAR TAX CONSEQUENCES
THAT MAY RESULT FROM PARTICIPATION IN THE PLAN AND THE DISPOSITION OF ANY
SHARES OF COMMON STOCK PURCHASED PURSUANT TO THE PLAN.
REINVESTED DIVIDENDS
Participants in the Plan should be treated for federal income tax
purposes as having received, on the Dividend Payment Date, a distribution
in an amount equal to the fair market value of the shares of Common Stock
acquired with reinvested dividends.
Shares of Common Stock acquired for Participants in the Plan should have
an initial tax basis to the Participant equal to the amount the Participant
is treated as having received as a dividend. The holding period for shares
of Common Stock purchased through the Plan (including fractional shares)
generally will begin on the day after the Dividend Reinvestment Date upon
which the shares of Common Stock were acquired.
The reinvestment of dividends does not relieve the Participant of any
income tax and will constitute dividend income to the same extent that a
cash distribution would otherwise be treated. Participants who are
qualified pension or profit sharing plans or individual retirement accounts
should be able to exclude such dividend income from unrelated business
taxable income unless such Participants have borrowed to acquire their
shares of Common Stock or such Common Stock is otherwise used in an
unrelated trade or business. The Plan Administrator will report to each
Participant for tax purposes the dividends to be credited to his account as
well as any discounts or costs incurred by the Company. Such information
will also be furnished to the IRS to the extent required by law. In
addition, the Code imposes certain reporting obligations on brokers and
other intermediaries. As a result, the Plan Administrator will be required
to report to the IRS and the Participant any sale of Common Stock by it on
behalf of a Participant.
CASH PURCHASES
The IRS has privately ruled that stockholders who participate in optional
cash purchases under a dividend reinvestment plan of a REIT will not be
treated as receiving a dividend equal to the discount unless such
stockholders also participate in the reinvestment of dividends under such
plan. Private letter rulings are not precedent and may not be relied upon
by taxpayers other than the taxpayers to whom they are issued.
Nevertheless, such rulings often reflect the current thinking of the IRS.
Thus, in the view of the IRS, Participants who elect dividend reinvestment
under the Plan might be treated as having received a distribution upon the
purchase of Optional Cash Purchases and Initial Cash Purchases in an amount
equal to the excess, if any, of the fair market value of the shares of
Common Stock on the date on which they were acquired over the amount of the
Optional Cash Purchases and Initial Cash Purchases. Such shares of Common
Stock should have an initial tax basis equal to the fair market value of
the shares of the Optional Cash Purchases and Initial Cash Purchases. The
amount treated as a distribution will constitute a dividend for federal
income tax purposes to the same extent that a cash distribution would be so
treated. The holding period for a share of Common Stock (including
fractions thereof) generally begins on the day after the date that the
share of Common Stock was acquired.
Participants making Cash Purchases but who do not elect dividend
reinvestment under the Plan should have a tax basis in the purchased stock
equal to the actual purchase price paid to the Participant.
PLAN OF DISTRIBUTION
Except to the extent the Plan Administrator purchases Common Stock in
open market transactions, the Common Stock acquired under the Plan will be
sold directly by the Company through the Plan. The Company may sell Common
Stock to Stockholders (including brokers or dealers) who, in connection
with any resales of such shares, may be deemed to be underwriters. Such
shares, including shares acquired pursuant to Request for Waivers granted
with respect to the Cash Payment feature of the Plan, may be resold in
market transactions (including coverage of short positions) on any national
securities exchange on which shares of Common Stock trade or in privately
negotiated transactions. The Common Stock is currently listed on the New
York Stock Exchange. Under certain circumstances, it is expected that a
portion of the shares of Common Stock available for issuance under the Plan
will be issued pursuant to such waivers. The difference between the price
such owners pay to the Company for Common Stock acquired under the Plan,
after deduction of the applicable discount from the Market Price for Cash
Purchases, and the price at which such shares are resold, may be deemed to
constitute underwriting commissions received by such owners in connection
with such transactions.
Subject to the availability of shares of Common Stock registered for
issuance under the Plan, there is no total maximum number of shares that
can be issued pursuant to the reinvestment of dividends. From time to
time, financial intermediaries may engage in positioning transactions in
order to benefit from the discount from the Market Price for Dividend
Reinvestments of Common Stock acquired through the reinvestment of
dividends under the Plan.
Except with respect to open market purchases of Common Stock relating to
reinvested dividends or Cash Purchases, the Company will pay any and all
brokerage commissions and related expenses incurred in connection with
purchases of Common Stock under the Plan, up to 5% of the Market Price for
Dividend Reinvestments and the Market Price for Cash Purchases of the
Common Stock. Upon withdrawal by a Participant from the Plan by the sale
of Common Stock held under the Plan, the Participant will receive the
proceeds of such sale less a nominal fee per transaction paid to the Plan
Administrator (if such resale is made by the Plan Administrator at the
request of a Participant), any related brokerage commissions and any
applicable transfer taxes.
Common Stock may not be available under the Plan in all states. This
Prospectus does not constitute an offer to sell, or a soliciting of an
offer to buy, any Common Stock or other securities in any state or any
other jurisdiction to any person to whom it is unlawful to make such offer
in such jurisdiction.
INDEMNIFICATION
As permitted by the Maryland General Corporation Law ("MGCL"), the
Company's Articles of Incorporation obligate the Company to indemnify in
advance of the final disposition of a proceeding to the maximum extent
permitted from time to time by Maryland law (a) its present and former
directors and officers, whether serving the Company or at its request any
other entity, to the fullest extent required by the MGCL and to pay or
reimburse reasonable expenses for such persons and (b) other employees and
agents of the Company to such extent as shall be authorized by the Board of
Directors of the Company or the Company's Bylaws and as permitted by the
MGCL, officers, directors and controlling persons. 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, or (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 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. The Company will maintain for the benefit of its officers and
directors, officers' and directors' insurance.
Insofar as indemnification of directors, officers, other employees and
agents of the Registrant for liabilities arising under the Securities Act
of 1933 may be permitted, 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 of whether such indemnification by the Registrant
is against the public policy as expressed in the Act and will be governed
by the final adjudication of such issue.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby will be passed
upon for the Company by Miles & Stockbridge, a Professional Corporation,
Baltimore, Maryland. Certain matters relating to federal income tax
consequences will be passed upon for the Company by Skadden, Arps, Slate,
Meagher & Flom LLP.
EXPERTS
The balance sheet of the Company at March 5, 1998, included as part of
the Company's Registration Statement on Form S-11 (File No. 333-40813), has
been audited by Deloitte & Touche LLP, independent certified public
accountants, as set forth in their report included therein and incorporated
herein by reference. Such balance sheet, and audited financial statements
to be included in subsequently filed documents, will be incorporated herein
in reliance upon the reports of Deloitte & Touche LLP and upon their
authority as experts in auditing and accounting.
GLOSSARY
"Authorization Form" means the form used to appoint the Plan
Administrator as agent for the Participant, to direct the Company to pay to
the Plan Administrator such Participant's cash dividends on Participating
Shares and Plan Shares, and to direct the Plan Administrator to purchase on
the Dividend Reinvestment Date additional shares of Common Stock with such
dividends and to purchase on the relevant Cash Purchase Investment Date
additional shares of Common Stock with Cash Purchases.
"Beneficial Owner" means a Stockholder who beneficially owns shares of
Common Stock that are registered in a name other than such Stockholder's
name, such as in the name of a broker, bank or other nominee.
"Cash Purchase" means a voluntary cash investment in the Common Stock of
the Company through the Plan.
"Cash Purchase Due Date" means the date by which the Plan Administrator
must receive the following items in order for funds to be invested on the
next Cash Purchase Investment Date: (i) the Authorization Form (if person
is not yet enrolled as a Participant) and the Broker and Nominee Form (if
necessary) at least one business day before the commencement of the Pricing
Period; (ii) the Request for Waiver (if applicable) no later than 2:00
p.m., New York City time, two business days before the commencement of the
Pricing Period; and (iii) a check, money order or wire transfer no later
than one business day prior to the commencement of the related Pricing
Period.
"Cash Purchase Investment Date" means the date of investment of the Cash
Purchases, generally on or about the third from the last business day of
each month, or in the case of purchases on the open market, no later than
the last business day of each month.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the common stock, $.001 par value, of the Company.
"Company" means Anthracite Capital, Inc.
"Discount Rate" means a discount ranging from 0% to 5% from the per share
Market Price for Dividend Reinvestments and the Market Price for Cash
Purchases on shares of newly issued Common Stock purchased by the Plan
Administrator for the Plan from the Company with reinvested dividends and
funds from Cash Purchases not in excess of the $5,000 limit.
"Dividend Payment Date" means the dividend payment date announced by the
Company from time to time.
"Dividend Reinvestment Date" means the date of the reinvestment of
dividends paid on Plan Shares and Participating Shares of Common Stock,
generally on or within thirty (30) days after the Dividend Payment Date
except where completion at a later date is necessary or advisable under
applicable securities laws. Under normal market conditions, the Company
expects to reinvest the funds on the Dividend Payment Date.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Initial Cash Purchase" means a Cash Purchase by a non-stockholder.
"Market Price for Cash Purchases" means the average of the daily high and
low Sales Prices, computed to four decimal places, of the Shares of Common
Stock as reported on the NYSE during the Pricing Period prior to the
related Cash Purchase Investment Date.
"Market Price for Dividend Reinvestments" means the average of the daily
high and low sales prices, computed to four decimal places, of the shares
of Common Stock as reported on the NYSE on the Dividend Reinvestment Date.
"NYSE" means the New York Stock Exchange.
"Optional Cash Purchase" means a Cash Purchase by a Stockholder.
"Participant" means a Record Owner of the Company's Stock, the Beneficial
Owner of the Company's Stock whose bank, broker or other nominee
participates on the Beneficial Owner's behalf, or a current non-stockholder
who wishes to participate in the Plan upon making an initial investment in
the Common Stock offered herein.
"Participating Shares" means all or a specified number of shares of
Common Stock owned by the Participant.
"Plan" means the Anthracite Capital, Inc. Dividend Reinvestment and Stock
Purchase Plan, as amended, modified or supplemented from time to time in
accordance with its terms.
"Plan Administrator" means the administrator of the Plan, as of the date
of this prospectus, The Bank of New York.
"Plan Shares" means all whole and fractional shares of Common Stock
credited to a Participant's Plan account.
"Pricing Period" means the twelve Trading Days prior to the Cash
Purchases Investment Date for that month.
"Securities Act" means the Securities Act of 1933, as amended.
"Stockholder of Record" means a Stockholder who owns shares of Common
Stock in his or its own name.
"Stockholders" means record owners of the Common Stock of the Company.
"Threshold Price" means a minimum price applicable to the purchase of
newly issued shares of Common Stock purchased through cash investments made
pursuant to Requests for Waiver approved by the Company.
"Trading Day" means any day other than Saturday, Sunday or a legal
holiday on which the NYSE is closed for trading or a day on which the Plan
Administrator is authorized or obligated by law to close.
"Waiver Discount" means a discount ranging from 0% to 5% from the per
share Market Price on shares of newly issued Common Stock purchased by the
Plan from the Company with funds from Cash Purchases in excess of the
$5,000 limit.
No dealer, salesperson or other individual ANTHRACITE CAPITAL, INC.
has been authorized to give any information CAPITAL, INC.
or make any representations other than those
contained in this Prospectus and, if given or
made, such information or representations Dividend Reinvestment
must not be relied upon as having been and Stock Purchase Plan
authorized by the Company. This Prospectus
does not constitute an offer by the Company
to sell, or a solicitation of an offer to 2,000,000
buy, the securities offered hereby in any COMMON STOCK
jurisdiction where, or to any person to
whom, it is unlawful to make an offer or
solicitation. Neither the delivery of
this Prospectus nor any sale made hereunder
shall, under any circumstances, create an
implication that there has not been any
change in the affairs of the Company since
the affairs of the Company since the date
hereof or that the information contained
herein is correct or complete as of any
time subsequent to the date hereof. _____________________
PROSPECTUS
_____________________
_____________________
TABLE OF CONTENTS
JUNE 30, 1998
Available Information . . . . . . . . . . . . 4
Incorporation of Certain Documents by
Reference . . . . . . . . . . . . . . . . 4
The Company . . . . . . . . . . . . . . . . . 5
Dividend and Distribution Policy . . . . . . 5
Use of Proceeds . . . . . . . . . . . . . . . 6
Summary of the Plan . . . . . . . . . . . . . 6
The Plan . . . . . . . . . . . . . . . . . . 8
Federal Income Tax Consequences . . . . . . . 23
Plan of Distribution . . . . . . . . . . . . 25
Indemnification . . . . . . . . . . . . . . . 26
Legal Matters . . . . . . . . . . . . . . . . 27
Experts . . . . . . . . . . . . . . . . . . . 27
Glossary . . . . . . . . . . . . . . . . . G-1
PART II
ITEM 14. Other Expenses of Issuance and Distribution:
Registration fee $ 8,002.00
Listing Fees 2,500.00
Legal fees and expenses* 10,000.00
Accounting fees and expenses* 2,000.00
Printing expenses* 3,000.00
Miscellaneous expenses 4,498.00
TOTAL EXPENSES $ 30,000.00
-------------
___________________
* estimated expenses
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by the MGCL, the Company's Articles of Incorporation
obligate the Company to indemnify in advance of the final disposition of a
proceeding to the maximum extent permitted from time to time by Maryland
law (a) its present and former directors and officers, whether serving the
Company or at its request any other entity, to the fullest extent required
by the MGCL and to pay or reimburse reasonable expenses for such persons
and (b) other employees and agents of the Company to such extent as shall
be authorized by the Board of Directors of the Company or the Company's
Bylaws and as permitted by the MGCL, officers, directors and controlling
persons. 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 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. The Company will maintain for
the benefit of its officers and directors, officers' and directors'
insurance.
ITEM 16. EXHIBITS.
4.1 Dividend Reinvestment and Stock Purchase Plan
5.1 Opinion of Miles & Stockbridge
8.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
20.1 Dividend Reinvestment and Stock Purchase Plan Brochure to Stockholders
20.2 Authorization Form for the Dividend Reinvestment and Stock Purchase
Plan
23.1 Consent of Miles & Stockbridge (included in Exhibit 5.1)
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in
Exhibit 8.1)
23.3 Consent of Deloitte & Touche LLP
24.1 Power of Attorney (included on signature page)
ITEM 17. 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 to 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;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
provided, however, that paragraphs A(1)(i) and A(1)(ii) do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in the periodic reports filed by the
Registrant pursuant to Section 13 or 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 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 the time shall be deemed to be the initial bona fide
offering thereof.
C. Insofar as indemnification or liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions described in Item 15, 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 of 1933 and is, therefore,
unenforceable. If 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 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 requirement 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-3 and has duly caused
this amendment to the Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in The City of New York, New
York, on June 30, 1998.
ANTHRACITE CAPITAL, INC.
By: /s/ Hugh R. Frater
--------------------------------------
Hugh R. Frater
President and Chief Executive Officer
We, the undersigned directors and officers of Anthracite Capital Inc., do
hereby constitute and appoint Richard M. Shea and Frank D. Gordon, or
either of them, our true and lawful attorneys and agents, to do any and all
acts and things in our name and behalf in our capacities as directors and
officers and to execute any and all instruments for us and in our names in
the capacities indicated below, which said attorneys and agents, or either
of them, may deem necessary or advisable to enable said corporation to
comply with the Securities Act of 1933, as amended, and any rules,
regulations, and requirements of the Securities and Exchange Commission, in
connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our
names and in the capacities indicated below, any and all amendments
(including post-effective amendment) to this Registration Statement, or any
related registration statement that is to be effective upon filing pursuant
to Rule 462(b) under the Securities Act of 1933, as amended; and we do
hereby ratify and confirm all that the said attorneys and agents, or either
of them, shall do or cause to be done by virtue hereby.
PURSUANT TO 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.
/s/ Laurence D. Fink Chairman of the Board June 30, 1998
--------------------
Laurence D. Fink
/s/ Hugh R. Frater Director, President and
-------------------- Chief Executive Officer
Hugh R. Frater (Principal Executive Officer) June 30, 1998
/s/ Richard M. Shea Chief Operating Officer and
-------------------- Chief Financial Officer
Richard M. Shea (Principal Financial and
Accounting Officer) June 30, 1998
/s/ Donald G. Drapkin Director June 30, 1998
---------------------
Donald G. Drapkin
/s/ Carl F. Geuther Director June 30, 1998
---------------------
Carl F. Geuther
/s/ Jeffrey C. Keil Director June 30, 1998
---------------------
Jeffrey C. Keil
/s/ Kendrick R. Wilson, III Director June 30, 1998
---------------------------
Kendrick R. Wilson, III
EXHIBIT INDEX
Exhibit
4.1 Dividend Reinvestment and Stock Purchase Plan
5.1 Opinion of Miles & Stockbridge
8.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
20.1 Dividend Reinvestment and Stock Purchase Plan Brochure to
Stockholders
20.2 Authorization Form for the Dividend Reinvestment and Stock Purchase
Plan
23.1 Consent of Miles & Stockbridge (included in Exhibit 5.1)
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in
Exhibit 8.1)
23.3 Consent of Deloitte & Touche LLP
24.1 Power of Attorney (included on signature page)
EXHIBIT 4.1
ANTHRACITE CAPITAL, INC.
DIVIDEND REINVESTMENT AND STOCK PURCHASE PLAN
PURPOSE OF THE PLAN
The purpose of the Dividend Reinvestment Plan (the "Plan") of Anthracite
Capital, Inc. (the "Company") is to provide existing stockholders (the
"Stockholders") of the Company's outstanding common stock (the "Common
Stock") and interested investors with a convenient and economical method to
purchase shares of Common Stock. The Plan provides the Company with a
means of raising additional capital for operations on an economical basis.
The Plan was authorized by the Company's Board of Directors on June 10,
1998 and became effective on June 30, 1998.
ADMINISTRATION
The Plan will be administered by The Bank of New York (the "Plan
Administrator"). An investor who participates in any feature of the Plan
is hereafter referred to as a "Participant". The Plan Administrator keeps
records, sends statements of account to each Participant, provides
safekeeping for the shares and performs other duties relating to the Plan.
The Plan Administrator will establish an account under the Plan for each
Participant ("Participant's Account"). The Plan Administrator will credit
to the Participant's Account cash received by the Plan Administrator for
the Participant from cash dividends paid on the shares of Common Stock,
including those full and fractional shares of Common Stock (computed to
three decimal places) acquired under the Plan, and all voluntary cash
contributions for Cash Purchases received by the Plan Administrator from
the Participant. The Company will pay to the Plan Administrator all cash
dividends payable with respect to shares of Common Stock owned by the
Participants, including shares and fractional shares previously acquired
under the Plan. The Plan Administrator will apply such funds toward the
purchase of additional shares of Common Stock for the Participant's Account
either directly from the Company or on the open market, as instructed by
the Company.
As soon as practicable after the purchases of shares of Common Stock
have been completed, the Plan Administrator will send each Participant a
statement of their account ("Account Statement"). The Account Statement
will confirm the transaction and itemize any previous investment activity
for the calendar year. Each Participant, by participating in the Plan,
agrees to notify the Plan Administrator promptly in writing of any change
of address. ACCOUNT STATEMENTS SHOULD BE RETAINED BY THE PARTICIPANT FOR
HIS OR HER OWN RECORDS.
ADVANTAGES AND DISADVANTAGES OF THE PLAN
o Advantages
- The Plan provides Participants with the opportunity to purchase
additional shares of Common Stock, if desired, by automatically
reinvesting all or a portion of their cash dividends on Common Stock
in the Plan.
In addition to the reinvestment of dividends, the Plan provides
Stockholders with the opportunity to make monthly investments in
Common Stock through Optional Cash Purchases, subject to a minimum and
maximum amount. Optional Cash Purchases may be made by check, money
order, wire transfer, or electronic funds transfer from a pre-
designated bank account. Optional Cash Purchases may be made
occasionally or at regular intervals, as the Participant desires.
Participants may make Optional Cash Purchases even if dividends on
their shares of Common Stock are not being reinvested.
- The Plan also provides non-Stockholders of the Company the opportunity
to become Participants by making an Initial Cash Purchase in shares of
Common Stock, subject to a minimum and maximum amount.
- Shares purchased directly from the Company through dividend
reinvestment under the Plan will be issued without a sales commission
and may be issued at the Discount Rate to the Market Price for
Dividend Reinvestments (as defined herein). If the Company should
elect that the shares of Common Stock to be purchased under the Plan
are to be purchased in the open market instead of directly from the
Company, the Company will pay any brokerage fees or commissions on
such purchases, up to 5% of the purchase price of the shares of Common
Stock. Any commissions in excess of 5% will be paid by the
Participants on a pro rata basis. The Discount Rate will not apply to
open market purchases or to privately negotiated purchases of Common
Stock.
- Shares purchased directly from the Company for investment through Cash
Purchases under the Plan will be issued without a sales commission and
may be issued at the Discount Rate to the Market Price for Cash
Purchases (as defined herein). If the Company elects that the shares
of Common Stock to be purchased under the Plan are to be purchased in
the open market instead of directly from the Company, the Company will
pay any brokerage fees or commissions on such purchases, up to 5% of
the purchase price of the shares of the Common Stock. Any
commissions in excess of 5% will be paid by the Participants on a pro
rata basis. The Discount Rate will not apply to open market purchases
or to privately negotiated purchases of Common Stock.
- Funds invested in the Plan are fully invested through the purchase of
fractions of shares, as well as full shares, and proportionate cash
dividends on fractions of shares are used to purchase additional
shares.
- Participants may direct the Plan Administrator to transfer, at any
time and at no cost to the Participant, all or a portion of the
Participant's shares in the Plan to a Participant Account for another
person.
- The Plan offers a "share safekeeping" service whereby, at no cost,
Participants may deposit their Common Stock certificates with the Plan
Administrator and have their ownership of such Common Stock maintained
on the Plan Administrator's records as part of their Participant
Account.
- Participants will receive statements containing year-to-date
information on all Plan transactions in a Participant's Account within
a reasonable time after a transaction occurs, designed to simplify the
Participants' record keeping.
o Disadvantages
- Participants in the Plan who reinvest dividends will be treated as
having received dividend income on the dividend payment date (the
"Dividend Payment Date") for federal income tax purposes; such
dividend will generally give rise to a tax liability notwithstanding
the fact that no cash was paid to Participants.
- No interest will be paid by the Company or the Plan Administrator on
dividends or funds for Cash Purchases held pending reinvestment or
investment or to be returned to the Participant. In addition, Cash
Purchases exceeding $5,000 per month may be subject to return to the
Participant (in whole or proportionate part) without interest in the
event that (i) a Threshold Price has been established with respect to
shares to be purchased from the Company, and (ii) such Threshold Price
is not met for any day on which the New York Stock Exchange ("NYSE")
is open for trading ("Trading Day") during the twelve Trading Days
prior to the date scheduled for investment of the funds contributed
for Cash Purchases for that month (the "Pricing Period").
- Participants will have limited control regarding the specific timing
of purchases and sales under the Plan. Because purchases under the
Plan will be made no earlier than twelve Trading Days following
receipt of an investment instruction, and because sales under the Plan
will be effected by the Plan Administrator only as soon as practicable
after its receipt of such instructions, Participants may be unable to
achieve the same level of control over purchase and sale timing that
they might have for investments made outside the Plan. The market
price of the shares of Common Stock may fluctuate between the time of
receipt of an investment instruction and the time at which the shares
of Common Stock are purchased.
- A Participant's investment in the shares of Common Stock held in a
Participant's Account is no different than an investment in directly
held shares of Common Stock in this regard. A Participant bears the
risk of loss and the benefits of gain from market price changes for
all of a Participant's shares of Common Stock. NEITHER THE COMPANY
NOR THE PLAN ADMINISTRATOR CAN GUARANTEE THAT SHARES OF COMMON STOCK
PURCHASED UNDER THE PLAN WILL, AT ANY PARTICULAR TIME, BE WORTH MORE
OR LESS THAN THEIR PURCHASE PRICE.
- The Company, in its sole discretion without prior notice to
Participants, may change its determination as to whether shares of
Common Stock will be purchased by the Plan Administrator directly from
the Company or through open market or privately negotiated purchases,
instead of directly from the Company. No Discount Rate will be
applied on shares purchased under the Plan in the open market or in
privately negotiated purchases. The Company, without prior notice to
Participants, may lower or eliminate the Discount Rate on shares to be
purchased directly from the Company for future investment periods. As
a result, Participants will generally be unable to depend on the
availability of a market discount regarding shares acquired under the
Plan. Participants may obtain the applicable Discount Rate by
telephoning the Plan Administrator at (800) 524-4458 three business
days prior to the first day of the Pricing Period.
- With respect to Cash Purchases (including Cash Purchases exceeding
$5,000 per month), while the Plan allows the Company to establish a
Discount Rate from the Market Price for Cash Purchases of the shares,
there can be no assurance that such Market Price for Cash Purchases,
as so discounted, will not be equal to or greater than the purchase
price of the shares on the relevant date of investment of the funds
contributed for Cash Purchases (the "Cash Purchase Investment Date").
PARTICIPATION
Participation in the Plan is open to any person or entity, whether or
not a Stockholder of the Company, who fulfills the requirements for
participation described below under "Participation Options." A Stockholder
who owns shares of Common Stock in their own name is referred to herein as
a "Stockholder of Record." A Stockholder of Record may participate directly
in the Plan. A Stockholder who beneficially owns shares of Common Stock
that are registered in a name other than such Stockholder's name (for
example, where shares are held in the name of a broker, bank or other
nominee) is referred to herein as a "Beneficial Owner." Beneficial Owners
may participate in the Plan by either (i) becoming a Stockholder of Record
by having one or more shares transferred into its own name, or (ii)
coordinating their participation with their broker, bank or other nominee
who is the record holder to participate on their behalf. A prospective
investor who holds no shares of Common Stock may also participate, at their
option, either directly or through a broker, bank or other nominee by
following the enrollment procedures described below.
Stockholders who are not citizens or residents of the United States for
federal income tax purposes and Stockholders owning, actually or
constructively (taking into account the constructive ownership provisions
applicable to REITs under the Internal Revenue Code of 1986, as amended
(the "Code")), Common Stock in an amount equal to or greater than 9.8% of
the outstanding Common Stock (the "Ownership Limit") will not be eligible
to participate in the Plan. To the extent consistent with the Sections 856
through 860 of the Code, and in accordance with the provisions of the
Company's Amended and Restated Articles of Incorporation, the Company's
Board of Directors may waive the Ownership Limit for, and at the request
of, certain purchasers to allow participation in the Plan.
The Plan is intended for the benefit of investors in the Company and not
for persons or entities who accumulate accounts under the Plan over which
they have control for the purpose of exceeding the $5,000 per month maximum
without seeking the advance approval of the Company or who engage in
transactions that cause or are designed to cause aberrations in the price
or trading volume of the Common Stock. Notwithstanding anything in the
Plan to the contrary, the Company reserves the right to exclude from
participation in the Plan, at any time, (i) persons or entities who attempt
to circumvent the Plan's standard $5,000 per month maximum by accumulating
accounts over which they have control or (ii) any other persons or
entities, as determined in the sole discretion of the Company. For
purposes of this limitation, the Company reserves the right to aggregate
all Cash Purchases for Participants with more than one account using the
same name, address or social security or taxpayer identification number.
For Participants unable to supply a social security or taxpayer
identification number, participation may be limited by the Company to only
one Participant's Account. Also for the purpose of such limitations, all
Participant's Accounts that the Company believes to be under common control
or management or to have common ultimate beneficial ownership may be
aggregated. In the event the Company exercises its right to aggregate
investments and the result would be an investment in excess of $5,000
without an approved Request for Waiver, the Company will return, without
interest, as promptly as practicable, any amount in excess of the
investment limitations.
PARTICIPATION OPTIONS
The Authorization Form appoints the Plan Administrator as agent for the
Participant and directs the Company to pay to the Plan Administrator such
Participant's cash dividends on all or a specified number of shares of
Common Stock owned by the Participant ("Participating Shares"), as well as
on all whole and fractional shares of Common Stock credited to a
Participant's Plan account ("Plan Shares"). The Authorization Form directs
the Plan Administrator to purchase on the Dividend Reinvestment Date
additional shares of Common Stock with such dividends. The Authorization
Form also directs the Plan Administrator to purchase on the relevant Cash
Purchase Investment Date additional shares of Common Stock with Cash
Purchases of not more than $5,000, if any, made by Participants. See "Cash
Purchases---Waiver of Maximum Cash Purchase Limitation" below for a
discussion of the requirements for Cash Purchases exceeding $5,000. See
"Broker and Nominee Form" below for a discussion of the requirements for
Optional Cash Purchases of a Beneficial Owner and Initial Cash Purchases of
an investor who is not a Stockholder of the Company, whose broker, bank or
other nominee holds or will hold such investor's shares in the name of a
major securities depository. The Authorization Form also directs the Plan
Administrator to reinvest automatically all subsequent dividends on Plan
Shares. Dividends will continue to be reinvested until the Participant
specifies otherwise by contacting the Plan Administrator, withdraws from
the Plan, or the Plan is terminated.
The Authorization Form provides for the purchase of additional shares of
Common Stock through the following investment options:
Full Dividend Reinvestment. The Plan Administrator will apply any cash
dividends on all shares of the Common Stock then or subsequently registered
in the Plan under the Participant's name, and all cash dividends on Plan
Shares, together with any Optional Cash Purchases or Initial Cash Purchase,
toward the purchase of additional shares of Common Stock.
Partial Dividend Reinvestment. The Plan Administrator will apply cash
dividends on shares of Common Stock then registered in the Plan under the
Participant's name and specified on the Authorization Form, and all cash
dividends on Plan Shares, together with any Optional Cash Purchases or
Initial Cash Purchase, toward the purchase of additional shares of Common
Stock.
Cash Purchases. The Plan Administrator will only apply voluntary cash
contributions for Cash Purchases received from the Participant toward the
purchase of additional shares of Common Stock. The Participant will
continue to receive cash dividends on shares of Common Stock registered in
the Plan under the Participant's name in the usual manner.
Each Participant may select either one of the dividend reinvestment
options and/or the Cash Purchase option. In each case, dividends will be
reinvested on all Participating Shares and on all Plan Shares held in the
Plan account, including dividends on Common Stock purchased with any
Initial Cash Purchases, until a Participant specifies otherwise by
contacting the Plan Administrator, or withdraws from the Plan altogether,
or until the Plan is terminated. If a Participant would prefer to receive
cash payments of dividends on Plan Shares rather than reinvest such
dividends, those shares must be withdrawn from the Plan by written
notification to the Plan Administrator. See "Termination of Participation"
below. Participants may change their investment options at any time by
requesting a new Authorization Form and returning it to the Plan
Administrator.
Participation in the Plan will begin upon receipt of a properly
completed Authorization Form and/or Broker and Nominee Form (and, in cases
of cash investments exceeding $5,000, receipt and approval by the Company
of a properly completed Request for Wavier). The funds for a Cash Purchase
may be submitted with the initial Authorization Form. Thereafter, it will
not be necessary to submit an additional Authorization Form and Cash
Purchases may be made monthly or periodically at the election of the
Participant. Once an Authorization Form has been submitted, it is not
necessary to submit one with subsequent Cash Purchases. See "The Plan---
Purchase and Price of Shares" for more details on Cash Purchases and
Dividend Reinvestments.
With respect to the dividend reinvestment portion of the Plan, the
Authorization Form (and the Broker Nominee Form if necessary) must be
received by the Plan Administrator at least two (2) calendar days prior to
the Record Date established for a particular dividend in order for a
Stockholder to be eligible for reinvestment of such dividends under the
Plan for that related dividend; otherwise, reinvestment will begin on the
Dividend Reinvestment Date following the next record date. With respect to
Cash Purchases, the Plan Administrator must receive the Authorization Form,
good funds, and the Broker and Nominee Form if necessary, at least one
business day prior to the commencement of the Pricing Period in order for a
Participant's Cash Purchase to be invested on the related Cash Purchase
Investment Date, otherwise; such authorization will be effective as of the
next Cash Purchase Investment Date and the funds will be returned to the
Participant as provided in "The Plan---Purchase and Price of Shares." With
respect to existing Stockholders, if the Authorization Form (and the
Broker Nominee Form if necessary) is received in the period between any
Record Date and Dividend Payment Dates that dividend will be paid in cash
and your initial dividend reinvestment will begin on the next Dividend
Reinvestment Date.
BROKER AND NOMINEE FORM
The Broker and Nominee Form provides the only means by which a broker,
bank or other nominee holding shares of a Beneficial Owner, or planning to
hold shares of an interested investor who is not currently a Stockholder of
the Company, in the name of a major securities depository may invest Cash
Purchases within the minimum and maximum investment limitation established
for the Plan (see "Cash Purchases" below) on behalf of such Beneficial
Owner or interested investor. A Broker and Nominee Form must be delivered
to the Plan Administrator each time such broker, bank or other nominee
transmits Cash Purchases. Broker and Nominee Forms may be obtained at any
time by telephoning the Plan Administrator at (800) 524-4458.
The Broker and Nominee Form and appropriate instructions must be
received by the Plan Administrator not later than 12:00 Noon, New York City
time, on the business day immediately preceding the relevant Pricing Period
in order to be invested on the Cash Purchase Investment Date, otherwise the
Cash Purchase will be returned, without interest.
Shares issued pursuant to a properly completed Broker and Nominee Form
will not be deemed Plan Shares. Therefore, subsequent dividends will be
paid in cash unless otherwise instructed by the Beneficial Owner (see
"Participation" above for a discussion of the requirements for Beneficial
Owner participation in the reinvestment of dividends).
PURCHASE OF AND PRICE OF SHARES
Dividend Reinvestment. The Plan Administrator will apply cash credited to
the Participant's Account to the purchase of full and/or fractional
interests in shares of Common Stock and will credit the number of shares of
Common Stock so purchased to the Participant's Account. The Plan
Administrator will apply such funds toward the purchase of shares of Common
Stock in the open market or from authorized but unissued shares of Common
Stock for the Participant's Account.
(1) Discount Rate on Dividend Reinvestments. The price of the
authorized but unissued shares of Common Stock purchased by the Plan
Administrator directly from the Company pursuant to the reinvestment of
dividends will be issued at the Discount Rate to the then current Market
Price for Dividend Reinvestments as of the Dividend Reinvestment Date (as
defined below). The Discount Rate is subject to change for future dividend
reinvestments, or complete discontinuance at the Company's discretion,
without prior notice to the Participants after a review of current market
conditions, the level of participation in the Plan and the Company's
current and projected capital needs. Participants may obtain the
applicable Discount Rate by telephoning the Plan Administrator at (800)
524-4458 three business days prior to the Dividend Reinvestment Date. The
Discount Rate will only be in effect for purchases of shares of Common
Stock directly from the Company; if the Company elects to purchase the
shares in the open market or in privately negotiated transactions, the
Discount Rate will not be applied to such purchases for the Participant's
Account.
(2) Price per Share for Reinvested Dividends. The "Market Price for
Dividend Reinvestments" per share of Common Stock acquired directly from
the Company shall be the average of the daily high and low sales prices,
computed to four decimal places, of the shares of Common Stock as reported
on the NYSE on the Dividend Reinvestment Date, or if no trading occurs in
the Common Stock on the Dividend Reinvestment Date, the average of the high
and low sales prices for the first Trading Day immediately preceding the
Dividend Reinvestment Date for which trades are reported. If publication
of the sales price of the Common Stock on any Dividend Reinvestment Date
does not take place or contains a reporting error, the Market Price for
Dividends Reinvestments purchased from the Company shall be determined by
the Plan Administrator or the Company on the basis of such market quotation
as they deem appropriate. No shares of Common Stock will be purchased from
the Company under the Plan at less than par value ($.001 per share of
Common Stock). In addition, no shares of Common Stock will be purchased
from the Company at a price which reflects a greater than 5% discount from
the fair market value of such shares on the date of purchase. If the
Company elects to purchase the shares on the open market or in privately
negotiated transactions, the price per share of Common Stock acquired
through such open market or privately negotiated transactions will be the
weighted average of the actual prices paid, computed to four decimal
places, for all the Common Stock purchased by the Plan Administrator in
connection with such open market purchases, without application of the
Discount Rate. The Plan Administrator shall pay brokerage commissions in
an amount determined by the prevailing rates at the time of purchase. Such
commissions will be reimbursed by the Company, but in no event shall the
Company be obligated to pay commissions in excess of five percent (5%) of
the purchase price of the shares of Common Stock. Any commissions in
excess of five percent (5%) will be paid by the Participants on a pro rata
basis. Such open market purchases may be made, at the Plan Administrator's
option, on any securities exchange where the shares of Common Stock are
traded, in the over-the-counter market or in negotiated transactions with
third persons, and may be on such terms as to price, delivery, and
otherwise as the Plan Administrator may determine.
(3) Dividend Reinvestment Date. The date for the reinvestment of
dividends (the "Dividend Reinvestment Date") will be on or within thirty
(30) days after the Dividend Payment Date except where reinvestment of such
funds at a later date is necessary or advisable under applicable securities
laws. Under normal market conditions, the funds are expected to be
reinvested on the Dividend Payment Date.
Cash Purchases. A Stockholder may also make Optional Cash Purchases of
shares of Common Stock, subject to a minimum of $100 and a maximum of
$5,000 (except in cases covered by a Request for Waiver as discussed
below). New investors, not currently Stockholders of the Company, may make
Initial Cash Purchases subject to a minimum of $250 and a maximum of $5,000
(except in cases covered by a Request for Waiver). For purposes of these
limitations on Cash Purchases, all Plan accounts under the common control
or management of a Participant may be aggregated at the Company's sole
discretion.
(1) Discount Rate on Cash Purchases. The price of the authorized but
unissued shares of Common Stock purchased by the Plan Administrator
directly from the Company for Cash Purchases not in excess of the $5,000
maximum may be issued at the Discount Rate to the then current Market Price
for Cash Purchases as of the Cash Purchase Investment Date. The Discount
Rate is subject to change for future investment periods, or complete
discontinuance at the Company's discretion, without prior notice to the
Participants after a review of current market conditions, the level of
participation in the Plan and the Company's current and projected capital
needs. Participants may obtain the applicable Discount Rate by telephoning
the Plan Administrator at (800) 524-4458 three business days prior to the
Dividend Reinvestment Date. The Discount Rate will only be in effect for
purchases of shares of Common Stock directly from the Company; the Discount
Rate will not be applied to purchases for the Participant's Account in the
open market or in privately negotiated transactions.
(2) Price per Share for Cash Purchases. The "Market Price for Cash
Purchases" per share shall be the average of the daily high and low sales
prices, computed to four decimal places, of the shares of Common Stock as
reported on the NYSE during the Pricing Period prior to the related Cash
Purchase Investment Date; provided, however, that the Market Price for
Cash Purchases shall not be less than a price which reflects a 5% discount
from the fair market value of such shares on the date of purchase. If
publication of the sales price of the Common Stock on the Cash Purchase
Investment Date does not take place or contains a pricing error, the
Market Price for Cash Purchases purchased from the Company shall be
determined by the Plan Administrator or the Company on the basis of such
market quotation as they deem appropriate. No shares of Common Stock will
be purchased from the Company under the Plan at less than par value ($.001
per share of Common Stock). No commission shall be paid with respect to
purchases of authorized but unissued shares of Common Stock directly from
the Company. If the Company elects to purchase the shares on the open
market or in privately negotiated transactions, the price per share of
Common Stock acquired through such open market or privately negotiated
transactions will be the weighted average of the actual prices paid,
computed to four decimal places, for all the Common Stock purchased by the
Plan Administrator in connection with such open market purchases, without
application of the Discount Rate. The Plan Administrator shall pay
brokerage commissions in an amount determined by the prevailing rates at
the time of purchase. Such commissions will be reimbursed by the Company,
but in no event shall the Company be obligated to pay commissions in
excess of five percent (5%) of the purchase price of the shares of Common
Stock. Any commissions in excess of five percent (5%) will by paid by the
Participants on a pro rata basis. Such open market purchases may be made,
at the Plan Administrator's option, on any securities exchange where the
shares of Common Stock are traded, in the over-the-counter market or in
negotiated transactions with third persons, and may be on such terms as to
price, delivery, and otherwise as the Plan Administrator may determine.
(3) Waiver of Maximum Cash Purchase Limitation. Cash Purchases in
excess of $5,000 may be made only upon acceptance in writing by the Company
of a completed written Request for Waiver form from the Participant. A
Request for Waiver must be received by the Company at its corporate address
or via facsimile at (212) 754-8777 no later than 2:00 p.m., New York City
time, on the second business day preceding the relevant Pricing Period.
Request for Waiver forms may be obtained from the Plan Administrator by
telephone at (800) 524-4458. The Company may establish a discount rate
different than the Discount Rate, ranging from 0% to 5% (the "Waiver
Discount") regarding shares purchased from the Company for Cash Purchases
exceeding $5,000 per month and approved by the Company pursuant to a
Request for Waiver. Participants may obtain the applicable Waiver Discount
by telephoning the Plan Administrator at (800) 524-4458 three business
days prior to the first day of the Pricing Period. It is solely within the
Company's discretion as to whether any such approval for cash investments
in excess of $5,000 will be granted. In deciding whether to approve a
Request for Waiver, the Company will consider relevant factors including,
but not limited to: whether the Plan is then acquiring newly issued or
treasury shares directly from the Company or acquiring shares from third
parties in the open market or in privately negotiated transactions; the
Company's need for additional funds; the attractiveness of obtaining such
additional funds through the sale of Common Stock as compared to other
sources of funds; the purchase price likely to apply to any sale of Common
Stock under the Plan; the Participant submitting the request; the extent
and nature of such Participant's prior participation in the Plan; the
number of shares of Common Stock held by such Participant and the aggregate
amount of cash investments for which Requests for Waiver have been
submitted by all Participants. If such requests are submitted for any Cash
Purchase Investment Date for an aggregate amount in excess of the amount
the Company is then willing to accept, the Company may honor such requests
in order of receipt, pro rata or by any other method that the Company
determines in its sole discretion to be appropriate. The Company
anticipates that it will respond to each Request for Waiver by the close of
business (7:00 p.m., New York City time) on the second business day
preceding the relevant Pricing Period. Any Request for Waiver accepted by
the Company will be subject to all the terms and conditions otherwise
applicable to Cash Purchases, except those terms and conditions expressly
changed by this Section.
(4) Threshold Price. Notwithstanding anything contained herein to the
contrary, the Company may establish for each Pricing Period a threshold
price applicable to Cash Purchases made pursuant to Requests for Waiver
approved by the Company (the "Threshold Price"). The Threshold Price, if
any, will be established by the Company at least three business days prior
to the first day of the Pricing Period, and will be established in the
Company's sole discretion after a review of current market conditions and
other relevant factors. Participants may obtain the applicable Threshold
Price and Waiver Discount by telephoning the Plan Administrator at (800)
524-4458. The Threshold Price will be a stated dollar amount that the
average of the high and low sale prices of the Common Stock on the New York
Stock Exchange for a Trading Day of the Pricing Period must equal or
exceed. In the event that such Threshold Price is not satisfied for a
Trading Day of the Pricing Period, then such Trading Day and the trading
prices for that day will be excluded from (i) the Pricing Period and (ii)
the determination of the purchase price of the Common Stock for all cash
investments made pursuant to Requests for Waiver approved by the Company.
Thus, for example, if the Threshold Price is not satisfied for three of the
twelve Trading Days, then the price of the Common Stock will be based upon
the remaining nine Trading Days for which the Threshold Price was
satisfied.
Each Trading Day of a Pricing Period for which the Threshold Price is
not satisfied will cause the return of a portion of any cash investments
made pursuant to Requests for Waiver approved by the Company. The returned
amount will equal one-twelfth of such cash investments for each Trading Day
that the Threshold Price is not satisfied. Thus, for example, if the
Threshold Price is not satisfied for three Trading Days, then 3/12 (i.e.,
25%) of such cash investments will be returned without interest.
The Threshold Price and return procedure discussed above apply only to
Cash Purchases made pursuant to Requests for Waiver approved by the Company
and not to the reinvestment of dividends or Cash Purchases that do not
exceed $5,000.
(5) Cash Purchase Investment Date. The Cash Purchase Investment Date
for Cash Purchases will occur on or about the third from the last business
day of each month, or in the case of purchases in the open market, no later
than the last business day of each month.
(6) Timing and Procedure for Cash Purchases. Each month the Plan
Administrator will apply a Cash Purchase for which good funds are timely
received to the purchase of shares of Common Stock for the account of the
Participant on the next Cash Purchase Investment Date. In order for funds
to be invested on the next Cash Purchase Investment Date, the Plan
Administrator must have received the following in a timely fashion: (i) the
Authorization Form (if the person is not yet enrolled as a Participant) and
the Broker and Nominee Form (if necessary) at least one business day before
the commencement of the Pricing Period; (ii) the Request for Waiver (if
applicable) no later than 2:00 p.m., New York City time, two business days
before the commencement of the Pricing Period; and (iii) a check, money
order or wire transfer no later than one business day prior to the
commencement of the related Pricing Period (the "Cash Purchase Due Date")
although the Company may, within its sole discretion, accept such funds
after the Cash Purchase Due Date in cases of unanticipated delay or
inadvertence by the Participant. Such check, money order or wire transfer
must have cleared before the related Cash Purchase Investment Date. Wire
transfers may be used only if approved verbally in advance by the Plan
Administrator. Instructions for Wire Transfers and Electronic Funds
Transfers can be obtained by telephoning the Plan Administrator at (800)
524-4458. Checks and money orders are accepted subject to timely
collection as good funds and verification of compliance with the terms of
the Plan. Checks or money orders should be made payable to "The Bank of
New York Anthracite Capital, Inc. Dividend Reinvestment and Stock
Purchase Plan." Checks must be drawn on a U.S. Bank payable in U.S. funds
or they will be returned to the Participant. In addition, third party
checks will be returned to the Participant. Checks returned for any reason
will not be resubmitted for collection. Participants will be charged the
Plan Administrator's prevailing fees for dishonored checks and failed
electronic fund transfers due to insufficient funds. Generally, Cash
Purchases received more than ten business days before the commencement of
the Pricing Period or after the Cash Purchase Due Date will be returned to
Participants without interest at the end of the Pricing Period; such Cash
Purchases may be resubmitted by a Participant prior to the commencement of
the next or a later Pricing Period.
Upon a Participant's written request using the transaction request form
attached to the bottom portion of the dividend reinvestment statement and
received by the Plan Administrator no later than two business days prior to
the Pricing Period, a timely Cash Purchase not already invested under the
Plan will be canceled or returned to the Participant as soon as practical.
However, in the latter event, no refund of a check or money order will be
made until the funds have been actually received by the Plan Administrator.
Accordingly, such refunds may be delayed up to three weeks. In making
purchases for the Participant's Account, the Plan Administrator may
commingle the Participant's funds with those of other Participants in the
Plan. NO INTEREST WILL BE PAID ON FUNDS HELD BY THE PLAN ADMINISTRATOR
PENDING INVESTMENT OR RETURN TO THE PARTICIPANT. FUNDS FOR CASH PURCHASES
DO NOT CONSTITUTE DEPOSITS OR SAVINGS ACCOUNTS AND ARE NOT INSURED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
RETURNED CHECKS OR FUNDS TRANSFER POLICY
The Plan Administrator reserves the right to debit additional shares of
Common Stock from a Participant's Account if the sale of the shares
purchased is not sufficient to cover the returned check amount and
associated fees.
BROKERAGE
All purchases and sales of Common Stock on the open market will be is
executed through BNY ESI & Company, Inc., 101 Barclay Street, New York, New
York, 10286.
VOTING OF SHARES HELD UNDER THE PLAN
Each Participant will be able to vote all shares of Common Stock
(including fractional shares) credited to the Participant's Account. The
Plan Administrator will not vote shares of Common Stock that it holds for a
Participant's Account except as directed by the Participant. All shares of
Common Stock in the Participant's Account will be added to the shares of
Common Stock registered in the Participant's name on the stockholder
records of the Company, if any, and the Participant will receive one proxy
for all such shares of Common Stock which proxy will be voted as the
Participant directs or the Participant may vote all shares of Common Stock
in person at the stockholders' meeting.
CERTIFICATES
Shares of Common Stock purchased under the Plan are registered in the
name of a nominee and shown on each Participant's Account Statement.
However, a Participant may request a certificate for any of the whole
shares of Common Stock which have accumulated in such Participant's Account
by writing a letter of instruction to the Plan Administrator. Each
certificate issued will be registered in the name or names in which the
account is maintained, unless otherwise instructed in writing. If the
certificate is to be issued in a name other than the name on the
Participant's Account, the Participant or Participants must have his or her
signature(s) guaranteed by a commercial bank or a broker that is a member
of the medallion signature guarantee program. Certificates for fractional
shares of Common Stock will not be issued in any case. Dividends will
continue to be paid on the cumulative holdings of both full and fractional
shares of Common Stock remaining in the Participant's Account and will
automatically be reinvested until such time as the shares of Common Stock
are sold or otherwise transferred or until the Participant terminates
participation in the Plan. A book-to-book transfer involves transferring
shares from an existing Participant's Account in the Plan to a new
Participant's Account. Book-to-book transfers will be permitted if all
proper transfer requirements are satisfied. If the new Participant is an
existing Stockholder, all shares in that new Participant's Account will be
coded for reinvestment unless the Plan Administrator is notified otherwise.
For more information on book-to-book transfers, telephone the Plan
Administrator at (800) 524-4458.
Participants who wish to do so may deposit currently held certificates
registered in their names with the Plan Administrator for credit under the
Plan. There is no charge for such deposits, and by making such deposit the
Participant will be relieved of the responsibility for loss, theft or
destruction of the certificate.
Shares of Common Stock credited to a Participant's Account may not be
pledged or assigned, and any attempted pledge or assignment is void. A
Participant who wishes to pledge or assign shares of Common Stock credited
to the Participant's Account must first withdraw such shares of Common
Stock from such Participant's Account.
TERMINATION OF PARTICIPATION
A Participant may terminate participation in the Plan at any time by
notifying the Plan Administrator in writing. Unless the termination notice
is received by the Plan Administrator at least two (2) business days prior
to any Dividend Record Date or Cash Purchase Investment Date, it cannot be
processed until after purchases made from the dividends paid or Cash
Purchases submitted have been completed and credited to the Participant's
Account. All dividends with a record date after timely receipt of notice
for termination will be sent directly to the Participant. The Plan
Administrator may terminate the Participant's Account by notice in writing
mailed to the Participant. Any full or fractional interests in shares of
Common Stock may be aggregated and sold with the other terminating
Participants. The proceeds to each Participant, in each case, will be the
average sales price per share of all shares so aggregated and sold
multiplied by the number of full or fractional shares of Common Stock sold
by the Participant, less the Participant's pro rata share of any brokerage
commissions and other costs of sale. Once termination has been effected,
the Plan Administrator will issue to the Participant, without charge,
certificates for the full shares of Common Stock held in the Participant's
Account or, if so requested, sell the full shares of Common Stock held
under the Plan, deduct brokerage commissions, transfer taxes and a service
charge (if any) and deliver the proceeds to the Participant. The value of
the Participant's interest in any fractional share of Common Stock held in
his account at termination will be paid by check, less the Participant's
share of any related expenses. A Participant will also be entitled to the
uninvested portion of any funds received for Optional Cash Purchases if
notice of termination is received prior to the date when the Plan
Administrator becomes obligated to pay for purchased shares of Common
Stock.
If a Participant disposes of all shares of Common Stock represented by
certificates registered in his own name on the books of the Company but
does not give notice of termination under the Plan, the Plan Administrator
may continue to reinvest the dividends on the shares of Common Stock under
the Plan until otherwise directed.
A Participant who changes his or her address must notify the Plan
Administrator immediately. If a Participant changes residences to a state
where the shares of Common Stock offered pursuant to the Plan are not
registered or exempt from registration under applicable securities laws,
the Company may deem the Participant to have terminated participation in
the Plan.
STOCK DIVIDENDS, STOCK SPLITS AND STOCKHOLDER RIGHTS OFFERINGS
Any stock dividends or stock splits distributed by the Company on shares
of Common Stock held by the Plan Administrator for the Participant will be
credited to the Participant's Account. In the event the Company makes
available to its stockholders rights to purchase additional shares of
Common Stock or other securities, the Participant will receive appropriate
instructions in connection with all such rights directly from the Plan
Administrator in order to permit a Participant to determine what action he
or she desires to take. Transaction processing under the Plan may be
curtailed or suspended until the completion of any stock dividend, stock
split or stockholder rights offering.
PLAN ADMINISTRATOR'S RESPONSIBILITIES
The Plan Administrator shall not be liable hereunder for any act done in
good faith, or for any good faith omission to act, including without
limitation, any claims of liability (1) arising out of failure to terminate
any Participant's Account upon such Participant's death prior to receipt of
notice in writing of such death and (2) with respect to the prices at which
shares of Common Stock are purchased or sold for the Participant's Account
and the times such purchases or sales are made.
All notices from the Plan Administrator to a Participant will be mailed
to the Participant's last address of record, which will satisfy the Plan
Administrator's responsibility to give notice.
TERMINATION OF THE PLAN
The Company reserves the right to suspend or terminate the Plan in whole
or part at any time. Notice will be sent to Participants of any suspension
or termination as soon as practicable after such action by the Company.
AMENDMENTS TO THE PLAN
The Plan may be amended or supplemented by the Plan Administrator or the
Company at any time or times, including the period between the Dividend
Record Date and the related Dividend Reinvestment Date. Any such amendment
may include an appointment by the Plan Administrator of a successor Plan
administrator under the terms and conditions contained herein. Notice will
be sent to Participants of any amendments as soon as practicable after such
action by the Company. Any amendment or supplement shall conclusively be
deemed to be accepted by the Participant unless, prior to the effective
date thereof, the Plan Administrator receives written notice of termination
of the Participant's Account.
APPLICABLE LAW
The terms and conditions of the Plan and its operation shall be governed
by the internal laws of the State of Maryland.
INTERPRETATION AND REGULATION OF THE PLAN
THE COMPANY RESERVES THE RIGHT, WITHOUT NOTICE TO PARTICIPANTS, TO
INTERPRET AND REGULATE THE PLAN AS IT DEEMS NECESSARY OR DESIRABLE IN
CONNECTION WITH ITS OPERATION. ANY SUCH INTERPRETATION AND REGULATION
SHALL BE CONCLUSIVE. Neither the Company nor the Plan Administrator, in
administering, interpreting or performing their duties under the Plan, will
be liable for any act committed or omitted in good faith, including,
without limitation, any act giving rise to a claim of liability arising
from (i) the times and prices at which shares of Common Stock are purchased
or sold for a Participant's Account or (ii) fluctuations in the market
price of the Common Stock.
INQUIRIES ABOUT THE PLAN
All terminations, withdrawals, sale of shares and change of addresses
should be directed to:
The Bank of New York
Dividend Reinvestment Department
P.O. Box 1958
Newark, New Jersey 07101-9774
All other correspondence and questions regarding the Plan, a
Participant's Account, and the Discount Rate, Waiver Rate, or Threshold
Price should be directed to:
Anthracite Capital, Inc. Dividend Reinvestment and Stock Purchase Plan
c/o The Bank of New York
P.O. Box 1258
Church Street Station
New York, New York 10286-1254
Telephone: (800) 524-4458
or
Anthracite Capital, Inc.
Dividend Reinvestment and Stock Purchase Plan
345 Park Avenue
New York, New York 10154
Telephone: (212) 409-3333
Facsimile: (212) 754-8777
GLOSSARY
"Authorization Form" means the form used to appoint the Plan
Administrator as agent for the Participant, to direct the Company to pay to
the Plan Administrator such Participant's cash dividends on Participating
Shares and Plan Shares, and to direct the Plan Administrator to purchase on
the Dividend Reinvestment Date additional shares of Common Stock with such
dividends and to purchase on the relevant Cash Purchase Investment Date
additional shares of Common Stock with Cash Purchases.
"Beneficial Owner" means a Stockholder who beneficially owns shares of
Common Stock that are registered in a name other than such Stockholder's
name, such as in the name of a broker, bank or other nominee.
"Cash Purchase" means a voluntary cash investment in the Common Stock of
the Company through the Plan.
"Cash Purchase Due Date" means the date by which the Plan Administrator
must receive the following items in order for funds to be invested on the
next Cash Purchase Investment Date: (i) the Authorization Form (if person
is not yet enrolled as a Participant) and the Broker and Nominee Form (if
necessary) at least one business day before the commencement of the Pricing
Period; (ii) the Request for Waiver (if applicable) no later than 2:00
p.m., New York City time, two business days before the commencement of the
Pricing Period; and (iii) a check, money order or wire transfer no later
than one business day prior to the commencement of the related Pricing
Period.
"Cash Purchase Investment Date" means the date of investment of the Cash
Purchases, generally on or about the third from the last business day of
each month, or in the case of purchases on the open market, no later than
the last business day of each month.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the common stock, $.001 par value, of the Company.
"Company" means Anthracite Capital, Inc.
"Discount Rate" means a discount ranging from 0% to 5% from the per
share Market Price for Dividend Reinvestments and the Market Price for Cash
Purchases on shares of newly issued Common Stock purchased by the Plan
Administrator for the Plan from the Company with reinvested dividends and
funds from Cash Purchases not in excess of the $5,000 limit.
"Dividend Payment Date" means the dividend payment date announced by the
Company from time to time.
"Dividend Reinvestment Date" means the date of the reinvestment of
dividends paid on Plan Shares and Participating Shares of Common Stock,
generally on or within thirty (30) days after the Dividend Payment Date
except where completion at a later date is necessary or advisable under
applicable securities laws. Under normal market conditions, the Company
expects to reinvest the funds on the Dividend Payment Date.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Initial Cash Purchase" means a Cash Purchase by a non-stockholder.
"Market Price for Cash Purchases" means the average of the daily high
and low Sales Prices, computed to four decimal places, of the Shares of
Common Stock as reported on the NYSE during the Pricing Period prior to the
related Cash Purchase Investment Date.
"Market Price for Dividend Reinvestments" means the average of the daily
high and low sales prices, computed to four decimal places, of the shares
of Common Stock as reported on the NYSE on the Dividend Reinvestment Date.
"NYSE" means the New York Stock Exchange.
"Optional Cash Purchase" means a Cash Purchase by a Stockholder.
"Participant" means a Record Owner of the Company's Stock, the
Beneficial Owner of the Company's Stock whose bank, broker or other nominee
participates on the Beneficial Owner's behalf, or a current non-stockholder
who wishes to participate in the Plan upon making an initial investment in
the Common Stock offered herein.
"Participating Shares" means all or a specified number of shares of
Common Stock owned by the Participant.
"Plan" means the Anthracite Capital, Inc. Dividend Reinvestment and
Stock Purchase Plan, as amended, modified or supplemented from time to time
in accordance with its terms.
"Plan Administrator" means the administrator of the Plan, as of the date
of this Plan, The Bank of New York.
"Plan Shares" means all whole and fractional shares of Common Stock
credited to a Participant's Plan account.
"Pricing Period" means the twelve Trading Days prior to the Cash
Purchases Investment Date for that month.
"Securities Act" means the Securities Act of 1933, as amended.
"Stockholder of Record" means a Stockholder who owns shares of Common
Stock in his or its own name.
"Stockholders" means record owners of the Common Stock of the Company.
"Threshold Price" means a minimum price applicable to the purchase of
newly issued shares of Common Stock purchased through cash investments made
pursuant to Requests for Waiver approved by the Company.
"Trading Day" means any day other than Saturday, Sunday or a legal
holiday on which the NYSE is closed for trading or a day on which the Plan
Administrator is authorized or obligated by law to close.
"Waiver Discount" means a discount ranging from 0% to 5% from the per
share Market Price on shares of newly issued Common Stock purchased by the
Plan from the Company with funds from Cash Purchases in excess of the
$5,000 limit.
EXECUTION
To record the adoption of the Plan as of June 30, 1998, the Company has
caused this Plan to be executed in the name and on behalf of the Company by
a duly authorized officer.
ANTHRACITE CAPITAL, INC.,
a Maryland corporation
____________________________________________
By: Hugh R. Frater
Title: President and Chief Executive Officer
EXHIBIT 5.1
June 30, 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 2,000,000 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-3
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/ John B. Frisch
----------------------------
Principal
EXHIBIT 8.1
June 30, 1998
ANTHRACITE CAPITAL, INC.
345 Park Avenue, 29th Floor
New York, New York 10154
Re: Certain Federal Income Tax Consequences
Ladies and Gentlemen:
You have requested our opinion concerning certain U.S. federal
income tax consequences in connection with the registration of 2,000,000
shares (the "Registration") of Common Stock, par value $.001 per share of
Anthracite Capital, Inc., a Maryland corporation (the "Company"), pursuant
to a registration statement (the "Registration Statement")
filed with the Securities and Exchange Commission on June 30, 1998. Unless
otherwise specifically defined herein, all capitalized terms have the
meanings assigned to them in the Registration Statement.
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 Registration. In addition, you have provided
us with certain representations and covenants of officers of the Company
relating to, among other things, the actual and 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 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 relate 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 June 30, 1998 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 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 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 it may not be used, circulated, quoted or relied
upon for any other purpose, except that we consent to in accordance with
the requirements of Item 601(a)(23) of Regulation S-K under the Securities
Act, to the filing of this opinion as Exhibit 8.1 of the Registration
Statement. In giving such consent, we do not thereby admit that we are in
the category of persons whose consent is required under Section 7 of the
Securities Act or the rules and regulations of the Securities and Exchange
Commission thereunder.
This opinion is expressed as of the date hereof 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
EXHIBIT 20.1
ANTHRACITE CAPITAL, INC.
345 Park Avenue
New York, New York 10154
(212) 409-3333
ADMINISTRATOR OF THE PLAN
The Bank of New York
P. O. Box 1258
Church Street Station
New York, New York 10286-1254
(800) 524-4458
ANTHRACITE CAPITAL, INC.
Dear Stockholder:
We appreciate your interest in Anthracite Capital, Inc. ("AHR"), a
real estate investment trust that invests in multifamily, commercial and
residential mortgage loans, mortgage-backed securities and other real
estate related assets. At this time we want to provide you with additional
information regarding AHR's Dividend Reinvestment and Stock Purchase Plan
(the "Plan").
The Plan provides a convenient and economical way for common
stockholders to automatically reinvest their dividends and to make common
stock purchases, in an amount ranging between $100 and $5,000 per month,
at a discount rate ranging from 0% to 5% to the then current market price.
It also provides interested non-stockholders a way to make their initial
cash purchases in an amount ranging from $250 to $5,000 at the same
Discount Rate. Please review the accompanying Prospectus for a detailed
explanation of the terms and conditions of the Plan.
We believe the Plan has some important advantages to both you as an
investor and to the Company as a whole. The following are a few highlights
that you should be aware of:
o When you elect to reinvest your dividends and new shares are issued by
AHR, your dividends will be reinvested into new common shares at a
discount to the then current market price. The current Discount Rate
is 3%;
o When common shares are purchased in the market, dividends will be
reinvested in such shares without incurring brokerage commissions or
other expenses;
o A common stockholder can designate the dividends on a portion of his
or her shares to be reinvested in common shares and continue to
receive cash dividends on the remaining portion;
o If a participant's shares are held in a tax deferred plan, then the
tax on the dividends may also be deferred;
o Stockholders can also make additional purchases of AHR common stock on
a monthly basis, subject to a minimum purchase limit of $100 and a
maximum purchase limit of $5,000, at up to a 5% discount to the then
current market price (larger purchases are possible subject to the
Company's approval);
o Non-Stockholders may become Participants by making their initial cash
investment in the Company, subject to a minimum purchase limit of $250
and a maximum purchase limit of $5,000, at up to a 5% discount to the
then current market price (larger purchases are possible subject to
the Company's approval);
o Participation by stockholders increases the equity capital base of AHR
which contributes to its continued growth.
o The following are a few answers to commonly asked questions regarding
the Plan. Please read the accompanying Prospectus carefully before
deciding to participate. Each stockholder currently participating in
the Plan will continue to participate without any further action
required on his or her part.
WHAT IS THE PURPOSE OF THE DIVIDEND REINVESTMENT AND STOCK PURCHASE PLAN?
The purpose of the Plan is to provide common stockholders with a
convenient and economical method to both automatically reinvest their cash
dividends in shares of AHR's common stock. It also provides current
stockholders and interested new investors with a way to purchase common
shares directly from the Company at a discount. The Plan is intended to
benefit long term investors who want to increase their investment in the
common stock of the Company.
WHO IS THE PLAN'S ADMINISTRATOR?
The Plan is being administered by The Bank of New York (the "Plan
Administrator"). The Plan Administrator keeps records, sends statements of
account to each participant in the Plan and performs other duties related
to the Plan, including the safekeeping of the shares purchased for each
participant. The Plan Administrator also acts as the dividend disbursing
agent, transfer agent and registrar for the common stock of AHR.
WHAT INVESTMENT OPTIONS ARE AVAILABLE?
The attached Authorization Form provides for the purchase of shares of
AHR common stock through the following investment options:
(1) FULL DIVIDEND REINVESTMENT - the Plan Administrator will apply
all cash dividends paid on all common shares registered in your name(s),
together with any funds for optional cash purchases, toward the purchase of
shares of AHR's common stock.
(2) PARTIAL DIVIDEND REINVESTMENT - the Plan Administrator will apply
all cash dividends paid on only the number of participating common shares
you specify on the authorization form, together with any funds for optional
cash purchases, toward the purchase of shares of AHR's common stock.
Common stock purchased by the Plan will be automatically enrolled in the
Plan such that the dividends paid on such shares will also be reinvested in
shares of AHR's common stock.
(3) CASH PURCHASES ONLY - the Plan Administrator will apply voluntary
cash contributions received from you towards the purchase of shares to
AHR's common stock. The optional cash purchases are subject to a minimum
purchase limit of $100 (except initial cash purchases by non-stockholders,
which are subject to a minimum purchase limit of $250) and a maximum
purchase limit of $5,000 for each month. You will continue to receive cash
dividends on common shares registered in you name(s). Dividends paid on
common stock purchased by the Plan will be automatically reinvested in
shares of the AHR's common stock.
CAN I CHANGE MY INVESTMENT OPTIONS?
Yes. Participants may change their investment options at any time by
requesting an authorization form and returning it to the Plan
Administrator.
HOW ARE THE SHARES PURCHASED FOR THE PLAN?
AHR will pay the Plan Administrator all dividends for shares of common
and/or preferred stock owned by participants in the Plan. At the direction
of AHR, the Plan Administrator will then apply such funds, together with
any voluntary cash contributions received from Participants, towards the
purchase of AHR's common stock, either directly from AHR or on the open
market. The price of the shares purchased by the Plan Administrator
directly from AHR will be discounted by up to five percent (5%) from the
then current market price.
IS THERE A COST TO PARTICIPATE IN THE PLAN?
AHR pays all costs relating to the administration and maintenance of
the Plan. There will be no brokerage commission on shares purchased from
AHR. For shares purchased on the open market, AHR will pay any brokerage
commissions or charges up to five percent (5%) and any excess above five
percent (5%) will be paid by the participants on a pro rata basis.
HOW DO I ENROLL?
Anyone is eligible. Simply complete the attached Authorization Form
and mail it to the Plan Administrator. Stockholders previously enrolled in
the Plan will continue to participate without any further action on their
part.
If your common shares are registered in a name other than your own
e.g., in the name of a broker or bank nominee then you must either;
(1) have your shares re-registered in your own name(s) and then
complete the Authorization Form, or
(2) request that your broker or nominee complete and sign the
Authorization Form and a Broker Nominee form and return them to the Plan
Administrator.
Stockholders whose shares are registered in the name of the broker or
nominee must verify for themselves the extent to which their broker or
nominee is able to provide the services and features of the Plan directly
to them. All communications regarding the Plan by these stockholders must
be made directly to their broker or nominee. See the section entitled
"Participation" in the accompanying Prospectus for further details.
HOW DO I GET MORE INFORMATION?
Questions regarding the Dividend Reinvestment and Stock Purchase Plan
should be directed to:
THE BANK OF NEW YORK
P.O. Box 1258
Church Street Station
New York, New York 10286-1254
(800) 524-4458
If your shares are not held in your name, contact your brokerage firm,
bank, or other nominee for more information. They can contact the Plan
Administrator directly for instructions on how to participate on your
behalf.
Questions regarding Anthracite Capital, Inc. should be directed to:
ANTHRACITE CAPITAL, INC.
345 Park Avenue
New York, New York 10154
(212) 409-3333
Thank you for taking a few moments to carefully consider the
advantages of enrolling in this Plan.
Sincerely,
/s/ HUGH R. FRATER
-------------------------------------
Hugh R. Frater
President and Chief Executive Officer
EXHIBIT 20.2
ANTHRACITE CAPITAL, INC. DIVIDEND REINVESTMENT
AND STOCK PURCHASE PLAN AUTHORIZATION FORM
The undersigned holder(s) of common stock of Anthracite Capital, Inc.
("AHR") or non-shareholder(s) interested in investing in Common Stock of
AHR elect to participate in the Dividend Reinvestment and Stock Purchase
Plan (the "Plan"). The undersigned hereby authorizes The Bank of New York
("Plan Administrator") to reinvest dividends and distributions paid by AHR
on its common stock now or hereafter registered in the name(s) of the
undersigned, for the number of shares set forth below, and to make cash
purchases in common stock of AHR with funds received from the undersigned.
This authorization shall remain in effect until termination by the
undersigned holder(s) by written notice to the Plan Administrator.
The foregoing authorization is subject, in all respects to the terms
and conditions of participation in the Plan set forth in the Prospectus
relating to the Plan, which the undersigned has received and read.
PLEASE SIGN EXACTLY AS YOUR SHARES ARE REGISTERED OR IF AN INITIAL
CASH PURCHASE BY A NON-SHAREHOLDER, AS YOU WOULD LIKE THE SHARES
REGISTERED. ALL PERSONS WHOSE NAMES APPEAR ON THE STOCK CERTIFICATES MUST
SIGN.
Please indicate your participation below:
[ ] Full dividend reinvestment on all shares.
[ ] Partial dividend reinvestment on ______ common shares only.
[ ] Cash purchases only.
_______________________________________________________________________
Please Print Your Address
_______________________________________________________________________
Please Print Your Phone Number
_______________________________________________________________________
Please Print Name(s) as Shown on Stock Certificate
_______________________________________________________________________
Shareholder Signature
_______________________________________________________________________
Joint Shareholder Signature
_______________________________________________________________________
Date Social Security or Tax Identification number
IF YOUR SHARES ARE HELD IN THE NAME OF A BROKER OR NOMINEE, YOU MUST
MAKE APPROPRIATE ARRANGEMENTS WITH THEM TO PARTICIPATE IN THE PLAN. PLEASE
SEE INSTRUCTIONS IN THE PROSPECTUS.
EXHIBIT 23.1
CONSENT OF MILES & STOCKBRIDGE (included in Exhibit 5.1)
EXHIBIT 23.2
CONSENT OF SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
(included in Exhibit 8.1)
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the use in this Registration Statement of Anthracite Capital,
Inc. on Form S-3D of our report dated March 6, 1998 which is incorporated
by reference within such Registration Statement.
We also consent to the references to us under the heading "Experts" in the
Prospectus.
New York, New York
June 29, 1998
EXHIBIT 24.1
POWER OF ATTORNEY (included on signature page)
