As filed with the Securities and Exchange Commission on April 1, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------
ANTHRACITE CAPITAL, INC.
(Exact name of registrant as specified in its charter)
Maryland
(State or other jurisdiction of incorporation or organization)
13-3978906
(I.R.S. Employer Identification No.)
345 Park Avenue, 29th Floor
New York, New York 10154
(Address of principal executive offices) (Zip Code)
ANTHRACITE CAPITAL, INC.
1998 STOCK OPTION PLAN
(Full title of the plan)
Hugh R. Frater
President and Chief Executive Officer
Anthracite Capital, Inc.
345 Park Avenue, 29th Floor
New York, New York 10154
(Name and address of agent for service)
(212) 409-3333
(Telephone number, including area code, of agent for service)
The Commission is requested to send copies of all
communications to:
Vincent J. Pisano, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Telephone: (212) 735-2718
Facsimile: (212) 735-2000
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------
Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to be Offering Price Aggregate Registration
to be Registered Registered Per Share(1) Offering Price Fee
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.001 par value 2,470,453 $15.00 $37,056,795 $10,302
shares
(1) Estimated solely for purposes of calculating the registration fee pursuant to Rule 457(h).
</TABLE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS.
The documents containing the information specified in this Part I
will be sent or given to employees as specified by Rule 428(b)(1)
promulgated under the Securities Act of 1933, as amended (the "Act"). Such
documents need not be filed with the Securities and Exchange Commission
either as part of this registration statement or as prospectuses or
prospectus supplements pursuant to Rule 424 under the Act. These documents
and the documents incorporated by reference in this Registration Statement
pursuant to Item 3 of Part II of this Form S-8, taken together, constitute
a prospectus that meets the requirements of Section 10(a) of the Securities
Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, filed with the Commission pursuant to the
1934 Act, are incorporated by reference in this Prospectus:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998;
2. The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1998, including exhibits thereto;
3. The Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1998, including exhibits thereto;
4. The Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1998, including exhibits thereto; and
5. 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.
ITEM 4. DESCRIPTION OF SECURITIES. Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by the Maryland General Corporation Law ("MGCL"), the
Company's Articles of Incorporation obligate the Company to indemnify its
present and former directors and officers and the Manager and its
employees, officers, directors and controlling persons and to pay or
reimburse reasonable expenses for such persons in advance of the final
disposition of a proceeding to the maximum extent permitted from time to
time by Maryland law. The MGCL permits a corporation to indemnify its
present and former directors and officers, among others, against judgments,
penalties, fines, settlements and reasonable expenses actually incurred by
them in connection with any proceeding to which they may be made a party by
reason of their service in those or other capacities, unless it is
established that (a) the act or omission of the director or officer was
material to the matter giving rise to such proceeding and (i) was committed
in bad faith, or (ii) was the result of active and deliberate dishonesty,
(b) the director or officer actually received an improper personal benefit
in money, property or services, or (c) in the case of any criminal
proceeding, the director or officer had reasonable cause to believe that
the act or omission was unlawful. The Bylaws of the Company implement the
provisions relating to indemnification contained in the Company's Articles
of Incorporation. The MGCL 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 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable.
ITEM 8. EXHIBITS
Exhibit No. Description of Exhibit
- ----------- ----------------------
Exhibit 4.1 1998 Stock Option Plan Exhibit 5.1 Opinion of Miles
& Stockbridge, P.C.
Exhibit 23.1 Consent of Miles & Stockbridge, P.C.: included in
Exhibit 5.1
Exhibit 23.3 Consent of Deloitte & Touche LLP
Exhibit 24 Power of Attorney: included as part of the signature page
to this Registration Statement
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(a)(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 bond fide offering thereof;
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing
of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification of directors, officers and
controlling persons of the Registrant for liabilities arising under the
Securities Act of 1933 may be permitted, pursuant to the provisions
referred to in Item 6 of this Registration Statement, 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.
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-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, New York,
on March 31, 1999.
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 March 31, 1999
- ------------------------------
Laurence D. Fink
/s/ Hugh R. Frater Director, President and March 31, 1999
- ------------------------------ Chief Executive Officer
Hugh R. Frater (Principal Executive
Officer)
/s/ Richard M. Shea Chief Operating Officer March 31, 1999
- ------------------------------ and Chief Financial
Richard M. Shea Officer (Principal
Financial and Accounting
Officer)
/s/ Donald G. Drapkin Director March 31, 1999
- ------------------------------
Donald G. Drapkin
/s/ Carl F. Geuther
- ------------------------------- Director March 31, 1999
Carl F. Geuther
/s/Jeffrey C. Keil
- ------------------------------- Director March 31, 1999
Jeffrey C. Keil
/s/ Kendrick R. Wilson, III
- ------------------------------- Director March 31, 1999
Kendrick R. Wilson, III
EXHIBIT INDEX
Exhibit No. Description of Exhibit
- ------------- ---------------------------
Exhibit 4.1 1998 Stock Option Plan
Exhibit 5.1 Opinion of Miles & Stockbridge, P.C.
Exhibit 23.1 Consent of Miles & Stockbridge, P.C.: included in
Exhibit 5.1
Exhibit 23.3 Consent of Deloitte & Touche LLP
Exhibit 24 Power of Attorney: included as part of the signature
page to this Registration Statement
EXHIBIT 4.1
ANTHRACITE CAPITAL, INC.
1998 STOCK OPTION PLAN
SECTION 1. GENERAL PURPOSE OF PLAN; DEFINITIONS.
(a) This plan is the 1998 Stock Option Plan (the "Plan") of
Anthracite Capital, Inc., a Maryland corporation (the "Company"). This Plan
was adopted by the Board on March 20, 1998, subject to the approval of the
Company's stockholders. The purpose of this Plan is to enable the Company
and its Subsidiaries to obtain and retain competent employees, directors
and others who will contribute to the Company's success by their ability
and ingenuity, and to provide incentives to such individuals and entities
that are linked directly to increases in stockholder value which will,
therefore, inure to the benefit of all stockholders of the Company.
(b) For purposes of this Plan, the following terms shall
have the meanings set forth below:
(1) "Award" means any grant of a Stock Option.
(2) "Board" means the Board of Directors of the Company.
(3) "Cause" means any one or more of the following: (A)
a Participant's conviction of a crime which, in the judgment of the
Committee, is likely to result in injury to an Employer; (B) a
Participant's material violation of written policies of an Employer; (C) a
Participant's habitual neglect in the performance of his duties to an
Employer; (D) a Participant's action or inaction in connection with his
duties to an Employer intended to result, in the judgment of the Committee,
in material injury to an Employer; or (E) a Participant's termination from
employment by an Employer for "cause", as that term is defined or used in
such Participant's employment agreement, if any, with such Employer.
(4) "Code" means the Internal Revenue Code of 1986, as
amended from time to time, or any successor thereto.
(5) "Committee" means the Compensation Committee of the
Board, or, if there is no Compensation Committee of the Board, the entire
Board.
(6) "Company" means Anthracite Capital, Inc., a
corporation organized under the laws of the State of Maryland (or any
corporation into which it is merged or with which it is consolidated).
(7) "Disability" means permanent and total disability as
determined under the Employer's disability program or policy.
(8) "Effective Date" shall mean the date upon which the
Plan has been approved by the stockholders of the Company.
(9) "Eligible Recipient" means (i) any employee
(including any officer) of an Employer, (ii) any director of an Employer,
(iii) the Manager, or (iv) any other individual or entity performing
services for the Company or a subsidiary.
(10) "Employer" means the Company, any Subsidiary or the
Manager.
(11) "Exercise Price" means the price per share at which
the Stock subject to a Stock Option may be purchased.
(12) "Fair Market Value" means with respect to any
Awards hereunder, as of any given date (other than on the IPO Pricing
Date), (A) the closing sale price of the Stock on such date as reported in
the Wall Street Journal Composite Tape (or, if no sale of the Stock was
reported for such date, on the next preceding date on which a sale of the
Stock was reported) or (B) if on such date the Stock is not listed on any
securities exchange or quoted on the National Association of Securities
Dealers, Inc.'s NASDAQ National Market System, the highest price per share
which the Company then could obtain from a willing buyer of authorized but
unissued shares of Stock if the Company were selling such shares of Stock,
as determined in good faith by the Board. Solely on the IPO Pricing Date,
Fair Market Value of the Stock means the price per share at which the Stock
first is offered for sale to the public pursuant to the prospectus used in
connection with the IPO, as that price is indicated in such prospectus.
(13) "First Exercise Date" means the first date on which
a Stock Option is exercisable.
(14) "Immediate Family" means, with respect to a
Participant who is an individual, such Participant's spouse, siblings,
parents, children or grandchildren or a trust established for the benefit
of such Participant's spouse, siblings, parents, children or grandchildren.
(15) "Incentive Stock Option" means any Stock Option
designated and qualifying as an "incentive stock option" within the meaning
of Section 422 of the Code.
(16) "IPO" means the initial public offering of the
Stock of the Company.
(17) "IPO Pricing Date" means the date on which Stock
first is priced for sale to the public pursuant to the prospectus used in
connection with the IPO, as that date is indicated in such prospectus.
(18) "IPO Stock Option" means any Stock Option that is
granted as of the IPO Pricing Date.
(19) "Last Exercise Date" means the last date on which a
Stock Option is exercisable.
(20) "Manager" means BlackRock Financial Management,
Inc., a Delaware corporation, or any successor thereto or assignee of its
Investment Advisory Agreement with the Company.
(21) "Non-Qualified Stock Option" means any Stock Option
that is not an Incentive Stock Option, including any Stock Option that
provides (as of the time of its Award) that it will not be treated as an
Incentive Stock Option.
(22) "Option Term" means the period of time beginning on
the date of Award of a Stock Option and ending on the Last Exercise Date.
(23) "Parent Corporation" means any corporation (other
than the Company) in an unbroken chain of corporations ending with the
Company, if each of the corporations in the unbroken chain (other than the
Company) owns stock possessing 50% or more of the combined voting power of
all classes of stock in one of the other corporations in the chain.
(24) "Participant" means any Eligible Recipient selected
to receive an Award of a Stock Option pursuant to the authority granted to
the Committee in Section 2.
(25) "Permitted Transferee" means, with respect to a
Participant who is an individual, a member of such Participant's Immediate
Family to whom a Stock Option has been transferred with the approval of the
Committee pursuant to Section 5(h).
(26) "Stock" means the Common Stock, par value $.001 per
share, of the ----- Company.
(27) "Stock Option" means any option to purchase shares
of Stock granted pursuant to this Plan.
(28) "Stock Option Agreement" means the written
agreement by which a Stock Option and the Award thereof shall be evidenced.
(29) "Subsidiary" means any corporation (other than the
Company) in an unbroken chain of corporations beginning with the Company if
each of the corporations in the unbroken chain (other than the last
corporation in the chain) owns stock possessing 50% or more of the total
combined voting power of all classes of stock in one of the other
corporations in the chain.
(30) "Termination of Affiliation" means the first day on
which an individual or entity for any reason no longer is performing
services for the Company or any Subsidiary.
(31) "Unexercised Stock Option" means any Stock Option
which has not been exercised.
(32) "Voluntary Termination of Affiliation" means a
Termination of Affiliation resulting from the resignation, retirement,
quitting or other voluntary cessation of all affiliations with an Employer.
SECTION 2. ADMINISTRATION; DELEGATION OF AUTHORITY.
(a) This Plan shall be administered by the Committee.
(b) The Committee shall have the power and authority to make
Awards of Stock Options to Eligible Recipients pursuant to the terms of
this Plan.
In particular, subject to Section 4, the Committee shall
have the authority:
(1) to select those Eligible Recipients who will become
Participants;
(2) to determine whether, when and to what extent
Awards of Stock Options are to be made to Participants hereunder;
(3) to determine the number of shares of Stock to be
the subject of each Award;
(4) to determine the terms and conditions of any
Award consistent with this Plan including, but not limited to, the First
Exercise Date and Last Exercise Date when all or a portion of the shares of
Stock that are subject to a Stock Option may be purchased; and
(5) to determine the terms and conditions, consistent
with this Plan, that shall be set forth in the Stock Option Agreement
evidencing the Award of a Stock Option made pursuant to this Plan.
(c) The Committee shall have the power and authority to
adopt, alter and repeal such administrative rules, guidelines and practices
governing this Plan as the Committee from time to time shall deem
advisable; to interpret the terms and provisions of this Plan and any Award
made under this Plan; and to supervise the administration of this Plan.
(d) All decisions made by the Committee pursuant to the
provisions of this Plan shall be final and binding on all persons,
including the Company, its Subsidiaries and the Participants.
(e) Notwithstanding anything to the contrary contained
herein, any grant of a Non Qualified Stock Option to a director of the
Company who is not also an employee of the Company must be approved by the
entire Board.
SECTION 3. STOCK SUBJECT TO PLAN.
(a) The total number of shares of Stock reserved and
available for issuance under Awards of Stock Options pursuant to this Plan
shall be in the aggregate up to 2,470,453 shares of the Company's Common
Stock outstanding on the IPO Pricing Date. Such shares shall consist of
treasury or authorized but unissued shares of Stock.
(b) If a Stock Option expires or otherwise is terminated
without being exercised, the shares of Stock that were subject to such
expired or terminated Stock Option again shall be available for issuance in
connection with future Awards made under this Plan. If any shares of Stock
have been pledged as collateral for indebtedness incurred by a Participant
in connection with the exercise of a Stock Option and certificates
representing such shares of Stock are surrendered to the Company in
satisfaction of such indebtedness, such shares of Stock again shall be
available for issuance in connection with future Awards made under this
Plan.
(c) If any merger, reorganization, consolidation,
recapitalization, stock dividend, or other change in the Company's
corporate structure occurs that affects or could affect the Stock, a
substitution or adjustment may be made in (i) the aggregate number of
shares of Stock reserved for issuance under this Plan, and (ii) the kind,
number and option price of shares of Stock subject to outstanding Awards of
Stock Options made under this Plan, in each case as determined by the
Committee in its reasonable discretion to be appropriate under the
circumstances, provided that the number of shares of Stock subject to any
Award always shall be a whole number.
SECTION 4. ELIGIBILITY; AWARD DETERMINATION.
Eligible Recipients who are responsible for or contribute to
the management, growth and/or profitability of the business of the Company
or a Subsidiary shall be eligible for Awards of Non-Qualified Stock Options
hereunder. Eligible Recipients who are employees of the Company or a
Subsidiary also shall be eligible for Awards of Incentive Stock Options
hereunder. ISOs may be granted to the officers and key employees of the
Company, if any. Non-qualified Stock Options may be granted to the Manager,
directors, officers and any key employees of the Company and to directors,
officers and key employees of the Manager. No ISOs may be granted to any
director who is not also a full-time employee or to directors, officers and
other employees of entities unrelated to the Company. The Committee shall
determine the total number of shares of Stock subject to Awards of Stock
Options to be made as of any date.
SECTION 5. STOCK OPTIONS FOR ELIGIBLE RECIPIENTS.
(a) General. Any Award of Stock Options under this Plan
shall be in such form as the Committee may from time to time approve, and
the terms and conditions of each Stock Option need not be the same with
respect to each Participant. A Participant shall enter into a Stock Option
Agreement with the Company, in such form as the Committee shall determine,
which agreement shall set forth, among other things, the Exercise Price,
the First Exercise Date and the Last Exercise Date, the Option Term and
other provisions regarding exercisability of the Stock Options granted
thereunder.
(b) Types of Stock Options. An award of Stock Options made
under this Plan may consist of either or both of two types of Stock
Options: (i) Incentive Stock Options (provided the Participant receiving
such Incentive Stock Options is an employee of the Company or a
Subsidiary), and (ii) Non-Qualified Stock Options. To the extent any Stock
Option does not qualify as an Incentive Stock Option, it shall be deemed to
be a Non-Qualified Stock Option.
(c) Certain Terms and Conditions. An Award of Stock Options
shall be subject to the following terms and conditions and shall contain
such additional terms and conditions, consistent with this Plan, as the
Committee shall deem desirable:
(1) Exercise Price. The Exercise Price shall be
determined by the Committee at the time of Award, but shall be not less
than 100% of the Fair Market Value of the Stock on the date of such Award;
provided, however, that prior to the first anniversary of the IPO Pricing
Date the Committee may make Awards of Stock Options pursuant to Section 4
at an Exercise Price equal to the Fair Market Value of the Stock on the IPO
Pricing Date. If an employee of the Company or a Subsidiary owns or is
deemed to own (by reason of the attribution rules applicable under Section
424(d) of the Code) more than 9.8% of the combined voting power of all
classes of stock of the Company or any Parent Corporation or Subsidiary and
an Award of an Incentive Stock Option is made to such employee, the
Exercise Price of such Incentive Stock Option (to the extent required by
the Code at the time of Award) shall be not less than 110% of the Fair
Market Value of the Stock on the date of the Award of such Incentive Stock
Option.
(2) Option Term. The Option Term of each Stock
Option shall be fixed by the Committee, but no Stock Option shall be
exercisable more than ten (10) years after the date of the Award of such
Stock Option; provided, however, that if an employee of the Company or a
Subsidiary owns or is deemed to own (by reason of the attribution rules of
Section 424(d) of the Code) more than 9.8% of the combined voting power of
all classes of stock of the Company or any Parent Corporation or Subsidiary
and an Award of an Incentive Stock Option is made to such employee, the
Option Term of such Incentive Stock Option (to the extent required by the
Code at the time of grant) shall be no more than five (5) years.
(d) Exercisability. A Stock Option shall be exercisable at
such time or times and subject to such terms and conditions as shall be
determined by the Committee at the time of Award; provided that, except as
otherwise provided in this Plan, or unless otherwise determined by the
Committee, a Stock Option shall be exercisable not earlier than one (1)
year following the date of its Award. If a Stock Option Agreement provides
that a Stock Option is exercisable only in installments, the Committee may
waive such installment exercise provisions at any time in whole or in part
based on such factors as the Committee may determine in its reasonable
discretion to be appropriate under the circumstances.
(e) Method of Exercise. Subject to Section 5(d) above and
the terms and conditions of the relevant Stock Option Agreement, a Stock
Option may be exercised, subject to and in accordance with the vesting
schedule as set forth in the Stock Option Agreement between the First
Exercise Date and Last Exercise Date by giving written notice of exercise
to the Company specifying the number of shares of Stock to be purchased,
accompanied by payment in full of the purchase price in cash or its
equivalent, as determined by the Committee. Payment in whole or in part
also may be made (i) in cash or cash equivalents, (ii) in the form of Stock
already owned by the Participant (based on the Fair Market Value of the
Stock on the date the Stock Option is exercised), (iii) by cancellation of
any indebtedness owed by the Company to the Participant, (iv) if approved
by the Committee, by a full recourse promissory note executed by the
Participant, (v) pursuant to procedures approved by the Company, through
the sale of shares of Stock acquired on exercise of the Stock Option
through a broker-dealer to whom the Participant has submitted an
irrevocable notice of exercise and irrevocable instructions to deliver to
the Company the amount of sale or loan proceeds sufficient to pay for the
shares of Stock, together with, if requested by the Company, the amount of
federal, state or local taxes payable by the Participant by reason of such
exercise, (vi) pursuant to procedures approved by the Company, and with the
prior approval of the Committee, by pyramiding (i.e., making payment to the
Company with shares of Stock simultaneously acquired on exercise of the
Stock Option (based on the Fair Market Value of the Stock on the date the
Stock Option is exercised)) or (vii) by any combination of the foregoing. A
Participant shall have the right to dividends and other rights of a
stockholder with respect to shares of Stock subject to a Stock Option only
after the Participant has given written notice of exercise, has paid in
full for such shares of Stock and, if requested to do so by the Committee,
has given the representation described in Section 8(a), below.
(f) Elective Shares Tax Withholding. Subject to the
conditions specified in the following sentence, and with the Committee's
prior approval, a Participant may, upon the exercise of a Stock Option,
elect that the Company withhold a portion of the shares of Stock otherwise
deliverable to such Participant having a Fair Market Value equal to either
(i) the minimum amount necessary to satisfy all federal, state and local
tax withholding requirements related to such exercise, or (ii) a greater
amount, not to exceed the estimated total amount of such Participant's tax
liability with respect to such exercise. Each such share withholding
election shall be subject to the following conditions: (i) the
Participant's election shall be subject to the Committee's reasonable
discretion to revoke the Participant's right to elect share withholding at
any time before exercise of the Stock Option; (ii) the Participant's
election must be made before the date on which the amount of tax to be
withheld is determined; and (iii) the Participant's election shall be
irrevocable.
(g) Requirement of Surrender in Certain Cases. The Committee
may require that a Participant surrender all or a portion of any Stock
Option as a condition precedent to a grant of a new Stock Option. Subject
to the provisions of this Plan, such new Stock Option shall be exercisable
at the price, during such period and on such other terms and conditions as
are specified in the Stock Option Agreement presented to the Participant at
the time the new Stock Option is granted; provided, however, should the
Committee so require, the number of shares of Stock subject to such new
Stock Option shall not be greater than the number of shares of Stock
subject to the surrendered Stock Option. The Stock Options so surrendered
shall be canceled and the shares of Stock previously subject to such
canceled Stock Options again shall be available for Awards of Stock Options
hereunder.
(h) Limited Transferability of Stock Options. No Stock
Option shall be transferable by a Participant other than by will or by the
laws of descent and distribution, and all Stock Options shall be
exercisable during a Participant's lifetime only by the Participant, except
that (i) a Participant may, in a manner permitted by the Committee and by
law, transfer a Non-Qualified Stock Option to a member of his or her
Immediate Family, and (ii) the Manager may, in a manner and to the extent
permitted by the Committee and by law, transfer a Non-Qualified Stock
Option previously granted to it to any other Eligible Recipient. The
Committee's approval of a proposed transfer may be subject to the
satisfaction of such conditions as the Committee deems appropriate,
including (A) that the Stock Options that are the subject of
such proposed transfer and the Stock subject thereto be registered or
exempt from registration under the Securities Act of 1933, and (B) in the
case of a proposed transfer by the Manager pursuant to clause (ii) of the
preceding sentence, that the Eligible Recipient to whom such proposed
transfer is to be made executes an agreement in form satisfactory to the
Committee to the effect that the Stock Options to be transferred to him
will be subject to the terms and conditions that would be applicable to
those Stock Options pursuant to this Plan (including without limitation the
provisions of this Section 5(h) and Sections 5(i), 5(j) and 5(k), below) if
those Stock Options had been granted directly to such Eligible Recipient,
rather than to the Manager, pursuant to this Plan.
(i) Voluntary Termination. If a Participant has a Voluntary
Termination of Affiliation, all Unexercised Stock Options granted to such
Participant, whether or not such Stock Options have been transferred by
such Participant to a Permitted Transferee or otherwise, shall, unless
otherwise determined by the Committee, terminate immediately upon such
Voluntary Termination of Affiliation.
(j) Termination for Cause. If a Participant has a
Termination of Affiliation for Cause, all Unexercised Stock Options granted
to such Participant, whether or not such Stock Options have been
transferred by such Participant to a Permitted Transferee or otherwise,
shall, unless otherwise determined by the Committee, terminate immediately
upon such Termination of Affiliation.
(k) Other Termination. Except as otherwise determined by the
Committee, if a Participant has a Termination of Affiliation because of
death or disability or for any other reason other than a Voluntary
Termination of Affiliation and other than a Termination of Affiliation for
Cause, any Unexercised Stock Option then held by such Participant or a
Permitted Transferee thereafter may be exercised if and to the extent such
Unexercised Stock Option is or thereafter becomes exercisable in accordance
with the terms of the related Stock Option Agreement (or on such
accelerated basis as the Committee may determine at or after the date of
Award), by the Participant or Permitted Transferee (or, if the Participant
or Permitted Transferee has died or shall thereafter die, by the legal
representative of the estate of that Participant or Permitted Transferee or
by the legatee of that Participant or Permitted Transferee under the will
of that Participant or Permitted Transferee), (i) for a period of twelve
months from the date of the Participant's Termination of Affiliation or
(ii) until the expiration of the Option Term, whichever period is shorter.
In the event of a Termination of Affiliation to which this Section 5(k)
applies, if an Incentive Stock Option is exercised after the expiration of
the exercise periods that apply for purposes of Section 422 of the Code,
such Stock Option thereafter will be treated as a Non-Qualified Stock
Option.
(l) Annual Limit on Incentive Stock Options. To the extent
that the aggregate Fair Market Value (determined as of the date the
Incentive Stock Option is granted) of the shares of Stock with respect to
which Incentive Stock Options granted under this Plan and all other option
plans of the Company or any Parent Corporation or Subsidiary become
exercisable for the first time by a Participant during any calendar year
exceeds $100,000, such options shall be treated as Non-Qualified Stock
Options. The preceding sentence shall be applied by taking options into
account in the order in which they were granted.
(m) Annual Limit on All Stock Options. More than one (1)
Stock Option may be granted to an Eligible Recipient during any fiscal year
of the Company, but the aggregate number of shares of Stock underlying all
Stock Options granted to any Eligible Recipient during any such fiscal year
shall not exceed fifty percent (50%) of the shares of Stock reserved for
issuance under this Plan pursuant to Section 3 of this Plan.
(n) Disqualifying Disposition. If a Participant makes a
disqualifying disposition (within the meaning of Section 421(b) of the
Code) of shares of Stock acquired pursuant to the exercise of an Incentive
Stock Option, such Participant shall provide written notice thereof to the
Company within 10 days after such disqualifying disposition.
(o) Notice of Section 83(b) Election. If a Participant, in
connection with the exercise of a Stock Option, makes the election
permitted under Section 83(b) of the Code to include in such Participant's
gross income in the year of transfer the amounts specified in Section 83(b)
of the Code, then such Participant shall notify the Company of such
election within 10 days after filing the notice of such election with the
Internal Revenue Service.
SECTION 6. AMENDMENT AND TERMINATION.
(a) The Board may amend, alter or discontinue this Plan,
provided that no such action shall be taken by the Board that would impair
the economic or legal rights of a Participant under any Award previously
granted without such Participant's consent, and provided that, without the
approval of the Company's stockholders, no such action shall increase the
total number of shares of Stock reserved and available for issuance under
Awards of Stock Options pursuant to this Plan, except as otherwise provided
in Section 3.
(b) The Committee may amend the terms of any Award
previously granted, prospectively or retroactively, but notwithstanding any
other provision of this Agreement, no such amendment shall impair the
rights of any Participant without his consent.
SECTION 7. UNFUNDED STATUS OF PLAN.
This Plan is intended to constitute an "unfunded" plan for
incentive compensation. With respect to any payments not yet made to a
Participant by the Company, nothing contained herein shall give any such
Participant any rights that are greater than those of a general creditor
of the Company.
SECTION 8. GENERAL PROVISIONS.
(a) The Committee may require each person purchasing shares
of Stock pursuant to a Stock Option to represent to the Company in writing
that such person is acquiring those shares of Stock without a view towards
distribution thereof. All certificates for shares of Stock delivered under
this Plan shall be subject to such stock transfer orders and other
restrictions as the Committee may deem advisable under the rules,
regulations, and other requirements of the Securities and Exchange
Commission, any stock exchange upon which the Stock then is listed, and any
applicable federal or state securities law, and the Committee may cause a
legend or legends to be placed on any such certificates to make appropriate
reference to such restrictions.
(b) Nothing contained in this Plan shall prevent the Board
from adopting other or additional compensation arrangements, subject to
stockholder approval if such approval is required; and such arrangements
may be either generally applicable or applicable only in specific cases.
The adoption of this Plan shall not confer upon any employee of the Company
or any Subsidiary any right to continued employment with the Company or a
Subsidiary, as the case may be, nor shall it interfere in any way with the
right of the Company or a Subsidiary to terminate the employment of any of
its employees at any time.
(c) Each Participant shall, no later than the date as of
which the value of an Award first becomes includable in the gross income of
the Participant for federal income tax purposes, pay to the Company, or
make arrangements satisfactory to the Committee regarding payment of, any
federal, state, or local taxes of any kind required by law to be withheld
with respect to such Award. The obligations of the Company under this Plan
shall be conditional on such payment or arrangements, and the Company (and,
where applicable, its Subsidiaries) shall, to the extent permitted by law,
have the right to deduct any such taxes from any payment of any kind
otherwise due to the Participant.
(d) No member of the Board or the Committee, nor any officer
or employee of the Company acting on behalf of the Board or the Committee,
shall be liable personally for any action, determination, or interpretation
taken or made in good faith with respect to this Plan, and all members of
the Board and the Committee and each and every officer or employee of the
Company acting on their behalf shall, to the extent permitted by law, be
exculpated, indemnified and protected fully by the Company in respect of
any such action, determination or
interpretation.
SECTION 9. SPECIFIC PERFORMANCE.
The Stock Options granted under this Plan and the shares of
Stock issued pursuant to the exercise of such Stock Options may not be
readily purchased or sold in the open market and, for that reason among
others, the Company and its stockholders will be damaged irreparably if
this Plan is not specifically enforced. If any controversy arises
concerning the right to purchase or obligation to sell any shares of Stock
subject to a Stock Option, such right or obligation shall be enforceable in
a court of equity by a decree of a specific performance. Such remedy shall,
however, be cumulative and not exclusive, and shall be in addition to any
other remedy that the parties may have.
SECTION 10. INVALID PROVISIONS; CONSTRUCTION OF PLAN.
If any provision of this Plan is found to be invalid or
otherwise unenforceable under any applicable law, such invalidity or
unenforceability shall not be construed as rendering any other provisions
contained herein invalid or unenforceable, and all such other provisions
shall be given full force and effect to the same extent as though the
invalid or unenforceable provision was not contained herein. Headings at
the beginning of each Section of this Plan are solely for convenience and
are not a part of this Plan. Whenever required by the context of this Plan,
the singular shall include the plural and the masculine shall include the
feminine and neuter, and vice versa.
SECTION 11. APPLICABLE LAW.
This Plan shall be governed by and construed in accordance
with the laws of the State of New York.
SECTION 12. SUCCESSORS AND ASSIGNS.
This Plan shall be binding on and inure to the benefit of
the Company and the Participants to whom a Stock Option is granted
hereunder, and such Participants' heirs, executors, administrators,
successors, legatees, personal representatives, assignees and transferees.
SECTION 13. EFFECTIVE DATE OF PLAN.
This Plan shall be effective as of the Effective Date.
SECTION 14. TERM OF PLAN.
No Award of a Stock Option shall be granted pursuant to this
Plan on or after the tenth anniversary of the earlier of the date this Plan
is adopted by the Board or approved by the Company's stockholders, but
Awards previously made may extend beyond that date.
IN WITNESS WHEREOF, and pursuant to a resolution of the
Board adopting this Plan and authorizing its execution, the Company has
caused this Plan to be duly executed by its duly authorized signatory on
the day and year first above written.
ANTHRACITE CAPITAL, INC.
By: _________________________________
Name:
Title:
EXHIBIT 5.1
OPINION OF MILES & STOCKBRIDGE, P.C.
[LETTERHEAD OF MILES & STOCKBRIDGE P.C.]
March 31, 1999
Anthracite Capital, Inc.
345 Park Avenue
New York, New York 10154
Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933
of 2,470,453 shares of Common Stock, par value $.001 per share, of
Anthracite Capital, Inc., a Maryland corporation (the "Corporation"), to be
issued in connection with the Anthracite Capital, Inc. 1998 Stock Option
Plan, as amended (the "Plan"), we have examined such corporate records,
certificates and documents as we deemed necessary for the purpose of this
opinion.
Based on the foregoing, we are of the opinion that the Plan has been
duly and validly authorized and adopted by the Board of Directors of the
Corporation, and, assuming that sufficient authorized shares are available
at the time they are issued, that the Common Stock being registered under
the Securities Act of 1933, when issued in accordance with the terms and
conditions of the Plan, will be legally issued, fully paid and
nonassessable.
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 Securities Act of 1933 or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
Miles & Stockbridge P.C.
By: /s/ John B. Frisch
-----------------------
Principal
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Anthracite Capital, Inc. on Form S-8 of our report dated March 17, 1999,
appearing in the Annual Report on Form 10-K of Anthracite Capital, Inc. for
the period from March 24, 1998 (commencement of operations) to December 31,
1998.
DELOITTE & TOUCHE LLP
New York, NY
March 31, 1999
