As filed with the Securities and Exchange Commission on March 14, 1997
Registration No. 333 -
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
THORNBURG MORTGAGE ASSET CORPORATION
(Exact name of registrant as specified in its charter)
Maryland 119 East Marcy Street
85-0404134
(State or other jurisdiction of Santa Fe, New Mexico
87501 (Employer I.D. Number)
incorporation or organization) (505)
989-1900
(Address, including zip code, and telephone number, including area
code, of Registrant's Principal Executive Offices)
--------------------------
H. Garrett Thornburg, Jr. Chairman
Thornburg Mortgage Asset Corporation
119 East Marcy Street
Santa Fe, New Mexico 87501
(505) 989-1900
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
--------------------------
Copies to:
Michael B. Jeffers, Esq.
Jeffers, Wilson & Shaff, LLP
18881 Von Karman Avenue, Suite 1400
Irvine, California 92612
(714) 660-7700
----------------------------
Approximate date of commencement of proposed sale to the public:
From time to time following the effective date of this Registration Statement
as determined by market conditions.
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 FEE
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Proposed
Proposed Maximum
Amount Maximum Aggregate Amount of
Title of Shares to be Aggregate Price Offering Registration
to be Registered Registered Per Share (1) Price (1)(2) Fee
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Common Stock, $.01 par 1,000,000 $ 22.75 $ 22,750,000 $ 7,110.00
value per share
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(1) Calculated pursuant of Rule 457(c) of the rules and regulations
under the Securities Act of 1933, as amended.
(2) Pursuant to Rule 429 under the Securities Act of 1933, the
Prospectus included herein also relates to shares of Common Stock previously
registered for sale under Registration Statement No. 333-668, which was
declared effective on January 29, 1996 and for which a filing fee of $ 2,759
was previously paid. In the event any securities previously registered for
sale are offered and sold prior to the effective date of this Registration
Statement, they will not be included in any Prospectus hereunder. The amount
of securities being registered for sale, together with the remaining
securities registered under Registration Statement 333-668 represents the
maximum number of securities which are expected to be offered and sold.
<PAGE>
Prospectus
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THORNBURG MORTGAGE ASSET CORPORATION
DIVIDEND REINVESTMENT AND
STOCK PURCHASE PLAN
The Dividend Reinvestment and Stock Purchase Plan (the "Plan") of
Thornburg Mortgage Asset Corporation (the "Company") provides eligible holders
of outstanding shares of the Company's common stock ("Common Stock") and
preferred stock ("Preferred Stock") (the "Shareholders") with a convenient and
cost effective method of increasing their investment in the Company. A
participant in the Plan may purchase additional shares of Common Stock by
reinvesting some or all cash dividends paid on the Common Stock or Preferred
Stock and by making Optional Cash Purchases which are subject to a minimum
purchase limit of $50 and a maximum purchase limit of $15,000 for each dividend
payment date. 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 3% discount. 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 Participant's in the Plan
without any discount. The same purchase price will apply to the reinvestment of
cash dividends and to any Optional Cash Purchases.
The Prospectus relates to the offer and sale of 1,106,148 authorized but
unissued shares of Common Stock under the Plan (the "Shares"). Participant's
should retain this prospectus for future references. The Company's Common Stock
and Preferred Stock are listed on the New York Stock Exchange under the symbols
"TMA" and TMAPrA," respectively.
Plan Highlights:
- Any Common Stock or Preferred Stock Shareholder may elect to
participate in the Plan.
- 3% discount on shares of Common Stock purchased directly from the
Company.
- No brokerage fees on purchases made in the open market unless in
excess of 5%.
- Certificate safekeeping at State Street Bank & Trust Company -
Partial dividend reinvestment option.
- Optional 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 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 March 14, 1997.
<PAGE>
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.
This prospectus constitutes a part of a Registration Statement on Form S-3
together with all exhibits referred to as (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 Company's Annual Report on Form 10-K for the year ended
December 31, 1995;
2. The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1996, June 30, 1996 and September 30, 1996;
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.
4. The Company's current report on Form 8-K dated January 22,1997.
5. The Company definitive Prospectus for Series A Preferred Stock
dated January 20, 1997.
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 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 Thornburg
Mortgage Asset Corporation, 119 E. Marcy Street, Santa Fe, New Mexico 87501, or
call (505) 989-1900.
<PAGE>
THE COMPANY
Thornburg Mortgage Asset Corporation (the "Company") is a special purpose
financial institution that primarily invests in adjustable-rate mortgage ("ARM")
securities, thereby indirectly providing capital to the single-family
residential housing market. ARM securities represent interests in pools of
adjustable-rate mortgage loans, which often include guarantees or other credit
enhancements against losses from loan defaults. While the Company is not a bank
or savings and loan, its business purpose, strategy, method of operation and
risk profile are best understood in comparison to such institutions. The Company
leverages its equity capital using borrowed funds, invests in ARM securities and
seeks to generate income based on the difference between the yield on its ARM
securities portfolio and the cost of its borrowings. The corporate structure of
the Company differs from most lending institutions in that the Company is
organized for tax purposes as a real estate investment trust ("REIT") and,
therefore, generally passes through substantially all of its earnings to
shareholders without paying federal income tax at the corporate level..
Dividend and Distribution Policy
The Company intends to pay dividends and to make such distributions to its
Shareholders 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
for the tax benefits accorded to a REIT under the Code. 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.
THE PLAN
The Thornburg Mortgage Asset Corporation Dividend Reinvestment and Stock
Purchase Plan (the "Plan") provides Shareholders of the Company with a
convenient and economical method to buy shares of Common Stock of the Company by
automatic investment of cash dividends paid on outstanding shares of Common
Stock and Preferred Stock and by purchase of shares of Common Stock with
voluntary cash contributions ("Optional Cash Purchases").
The Plan is administered by State Street Bank & Trust Company (the
"Agent"), the Transfer Agent and Registrar for the Company. As the Agent for
participating Shareholders ("Participants"), the Agent will administer the Plan
in accordance with the terms and conditions of the Plan as set forth herein.
Eligibility and Enrollment
Any Shareholder of the Company may elect to participate in the Plan by
completing and returning to the Agent an authorization form ("Authorization
Form"). Shareholders whose shares of Common Stock or Preferred Stock are
registered in their own names ("Registered Owners") may participate directly in
the Plan. Shareholders who beneficially own shares of Common Stock or Preferred
Stock that are registered in a name other than their own (i.e., in the name of a
broker, bank or other nominee) ("Beneficial Owners") must either become
Registered Owners by having such shares of Common Stock or Preferred Stock
transferred into their names or make arrangements with their broker, bank or
other nominee to participate in the Plan on their behalf. If a Participant's
shares of Common Stock or Preferred Stock are registered in more than one name
(e.g., joint tenants or trustee), all Registered Owners of such shares of Common
Stock or Preferred Stock must sign the Authorization Form.
The Authorization Form provides for the purchase of shares of Common Stock
through the following participating options:
Full Dividend Reinvestment. If the full dividend reinvestment option is
elected, the Agent will apply all cash dividends on all shares of Common Stock
and Preferred Stock then or subsequently registered in the Participant's name,
including all whole and fractional shares of Common Stock and Preferred Stock,
together with any voluntary cash contributions for Optional Cash Purchases
towards the purchase of additional shares of Common Stock;
Partial Dividend Reinvestment. If the partial dividend reinvestment option
is elected the Agent will apply all cash dividends on the number of shares of
Common Stock and Preferred Stock then registered in the Participant's name and
designated in the appropriate space on the Authorization Form and all cash
dividends on shares of Common Stock purchased for the Participant's Account
pursuant to the Plan, together with any voluntary cash contributions for
Optional Cash Purchases towards the purchase of additional shares of Common
Stock; and
Optional Cash Purchases. If "Optional Cash Purchases Only" is elected, the
Agent will only apply the voluntary cash contributions received from the
Participant towards the purchase of shares of Common Stock.
Under each of the options, any future cash dividends on shares of Common
Stock and Preferred Stock credited to the Participant's Account will be
reinvested, including dividends on shares of Common Stock purchased with any
voluntary cash contributions for Optional Cash Purchases, until the Participant
specifies otherwise or the Participant's Account is terminated. Participants may
change their participation options at any time by requesting a new Authorization
Form and returning it to the Agent at the address set forth below.
The Authorization Form must be received by the Agent at least seven (7)
calendar days prior to the Dividend Record Date for the Common Stock and the
Preferred Stock in order for any Shareholder to be eligible for reinvestment of
such dividends and any Optional Cash Purchases; otherwise, such authorization
shall not be effective until the next Dividend Record Date. Shareholders
currently enrolled in the Plan may continue to participate in the Plan without
any further action required on their part unless the Participant wishes to
change his (or her) participation option.
Accounts and Statements
The Agent will establish an account under the Plan for each Participant
("Participant's Account"), and will credit, to the Participant's Account, cash
received by the Agent for the Participant from cash dividends paid on the shares
of Common Stock and Preferred Stock , including those full and fractional shares
of Common Stock (computed to four decimal places) acquired under the Plan, and
all voluntary cash contributions for Optional Cash Purchases received by the
Agent from the Participant.
As soon as practicable after the purchases of shares of Common Stock have
been completed, the Agent 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.
Account Statements should be retained by the Participant for his or her own
records.
Purchase of Shares
The Agent will apply cash credited to the Participant's Account to the
purchase of full and/or fractional interests in the Company's shares of Common
Stock and will credit the number of shares of Common Stock so purchased to the
Participant's Account. The Agent, as directed by the Company, will apply such
funds toward the purchase of shares of Common Stock directly from the Company or
in the open market for the Participant's Account. The Agent will reinvest all
dividends received from the Company and all voluntary cash contributions for any
Optional Cash Purchases on or within fifteen (15) days after the dividend
payment date as declared by the Company from time to time (the "Dividend Payment
Date"), except where completion at a later date is necessary or advisable under
applicable securities laws. No interest will be paid on funds held by the Agent.
In making purchases for the Participant's Account, the Agent may commingle
the Participant's funds with those of other Participants in the Plan. The price
of the shares of Common Stock purchased by the Agent directly from the Company
will be discounted by three percent (3%) from the then current market price.
"Market Price" shall mean the average of the daily high and low sales prices,
computed to three decimal places, of the shares of Common Stock as reported on
the New York Stock Exchange (the "NYSE") for the ten (10) days on which the NYSE
is open for trading ("Trading Days") prior to the Dividend Payment Date. No
commission shall be paid with respect to purchases of authorized but unissued
shares of Common Stock directly from the Company. The price at which the Agent
shall be deemed to have acquired the shares of Common Stock for the
Participant's Account in the open market shall be the average price of all
shares of Common Stock purchased by it as the Agent for all Participants without
any discount. The Agent 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 out of the dividends to be reinvested. Such
open market purchases may be made, at the Agent'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 Agent may determine.
Reinvestment of Dividends. A participant may elect to reinvest dividends
on all shares of Common Stock and Preferred Stock then or subsequently
registered in the Participant's name, including all whole and fractional shares
and or may elect the partial dividend reinvestment option by designating in the
appropriate space on the Authorization Form the specific number of shares of
Common Stock and Preferred Stock on which the Participant wishes dividends be
reinvested.
Optional Cash Purchases. A Participant may also make Optional Cash
Purchases of shares of Common Stock, subject to a minimum of $50 and a maximum
of $15,000 for each Dividend Payment Date. Funds for Optional Cash Purchases
received within thirty (30) calendar days prior but no later than seven (7)
calendar days prior to each Dividend Payment Date will be aggregated and the
Agent will apply such funds to the purchase of shares of Common Stock
concurrently with the investment of dividends. Funds for Optional Cash Purchases
received more than thirty (30) calendar days or less than (7) calendar days
prior to each Dividend Payment Date will be returned to the Participant.
Optional Cash Purchases may be made with a check or money order made
payable to State Street Bank & Trust Company. Wire transfers may be made and
wiring instructions can be obtained from the Agent. NO INTEREST WILL BE PAID ON
FUNDS HELD BY THE AGENT. FUNDS FOR OPTIONAL OPTIONAL CASH PURCHASES DO NOT
CONSTITUTE DEPOSITS OR SAVINGS ACCOUNTS AND ARE NOT INSURED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
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 various rulings of the Internal Revenue Service regarding
several types of dividend reinvestment plans. No ruling, however, has been
issued or requested regarding the Plan. THE FOLLOWING DISCUSSION IS GENERAL
INFORMATION ONLY, AND PARTICIPANTS MUST CONSULT THEIR OWN 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 will 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 (plus a pro rata portion of any
brokerage cost incurred on open market purchases of the shares of Common Stock).
When shares of Common Stock are purchased directly from the Company, the amount
of the dividend will be the fair market value of the shares of Common Stock,
although the Participant will have acquired such shares of Common Stock at a 3%
discount.
Shares of Common Stock acquired for Participants in the Plan will have an
initial tax basis to the Participant equal to the amount the Participant is
treated as having received a dividend. The holding period for a share of Common
Stock (including a fractional share) generally will begin on the day after the
Dividend Payment Date that the share of Common Stock was acquired. The holding
period of a whole share of Common Stock resulting from the acquisition of two or
more fractional shares of Common Stock on different Dividend Payment Dates
normally will be split between holding periods of the fractional components
comprising the whole share of Common Stock.
The reinvestment of dividends does not relieve the Participant of any
income tax and will constitute a dividend to the same extent that a cash
distribution would be so treated. Participants who are Qualified Plans or IRAs
should be able to continue to exclude the reinvested dividends from unrelated
business taxable income unless such Participants have borrowed to acquire their
shares of Common Stock or Preferred Stock . The Agent 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, Agent will be required to report to the IRS and the Participant any sale
of Common Stock by it on behalf of a Participant.
Optional Cash Purchases. Participants will be treated as having received a
distribution upon the purchase of Optional 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 (plus a pro rata portion of the brokerage
cost incurred in open market purchases) over the amount of the Optional Cash
Purchases. Such shares of Common Stock will have an initial tax basis equal to
the fair market value of the shares of the Optional Cash Purchases. The fair
market value on an acquisition date is likely to differ from the Market Price
for the pricing period immediately preceding the related Dividend Payment Date
(which determines the number of shares of Common Stock acquired). 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 Dividend Payment Date that the share of
Common Stock was acquired.
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 Agent
will not vote shares of Common Stock that it holds for a Participant's account
except as directed by the Participant.
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 or completing and signing the withdrawal section on the reverse
side of the Account Statement. 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. 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.
Participants who wish to do so may deposit currently held certificates
registered in their names with the Agent 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 or Preferred 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 or
Preferred Stock credited to the Participant's Account must first withdraw such
shares of from the account.
Termination of Participation.
A Participant's Account may be terminated at any time by notifying the
Agent in writing. Unless the termination notice is received by the Agent at
least two (2) business days prior to any Dividend Record Date, it cannot be
processed until after purchases made from the dividends paid have been completed
and credited to the Participant Accounts. All dividends with a record date after
timely receipt of notice for termination will be sent directly to the
Participant. The Agent may terminate the account by notice in writing mailed to
the Participant. Once termination has been effected, the Agent will issue to the
Participant, without charge, certificates for the full shares of Common Stock
and Preferred Stock held in his account or, if he so requests, sell the full
shares held under the Plan, deduct brokerage commissions, transfer taxes and a
service charge (if any) and deliver the proceeds to the Participant. The
Participant's interest in any fractional share of Common Stock held in his
account at termination will be paid in cash at the then current Market Price. 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 Agent becomes obligated to pay for purchased shares of
Common Stock.
If a Participant disposes of all shares of Common Stock and Preferred
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 Agent may
continue to reinvest the dividends on the shares of Common Stock and Preferred
Stock under the Plan until otherwise directed. A Participant who terminates
participation in the Plan will be subject to a service charge imposed by the
Agent, which may not be paid by the Company.
A Participant who changes his or her address must notify the Agent
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 Shareholder Rights Offerings
It is understood that any stock dividends or stock splits distributed by
the Company on shares of Common Stock or Preferred Stock held by the Agent for
the Participant will be credited to the Participant's Account. In the event the
Company makes available to its Shareholders 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 Agent in order
to permit a Participant to determine what action he or she desires to take.
Agent's Responsibilities
The Agent 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 Agent to a Participant will be mailed to the
Participant's last address of record, which will satisfy the Agent's
responsibility to give notice.
Amendments to the Plan
The Plan may be amended or supplemented by the Agent or the Company at any
time or times, including the period between Dividend Record Date and the related
Dividend Payment Date. Any such amendment may include an appointment by the
Agent in its place and stead a successor Bank or other agent under these terms
and conditions. Notice will be sent to Participants of any amendments as soon as
practicable after such action by the Company.
Interpretation and Regulation of the Plan
The Company reserves the right, without notice to Participant's, 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.
Inquiries About the Plan
All correspondence and questions regarding the Plan and/or a Participant's
Account should be directed to:
Thornburg Mortgage Asset Corporation Thornburg Mortgage Asset Corporation
119 E. Marcy Street, Dividend Reinvestment and Stock
Santa Fe, New Mexico 87501 Purchase Plan
Telephone: (505) 989-1900 or c/o State Street Bank & Trust Company
P.O. Box 8200
Boston, MA 02266-8200
Telephone: (800) 426-5523
PLAN OF DISTRIBUTION
The shares of Common Stock offered and sold hereby are being distributed
by the Company and not through an underwriter. The price of the shares of Common
Stock purchased by the Agent directly from the Company will be discounted by
three percent (3%) from the Market Price. There will be no brokerage commissions
or other fees charged to Participants in connection with purchases of shares of
Common Stock made directly from the Company. Purchases made in the open market
by the Agent may be made on any securities exchange where the Shares 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 Agent may
determine. The price at which the Agent shall be deemed to have acquired the
shares of Common Stock for the Participant's Account in the open market shall be
the average price of all shares of Common Stock purchased by it as the Agent for
all Participants without any discount. The Agent shall pay brokerage commissions
on purchases made in the open market in an amount determined by the prevailing
rates at the time of purchase. Such commissions will be reimbursed by the
Company up to but not in excess of five percent (5%) of the purchase price of
the Shares. Any commissions in excess of five percent (5%) will by paid by the
Participants on a pro rata basis.
The shares of Common Stock offered and sold hereby may not be available
under the Plan in all states. This Prospectus does not constitute an offer to
sell, or a solicitation of an offer to buy, any shares of common Stock in any
state or in any jurisdiction to any person to whom it is unlawful to make such
offer in such jurisdiction.
INDEMNIFICATION
Maryland General Corporation Law provides that a Maryland corporation may
indemnify any person who is or was serving at the request of the corporation as
a director, officer, partner, trustee, employee, or agent of another foreign or
domestic corporation, partnership, joint venture, trust or other enterprise or
employee benefit plan ("director"), that is made a party to any proceeding by
reason of service in that capacity unless it is established that the act or
omission of the director was material to the matter giving rise to the
proceeding and was committed in bad faith or was the result of active and
deliberate dishonesty; or the director actually received an improper personal
benefit in money, property or services; or, in the case of any criminal
proceeding, the director had reasonable cause to believe that the act or
omission was unlawful. Indemnification may be against judgments, penalties,
fines, settlements, and reasonable expenses actually incurred by the director in
connection with the proceeding, but if the proceeding was one by or in the right
of the corporation, indemnification may not be made in respect of any proceeding
in which the director shall be adjudged to be liable to the corporation. Such
indemnification may not be made unless authorized for a specific proceeding
after a determination has been made, in a manner prescribed by law, that
indemnification is permissible in the circumstances because the director has met
the applicable standard of conduct. The director must be indemnified for
expenses, however, if he has been successful in the defense of the proceeding or
as otherwise ordered by a court. The law also prescribes the circumstances under
which a corporation may advance expenses to, or obtain insurance or similar
cover for, directors.
The Company's Articles of Incorporation provides for indemnification of
the officers and directors of the Company and eliminates the liability of a
director or officer to the Company or its Shareholders for money damages to the
fullest extent permitted by Maryland law.
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 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.
<PAGE>
LEGAL OPINION
The validity of the Common Stock offered hereby will be passed upon for
the Company by Jeffers, Wilson & Shaff, LLP, Irvine California. Michael B.
Jeffers, a member of Jeffers, Wilson & Shaff, LLP is the Secretary of the
Company, owns 641 shares of Common Stock, owns 1% of the Thornburg Mortgage
Advisory Corporation, the Manager of the Company, and has been granted options
to purchase 31,697 shares of Common Stock..
EXPERTS
The financial statements of the Company, included as part of the Company's
Annual Report on Form 10-K for the year ended December 31, 1995 have been
audited by McGladrey & Pullen, LLP, independent certified public accountants, as
set forth in their report included therein and incorporated herein by reference.
Such financial statements, and audited financial statements to be included in
subsequently filed documents will be, incorporated herein in reliance upon the
reports of McGladrey & Pullen, LLP and upon their authority as experts in
auditing and accounting.
<PAGE>
PART II
Item 14. Other Expenses of Issuance and Distribution:
Registration fee................................. $ 7,110
Listing fees..................................... 2,500
Legal fees and expenses.......................... 5,000
Accounting fees and expenses..................... 1,200
Printing expenses................................ 3,000
Miscellaneous expenses........................... 1,000
Total expenses................................... $19,810
======
* estimated expenses
Item 15. Indemnification of Directors and Officers
Maryland General Corporation Law provides that a Maryland corporation may
indemnify any person who is or was serving at the request of the corporation as
a director, officer, partner, trustee, employee, or agent of another foreign or
domestic corporation, partnership, joint venture, trust or other enterprise or
employee benefit plan ("director"), that is made a party to any proceeding by
reason of service in that capacity unless it is established that the act or
omission of the director was material to the matter giving rise to the
proceeding and was committed in bad faith or was the result of active and
deliberate dishonesty; or the director actually received an improper personal
benefit in money, property or services; or, in the case of any criminal
proceeding, the director had reasonable cause to believe that the act or
omission was unlawful. Indemnification may be against judgments, penalties,
fines, settlements, and reasonable expenses actually incurred by the director in
connection with the proceeding, but if the proceeding was one by or in the right
of the corporation, indemnification may not be made in respect of any proceeding
in which the director shall be adjudged to be liable to the corporation. Such
indemnification may not be made unless authorized for a specific proceeding
after a determination has been made, in a manner prescribed by law, that
indemnification is permissible in the circumstances because the director has met
the applicable standard of conduct. The director must be indemnified for
expenses, however, if he has been successful in the defense of the proceeding or
as otherwise ordered by a court. The law also prescribes the circumstances under
which a corporation may advance expenses to, or obtain insurance or similar
cover for, directors.
The Company's Articles of Incorporation provide for indemnification of the
officers and directors of the Company and eliminate the liability of a director
or officer to the Company or its Shareholders for money damages to the fullest
extent permitted by Maryland law.
Item 16. Exhibits.
4. Amendment dated January 8, 1997 to the Company's Dividend
Reinvestment and Stock Purchase Plan
5.1 Opinion of Jeffers, Wilson & Shaff, LLP, counsel to the Company
23.1 Consent of Counsel (included in Exhibit (5.1))
23.2 Consent of McGladrey & Pullen, LLP
24. 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)(1) 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.
<PAGE>
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
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Santa Fe, New Mexico, on March 14, 1997.
THORNBURG MORTGAGE ASSET CORPORATION
BY: /s/H. Garrett Thornburg, Jr.
----------------------------
H. Garrett Thornburg, Jr.
Chairman of the Board
POWER OF ATTORNEY
We, the undersigned directors and officers of Thornburg Mortgage Asset
Corporation, Inc., do hereby constitute and appoint H. Garrett Thornburg, Jr.
and Larry A. Goldstone, or either of them, acting individually, 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 any one 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 amendments) hereof; and we do hereby ratify and
confirm all that the said attorneys and agents, or any of them, shall do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Name Title Date
- - ---------------------------- --------------------- ---------------
/s/H. Garrett Thornburg, Jr. Chairman of the Board March 14, 1997
- - ----------------------------
H. Garrett Thornburg, Jr.
/s/Larry A. Goldstone Director and President March 14, 1997
- - ----------------------------
Larry A. Goldstone
/s/Richard P. Story Chief Financial March 14, 1997
- - ---------------------------- Officer and Treasurer
Richard P. Story (Principal Accounting Officer)
/s/David A. Ater Director March 14, 1997
- - ----------------------------
David A. Ater
/s/Joseph H. Badal Director March 14, 1997
- - ----------------------------
Joseph H. Badal
/s/ Owen M. Lopez Director March 14, 1997
- - ----------------------------
Owen M. Lopez
/s/James H. Lorie Director March 14, 1997
- - ----------------------------
James H. Lorie
/s/Stuart C. Sherman Director March 14, 1997
- - ----------------------------
Stuart C. Sherman
<PAGE>
EXHIBIT INDEX
Sequentially
Exhibit Numbered Page
- - ------- -------------
4. Amendment dated January 8, 1997 to the Company's
Dividend Reinvestment and Stock Purchase Plan 16
5.1 Opinion of Jeffers, Wilson & Shaff, LLP,
counsel to the Company 17
23.1 Consent of Counsel (included in Exhibit (5.1)) -
23.2 Consent of McGladrey & Pullen, LLP 19
24. Power of Attorney (included on signature page) -
<PAGE>
Ex 4.
THORNBURG MORTGAGE ASSET CORPORATION
AMENDMENT TO DIVIDEND REINVESTMENT AND STOCK PURCHASE PLAN
January 8, 1997
The Dividend Reinvestment and Stock Purchase Plan (the "Plan") of Thornburg
Mortgage Asset Corporation, a Maryland corporation (the "Company") is amended,
effective January 8, 1997, as follows:
1. The holders of any and all classes and series of preferred stock (the
"Preferred Stock") which may be authorized and issued by the Company shall
be deemed "Participants" under the Plan and shall be eligible to
participate in the Plan on the same terms and with the same options as are
provided under the Plan for holders of Common Stock. All dividend
reinvestment and optional cash purchases under the Plan shall be applied
toward the purchase of additional shares of Common Stock pursuant to the
Plan.
2. This amendment shall be effective as of January 8, 1997.
To record the amendment of the Plan in the form set forth above by the
Board of Directors effective as of January 8, 1997, the Company has caused this
amendment to the Plan to be executed in the name and on behalf of the Company.
THORNBURG MORTGAGE ASSET CORPORATION
By: /s/ Larry A. Goldstone
----------------------------
Larry A. Goldstone, President
<PAGE>
JEFFERS, WILSON & SHAFF, LLP Ex 5.1
ATTORNEYS AT LAW
18881 VON KARMAN AVENUE
SUITE 1400
IRVINE, CALIFORNIA 92612
TELEPHONE: (714) 660-7700
FACSIMILE: (714) 660-7799
March 13, 1997
Thornburg Mortgage Asset Corporation
119 East Marcy Street, Suite 201
Santa Fe, New Mexico 87501
Re: Sale of Shares Pursuant to the Dividend Reinvestment and Stock
Purchase Plan
Gentlemen:
We have examined a copy of the Registration Statement on Form S-3 (the
"Registration Statement") of Thornburg Mortgage Asset Corporation, a Maryland
corporation (the "Company"), for the registration under the Securities Act of
1933 of the sale of up to 1,000,000 shares of the Company's Common Stock, par
value $.01 per share (the "Shares") pursuant to the Company's Dividend
Reinvestment and Stock Purchase Plan (the "Plan"). We have also examined the
Articles of Incorporation, as amended, and such other corporate records,
including the resolutions of the Company's Board of Directors, and such other
documents as we have deemed necessary in order to express the opinion set forth
below. In our examination we have assumed the genuineness of all signatures and
the authenticity of all documents submitted to us as originals and the
conformity of all originals of all documents submitted to us as copies. As to
questions of fact material to such opinion, we have relied upon statements and
representations of the Company.
Our opinion is based on existing law which is subject to change either
prospectively or retroactively. Relevant laws could change in a manner that
could adversely affect the Company or its stockholders. We have no obligation to
inform the Company of any such change in the law. We have not been requested to
opine, and we have not opined, as to any issues other than those expressly set
forth herein. This opinion extends only to questions relating to the validity of
the Shares offered and sold under the Registration Statement. We express no
opinion with respect to any other issue.
We are admitted to practice law in the State of California and our opinion
is limited to federal law and the laws of the State of Maryland that affect such
opinion. We express no opinion with respect to any other law or the laws of any
other jurisdiction.
Assuming the Shares are issued and paid for in accordance with the terms
of the offering described in the Registrations Statement, including documents
incorporated by reference thereto, and when certificates representing such
Shares have been issued to the purchasers, based on the foregoing, we are of the
opinion that the Shares will have been duly authorized, validly issued, and will
be fully paid and nonassessable shares of Common Stock of the Company.
Our Opinion contained herein is solely for the benefit of the Company and
may be relied upon by the Company only in connection with the Registration
Statement. In this regard, we hereby consent to the filing of this opinion,
including this consent, as an exhibit to the Registration Statement.
Very truly yours,
/s/ Jeffers, Wilson & Shaff, LLP
JEFFERS, WILSON & SHAFF
<PAGE>
Ex 23.2
[LETTERHEAD OF MCGLADREY & PULLEN, LLP]
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the use of our Report dated January 12, 1996 on
the financial statements referred to therein which is incorporated by reference
in the Registration Statement, on Form S-3, of Thornburg Mortgage Asset
Corporation, as filed with the Securities and Exchange Commission.
We also consent to the reference to our firm in the Registration Statement
under the caption "Experts."
/S/ McGladrey & Pullen, LLP
McGLADREY & PULLEN, LLP
New York, New York
March 13, 1997
