As filed with the Securities and Exchange Commission on May 23, 2006
Registration Statement No. 333-
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
ANNALY MORTGAGE MANAGEMENT, INC.
(Exact Name of Registrant as Specified in its Charter)
Maryland 22-3479661
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
1211 Avenue of the Americas, Suite 2902
New York, New York 10036
(212) 696-0100
(Address, Including Zip Code, and Telephone Number, including Area Code, of
Registrant's Principal Executive Offices)
--------------
Michael A.J. Farrell
Chairman of the Board, Chief Executive Officer and President
Annaly Mortgage Management, Inc.
1211 Avenue of the Americas, Suite 2902
New York, New York 10036
(212) 696-0100
(Name, Address, Including Zip Code, and Telephone Number,
including Area Code, of Agent for Service)
--------------
Copies to:
R. Nicholas Singh, Esq. Phillip J. Kardis, II, Esq.
Annaly Mortgage Management, Inc. Kirkpatrick & Lockhart Nicholson Graham LLP
1211 Avenue of the Americas, Suite 2902 1601 K Street, N.W.
New York, New York 10036 Washington, DC 20006
(212) 696-0100 202 778 9401
Approximate date of commencement of proposed sale to the public: From
time to time or at one time after the effective date of the Registration
Statement as the Registrant shall determine.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
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. |X|
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 this Form is a registration statement pursuant to General Instruction
I.D. or a post-effective amendment thereto that shall become effective upon
filing with the Commission pursuant to Rule 462(e) under the Securities Act,
check the following box. |X|
If this Form is a post-effective amendment to a registration statement
filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the
Securities Act, check the following box. |_|
CALCULATION OF REGISTRATION FEE
---------------------------------------------------------------------------------------------------------------
Title of Each Class of Securities to be Registered Proposed Maximum Aggregate Amount of Registration Fee
Offering Price
---------------------------------------------------------------------------------------------------------------
Common Stock , Preferred Stock (1) (1)(2)
---------------------------------------------------------------------------------------------------------------
(footnotes continued on next page)
(footnotes continued from previous page)
(1) An indeterminate number or amount of the securities of each identified
class is being registered as may from time to time be sold at
indeterminate prices. There is also being registered hereunder an
indeterminate number of shares of common stock as shall be issuable upon
conversion of the shares of preferred stock registered hereby. Separate
consideration may or may not be received for securities that are issuable
upon conversion of, or in exchange for, or upon exercise of, convertible
or exchangeable securities.
(2) In reliance on and in accordance with Rule 456(b) and 457(r), the
registrant is deferring payment of all of the registration fee, except
that the unutilized filing fee of $15,283 previously paid in connection
with the Registration Statement No. 333-120920 filed on December 1, 2004
is being applied pursuant to Rule 457(p) to the filing fee payable in
connection with this Registration Statement.
PURSUANT TO RULE 429 OF THE SECURITIES ACT OF 1933, THE PROSPECTUS CONSTITUTING
A PART OF THIS REGISTRATION STATEMENT IS A COMBINED PROSPECTUS AND RELATES TO
THE SECURITIES OF ANNALY MORTGAGE MANAGEMENT, INC. REGISTERED PURSUANT TO A
REGISTRATION STATEMENT ON FORM S-3 (REGISTRATION NO. 333-120920).
PROSPECTUS
Annaly Mortgage Management, Inc.
Common Stock and Preferred Stock
By this prospectus, we may offer, from time to time, shares of our:
- common stock;
- preferred stock; or
- any combination of the foregoing.
We will provide specific terms of each issuance of these securities in
supplements to this prospectus. You should read this prospectus and any
supplement carefully before you decide to invest.
This prospectus may not be used to consummate sales of these securities
unless it is accompanied by a prospectus supplement.
The New York Stock Exchange lists our common stock under the symbol "NLY"
and our 7.875% Series A Cumulative Redeemable Preferred Stock under the symbol
"NLY PrA."
To assist us in qualifying as a real estate investment trust (or REIT)
for federal income tax purposes, no person may own more than 9.8% of the
outstanding shares of any class of our common stock or our preferred stock,
unless our Board of Directors waives this limitation.
Consider carefully the risk factors in our most recent Annual Report on
Form 10-K, and any subsequent Quarterly Reports on Form 10-Q, which are
incorporated by reference in this prospectus.
We may sell these securities to or through underwriters, dealers or
agents, or we may sell the securities directly to investors on our own behalf.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is May 23, 2006
TABLE OF CONTENTS
Page
----
ABOUT THIS PROSPECTUS..........................................................1
A WARNING ABOUT FORWARD-LOOKING STATEMENTS.....................................1
ABOUT ANNALY MORTGAGE MANAGEMENT, INC..........................................2
RISK FACTORS...................................................................3
USE OF PROCEEDS................................................................3
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS......3
DESCRIPTION OF COMMON STOCK AND PREFERRED STOCK................................4
MATERIAL FEDERAL INCOME TAX CONSIDERATIONS....................................11
PLAN OF DISTRIBUTION..........................................................29
EXPERTS.......................................................................30
LEGAL MATTERS.................................................................31
WHERE YOU CAN FIND MORE INFORMATION ON ANNALY.................................31
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE...............................31
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission (or SEC) using a "shelf" registration
process. Under this process, we may offer and sell any combination of common
stock and preferred stock in one or more offerings. This prospectus provides you
with a general description of the securities we may offer. Each time we offer to
sell securities, we will provide a supplement to this prospectus that will
contain specific information about the terms of that offering. The prospectus
supplement may also add, update or change information contained in this
prospectus. It is important for you to consider the information contained in
this prospectus and any prospectus supplement together with additional
information described under the heading "Where You Can Find More Information on
Annaly."
You should rely only on the information incorporated by reference or set
forth in this prospectus or the applicable prospectus supplement. We have not
authorized anyone else to provide you with additional or different information.
You should not assume that the information in this prospectus, the applicable
prospectus supplement or any other offering material is accurate as of any date
other than the dates on the front of those documents.
A WARNING ABOUT FORWARD-LOOKING STATEMENTS
Certain statements contained in this prospectus and in the documents
incorporated by reference herein or in the incorporated documents may not be
based on historical facts and are "forward-looking statements" within the
meaning of Section 27A of the Securities Act of 1933, as amended, and Section
21E of the Securities Exchange Act of 1934, as amended (or the Exchange Act).
Forward-looking statements, which are based on various assumptions (some of
which are beyond our control), may be identified by reference to a future period
or periods or by the use of forward-looking terminology, such as "may," "will,"
"believe," "expect," "anticipate," "continue," or similar terms or variations on
those terms or the negative of those terms. Actual results could differ
materially from those set forth in forward-looking statements due to a variety
of factors, including, but not limited to:
o changes in interest rates;
o changes in the yield curve;
o changes in prepayment rates;
o the availability of mortgage-backed securities for purchase;
o the availability and terms of financing;
o changes in the market value of our assets;
o changes in business conditions and the general economy;
1
o risks associated with the investment advisory business of our
wholly owned subsidiary, Fixed Income Discount Advisory Company
(which we refer to as FIDAC), including:
- the removal by FIDAC's clients of assets FIDAC manages;
- FIDAC's regulatory requirements; and
- competition in the investment advisory business;
o changes in government regulations affecting our business; and
o our ability to maintain our qualification as a REIT for federal
income tax purposes.
For a discussion of the risks and uncertainties which could cause actual
results to differ from those contained in the forward-looking statements, please
see the information under the caption "Risk Factors" in our Annual Report on
Form 10-K for the fiscal year ended December 31, 2005, which is incorporated by
reference in this prospectus. We do not undertake, and specifically disclaim any
obligation, to publicly release the result of any revisions which may be made to
any forward-looking statements to reflect the occurrence of anticipated or
unanticipated events or circumstances after the date of such statements.
ABOUT ANNALY MORTGAGE MANAGEMENT, INC.
General
We own, manage, and finance a portfolio of investment securities,
including mortgage pass-through certificates, collateralized mortgage
obligations (or CMOs), agency callable debentures, and other securities
representing interests in or obligations backed by pools of mortgage loans. Our
principal business objective is to generate net income for distribution to our
stockholders from the spread between the interest income on our investment
securities and the cost of borrowings to finance our acquisition of investment
securities, and from dividends we receive from FIDAC. We are a Maryland
corporation that commenced operations on February 18, 1997. We are self-advised
and self-managed.
We have elected and believe that we are organized and have operated in a
manner that enables us to be taxed as a REIT under the Internal Revenue Code of
1986, as amended (or the Code). Provided we qualify for taxation as a REIT, we
generally will not be subject to federal income tax on our taxable income that
is distributed to our stockholders. Substantially all of our assets, other than
FIDAC, our taxable REIT subsidiary, consist of qualified REIT real estate assets
(as described in Section 856(c)(5)(B) of the Code). We have financed our
purchases of investment securities with the net proceeds of equity offerings and
borrowings under repurchase agreements whose interest rates adjust based on
changes in short-term market interest rates.
2
Stock Listing
Our common stock is traded on the New York Stock Exchange under the
symbol "NLY" and our 7.875% Series A Cumulative Redeemable Preferred Stock
(which we refer to as our Series A Preferred Stock) is traded on the New York
Stock Exchange under the symbol "NLY PrA." Our 6% Series B Cumulative
Convertible Preferred Stock (which we refer to as our Series B Preferred Stock)
is not listed on a national securities exchange or the National Association of
Securities Dealers Automated Quotation system.
Principal Executive Offices and Telephone Number
Our principal executive offices are located at 1211 Avenue of the
Americas, Suite 2902, New York, New York 10036. Our telephone number is (212)
696-0100.
RISK FACTORS
Investing in our securities involves risks. You should carefully consider
the risks described under "Risk Factors" in our most recent Annual Report on
Form 10-K and any subsequent Quarterly Reports on Form 10-Q (which descriptions
are incorporated by reference herein), as well as the other information
contained or incorporated by reference in this prospectus or in any prospectus
supplement hereto before making a decision to invest in our securities. See
"Where You Can Find More Information On Annaly," below.
USE OF PROCEEDS
Unless otherwise indicated in an accompanying prospectus supplement, we
intend to use the net proceeds from the sale of the securities offered by this
prospectus and the related accompanying prospectus supplement for the purchase
of mortgage-backed securities. We then intend to increase our investment assets
by borrowing against these mortgage-backed securities and using the proceeds to
acquire additional mortgage-backed securities.
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth our ratios of earnings to combined fixed charges
and preferred stock dividends for the years ended December 31,
2005 2004 2003 2002 2001
-------- -------- -------- -------- --------
Ratio of earnings to combined
fixed charges and preferred
stock dividends..................... 0.98x 1.88x 1.99x 2.14x 1.55x
The ratios of earnings to combined fixed charges and preferred stock
dividends were computed by dividing earnings as adjusted by fixed charges and
preferred stock dividends (where applicable). For this purpose, earnings consist
of net income from continuing operations and fixed charges. Fixed charges
consist of interest expense and preferred stock dividends paid on our
outstanding shares of Series A Preferred Stock. For the year ended December 31,
2005, fixed charges exceeded earnings by approximately $12.5 million.
3
DESCRIPTION OF COMMON STOCK AND PREFERRED STOCK
General
Our authorized capital stock consists of 500 million shares of capital
stock, par value $.01 per share. Pursuant to our articles of incorporation, as
amended, our Board of Directors has the right to classify or reclassify any
unissued shares of common stock into one or more classes or series of common
stock or preferred stock. As of May 19, 2006, our Board of Directors had
classified 7,637,500 unissued shares of common stock as 7,637,500 shares of
Series A Preferred Stock, and classified 4,600,000 unissued shares of common
stock as 4,600,000 shares of Series B Preferred Stock. As of May 19, 2006, we
had 163,328,656 shares of common stock outstanding, not including 3,047,866
shares of common stock issuable upon the exercise of options granted pursuant to
our Long-Term Incentive Plan. In addition, as of May 19, 2006, we had 7,412,500
shares of Series A Preferred Stock outstanding and 4,600,000 shares of Series B
Preferred Stock outstanding.
Common Stock
All shares of common stock offered hereby will be duly authorized, fully
paid and nonassessable. The statements below describing the common stock are in
all respects subject to and qualified in their entirety by reference to our
articles of incorporation, as amended, by-laws, as amended and restated, and any
articles supplementary to our articles of incorporation, as amended.
o Voting
Each of our common stockholders is entitled to one vote for each share
held of record on each matter submitted to a vote of common stockholders.
Our by-laws, as amended and restated, provide that annual meetings of our
stockholders will be held each calendar year on the date determined by our Board
of Directors, and special meetings may be called by a majority of our Board of
Directors, our Chairman, a majority of our independent directors, our President
or generally by stockholders entitled to cast at least 25% of the votes which
all stockholders are entitled to cast at the meeting. Our articles of
incorporation, as amended, may be amended in accordance with Maryland law.
o Dividends; Liquidation; Other Rights
Common stockholders are entitled to receive dividends when declared by
our Board of Directors out of legally available funds. The right of common
stockholders to receive dividends is subordinate to the rights of preferred
stockholders or other senior stockholders. If we have a liquidation, dissolution
or winding up, our common stockholders will share ratably in all of our assets
remaining after the payment of all of our liabilities and the payment of all
liquidation and other preference amounts to preferred stockholders and other
senior stockholders. Common stockholders have no preemptive or other
subscription rights, and there are no conversion rights, or redemption or
sinking fund provisions, relating to the shares of common stock.
4
o Classification or Reclassification of Common Stock or Preferred Stock
Our articles of incorporation, as amended, authorize our Board of
Directors to reclassify any unissued shares of common or preferred stock into
other classes or series of shares, to establish the number of shares in each
class or series and to set the preferences, conversion and other rights, voting
powers, restrictions, limitations, and restrictions on ownership, limitations as
to dividends or other distributions, qualifications, and terms or conditions of
redemption for each class or series.
Preferred Stock
The following description sets forth general terms and provisions of the
preferred stock to which any prospectus supplement may relate. The statements
below describing the preferred stock are in all respects subject to and
qualified in their entirety by reference to our articles of incorporation, as
amended, by-laws, as amended and restated, and any articles supplementary to our
articles of incorporation, as amended, designating terms of a series of
preferred stock. The preferred stock, when issued, will be validly issued, fully
paid, and non-assessable. Because our Board of Directors has the power to
establish the preferences, powers and rights of each series of preferred stock,
our Board of Directors may afford the holders of any series of preferred stock
preferences, powers and rights, voting or otherwise, senior to the rights of
common stockholders.
The rights, preferences, privileges and restrictions of each series of
preferred stock will be fixed by the articles supplementary relating to the
series. A prospectus supplement, relating to each series, will specify the terms
of the preferred stock, as follows:
- the title and stated value of the preferred stock;
- the voting rights of the preferred stock, if applicable;
- the preemptive rights of the preferred stock, if applicable;
- the restrictions on alienability of the preferred stock, if
applicable;
- the number of shares offered, the liquidation preference per share
and the offering price of the shares;
- liability to further calls or assessment of the preferred stock,
if applicable;
- the dividend rate(s), period(s) and payment date(s) or method(s)
of calculation applicable to the preferred stock;
- the date from which dividends on the preferred stock will
accumulate, if applicable;
- the procedures for any auction and remarketing for the preferred
stock;
- the provision for a sinking fund, if any, for the preferred stock;
5
- the provision for and any restriction on redemption, if
applicable, of the preferred stock;
- the provision for and any restriction on repurchase, if
applicable, of the preferred stock;
- any listing of the preferred stock on any securities exchange;
- the terms and provisions, if any, upon which the preferred stock
will be convertible into common stock, including the conversion
price (or manner of calculation) and conversion period;
- the terms under which the rights of the preferred stock may be
modified, if applicable;
- any other specific terms, preferences, rights, limitations or
restrictions of the preferred stock;
- a discussion of certain material federal income tax considerations
applicable to the preferred stock;
- the relative ranking and preferences of the preferred stock as to
dividend rights and rights upon the liquidation, dissolution or
winding-up of our affairs;
- any limitation on issuance of any series of preferred stock
ranking senior to or on a parity with the series of preferred
stock as to dividend rights and rights upon the liquidation,
dissolution or winding-up of our affairs; and
- any limitations on direct or beneficial ownership and restrictions
on transfer of the preferred stock, in each case as may be
appropriate to preserve our qualification as a REIT.
Restrictions on Ownership and Transfer
To assist us in qualifying as a REIT, our articles of incorporation, as
amended, prohibit anyone from acquiring or holding, directly or constructively,
ownership of a number of shares of any class of our capital stock in excess of
9.8% of the outstanding shares. For this purpose the term "ownership" generally
means either direct ownership or constructive ownership in accordance with the
constructive ownership provisions of Section 544 of the Code, as modified in
Section 856(h) of the Code.
The constructive ownership provisions of Section 544 of the Code
generally attribute ownership of securities owned by a corporation, partnership,
estate or trust proportionately to its stockholders, partners or beneficiaries;
attribute ownership of securities owned by family members to other members of
the same family; and set forth rules for attributing securities constructively
owned by one person to another person. To determine whether a person holds or
would hold capital stock in excess of the 9.8% ownership limit, a person will be
6
treated as owning not only shares of capital stock actually owned, but also any
shares of capital stock attributed to that person under the attribution rules
described above. Accordingly, a person who individually owns less than 9.8% of
the shares outstanding may nevertheless be in violation of the 9.8% ownership
limit.
Any transfer of shares of capital stock that would cause us to be
disqualified as a REIT or that would (a) create a direct or constructive
ownership of shares of capital stock in excess of the 9.8% ownership limit, or
(b) result in the shares of capital stock being beneficially owned (within the
meaning of Section 856(a) of the Code) by fewer than 100 persons (determined
without reference to any rules of attribution), or (c) result in us being
"closely held" within the meaning of Section 856(h) of the Code, will be null
and void, and the intended transferee (the "purported transferee") will acquire
no rights to those shares. These restrictions on transferability and ownership
will not apply if our Board of Directors determines that it is no longer in our
best interests to continue to qualify as a REIT.
Any purported transfer of shares of capital stock that would result in a
purported transferee owning (directly or constructively) shares of capital stock
in excess of the 9.8% ownership limit due to the unenforceability of the
transfer restrictions described above will constitute "excess securities."
Excess securities will be transferred by operation of law to a trust that we
will establish for the exclusive benefit of a charitable organization, until
such time as the trustee of the trust retransfers the excess securities. The
trustee will be a banking institution designated by us that is not affiliated
with the purported transferee or us. While the excess securities are held in
trust, the purported transferee will not be entitled to vote or to share in any
dividends or other distributions with respect to the securities. Subject to the
9.8% ownership limit, excess securities may be transferred by the trust to any
person (if such transfer would not result in excess securities) at a price not
to exceed the price paid by the purported transferee (or, if no consideration
was paid by the purported transferee, the fair market value of the excess
securities on the date of the purported transfer), at which point the excess
securities will automatically cease to be excess securities.
Upon a purported transfer of excess securities, the purported transferee
shall cease to be entitled to distributions, voting rights and other benefits
with respect to the shares of capital stock except the right to payment of the
purchase price for the shares of capital stock on the retransfer of securities
as provided above. Any dividend or distribution paid to a purported transferee
on excess securities prior to our discovery that shares of capital stock have
been transferred in violation of our articles of incorporation, as amended,
shall be repaid to us upon demand. If these transfer restrictions are determined
to be void, invalid or unenforceable by a court of competent jurisdiction, then
the purported transferee of any excess securities may be deemed, at our option,
to have acted as an agent on our behalf in acquiring the excess securities and
to hold the excess securities on our behalf.
All certificates representing shares of capital stock will bear a legend
referring to the restrictions described above.
Any person who acquires shares in violation of our articles of
incorporation, as amended, or any person who is a purported transferee such that
excess securities results, must immediately give written notice or, in the event
7
of a proposed or attempted transfer that would be void as set forth above, give
at least 15 days prior written notice to us of such event and shall provide us
such other information as we may request in order to determine the effect, if
any, of the transfer on our qualification as a REIT. In addition, every record
owner of 5.0% or more (during any period in which the number of record
stockholders is 2,000 or more) or 1.0% or more (during any period in which the
number of record stockholders is greater than 200 but less than 2,000) or 1/2%
or more (during any period in which the number of record stockholders is 200 or
less) of the number or value of our outstanding shares must send us an annual
written notice by January 30 stating the name and address of the record owner
and the number of shares held and describing how the shares are held. Further,
each stockholder is required to disclose to us in writing information with
respect to the direct and constructive ownership of shares as the Board of
Directors deems reasonably necessary to comply with the REIT provisions of the
Code, to comply with the requirements of any taxing authority or governmental
agency or to determine any such compliance.
Our Board of Directors may increase or decrease the 9.8% ownership limit.
In addition, to the extent consistent with the REIT provisions of the Code, our
Board of Directors may, pursuant to our articles of incorporation, as amended,
waive the 9.8% ownership limit for a purchaser of our stock. In connection with
any such waiver, we may require that the stockholder requesting the waiver enter
into an agreement with us providing that we may repurchase shares from the
stockholder under certain circumstances to ensure compliance with the REIT
provisions of the Code. The repurchase would be at fair market value as set
forth in the agreement between us and the stockholder. The consideration
received by the stockholder in the repurchase might be characterized as the
receipt by the stockholder of a dividend from us, and any stockholder entering
into an agreement with us should consult its tax advisor. At present, we do not
intend to waive the 9.8% ownership limit for any purchaser.
The provisions described above may inhibit market activity, and may
delay, defer or prevent a change in control or other transaction and the
resulting opportunity for the holders of our capital stock to receive a premium
for their shares that might otherwise exist in the absence of such provisions.
Such provisions also may make us an unsuitable investment vehicle for any person
seeking to obtain ownership of more than 9.8% of the outstanding shares of our
capital stock.
Classification of Board of Directors, Vacancies and Removal of Directors
Our by-laws, as amended and restated, provide for a staggered Board of
Directors. Our by-laws, as amended and restated, provide for between three and
fifteen directors divided into three classes, with terms of three years each.
The number of directors in each class and the expiration of each class term is
as follows:
Class I 2 Directors Expires 2006
Class II 2 Directors Expires 2007
Class III 3 Directors Expires 2008
At each annual meeting of our stockholders, successors of the class of
directors whose term expires at that meeting will be elected for a three-year
term and the directors in the other two classes will continue in office. A
8
classified Board of Directors may delay, defer or prevent a change in control or
other transaction that might involve a premium over the then prevailing market
price for our common stock or other attributes that our stockholders may
consider desirable. In addition, a classified Board of Directors could prevent
stockholders who do not agree with the policies of our Board of Directors from
replacing a majority of the Board of Directors for two years, except in the
event of removal for cause.
Our by-laws, as amended and restated, provide that any vacancy on our
Board of Directors may be filled by a majority of the remaining directors. Any
individual so elected director will hold office for the unexpired term of the
director he or she is replacing. Our by-laws, as amended and restated, provide
that a director may be removed at any time only for cause upon the affirmative
vote of at least two-thirds of the votes entitled to be cast in the election of
directors, but only by a vote taken at a stockholder meeting. These provisions
preclude stockholders from removing incumbent directors, except for cause and
upon a substantial affirmative vote, and filling the vacancies created by such
removal with their own nominees.
Indemnification
Our articles of incorporation, as amended, obligate us to indemnify our
directors and officers and to pay or reimburse expenses for them before the
final disposition of a proceeding to the maximum extent permitted by Maryland
law. The Corporations and Associations Article of the Annotated Code of Maryland
(or the Maryland General Corporation Law) permits a corporation to indemnify its
present and former directors and officers 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 (1) the act or omission
of the director or officer was material to the matter giving rise to the
proceeding and (a) was committed in bad faith, or (b) was the result of active
and deliberate dishonesty, or (2) the director or officer actually received an
improper personal benefit in money, property or services, or (3) in the case of
any criminal proceeding, the director or officer had reasonable cause to believe
that the act or omission was unlawful.
Limitation of Liability
The Maryland General Corporation Law 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 (1) it is proved that the person actually received an improper
benefit or profit in money, property or services, or (2) a judgment or other
final adjudication adverse to the person 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. Our articles of incorporation, as amended, provide for
elimination of the liability of our directors and officers to us or our
stockholders for money damages to the maximum extent permitted by Maryland law
from time to time.
9
Maryland Business Combination Act
The Maryland General Corporation Law establishes special requirements for
"business combinations" between a Maryland corporation and "interested
stockholders" unless exemptions are applicable. An interested stockholder is any
person who beneficially owns 10% or more of the voting power of our then
outstanding voting stock. Among other things, the law prohibits for a period of
five years a merger and other similar transactions between us and an interested
stockholder unless the Board of Directors approved the transaction prior to the
party becoming an interested stockholder. The five-year period runs from the
most recent date on which the interested stockholder became an interested
stockholder. The law also requires a supermajority stockholder vote for such
transactions after the end of the five-year period. This means that the
transaction must be approved by at least:
- 80% of the votes entitled to be cast by holders of outstanding
voting shares; and
- two-thirds of the votes entitled to be cast by holders of
outstanding voting shares other than shares held by the interested
stockholder or an affiliate of the interested stockholder with
whom the business combination is to be effected.
As permitted by the Maryland General Corporation Law, we have elected not
to be governed by the Maryland business combination statute. We made this
election by opting out of this statute in our articles of incorporation, as
amended. If, however, we amend our articles of incorporation, as amended, to opt
back in to the statute, the business combination statute could have the effect
of discouraging offers to acquire us and of increasing the difficulty of
consummating any such offers, even if our acquisition would be in our
stockholders' best interests.
Maryland Control Share Acquisition Act
Maryland law provides that "control shares" of a Maryland corporation
acquired in a "control share acquisition" have no voting rights except to the
extent approved by a vote of the other stockholders. Two-thirds of the shares
eligible to vote must vote in favor of granting the "control shares" voting
rights. "Control shares" are shares of stock that, taken together with all other
shares of stock the acquirer previously acquired, would entitle the acquirer to
exercise voting power in electing directors within one of the following ranges
of voting power:
- one-tenth or more but less than one-third of all voting power;
- one-third or more but less than a majority of all voting power; or
- a majority or more of all voting power.
Control shares do not include shares of stock the acquiring person is
entitled to vote as a result of having previously obtained stockholder approval.
A "control share acquisition" means the acquisition of control shares, subject
to certain exceptions.
If a person who has made (or proposes to make) a control share
acquisition satisfies certain conditions (including agreeing to pay expenses),
10
he may compel our Board of Directors to call a special meeting of stockholders
to consider the voting rights of the shares. If such a person makes no request
for a meeting, we have the option to present the question at any stockholders'
meeting.
If voting rights are not approved at a meeting of stockholders then,
subject to certain conditions and limitations, we may redeem any or all of the
control shares (except those for which voting rights have previously been
approved) for fair value. We will determine the fair value of the shares,
without regard to the absence of voting rights, as of the date of either:
- the last control share acquisition; or
- the meeting where stockholders considered and did not approve
voting rights of the control shares.
If voting rights for control shares are approved at a stockholders'
meeting and the acquirer becomes entitled to vote a majority of the shares of
stock entitled to vote, all other stockholders may obtain rights as objecting
stockholders and, thereunder, exercise appraisal rights. This means that you
would be able to force us to redeem your stock for fair value. Under Maryland
law, the fair value may not be less than the highest price per share paid in the
control share acquisition. Furthermore, certain limitations otherwise applicable
to the exercise of dissenters' rights would not apply in the context of a
control share acquisition. The control share acquisition statute would not apply
to shares acquired in a merger, consolidation or share exchange if we were a
party to the transaction. The control share acquisition statute could have the
effect of discouraging offers to acquire us and of increasing the difficulty of
consummating any such offers, even if our acquisition would be in our
stockholders' best interests.
Transfer Agent and Registrar
Mellon Investor Services LLC, 480 Washington Blvd., Jersey City, New
Jersey 07310, is the transfer agent and registrar for our stock. Its telephone
number is (800) 522-6645.
MATERIAL FEDERAL INCOME TAX CONSIDERATIONS
Based on various factual representations made by us regarding our
operations, in the opinion of McKee Nelson LLP, our counsel, commencing with our
taxable year ended December 31, 1997, we have been organized in conformity with
the requirements for qualification and taxation as a REIT under the Code, and
our method of operating has enabled us, and will enable us to meet the
requirements for qualification and taxation as a REIT. Our qualification as a
REIT depends upon our ability to meet the various requirements imposed under the
Code through actual operations. McKee Nelson LLP will not review our operations,
and no assurance can be given that actual operations will meet these
requirements. The opinion of McKee Nelson LLP is not binding on the Internal
Revenue Service (or IRS) or any court. The opinion of McKee Nelson LLP is based
upon existing law, Treasury regulations and currently published administrative
positions of the IRS and judicial decisions, all of which are subject to change
either prospectively or retroactively.
11
- The following discusses the material federal income tax
considerations that relate to our qualification as a REIT and that
apply to an investment in our stock. No assurance can be given
that the conclusions set out below would be sustained by a court
if challenged by the IRS. This summary deals only with stock that
is held as a capital asset, which generally means property that is
held for investment. In addition, except to the extent discussed
below, this summary does not address tax considerations applicable
to you if you are subject to special tax rules, such as:
- a dealer or trader in securities;
- a financial institution;
- an insurance company;
- a stockholder that holds our stock as a hedge, part of a straddle,
conversion transaction or other arrangement involving more than
one position; or
- a stockholder whose functional currency is not the United States
dollar.
The discussion below is based upon the provisions of the Code and
regulations, rulings and judicial decisions interpreting the Code as of the date
of this prospectus. Any of these authorities may be repealed, revoked or
modified, perhaps with retroactive effect, so as to result in federal income tax
consequences different from those discussed below.
The discussion set out below is intended only as a summary of the
material federal income tax consequences of our qualification as a REIT and of
an investment in our stock. Taxpayers and preparers of tax returns (including
returns filed by any partnership or other arrangement) should be aware that
under Treasury regulations a provider of advice on specific issues of law is not
considered an income tax return preparer unless the advice is (i) given with
respect to events that have occurred at the time the advice is rendered and is
not given with respect to the consequences of contemplated actions, and (ii) is
directly relevant to the determination of an entry on a tax return. Accordingly,
we urge you to consult your tax advisors regarding the tax consequences of an
investment in our stock, including the application to your particular situation
of the tax considerations discussed below, as well as the application of state,
local or foreign tax laws. The statements of federal tax law set out below are
based on the laws in force and their interpretation as of the date of this
prospectus, and are subject to changes occurring after that date.
Taxation as a REIT
We elected to become subject to tax as a REIT for federal income tax
purposes effective for our taxable year ended on December 31, 1997, and we plan
to continue to meet the requirements for qualification and taxation as a REIT.
There can be no assurance, however, that we will qualify as a REIT in any
particular taxable year given the highly complex nature of the rules governing
REITs, the ongoing importance of factual determinations, and the possibility of
future changes in our circumstances. If we fail to qualify as a REIT in any
particular taxable year, we will be subject to federal income tax as a regular
domestic corporation, and you will be subject to tax in the same manner as a
12
stockholder of a regular domestic corporation. In that event, we may be subject
to a substantial income tax liability in respect of each taxable year that we
fail to qualify as a REIT, and the amount of earnings and cash available for
distribution to you and other stockholders could be significantly reduced or
eliminated. See "--REIT Qualification -- Failure to Qualify" below.
So long as we qualify for taxation as a REIT, we generally will not be
subject to federal corporate income taxes on our taxable income that we
distribute currently to our shareholders. This treatment would substantially
eliminate the "double taxation" (at the corporate and shareholder levels) that
generally results from investment in a regular corporation. We will be subject
to federal income tax, however, in the following instances:
1. We will be taxed at regular corporate rates on any undistributed
"REIT taxable income," including undistributed net capital gains
(however, properly designated undistributed capital gains will
effectively avoid taxation at the shareholder level). For any
taxable year, our "REIT taxable income" is our taxable income
computed as though we were a "C" corporation (generally, a
corporation subject to full corporate-level tax), adjusted, as
provided in Section 857(b) of the Code, to account for various
items, including a deduction for dividends paid.
2. Under certain circumstances, we may be subject to the "alternative
minimum tax" on our items of tax preference.
3. If we have (a) net income from the sale or other disposition of
"foreclosure property" which is held primarily for sale to
customers in the ordinary course of business or (b) other
nonqualifying income from foreclosure property, we will be subject
to tax at the highest corporate rate on such income. See "--REIT
Qualification - Foreclosure Property" below.
4. If we have net income from "prohibited transactions" (which are,
in general, certain sales or other dispositions of property held
primarily for sale to customers in the ordinary course of business
other than foreclosure property), we will be subject to a 100% tax
on the amount of such net income. See "--REIT Qualification -
Prohibited Transactions" below.
5. If we should fail to satisfy the 75% gross income test or the 95%
gross income test (as discussed below), but we nonetheless
maintain our qualification as a REIT because certain other
requirements have been met, we will be subject to a 100% tax on an
amount equal to the product of (i) a fraction intended to reflect
our profitability, multiplied by (ii) the greater of (a) the
excess of (I) 75% of our gross income (excluding gross income from
prohibited transactions) over (II) our gross income that qualifies
under the 75% gross income test, or (b) the excess of (I) 95% of
our gross income (excluding gross income from prohibited
transactions) over (II) our gross income that qualifies under the
95% gross income test.
6. If we should fail to distribute during each calendar year at least
the sum of (i) 85% of our ordinary income for such year, (ii) 95%
13
of our capital gain net income for such year and (iii) any
undistributed taxable income from prior periods, we would be
subject to a 4% nondeductible excise tax on the excess of such
required distribution over the sum of amounts actually distributed
and amounts retained but with respect to which federal income tax
was paid.
7. If we were to acquire assets from a "C" corporation in a
transaction in which our basis in those assets was determined by
reference to the "C" corporation's basis, then the excess, if any,
of the fair market value of the assets over the tax basis of the
assets on the date of acquisition would be "built-in gain" and the
assets would be "built-in gain assets." If we disposed of such
built-in gain assets within the ten-year period beginning on the
date of their acquisition, then we would be subject to tax at the
highest regular corporate rate applicable on the built-in gain in
such assets.
8. If we recognize excess inclusion income and have shareholders who
are disqualified organizations within the meaning of Section
860E(e)(5) of the Code (generally, an agency or instrumentality of
the United States, any state, or any foreign government, or any
political subdivision of any of the foregoing), we may have to pay
tax at the highest corporate rate on the portion of the excess
inclusion income allocable to the shareholders that are
disqualified organizations. See "--Taxable Mortgage Pools" below.
REIT Qualification
Summary of Requirements Generally. To qualify as a REIT, we must comply
with the following technical requirements imposed by the Code:
1. We must be managed by one or more directors or trustees;
2. Shares of our stock must be transferable;
3. We must be taxable as a domestic corporation but for the
provisions of the Code applicable to REITs;
4. We cannot be a financial institution or an insurance company
subject to certain provisions of the Code;
5. Shares of our stock must be beneficially owned by at least 100
persons during at least 335 days of a taxable year of 12 months,
or during a proportionate part of a taxable year of less than 12
months;
6. No more than 50% in value of our outstanding stock may be owned,
directly or indirectly, by five or fewer individuals (defined for
this purpose to include private foundations, certain unemployment
compensation trusts, and portions of trusts that are permanently
set aside or used for charitable purposes) at any time during the
last half of our taxable year;
7. We must meet certain other tests, described below, regarding the
sources from which we derive gross income and the nature of our
assets; and
14
8. We generally must distribute dividends to our shareholders in an
amount that at least equals 90% of our REIT taxable income,
determined without regard to the dividends paid deduction and by
excluding net capital gain.
We must satisfy requirements 1 through 4, inclusive, during the entire
taxable year. For purposes of applying requirement 6, stock attribution rules
set forth in Section 544 of the Code treat stock owned by corporations,
partnerships, or trusts as though the shareholders, partners, or beneficiaries
of those entities owned such stock proportionally. Moreover, under Section
857(h) of the Code, qualified employee pension or profit sharing trusts are not
treated as individuals for purposes of requirement 6, but instead, the stock
owned by such a trust is considered to be owned by the beneficiaries of the
trust based in proportion to their actuarial interests in the trust.
We believe that we will meet the above-enumerated requirements 1 through
6 at all relevant times.
In connection with requirement 6, we are required to send annual letters
to our shareholders requesting information regarding the actual ownership of our
shares. If we comply with this requirement, and we do not know, or exercising
reasonable diligence would not have known, whether we failed to meet requirement
6, then we will be treated as having met requirement 6. If we were to fail to
send such annual letters, we would be required to pay either a $25,000 penalty
or, if the failure is intentional, a $50,000 penalty. If we fail to send annual
letters, the IRS also might require that we take further action to ascertain
actual ownership of our shares, and failure to comply with such an additional
requirement would result in an additional $25,000 (or $50,000) penalty. No
penalty would be assessed in the first instance, however, if the failure to send
the letters were due to reasonable cause and not to willful neglect. We send
letters annually in a manner that conforms to the requirements of the Code and
relevant Treasury Regulations.
In addition, our charter provides restrictions regarding the transfer and
ownership of shares of our stock. These restrictions are intended to assist us
in continuing to satisfy the share ownership requirements described in
requirements 5 and 6 above. The ownership and transfer restrictions are
described in more detail in "Description of Common Stock and Preferred Stock -
Restrictions on Ownership and Transfer." These restrictions, together with our
compliance with the annual shareholder letter requirement described above,
however, may not ensure that we will, in all cases, be able to satisfy the share
ownership requirements described above. If we fail to satisfy such share
ownership requirements, then, unless we qualify for relief, our qualification as
a REIT may terminate. See "--REIT Qualification -- Failure to Qualify."
Quarterly Asset Tests. Generally, we must meet the following asset tests
at the close of each quarter during each taxable year:
1. At least 75% of the value of our total assets must be "qualified
REIT real estate assets" (described below), government securities
or cash and cash items (including receivables);
2. No more than 25% of the value of our total assets may be
securities other than securities in the 75% asset class (for
example, government securities, such as agency debentures, and
certain mortgage-backed securities, such as agency certificates);
15
3. No more than 20% of the value of our total assets may be
securities of one or more taxable REIT subsidiaries (described
below); and
4. Except for securities qualifying under the 75% asset test,
securities in a taxable REIT subsidiary or "qualified REIT
subsidiary," certain partnership interests, and for purposes of
clause (c) below, certain "straight" debt obligations:
(a) we may not hold more than 5% of the value of our total
assets in the securities of any one issuer;
(b) we may not hold securities that possess more than 10% of
the total voting power of the outstanding securities of any
one issuer; and
(c) we may not hold securities that have a value of more than
10% of the total value of the outstanding securities of any
one issuer.
The term "qualified REIT real estate assets" means assets of the type
described in Section 856(c)(5)(B) of the Code, and generally include -
o Interests in real property, including fee ownership and
co-ownership of land and improvements thereon and leasehold
interests and options on land and improvements thereon;
o Interests in mortgages on real property;
o Regular and residual interests in real estate mortgage investment
conduits (or REMICs) (however if less than 95% of the assets of a
REMIC consists of qualified real estate assets, determined as if
we held such assets, we will be treated as holding directly our
proportionate share of the assets of that REMIC);
o Non-REMIC mortgage-backed securities that represent ownership
interests in pools of mortgage loans;
o Shares in other REITs; and
o Investments in stock or debt instruments during the one-year
period following our receipt of new capital that we raise through
equity offerings or public offerings of debt with at least a
five-year term.
A REIT may hold up to 100% of the stock of a taxable REIT subsidiary.
Both the subsidiary and the REIT must jointly elect to treat the subsidiary as a
taxable REIT subsidiary by jointly filing a Form 8875 with the IRS. FIDAC has
filed such an election to be treated as our taxable REIT subsidiary.
16
As a taxable REIT subsidiary, FIDAC will pay federal income tax at the
rates applicable to corporations on any income it earns. Moreover, the Code
contains rules to ensure contractual arrangements between a taxable REIT
subsidiary and the parent REIT are at arm's length. If interest accrues on an
indebtedness owed by a taxable REIT subsidiary to its parent REIT, the REIT is
subject to tax at a rate of 100% on the excess of (i) interest payments made by
a taxable REIT subsidiary to its parent REIT over (ii) the amount of interest
that would have been payable had interest accrued on the indebtedness at a
commercially reasonable rate. A tax at a rate of 100% is also imposed on any
transaction between a taxable REIT subsidiary and its parent REIT to the extent
the transaction gives rise to deductions to the taxable REIT subsidiary that are
in excess of the deductions that would have been allowable had the transaction
been entered into on arm's-length terms. We scrutinize all of our transactions
with FIDAC in an effort to ensure that we do not become subject to these taxes.
We cannot assure you, however, that we will be able to avoid application of
these taxes.
If we own 100% of the stock of a subsidiary corporation for which we do
not make a taxable REIT subsidiary election, the subsidiary will be a qualified
REIT subsidiary. As such, the qualified REIT subsidiary's separate existence
will be disregarded for federal income tax purposes, and its assets,
liabilities, and items of income, deduction and credit will be treated as our
assets, liabilities, and items of income, deduction, and credit. Although a
qualified REIT subsidiary will not be subject to federal corporate income
taxation, it may be subject to state and local taxation in certain
jurisdictions.
We believe that, because we own a large portfolio of agency certificates
and agency debentures, we have satisfied and will be able to satisfy the asset
tests for each calendar quarter. We will manage our portfolio of assets to
comply with the asset tests.
If we satisfy the asset tests at the close of any calendar quarter, but
fail to meet any of the asset tests as of the close of a subsequent calendar
quarter and such failure is due to the acquisition of securities or other
assets, the Code allows us a 30-day period following the close of the calendar
quarter to come into compliance with the asset tests. If we do cure a failure
within the 30-day period, we will be treated as having satisfied the asset tests
at the close of the calendar quarter. We will not fail the quarterly asset tests
if a discrepancy exists between the value of our assets and the requirements of
the asset tests if such discrepancy is attributable solely to fluctuations in
the market values of our assets.
If we fail to satisfy the quarterly asset tests for any quarter, we will
not lose our REIT qualification as a result of such failure if (i) we meet
certain record keeping requirements concerning our assets and file a schedule
describing the assets that caused the failure, (ii) our failure to comply with
the quarterly asset tests at the close of any calendar quarter was due to
reasonable cause and not willful neglect, (iii) we dispose of the assets that
caused us to fail the quarterly asset test within six months of our discovery of
the failure or such other time period as prescribed by the Department of the
Treasury, or we otherwise come into compliance with the quarterly assets tests
within the specified time period, and (iv) we would, but for the failure,
otherwise satisfy the quarterly asset tests. Relief is also provided for certain
de minimis failures of the quarterly asset tests described under "Federal Income
Tax Considerations - REIT Qualification - Quarterly Asset Tests" at item 4,
provided we dispose of the assets causing us to fail the asset test within six
17
months of our discovery of the failure or such other time period as prescribed
by the Department of the Treasury, or we otherwise come into compliance with the
quarterly assets tests within the specified time period. In all cases, other
than the case of a de minimis failure described in the preceding sentence, we
will be subject to a tax equal to the lesser of (i) $50,000, or (ii) an amount
to be determined under future regulations that would be based on the income
generated by the assets that were not qualifying assets.
Gross Income Tests. To qualify as a REIT, generally we must meet the
following gross income tests for each taxable year:
1. At least 75% of our gross income must be derived from the real
estate sources specified in Section 856(c)(3) of the Code,
including -
(a) Rents from real property;
(b) Interest income on obligations secured by mortgages on real
property or on interests in real property;
(c) Income derived from REMIC regular or residual interests
(provided that if less than 95% of the REMIC's assets are
qualifying REIT real estate assets, determined as if we
held them directly, then only a proportionate amount of the
income will be qualifying income for purposes of this
test);
(d) Gain from the disposition of qualified REIT real estate
assets, including mortgage loans and agency certificates
(other than dispositions treated as prohibited
transactions, as described below);
(e) Income or gain from foreclosure property (as described
below);
(f) Dividends or other distributions on, and gain from the sale
of, stock in other REITs;
(g) Amounts, such as commitment fees, received in consideration
for entering into an agreement to make a loan secured by
real property (other than amounts that depend on the income
or profits of any person); and
(h) "Qualified temporary investment income" (generally, income
we earn from investing new capital raised through equity
offerings or public debt offerings with at least a
five-year term, provided we receive or accrue that income
within one year of acquiring such new capital).
2. At least 95% of our gross income for each taxable year must be
derived from sources of income specified in Section 856(c)(2) of
the Code, which include-
(a) The types of gross income described in paragraph 1 above;
(b) Dividends;
(c) Interest (such as interest on agency debentures);
18
(d) Income derived from certain hedging transactions, or gain
from the disposition or termination of certain hedging
transactions, entered into to manage interest rate risk
with respect to indebtedness incurred or to be incurred to
carry real estate assets. For taxable years beginning after
December 31, 2004, income derived from hedging
transactions, and gain from the disposition of such
transactions, shall be disregarded for purposes of the 95%
gross income test, provided that such transactions were
properly identified as hedging transactions under
regulations issued pursuant to section 1221 of the Code and
provided that such transactions were entered into to manage
interest rate risk with respect to indebtedness incurred,
or to be incurred, to acquire or carry real estate assets;
and
(e) Gains from the sale of stock or securities (other than
sales that are prohibited transactions).
If we fail to satisfy one or both of the 75% and 95% gross income tests
for any taxable year, we may nevertheless qualify as a REIT for that year if we
are entitled to relief under Section 856(c)(6) of the Code. Such relief will be
available if we could demonstrate that our failure to satisfy the tests was due
to reasonable cause and was not due to willful neglect and we file a schedule
describing each item of our gross income for the year in which the failure
occurred. We cannot know at this time whether we would, in all circumstances, be
able to avail ourselves of the relief provided under Section 856(c)(6) of the
Code. For example, if we failed the 75% gross income test because more than 25%
of our gross income represented dividends we received from FIDAC, the IRS could
determine that our failure of the test would not satisfy the reasonable cause
standard. If we failed one of the tests and we were ineligible for relief, we
would fail to qualify as a REIT. Moreover, even if we qualify for relief, we
will be subject to a 100% tax on an amount equal to the product of (i) a
fraction intended to reflect our profitability, multiplied by (ii) the greater
of (a) the excess of (I) 75% of our gross income (excluding gross income from
prohibited transactions) over (II) our gross income that qualifies under the 75%
gross income test, or (b) the excess of (I) 95% of our gross income (excluding
gross income from prohibited transactions) over (II) our gross income that
qualifies under the 95% gross income test.
For purposes of the gross income tests, our income includes 100% of the
income earned by a disregarded entity in which we hold the sole equity interest,
such as a qualified REIT subsidiary or a wholly-owned trust or limited liability
company. In addition, our gross income will include our allocable share of the
income of any entity that is treated as a partnership for federal income tax
purposes.
Gross income we derive from the sale of property (other than foreclosure
property, as described below) that we hold for sale to customers in the ordinary
course of business is excluded from both the numerator and the denominator of
both gross income tests.
We believe that we will be able to satisfy the 95% and 75% gross asset
tests because, as explained below, the income from our agency certificates will
be qualifying income for purposes of both tests and income from our agency
debentures will be qualifying income for purposes of the 95% test. We will
monitor the amount of our non-qualifying income throughout the year and we will
endeavor to manage our portfolio to comply with the gross income tests.
19
The following paragraphs discuss some of the specific applications of the
gross income tests to us.
Dividends. The dividends we receive from FIDAC or any other corporation
(other than a qualified REIT subsidiary) in which we own an interest, will
qualify for purposes of the 95% gross income test but not for purposes of the
75% gross income test. We intend to limit the amount of dividends we receive
from taxable REIT subsidiaries so as to avoid failing the 75% gross income test.
Interest. For purposes of both of the gross income tests, the term
interest excludes any amount that is based on the income or profits of any
person. Thus, interest based on net rental income from mortgaged property would
not be qualifying income. We do not anticipate holding assets that would provide
for such payments.
Generally, interest on agency certificates and other mortgage-backed
certificates, including any original issue discount, market discount, prepayment
premiums, late payment fees, and assumptions fees, but not any amount that
represents compensation for services, will be qualifying income for purposes of
both gross income tests.
Fee Income. Any fees that we might receive as consideration for a
commitment to acquire mortgage-backed certificates would represent qualifying
income for purposes of both the 75% and 95% gross income tests (provided such
fees are not based on the income or profits of any person).
Hedging Transactions. Generally, for any hedging transaction that we
entered into prior to December 31, 2004, to manage interest rate risk associated
with having incurred indebtedness to acquire or carry real estate assets, any
income or gain derived from such hedging transactions is qualified income for
purposes of the 95% gross income test. For hedging transactions that we enter
into after December 31, 2004, we must comply with certain identification
procedures set out in Treasury regulations to ensure the status of our hedging
transactions as hedges for tax purposes and, as in the past, we must hedge only
risk associated with debt incurred to acquire or to carry real estate assets.
Any income derived from any such properly identified transaction will not be
treated as gross income for purposes of the 95% gross income test. The principal
difference is that, under prior law, hedging income was qualified income for
purposes of the 95% gross income test. It is now not counted as gross income for
purposes of applying that test.
Rents from Real Property. We do not intend to own any real property for
the production of rental income.
Prohibited Transactions. We will incur a 100% tax on the net income we
derive from a sale or other disposition of property, other than foreclosure
property, that we hold primarily for sale to customers in the ordinary course of
our trade or business. We refer to each such sale as a prohibited transaction.
Although we do not intend to engage in any prohibited transactions, whether we
are considered to hold an asset for sale to customers in the ordinary course of
our business is a question of fact. Section 857(b)(6)(C) of the Code sets forth
20
certain safe harbors under which certain sales of property will not be
considered to be prohibited transactions. We will endeavor to structure any
asset sales to qualify under the safe harbors. We cannot assure you, however,
that we will always be able to avoid holding assets for sale to customers in the
ordinary course of business or to avail ourselves of the safe harbors.
Foreclosure Property. Foreclosure property is any real property,
including interests in real property, and any personal property incident to such
real property, that we acquire as a result of having bid in the property at
foreclosure, or we otherwise reduce to ownership or possession by agreement or
process of law, after there has been a default or default was imminent on a
lease of such property or on indebtedness secured by such property. We must,
however, elect to treat the property as foreclosure property on or before the
due date of our tax return for the year in which we acquire the property.
Moreover, property will not qualify as foreclosure property if we acquired the
related mortgage loan at a time when default was imminent or anticipated, or if
we obtained the mortgage loan as consideration for our disposition of property
in a prohibited transaction.
Because we do not anticipate holding any whole loans, we do not
anticipate acquiring any foreclosure property.
Distribution Requirements. We generally must distribute dividends (other
than capital gain dividends) to our shareholders in an amount at least equal to
(1) the sum of (a) 90% of our REIT taxable income (determined without regard to
the dividends paid deduction and by excluding net capital gain) and (b) 90% of
the net income (after tax, if any) from foreclosure property, minus (2) the sum
of certain items of non-cash income. In addition, if we were to recognize
"built-in-gain" (as defined below) on disposition of any assets acquired from a
"C" corporation in a transaction in which our basis in the assets was determined
by reference to the "C" corporation's basis (for instance, if the assets were
acquired in a tax-free reorganization), we would be required to distribute at
least 90% of the built-in-gain recognized net of the tax we would pay on such
gain. "Built-in-gain" is the excess of (a) the fair market value of an asset
(measured at the time of acquisition) over (b) the basis of the asset (measured
at the time of acquisition). We do not anticipate holding any assets having
built-in-gain.
We are not required to distribute our net capital gains. Rather than
distribute them, we may elect to retain and pay the federal income tax on them,
in which case our shareholders will (i) include their proportionate share of the
undistributed net capital gains in income, (ii) receive a credit for their share
of the federal income tax we pay and (iii) increase the basis in their stock by
the difference between their share of the capital gain and their share of the
credit.
Distribution of "Earnings and Profits" Attributable to a "C" Corporation.
To qualify as a REIT, we cannot have at the end of any taxable year any
undistributed earnings and profits attributable to a "C" corporation taxable
year. We do not have any such earnings and profits nor do we anticipate
acquiring any corporation in a transaction in which we would succeed to their
earnings and profits.
Taxation as a REIT. In any year in which we qualify as a REIT, we
generally will not be subject to federal income tax on that portion of our
taxable income or net capital gain that we distribute to our shareholders. We
will pay federal income tax on taxable income, including net capital gain, that
21
we do not distribute to shareholders. Furthermore, if we fail to distribute
during a calendar year, or by the end of January following the calendar year in
the case of distributions with declaration and record dates falling in the last
three months of the calendar year, at least the sum of:
o 85% of our REIT ordinary income for such year;
o 95% of our REIT capital gain income for such year; and
o any undistributed taxable income for prior periods.
We will incur a 4% nondeductible excise tax on the excess of such
required distributions over the amounts we actually distribute.
Failure to Qualify. If we fail to qualify as a REIT in any taxable year
and the relief provisions provided in the Code do not apply, we will be subject
to federal income tax, including any applicable alternative minimum tax, on our
taxable income in that taxable year and all subsequent taxable years at the
regular corporate income tax rates. We will not be allowed to deduct
distributions to shareholders in these years, nor will the Code require us to
make distributions. In such event, we will not be allowed to designate any
distributions as capital gains dividends, and you will not receive any share of
our tax preference items. In addition, distributions to most domestic
noncorporate shareholders, to the extent of our current and accumulated earnings
and profits, would generally be taxable at capital gains tax rates under current
law. Subject to certain limitations of the federal income tax laws, domestic
corporate shareholders might be eligible for the dividends received deduction.
Further, unless entitled to the relief provisions of the Code, we also will be
barred from re-electing REIT qualification for the four taxable years following
the year in which we fail to qualify. We intend to monitor on an ongoing basis
our compliance with the REIT requirements described above. To maintain our REIT
qualification, we will be required to limit the types of assets that we might
otherwise acquire, or hold some assets at times when we might otherwise have
determined that the sale or other disposition of these assets would have been
more prudent.
The 2004 Act, in addition to amending the relief provisions applicable
for certain failures of the annual gross income tests and adding relief
provisions for failure of the quarterly asset tests, provides relief for
failures of other tests imposed as a condition of REIT qualification, as long as
such failures are attributable to reasonable cause and not willful neglect. A
REIT would be required to pay a penalty of $50,000, however, in the case of each
such failure. The above-described changes apply for taxable years of REITs
beginning after the date of enactment.
Taxation of U.S. Shareholders
For purposes of this discussion, a "U.S. shareholder" is a shareholder
who is a "U.S. person." A U.S. person is a person who is:
o A citizen or resident of the United States;
22
o A corporation, partnership, or other entity created or organized
in the United States or under the laws of the United States or of
any political subdivision thereof;
o An estate whose income is includible in gross income for federal
income tax purposes regardless of its source; or
o A trust, if (1) a court within the United States is able to
exercise primary supervision over the administration of the trust
and one or more U.S. persons have authority to control all
substantial decisions of the trust, or (2) the trust was in
existence on August 26, 1996, was treated as a domestic trust
before such date, and has made an election to continue to be
treated as a U.S. person.
Distributions. Unless you are a tax-exempt entity, distributions that we
make to you, including constructive distributions, generally will be subject to
tax as ordinary income to the extent of our current and accumulated earnings and
profits as determined for federal income tax purposes. If the amount we
distribute to you exceeds your allocable share of current and accumulated
earnings and profits, the excess will be treated as a return of capital to the
extent of your adjusted basis in your stock, which will reduce your basis in
your stock but will not be subject to tax. To the extent the amount we
distribute to you exceeds both your allocable share of current and accumulated
earnings and profits and your adjusted basis, this excess amount will be treated
as a gain from the sale or exchange of a capital asset.
Distributions to our corporate shareholders, whether characterized as
ordinary income or as capital gain, are not eligible for the corporate dividends
received deduction.
Generally, dividends that we pay are taxable to you at the rates
applicable to ordinary income. There are, however, three instances in which
dividends we pay to you will be taxable at the rates applicable to net capital
gains. First, distributions that we designate as capital gain dividends
generally will be taxable in your hands as long-term capital gains, but only to
the extent such distributions do not exceed our actual net capital gain for the
taxable year. If we realize a loss for the taxable year, you will not be
permitted to deduct any share of that loss. Second, to the extent we receive
dividends from a "C" corporation, such as a taxable REIT subsidiary, we will be
able to designate the dividends that we pay to you as eligible for taxation at
the rate applicable to net capital gains. Finally, to the extent we pay
corporate level tax on income or gain in one year, such as the tax on
built-in-gains, we can designate dividends as eligible for taxation at the rates
applicable to net capital gains to the extent of the amount of such income in
excess of the tax paid thereon. Dividends described in the preceding two
sentences will generally qualify to be taxed at the rates applicable to net
capital gains if you hold our common stock for more than 60 days during the
120-day period beginning on the date that is 60 days before the date on which
our common stock becomes ex-dividend.
Rather than distribute our net capital gains, we may elect to retain and
pay the federal income tax on them, in which case you will (i) include your
proportionate share of the undistributed net capital gains in income, (ii)
receive a credit for your share of the federal income tax we pay and (iii)
increase the basis in your stock by the difference between your share of the
capital gain and your share of the credit.
23
Post Year-end Dividends. Dividends that we declare during the last
quarter of a calendar year and actually pay to you during January of the
following taxable year generally are treated as if we had paid, and you had
received, them on December 31 of the calendar year and not on the date actually
paid. In addition, we may elect to treat other dividends distributed after the
close of the taxable year as having been paid during the taxable year, so long
as they meet the requirements described in the Code, but you will be treated as
having received these dividends in the taxable year in which the distribution is
actually made.
Gain on Disposition. If you sell or otherwise dispose of our stock, you
will generally recognize a capital gain or loss in an amount equal to the
difference between the amount realized and your adjusted basis in our stock,
which gain or loss will be long-term if the stock is held for more than one
year. Any loss recognized on the sale or exchange of stock held for six months
or less generally will be treated as a long-term capital loss to the extent of
(1) any long-term capital gain dividends you receive with respect to our stock
and (2) your proportionate share of any long-term capital gains that we retain.
Failure to Qualify. If we fail to qualify as a REIT in any year,
distributions we make to you will be taxable in the same manner discussed above,
except that:
o We will not be allowed to designate any distributions as capital
gain dividends;
o Distributions (to the extent they are made out of our current and
accumulated earnings and profits) will be eligible for the
corporate dividends received deduction and generally will be
taxable to domestic non-corporate shareholders at rates applicable
to net capital gains, so long as certain holding period
requirements are satisfied;
o The excess inclusion income rules (which are described under
"Taxable Mortgage Pools" below) will not apply to the
distributions we make;
o You will not receive any share of our tax preference items; and
o Dividends that we declare in the last quarter of the calendar year
but pay to you in January would not be treated as though we had
paid them to you on the immediately preceding December 31.
In this event, however, we could be subject to substantial federal income
tax liability as a "C" corporation, and the amount of earnings and cash
available for distribution to you and other shareholders could be significantly
reduced or eliminated.
Information Reporting and Backup Withholding--U.S. Shareholders. For each
calendar year, we will report to our U.S. shareholders and to the IRS the amount
of distributions that we pay, and the amount of tax (if any) that we withhold on
these distributions. Under the backup withholding rules, you may be subject to
backup withholding tax with respect to distributions paid unless you:
24
o Are a corporation or come within another exempt category and
demonstrate this fact when required; or
o Provide a taxpayer identification number, certify as to no loss of
exemption from backup withholding tax and otherwise comply with
the applicable requirements of the backup withholding tax rules.
A U.S. shareholder may satisfy this requirement by providing us an
appropriately prepared Form W-9. If you do not provide us with your correct
taxpayer identification number, then you may also be subject to penalties
imposed by the IRS.
Backup withholding tax is not an additional tax. Any amounts withheld
under the backup withholding tax rules will be refunded or credited against your
federal income tax liability, provided you furnish the required information to
the IRS.
Taxation of Tax-Exempt Entities
The discussion under this heading only applies to you if you are a
tax-exempt entity. Subject to the discussion below regarding a pension-held
REIT, distributions received from us or gain realized on the sale of our stock
will not be taxable as unrelated business taxable income (or UBTI), provided
that:
o You have not incurred indebtedness to purchase or hold our stock;
o You do not otherwise use our stock in a trade or business
unrelated to your exempt purpose; and
o We do not distribute dividends to you that are treated as
representing excess inclusion income.
In addition, a substantial portion of the distributions you receive may
constitute UBTI if we are treated as a "pension-held REIT" and you are a
"qualified pension trust" that holds more than 10% by value of our stock at any
time during a taxable year. For these purposes, a "qualified pension trust" is
any pension or other retirement trust that satisfies the requirements imposed
under Section 401(a) of the Code. We will be treated as a "pension-held REIT" if
(1) we would not be a REIT if we had to treat stock held in a qualified pension
trust as owned by the trust (instead of as owned by the trust's multiple
beneficiaries) and (2) (a) at least one qualified pension trust holds more than
25% of our stock by value, or (b) one or more qualified pension trusts (each
owning more than 10% of our stock by value) holds in the aggregate more than 50%
of our stock by value. Assuming compliance with the ownership limit provisions
set forth in our charter, it is unlikely that pension plans will accumulate
sufficient stock to cause us to be treated as a pension-held REIT.
If you are a tax-exempt holder that is a social club, voluntary employee
benefit association, supplemental unemployment benefit trust, or qualified group
legal services plan exempt from federal taxation under Sections 501(c)(7),
(c)(9), (c)(17), or (c)(20) of the Code, respectively, then distributions
received by you may also constitute UBTI. We urge you to consult your tax
advisor concerning the applicable set aside and reserve requirements. See
"Taxation of U.S. Shareholders."
25
Federal Income Tax Considerations Applicable to Foreign Shareholders
The discussion under this heading only applies to you if you are not a
U.S. person (hereinafter, a foreign shareholder).
This discussion is only a brief summary of the federal tax consequences
that apply to you, which are highly complex, and does not consider any specific
facts or circumstances that may apply to you and your particular situation. We
urge you to consult your tax advisor regarding the federal tax consequences of
acquiring, holding and disposing of our stock, as well as any tax consequences
that may arise under the laws of any foreign, state, local or other taxing
jurisdiction.
Distributions. Except for distributions designated as capital gains
dividends, distributions you receive from us generally will be subject to
federal withholding tax at the rate of 30%, to the extent of our current and
accumulated earnings and profits, unless reduced or eliminated by an applicable
tax treaty or unless the distributions are treated as effectively connected with
your U.S. trade or business. Dividend distributions that are attributable to
excess inclusion income will not be eligible for exemption from tax or any
reduction in the rate of tax. If you wish to claim the benefits of an applicable
tax treaty, you will need to satisfy certification and other requirements, such
as providing Form W-8BEN. If you wish to claim that our distributions are
effectively connected with your U.S. trade or business, you will need to satisfy
certification and other requirements such as providing Form W-8ECI. A
distribution to a foreign partnership is treated, with some exceptions, as a
distribution directly to the partners so that the partners are required to
provide the required certifications.
Distributions you receive that are in excess of our earnings and profits
will be treated as a tax-free return of capital to the extent of your adjusted
basis in your stock. If the amount of the distribution also exceeds your
adjusted basis, this excess amount will be treated as gain from the sale or
exchange of your stock as described below. If we cannot determine at the time we
make a distribution whether the distribution will exceed our current and
accumulated earnings and profits, the distribution will be subject to
withholding at the same rate as dividends. These withheld amounts, however, will
be refundable or creditable against your federal tax liability if we
subsequently determine that the distribution was, in fact, in excess of our
earnings and profits. If you receive a distribution that is treated as being
effectively connected with your conduct of a trade or business within the United
States, the distribution will be subject to the federal income tax on net income
that applies to U.S. persons generally, and may be subject to the branch profits
tax if you are a corporation.
Distributions that we make to you and designate as capital gains
dividends, other than those attributable to the disposition of a U.S. real
property interest, generally will not be subject to federal income taxation,
unless:
o Your investment in our stock is effectively connected with your
conduct of a trade or business within the United States; or
26
o You are a nonresident alien individual who is present in the
United States for 183 days or more in the taxable year and other
requirements are met.
Distributions that are attributable to a disposition of U.S. real
property interests (which term excludes interests in mortgage loans) are subject
to income and withholding taxes pursuant to the Foreign Investment in Real
Property Act of 1980, or FIRPTA, and may also be subject to branch profits tax
if you are a corporation that is not entitled to treaty relief or exemption. We
do not, however, anticipate recognizing any gain attributable to the disposition
of U.S. real property interests, as defined by FIRPTA. Existing Treasury
Regulations interpreting the FIRPTA provisions of the Code could be read as
imposing a withholding tax at a rate of 35% on all of our capital gain dividends
even if no portion of the capital gains we recognize during the year are
attributable to our disposition of a U.S. real property interest. With our
taxable year beginning January 1, 2005, however, a foreign investor that does
not own more than 5% of our stock at any time during the taxable year will not
be subject to the FIRPTA rules with respect to any of our distributions.
Gain on Disposition. You generally will not be subject to federal income
tax on gain recognized on a sale or other disposition of our stock unless:
o The gain is effectively connected with your conduct of a trade or
business within the United States; or
o You are a nonresident alien individual who holds our stock as a
capital asset and are present in the United States for 183 or more
days in the taxable year and other requirements are met.
Gain that is effectively connected with your conduct of a trade or
business within the United States will be subject to the federal tax on net
income that applies to U.S. persons generally and may be subject to the branch
profits tax if you are a corporation. However, these effectively connected gains
will generally not be subject to withholding. We urge you to consult applicable
treaties, which may provide for different rules.
Under FIRPTA, you could be subject to tax on gain recognized from a sale
or other disposition of your stock if we were to both (1) hold U.S. real
property interests in excess of certain thresholds and (2) fail to qualify as a
domestically-controlled REIT. We do not expect to hold U.S. real property
interests in excess of the threshold.
Information Reporting and Backup Withholding Tax. The information
reporting and backup withholding tax requirements (discussed above) will
generally not apply to foreign holders in the case of distributions treated as
(1) dividends subject to the 30% (or lower treaty rate) withholding tax
(discussed above), or (2) capital gain dividends. Also, as a general matter,
backup withholding and information reporting will not apply to the payment of
proceeds from shares sold by or through a foreign office of a foreign broker.
However, in some cases (for example, a sale of shares through the foreign office
of a U.S. broker), information reporting is required unless the foreign holder
certifies under penalty of perjury that it is a foreign holder, or otherwise
establishes an exemption. A foreign shareholder may satisfy this requirement by
using an appropriately prepared Form W-8BEN.
27
Federal Estate Taxes. In general, if an individual who is not a citizen
or resident (as defined in the Code) of the United States owns (or is treated as
owning) our stock at the date of his or her death, such stock will be included
in the individual's gross estate for federal estate tax purposes, unless an
applicable treaty provides otherwise.
Taxable Mortgage Pools
A taxable mortgage pool is any entity (or in certain cases, a portion of
an entity) other than a REMIC or a financial asset securitization investment
trust that has the following characteristics:
1. Substantially all (generally, more than 80%) of the assets of such
entity consist of debt obligations and more than 50% of such debt
obligations are real estate mortgages;
2. Such entity issues two or more classes of debt obligations having
different maturities; and
3. The timing and amount of payments or projected payments on the
debt obligations issued by the entity are determined in large part
by the timing and amount of payments the entity receives on the
debt obligations it holds as assets.
If a REIT is a taxable mortgage pool, or if a REIT owns a qualified REIT
subsidiary that is a taxable mortgage pool, then a portion of the REIT's income
will be treated as excess inclusion income and a portion of the dividends the
REIT pays to its shareholders will be considered to be excess inclusion income.
You cannot offset excess inclusion income with net operating losses or otherwise
allowable deductions. Moreover, if you are a tax-exempt shareholder, such as a
domestic pension fund, you must treat excess inclusion income as unrelated
business taxable income. If you are not a U.S. shareholder, your dividend
distributions may be subject to withholding tax, without regard to any exemption
or reduction in rate that might otherwise apply, with respect to your share of
excess inclusion income. The manner in which excess inclusion income would be
allocated among shares of different classes of our stock or how such income is
to be reported to shareholders is not clear under current law.
Although we leverage our investments in agency certificates, we believe
that our financing transactions do not cause any portion of our assets to be
treated as a taxable mortgage pool and we do not expect that any portion of our
dividend distributions will be treated as excess inclusion income.
State and Local Taxes
You may be subject to state or local taxation in various jurisdictions,
including those in which you transact business or reside. The state and local
tax treatment that applies to you may not conform to the federal income tax
consequences discussed above. Consequently, we urge you to consult your tax
advisor regarding the effect of state and local tax laws.
28
PLAN OF DISTRIBUTION
We may sell the securities offered pursuant to this prospectus and any
accompanying prospectus supplements to or through one or more underwriters or
dealers or we may sell the securities to investors directly or through agents.
Each prospectus supplement, to the extent applicable, will describe the number
and terms of the securities to which such prospectus supplement relates, the
name or names of any underwriters or agents with whom we have entered into
arrangements with respect to the sale of such securities, the public offering or
purchase price of such securities and the net proceeds we will receive from such
sale. Any underwriter or agent involved in the offer and sale of the securities
will be named in the applicable prospectus supplement. Underwriters and agents
in any distribution contemplated hereby may from time to time include UBS
Securities LLC. We may sell securities directly to investors on our own behalf
in those jurisdictions where we are authorized to do so.
Underwriters may offer and sell the securities at a fixed price or
prices, which may be changed, at market prices prevailing at the time of sale,
at prices related to the prevailing market prices or at negotiated prices. We
also may, from time to time, authorize dealers or agents to offer and sell these
securities upon such terms and conditions as may be set forth in the applicable
prospectus supplement. In connection with the sale of any of these securities,
underwriters may receive compensation from us in the form of underwriting
discounts or commissions and may also receive commissions from purchasers of the
securities for whom they may act as agent. Underwriters may sell the securities
to or through dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters or commissions from
the purchasers for which they may act as agents.
Shares may also be sold in one or more of the following transactions: (a)
block transactions (which may involve crosses) in which a broker-dealer may sell
all or a portion of the shares as agent but may position and resell all or a
portion of the block as principal to facilitate the transaction; (b) purchases
by a broker-dealer as principal and resale by the broker-dealer for its own
account pursuant to a prospectus supplement; (c) a special offering, an exchange
distribution or a secondary distribution in accordance with applicable New York
Stock Exchange or other stock exchange rules; (d) ordinary brokerage
transactions and transactions in which a broker-dealer solicits purchasers; (e)
sales "at the market" to or through a market maker or into an existing trading
market, on an exchange or otherwise, for shares; and (f) sales in other ways not
involving market makers or established trading markets, including direct sales
to purchasers. Broker-dealers may also receive compensation from purchasers of
the shares which is not expected to exceed that customary in the types of
transactions involved.
Any underwriting compensation paid by us to underwriters or agents in
connection with the offering of these securities, and any discounts or
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in the applicable prospectus supplement. Dealers and agents
participating in the distribution of the securities may be deemed to be
underwriters, and any discounts and commissions received by them and any profit
realized by them on resale of the securities may be deemed to be underwriting
discounts and commissions.
29
Underwriters, dealers and agents may be entitled, under agreements
entered into with us, to indemnification against and contribution toward certain
civil liabilities, including liabilities under the Securities Act of 1933.
Unless otherwise set forth in the accompanying prospectus supplement, the
obligations of any underwriters to purchase any of these securities will be
subject to certain conditions precedent.
In connection with the offering of the securities hereby, certain
underwriters, and selling group members and their respective affiliates, may
engage in transactions that stabilize, maintain or otherwise affect the market
price of the applicable securities. These transactions may include stabilization
transactions effected in accordance with Rule 104 of Regulation M promulgated by
the SEC pursuant to which these persons may bid for or purchase securities for
the purpose of stabilizing their market price.
The underwriters in an offering of securities may also create a "short
position" for their account by selling more securities in connection with the
offering than they are committed to purchase from us. In that case, the
underwriters could cover all or a portion of the short position by either
purchasing securities in the open market following completion of the offering of
these securities or by exercising any over-allotment option granted to them by
us. In addition, the managing underwriter may impose "penalty bids" under
contractual arrangements with other underwriters, which means that they can
reclaim from an underwriter (or any selling group member participating in the
offering) for the account of the other underwriters, the selling concession for
the securities that are distributed in the offering but subsequently purchased
for the account of the underwriters in the open market. Any of the transactions
described in this paragraph or comparable transactions that are described in any
accompanying prospectus supplement may result in the maintenance of the price of
the securities at a level above that which might otherwise prevail in the open
market. None of the transactions described in this paragraph or in an
accompanying prospectus supplement are required to be taken by any underwriters
and, if they are undertaken, may be discontinued at any time.
Our common stock is listed on the New York Stock Exchange under the
symbol "NLY" and our Series A Preferred Stock is listed on the New York Stock
Exchange under the symbol "NLY PrA." All other series of our preferred stock
other than the Series A Preferred Stock and our Series B Preferred Stock will be
new issues of securities with no established trading market and may or may not
be listed on a national securities exchange. Any underwriters or agents to or
through which securities are sold by us may make a market in the securities, but
these underwriters or agents will not be obligated to do so and any of them may
discontinue any market making at any time without notice. No assurance can be
given as to the liquidity of or trading market for any securities sold by us.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, us and our affiliates in the ordinary course of business.
Underwriters have from time to time in the past provided, and may from time to
time in the future provide, investment banking services to us for which they
have in the past received, and may in the future receive, customary fees. We
have a secured repurchase credit facility with UBS Securities LLC.
EXPERTS
The financial statements and management's report on the effectiveness of
internal control over financial reporting incorporated in this prospectus by
30
reference from our Annual Report on Form 10-K have been audited by Deloitte &
Touche LLP, an independent registered public accounting firm, as stated in their
report, which is incorporated herein by reference, and have been so incorporated
in reliance upon the report of such firm given upon their authority as experts
in accounting and auditing.
LEGAL MATTERS
The validity of the securities offered hereby is being passed upon for us
by Kirkpatrick & Lockhart Nicholson Graham LLP. The opinion of counsel described
under the heading "Federal Income Tax Considerations" is being rendered by McKee
Nelson LLP. This opinion is subject to various assumptions and is based on
current tax law.
WHERE YOU CAN FIND MORE INFORMATION ON ANNALY
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. The public may read any materials we file with the SEC
at the SEC's Public Reference Room at 100 F Street, N.E, Washington, D.C. 20549.
The public may obtain information on the operation of the Public Reference Room
by calling the SEC at 1-800-SEC-0330. The SEC maintains an Internet site that
contains reports, proxy and information statements, and other information
regarding issuers that file electronically with the SEC. The address of that
site is http://www.sec.gov. Our common stock is listed on the New York Stock
Exchange under the symbol "NLY" and our Series A Preferred Stock is listed on
the New York Stock Exchange under the symbol "NLY PrA," and all such reports,
proxy statements and other information filed by us with the New York Stock
Exchange may be inspected at the New York Stock Exchange's offices at 20 Broad
Street, New York, New York 10005. Finally, we also maintain an Internet site
where you can find additional information. The address of our Internet site is
http://www.annaly.com. All internet addresses provided in this prospectus or in
any accompanying prospectus supplement are for informational purposes only and
are not intended to be hyperlinks. In addition, the information on our internet
site is not a part of, and is not incorporated or deemed to be incorporated by
reference in, this prospectus or any accompanying prospectus supplement or other
offering materials. Accordingly, no information in our or any of these other
internet addresses is included herein or incorporated or deemed to be
incorporated by reference herein.
We have filed a registration statement, of which this prospectus is a
part, covering the securities offered hereby. As allowed by SEC rules, this
prospectus does not contain all of the information set forth in the registration
statement and the exhibits, financial statements and schedules thereto. We refer
you to the registration statement, the exhibits, financial statements and
schedules thereto for further information. This prospectus is qualified in its
entirety by such other information.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" information into this
prospectus, which means that we can disclose important information to you by
referring you to another document filed separately with the SEC. The information
incorporated by reference is deemed to be part of this prospectus, except for
any information superseded by information in this prospectus. We have filed the
31
documents listed below with the SEC (File No. 1-13447) under the Exchange Act,
and these documents are incorporated herein by reference:
- Our Annual Report on Form 10-K for the year ended December 31,
2005 as filed on March 13, 2006;
- Our Current Report on Form 8-K filed on April 7, 2006;
- Our Current Report on Form 8-K filed on April 10, 2006;
- Our Current Report on Form 8-K filed on April 21, 2006;
- Our Quarterly Report on Form 10-Q for the quarter ended March 31,
2004 filed on May 9, 2006;
- Description of our common stock included in our Registration
Statement on Form 8-A, filed on October 6, 1997;
- Description of our Series A Preferred Stock included in our
Registration Statement on Form 8-A, filed April 1, 2004; and
- Description of our Series B Preferred Stock included in our
Registration Statement on Form 8-A, filed April 12, 2006.
All documents we file pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act after the date of this prospectus and prior to the termination
of the offering of the securities to which this prospectus relates (other than
information in such documents that is not deemed to be filed) shall be deemed to
be incorporated by reference into this prospectus and to be part hereof from the
date of filing of those documents. All documents we file pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of the initial
registration statement that contains this prospectus and prior to the
effectiveness of the registration statement shall be deemed to be incorporated
by reference into this prospectus and to be part hereof from the date of filing
those documents.
Any statement contained in this prospectus or in a document incorporated
by reference shall be deemed to be modified or superseded for all purposes to
the extent that a statement contained in this prospectus or in any other
document which is also incorporated by reference modifies or supersedes that
statement.
We will provide to each person, including any beneficial owner, to whom a
copy of this prospectus is delivered, a copy of any or all of the information
that has been incorporated by reference in this prospectus but not delivered
with this prospectus (other than the exhibits to such documents which are not
specifically incorporated by reference herein); we will provide this information
at no cost to the requester upon written or oral request to Investor Relations,
Annaly Mortgage Management, Inc., 1211 Avenue of the Americas, Suite 2902, New
York, New York 10036, telephone number (212) 696-0100.
32
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The fees and expenses to be paid in connection with the distribution of
the securities being registered hereby are estimated as follows:
Registration fee................................................ *
Legal fees and expenses (including Blue Sky fees)............... **
Accounting fees and expenses.................................... **
Printing........................................................ **
Miscellaneous................................................... **
Total.................................................... **
* Deferred pursuant to Rules 456(b) and 457(r).
** Estimated expenses are not presently known.
Item 15. Indemnification of Directors and Officers.
Section 2-418 of the Corporations and Associations Article of the
Annotated Code of Maryland (or Maryland General Corporation Law) provides that a
Maryland corporation may indemnify any director or officer of a corporation who
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 or officer was
material to the matter giving rise to the proceeding and was the result of
active and deliberate dishonesty; or the person actually received an improper
personal benefit in money, property or services; or, in the case of any criminal
proceeding, the person 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 or
officer 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 or officer shall have been 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 the
manner prescribed by the law, that indemnification is permissible in the
circumstances because the director or officer has met the applicable standard of
conduct. On the other hand, unless limited by the corporation's charter, the
director or officer must be indemnified for expenses 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 the corporation may advance
expenses to, or obtain insurance or similar protection for, directors and
officers.
Our articles of incorporation, as amended, provide that our directors and
officers will, and our employees and agents in the discretion of our Board of
Directors may, be indemnified to the fullest extent required or permitted from
time to time by the laws of Maryland.
II-1
The Maryland General Corporation Law 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) it is proved that the person actually received an improper
benefit or profit in money, property or services for the amount of the benefit
or profit in money, property or services actually received, 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. Our articles of incorporation, as amended, contain a provision
providing for elimination of the liability of our directors and officers to us
or our stockholders for money damages to the maximum extent permitted by
Maryland law.
We maintain policies of insurance under which our directors and officers
are insured, within the limits and subject to the limitations of the policies,
against expenses in connection with the defense of actions, suits or proceedings
resulting from such director or officer being or having been a director or
officer, and certain liabilities which might be imposed as a result of these
actions, suits or proceedings.
Item 16. Exhibits.
Exhibit Exhibit Description
Number
4.1 Specimen Common Stock Certificate (incorporated by reference to
Exhibit 4.1 to Amendment No. 1 to the Registrant's Registration
Statement on Form S-11 (Registration No. 333-32913) filed with
the SEC on September 17, 1997).
4.2 Specimen Preferred Stock Certificate (incorporated by reference
to Exhibit 4.2 to the Registrant's Registration Statement on
Form S-3 (Registration Statement No. 333-74618) filed with the
SEC on December 5, 2001).
4.3 Specimen Series A Preferred Stock Certificate (incorporated by
reference to the Registrant's Registration Statement on Form 8-A
filed with the SEC on April 1, 2004).
4.4 Specimen Series B Preferred Stock Certificate (incorporated by
reference to the Registrant's Registration Statement on Form 8-A
filed with the SEC on April 12, 2006).
5.1 Opinion of Kirkpatrick & Lockhart Nicholson Graham LLP
(including consent of such firm).
8.1 Tax Opinion of McKee Nelson LLP (including consent of such
firm).
12.1 Statements re: Computation of Ratios.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Kirkpatrick & Lockhart Nicholson Graham LLP (included
in Exhibits 5.1).
23.3 Consent of McKee Nelson LLP (included in Exhibit 8.1).
II-2
24.1 Power of Attorney (included on the signature page of the
Registration Statement).
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 of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in this registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(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 this registration statement;
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this
section do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed with
or furnished to the Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any 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.
II-3
(4) That, for purposes of determining liability under the Securities
Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule
424(b)(3) shall be deemed to be part of the registration
statement as of the date the filed prospectus was deemed
part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the
purpose of providing the information required by Section
10(a) of the Securities Act of 1933 shall be deemed to be
part of and included in the registration statement as of
the earlier of the date such form of prospectus is first
used after effectiveness or the date of the first contract
of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date
an underwriter, such date shall be deemed to be a new
effective date of the registration statement relating to
the securities in the registration statement to which that
prospectus relates, and the offering of such securities at
that time shall be deemed to be the initial bona fide
offering thereof. Provided, however, that no statement made
in a registration statement or prospectus that is part of
the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time
of contract of sale prior to such effective date, supersede
or modify any statement that was made in the registration
statement or prospectus that was part of the registration
statement or made in any such document immediately prior to
such effective date.
(5) That, for the purpose of determining liability of the registrant
under the Securities Act of 1933 to any purchaser in the initial
distribution of the securities, the undersigned registrant
undertakes that in a primary offering of securities of the
undersigned registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the securities
to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the
undersigned registrant will be a seller to the purchaser and will
be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed
pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or
used or referred to by the undersigned registrant;
II-4
(iii) The portion of any other free writing prospectus relating
to the offering containing material information about the
undersigned registrant or its securities provided by or on
behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering
made by the undersigned registrant to the purchaser.
(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 that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered,
the registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 New York, State of New York, on May 22, 2006.
ANNALY MORTGAGE MANAGEMENT, INC.
By: /s/ Michael A.J. Farrell
-----------------------------------
Michael A.J. Farrell
Chairman of the Board of Directors,
Chief Executive Officer and President
Each person whose signature appears below hereby authorizes Michael A.J.
Farrell and Wellington J. Denahan, and each of them, as attorney-in-fact, to
sign on his or her behalf, individually and in each capacity stated below, any
amendment, including post-effective amendments to this registration statement,
and to file the same, with all exhibits thereto, and all documents in connection
therewith, with the Securities and Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
Signatures Title Date
---------- ----- ----
/s/ Michael A.J. Farrell Chairman of the Board of May 22, 2006
------------------------ Directors, Chief Executive
Michael A.J. Farrell Officer, President and Director
(principal executive officer)
/s/ Kathryn F. Fagan Chief Financial Officer and May 22, 2006
-------------------- Treasurer (principal financial
Kathryn F. Fagan and accounting officer)
/s/ Kevin P. Brady Director May 22, 2006
------------------
Kevin P. Brady
/s/ Jonathan D. Green Director May 22, 2006
---------------------
Jonathan D. Green
/s/ John A. Lambiase Director May 22, 2006
--------------------
John A. Lambiase
II-6
/s/ Donnell A. Segalas Director May 22, 2006
----------------------
Donnell A. Segalas
/s/ E. Wayne Nordberg Director May 22, 2006
---------------------
E. Wayne Nordberg
/s/ Wellington J. Denahan-Norris Vice Chairman of the May 22, 2006
-------------------------------- Board of Directors and
Wellington J. Denahan-Norris Director
II-7
EXHIBIT INDEX
Exhibit Exhibit Description
Number
4.1 Specimen Common Stock Certificate (incorporated by reference to
Exhibit 4.1 to Amendment No. 1 to the Registrant's Registration
Statement on Form S-11 (Registration No. 333-32913) filed with
the SEC on September 17, 1997).
4.2 Specimen Preferred Stock Certificate (incorporated by reference
to Exhibit 4.2 to the Registrant's Registration Statement on
Form S-3 (Registration Statement No. 333-74618) filed with the
SEC on December 5, 2001).
4.3 Specimen Series A Preferred Stock Certificate (incorporated by
reference to the Registrant's Registration Statement on Form 8-A
filed with the SEC on April 1, 2004).
4.4 Specimen Series B Preferred Stock Certificate (incorporated by
reference to the Registrant's Registration Statement on Form 8-A
filed with the SEC on April 12, 2006).
5.1 Opinion of Kirkpatrick & Lockhart Nicholson Graham LLP
(including consent of such firm).
8.1 Tax Opinion of McKee Nelson LLP (including consent of such
firm).
12.1 Statements re: Computation of Ratios.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Kirkpatrick & Lockhart Nicholson Graham LLP (included
in Exhibits 5.1).
23.3 Consent of McKee Nelson LLP (included in Exhibit 8.1).
24.1 Power of Attorney (included on the signature page of the
Registration Statement).