EXHIBIT 3.1
ANTHRACITE MORTGAGE CAPITAL, INC.
ARTICLES OF AMENDMENT AND RESTATEMENT
Anthracite Mortgage Capital, Inc., a Maryland corporation (the
"Corporation"), hereby certifies as follows:
FIRST: The Corporation desires to amend and restate its
Charter as currently in effect.
SECOND: The amendments to and the restatement of the Charter of
the Corporation set forth herein shall become effective on the date and at
the time that these Articles of Amendment and Restatement are filed with,
and approved and accepted for record by, the Maryland State Department of
Assessments and Taxation in accordance with the Maryland General
Corporation Law.
THIRD: The following are all of the provisions of the Charter
of the Corporation currently in effect and as amended hereby:
ARTICLE I
NAME
The name of the corporation (the "Corporation") is:
Anthracite Capital, Inc.
ARTICLE II
PURPOSE
The purpose for which the Corporation is formed is to engage in
any lawful act or activity including, without limitation or obligation,
engaging in business as a real estate investment trust ("REIT") under
Sections 856 through 860 of the Internal Revenue Code of 1986, as amended,
or any successor statute (the "Code") for which corporations may be
organized under the general laws of the State of Maryland as now or
hereafter in force.
ARTICLE III
PRINCIPAL OFFICE IN STATE AND RESIDENT AGENT
The address of the principal office of the Corporation in the
State of Maryland is c/o The Prentice-Hall Corporation System Maryland, 11
East Chase Street, Baltimore, Maryland 21202. The name and address of the
resident agent of the Corporation in the State of Maryland is The
Prentice-Hall Corporation System Maryland, 11 East Chase Street, Baltimore,
Maryland 21202. The resident agent is a Maryland corporation.
ARTICLE IV
PROVISIONS FOR DEFINING, LIMITING
AND REGULATING CERTAIN POWERS OF THE
CORPORATION AND OF THE STOCKHOLDERS AND DIRECTORS
Section 4.1 Number of Directors.
4.1.1 Number of Directors. The business and affairs of the
Corporation shall be managed under the direction of the Board of Directors.
The number of directors of the Corporation shall be no less than three and
no more than nine. The number of directors may be increased or decreased
pursuant to the Bylaws, but shall never be less than the minimum number
required by the General Laws of the State of Maryland now or hereafter in
force. The names of the directors who shall serve until the first annual
meeting of stockholders and until their successors are elected and
qualified are Laurence D. Fink, Hugh R. Frater, Donald G. Drapkin, Carl
Guether, Jeffrey C. Keil and Kendrick R. Wilson, III.
The directors shall be divided into three classes as follows:
(1) the term of office of Class I shall be until the 1998 annual meeting of
stockholders and until their successors shall be elected and have qualified
and thereafter shall be for three years and until their successors shall be
elected and have qualified; (2) the term of office of Class II shall be
until the 1999 annual meeting of stockholders and until their successors
shall be elected and have qualified and thereafter shall be for three years
and until their successors shall be elected and have qualified; and (3) the
term of office of Class III shall be until the 2000 annual meeting of
stockholders and until their successors shall be elected and have qualified
and thereafter shall be for three years and until their successors shall be
elected and have qualified. If the number of directors is changed, any
increase or decrease shall be apportioned among the classes so as to
maintain the number of directors in each class as nearly equal as possible.
A director elected by stockholders shall hold office until the annual
meeting for the year in which his or her term expires and until his or her
successor shall be elected and shall qualify, subject, however, to prior
death, resignation, retirement, disqualification or removal from office.
4.1.2 Election by Preferred Stockholders. Whenever the holders
of any one or more series of preferred stock of the Corporation shall have
the right, voting separately as a class, to elect one or more directors of
the Corporation, the Board of Directors shall consist of said directors so
elected in addition to the number of directors fixed as provided in
paragraph 4.1.1 of this Article IV or in the Bylaws. Notwithstanding the
foregoing, and except as otherwise may be required by law, whenever the
holders of any one or more series of preferred stock of the Corporation
shall have the right, voting separately as a class, to elect one or more
directors of the Corporation, the terms of the director or directors
elected by such holders shall expire at the next succeeding annual meeting
of stockholders.
Section 4.2 Unaffiliated Board of Directors.
4.2.1 Unaffiliated Majority. Notwithstanding anything herein to
the contrary, at all times from and after the first annual meeting of
stockholders (except during a period not to exceed one hundred twenty (120)
days following the death, resignation, incapacity or removal from office of
a director prior to expiration of the director's term of office), a
majority of the Board of Directors shall be "Unaffiliated Directors."
"Unaffiliated Director" shall mean any director who (a) does not own
greater than a de minimis interest in the "Manager" (as defined below) or
any of its "Affiliates," (as defined below) other than the Corporation and
any Person controlled by the Corporation, and who (b) within the last two
years has not directly or indirectly (i) been an officer of or employed by
the Corporation or the Manager or any of their Affiliates, (ii) been a
director of the Manager or any of its Affiliates other than the Corporation
and any Person controlled by the Corporation, (iii) performed more than a
de minimis amount of services for the Manager or any of its Affiliates or
(iv) had any material business or professional relationship with the
Manager or any of its Affiliates other than as a director of the
Corporation or any Person controlled by the Corporation.
4.2.2 Removal of Directors. Directors may be removed for cause,
by the affirmative vote of two-thirds of all the votes entitled to be cast
for the election of directors.
4.2.3 Manager. The term "Manager" means the Person engaged by
the Corporation pursuant to a Management Agreement (as that term is defined
in Section 5.10) to advise the Board of Directors and be responsible for
directing the day-to-day business affairs of the Corporation, including any
Person to which the Person so engaged subcontracts substantially all such
functions.
4.2.4 Affiliate. "Affiliate" of a Person shall mean any Person
directly or indirectly controlling, controlled by, or under common control
with such other Person.
4.2.5 Indirect Relationship. For the purposes of this Section
4.2, an indirect relationship shall include a direct relationship by a
director's spouse, children, parents or, siblings.
4.2.6 Business Relationship. For the purposes of this Section
4.2, an interest, service or business relationship automatically is not de
minimis or is material, as the case may be per se if the interest or gross
revenue involved exceeds 5% of the director's or other Person's (i) annual
gross revenue from all sources in either of the last two years or (ii) net
worth, on a fair market value basis.
4.2.7 Person. "Person" means and includes any natural person,
corporation, partnership, association, trust, limited liability company or
any other legal entity.
Section 4.3 Extraordinary Actions. Notwithstanding any provision of law
requiring the authorization of any action by a greater proportion than a
majority of the total number of shares of all classes of capital stock or
of the total number of shares of any class of capital stock, such action
shall be valid and effective if authorized by an affirmative vote of the
holders of a majority of the total number of shares of all classes
outstanding and entitled to vote thereon, except as otherwise provided in
these Articles.
Section 4.4 Authorization by Board of Stock Issuance. The Board of
Directors may authorize the issuance from time to time of shares of stock
of the Corporation of any class or series, whether now or hereafter
authorized, or securities or rights convertible into shares of its stock of
any class or series, whether now or hereafter authorized, for such
consideration as the Board of Directors may deem advisable (or without
consideration in the case of a stock split or stock dividend), subject to
such restrictions or limitations, if any, as may be set forth in these
Articles.
Section 4.5 Preemptive Rights. No holder of any stock or any other
securities of the Corporation, whether now or hereafter authorized, shall
have any preemptive right to subscribe for or purchase any stock or any
other securities of the Corporation other than such, if any, as the Board
of Directors, in its sole discretion, may determine and at such price or
prices and upon such other terms as the Board of Directors, in its sole
discretion, may fix; and any stock or other securities which the Board of
Directors may determine to offer for subscription may, as the Board of
Directors in its sole discretion shall determine, be offered to the holders
of any class, series or type of stock or other securities at the time
outstanding to the exclusion of the holders of any or all other classes,
series or types of stock or other securities at the time outstanding.
Section 4.6 Indemnification.
4.6.1 The Corporation shall indemnify and hold harmless and,
without requiring a determination of the ultimate entitlement to
indemnification, pay reasonable expenses in advance of the final
disposition of any proceeding to (A) its present and former directors and
officers, whether serving the Corporation or at its request any other
entity, to the full extent required or permitted by the General Laws of the
State of Maryland now or hereafter in force, including the advance of
expenses under the procedures and to the full extent permitted by law and
(B) other employees and agents to such extent as shall be authorized by the
Board of Directors or the Corporation's Bylaws and be permitted by law. The
foregoing rights of indemnification shall not be exclusive of any other
rights to which those seeking indemnification may be entitled. The Board of
Directors may take such action as is necessary to carry out these
indemnification provisions and is expressly empowered to adopt, approve and
amend from time to time such bylaws, resolutions or contracts implementing
such provisions or such further indemnification arrangements as may be
permitted by law.
4.6.2 Any indemnification, or payment of expenses in advance of
the final disposition of any proceeding, shall be made promptly, and in any
event within 60 days, upon the written request of the director or officer
entitled to seek indemnification (the "Indemnified Party"). The right to
indemnification and advances hereunder shall be enforceable by the
Indemnified Party in any court of competent jurisdiction, if (i) the
Corporation denies such request, in whole or in part, or (ii) no
disposition thereof is made within 60 days. The Indemnified Party's costs
and expenses incurred in connection with successfully establishing his or
her right to indemnification, in whole or in part, in any such action shall
also be reimbursed by the Corporation. It shall be a defense to any action
for advance for expenses that (a) a determination has been made that the
facts then known to those making the determination would preclude
indemnification or (b) the Corporation has not received both (i) an
undertaking as required by law to repay such advances in the event it shall
ultimately be determined that the standard of conduct has not been met and
(ii) a written affirmation by the Indemnified Party of such Indemnified
Party's good faith belief that the standard of conduct necessary for
indemnification by the Corporation has been met.
4.6.3 No amendment of these Articles or repeal of any of its
provisions shall limit or eliminate the right to indemnification provided
hereunder with respect to acts or omissions occurring prior to such
amendment or repeal.
Section 4.7 Determinations by Board. The determination as to any of the
following matters, made in good faith by or pursuant to the direction of
the Board of Directors consistent with these Articles and in the absence of
actual receipt of an improper benefit in money, property or services or
active and deliberate dishonesty established by a court, shall be final and
conclusive and shall be binding upon the Corporation and every holder of
shares of its stock: the amount of the net income of the Corporation for
any period and the amount of assets at any time legally available for the
payment of dividends, redemption of its stock or the payment of other
distributions on its stock; the amount of paid-in surplus, net assets,
other surplus, annual or other net profit, net assets in excess of capital,
undivided profits or excess of profits over losses on sales of assets; the
amount, purpose, time of creation, increase or decrease, alteration or
cancellation of any reserves or charges and the propriety thereof (whether
or not any obligation or liability for which such reserves or charges shall
have been created shall have been paid or discharged); the fair value, or
any sale, bid or asked price to be applied in determining the fair value,
of any asset owned or held by the Corporation; any matters relating to the
acquisition, holding and disposition of any assets by the Corporation;
whether and to what extent and at what times and places and under what
conditions and regulations the books, accounts and documents of the
Corporation shall be open to the inspection of stockholders, except as
otherwise provided by statute and, except as so provided, no stockholder
shall have any right to inspect any book, account or document of the
Corporation unless authorized to do so by resolution of the Board of
Directors.
Section 4.8 REIT Qualification. The Corporation shall seek to elect and
maintain status as a REIT under the Code. The Board of Directors shall use
its reasonable best efforts to ensure that the Corporation satisfies the
requirements for qualification as a REIT under the Code, including, but not
limited to, the ownership of its outstanding stock, the nature of its
assets, the sources of its income, and the amount and timing of
distributions to its stockholders. The Board of Directors shall take no
action to disqualify the Corporation as a REIT or to otherwise revoke the
Corporation's election to be taxed as a REIT without the affirmative vote
of not less than two-thirds of all of the votes ordinarily entitled to be
cast in the election of directors, voting together as a single class.
Section 4.9 Dissolution. The dissolution of the Corporation shall be
approved by the affirmative vote of not less than two-thirds of all of the
votes ordinarily entitled to be cast in the election of directors, voting
together as a single class; and the affirmative vote of not less than two-
thirds of the votes of any series or class of stock expressly granted a
series or class vote on the dissolution of the Corporation.
Section 4.10 Management Agreements. Subject to such approval of the
Unaffiliated Directors and other conditions, if any, as may be required by
any applicable statute, rule or regulation, the Board of Directors may
engage a Manager to advise the Board of Directors and be responsible for
directing the day-to-day affairs of the Corporation under the supervision
of the Board of Directors pursuant to a written agreement (a "Management
Agreement"). The approval of any Management Agreement and the renewal or
termination thereof shall require the affirmative vote of a majority of the
Unaffiliated Directors.
Section 4.11 Amendment of Certain Provisions. Notwithstanding any other
provision of these Articles or the Bylaws of the Corporation, the
provisions of Sections 4.6 (other than 4.6.3) 4.8, 4.9, 4.10 and 4.11 shall
not be amended, altered, changed or repealed without the affirmative vote
of not less than two-thirds of all of the votes ordinarily entitled to be
cast in the election of directors, voting together as a single class.
ARTICLE V
STOCK
Section 5.1 Authorized Shares. The total number of shares of capital
stock of all classes which the Corporation has authority to issue is five
hundred million (500,000,000) shares of capital stock, of which four
hundred million (400,000,000) shall be shares of common stock, par value
one tenth of one cent ($.001) per share, amounting in aggregate par value
to Four Hundred Thousand Dollars ($400,000), and one hundred million
(100,000,000) shall be shares of preferred stock, par value one tenth of
one cent ($.001) per share, amounting in aggregate par value to One Hundred
Thousand Dollars ($100,000). The total par value of all shares of capital
stock which the Corporation has authority to issue is $500,000. The Board
of Directors may classify and reclassify any unissued shares of capital
stock, whether now or hereafter authorized, by setting or changing in any
one or more respects the preferences, conversion or other rights, voting
powers, restrictions, limitations as to dividends, qualifications or terms
or conditions of redemption of such shares. The Board of Directors of the
Corporation may from time to time issue shares of Preferred Stock, in such
series and with such preferences, conversion or other rights, voting
powers, restrictions, limitations as to dividends, qualifications or other
provisions as may be fixed by the Board of Directors.
Section 5.2 Common Stock. Subject to Article VI, the following is a
description of the preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualifications and terms and
conditions of redemption of the Common Stock of the Corporation:
5.2.1 Voting Rights. Each share of Common Stock shall have one
vote, and shall have no preference, conversion, exchange, preemptive or
cumulative voting rights. Except as otherwise provided in respect of any
class of stock hereafter classified or reclassified, the exclusive voting
power for all purposes shall be vested in the holders of the Common Stock.
Shares of Common Stock shall not have cumulative voting rights.
5.2.2 Dividends. Subject to the provisions of law, any
preferences of any class of stock hereafter classified or reclassified and
the provisions of any marketing obligations or guarantees thereof, incurred
by the Corporation, dividends, including dividends payable in shares of
another class of the Corporation's stock, may be paid ratably on the Common
Stock at such time and in such amounts as the Board of Directors may deem
advisable.
5.2.3 Distribution Upon Dissolution. In the event of any
liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, the holders of the Common Stock shall be
entitled, together with the holders of any other class of stock hereafter
classified or reclassified not having a preference on distributions in the
liquidation, dissolution or winding up of the Corporation, to share ratably
in the net assets of the Corporation remaining after payment or provision
for payment of the debts and other liabilities of the Corporation and the
amount to which the holders of any class of stock hereafter classified or
reclassified having a preference on distributions in the liquidation,
dissolution or winding up of the Corporation shall be entitled.
Section 5.3 Classification/Reclassification.
5.3.1 Powers of the Board of Directors. Subject to the
provisions of these Articles, the power of the Board of Directors to
classify and reclassify any of the shares of capital stock shall include,
without limitation, authority to classify or reclassify any unissued shares
of such stock into a class or classes of preferred stock, preference stock,
special stock or other stock, and to divide and classify shares of any
class into one or more series of such class, by determining, fixing, or
altering one or more of the following:
(a) The distinctive designation of such class or series and
the number of shares to constitute such class or series; provided that,
unless otherwise prohibited by the terms of such or any other class or
series, the number of shares of any class or series may be decreased by the
Board of Directors in connection with any classification or
reclassification of unissued shares and the number of shares of such class
or series may be increased by the Board of Directors in connection with any
such classification or reclassification, and any shares of any class or
series which have been redeemed, purchased, otherwise acquired or converted
into shares of Common Stock or any other class or series shall become part
of the authorized capital stock and be subject to classification and
reclassification as provided in this sub-paragraph.
(b) Whether or not and, if so, the rates, amounts and times
at which, and the conditions under which, dividends shall be payable on
shares of such class or series, whether any such dividends shall rank
senior or junior to or on a parity with the dividends payable on any other
class or series of stock, and the status of any such dividends as
cumulative, cumulative to a limited extent or non-cumulative and as
participating or non-participating.
(c) Whether or not shares of such class or series shall
have voting rights, in addition to any voting rights provided by law and,
if so, the terms of such voting rights.
(d) Whether or not shares of such class or series shall
have conversion or exchange privileges and, if so, the terms and conditions
thereof, including provision for adjustment of the conversion or exchange
rate in such events or at such times as the Board of Directors shall
determine.
(e) Whether or not shares of such class or series shall be
subject to redemption and, if so, the terms and conditions of such
redemption, including the date or dates upon or after which they shall be
redeemable and the amount per share payable in case of redemption, which
amount may vary under different conditions and at different redemption
dates; and whether or not there shall be any sinking fund or purchase
account in respect thereof, and if so, the terms thereof.
(f) The rights of the holders of shares of such class or
series upon the liquidation, dissolution or winding up of the affairs of,
or upon any distribution of the assets of, the Corporation, which rights
may vary depending upon whether such liquidation, dissolution or winding up
is voluntary or involuntary and, if voluntary, may vary at different dates,
and whether such rights shall rank senior or junior to or on a parity with
such rights of any other class or series of stock.
(g) Whether or not there shall be any limitations
applicable, while shares of such class or series are outstanding, upon the
payment of dividends or making of distributions on, or the acquisition of,
or the use of moneys for purchase or redemption of, any stock of the
Corporation, or upon any other action of the Corporation, including action
under this sub-paragraph, and, if so, the terms and conditions thereof.
(h) Any other preferences, rights, restrictions, including
restrictions on transferability, and qualifications of shares of such class
or series, not inconsistent with law and these Articles.
5.3.2 Ranking. For the purposes hereof and of any articles
supplementary to these Articles providing for the classification or
reclassification of any shares of capital stock or of any other Articles
document of the Corporation (unless otherwise provided in any such articles
or document), any class or series of stock of the Corporation shall be
deemed to rank:
(a) prior to another class or series either as to dividends
or upon liquidation, if and to the extent the holders of such class or
series shall be entitled to the receipt of dividends or of amounts
distributable on liquidation, dissolution or winding up, as the case may
be, in preference or priority to holders of such other class or series;
(b) on a parity with another class or series either as to
dividends or upon liquidation, whether or not the dividend rates, dividend
payment dates or redemption or liquidation price per share thereof be
different from those of such others, if and to the extent the holders of
such class or series of stock shall be entitled to receipt of dividends or
amounts distributable upon liquidation, dissolution or winding up, as the
case may be, in proportion to their respective dividend rates or redemption
or liquidation prices, without preference or priority over the holders of
such other class or series; and
(c) junior to another class or series either as to
dividends or upon liquidation, if and to the extent the rights of the
holders of such class or series shall be subject or subordinate to the
rights of the holders of such other class or series in respect of the
receipt of dividends or the amounts distributable upon liquidation,
dissolution or winding up, as the case may be.
Section 5.4 Articles and Bylaws. All persons who shall acquire stock in
the Corporation shall acquire the same subject to the provisions of these
Articles and the Bylaws of the Corporation.
ARTICLE VI
Section 6.1 Restrictions on Transfer.
6.1.1 Definitions. For purposes of this Article VII, the
following terms shall have the following meanings:
(a) "Beneficial Ownership" shall mean ownership of shares
of Equity Stock by a Person who would be treated as an owner of such shares
of Equity Stock either directly or indirectly through the application of
Section 544 of the Code, as modified by Section 856(h)(1)(B) of the Code.
The terms "Beneficial Owner," "Beneficially Owns," and "Beneficially Owned"
shall have correlative meanings.
(b) "Beneficiary" shall mean, with respect to any Trust,
one or more organizations described in each of Section 170(b)(1)(A) (other
than clauses (vii) or (viii) thereof) and Section 170(c)(2) of the Code
that are named by the Corporation as the beneficiary or beneficiaries of
such Trust, in accordance with the provisions of Section 6.2.1.
(c) "Board of Directors" shall mean the Board of Directors
of the Corporation.
(d) "Closing Price" on any date shall mean the last sale
price for such shares, regular way, or, in case no such sale takes place on
such a day, the average of the closing bid and asked prices, regular way,
for such shares, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted
to trading on the New York Stock Exchange or, if such shares are not listed
or admitted to trading on the New York Stock Exchange, as reported on the
principal consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange on which
such shares are listed or admitted to trading or, if such shares are not
listed or admitted to trading on any national securities exchange, the last
quoted price, or, if transaction prices are not reported, the average of
the high bid and low asked prices in the over-the-counter market, as
reported by the National Association of Securities Dealers, Inc. Automated
Quotation System, or, if such system is no longer in use, the principal
other automated quotation system that may then be in use or, if such shares
are not quoted by any such organization, the average of the closing bid and
asked prices as furnished by a professional market maker making a market in
such shares selected by the Corporation's Board of Directors or, in the
event that no trading price is available for such shares, the fair market
value of the shares, as determined in good faith by the Corporation's Board
of Directors.
(e) "Constructive Ownership" shall mean ownership of shares
of Equity Stock by a Person who would be treated as an owner of such shares
of Equity Stock either directly or indirectly through the application of
Section 318 of the Code, as modified by Section 856(d)(5) of the Code. The
terms "Constructive Owner," "Constructively Owns," and "Constructively
Owned" shall have correlative meanings.
(f) "Equity Stock" shall mean the Common Stock and the
preferred stock of the Corporation, including the Common Stock and the
preferred stock of the Corporation that are held as Shares-in-Trust in
accordance with the provisions of Section 6.2.
(g) "Initial Public Offering" means the sale of shares of
Common Stock pursuant to the Corporation's first effective registration
statement for such shares of Common Stock filed under the Securities Act of
1933, as amended.
(h) "Intended Transferee" shall mean, with respect to any
purported Transfer or Non-Transfer Event, any Person who, but for the
provisions of Section 6.1.3, would own record title to shares of Equity
Stock.
(i) "Market Price" on any date shall mean, with respect to
a class or series of outstanding shares of the Corporation's stock, the
Closing Price for such stock on such date.
(j) "Non-Transfer Event" shall mean an event other than a
purported Transfer that would cause any Person to Beneficially Own or
Constructively Own shares of Equity Stock, including, but not limited to,
the granting of any option or entering into any agreement for the sale,
transfer or other disposition of shares of Equity Stock or the sale,
transfer, assignment or other disposition of any securities or rights
convertible into or exchangeable for shares of Equity Stock.
(k) "Ownership Limit" shall mean (a) 9.8% of the
outstanding shares of Common Stock and (b) 9.8% in value or in number of
shares, whichever is more restrictive of the outstanding shares of any
class or series of preferred stock.
(l) "Person" shall mean an individual, corporation,
partnership, estate, trust, a portion of a trust permanently set aside for
or to be used exclusively for the purposes described in Section 642(c) of
the Code, association, private foundation within the meaning of Section
509(a) of the Code, joint stock company or other entity and also includes a
"group" as that term is used for purposes of Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended.
(m) "Restriction Termination Date" shall mean the first day
after the date of the Initial Public Offering on which (i) the Board of
Directors determines that it is no longer in the best interests of the
Corporation to attempt to, or continue to, qualify as a REIT and (ii) there
is an affirmative vote of not less than two-thirds of all of the votes
ordinarily entitled to be cast in the election of directors, voting
together as a single class approving the determination of the Board of
Directors set forth in subsection (i) above.
(n) "Shares-in-Trust" shall mean any shares of Equity Stock
designated Shares-in-Trust pursuant to Section 6.2 hereof.
(o) "Trading Day" shall mean any day other than a Saturday,
a Sunday or a day on which banking institutions in the State of New York
are authorized or obligated by law or executive order to close.
(p) "Transfer" (as a noun) shall mean any sale, transfer,
gift, assignment, devise or other disposition of shares of Equity Stock,
whether voluntary or involuntary, whether of record, constructively or
beneficially and whether by operation of law or otherwise. "Transfer" (as
a verb) shall not have the correlative meaning.
(q) "Trust" shall mean any separate trust created pursuant
to Section 6.1.3 and administered in accordance with the terms of Section
6.2 hereof, for the exclusive benefit of any Beneficiary.
(r) "Trustee" shall mean any Person or entity unaffiliated
with both the Corporation and any Prohibited Owner, such Trustee to be
designated by the Corporation to act as trustee of any Trust, or any
successor trustee thereof.
6.1.2 Restriction on Transfers.
(a) Except as provided in Section 6.1.7, from the date of
the Initial Public Offering and prior to the Restriction Termination Date,
(i) no Person may Beneficially Own or Constructively Own shares of Equity
Stock in excess of the Ownership Limit and (ii) any Transfer that, if
effective, would result in any Person Beneficially Owning or Constructively
Owning shares of Equity Stock in excess of the Ownership Limit shall be
void ab initio as to the Transfer of that number of shares of Equity Stock
in excess of the Ownership Limit, and the Intended Transferee shall acquire
no rights in such Shares.
(b) Except as provided in Section 6.1.7, from the date of
the Initial Public Offering and prior to the Restriction Termination Date,
any Transfer that, if effective, would result in shares of Equity Stock
being Beneficially Owned by fewer than 100 Persons (determined without
reference to any rules of attribution) shall be void ab initio as to the
Transfer of that number of shares which would be otherwise Beneficially
Owned (determined without reference to any rules of attribution) by the
transferee, and the Intended Transferee shall acquire no rights in such
shares of Equity Stock.
(c) Except as provided in Section 6.1.7 from the date of
the Initial Public Offering and prior to the Restriction Termination Date,
any Transfer of shares of Equity Stock that, if effective, would result in
the Corporation being "closely held" within the meaning of Section 856(h)
of the Code shall be void ab initio as to the Transfer of that number of
shares of Equity Stock which would cause the Corporation to be "closely
held" within the meaning of Section 856(h) of the Code, and the Intended
Transferee shall acquire no rights in such shares of Equity Stock.
6.1.3 Transfer to Trust.
(a) If, notwithstanding the other provisions contained in
this Section 6.1, at any time after the Initial Public Offering and prior
to the Restriction Termination Date, there is a purported Transfer or
Non-Transfer Event such that any Person would either Beneficially Own or
Constructively Own shares of Equity Stock in excess of the Ownership Limit
then, (i) except as otherwise provided in Section 6.1.7, the Intended
Transferee shall acquire no right or interest (or, in the case of a
Non-Transfer Event, the Person holding record title to the shares of Equity
Stock Beneficially Owned or Constructively Owned by such Beneficial Owner
or Constructive Owner, shall cease to own any right or interest) in such
number of shares of Equity Stock, (ii) such shares of Equity Stock in
excess of the Ownership Limit (rounded up to the nearest whole share) shall
be designated Shares-in-Trust and, in accordance with the provisions of
Section 6.2, transferred automatically and by operation of law to a Trust
to be held in accordance with that Section 6.2, and (iii) the Intended
Transferee shall submit such number of shares of Equity Stock in excess of
the Ownership Limit to the Corporation for registration in the name of the
Trustee.
(b) If, notwithstanding the other provisions contained in
this Section 6.1, at any time after the Initial Public Offering and prior
to the Restriction Termination Date, there is a purported Transfer or
Non-Transfer Event that, if effective, would (i) result in the shares of
Equity Stock being Beneficially Owned by fewer than 100 Persons (determined
without reference to any rules of attribution), or (ii) result in the
Corporation being "closely held" within the meaning of Section 856(h) of
the Code, then (x) the Intended Transferee shall not acquire any right or
interest (or, in the case of a Non-Transfer Event, the Person holding
record title of the shares of Equity Stock with respect to which such
Non-Transfer Event occurred, shall cease to own any right or interest) in
such number of shares of Equity Stock, the ownership of which by such
Intended Transferee or record holder would (A) result in the shares of
Equity Stock being Beneficially Owned by fewer than 100 Persons (determined
without reference to any rules of attribution), or (B) result in the
Corporation being "closely held" within the meaning of Section 856(h) of
the Code, (y) such number of shares of Equity Stock (rounded up to the
nearest whole share) shall be designated Shares-in-Trust and, in accordance
with the provisions of Section 6.2, transferred automatically and by
operation of law to a Trust to be held in accordance with that Section 6.2,
and (z) the Intended Transferee shall submit such number of shares of
Equity Stock to the Corporation for registration in the name of the
Trustee.
6.1.4 Remedies For Breach. If the Corporation, or its
designees, shall at any time determine in good faith that a Transfer has
taken place in violation of Section 6.1.2 or that a Person intends to
acquire or has attempted to acquire Beneficial Ownership or Constructive
Ownership of any shares of Equity Stock in violation of Section 6.1.2, the
Corporation shall take such action as it deems advisable to refuse to give
effect to or to prevent such Transfer or acquisition, including, but not
limited to, refusing to give effect to such Transfer on the books of the
Corporation or instituting proceedings to enjoin such Transfer or
acquisition.
6.1.5 Notice of Restricted Transfer. Any Person who acquires or
attempts to acquire shares of Equity Stock in violation of Section 6.1.2,
or any Person who owned shares of Equity Stock that were transferred to a
Trust pursuant to the provisions of Section 6.1.2, shall immediately give
written notice to the Corporation of such event and shall provide to the
Corporation such other information as the Corporation may request in order
to determine the effect, if any, of such Transfer or Non-Transfer Event, as
the case may be, on the Corporation's status as a REIT.
6.1.6 Owners Required To Provide Information. From the date of
the Initial Public Offering and prior to the Restriction Termination Date:
(a) Every Beneficial Owner or Constructive Owner of more
than 5%, or such lower percentages as required pursuant to regulations
under the Code, of the outstanding shares of all classes of capital stock
of the Corporation shall, within 30 days after January 1 of each year,
provide to the Corporation a written statement or affidavit stating the
name and address of such Beneficial Owner or Constructive Owner, the number
of shares of Equity Stock Beneficially Owned or Constructively Owned, and a
description of how such shares are held. Each such Beneficial Owner or
Constructive Owner shall provide to the Corporation such additional
information as the Corporation may request in order to determine the
effect, if any, of such Beneficial Ownership or Constructive Ownership on
the Corporation's status as a REIT and to ensure compliance with the
Ownership Limit and the other restrictions set forth in Section 6.1.2.
(b) Each Person who is a Beneficial Owner or Constructive
Owner of shares of Equity Stock and each Person (including the stockholder
of record) who is holding shares of Equity Stock for a Beneficial Owner or
Constructive Owner shall provide to the Corporation a written statement or
affidavit stating such information as the Corporation may request in order
to determine the Corporation's status as a REIT and to ensure compliance
with the Ownership Limit and the other restrictions set forth in Section
6.1.2.
6.1.7 Exception. The Ownership Limit shall not apply to the
acquisition of shares of Equity Stock by an underwriter that participates
in a public offering of such shares for a period of 90 days following the
purchase by such underwriter of such shares provided that the restrictions
contained in Section 6.1.2 will not be violated following the distribution
by such underwriter of such shares. In addition, the Board of Directors,
upon receipt of a ruling from the Internal Revenue Service or an opinion of
counsel in each case that the qualification of the Corporation as a REIT
would not be jeopardized thereby, may exempt a Person from one or more of
the restrictions set forth in Sections 6.1.2(a), (b), (c), and (d) provided
that (i) the Board of Directors obtains such representations and
undertakings from such Person as are reasonably necessary to ascertain that
no Person's Beneficial Ownership or Constructive Ownership of shares of
Equity Stock will cause the Corporation to lose its REIT status and (ii)
such Person agrees in writing that any violation or attempted violation of
the terms of the exemption will result in a transfer to a Trust of shares
of Equity Stock pursuant to Section 6.1.3.
Section 6.2 Shares Transferred to a Trust.
6.2.1 Trust. Any shares of Equity Stock transferred to a Trust
pursuant to Section 6.1.3 hereof shall be held for the exclusive benefit of
one or more charitable beneficiaries (the "Charitable Beneficiary"). The
Corporation shall name a Charitable Beneficiary for each Trust within
twenty days after determining the need for such Trust hereunder. Any
transfer to a Trust pursuant to Section 6.1.3 shall be effective as of the
close of business on the business day prior to the date of the Transfer or
Non-Transfer Event that results in the transfer to the Trust. Shares held
in a Trust shall remain issued and outstanding shares of Equity Stock of
the Corporation and shall be entitled to the same rights and privileges on
identical terms and conditions as are all other issued and outstanding
shares of Equity Stock of the same class and series.
6.2.2 Dividend Rights. The Trust, as record holder of shares
transferred to the Trust pursuant to Section 6.1.3, shall be entitled to
receive all dividends and distributions as may be declared by the Board of
Directors on such shares of Equity Stock and shall hold such dividends or
distributions in trust for the exclusive benefit of the Charitable
Beneficiary. The Intended Transferee with respect to the shares held in
the Trust shall repay to the Trust the amount of any dividends or
distributions received by it that (i) are attributable to such shares of
Equity Stock and (ii) which dividends or distributions were paid to the
Intended Transferee prior to the discovery by the Corporation that such
shares have been transferred to the Trust. The Corporation shall take all
measures that it determines reasonably necessary to recover the amount of
any such dividend or distribution paid to an Intended Transferee,
including, if necessary, withholding any portion of future dividends or
distributions payable on shares of Equity Stock Beneficially Owned or
Constructively Owned by the Intended Transferee; and, as soon as reasonably
practicable following the Corporation's receipt or withholding thereof,
shall pay over to the Trust for the benefit of the Charitable Beneficiary
the dividends so received or withheld, as the case may be.
6.2.3 Rights Upon Liquidation. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of, or any distribution
of the assets of, the Corporation, holders of shares in the Trust shall be
entitled to receive, ratably with each other holder of shares of Equity
Stock of the same class or series, that portion of the assets of the
Corporation which is available for distribution to the holders of such
class and series of shares of Equity Stock. The Trust shall distribute to
the Intended Transferee the amounts received upon such liquidation,
dissolution, or winding up, or distribution; provided, however, that the
Intended Transferee shall not be entitled to receive amounts pursuant to
this Section 6.2.3 in excess of, in the case of a purported Transfer in
which the Intended Transferee gave value for shares of Equity Stock and
which Transfer resulted in the transfer of the shares to the Trust, the
price per share, if any, such Intended Transferee paid for the shares of
Equity Stock and, in the case of a Non-Transfer Event or Transfer in which
the Intended Transferee did not give value for such shares (e.g., if the
shares were received through a gift or devise) and which Non-Transfer Event
or Transfer, as the case may be, resulted in the transfer of shares to the
Trust, the price per share equal to the Market Price on the date of such
Non-Transfer Event or Transfer. Any remaining amount in such Trust shall
be distributed to the Charitable Beneficiary.
6.2.4 Voting Rights. The Trustee shall be entitled to vote all
shares held in the Trust for the exclusive benefit of the Charitable
Beneficiary. Any vote by an Intended Transferee as a holder of shares of
Equity Stock prior to the discovery by the Corporation that the shares of
Equity Stock are held in the Trust shall, subject to applicable law, be
rescinded and shall be void ab initio with respect to such shares and the
Intended Transferee shall be deemed to have given, as of the close of
business on the business day prior to the date of the purported Transfer or
Non-Transfer Event that results in the transfer to the Trust of shares of
Equity Stock under Section 6.1.3, an irrevocable proxy to the Trustee to
vote the shares held in the Trust in the manner in which the Trustee, in
its sole and absolute discretion, desires.
6.2.5 Compensation to Record Holder of Shares of Equity Stock
that Become Shares-in-Trust. Within 20 days of receiving notice from the
Corporation that shares of Equity Stock have been transferred to the Trust,
the Trustee shall sell the shares held in the Trust to a person, designated
by the Trustee, whose ownership of the Excess Shares combined with any
other shares of Equity Stock preciously owned by such person would not
violate the limitations set forth in this Article VI. Upon such sale, the
interest of the Charitable Beneficiary in the shares sold shall terminate
and the Trustee shall distribute the proceeds of the net sale to the
Intended Transferee and to the Charitable Beneficiary as follows. The
Intended Transferee shall receive the lesser of (1) the price paid by the
Intended Transferee for the shares or, if the Intended Transferee did not
give value for the shares in connection with the event causing the shares
to be held in the Trust (e.g., in the case of a gift, devise or other such
transaction), the Market Price (as defined below) of the shares on the day
of the event causing the shares to be held in the Trust, and (2) the price
per share received by the Trustee from the sale or other disposition of the
shares held in the Trust. Any net sales proceeds in excess of the amount
payable to the Intended Transferee shall be immediately paid to the
Charitable Beneficiary. The Charitable Beneficiary and Intended Transferee
waive any and all claims that they may have against the Trustee and the
Trust arising out of the disposition of shares held in the Trust, except
for claims arising out of the gross negligence or willful misconduct of, or
any failure to make payments in accordance with this Section 6.2, by such
Trustee or the Corporation.
6.2.6 Purchase Right in Shares-in-Trust. Shares of Equity Stock
transferred to the Trustee shall be deemed to have been offered for sale to
the Corporation, or its designee, at a price per share equal to the lesser
of (i) the price per share in the transaction that resulted in such
transfer to the Trust (or, in the case of a devise or gift, the Market
Price at the time of such devise or gift), and (ii) the Market Price on the
date the Corporation, or its designee, accepts such offer. The Corporation
shall have the right to accept such offer until the Trustee has sold shares
held in the Trust. Upon such a sale to the Corporation, the interest of
the Charitable Beneficiary in the shares sold shall terminate and the
Trustee shall distribute the net proceeds of the sale to the Intended
Transferee.
Section 6.3 Remedies Not Limited. Nothing contained in this Article VI
shall limit the authority of the Corporation to take such other action as
it deems necessary or advisable to protect the Corporation and the
interests of its stockholders by preservation of the Corporation's status
as a REIT and to ensure compliance with the Ownership Limit and the other
restrictions set forth in Section 6.2.1.
Section 6.4 Legend. From the date of the Initial Public Offering and
prior to the Restriction Termination Date, each certificate for shares of
Equity Stock shall bear the following legend:
"The shares of Common or Preferred Stock represented by this
certificate are subject to restrictions on transfer for the purpose of
the Corporation's maintenance of its status as a real estate
investment trust under the Internal Revenue Code of 1986, as amended
(the "Code"). No Person may (i) Beneficially Own or Constructively
Own shares of Common Stock in excess of 9.8% of the number of
outstanding shares of Common Stock, (ii) Beneficially Own or
Constructively Own shares of any class or series of Preferred Stock in
excess of 9.8% of the number of outstanding shares of such class or
series of Preferred Stock, or (iii) beneficially own shares of Equity
Stock that would result in the shares of Equity Stock being
Beneficially Owned by fewer than 100 Persons (determined without
reference to any rules of attribution). Any Person who attempts to
Beneficially Own or Constructively Own shares of Equity Stock in
excess of the above limitations must immediately notify the
Corporation in writing. If the restrictions above are violated, the
shares of Equity Stock represented hereby will be transferred
automatically and by operation of law to a Trust and shall be
designated Shares-in-Trust. All capitalized terms in this legend have
the meanings defined in the Corporation's Articles, as the same may be
further amended from time to time, a copy of which, including the
restrictions on transfer, will be sent without charge to each
stockholder who so requests."
Section 6.5 Severability. If any provision of this Article VI or any
application of any such provision is invalidated due to a change in the
Code or is determined to be invalid by any federal or state court having
jurisdiction over the issues, the validity of the remaining provisions
shall not be affected and other applications of such provision shall be
affected only to the extent necessary to comply with the determination of
such court.
Section 6.6 Exchange Transactions. Nothing in this Article VI shall
preclude the settlement of any transaction entered into through the
facilities of any national securities exchange or automated inter-dealer
quotation system. The fact that the settlement of any transaction is so
permitted shall not negate the effect of any other provision of this
Article VI and any transferee in such a transaction shall be subject to all
of the provisions and limitations set forth in this Article VI.
Section 6.7 Enforcement. The Corporation is authorized specifically to
seek equitable relief, including injunctive relief, to enforce the
provisions of this Article VI.
Section 6.8 Non-Waiver. No delay or failure on the part of the
Corporation or the Board of Directors in exercising any right hereunder
shall operate as a waiver of any right of the Corporation or the Board of
Directors, as the case may be, except to the extent specifically waived in
writing.
Section 6.9 Headings of Subdivisions. The headings of the various
subdivisions hereof are for convenience of reference only and shall not
affect the interpretation of the provision hereof.
Section 6.10 Amendment. Notwithstanding any other provision of these
Articles or the Bylaws of the Corporation, the provisions of this Article
VI shall not be amended, altered, changed or repealed unless (a) the
restrictions contained in this Article VI are no longer required in order
for the Corporation to qualify as a REIT, or (b) the Board of Directors
determines that it is no longer in the best interests of the Corporation to
attempt to qualify, or to continue to qualify, as a REIT; provided,
however, that without the approval of stockholders, the Board of Directors
may amend these Articles or By Laws of the Corporation to make any change
necessary to comply with changes in the Code imposing additional or
different transfer restrictions on stockholders of any entity seeking to
qualify as a REIT.
Section 6.11 Amendment. Notwithstanding any other provision of these
Articles or the Bylaws of the Corporation, the provisions of this Article
VI shall not be amended, altered, changed or repealed unless (i)(a) the
restrictions contained in this Article VI are no longer required in order
for the Corporation to qualify as a REIT and (b) the Board of Directors
determines that it is no longer in the best interests of the Corporation to
retain such restrictions, or (ii)(a) the Board of Directors determines that
it is no longer in the best interests of the Corporation to attempt to
qualify, or to continue to qualify, as a REIT and (b) the Corporation's
election to be taxed as a REIT is revoked pursuant to these Articles;
provided, however, that without the approval of stockholders, the Board of
Directors may amend these Articles or Bylaws of the Corporation to make any
change necessary or, in the opinion of the Board of Directors, advisable to
comply with changes in the Code imposing additional or different transfer
restrictions on stockholders of any entity seeking to qualify as a REIT.
ARTICLE VII
AMENDMENTS
The Corporation reserves the right from time to time to make any
amendments of these Articles which may now or hereafter be authorized by
law, including any amendments changing the terms or contract rights, as
expressly set forth in these Articles, of any of its outstanding stock by
classification, reclassification or otherwise but, except as provided in
Section 6.11 hereof, no such amendment which changes such terms or contract
rights of any of its outstanding stock shall be valid unless such amendment
shall have been authorized by not less than a majority of the aggregate
number of the votes entitled to be cast thereon or such higher vote as may
be required by these Articles or law.
ARTICLE VIII
LIMITATION OF LIABILITY
To the fullest extent permitted by Maryland statutory or
decisional law, as amended or interpreted, no director or officer of the
Corporation shall be personally liable to the Corporation or its
stockholders for money damages. No amendment of these Articles or repeal
of any of its provisions shall limit or eliminate the limitation on
liability provided to directors and officers hereunder with respect to any
act or omission occurring prior to such amendment or repeal.
FOURTH: The amendments to and restatement of the Charter to the
Corporation set forth in these Articles of Amendment and Restatement of the
Corporation (these "Articles") were advised by the Board of Directors and
approved by the stockholders of the Corporation in the manner prescribed by
and in accordance with the provisions of the Maryland General Corporation
Law relating to charter amendments.
FIFTH: The current address of the principal office of the
Corporation is set forth in Article III of the amendment and restatement of
the Charter of the Corporation set forth in Article THIRD hereof.
SIXTH: The name and address of the current resident agent of
the Corporation are set forth in Article III of the amendment and
restatement of the Charter of the Corporation set forth in Article THIRD
hereof.
SEVENTH: The number of directors of the Corporation and the
names of those directors currently in office are set forth in ARTICLE IV of
the amendment and restatement of the Charter of the Corporation set forth
in Article THIRD hereof.
IN WITNESS WHEREOF, Anthracite Mortgage Capital, Inc. has caused
these Articles of Amendment and Restatement to be executed in its name and
on its behalf by its Vice President who acknowledges that these Articles of
Amendment and Restatement are the act of the Corporation and that to the
best of his knowledge, information and belief and under the penalties of
perjury, all matters and facts contained in these Articles of Amendment and
Restatement are true in all material respects as of this 19th day of March,
1998
ANTHRACITE MORTGAGE CAPITAL, INC.
By /s/ Mark S. Warner
----------------------------
Name: Mark S. Warner
Title: Vice President
ATTEST:
/s/ Susan Wagner
------------------------
Name: Susan Wagner
Title: Secretary
ANTHRACITE CAPITAL, INC.
CERTIFICATE OF CORRECTION
Anthracite Capital, Inc., a Maryland corporation (the "Corporation"),
hereby files this Certificate of Correction (this "Certificate") in
accordance with Section 1-207 of the Maryland General Corporation Law, and
certifies as follows:
1. The title of the document being corrected is as follows:
Articles Supplementary of Anthracite Capital, Inc.
2. The only party to the document being corrected is the
Corporation.
3. The document being corrected was filed on December 2, 1999.
4. The document as previously filed was incorrect in that, due to an
automated computer outlining function, certain references in the document
to section numbers should have referenced letters; for example, a section
numbered (1) in the document should have been lettered (a). This error
occurs throughout the document. As a result of this error, the entire
document is hereby deleted, and in its place is inserted the corrected
document, attached hereto as Exhibit A.
5. No change to the document other than as set forth in paragraph 4
above is made to the document.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of'
Correction to be signed in its name and on its behalf on this 13th day of
December 1999, by its Vice President who acknowledges that this Certificate
of Correction is the act of the Corporation and to the best of his
knowledge, information and belief and under penalties of perjury, all
matters and facts contained in this Certificate of Correction are true in
all material respects.
ATTEST ANTHRACITE CAPITAL, INC.
By: /s/ Robert Friedberg By: /s/ Chris Milner
----------------------- ---------------------------
Secretary Name: Chris Milner
Title: Vice President