Exhibit 10.2
STOCK PURCHASE AGREEMENT
Stock Purchase Agreement ("Agreement"), dated as of March 23,
1998, by and between Anthracite Capital, Inc., a Maryland corporation (the
"Company"), and FBR Asset Investment Corporation, a Virginia corporation
(the "Purchaser").
1. Sale and Purchase of Stock. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties contained
herein, the Company agrees to issue and sell to the Purchaser and the
Purchaser agrees to purchase 716,846 shares (the "Shares") of the Company's
Common Stock, par value $.001 per share (the "Common Stock"), with the
rights, restrictions, privileges and preferences as set forth in the
Company's Restated and Amended Articles of Incorporation (the "Articles")
as in effect on the date hereof, for an aggregate purchase price equal to
$10,000,000 (the "Purchase Price"), which is equal to the initial public
offering price, net of any underwriting discounts and commissions, as set
forth in the Company's Registration Statement on Form S-11, as amended
(Registration No. 333-40813) (the "Registration Statement").
2. Closing.
2.1. Closing Date. The sale and purchase of the Shares (the
"Closing") shall occur at the time and place of the closing of the initial
public offering ("the IPO") of the Company pursuant to the Registration
Statement.
2.2. Transactions at Closing. At the Closing, the Company will
deliver to the Purchaser, at such place as the Purchaser shall designate
prior to the Closing, a share certificate or certificates evidencing the
Shares, duly executed and registered in the name of the Purchaser, against
the receipt from the Purchaser of the Purchase Price in federal funds.
2.3. Registration Rights. As an inducement for the Purchaser to
enter into this Agreement, the Company shall, contemporaneously with the
execution of this Agreement, enter into a Registration Rights Agreement
granting the Purchaser certain registration rights with respect to the
Shares (the "Registration Rights Agreement").
3. Representations and Warranties of the Company. The Company represents
and warrants that:
3.1. Organization and Standing. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Maryland.
3.2. Capitalization. The Company's Articles provide that the
Company may issue up to 400,000,000 shares of Common Stock and up to
100,000,000 shares of preferred stock ("Preferred Stock"). After the
Closing, the Company will have authorized and issued 20,000,000 shares of
Common Stock pursuant to the IPO (or, if the underwriters' overallotment is
exercised, 23,000,000), will have authorized and issued, pursuant to the
1998 Stock Option Plan, outstanding options ("Stock Options"), to acquire
1,711,525 shares of Common Stock, will have authorized and issued 144,000
options (the "Additional Options," and, together with the Stock Options,
the "Options"), to certain directors, officers and employees of the Company
and the Manager, will have authorized and issued 640,727 shares of Common
Stock (assuming that the underwriters' overallotment is not exercised) to
PNC Bank Corp. pursuant to a stock purchase agreement as of the Closing and
will have authorized and issued 716,846 shares of Common Stock pursuant to
this Agreement. Other than the Options, there are no outstanding options,
warrants, subscription rights (including any preemptive rights), calls or
commitments of any character whatsoever to which the Company or any of its
subsidiaries is a party or may be bound, requiring the issuance or sale of
shares of any capital stock or other equity securities of the Company or
securities or rights convertible into or exchangeable for such shares or
other equity securities, and there are no contracts, commitments,
understandings or arrangements by which the Company is or may become bound
to issue additional shares of its capital stock or other equity securities
or options, warrants or rights to purchase or acquire any additional shares
of its capital stock or other equity securities or securities convertible
into or exchangeable for such shares or other equity securities. The
Company has no shares of Preferred Stock outstanding.
3.3. Authorization. The Company has the corporate power and
authority to execute and deliver this Agreement and the Registration Rights
Agreement and to perform its obligations hereunder and thereunder. The
execution and delivery of this Agreement and the Registration Rights
Agreement and the issuance and sale of the Shares have been duly authorized
by the Board of Directors of the Company. No further approval or
authorization of the Board of Directors or the shareholders of the Company
will be required for the issuance and sale of the Shares as contemplated
herein. This Agreement and the Registration Rights Agreement have been duly
and validly executed and delivered by the Company, and each constitutes a
legal, valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, except to the extent that
enforceability may be limited by bankruptcy, insolvency, moratorium or
other laws affecting the enforcement of creditors' rights generally or by
general equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
3.4. Legality of the Common Stock. Upon receipt by the Company
of the Purchase Price, the Shares will be duly authorized, validly issued,
fully paid and nonassessable. No party has any preemptive or similar rights
in connection with the issuance of the Common Stock hereunder. All of the
outstanding shares of Common Stock have been validly issued and are fully
paid and non-assessable and were duly registered under the Securities Act
of 1933, as amended (the "Securities Act") and applicable state securities
laws or were issued in reliance on exemptions therefrom and were not issued
in violation of any preemptive rights.
3.5. No Violation. Neither the Company's execution and delivery
of this Agreement or the Registration Rights Agreement nor the consummation
by the Company of the transactions contemplated hereby or thereby will
violate the Company's Articles of Incorporation or Bylaws or breach a
material agreement to which the Company or any subsidiary of the Company is
a party or by which its or any of its subsidiaries' assets are bound, or
cause any such violation or breach, or accelerate or allow any person to
accelerate, terminate, modify or cancel any material rights under any such
agreement, or will result in the creation of any material lien on the
assets or properties of the Company or any of its subsidiaries. Such
execution, delivery and consummation will not violate or breach or
constitute a default under any law, judgment, order, or decree to which the
Company or any of its subsidiaries is subject or by which the properties or
assets of the Company or any of its subsidiaries are bound.
3.6. Consents and Approvals. No consent, authorization, order,
license, permit, or approval of, or filing with, any governmental authority
or person is required in connection with the Company's execution, delivery
and performance of this Agreement or the Registration Rights Agreement,
except (i) such as must be made or obtained by the Purchaser, and (ii) such
as shall have been made or obtained by the Company prior to the Closing.
3.7. Registration Statement. As of the date hereof, the
Registration Statement does not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
3.8. Litigation, etc. There is no action, proceeding or
investigation pending or, to the best of the Company's knowledge,
threatened (or any basis therefor known to the Company), that questions the
validity of this Agreement, the Registration Rights Agreement, the Shares
to be issued pursuant to this Agreement or which could have a material
adverse effect on the financial condition, results of operations, business
or properties of the Company and its subsidiaries, taken as a whole.
3.9. Brokers, Intermediaries and Finder's Fees. The Company
represents that no finder, broker, agent, financial advisor or other
intermediary has acted on behalf of the Company in connection with the
offering and sale of the Common Stock to be issued and sold pursuant to
this Agreement or the negotiation or consummation of this Agreement or any
of the transactions contemplated hereby.
3.10. REIT Status. The Company is organized in a manner
intended to qualify as a real estate investment trust ("REIT") under the
Internal Revenue Code of 1986, as amended (the "Code"), and the Company
intends to elect to be taxed as a REIT for its taxable year ended December
31, 1998.
4. Representations and Warranties of the Purchaser. The Purchaser
represents and warrants that:
4.1. Organization and Standing. The Purchaser is a corporation
duly incorporated, validly existing and in good standing under the laws of
the Commonwealth of Virginia.
4.2. Authorization. The Purchaser has the corporate power and
authority to execute and deliver this Agreement and the Registration Rights
Agreement and to perform its obligations hereunder and thereunder. The
execution and delivery of this Agreement and the Registration Rights
Agreement and the purchase of the Shares hereunder have been duly
authorized by the Purchaser. No further approval or authorization of the
Board of Directors or the shareholders of the Purchaser will be required
for the Purchaser's purchase of the Shares pursuant to the terms of this
Agreement or the Registration Rights Agreement. This Agreement and the
Registration Rights Agreement have been duly and validly executed and
delivered by the Purchaser, and each constitutes a legal, valid and binding
obligation of the Purchaser enforceable against each of them in accordance
with its terms, except to the extent that such enforceability may be
limited by bankruptcy, insolvency, moratorium or other laws affecting the
enforcement of creditor's rights generally or by general equitable
principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
4.3. No Violation. Neither the Purchaser's execution and
delivery of this Agreement or the Registration Rights Agreement nor the
consummation by it of the transactions contemplated hereby or thereby will
violate the Articles of Incorporation or Bylaws of the Purchaser or breach
a material agreement to which it is a party or by which its assets are
bound, or cause any such violation or breach, or accelerate or allow any
person to accelerate, terminate, modify or cancel any material rights under
any such agreement, or will result in the creation of any material lien on
the assets or properties of the Purchaser. Such execution, delivery and
consummation will not violate or breach or constitute a default under any
material law, judgment, order, or decree to which the Purchaser is subject
or by which the Purchaser or its subsidiaries' properties or assets are
bound.
4.4. Consents and Approvals. No consent, authorization, order,
license, permit, or approval of, or filing with, any governmental authority
or any person is required in connection with the Purchaser's execution,
delivery and performance of this Agreement or the Registration Rights
Agreement except (i) such as must be made or obtained by the Company, and
(ii) such as shall have been made or obtained by the Purchaser prior to the
Closing.
4.5. Litigation, etc. There is no action, proceeding or
investigation pending or, to the best of the Purchaser's knowledge,
threatened (or any basis therefor known to the Purchaser), that questions
the validity of this Agreement or the Registration Rights Agreement, or any
action contemplated, taken or to be taken pursuant hereto or thereto.
4.6. Brokers, Intermediaries and Finder's Fees. The Purchaser
represents that no finder, broker, agent, financial advisor or other
intermediary has acted on behalf of the Purchaser in connection with the
purchase of the Common Stock pursuant to this Agreement or the negotiation
or consummation of this Agreement or any of the transactions contemplated
hereby.
4.7. Investment Representations of the Purchaser. The Purchaser
represents and warrants to and agrees with the Company as follows:
(a) The Purchaser is acquiring the Shares for its own account
for investment and not with a view to, or for sale in
connection with, any distribution thereof, nor with
any present intention of distributing or selling the same, and
it has no obligation, indebtedness or commitment providing for
the disposition thereof.
(b) The Purchaser acknowledges that it has been advised and is
aware that (i) the Company is relying upon one or more
exemptions under the Securities Act, and applicable state
securities laws in connection with the offer, sale and issuance
of the Shares and (ii) the Shares in the hands of the Purchaser
will be restricted securities within the meaning of Rule 144
promulgated by the Securities Exchange Commission ("SEC")
pursuant to the Securities Act, and unless and until registered
under the Securities Act, may be subject to limitations on
resale (including, among others, limitations on the amount of
securities that can be resold and the timing and manner of
resale) set forth in Rule 144 or in administrative
interpretations of the Securities Act by the SEC or in other
rules and regulations promulgated thereunder by the SEC, in
effect at the time of the proposed sale or other disposition of
the Shares.
(c) The Purchaser has received a copy of the Registration
Statement and has independently examined and investigated the
Company in connection with the decision to purchase the Shares.
The Purchaser or its representatives have made inquiries deemed
by them to be satisfactory concerning the Company, its
business, its officers and its personnel and have had access to
its books and records. In making this investment, the Purchaser
has relied solely upon information made available to it by the
Company, and not upon information supplied by any other person.
The Purchaser and its officers, directors and other
representatives have substantial knowledge and experience in
financial and business matters such that the Purchaser and its
representatives are capable of evaluating the merits and risks
of investment in the Company, and the Purchaser is able to bear
the economic risks of its investment in the Company.
(d) The Purchaser certifies that it is an accredited investor
as defined in Rule 501(a)(3) promulgated under the Securities
Act because it is a corporation not formed for the specific
purpose of acquiring the Shares, with total assets in excess of
$5,000,000.
5. Transfer Restrictions; Legends. (a) In addition to the legends required
by the Company's Articles of Incorporation, each certificate or instrument
representing the Shares shall bear a legend in substantially the following
form:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS, AND UNLESS SO REGISTERED, MAY NOT BE
OFFERED OR SOLD, EXCEPT PURSUANT TO AN EXEMPTION FROM, OR
IN A TRANSACTION NOT SUBJECT TO, THOSE LAWS.
Such legend shall be removed by the Company upon delivery to it
of an opinion of counsel satisfactory to the Company and its counsel that a
registration statement under the Securities Act is at the time effective
with respect to the transfer of the legended security or that such security
can be transferred without such registration statement being in effect and
without the requirements of a legend on the certificate in the hands of the
transferee.
For a period of one hundred eighty (180) days following the
commencement of the Company's IPO, the Purchaser agrees not to offer, sell,
dispose of or otherwise transfer, directly or indirectly, the Shares or any
interest in the Shares to any person in any manner. The Company agrees that
the Purchaser may, at any time on or after the date hereof, pledge the
shares of Common Stock to or for the benefit of any institutional lender or
debt financing source to the Purchaser.
6. Covenants of the Company.
The Company agrees:
(a) for so long as it is required to file periodic reports
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), to file all required reports thereunder on or prior to the due
date therefor; and
(b) to indemnify and hold harmless the Purchaser from and
against any liability for commission or compensation in the nature of
a finder's fee to any broker or other person or firm and the costs
and expenses of defending against such liability or asserted
liability, for which the Company, or any of its employees or
representatives, is responsible.
7. Covenants of the Purchaser.
The Purchaser agrees:
(a) to indemnify and hold harmless the Company from and against
any liability for commission or compensation in the nature of a
finder's fee to any broker or other person or firm and the costs and
expenses of defending against such liability or asserted liability,
for which the Purchaser, or any of its employees or representatives,
is responsible; and
(b) to notify the Company in writing not less than 30 days in
advance of any transfer, conveyance, assignment or pledge of the
Common Stock permitted under the terms of this Agreement or the
Articles.
8. Conditions to Closing.
8.1. Conditions of Purchaser's Obligations. The Purchaser's
obligation to purchase the Shares is subject to the fulfillment, before or
at the Closing, of all of the following conditions:
(a) Representations and Warranties Correct. The representations
and warranties of the Company made or contained herein in
connection with the transactions contemplated hereby shall be
correct in all material respects at and as of the Closing Date
as if made on and as of the Closing Date, except as affected by
the transactions contemplated hereby.
(b) Performance. The Company shall have performed and complied
with all agreements and conditions contained herein required to
be performed or complied with by it before or at the Closing.
(c) IPO. The IPO shall be consummated simultaneously with the
Closing.
(d) Opinion of Counsel. The Purchaser shall have received one
or more opinions dated the Closing Date, reasonably
satisfactory to the Purchaser's counsel in form and substance,
from Skadden, Arps, Slate, Meagher & Flom LLP ("Skadden Arps"),
counsel for the Company, and/or Miles & Stockbridge, special
counsel to the Company, to the effect that:
(i) the Company has been duly organized and is
validly existing as a corporation under the laws of the
State of Maryland;
(ii) all of the issued shares of capital stock
of the Company have been validly issued and are fully
paid and nonassessable as of the Closing Date, and were
not issued in violation of or subject to any statutory
preemptive rights or, to counsel's knowledge, other
preemptive rights or other rights to subscribe for or
purchase securities;
(iii) the Shares have been duly authorized by
all necessary corporate action and when issued, paid for
and delivered pursuant to this Agreement, will be validly
issued, fully paid and nonassessable;
(iv) the execution and delivery of this
Agreement and the Registration Rights Agreement have been
duly and validly authorized by all necessary corporate
action of the Company, this Agreement and the
Registration Rights Agreement have been duly executed and
delivered by the Company, and each Agreement is the valid
and binding agreement of the Company, enforceable against
the Company in accordance with its respective terms; and
(v) registration of the Shares under the
Securities Act is not required.
(e) Officer's Certificate. The Purchaser shall have received an
officer's certificate, dated the Closing Date and signed by the
Company's President, certifying that the representations and
warranties of the Company contained in this Agreement are true
and correct in all material respects.
(f) Opinions Delivered to Underwriter. The Purchaser shall have
received opinions, addressed to the Purchaser dated the Closing
Date, from Skadden Arps, counsel to the Company, in the same
form as any opinions delivered to the underwriters as a
condition to the closing of the IPO.
(g) Certificates Delivered to Underwriter. The Purchaser shall
have received certificates, dated the Closing Date, from the
Company, in the same form as any certificates delivered to the
underwriter as a condition to the closing of the IPO.
(h) Registration Rights Agreement. The Company shall have
executed the Registration Rights Agreement, dated the date
hereof, relating to the Purchaser's registration rights with
respect to the Shares.
8.2. Conditions of Company's Obligations. The Company's
obligation to issue the Shares to the Purchaser at Closing is subject to
the fulfillment, before or at the Closing, of all of the following
conditions:
(a) Representations and Warranties Correct. The representations
and warranties of the Purchaser made or contained herein in
connection with the transactions contemplated hereby shall be
correct in all material respects at and as of the Closing Date
as if made on and as of the Closing Date, except as affected by
the transactions contemplated hereby.
(b) Performance. The Purchaser shall have performed and
complied with all agreements and conditions contained herein
required to be performed or complied with by it before or at
the Closing.
(c) IPO. The IPO shall be consummated simultaneously with the
Closing.
(d) Officer's Certificate. The Company shall have received an
officer's certificate, dated the Closing Date and signed by the
Purchaser's President, certifying that the representations and
warranties of the Company contained in this Agreement are true
and correct in all material respects.
9. Notices. All notices, requests, consents and other communications to any
party hereunder shall be in writing and shall be delivered by facsimile,
reliable courier or first-class registered or certified mail, postage
prepaid, at such party's address as set forth below, marked for attention
as there indicated, or at such other address as may have been furnished to
the other parties by such party in writing:
TO THE COMPANY:
Anthracite Capital, Inc.
345 Park Avenue
New York, NY 10154
Telephone: (212) 754-5560
Facsimile: (212) [754-5397]
Attention: Secretary
TO THE PURCHASER:
FBR Asset Investment Corp.
1001 19th Street North
Arlington, VA 22209
Telephone: (703) 312-9500
Facsimile: (703) 312-9602
Attention: Secretary
10. Miscellaneous.
10.1. Governing Law. This Agreement shall be construed and
enforced in accordance with the laws of the State of New York without
regard to its conflict of laws principles or rules.
10.2. Successors and Assignees. All of the terms of this
Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and permitted assignees of the
parties hereto.
10.3. Entire Agreement. This Agreement and the Registration
Rights Agreement embody the entire agreement and understanding among the
parties with respect to the subject matter hereof and supersede all prior
agreements and understandings relating to the
subject matter hereof.
10.4. Headings of the Agreement. The headings in this Agreement
are for convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
10.5. Counterparts of the Agreement. This Agreement may be
executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
10.6. Severability of the Agreement. In case any provision of
this Agreement shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any
way be affected or impaired thereby.
10.7. Termination. This Agreement shall terminate and be of no
further force and effect if the Closing shall not have occurred on or prior
to June 30, 1998.
10.8. Expenses. Each party shall bear its own expenses in
connection with this Agreement, whether or not the transactions
contemplated hereunder are consummated.
IN WITNESS WHEREOF, the parties have caused this Stock Purchase
Agreement to be duly executed and delivered as of the day and year
first written above.
THE COMPANY: ANTHRACITE CAPITAL, INC.
By:_____________________________
Name:___________________________
Title:__________________________
THE PURCHASER: FBR ASSET INVESTMENT CORPORATION
By:_____________________________
Name:___________________________
Title:__________________________