Item 5. Other Information
ITEM 5. OTHER INFORMATION
On November 3, 2022, the Company entered into an Amendment No. 2 (collectively, the “Amendments”) to each of the separate Amended and Restated Distribution Agency Agreements, previously entered into on August 6, 2020 and amended by Amendment No. 1 to the Amended and Restated Distribution Agency Agreements on August 6, 2021 (collectively, the “Sales Agreements,” and as amended by the Amendments, the “Amended Sales Agreements”), with each of J.P. Morgan Securities LLC, Barclays Capital Inc., BofA Securities, Inc., Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Goldman Sachs & Co. LLC, Keefe, Bruyette & Woods, Inc., RBC Capital Markets, LLC, UBS Securities LLC and Wells Fargo Securities, LLC (the “Sales Agents”). Under the terms of the Sales Agreements, the Company was able to offer and sell shares of its common stock, par value $0.01 per share (“Common Stock”), having an aggregate offering price of up to $1,500,000,000 from time to time through any of the Sales Agents.
As of the date of this filing, the Company had utilized approximately $1,274,000,000 in capacity of the original $1,500,000,000 aggregate offering price of Common Stock, leaving approximately $225,811,000 aggregate offering price of Common Stock available to be sold under the Sales Agreements. The Company entered into the Amendments to increase the available number of shares of Common Stock that the Company may sell through the Sales Agents, from time to time, under the Amended Sales Agreements back up to an aggregate offering price of up to $1,500,000,000 (the “Shares”). The Amendments made no other changes to the Sales Agreements.
Pursuant to the Amended Sales Agreements, the Shares may be offered and sold through the Sales Agents in transactions deemed to be “at-the-market” offerings as defined in Rule 415(a)(4) under the Securities Act of 1933, as amended. Under the Amended Sales Agreements, each Sales Agent (at the Company’s election) will use commercially reasonable efforts consistent with its normal sales and trading practices to sell the Shares as directed by the Company. Under the Amended Sales Agreements, the Company will pay each of the Sales Agents a commission that will not exceed, but may be lower than, 1.25% of the gross sales price per share of Shares sold through it. The Amended Sales Agreements contain customary representations, warranties and agreements of the Company and customary conditions to completing future sale transactions, indemnification rights and obligations of the parties and termination provisions.
Shares sold under the Amended Sales Agreements, if any, will be issued pursuant to the Company’s automatic shelf registration statement on Form S-3ASR (File No. 333-262424), including the prospectus dated January 31, 2022 and the prospectus supplement dated November 3, 2022, as the same may be amended or supplemented.
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ANNALY CAPITAL MANAGEMENT, INC. AND SUBSIDIARIES
The foregoing description of the Amendments is not complete and is qualified in its entirety by reference to the entire Amendments, copies of which are attached hereto as Exhibits 10.1 through 10.10, inclusive, and which are incorporated herein by reference. A copy of the opinion of Venable LLP relating to the legality of the issuance and sale of the Shares is attached to this Quarterly Report on Form 10-Q as Exhibit 5.1.
ITEM 6. EXHIBITS
Exhibits:
The exhibits required by this item are set forth on the Exhibit Index attached hereto.
Exhibit Number Exhibit Description
1.1
Amendment No. 2 to the Amended and Restated Distribution Agency Agreement, dated November 3, 2022, by and between Annaly Capital Management, Inc. and J.P. Morgan Securities LLC.
1.2
Amendment No. 2 to the Amended and Restated Distribution Agency Agreement, dated November 3, 2022, by and between Annaly Capital Management, Inc. and BofA Securities, Inc.
1.3
Amendment No. 2 to the Amended and Restated Distribution Agency Agreement, dated November 3, 2022, by and between Annaly Capital Management, Inc. and Barclays Capital Inc.
1.4
Amendment No. 2 to the Amended and Restated Distribution Agency Agreement, dated November 3, 2022, by and between Annaly Capital Management, Inc. and Citigroup Global Markets Inc.
1.5
Amendment No. 2 to the Amended and Restated Distribution Agency Agreement, dated November 3, 2022, by and between Annaly Capital Management, Inc. and Credit Suisse Securities (USA) LLC.
1.6
Amendment No. 2 to the Amended and Restated Distribution Agency Agreement, dated November 3, 2022, by and between Annaly Capital Management, Inc. and Goldman Sachs & Co. LLC.
1.7
Amendment No. 2 to the Amended and Restated Distribution Agency Agreement, dated November 3, 2022, by and between Annaly Capital Management, Inc. and Keefe, Bruyette & Woods, Inc.
1.8
Amendment No. 2 to the Amended and Restated Distribution Agency Agreement, dated November 3, 2022, by and between Annaly Capital Management, Inc. and RBC Capital Markets, LLC.
1.9
Amendment No. 2 to the Amended and Restated Distribution Agency Agreement, dated November 3, 2022, by and between Annaly Capital Management, Inc. and UBS Securities LLC.
1.10
Amendment No. 2 to the Amended and Restated Distribution Agency Agreement, dated November 3, 2022, by and between Annaly Capital Management, Inc. and Wells Fargo Securities, LLC.
3.1
Articles of Amendment of the Articles of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 to the Registrant's Current Report on Form 8-K filed September 23, 2022).
3.2
Articles of Amendment of the Articles of Incorporation of the Registrant (incorporated by reference to Exhibit 3.2 to the Registrant's Current Report on Form 8-K filed September 23, 2022).
5.1
Opinion of Venable LLP.
23.1
Consent of Venable LLP (included in Exhibit 5.1).
31.1
Certification of David L. Finkelstein, Chief Executive Officer and President (Principal Executive Officer) of the Registrant, pursuant to 18 U.S.C. Section 1350 as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. †
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31.2
Certification of Serena Wolfe, Chief Financial Officer (Principal Financial Officer) of the Registrant, pursuant to 18 U.S.C. Section 1350 as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. †
32.1
Certification of David L. Finkelstein, Chief Executive Officer and President (Principal Executive Officer) of the Registrant, pursuant to 18 U.S.C. Section 1350 as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. †
32.2
Certification of Serena Wolfe, Chief Financial Officer (Principal Financial Officer) of the Registrant, pursuant to 18 U.S.C. Section 1350 as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. †
101.INS XBRL The instance document does not appear in the interactive data file because its Extensible Business Reporting Language (XBRL) tags are embedded within the Inline XBRL document. The following documents are formatted in Inline XBRL: (i) Consolidated Statements of Financial Condition at September 30, 2022 (Unaudited) and December 31, 2021 (Derived from the audited Consolidated Statement of Financial Condition at December 31, 2021); (ii) Consolidated Statements of Comprehensive Income (Loss) (Unaudited) for the three and nine months ended September 30, 2022 and 2021; (iii) Consolidated Statements of Stockholders’ Equity (Unaudited) for the three and nine months ended September 30, 2022 and 2021; (iv) Consolidated Statements of Cash Flows (Unaudited) for the nine months ended September 30, 2022 and 2021; and (v) Notes to Consolidated Financial Statements (Unaudited).
101.SCH XBRL Taxonomy Extension Schema Document †
101.CAL XBRL Taxonomy Extension Calculation Linkbase Document †
101.DEF XBRL Additional Taxonomy Extension Definition Linkbase Document Created †
101.LAB XBRL Taxonomy Extension Label Linkbase Document †
101.PRE XBRL Taxonomy Extension Presentation Linkbase Document †
104 The cover page for the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2022 (formatted in Inline XBRL and contained in Exhibit 101).
† Submitted electronically herewith.
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
ANNALY CAPITAL MANAGEMENT, INC.
Dated: November 3, 2022 By: /s/ David L. Finkelstein
David L. Finkelstein
Chief Executive Officer, President and Director
(Principal Executive Officer)
Dated: November 3, 2022 By: /s/ Serena Wolfe
Serena Wolfe
Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)
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