AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 23, 2002
SECURITIES ACT FILE NO. 333-88788
INVESTMENT COMPANY ACT FILE NO. 811-21102
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U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM N-2
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933 [X]
PRE-EFFECTIVE AMENDMENT NO. 4 [X]
POST-EFFECTIVE AMENDMENT NO. __ [ ]
AND/OR
REGISTRATION STATEMENT UNDER
THE INVESTMENT COMPANY ACT OF 1940 [X]
AMENDMENT NO. 4 [X]
(Check Appropriate Box or Boxes)
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THE HYPERION STRATEGIC MORTGAGE INCOME FUND, INC.
(Exact Name of Registrant As Specified in Charter )
ONE LIBERTY PLAZA, 165 BROADWAY, 36th FLOOR
NEW YORK, NY 10006-1404
(Address of Principal Executive Offices)
Registrant's Telephone Number, including Area Code: 1(800) Hyperion
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CLIFFORD E. LAI, PRESIDENT
THE HYPERION STRATEGIC MORTGAGE INCOME FUND, INC.
ONE LIBERTY PLAZA, 165 BROADWAY, 36th FLOOR
NEW YORK, NY 10006-1404
(Name and Address of Agent for Service)
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With copies to:
DAVID C. MAHAFFEY THOMAS A. DECAPO
SULLIVAN & WORCESTER LLP SKADDEN, ARPS, SLATE, MEAGHER, & FLOM LLP
1666 K STREET, N.W. ONE BEACON STREET
WASHINGTON, D.C. 20006 BOSTON, MA 02108
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APPROXIMATE DATE OF PROPOSED PUBLIC OFFERING:
As soon as practicable after the effective date of this Registration Statement.
If any securities being registered on this form will be offered on a
delayed or continuous basis in reliance on Rule 415 under the Securities Act of
1933, other than securities offered in connection with a dividend reinvestment
plan, check the following box. [ ]
This form is filed to register additional securities for an offering
pursuant to Rule 486(b) under the Securities Act and the Securities Act
registration statement number of the earlier effective registration statement
for the offering is [ ]
CALCULATION OF REGISTRATION FEE UNDER THE SECURITIES ACT OF 1933
========================================================================
PROPOSED PROPOSED
PROPOSED MAXIMUM OFFERING PRICE MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT BEING PER SHARE (*) AGGREGATE REGISTRATION
BEING REGISTERED REGISTERED OFFERING PRICE (*) FEE
Common Shares, $.01 Par Value
............. 9,200,000 shares $15.00 $138,000,000 $12,696**
========================================================================
(*) Estimated solely for the purpose of computing the registration fee
pursuant to Rule 457.
(**) Previously paid.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
Information to be included in Part A: The Prospectus contained in
Pre-Effective Amendment No. 3 to this Registration Statement is
incorporated by reference herein.
Information to be included in Part B: The Statement of Additional
Information contained in Pre-Effective Amendment No. 3 to this Registration
Statement is incorporated by reference herein.
Information to be included in Part C is set forth under the appropriate
item, so numbered in Part C to this Registration Statement.
PART C -- OTHER INFORMATION
ITEM 24. FINANCIAL STATEMENTS AND EXHIBITS
(1) FINANCIAL STATEMENTS - The Statement of Assets and Liabilities as of July
10, 2002 and the supporting notes have been included in the Registration
Statement.
Statements, schedules and historical information other than listed above
have been omitted since they are either not applicable, or not required or the
required information is shown in the financial statements or notes thereto.
(2) EXHIBITS
(A) (1) Articles of Incorporation of The Hyperion Strategic
Mortgage Income Fund, Inc. dated May 17, 2002.*
(2) Certificate of Correction to Articles of
Incorporation dated May 22, 2002.**
(B) By-laws.*
(C) Not applicable
(D) (1) Stock Certificate***
(2) Seed Capital Agreement***
(E) Terms and Conditions of Dividend Reinvestment Plan.**
(F) Not applicable
(G) (1) Form of Advisory Agreement between Registrant and
Hyperion Capital Management, Inc.***
(2) Form of Sub-Advisory Agreement between Hyperion
Capital Management, Inc. and Lend Lease Hyperion
Capital Advisers, L.L.C.***
(H) (1) Underwriting Agreement****
(2) Master Agreement Among Underwriters***
(3) Selected Dealer Agreement***
(I) Not applicable
(J) Form of Custodian Agreement between Registrant and State
Street Bank and Trust Company***
(k) (1) Form of Registrar and Transfer Agent Agreement
between Registrant and American Stock Transfer &
Trust Company***
(2) Form of Administration Agreement between Registrant
and Hyperion Capital Management, Inc.***
(3) Form of Subadministration Agreement between Hyperion
Capital Management, Inc. and State Street Bank and
Trust Company***
(L) (1) Opinion and consent of Sullivan & Worcester LLP****
(2) Opinion and consent of Piper Rudnick LLP****
(M) Not applicable
(N) (1) Consent of PricewaterhouseCoopers LLP***
(2) Consent of PricewaterhouseCoopers LLP
(O) Not applicable
(P) Not applicable
(Q) Not applicable
(R) (1) Code of Ethics for The Hyperion Strategic Mortgage Income
Fund, Inc.**
(2) Code of Ethics for Hyperion Capital Management, Inc.**
(3) Code of Ethics for Lend Lease Hyperion Capital Advisors,
LLC.**
* Filed with Registrant's Registration Statement on Form N-2 on May 22, 2002
(File No. 333-88788).
** Filed with Registrant's Pre-Effective Amendment No. 1 to its Registration
Statement on Form N-2 on June 20, 2002.
*** Filed with Registrant's Pre-Effective Amendment No. 2 to its Registration
Statement on Form N-2 on July 18, 2002.
****Filed with Registrant's Pre-Effective Amendment No. 3 to its Registration
Statement on Form N-2 on July 23, 2002.
ITEM 25. MARKETING ARRANGEMENTS
See Exhibit (H) of Item 24(2) of this Registration Statement.
ITEM 26. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the expenses to be incurred in
connection with the issuance and distribution of securities described in this
Registration Statement:
Registration fees $ 5,520
National Association of Securities Dealers, Inc. fee $ 8,000
New York Stock Exchange listing fee $ 35,000
Printing (other than stock certificates) $ 200,000
Accounting fees and expenses $ 7,000
Legal fees and expenses $ 122,000
Underwriter expense reimbursement $ 125,000
Miscellaneous $ 20,000
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Total $ 522,520
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ITEM 27. PERSONS CONTROLLED BY OR UNDER COMMON CONTROL WITH REGISTRANT
None.
ITEM 28. NUMBER OF HOLDERS OF SECURITIES (as of July 15, 2002)
TITLE OF CLASS NUMBER OF RECORD HOLDERS
-------------- -------------
Common Stock 1
ITEM 29. INDEMNIFICATION
Under Registrant's Articles of Incorporation and By-Laws, the directors
and officers of Registrant will be indemnified to the fullest extent allowed and
in the manner provided by Maryland law and applicable provisions of the
Investment Company Act of 1940, including advancing of expenses incurred in
connection therewith. Indemnification shall not be provided to any officer or
director against any liability to the Registrant or its shareholders to which he
or she would otherwise be subject by reason of willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the conduct of
his or her office.
Article 2, Section 405.2 of the Maryland General Corporation Law
provides that the Charter of a Maryland Corporation may expand or limit the
extent to which directors or officers may be personally liable to the
Corporation or its shareholders for money damages in certain instances. The
Registrant's Articles of Incorporation provide that, to the fullest extent
permitted by Maryland law, as it may be amended or interpreted from time to
time, no director or officer of the Registrant shall be personally liable to the
Registrant or its shareholders for money damages. The Registrant's Articles of
Incorporation also provide that no amendment of the Registrant's Articles of
Incorporation or repeal of any of its provisions shall limit or eliminate any of
the benefits provided to directors and officers in respect of any act or
omission that occurred prior to such amendment or repeal.
The Underwriting Agreement filed in response to Item 24 (2)(h) contains
provisions requiring indemnification of the Registrant's underwriters by the
Registrant.
Insofar as indemnification for liability arising under the Securities
Act of 1933, as amended (the "Act"), 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 Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
ITEM 30. BUSINESS AND OTHER CONNECTIONS OF INVESTMENT ADVISER
The description of the business of Hyperion Capital Management, Inc.
and Lend Lease Hyperion Capital Advisers, L.L.C. is set forth under the caption
"MANAGEMENT OF THE FUND" in the Prospectus and "THE ADVISER, SUBADVISER AND
ADMINISTRATOR" in the Statement of Additional Information forming part of this
Registration Statement.
The information as to the Directors and officers of Hyperion Capital
Management, Inc. set forth in Hyperion Capital Management, Inc.'s Form ADV filed
with the Securities and Exchange Commission on July 9, 2002 (File No. 801-34605)
and as amended through the date hereof is incorporated herein by reference. The
information as to the Directors and officers of Lend Lease Hyperion Capital
Advisers, L.L.C. set forth in Lend Lease Hyperion Capital Adviser's L.L.C. Form
ADV filed with the Securities and Exchange Commission on July 17, 2002 (File No.
801-49350) and as amended through the date hereof is incorporated herein by
reference.
ITEM 31. LOCATION OF ACCOUNTS AND RECORDS
Registrant: The Hyperion Strategic Mortgage Income Fund, Inc.
One Liberty Plaza, 165 Broadway, 36th Floor
New York, New York 10006-1404
Investment Adviser: Hyperion Capital Management, Inc.
One Liberty Plaza, 165 Broadway, 36th Floor
New York, New York 10006-1404
Investment Lend Lease Hyperion Capital Advisers, L.L.C.
Subadviser: One Liberty Plaza, 165 Broadway, 36th Floor
New York, New York 10006-1404
Transfer Agent for American Stock Transfer & Trust Company, Inc.
Common Stock: 6201 15th Avenue
Brooklyn, New York 11219
Custodian and Fund State Street Bank and Trust Company
Accounting Agent: Two Avenue de Lafayette
Boston, Massachusetts 02105
ITEM 32. MANAGEMENT SERVICES
Not applicable.
ITEM 33. UNDERTAKINGS
(a) Registrant undertakes to suspend the offering of its shares until it amends
its Prospectus if:
(1) subsequent to the effective date of this Registration Statement, the
net asset value per share declines more than 10% from its net asset value per
share as of the effective date of the Registration Statement; or
(2) the net asset value increases to an amount greater than its net
proceeds as stated in the Prospectus.
(b) Registrant hereby undertakes:
(1) that for purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Registrant pursuant to Rule 497(h) under the
Securities Act shall be deemed to be part of this Registration Statement as of
the time it was declared effective.
(2) that for the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
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) that for the purpose of determining any liability under the Securities
Act of 1933, each 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.
(4) to supplement the prospectus, after the expiration of the subscription
period, to set forth the results of the subscription offer, the transactions by
underwriters during the subscription period, the amount of unsubscribed
securities to be purchased by underwriters, and the terms of any subsequent
reoffering thereof. Further, if any public offering by the underwriters of the
securities registered herein is to be made on terms differing from those set
forth on the cover page of the prospectus included in this Registration
Statement, the Registrant shall undertake to file a post-effective amendment to
set forth the terms of such offering.
(5) to send by first class mail or by other means designed to ensure
equally prompt delivery, within two business days of receipt of a written or
oral request, any Statement of Additional Information.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
and the Investment Company Act of 1940, as amended, the Registrant has duly
caused this Pre-Effective Amendment No. 4 to the 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 the 23rd day of July, 2002.
THE HYPERION STRATEGIC MORTGAGE INCOME FUND, INC.
By: /s/ CLIFFORD E. LAI
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CLIFFORD E. LAI
President
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Pre-Effective Amendment No. 4 to the Registration Statement has been signed
below by the following persons in the capacities and on the date indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ CLIFFORD E. LAI President (Principal Executive
------------------------------------
CLIFFORD E. LAI Officer) July 23, 2002
/s/ LEWIS S. RANIERI** Chairman and Director July 23, 2002
------------------------------------
LEWIS S. RANIERI
/s/ ROBERT F. BIRCH** Director July 23, 2002
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ROBERT F. BIRCH
/s/ RODMAN L. DRAKE** Director July 23, 2002
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RODMAN L. DRAKE
/s/ HARRY E. PETERSEN, JR.** Director July 23, 2002
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HARRY E. PETERSEN, JR.
/s/ LEO M. WALSH, JR.** Director July 23, 2002
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LEO M. WALSH, JR.
/s/ JOHN H. DOLAN* Vice-President July 23, 2002
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JOHN H. DOLAN
/s/ PATRICIA A. SLOAN** Vice President July 23, 2002
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PATRICIA A. SLOAN
/s/ THOMAS F. DOODIAN* Treasurer (Principal Financial
------------------------------------ and Accounting Officer) July 23, 2002
THOMAS F. DOODIAN
/s/ JOSEPH TROPEANO* Secretary July 23, 2002
------------------------------------
JOSEPH TROPEANO
* Signed pursuant to Power of Attorney in Registrant's Registration Statement on
Form N-2 filed on May 22, 2002.
** Signed pursuant to Power of Attorney in Registrant's Pre-Effective Amendment
No. 1 to its Registration Statement on Form N-2 filed on June 20, 2002.
EXHIBIT INDEX
Exhibit No. Description of Exhibit
(N)(2) Consent of PricewaterhouseCoopers LLP