UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
March 11, 2021
Date of Report (Date of earliest event reported)
ANWORTH MORTGAGE ASSET
CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Maryland
(State or Other Jurisdiction of Incorporation)
001-13709 |
52-2059785 |
(Commission File Number) |
(IRS Employer
Identification No.)
|
1299 Ocean Avenue, Second
Floor, Santa Monica, California |
90401 |
(Address of Principal Executive
Offices) |
(Zip Code) |
(310) 255-4493
(Registrant's Telephone Number, Including Area Code)
Check the
appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant
under any of the following provisions:
x |
Written
communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425) |
¨ |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12) |
¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b)) |
¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c)) |
Securities
registered pursuant to Section 12(b) of the Act:
Title of each class |
|
Trading Symbol(s) |
|
Name of each exchange on which
registered |
Common Stock, $0.01 Par
Value |
|
ANH |
|
New York
Stock Exchange |
Series A Cumulative
Preferred Stock, $0.01 Par Value |
|
ANHPRA |
|
New York
Stock Exchange |
Series B Cumulative
Convertible Preferred Stock, $0.01 Par Value |
|
ANHPRB |
|
New York
Stock Exchange |
Series C Cumulative
Redeemable Preferred Stock, $0.01 Par Value |
|
ANHPRC |
|
New York
Stock Exchange |
Indicate by check mark whether the registrant is an
emerging growth company as defined in Rule 405 of the Securities
Act or Rule 12b-2 of the Exchange Act. |
|
Emerging growth
company |
¨ |
|
|
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended
transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 13(a) of the
Exchange Act. ¨ |
As
previously disclosed, on December 6, 2020, Anworth Mortgage Asset
Corporation (“Anworth”) entered into an Agreement and Plan
of Merger with Ready Capital Corporation, a Maryland corporation
(“Ready Capital”), and RC Merger Subsidiary, LLC, a Delaware
limited liability company and a wholly owned subsidiary of Ready
Capital (“Merger Sub”), pursuant to which, subject to the terms and
conditions therein, Anworth will be merged with and into Merger
Sub, with Merger Sub continuing as the surviving company (such
transaction, the “Merger”). On February 9, 2021, Anworth and Ready
Capital respectively filed a definitive joint proxy
statement/prospectus (the “Proxy Statement”) with the U.S.
Securities and Exchange Commission for the solicitation of proxies
in connection with the respective special meetings of the
stockholders of Anworth and the stockholders of Ready Capital, to
be held on March 17, 2021, to vote upon matters in connection with
the Merger.
Nine
lawsuits have been filed by purported stockholders of Anworth, and
one lawsuit has been filed by a purported stockholder of Ready
Capital, with respect to the Merger. The first suit, styled
as Shiva Stein v. Anworth Mortgage Asset Corporation, et
al., 2:21-cv-00122 (the
“Stein Lawsuit”), was filed by a purported stockholder of Anworth
in the United States District Court for the Central District of
California on January 7, 2021 and asserts claims against Anworth
and its board of directors. The second suit, styled as Giuseppe
Alescio v. Anworth Mortgage Asset Corporation, et al., No.
1:21-cv-00258 (the “Alescio Lawsuit”), was filed by a purported
stockholder of Anworth in the United States District Court for the
Southern District of New York on January 12, 2021 and asserts
claims against Anworth, its board of directors, Ready Capital and
the Merger Sub. The third suit, styled Joseph Sheridan v.
Anworth Mortgage Asset Corporation, et al., No. 1:21-cv-00465
(the “Sheridan Lawsuit”), was filed by a purported stockholder of
Anworth in the United States District Court for the Southern
District of New York on January 19, 2021 and asserts claims against
Anworth, its board of directors, Ready Capital and the Merger Sub.
The fourth suit, styled Ken Bishop v. Anworth Mortgage Asset
Corporation, et al., No. 1:21-cv-00331 (the “Bishop Lawsuit”),
was filed by a purported stockholder of Anworth in the United
States District Court for the Eastern District of New York on
January 20, 2021 and asserts claims against Anworth and its board
of directors. The fifth suit, styled Samuel Carlisle v. Anworth
Mortgage Asset Corporation, et al., No. 2:21-cv-00566 (the
“Carlisle Lawsuit”), was filed by a purported stockholder of
Anworth in the United States District Court for the Central
District of California on January 21, 2021 and asserts claims
against Anworth and its board of directors. The sixth suit, styled
Reginald Padilla v. Anworth Mortgage Asset Corporation, et
al., No. 2:21-cv-00702 (the “Padilla Lawsuit”), was filed by a
purported stockholder of Anworth in the United States District
Court for the Central District of California on January 26, 2021
and asserts claims against Anworth and its board of directors. The
seventh suit, styled Antasek et al. v. Anworth Mortgage Asset
Corporation, et al., No. 2:21-cv-00917 (the “Antasek Lawsuit”),
was filed by a purported stockholder of Anworth in the United
States District Court for the Central District of California on
February 1, 2021 and asserts claims against Anworth and its board
of directors. The eighth suit, styled Sean McGillivray v.
Ready Capital Corporation, et al., No. 1:21-cv-01152 (the
“McGillivray Lawsuit”), was filed by a
purported stockholder of Ready Capital in the United States
District Court for the Southern District of New York on February 9,
2021 and asserts claims against Ready Capital and its board of
directors. The ninth suit, styled Adam Franchi v. Anworth
Mortgage Asset Corporation, et al., No. 2:21-cv-01782 (the
“Franchi Lawsuit”), was filed by a purported stockholder of Anworth
in the United District Court for the Central District of California
on February 25, 2021 and asserts claims against Anworth and its
board of directors. The tenth suit, styled Terrance Brodt v.
Anworth Mortgage Asset Corporation, et al., No. 2:21-cv-000981
(the “Brodt Lawsuit”, and collectively with the Stein Lawsuit, the
Alescio Lawsuit, the Sheridan Lawsuit, the Bishop Lawsuit, the
Carlisle Lawsuit, the Padilla Lawsuit, the Antasek Lawsuit, the
McGillivray Lawsuit and the Franchi Lawsuit, the “Lawsuits”), was
filed by a purported stockholder of
Anworth in the United States District Court for the Eastern
District of Pennsylvania on March 1, 2021 and asserts claims
against Anworth, its board of directors, Ready Capital and Merger
Sub.
Each of the Lawsuits alleges that certain of the disclosures in the
Proxy Statement are deficient, and seeks preliminary and injunctive
relief. Anworth and Ready Capital intend to contest the claims
asserted in the Lawsuits. However, in order to avoid further
expense and the nuisance created by the Lawsuits, in particular the
request for preliminary injunctive relief, and notwithstanding
their position that the disclosure of such information is not
required by the federal securities laws, Anworth and Ready Capital
are making the following supplemental disclosures, which are
incorporated in the Proxy Statement by reference:
The disclosure on page 70 of the Proxy Statement is hereby
supplemented by revising the fourth paragraph on the page in its
entirety as follows:
As a result of the initial outreach by Credit Suisse at the
direction of the Anworth Board to five potential counterparties
(including “Company B” and “Company C” as described in more detail
below), as well as unsolicited, direct inquiries by three other
parties, on various dates between May 2020 and
August 2020, Anworth entered into mutual confidentiality and
non-disclosure agreements with six potential counterparties.
The terms of these
agreements ranged from one year to two years and none contained any
provisions that would preclude such counterparties from making a
superior proposal to Anworth. Thereafter, at the
direction of the Anworth Board, Mr. McAdams, representatives
of Credit Suisse and representatives of these potential
counterparties held introductory telephonic meetings to discuss a
potential strategic transaction. Following such initial
interactions, some of these potential counterparties either
declined to further pursue a possible transaction with Anworth or
submitted verbal non-binding proposals that did not, in the view of
the Anworth Board, form the basis for further constructive
discussions.
The disclosure on page 71 of the Proxy Statement is hereby
supplemented by adding a new fifth paragraph after the fourth
paragraph on the page as follows:
Following the meeting,
at the direction of the Anworth Board, Credit Suisse contacted ten
additional potential counterparties as a part of the broader
marketing process. As a result of the outreach, four of the
additional potential counterparties, including Ready Capital,
Company D and Company E (defined below), entered into mutual
confidentiality and non-disclosure agreements between September and
October of 2020. The terms of these agreements ranged from one year
to two years. None of these additional mutual confidentiality and
non-disclosure agreements contained any provisions that would
preclude such counterparties from making a superior proposal to
Anworth.
The disclosure on page 96 of the Proxy Statement is hereby
supplemented by revising the second paragraph on the page in its
entirety as follows:
Credit Suisse then applied a selected range of September 30,
2020 tangible book value (which is referred to in this section as
“TBV”) multiples of 0.70x to 0.90x derived from the
September 30, 2020 TBV multiples of the selected companies to
the September 30, 2020 TBVPS of Anworth. Approximate implied
per share equity values for Anworth derived from such selected
range of September 30, 2020 multiples were calculated as total
implied equity value divided by the total number of fully diluted
shares of Anworth Common Stock outstanding as of November 4, 2020 (99,305,604
shares), as provided by the Anworth Manager. This
analysis indicated the following approximate implied per share
equity value reference ranges for Anworth:
The disclosure on page 109 of the Proxy Statement is hereby
supplemented by revising the table and the accompanying footnotes
under the subheading “Ready Capital Projections” on the page and
that is carried over to page 110 in their entirety as
follows:
|
|
For the year ended December 31, |
|
|
|
2021 |
|
|
2022 |
|
|
2023 |
|
|
2024 |
|
|
2025 |
|
Core
Earnings Per Share(1) |
|
$ |
1.38 |
|
|
$ |
1.24 |
|
|
$ |
1.31 |
|
|
$ |
1.35 |
|
|
$ |
1.38 |
|
Book Value per
Share (end of period) |
|
$ |
14.79 |
|
|
$ |
14.58 |
|
|
$ |
14.42 |
|
|
$ |
14.27 |
|
|
$ |
14.12 |
|
Dividends per Share
/ Distributed Cash
Flows per Share(2) |
|
$ |
1.24 |
|
|
$ |
1.12 |
|
|
$ |
1.18 |
|
|
$ |
1.21 |
|
|
$ |
1.25 |
|
|
(1) |
Core earnings is a non-GAAP measure that Ready Capital defines
as net income (loss) excluding (i) any unrealized gains or
losses on certain MBS, (ii) any unrealized gains or losses on
sales of certain MBS, (iii) any unrealized gains or losses on
residential mortgage servicing rights and (iv) one-time
non-recurring gains or losses, such as gains or losses on
discontinued operations, bargain purchase gains, or merger related
expenses. Ready Capital believes that providing investors with core
earnings gives investors greater transparency into the information
used by management in its financial and operational
decision-making. However, because core earnings is an incomplete
measure of Ready Capital’s financial performance and involves
differences from net income computed in accordance with GAAP, it
should be considered along with, but not as an alternative to, net
income as a measure of financial performance. In addition, because
not all companies use identical calculations, Ready Capital’s
presentation of core earnings may not be comparable to other
similarly-titled measures of other companies. |
|
|
|
|
(2) |
Dividends per Share
and share repurchases together encompass Distributed Cash Flows per
Share. Given that no share repurchases are projected during the
forecast period, Distributed Cash Flows per Share are equal to
Dividends per Share during the forecast period. |
The disclosure on page 112 of the Proxy Statement is hereby
supplemented by revising the table and the accompanying footnotes
on the page in their entirety as follows:
|
|
For the Year Ended December 31, |
|
|
|
2020E |
|
|
2021E |
|
|
2022E |
|
|
2023E |
|
Core
Earnings per Common Share(1) |
|
$ |
0.20 |
|
|
$ |
0.27 |
|
|
$ |
0.32 |
|
|
$ |
0.32 |
|
Book Value per
Common Share (end of period) |
|
$ |
3.07 |
|
|
$ |
3.11 |
|
|
$ |
3.15 |
|
|
$ |
3.20 |
|
Dividends
per Common Share /
Distributed Cash Flows per Common
Share(2) |
|
$ |
0.19 |
|
|
$ |
0.27 |
|
|
$ |
0.32 |
|
|
$ |
0.32 |
|
|
(1) |
Core Earnings is a non-U.S. GAAP measure that Anworth defines
as net income (loss) to common stockholders, excluding (a) all
realized and unrealized gains and losses on securities and
derivatives, (b) premium amortization expense,
(c) depreciation expense on real property, (d) changes in
loss reserves or impairments, and (d) non-recurring expenses
such as transaction-related expenses. As defined, Core Earnings
includes (i) paydown expense on Agency MBS and (ii) net
settlement on interest rate swaps after de-designation. Anworth
believes that the presentation of Core Earnings provides investors
with greater transparency into its period-over-period financial
performance and facilities comparisons to peer REITs. Anworth’s
presentation of core earnings may not be comparable to
similarly-titled measures used by other companies, which may employ
different calculations. As a result, Core Earnings should not be
considered a substitute for Anworth’s GAAP net income (loss), as a
measure of its financial performance, or any measure of Anworth’s
liquidity under GAAP. |
|
(2) |
Dividends per
Common Share and share repurchases together encompass Distributed
Cash Flows per Common Share. Given that no share repurchases are
projected during the forecast period, Distributed Cash Flows per
Common Share are equal to Dividends per Common Share during the
forecast period. |
Item
9.01 |
|
Financial Statements
and Exhibits. |
(a) |
|
Not
Applicable. |
|
|
|
(b) |
|
Not
Applicable. |
|
|
|
(c) |
|
Not
Applicable. |
|
|
|
(d) |
|
Exhibits. |
|
|
|
|
|
Exhibit 99.1 |
Complaint filed by Shiva
Stein on January 7, 2021 in the United States District Court for the Central
District of California. |
|
|
|
|
|
|
Exhibit 99.2 |
Complaint filed
by Giuseppe Alescio on January
12, 2021 in the United States District Court for the Southern
District of New York. |
|
|
|
|
|
|
Exhibit 99.3 |
Complaint filed
by Joseph Sheridan on January
19, 2021 in the United States District Court for the Southern
District of New York. |
|
|
|
|
|
|
Exhibit 99.4 |
Complaint filed by Ken
Bishop on January 20, 2021 in the United States District Court for the Eastern
District of New York. |
|
|
|
|
|
|
Exhibit 99.5 |
Complaint filed
by Samuel Carlisle on January
21, 2021 in the United States District Court for the Central
District of California. |
|
|
|
|
|
|
Exhibit 99.6 |
Complaint filed
by Reginald Padilla on January
26, 2021 in the United States District Court for the Central
District of California. |
|
|
|
|
|
|
Exhibit 99.7 |
Complaint filed
by Antasek et al. on February
1, 2021 in the United States District Court for the Central
District of California. |
|
|
|
|
|
|
Exhibit 99.8 |
Complaint filed by Sean
McGillivray on February 9, 2021 in the United States District Court
for the Southern District of New York. |
|
|
|
|
|
|
Exhibit 99.9 |
Complaint filed by Adam
Franchi on February 25, 2021 in the United States District Court
for the Central District of California. |
|
|
|
|
|
|
Exhibit
99.10 |
Complaint filed by
Terrance Brodt on March 1, 2021 in the United States District Court
for the Eastern District of Pennsylvania. |
|
|
|
|
|
|
Exhibit 104 |
Cover Page Interactive Data File
(embedded within the Inline XBRL document) |
Important Additional Information about the Proposed Merger and
Where to Find It
In connection with the proposed Merger, Ready Capital has filed
with the SEC a registration statement on Form S-4 (File No.
333-251863), which was declared effective by the SEC on February 9,
2021. The registration statement includes a prospectus of Ready
Capital and a joint proxy statement of Anworth and Ready Capital.
Anworth and Ready Capital also expect to file with the SEC other
documents regarding the Merger.
STOCKHOLDERS OF ANWORTH AND READY CAPITAL ARE ADVISED TO READ THE
REGISTRATION STATEMENT AND THE PROXY STATEMENT (INCLUDING ALL OTHER
RELEVANT DOCUMENTS THAT ARE FILED OR WILL BE FILED WITH THE SEC, AS
WELL AS ANY AMENDMENTS AND SUPPLEMENTS TO THESE DOCUMENTS)
CAREFULLY AND IN THEIR ENTIRETY BECAUSE THEY CONTAIN IMPORTANT
INFORMATION ABOUT ANWORTH, READY CAPITAL, THE PROPOSED MERGER, AND
RELATED MATTERS. Stockholders of Anworth and Ready Capital may
obtain free copies of the registration statement, the Proxy
Statement, and all other documents filed or that will be filed with
the SEC by Anworth or Ready Capital at the SEC’s website at
http://www.sec.gov. Copies of documents filed with the SEC by
Anworth are available free of charge on Anworth’s website at
http://www.anworth.com, or by directing a request to its Investor
Relations, Attention: John T. Hillman at (310) 255-4438; email:
jhillman@anworth.com. Copies of documents filed with the SEC by
Ready Capital are available free of charge on Ready Capital’s
website at http://www.readycapital.com, or by directing a request
to its Investor Relations at (212) 257-4666; email:
InvestorRelations@readycapital.com.
This communication shall not constitute an offer to sell or the
solicitation of an offer to buy any securities, nor shall there be
any sale of securities in any jurisdiction in which such offer,
solicitation or sale would be unlawful prior to the registration or
qualification under the securities laws of any such jurisdiction.
No offering of securities shall be made, except by means of a
prospectus meeting the requirements of Section 10 of the Securities
Act of 1933, as amended (the “Securities Act”), or an exemption
therefrom.
Participants in the Solicitation Relating to the Merger
Anworth, its directors and executive officers, and certain other
affiliates of Anworth may be deemed to be “participants” in the
solicitation of proxies from the stockholders of Anworth in
connection with the proposed Merger. Information regarding Anworth,
its directors and executive officers and their respective ownership
of common stock of Anworth, and the respective interests of such
participants in the Merger can be found in the Proxy Statement for
Anworth’s special meeting of stockholders, filed by Anworth with
the SEC on February 9, 2021. A free copy of the Proxy Statement may
be obtained from the sources described above.
Ready Capital and its directors and executive officers may also be
deemed to be participants in the solicitation of proxies from the
stockholders of Anworth in connection with the proposed Merger. A
list of the names of such directors and executive officers and
information regarding their interests in the proposed Merger are
included in the Proxy Statement for the proposed Merger.
Forward-Looking Statements
This Current Report on Form 8-K includes “forward-looking
statements”, as such term is defined in Section 27A of the
Securities Act and Section 21E of the Securities Exchange Act of
1934, as amended, and such statements are intended to be covered by
the safe harbor provided by the same. These forward-looking
statements are based on current assumptions, expectations and
beliefs of Anworth and Ready Capital and are subject to a number of
trends and uncertainties that could cause actual results to differ
materially from those described in the forward-looking statements.
Neither Anworth nor Ready Capital can give any assurance that these
forward-looking statements will be accurate. These forward-looking
statements generally can be identified by phrases such as “will”,
“expects”, “anticipates”, “foresees”, “forecasts”, “estimates” or
other words or phrases of similar import. Similarly, statements
herein that describe certain plans, expectations, goals,
projections and statements about the proposed Merger, including the
expected timing of completion of the Merger, and other statements
of management’s beliefs, intentions or goals also are
forward-looking statements. It is uncertain whether any of the
events anticipated by the forward-looking statements will transpire
or occur, or if any of them do, what impact they will have on the
results of operations and financial condition of the combined
companies. There are a number of risks and uncertainties, many of
which are beyond the parties’ control, that could cause actual
results to differ materially from the forward-looking statements
included herein, including, but not limited to, the risk that the
Merger will not be consummated within the expected time period or
at all; the occurrence of any event, change or other circumstances
that could give rise to the termination of the Merger Agreement;
the possibility that stockholders of Anworth may not approve the
Merger Agreement; the possibility that stockholders of Ready
Capital may not approve the issuance of Ready Capital common stock
in connection with the Merger; the risk that the parties may not be
able to satisfy the conditions to the Merger in a timely manner or
at all; risks related to disruption of management’s attention from
ongoing business operations due to the proposed Merger; the risk
that any announcements relating to the Merger could have adverse
effects on the market price of common stock of Anworth or Ready
Capital; the risk that the Merger and its announcement could have
an adverse effect on the operating results and businesses of
Anworth and Ready Capital generally; the outcome of any legal
proceedings relating to the Merger; the ability to successfully
integrate the businesses following the Merger; the ability to
retain key personnel; the impact of the COVID-19 pandemic on the
business and operations, financial condition, results of
operations, and liquidity and capital resources of Anworth or Ready
Capital; conditions in the market for mortgage-related investments;
changes in interest rates; changes in the yield curve; changes in
prepayment rates; the availability and terms of financing; market
conditions; general economic conditions; and legislative and
regulatory changes that could adversely affect the business of
Anworth or Ready Capital. All such factors are difficult to
predict, including those risks set forth in Anworth’s annual
reports on Form 10-K, quarterly reports on Form 10-Q, and current
reports on Form 8-K that are available on its website at
http://www.anworth.com and on the SEC’s website at
http://www.sec.gov, and those risks set forth in Ready Capital’s
annual reports on Form 10-K, quarterly reports on Form 10-Q, and
current reports on Form 8-K that are available on Ready Capital’s
website at http://www.readycapital.com and on the SEC’s website at
http://www.sec.gov. The forward-looking statements included in this
Current Report on Form 8-K are made only as of the date hereof.
Readers are cautioned not to place undue reliance on these
forward-looking statements that speak only as of the date hereof.
Neither Anworth nor Ready Capital undertakes any obligation to
update these forward-looking statements to reflect subsequent
events or circumstances, except as required by applicable law.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, as amended, the Registrant has duly caused this report to be
signed on its behalf by the undersigned, hereunto duly
authorized.
Date: March
11, 2021 |
ANWORTH
MORTGAGE ASSET CORPORATION |
|
|
|
By: |
/s/ Joseph E. McAdams |
|
|
Chief Executive
Officer and President |
Exhibit 99.1
 |
Case 2:21-cv-00122 Document 1 Filed 01/07/21 Page 1 of 20 Page ID
#:1 BETSY C. MANIFOLD (SBN 182450) RACHELE R. BYRD (SBN 190634)
MARISA C. LIVESAY (SBN 223247) BRITTANY N. DEJONG (SBN 258766) WOLF
HALDENSTEIN ADLER FREEMAN & HERZ LLP 750 B Street, Suite 1820
San Diego, CA 92101 5Telephone: (619) 239-4599 6Facsimile: (619)
234-4599 manifold@whafh.com byrd@whafh.com livesay@whafh.com
dejong@whafh.com Attorneys for Plaintiff [Additional Counsel on
Signature Page] 11 UNITED STATES DISTRICT COURT 12CENTRAL DISTRICT
OF CALIFORNIA 13 SHIVA STEIN,) ) ) Plaintiff,) ) ) v.) ) ANWORTH
MORTGAGE ASSET) CORPORATION, JOSEPH E.) ) C. DAVIS, MARK S. MARON,
LLOYD MCADAMS, and) DOMINIQUE MIELLE,) ) Case No. COMPLAINT FOR
VIOLATIONS OF SECTIONS 14(a) AND 20(a) OF THE SECURITIES EXCHANGE
ACT OF 1934 DEMAND FOR JURY TRIAL Defendants.) 22 23 24 25 26 27
28 |
 |
Case 2:21-cv-00122 Document 1 Filed 01/07/21 Page 2 of 20 Page ID
#:2 Plaintiff Shiva Stein (“Plaintiff”), by her attorneys, makes
the following allegations against Anworth Mortgage Asset
Corporation (“Anworth” or the “Company”) and the members of the
board of directors of Anworth (the “Board” or “Individual
Defendants,” along with Anworth, collectively referred to as the
“Defendants”), for their violations of Sections 14(a) and 20(a) of
the Securities Exchange Act of 1934 (the “Exchange Act”), 15 U.S.C.
§§ 78n(a), 78t(a), SEC 7Rule 14a-9, 17 C.F.R. 240.14a-9, and
Regulation G, 17 C.F.R. § 244.100 in connection with the proposed
acquisition (the “Proposed Transaction”) of Anworth by affiliates
of Ready Capital Corporation (“Ready Capital”).The allegations in
this complaint are based on the personal knowledge of Plaintiff as
to herself and on information and belief (including the
investigation of counsel and review of publicly available
information) as to all other matters stated herein. INTRODUCTION
1.This is an action brought by Plaintiff to enjoin a transaction
whereby RC Merger Subsidiary, LLC, a Delaware limited liability
company (“Merger Sub”) will merge with and into Anworth, pursuant
to which Anworth will merge with and into Merger Sub, with Merger
Sub continuing as the surviving company. After which, the surviving
company will be contributed to Ready Capital’s operating
partnership subsidiary, Sutherland Partners, L.P., in exchange for
units of limited partnership interests in the Ready Capital
Operating Partnership, and as a result, the surviving company will
become a wholly owned subsidiary of the Ready Capital
OperatingPartnership(“ProposedTransaction”).PursuanttotheMerger
Agreement, Anworth shareholders will receive (i) 0.1688 shares of
Ready Capital Common Stock (hereinafter, the “Exchange Ratio”),
plus (ii) $0.61 in cash minus the Per Share Excess Amount (if any),
in each case, subject to adjustment as provided in the Merger
Agreement (the “Merger Consideration”). The Board has unanimously
recommended to the Company’s stockholders that they vote for the
Proposed Transaction at the special meeting of the Anworth
shareholders. Anworth - 1 - |
 |
Case 2:21-cv-00122 Document 1 Filed 01/07/21 Page 3 of 20 Page ID
#:3 shareholders will own approximately 24% of the post-transaction
entity and Ready Capital shareholders will own 76% of the
post-transaction entity. 2.To convince Anworth stockholders to vote
in favor of the Proposed Transaction, on January 4, 2021, the Board
authorized the filing of a materially incomplete and misleading
Registration Statement on Form S-4 (the “Registration Statement”)
with the Securities and Exchange Commission (“SEC”).The
Registration Statement violates Sections 14(a) and 20(a) of the
Exchange Act by noncompliance with Regulation G and SEC Rule 14a-9
(17 C.F.R. § 244.100 and 17 C.F.R. § 240.14a-9, respectively).
3.Defendantshavefailedtodisclosecertainmaterialinformation
necessary for Anworth stockholders to properly assess the fairness
of the Proposed Transaction, thereby violating SEC rules and
regulations and rendering certain statements in the Registration
Statement materially incomplete and misleading. 4.In particular,
the Registration Statement contains materially incomplete and
misleading information concerning the financial forecasts for the
Company prepared and relied upon by the Board in recommending to
the Company’s stockholders that they vote in favor of the Proposed
Transaction. The same forecasts were used by Anworth’s financial
advisor, Credit Suisse Securities (USA) LLC, in conducting its
valuation analyses in support of its fairness opinion. The
RegistrationStatementalsocontainsmateriallyincompleteandmisleading
information concerning certain financial analyses performed by the
financial advisors. 5.The material information that has been
omitted from the Registration Statement must be disclosed prior to
the forthcoming stockholder vote in order to allow the stockholders
to make an informed decision regarding the Proposed Transaction.
6.For these reasons, and as set forth in detail herein, Plaintiff
asserts claims against Defendants for violations of Sections 14(a)
and 20(a) of the - 2 - |
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Case 2:21-cv-00122 Document 1 Filed 01/07/21 Page 4 of 20 Page ID
#:4 Exchange Act, based on Defendants’ violations of Regulation G
and Rule 14a-9. Plaintiff seeks to enjoin Defendants from holding
the stockholders vote on the
ProposedTransactionandtakinganystepstoconsummatetheProposed
Transaction unless, and until, all material information discussed
below is disclosed to Anworth stockholders sufficiently in advance
of the vote on the Proposed Transaction or, in the event the
Proposed Transaction is consummated without corrective disclosures,
to recover damages resulting from Defendants’ violations of the
Exchange Act. JURISDICTION AND VENUE 7.This Court has subject
matter jurisdiction pursuant to Section 27 of the Exchange Act (15
U.S.C. § 78aa) and 28 U.S.C. § 1331 (federal question jurisdiction)
as Plaintiff alleges violations of Section 14(a) and 20(a) of the
Exchange Act. 8.This Court has personal jurisdiction over each
defendant named herein because each defendant is either a
corporation that does sufficient business in California or an
individual who has sufficient minimum contacts with California to
render the exercise of jurisdiction by the California courts
permissible under traditional notions of fair play and substantial
justice. 9.Venue is proper in this District under Section 27 of the
Exchange Act, 15 U.S.C. § 78aa, as well as under 28 U.S.C. § 1391,
because Anworth is headquartered in this District. PARTIES
10.Plaintiff has owned the common stock of Anworth since prior to
the announcement of the Proposed Transaction herein complained of
and continues to own this stock. 11.Anworth is a corporation duly
organized and existing under the laws of Maryland and maintains its
principal offices in Santa Monica, California. Anworth is, and at
all relevant times hereto was, listed and traded on the New York
Stock - 3 - |
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Case 2:21-cv-00122 Document 1 Filed 01/07/21 Page 5 of 20 Page ID
#:5 Exchange under the symbol “ANH.” 12.Defendant Joseph E. McAdams
has been a member of the Board since 2002 and is also the
President, Chief Executive Officer, and Chief Investment Officer of
the Company, as well as the Chairman of the Board. 13.Defendant Joe
E. Davis has been a member of the Board since the Company’s
formation in 1997. 14.Defendant Robert C. Davis has been a member
of the Board since 2005. 15.Defendant Mark S. Maron has been a
member of the Board since 2014. 16.Defendant Lloyd McAdams has been
a member of the Board since the Company’s formation in 1997.
17.Defendant Dominique Mielle has been a member of the Board since
122018. 18.The Defendants referred to in paragraphs 12-17 are
collectively referred to herein as the “Individual Defendants”
and/or the “Board.” 19.The Defendants referred to in paragraphs
11-17 are collectively referred to herein as the “Defendants.”
SUBSTANTIVE ALLEGATIONS The Proposed Transaction 20.On December 7,
2020, Anworth and Ready Capital jointly announced that it had
entered into the Agreement and Plan of Merger (the “Merger
Agreement”): 22 NEWYORK and SANTAMONICA,Calif., Dec.7, 2020
/PRNewswire/--ReadyCapitalCorporation(NYSE:RC) (“Ready Capital”), a
multi-strategy real estate finance company that originates,
acquires, finances and services small-to medium-sized balance
commercial loans, and Anworth Mortgage Asset Corporation (NYSE:ANH)
(“Anworth”), a specialty finance REIT that focuses - 4
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Case 2:21-cv-00122 Document 1 Filed 01/07/21 Page 6 of 20 Page ID
#:6 primarily on investments in residential mortgage-backed
securities, announced today that they have entered into a
definitive merger agreement pursuant to which Ready Capital will
combine with Anworth. The combined company is expected to have a
pro forma equity capital base in excess of $1 billion. The
combination is expected to enhance shareholder liquidity and
provide for increased operating leverage across the larger equity
base. 8 Under the terms of the merger agreement, each share of
Anworth common stock will be converted into 0.1688 shares of Ready
Capital common stock and $0.61 of cash consideration. Based on
Ready Capital's closing stock price on Friday, December 4, 2020,
the implied offer price is $2.94 per share. Upon the closing of the
merger, Ready Capital stockholders are expected to own
approximately 76% of the combined company’s stock, while Anworth
stockholders are expected to own approximately 24% of the combined
company's stock. Ready Capital will also assume Anworth’s three
outstanding series of preferred stock. 19 In connection with the
merger, Waterfall Asset Management, LLC (“Waterfall”), Ready
Capital's external manager, has agreed to reduce the base
management fee it charges Ready Capital by an aggregate of $4
million over the four quarters immediately following the closing of
the transaction. 25 Based on the closing prices of Ready Capital’s
common stock on December 4, 2020, the market capitalization of the
combined companywouldbeapproximately $984million.Thecombined - 5
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Case 2:21-cv-00122 Document 1 Filed 01/07/21 Page 7 of 20 Page ID
#:7 company will operate under the name Ready Capital and its
shares are expected to continue trading on the New York Stock
Exchange under the existing ticker symbol “RC”. 4 “This merger
highlights our continued focus on establishing Ready Capital as an
industry-leading mortgage REIT, with the scale and financial
resources to pursue compelling risk-adjusted returns across its
diversified investment platform,” stated Ready Capital Chairman
andChiefExecutiveOfficer ThomasCapasse.“Thecombined company will be
in a more formidable position to execute its business plan, improve
operating and cost efficiencies, and continue growth in a prudent
and profitable manner.” 13 Anticipated Benefits to Ready Capital
and Anworth Stockholders from the Merger Over $1 billion combined
capital base and a diversified investment portfolio Portfolio
redeployment will enable Ready Capital to capitalize on attractive
investment opportunities Scale advantages include: oReduced
operating expenses (as a percentage of combined capital base)
oImproved access to financing, including corporate debt funding
alternatives oGreater portfolio diversification oEnhanced
shareholder liquidity and investor base diversity 27 28 - 6
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Case 2:21-cv-00122 Document 1 Filed 01/07/21 Page 8 of 20 Page ID
#:8 Management, Governance and Corporate Headquarters Upon
completion of the merger, Ready Capital’s Chairman and Chief
Executive Officer Thomas Capasse will lead the company and Ready
Capitalexecutives JackRoss, ThomasButtacavoli, Andrew Ahlborn and
GaryTaylor willremainintheircurrentroles. The
combinedcompanywillbeheadquarteredin NewYork,New York. The Board of
the combined company is expected to have eight directors,
consisting of Ready Capital's existing seven directors and one
independent director from Anworth’s current Board. 10 Timing and
Approvals The transaction has been unanimously approved by each of
the Boards of Directors of Ready Capital and Anworth. The
transaction is expected to close by the end of the first quarter of
2021, subject to the respective approvals by the stockholders of
Anworth and Ready Capital and other customary closing conditions.
17 Advisors Wells Fargo Securities is acting as exclusive financial
advisor and Alston & Bird LLP is acting as legal advisor to
Ready Capital. Credit Suisse is acting as exclusive financial
advisor and Greenberg Traurig LLP is acting as legal advisor to the
Board of Directors of Anworth. 23 * * * 24 The Materially
Misleading and Incomplete Solicitation Statement 21.On January 4,
2021, Defendants caused the Registration Statement to be filed with
the SEC in connection with the Proposed Transaction.The 28 - 7
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Case 2:21-cv-00122 Document 1 Filed 01/07/21 Page 9 of 20 Page ID
#:9 Registration Statement solicits the Company’s shareholders to
vote in favor of the
ProposedTransaction.Defendantswereobligatedtocarefullyreviewthe
Registration Statement before it was filed with the SEC and
disseminated to the
Company’sshareholderstoensurethatitdidnotcontainanymaterial
misrepresentationsoromissions.However,theRegistrationStatement
misrepresentsand/oromitsmaterialinformationthatisnecessaryforthe
Company’s shareholders to make an informed decision concerning
whether to vote in favor of the Proposed Transaction, in violation
of Sections 14(a) and 20(a) of the Exchange Act. Financial
Forecasts 22.The Registration Statement discloses tables for
forecasts for both Anworth and Ready Capital (the
“Projections”).However, the Registration Statement fails to provide
material information concerning these Projections, which were
developed by the Company’s management and relied upon by the Board
in recommending that the shareholders vote in favor of the Proposed
Transaction. These financial forecasts were also relied upon by the
Company’s financial advisor, Credit Suisse, in rendering its
fairness opinion. 23.With respect to the Ready Capital Management
Projections, the Registration Statement fails to provide (i) the
values of certain line items used to calculate Core Earnings Per
Share, a non-GAAP measure; and (ii) a reconciliation to its most
comparable GAAP measures, in direct violation of Regulation G and,
consequently, Section 14(a).
24.WithrespecttotheAnworthManagementProjections,the Registration
Statement fails to provide: (i) the values of certain line items
used to calculate Core Earnings Per Share, a non-GAAP measure; and
(ii) a reconciliation to its most comparable GAAP measures, in
direct violation of Regulation G and, consequently, Section 14(a).
25.The SEC has indicated that if the most directly comparable GAAP
- 8 - |
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Case 2:21-cv-00122 Document 1 Filed 01/07/21 Page 10 of 20 Page ID
#:10 measure is not accessible on a forward-looking basis, the
company must disclose that fact, provide any reconciling
information that is available without unreasonable effort, identify
any unavailable information and disclose the probable significance
of that information. A company is permitted to provide the
projected non-GAAP measure, omit the quantitative reconciliation
and qualitatively explain the types of gains, losses, revenues or
expenses that would need to be added to or subtracted from the
non-GAAP measure to arrive at the most directly comparable GAAP
measure, without attempting to quantify all those items. 26.When a
company discloses non-GAAP financial measures in a registration
statement that were relied on by a board of directors to recommend
that shareholders exercise their corporate suffrage rights in a
particular manner, the company must, pursuant to SEC regulatory
mandates, also disclose all forecasts and information necessary to
make the non-GAAP measures not misleading, and must provide a
reconciliation (by schedule or other clearly understandable method)
of the differences between the non-GAAP financial measure disclosed
or released with the most comparable financial measure or measures
calculated and presented in accordance with GAAP. 17 C.F.R. §
244.100. 27.Indeed, the SEC has increased its scrutiny of the use
of non-GAAP
financialmeasuresincommunicationswithshareholders.FormerSEC
Chairwoman Mary Jo White has stated that the frequent use by
publicly traded companies of unique company-specific, non-GAAP
financial measures (as Anworth included in the Registration
Statement here), implicates the centerpiece of the SEC’s
disclosures regime: 24 In too many cases, the non-GAAP information,
which is meant to supplement the GAAP information, has become the
key message to
investors,crowdingoutandeffectivelysupplantingtheGAAP
presentation.Jim Schnurr, our Chief Accountant, Mark Kronforst, - 9
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Case 2:21-cv-00122 Document 1 Filed 01/07/21 Page 11 of 20 Page ID
#:11 our Chief Accountant in the Division of Corporation Finance
and I, along with other members of the staff, have spoken out
frequently about our concerns to raise the awareness of boards,
management and investors.And last month, the staff issued guidance
addressing a numberoftroublesomepracticeswhichcanmakenon-GAAP
disclosures misleading: the lack of equal or greater prominence for
GAAP measures; exclusion of normal, recurring cash operating
expenses;individuallytailorednon-GAAPrevenues;lackof consistency;
cherry-picking; and the use of cash per share data.I strongly urge
companies to carefully consider this guidance and revisit their
approach to non-GAAP disclosures. I also urge again, as I did last
December, that appropriate controls be considered and that audit
committees carefully oversee their company’s use of non-GAAP
measures and disclosures.1 28.The SEC has repeatedly emphasized
that disclosure of non-GAAP forecasts can be inherently misleading
and has therefore heightened its scrutiny of the use of such
forecasts.2Indeed, the SEC’s Division of Corporation Finance
released a new and updated Compliance and Disclosure Interpretation
(“C&DI”) on 1Mary Jo White, Keynote Address, International
Corporate Governance 20 Network Annual Conference: Focusing the
Lens of Disclosure to Set the Path Forward on Board Diversity,
Non-GAAP, and Sustainability (June 27, 2016),
https://www.sec.gov/news/speech/chair-white-icgn-speech.html (last
visited Jan 6, 2021) (emphasis added). 2See, e.g., Nicolas Grabar
and Sandra Flow, Non-GAAP Financial Measures: The SEC’s Evolving
Views, HARVARD LAW SCHOOL FORUM ON CORPORATE GOVERNANCE (June 24,
2016),
https://corpgov.law.harvard.edu/2016/06/24/non-gaap-financial-measures-the-secs-evolving-views/(lastvisitedJan6,2021);
Gretchen Morgenson, Fantasy Math Is Helping Companies Spin Losses
Into Profits,THENEWYORKTIMES(Apr.22,2016),
http://www.nytimes.com/2016/04/24/business/fantasy-math-is-helping-companies-spin-losses-into-profits.html?_r=0
(last visited Jan. 6, 2021). - 10 - |
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Case 2:21-cv-00122 Document 1 Filed 01/07/21 Page 12 of 20 Page ID
#:12 the use of non-GAAP financial measures to clarify the
extremely narrow and limited circumstances, known as the business
combination exemption, where Regulation G would not apply.3 29.More
importantly, the C&DI clarifies when the business combination
exemption does not apply: 6 There is an exemption from Regulation G
and Item 10(e) of Regulation S-K for non-GAAP financial measures
disclosed in communications subject to Securities Act Rule 425 and
Exchange Act Rules 14a-12 and 14d-2(b)(2); it is also intended to
apply to communications subject to Exchange Act Rule 14d-9(a)(2).
This exemptiondoesnotextendbeyondsuchcommunications. Consequently,
if the same non-GAAP financial measure that was included in a
communication filed under one of those rules is also disclosed in a
Securities Act registration statement, proxy statement, or tender
offer statement, this exemption from Regulation G and Item 10(e) of
Regulation S-K would not be available for that non-GAAP financial
measure. Id. 19
30.Thus,theC&DImakesclearthattheso-called“business combination”
exemption from the Regulation G non-GAAP to GAAP reconciliation
requirement applies solely to the extent that a third-party, such
as a financial advisor, has utilized projected non-GAAP financial
measures to render a report or opinion to the Board. To the extent
the Board also examined and relied on internal 24 3Non-GAAP
FinancialMeasures, U.S. SECURITIES AND EXCHANGE COMMISSION (Apr. 4,
2018), 26
https://www.sec.gov/divisions/corpfin/guidance/nongaapinterp.htm#101(last
visited Jan 6, 2021). To be sure, there are other situations where
Regulation G would not apply but are not applicable here. - 11
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Case 2:21-cv-00122 Document 1 Filed 01/07/21 Page 13 of 20 Page ID
#:13 financial forecasts to recommend a transaction, Regulation G
applies. 31.Thus, to bring the Registration Statement into
compliance with Regulation G as well as cure the materially
misleading nature of the forecasts under SEC Rule 14a-9 as a result
of the omitted information, Defendants must provide a
reconciliation table of the non-GAAP measures to the most
comparable GAAP measures. Financial Analyses 32.With respect to
Credit Suisse’s Selected Public Companies Analysis – Anworth, the
Registration Statement fails to disclose the individual multiples
and metrics for the companies observed by Credit Suisse in the
analysis. 33.With respect to Credit Suisse’s Selected Public
Companies Analysis – Ready Capital, the Registration Statement
fails to disclose the individual multiples and metrics for the
companies observed by Credit Suisse in the analysis. 34.With
respect to Credit Suisse’s Selected Precedent Transactions
Analysis, the Registration Statement fails to disclose the
individual multiples and metrics for the transactions observed by
Credit Suisse in the analysis. 35.WithrespecttoCreditSuisse’s
DividendDiscountAnalysis– Anworth, the Registration Statement fails
to disclose: (i) the terminal values for Anworth; (ii) the basis
for applying a range of TBVPS multiples of 0.70x to 0.90x to
Anworth’s estimated book value as of December 31, 2023; (iii)
Anworth’s estimated book value as of December 31, 2023; (iv) the
underlying inputs used to derive the discount rate of 9.0% to
14.0%; and (v) the number of fully diluted outstanding shares of
Anworth common stock. 36.With respect to Credit Suisse’s Dividend
Discount Analysis – Ready Capital, the Registration Statement fails
to disclose: (i) the terminal values for Ready Capital; (ii) the
basis for applying a range of TBVPS multiples of 0.80x to 1.00x to
Ready Capital’s estimated book value as of December 31, 2025; (iii)
the present values of the distributed cash flows for Ready Capital;
(iv) Ready Capital’s - 12 - |
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Case 2:21-cv-00122 Document 1 Filed 01/07/21 Page 14 of 20 Page ID
#:14 estimated book value as of December 31, 2025; and (v) the
underlying inputs used to derive the discount rate of 9.0% to
13.0%. 37.In sum, the Registration Statement independently violates
both: (i) Regulation G, which requires a presentation and
reconciliation of any non-GAAP financial measure to their most
directly comparable GAAP equivalent; and (ii) Rule 14a-9, since the
material omitted information renders certain statements, discussed
above, materially incomplete and misleading.As the Registration
Statement independently contravenes the SEC rules and regulations,
Defendants violated Section 14(a) and Section 20(a) of the Exchange
Act by filing the Registration Statement to garner votes in support
of the Proposed Transaction from Anworth shareholders. 38.Absent
disclosure of the foregoing material information prior to the
special shareholder meeting to vote on the Proposed Transaction,
Plaintiff will not be able to make a fully informed decision
regarding whether to vote in favor of the Proposed Transaction, and
she is thus threatened with irreparable harm, warranting the
injunctive relief sought herein. 17 FIRST CAUSE OF ACTION (Against
All Defendants for Violations of Section 14(a) of the Exchange Act
and 17 C.F.R. § 244.100 Promulgated Thereunder) 39.Plaintiff
repeats and re-alleges each allegation set forth above as if fully
set forth herein. 40.Section 14(a)(1) of the Exchange Act makes it
“unlawful for any person, by the use of the mails or by any means
or instrumentality of interstate commerce or of any facility of a
national securities exchange or otherwise, in contravention of such
rules and regulations as the Commission may prescribe as necessary
or appropriate in the public interest or for the protection of
investors, to solicit or to permit the use of his name to solicit
any proxy statement or consent or authorization in respect of any
security (other than an exempted security) registered - 13
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Case 2:21-cv-00122 Document 1 Filed 01/07/21 Page 15 of 20 Page ID
#:15 pursuant to section 78l of this title.” 15 U.S.C. § 78n(a)(1).
41.As set forth above, the Registration Statement omits information
required by SEC Regulation G, 17 C.F.R. § 244.100, which
independently violates Section 14(a). SEC Regulation G, among other
things, requires an issuer that chooses to disclose a non-GAAP
measure to provide a presentation of the “most directly comparable”
GAAP measure, and a reconciliation “by schedule or other clearly
understandable method” of the non-GAAP measure to the “most
directly comparable” GAAP measure. 17 C.F.R. § 244.100(a). 42.The
failure to reconcile the numerous non-GAAP financial measures
included in the Registration Statement violates Regulation G and
constitutes a violation of Section 14(a). 12 SECOND CAUSE OF ACTION
(Against All Defendants for Violations of Section 14(a) of the
Exchange Act and Rule 14a-9 Promulgated Thereunder) 43.Plaintiff
repeats and re-alleges each allegation set forth above as if fully
set forth herein. 44.SEC Rule 14a-9 prohibits the solicitation of
shareholder votes in registration statements that contain “any
statement which, at the time and in the light of the circumstances
under which it is made, is false or misleading with respect to any
material fact, or which omits to state any material fact necessary
in order to make the statements therein not false or misleading . .
. .”17 C.F.R. § 22240.14a-9. 45.Regulation G similarly prohibits
the solicitation of shareholder votes by “mak[ing] public a
non-GAAP financial measure that, taken together with the
information accompanying that measure . . . contains an untrue
statement of a material fact or omits to state a material fact
necessary in order to make the presentation of the non-GAAP
financial measure . . . not misleading.” 17 C.F.R. § 28244.100(b).
- 14 - |
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Case 2:21-cv-00122 Document 1 Filed 01/07/21 Page 16 of 20 Page ID
#:16 46.Defendants have issued the Registration Statement with the
intention of soliciting shareholder support for the Proposed
Transaction. Each of the
DefendantsreviewedandauthorizedthedisseminationoftheRegistration
Statement, which fails to provide critical information regarding,
amongst other things, the financial forecasts for the Company.
47.In so doing, Defendants made untrue statements of fact and/or
omitted material facts necessary to make the statements made not
misleading. Each of the Individual Defendants, by virtue of their
roles as officers and/or directors, were aware of the omitted
information but failed to disclose such information, in violation
of Section 14(a). The Individual Defendants were therefore
negligent, as they had reasonable grounds to believe material facts
existed that were misstated or omitted from the Registration
Statement, but nonetheless failed to obtain and disclose such
information to shareholders although they could have done so
without extraordinary effort. 48.The Individual Defendants knew or
were negligent in not knowing that the Registration Statement is
materially misleading and omits material facts that arenecessary to
render it notmisleading. TheIndividual Defendants undoubtedly
reviewed and relied upon the omitted information identified above
in connectionwiththeirdecisiontoapproveandrecommendtheProposed
Transaction. 49.The Individual Defendants knew or were negligent in
not knowing
thatthematerialinformationidentifiedabovehasbeenomittedfromthe
Registration Statement, rendering the sections of the Registration
Statement identified above to be materially incomplete and
misleading. 50.The Individual Defendants were, at the very least,
negligent in
preparingandreviewingtheRegistrationStatement.Thepreparationofa
registrationstatementbycorporateinsiderscontainingmateriallyfalseor
misleading statements or omitting a material fact constitutes
negligence. The - 15 - |
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Case 2:21-cv-00122 Document 1 Filed 01/07/21 Page 17 of 20 Page ID
#:17 Individual Defendants were negligent in choosing to omit
material information from the Registration Statement or failing to
notice the material omissions in the Registration Statement upon
reviewing it, which they were required to do carefully as the
Company’s directors. Indeed, the Individual Defendants were
intricately involved in the process leading up to the signing of
the Merger Agreement and the preparation of the Company’s financial
forecasts. 51.Anworth is also deemed negligent as a result of the
Individual Defendants’ negligence in preparing and reviewing the
Registration Statement. 52.The misrepresentations and omissions in
the Registration Statement are material to Plaintiff, who will be
deprived of her right to cast an informed vote if such
misrepresentations and omissions are not corrected prior to the
vote on the Proposed Transaction. 53.Plaintiff has no adequate
remedy at law. Only through the exercise of this Court’s equitable
powers can Plaintiff be fully protected from the immediate and
irreparable injury that Defendants’ actions threaten to inflict.
THIRD CAUSE OF ACTION (Against the Individual Defendants for
Violations of Section 20(a) of the Exchange Act) 54.Plaintiff
incorporates each and every allegation set forth above as if fully
set forth herein. 55.The Individual Defendants acted as controlling
persons of Anworth within the meaning of Section 20(a) of the
Exchange Act as alleged herein.By virtue of their positions as
officers and/or directors of Anworth, and participation in and/or
awareness of the Company’s operations and/or intimate knowledge of
the incomplete and misleading statements contained in the
Registration Statement filed with the SEC, they had the power to
influence and control and did influence and control, directly or
indirectly, the decision making of the Company, including the
content and dissemination of the various statements that Plaintiff
contends are materially incomplete and misleading. - 16
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Case 2:21-cv-00122 Document 1 Filed 01/07/21 Page 18 of 20 Page ID
#:18 56.Each of the Individual Defendants was provided with or had
unlimited access to copies of the Registration Statement and other
statements alleged by Plaintiff to be misleading prior to and/or
shortly after these statements were issued and had the ability to
prevent the issuance of the statements or cause the statements to
be corrected. 57.In particular, each of the Individual Defendants
had direct and supervisory involvement in the day-to-day operations
of the Company, and, therefore, is presumed to have had the power
to control or influence the particular transactions giving rise to
the Exchange Act violations alleged herein, and exercised
thesame.TheRegistrationStatementatissuecontainstheunanimous
recommendation of each of the Individual Defendants to approve the
Proposed Transaction. They were thus directly involved in preparing
the Registration Statement. 58.In addition, as the Registration
Statement sets forth at length, and as
describedherein,theIndividualDefendantswereinvolvedinnegotiating,
reviewing, and approving the Merger Agreement. The Registration
Statement purports to describe the various issues and information
that the Individual Defendants reviewed and considered. The
Individual Defendants participated in drafting and/or gave their
input on the content of those descriptions. 59.By virtue of the
foregoing, the Individual Defendants have violated Section 20(a) of
the Exchange Act. 60.As set forth above, the Individual Defendants
had the ability to exercise control over and did control a person
or persons who have each violated Section 14(a) and Rule 14a-9 by
their acts and omissions as alleged herein. By virtue of their
positions as controlling persons, these Defendants are liable
pursuant to Section 20(a) of the Exchange Act. As a direct and
proximate result of Individual Defendants’ conduct, Plaintiff will
be irreparably harmed. 61.Plaintiff has no adequate remedy at law.
Only through the exercise of - 17 - |
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Case 2:21-cv-00122 Document 1 Filed 01/07/21 Page 19 of 20 Page ID
#:19 this Court’s equitable powers can Plaintiff be fully protected
from the immediate and irreparable injury that Defendants’ actions
threaten to inflict. RELIEF REQUESTED
WHEREFORE,PlaintiffdemandsjudgmentagainstDefendantsas follows:
A.PreliminarilyandpermanentlyenjoiningDefendantsandtheir counsel,
agents, employees and all persons acting under, in concert with, or
for them, from proceeding with, consummating, or closing the
Proposed Transaction, unless and until the Company discloses the
material information discussed above which has been omitted from
the Registration Statement; B.In the event that the proposed
transaction is consummated, rescinding it and setting it aside, or
awarding rescissory damages; C.Awarding compensatory damages
against Defendants, individually and severally, in an amount to be
determined at trial, together with pre-judgment and post-judgment
interest at the maximum rate allowable by law, arising from the
Proposed Transaction; D.Awarding Plaintiff the costs and
disbursements of this action and reasonable allowances for fees and
expenses of Plaintiff’s counsel and experts; and E.Granting
Plaintiff such other and further relief as the Court may deem just
and proper. DEMAND FOR JURY TRIAL Plaintiff hereby demands a trial
by jury. DATED: January 7, 2021WOLF HALDENSTEIN ADLER FREEMAN &
HERZ LLP 24 25By:/s/ Rachele R. Byrd RACHELE R. BYRD 26 BETSY C.
MANIFOLD RACHELE R. BYRD MARISA C. LIVESAY BRITTANY N. DEJONG - 18
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Case 2:21-cv-00122 Document 1 Filed 01/07/21 Page 20 of 20 Page ID
#:20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16810282 17 18 19 20 21 22
23 24 25 26 27 28 750 B Street, Suite 1820 San Diego, CA 92101
Telephone: (619) 239-4599 Facsimile: (619) 234-4599
manifold@whafh.com byrd@whafh.com livesay@whafh.com
dejong@whafh.com Of Counsel: WOLF HALDENSTEIN ADLER FREEMAN &
HERZ LLP GLORIA KUI MELWANI 270 Madison Avenue New York, NY 10016
Telephone: (212) 545-4600 Facsimile: (212) 686-0114 Counsel for
Plaintiff - 19 - |
Exhibit 99.2
 |
UNITED STATES
DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK GIUSEPPE ALESCIO,
Plaintiff, v. ANWORTH MORTGAGE ASSET CORPORATION, JOSEPH E.
MCADAMS, JOE E. DAVIS, ROBERT C. DAVIS, MARK MARON, LLYOD MCADAMS,
DOMINIQUE MIELLE, READY CAPITAL CORPORATION, and RC MERGER
SUBSIDIARY, LLC, Defendants. ) ) ) )Case No. ) )JURY TRIAL DEMANDED
) ) ) ) ) ) ) ) ) COMPLAINT FOR VIOLATION OF THE SECURITIES
EXCHANGE ACT OF 1934 Plaintiff, by his undersigned attorneys, for
this complaint against defendants, alleges upon personal knowledge
with respect to himself, and upon information and belief based
upon, inter alia, the investigation of counsel as to all other
allegations herein, as follows: NATURE OF THE ACTION This action
stems from a proposed transaction announced on December 7, 2020
(the “Proposed Transaction”), pursuant to which Anworth Mortgage
Asset Corporation (“Anworth” or the “Company”) will be acquired by
Ready Capital Corporation (“Parent”) and RC Merger Subsidiary, LLC
(“Merger Sub,” and together with Parent, “Ready Capital”). On
December 6, 2020, Anworth’s Board of Directors (the “Board” or
“Individual Defendants”) caused the Company to enter into an
agreement and plan of merger (the “Merger Agreement”) with Ready
Capital. Pursuant to the terms of the Merger Agreement, Anworth’s
stockholders will receive $0.61 in cash and 0.1688 of a share of
Parent common stock for each share of Anworth common stock they
own. |
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On January 4,
2021, defendants filed a Form S-4 Registration Statement (the
“Registration Statement”) with the United States Securities and
Exchange Commission (“SEC”) in connection with the Proposed
Transaction. The Registration Statement omits material information
with respect to the Proposed Transaction, which renders the
Registration Statement false and misleading. Accordingly, plaintiff
alleges herein that defendants violated Sections 14(a) and 20(a) of
the Securities Exchange Act of 1934 (the “1934 Act”) in connection
with the Registration Statement. JURISDICTION AND VENUE This Court
has jurisdiction over the claims asserted herein pursuant to
Section 27 of the 1934 Act because the claims asserted herein arise
under Sections 14(a) and 20(a) of the 1934 Act and Rule 14a-9. This
Court has jurisdiction over defendants because each defendant is
either a corporation that conducts business in and maintains
operations within this District, or is an individual with
sufficient minimum contacts with this District so as to make the
exercise of jurisdiction by this Court permissible under
traditional notions of fair play and substantial justice. Venue is
proper under 28 U.S.C. § 1391(b) because a substantial portion of
the transactions and wrongs complained of herein occurred in this
District. PARTIES Plaintiff is, and has been continuously
throughout all times relevant hereto, the owner of Anworth common
stock. Defendant Anworth is a Maryland corporation and a party to
the Merger Agreement. Anworth’s common stock is traded on the NYSE,
which is headquartered in New York, New York, under the ticker
symbol “ANH.” |
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Defendant Joseph
E. McAdams is Chief Executive Officer, President, and Chairman of
the Board of the Company. Defendant Joe E. Davis is a director of
the Company. Defendant Robert C. Davis is a director of the
Company. Defendant Mark S. Maron is a director of the Company.
Defendant Llyod McAdams is a director of the Company. Defendant
Dominique Mielle is a director of the Company. The defendants
identified in paragraphs 10 through 15 are collectively referred to
herein as the “Individual Defendants.” Defendant Parent is a
Maryland corporation and a party to the Merger Agreement. Defendant
Merger Sub is a Delaware limited liability company, a wholly-owned
subsidiary of Parent, and a party to the Merger Agreement.
SUBSTANTIVE ALLEGATIONS Background of the Company and the Proposed
Transaction Anworth is a specialty finance mortgage company
organized to qualify as a real estate investment trust that invests
primarily in mortgage-backed securities that are either rated
“investment grade” or are guaranteed by federally sponsored
enterprises, such as Fannie Mae or Freddie Mac. On December 6,
2020, Anworth’s Board caused the Company to enter into the Merger
Agreement. Pursuant to the terms of the Merger Agreement, Anworth’s
stockholders will receive $0.61 in cash and 0.1688 of a share of
Parent common stock for each share of Anworth common stock they
own. |
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According to the
press release announcing the Proposed Transaction: Ready Capital
Corporation (NYSE:RC) (“Ready Capital”), a multi-strategy real
estate finance company that originates, acquires, finances and
services small-to medium-sized balance commercial loans, and
Anworth Mortgage Asset Corporation (NYSE:ANH) (“Anworth”), a
specialty finance REIT that focuses primarily on investments in
residential mortgage-backed securities, announced today that they
have entered into a definitive merger agreement pursuant to which
Ready Capital will combine with Anworth. The combined company is
expected to have a pro forma equity capital base in excess of $1
billion. The combination is expected to enhance shareholder
liquidity and provide for increased operating leverage across the
larger equity base. Under the terms of the merger agreement, each
share of Anworth common stock will be converted into 0.1688 shares
of Ready Capital common stock and $0.61 of cash consideration.
Based on Ready Capital’s closing stock price on Friday, December 4,
2020, the implied offer price is $2.94 per share. Upon the closing
of the merger, Ready Capital stockholders are expected to own
approximately 76% of the combined company’s stock, while Anworth
stockholders are expected to own approximately 24% of the combined
company’s stock. Ready Capital will also assume Anworth’s three
outstanding series of preferred stock. . . . Management, Governance
and Corporate Headquarters Upon completion of the merger, Ready
Capital’s Chairman and Chief Executive Officer Thomas Capasse will
lead the company and Ready Capital executives Jack Ross, Thomas
Buttacavoli, Andrew Ahlborn and Gary Taylor will remain in their
current roles. The combined company will be headquartered in New
York, New York. The Board of the combined company is expected to
have eight directors, consisting of Ready Capital’s existing seven
directors and one independent director from Anworth’s current
Board. Timing and Approvals The transaction has been unanimously
approved by each of the Boards of Directors of Ready Capital and
Anworth. The transaction is expected to close by the end of the
first quarter of 2021, subject to the respective approvals by the
stockholders of Anworth and Ready Capital and other customary
closing conditions. Advisors Wells Fargo Securities is acting as
exclusive financial advisor and Alston & Bird LLP is acting as
legal advisor to Ready Capital. Credit Suisse is acting as
exclusive financial advisor and Greenberg Traurig LLP is acting as
legal advisor to the Board of Directors of Anworth. |
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The Registration
Statement Omits Material Information, Rendering It False and
Misleading Defendants filed the Registration Statement with the SEC
in connection with the Proposed Transaction. As set forth below,
the Registration Statement omits material information. First, the
Registration Statement omits material information regarding the
financial projections for the Company and Ready Capital. With
respect to the Company’s financial projections, the Registration
Statement fails to disclose: (i) all line items used to calculate
core earnings per share; and (ii) a reconciliation of all non-GAAP
to GAAP metrics. With respect to Ready Capital’s financial
projections, the Registration Statement fails to disclose: (i) all
line items used to calculate core earnings per share; and (ii) a
reconciliation of all non-GAAP to GAAP metrics. The disclosure of
projected financial information is material because it provides
stockholders with a basis to project the future financial
performance of a company, and allows stockholders to better
understand the financial analyses performed by the company’s
financial advisor in support of its fairness opinion. Second, the
Registration Statement omits material information regarding the
analyses performed by the Company’s financial advisor, Credit
Suisse Securities (USA) LLC (“Credit Suisse”). With respect to
Credit Suisse’s Selected Public Companies Analysis – Anworth, the
Registration Statement fails to disclose the individual multiples
and metrics for the companies observed in the analysis. |
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With respect to
Credit Suisse’s Selected Public Companies Analysis – Ready Capital,
the Registration Statement fails to disclose the individual
multiples and metrics for the companies observed in the analysis.
With respect to Credit Suisse’s Selected Precedent Transactions
Analysis, the Registration Statement fails to disclose the
individual multiples and metrics for the transactions observed in
the analysis. With respect to Credit Suisse’s Dividend Discount
Analysis – Anworth, the Registration Statement fails to disclose:
(i) the terminal values for Anworth; (ii) Credit Suisse’s basis for
applying a range of TBVPS multiples of 0.70x to 0.90x; (iii)
Anworth’s estimated book value; (iv) the individual inputs and
assumptions underlying the discount rates of 9.0% to 14.0%; and (v)
the number of fully diluted outstanding shares of Anworth common
stock. With respect to Credit Suisse’s Dividend Discount Analysis –
Ready Capital, the Registration Statement fails to disclose: (i)
the terminal values for Ready Capital; (ii) Credit Suisse’s basis
for applying a range of TBVPS multiples of 0.80x to 1.00x; (iii)
the distributed cash flows for Ready Capital; (iv) Ready Capital’s
estimated book value; and (v) the individual inputs and assumptions
underlying the discount rates of 9.0% to 13.0%. When a banker’s
endorsement of the fairness of a transaction is touted to
shareholders, the valuation methods used to arrive at that opinion
as well as the key inputs and range of ultimate values generated by
those analyses must also be fairly disclosed. Third, the
Registration Statement omits material information regarding Credit
Suisse. The Registration Statement fails to disclose whether Credit
Suisse has performed past services for the Company or its
affiliates, and if so, the timing and nature of the services
and |
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the amount of
compensation received by Credit Suisse for providing the services.
The omission of the above-referenced material information renders
the Registration Statement false and misleading. The
above-referenced omitted information, if disclosed, would
significantly alter the total mix of information available to the
Company’s stockholders. COUNT I Claim for Violation of Section
14(a) of the 1934 Act and Rule 14a-9 Promulgated Thereunder Against
the Individual Defendants and Anworth Plaintiff repeats and
realleges the preceding allegations as if fully set forth herein.
The Individual Defendants disseminated the false and misleading
Registration Statement, which contained statements that, in
violation of Section 14(a) of the 1934 Act and Rule 14a-9, in light
of the circumstances under which they were made, omitted to state
material facts necessary to make the statements therein not
materially false or misleading. Anworth is liable as the issuer of
these statements. The Registration Statement was prepared,
reviewed, and/or disseminated by the Individual Defendants. By
virtue of their positions within the Company, the Individual
Defendants were aware of this information and their duty to
disclose this information in the Registration Statement. The
Individual Defendants were at least negligent in filing the
Registration Statement with these materially false and misleading
statements. The omissions and false and misleading statements in
the Registration Statement are material in that a reasonable
stockholder will consider them important in deciding how to vote on
the Proposed Transaction. In addition, a reasonable investor will
view a full and accurate |
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disclosure as
significantly altering the total mix of information made available
in the Registration Statement and in other information reasonably
available to stockholders. The Registration Statement is an
essential link in causing plaintiff to approve the Proposed
Transaction. By reason of the foregoing, defendants violated
Section 14(a) of the 1934 Act and Rule 14a-9 promulgated
thereunder. Because of the false and misleading statements in the
Registration Statement, plaintiff is threatened with irreparable
harm. COUNT II Claim for Violation of Section 20(a) of the 1934 Act
Against the Individual Defendants and Ready Capital Plaintiff
repeats and realleges the preceding allegations as if fully set
forth herein. The Individual Defendants and Ready Capital acted as
controlling persons of Anworth within the meaning of Section 20(a)
of the 1934 Act as alleged herein. By virtue of their positions as
officers and/or Board members of Anworth and participation in
and/or awareness of the Company’s operations and/or intimate
knowledge of the false statements contained in the Registration
Statement, they had the power to influence and control and did
influence and control, directly or indirectly, the decision making
of the Company, including the content and dissemination of the
various statements that plaintiff contends are false and
misleading. Each of the Individual Defendants and Ready Capital was
provided with or had unlimited access to copies of the Registration
Statement alleged by plaintiff to be misleading prior to and/or
shortly after these statements were issued and had the ability to
prevent the issuance of the statements or cause them to be
corrected. |
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In particular,
each of the Individual Defendants had direct and supervisory
involvement in the day-to-day operations of the Company, and,
therefore, is presumed to have had the power to control and
influence the particular transactions giving rise to the violations
as alleged herein, and exercised the same. The Registration
Statement contains the unanimous recommendation of the Individual
Defendants to approve the Proposed Transaction. They were thus
directly involved in the making of the Registration Statement.
Ready Capital also had supervisory control over the composition of
the Registration Statement and the information disclosed therein,
as well as the information that was omitted and/or misrepresented
in the Registration Statement. By virtue of the foregoing, the
Individual Defendants and Ready Capital violated Section 20(a) of
the 1934 Act. As set forth above, the Individual Defendants and
Ready Capital had the ability to exercise control over and did
control a person or persons who have each violated Section 14(a) of
the 1934 Act and Rule 14a-9, by their acts and omissions as alleged
herein. By virtue of their positions as controlling persons, these
defendants are liable pursuant to Section 20(a) of the 1934 Act. As
a direct and proximate result of defendants’ conduct, plaintiff is
threatened with irreparable harm. PRAYER FOR RELIEF WHEREFORE,
plaintiff prays for judgment and relief as follows: Preliminarily
and permanently enjoining defendants and all persons acting in
concert with them from proceeding with, consummating, or closing
the Proposed Transaction; In the event defendants consummate the
Proposed Transaction, rescinding it and setting it aside or
awarding rescissory damages; |
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Directing the
Individual Defendants to disseminate a Registration Statement that
does not contain any untrue statements of material fact and that
states all material facts required in it or necessary to make the
statements contained therein not misleading; Declaring that
defendants violated Sections 14(a) and/or 20(a) of the 1934 Act, as
well as Rule 14a-9 promulgated thereunder; Awarding plaintiff the
costs of this action, including reasonable allowance for
plaintiff’s attorneys’ and experts’ fees; and Granting such other
and further relief as this Court may deem just and proper. JURY
DEMAND Plaintiff hereby requests a trial by jury on all issues so
triable. |
Exhibit 99.3
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IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK JOSEPH
SHERIDAN, Plaintiff, v. ANWORTH MORTGAGE ASSET CORPORATION, JOSEPH
E. MCADAMS, LLOYD MCADAMS, JOE E. DAVIS, ROBERT C. DAVIS, MARK S.
MARON, DOMINIQUE MIELLE, RC MERGER SUBSIDIARY, LLC, and READY
CAPITAL CORPORATION, Defendants, Civil Action No. COMPLAINT FOR
VIOLATIONS OF SECTIONS 14(a) AND 20(a) OF THE SECURITIES EXCHANGE
ACT OF 1934 JURY TRIAL DEMAND Plaintiff Joseph Sheridan
(“Plaintiff”) alleges the following upon information and belief,
including investigation of counsel and review of publicly available
information, except as to those allegations pertaining to
Plaintiff, which are alleged upon personal knowledge: NATURE OF THE
ACTION Plaintiff brings this action against Anworth Mortgage Asset
Corporation (“Anworth Mortgage” or the “Company”) and Anworth
Mortgage’s Board of Directors (the “Board” or the “Individual
Defendants”) for their violations of Section 14(a) and 20(a) of the
Securities Exchange Act of 1934, 15.U.S.C. §§ 78n(a), 78t(a), and
SEC Rule 14a-9, 17 C.F.R. 240.14a-9, arising out of the Board’s
attempt to sell the Company to Ready Capital Corporation through
its wholly-owned subsidiary RC Merger Subsidiary, LLC (collectively
“Ready Capital”). Defendants have violated the above-referenced
Sections of the Exchange Act by causing a materially incomplete and
misleading registration statement (the “S-4”) to be filed
with |
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the Securities and
Exchange Commission (“SEC”) on January 4, 2021. The S-4 recommends
that Anworth Mortgage stockholders vote in favor of a proposed
transaction (the “Proposed Transaction”) whereby Anworth Mortgage
is acquired by Ready Capital. The Proposed Transaction was first
disclosed on December 7, 2020, when Anworth Mortgage and Ready
Capital announced that they had entered into a definitive merger
agreement (the “Merger Agreement”) pursuant to which each share of
Anworth Mortgage common stock will be exchanged for $0.61 and
0.1688 shares of Ready Capital common stock (the “Merger
Consideration”). The deal is expected to close by the end of the
first quarter of 2021. The S-4 is materially incomplete and
contains misleading representations and information in violation of
Sections 14(a) and 20(a) of the Exchange Act. Specifically, the S-4
contains materially incomplete and misleading information
concerning the sales process, financial projections prepared by
Anworth Mortgage management, as well as the financial analyses
conducted by Credit Suisse Securities (USA) LLC (“Credit Suisse”),
Anworth Mortgage’s financial advisor. For these reasons, and as set
forth in detail herein, Plaintiff seeks to enjoin Defendants from
taking any steps to consummate the Proposed Transaction, including
filing an amendment to the S-4 with the SEC or otherwise causing an
amendment to the S-4 to be disseminated to Anworth Mortgage’s
stockholders, unless and until the material information discussed
below is included in any such amendment or otherwise disseminated
to Anworth Mortgage’s stockholders. In the event the Proposed
Transaction is consummated without the material omissions
referenced below being remedied, Plaintiff seeks to recover damages
resulting from the Defendants’ violations. |
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PARTIES Plaintiff
is, and has been at all relevant times, the owner of shares of
common stock of Anworth Mortgage. Defendant Anworth Mortgage is a
corporation organized and existing under the laws of the State of
Maryland. The Company’s principal executive offices are located at
1299 Ocean Avenue, 2nd Floor, Santa Monica, California 90401.
Anworth Mortgage common stock trades on NYSE under the ticker
symbol “ANH.” Defendant Joseph E. McAdams has been President of the
Company since 2016, CEO and Chairman of the Board since 2018, Chief
Investment Officer since 2003, and a director of the Company since
2002. Defendant Lloyd McAdams has been a director of the Company
since 1997. Defendant L. McAdams served as President of the Company
until 2016, and served as CEO and Chairman until 2018. Defendant
Joe E. Davis has been a director of the Company since 1997.
Defendant Robert C. Davis has been a director of the Company since
2005. Defendant Mark S. Maron has been a director of the Company
since 2014. Defendant Dominique Mielle has been a director of the
Company since 2018. Defendants J. McAdams, L. McAdams, J. Davis, R.
Davis, Maron and Mielle are collectively referred to herein as the
“Board” or “Individual Defendants.” Defendant Ready Capital
Corporation is a Maryland corporation. Ready Capital’s principal
executive offices are located at 1251 Avenue of the Americas, 50th
Floor, New York, New York 10020. Ready Capital common stock trades
on NYSE under the ticker symbol “RC.” Defendant RC Merger
Subsidiary, LLC is a Delaware limited liability company |
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and is a wholly
owned subsidiary of Ready Capital Corporation. JURISDICTION AND
VENUE This Court has subject matter jurisdiction pursuant to
Section 27 of the Exchange Act (15 U.S.C. § 78aa) and 28 U.S.C. §
1331 (federal question jurisdiction) as Plaintiff alleges
violations of Section 14(a) and 20(a) of the Exchange Act and SEC
Rule 14a-9. Personal jurisdiction exists over each Defendant either
because the Defendant conducts business in or maintains operations
in this District, or is an individual who is either present in this
District for jurisdictional purposes or has sufficient minimum
contacts with this District as to render the exercise of
jurisdiction over Defendant by this Court permissible under
traditional notions of fair play and substantial justice. Venue is
proper in this District under Section 27 of the Exchange Act, 15
U.S.C. § 78aa, as well as under 28 U.S.C. § 1391, because: (i) a
significant amount of the conduct at issue took place and had an
effect in this District; and (ii) Ready Capital has its principal
executive offices located in this District. FURTHER SUBSTANTIVE
ALLEGATIONS Background of the Company and the Proposed Transaction
Anworth Mortgage is a real estate investment trust (“REIT”) that
finances, manage and invests in residential mortgage loans and
residential mortgage-backed securities that are “investment grade”
or guaranteed by federally sponsored enterprises. The Company is
managed by Anworth Management, LLC (the “Manager”), which is
supervised and directed by the Board. The Manager conducts all of
Anworth Mortgage’s daily operations. Defendant L. McAdams is the
Managing Member of the Manager, and Defendant J. McAdams is a
member of the Manager. On December 6, 2020, the Company entered
into the Merger Agreement with Ready Capital. |
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According to the
press release issued on December 7, 2020 announcing the Proposed
Transaction: READY CAPITAL AND ANWORTH MORTGAGE ASSET CORPORATION
ANNOUNCE MERGER TRANSACTION - Transaction Will Create a Scaled
Commercial Mortgage REIT with a Combined Capital Base in Excess of
$1 Billion and a Diversified Investment Portfolio - - Substantially
Improved Operating Leverage Due to Increased Scale - - Investment
Portfolio Redeployment to Drive Long-Term Earnings Accretion - New
York, NY, & Santa Monica, CA, December 7, 2020 /PRNewswire/ –
Ready Capital Corporation (NYSE:RC) (“Ready Capital”), a
multi-strategy real estate finance company that originates,
acquires, finances and services small-to medium-sized balance
commercial loans, and Anworth Mortgage Asset Corporation (NYSE:ANH)
(“Anworth”), a specialty finance REIT that focuses primarily on
investments in residential mortgage-backed securities, announced
today that they have entered into a definitive merger agreement
pursuant to which Ready Capital will combine with Anworth. The
combined company is expected to have a pro forma equity capital
base in excess of $1 billion. The combination is expected to
enhance shareholder liquidity and provide for increased operating
leverage across the larger equity base. Under the terms of the
merger agreement, each share of Anworth common stock will be
converted into 0.1688 shares of Ready Capital common stock and
$0.61 of cash consideration. Based on Ready Capital’s closing stock
price on Friday, December 4, 2020, the implied offer price is $2.94
per share. Upon the closing of the merger, Ready Capital
stockholders are expected to own approximately 76% of the combined
company’s stock, while Anworth stockholders are expected to own
approximately 24% of the combined company’s stock. Ready Capital
will also assume Anworth’s three outstanding series of preferred
stock. In connection with the merger, Waterfall Asset Management,
LLC (“Waterfall”), Ready Capital’s external manager, has agreed to
reduce the base management fee it charges Ready Capital by an
aggregate of $4 million over the four quarters immediately
following the closing of the transaction. Based on the closing
prices of Ready Capital’s common stock on December 4, 2020, the
market capitalization of the combined company would be
approximately $984 million. The combined company will operate under
the name Ready Capital and its shares are expected to continue
trading on the New York Stock Exchange under the existing ticker
symbol “RC”. “This merger highlights our continued focus on
establishing Ready Capital as an industry-leading mortgage REIT,
with the scale and financial resources to pursue compelling
risk-adjusted returns across its diversified investment platform,”
stated |
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Ready Capital
Chairman and Chief Executive Officer Thomas Capasse. “The combined
company will be in a more formidable position to execute its
business plan, improve operating and cost efficiencies, and
continue growth in a prudent and profitable manner.” Anticipated
Benefits to Ready Capital and Anworth Stockholders from the Merger
Management, Governance and Corporate Headquarters Upon completion
of the merger, Ready Capital’s Chairman and Chief Executive Officer
Thomas Capasse will lead the company and Ready Capital executives
Jack Ross, Thomas Buttacavoli, Andrew Ahlborn and Gary Taylor will
remain in their current roles. The combined company will be
headquartered in New York, New York. The Board of the combined
company is expected to have eight directors, consisting of Ready
Capital’s existing seven directors and one independent director
from Anworth’s current Board. Timing and Approvals The transaction
has been unanimously approved by each of the Boards of Directors of
Ready Capital and Anworth. The transaction is expected to close by
the end of the first quarter of 2021, subject to the respective
approvals by the stockholders of Anworth and Ready Capital and
other customary closing conditions. The Materially Incomplete and
Misleading S-4 The Individual Defendants must disclose all material
information regarding the Proposed Transaction to Anworth Mortgage
stockholders so that they can make a fully informed decision
whether to vote in favor of the Proposed Transaction. On January 4,
2021, Defendants filed the S-4 with the SEC. The purpose of the
S- |
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4 is, inter alia,
to provide the Company’s stockholders with all material information
necessary for them to make an informed decision on whether to vote
in favor of the Proposed Transaction. However, significant and
material facts were not provided to Plaintiff and the other Anworth
Mortgage stockholders. Without such information, Plaintiff and the
Anworth Mortgage stockholders cannot make a fully informed decision
concerning whether to vote in favor of the Proposed Transaction.
Materially Misleading Statements/Omissions Regarding the
Management-Prepared Financial Forecasts The S-4 discloses
management-prepared financial projections for the Company which are
materially misleading. The S-4 indicates that in connection with
the rendering of Credit Suisse’s fairness opinion, Credit Suisse
reviewed “financial forecasts relating to Anworth [Mortgage] for
the fiscal years ending December 31, 2020 through December 31, 2023
. . . prepared and provided to Credit Suisse by the Anworth Manager
[Anworth Management LLC].” Accordingly, the S-4 should have, but
failed to, provide certain information in the projections that
Anworth Mortgage’s manager provided to the Board and Credit Suisse.
Notably, Defendants failed to disclose all the line items used to
calculate core earnings per share for Anworth and Ready Capital.
The S-4 also fails to disclose the distributed cash flows for
Anworth Mortgage from the fourth quarter of 2020 through December
31, 2023, and the distributed cash flows of Ready Capital from the
fourth quarter of 2020 through December 31, 2025. Further, the S-4
fails to disclose Anworth Mortgage’s estimated book value as of
December 31, 2023 and Ready Capital’s estimated book value as of
December 31, 2025. This omitted information is necessary for
Plaintiff and the Anworth Mortgage stockholders to make an informed
decision on whether to vote in favor of the Proposed
Transaction. |
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Materially
Incomplete and Misleading Disclosures Concerning Credit Suisse’s
Financial Analyses Finally, with respect to the Selected Public
Companies Analysis, the S-4 fails to disclose the objective
selection criteria for each company, as well as the multiples for
TBVPS for each company. The S-4 also fails to disclose the basis
for selecting multiples of tangible book value to apply to Anworth
Mortgage’s TBVPS that are below the median multiple. Second, with
respect to the Selected Precedent Transactions Analysis, the S-4
fails to disclose the objective selection criteria for each
transaction, the enterprise values for each of the selected
transactions, as well as the multiples for TBVPS for each company.
With respect to the Dividend Discount Analysis, the S-4 fails to
disclose: (i) the terminal values for Anworth Mortgage and Ready
Capital; (ii) the basis for applying a range of TBVPS multiples of
0.70x to 0.90x to Anworth Mortgage; (iii) the basis for applying a
range of TBVPS multiples of 0.80x to 1.00x to Ready Capital; and
(iii) the inputs and assumptions behind selecting discount rates of
9.0% to 14.0% for Anworth Mortgage, and 9.0% to 13.0% for Ready
Capital. Materially Incomplete and Misleading Disclosures
Concerning the Flawed Process The S-4 also fails to disclose
material information concerning the sales process. For example, in
July 2019, the Board formed the Strategic Review Committee. After
discussions with Company A ceased, the Strategic Review Committee
directed Defendant J. McAdams to continue looking into strategic
alternatives. But the S-4 does not disclose the exact authority and
responsibilities of the Strategic Review Committee. And on November
5, 2020, the Board decided to reactivate the Strategic Review
Committee. The S-4 does not disclose when the Strategic Review
Committee had been deactivated, the basis for doing so, or the
authority and responsibilities of the reactivated Strategic Review
Committee. |
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Anworth Mortgage
had valuation discussions with Company A as part of negotiations
towards a potential transaction. The S-4 does not disclose
information about these valuation discussions, including whether
Company A had made a proposal to acquire Anworth Mortgage and the
valuation of Anworth Mortgage implied. Of eight parties in
communication with the Company about a potential transaction
between May and August 2020, “some” submitted verbal proposals that
the Board deemed insufficient to justify further discussions. The
S-4 does not disclose the number of verbal proposals received, the
terms of the proposals, or the implied valuation of Anworth
Mortgage from the proposals. On October 6, 2020, Credit Suisse
informed the Board that it had had discussions with 13 parties,
received verbal proposals from four parties, and proposals from
Company B, Company C, Company D and Ready Capital. The S-4 does not
disclose if this information differs from the parties that
submitted proposals between May and August 2020, nor the terms of
the verbal proposals or the implied valuation of the Company from
those proposals. On August 19, 2020, the Board instructed Credit
Suisse to conduct a broader marketing process. The S-4 fails to
disclose the number of parties contacted by Credit Suisse as part
of this broader process or the number that entered into
confidentiality or non-disclosure agreements with the Company.
Anworth Mortgage entered into confidentiality and non-disclosure
agreements with six potential parties between May 2020 and August
2020. The S-4 fails to state whether those agreements are still in
effect and whether they contain standstill provisions that preclude
the parties from making a superior proposal for the Company. The
S-4 also fails to disclose the basis for some of the agreements
differing significantly from each other. For example, the agreement
with Ready Capital has a two-year term, while the agreement with
Company D has an 18-month term. The |
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agreement with
Company E has only a 12-month term. The S-4 does not disclose the
reason for such differing terms amongst the parties, nor whether
and how the confidentiality or non-disclosure agreements differ in
other ways. The Company entered into a new mutual non-disclosure
agreement with Ready Capital in connection with the exclusivity
agreement, which was entered into on November 9, 2020. The new
agreement, signed on November 8, 2020, had a term of 18 months, and
included a standstill provision that prevented each party from
soliciting an acquisition proposal from any other party. The S-4
fails to disclose the basis for entering into such a standstill
provision during a sales process, and whether the terms of the
standstill provision fell away or were waived once the Merger
Agreement was signed. Credit Suisse provided the Board and the
Strategic Review Committee with its analyses throughout the
process, yet those analyses were not disclosed. That includes the
key assumptions and other considerations related to the proposals
by Company B, Company C and Company D as discussed with the Board
on September 21, 2020; the financial analysis of the various
proposals as discussed at the Board meeting on October 6, 2020; the
summaries of proposals and differences in valuation methodologies
discussed at the Board meeting on October 27, 2020; and the
financial analysis of the Merger Consideration and Ready Capital as
provided to the Board on December 4, 2020. In addition, Credit
Suisse discussed third party valuation reports and sum-of-the-parts
analyses to validate Anworth Mortgage and Ready Capital’s
respective book value, yet those analyses were not disclosed. The
Company executed an engagement letter with Credit Suisse on July
24, 2019. The S-4 does not disclose whether the Board or Strategic
Review Committee reviewed Credit Suisse’s potential conflicts after
this point. Indeed, the S-4 notes that Credit Suisse
performed |
 |
services for Ready
Capital’s manager in the two years prior to the date of its
fairness opinion. The S-4 fails to disclose whether Credit Suisse
performed these services while retained by Anworth Mortgage and
while Ready Capital was a part of the sales process. The S-4
further fails to disclose whether Credit Suisse provided services
to Ready Capital or Anworth Mortgage in the two years prior to
rendering its fairness opinion and, if so, the compensation
received for those services. This information is necessary to
provide Company stockholders a complete and accurate picture of the
sales process and its fairness. Without this information, Plaintiff
and the other Anworth Mortgage stockholders were not fully informed
as to the defendants’ actions, including those that may have been
taken in bad faith, and cannot fairly assess the process. And
without all material information, Plaintiff and the Anworth
Mortgage stockholders are unable to make a fully informed decision
in connection with the Proposed Transaction and face irreparable
harm, warranting the injunctive relief sought herein. In addition,
the Individual Defendants knew or recklessly disregarded that the
S-4 omits the material information concerning the Proposed
Transaction and contains the materially incomplete and misleading
information discussed above. Specifically, the Individual
Defendants undoubtedly reviewed the contents of the S-4 before it
was filed with the SEC. Indeed, as directors of the Company, they
were required to do so. The Individual Defendants thus knew or
recklessly disregarded that the S-4 omits the material information
referenced above and contains the incomplete and misleading
information referenced above. Further, the S-4 indicates that on
December 6, 2020, Credit Suisse reviewed with the Board its
financial analysis of the Proposed Transaction and delivered to the
Board an oral opinion, which was confirmed by delivery of a written
opinion of the same date, to the effect that |
 |
the Proposed
Transaction was fair, from a financial point of view, to Anworth
Mortgage stockholders. Accordingly, the Individual Defendants
undoubtedly reviewed or were presented with the material
information concerning Credit Suisse’s financial analyses which has
been omitted from the S-4, and thus knew or should have known that
such information has been omitted. Plaintiff and the other Anworth
Mortgage stockholders are immediately threatened by the wrongs
complained of herein, and lack an adequate remedy at law.
Accordingly, Plaintiff seeks injunctive and other equitable relief
to prevent the irreparable injury that Plaintiff and the Company’s
stockholders will continue to suffer absent judicial intervention.
CLAIMS FOR RELIEF COUNT I Against All Defendants for Violations of
Section 14(a) of the Exchange Act and Rule 14a-9 Plaintiff
incorporates each and every allegation set forth above as if fully
set forth herein. Defendants have filed the S-4 with the SEC with
the intention of soliciting Anworth Mortgage stockholder support
for the Proposed Transaction. Each of the Individual Defendants
reviewed and authorized the dissemination of the S-4, which fails
to provide the material information referenced above. In so doing,
Defendants made materially incomplete and misleading statements
and/or omitted material information necessary to make the
statements made not misleading. Each of the Individual Defendants,
by virtue of their roles as officers and/or directors of Anworth
Mortgage, were aware of the omitted information but failed to
disclose such information, in violation of Section 14(a). Rule
14a-9, promulgated by the SEC pursuant to Section 14(a) of the
Exchange Act, provides that such communications with stockholders
shall not contain “any statement which, |
 |
at the time and in
the light of the circumstances under which it is made, is false or
misleading with respect to any material fact, or which omits to
state any material fact necessary in order to make the statements
therein not false or misleading.” 17 C.F.R. § 240.14a-9.
Specifically, and as detailed above, the S-4 violates Section 14(a)
and Rule 14a-9 because it omits material facts concerning: (i)
management’s financial projections; (ii) the value of Anworth
Mortgage shares and the financial analyses performed by Credit
Suisse in support of its fairness opinion; and (iii) the sales
process. Moreover, in the exercise of reasonable care, the
Individual Defendants knew or should have known that the S-4 is
materially misleading and omits material information that is
necessary to render it not misleading. The Individual Defendants
undoubtedly reviewed and relied upon the omitted information
identified above in connection with their decision to approve and
recommend the Proposed Transaction; indeed, the S-4 states that
Credit Suisse reviewed and discussed its financial analyses with
the Board during various meetings including on December 6, 2020,
and further states that the Board relied upon Credit Suisse’s
financial analyses and fairness opinion in connection with
approving the Proposed Transaction. The Individual Defendants knew
or should have known that the material information identified above
has been omitted from the S-4, rendering the sections of the S-4
identified above to be materially incomplete and misleading. The
misrepresentations and omissions in the S-4 are material to
Plaintiff and the other Anworth Mortgage stockholders, who will be
deprived of their right to cast an informed vote if such
misrepresentations and omissions are not corrected prior to the
vote on the Proposed Transaction. Plaintiff has no adequate remedy
at law. Only through the exercise of this Court’s equitable powers
can Plaintiff be fully protected from the immediate and irreparable
injury that Defendants’ actions threaten to inflict. |
 |
COUNT II Against
the Individual Defendants for Violations of Section 20(a) of the
Exchange Act Plaintiff incorporates each and every allegation set
forth above as if fully set forth herein. The Individual Defendants
acted as controlling persons of Anworth Mortgage within the meaning
of Section 20(a) of the Exchange Act as alleged herein. By virtue
of their positions as officers and/or directors of Anworth Mortgage
and participation in and/or awareness of the Company’s operations
and/or intimate knowledge of the incomplete and misleading
statements contained in the S-4 filed with the SEC, they had the
power to influence and control and did influence and control,
directly or indirectly, the decision making of the Company,
including the content and dissemination of the various statements
that Plaintiff contends are materially incomplete and misleading.
Each of the Individual Defendants was provided with or had
unlimited access to copies of the S-4 and other statements alleged
by Plaintiff to be misleading prior to the time the S-4 was filed
with the SEC and had the ability to prevent the issuance of the
statements or cause the statements to be corrected. In particular,
each of the Individual Defendants had direct and supervisory
involvement in the day-to-day operations of the Company, and,
therefore, is presumed to have had the power to control or
influence the particular transactions giving rise to the Exchange
Act violations alleged herein, and exercised the same. The omitted
information identified above was reviewed by the Board prior to
voting on the Proposed Transaction. The S-4 at issue contains the
unanimous recommendation of each of the Individual Defendants to
approve the Proposed Transaction. They were, thus, directly
involved in the making of the S-4. |
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In addition, as
the S-4 sets forth at length, and as described herein, the
Individual Defendants were involved in negotiating, reviewing, and
approving the Merger Agreement. The S-4 purports to describe the
various issues and information that the Individual Defendants
reviewed and considered. The Individual Defendants participated in
drafting and/or gave their input on the content of those
descriptions. By virtue of the foregoing, the Individual Defendants
have violated Section 20(a) of the Exchange Act. As set forth
above, the Individual Defendants had the ability to exercise
control over and did control a person or persons who have each
violated Section 14(a) and Rule 14a-9, by their acts and omissions
as alleged herein. By virtue of their positions as controlling
persons, these defendants are liable pursuant to Section 20(a) of
the Exchange Act. As a direct and proximate result of Individual
Defendants’ conduct, Plaintiff will be irreparably harmed. RELIEF
REQUESTED WHEREFORE, Plaintiff demands injunctive relief in his
favor and against the Defendants jointly and severally, as follows:
Preliminarily and permanently enjoining Defendants and their
counsel, agents, employees and all persons acting under, in concert
with, or for them, from filing an amendment to the S-4 with the SEC
or otherwise disseminating an amendment to the S-4 to Anworth
Mortgage stockholders unless and until Defendants agree to include
the material information identified above in any such amendment;
Preliminarily and permanently enjoining Defendants and their
counsel, agents, employees and all persons acting under, in concert
with, or for them, from proceeding with, consummating, or closing
the Proposed Transaction, unless and until Defendants disclose the
material information identified above which has been omitted from
the S-4; |
 |
In the event that
the transaction is consummated prior to the entry of this Court’s
final judgment, rescinding it or awarding Plaintiff rescissory
damages; Directing the Defendants to account to Plaintiff for all
damages suffered as a result of their wrongdoing; Awarding
Plaintiff the costs and disbursements of this action, including
reasonable attorneys’ and expert fees and expenses; and Granting
such other and further equitable relief as this Court may deem just
and proper. JURY DEMAND Plaintiff demands a trial by jury. Dated:
January 19, 2021ROWLEY LAW PLLC S/ Shane T. Rowley Shane T. Rowley
(SR-0740) Danielle Rowland Lindahl 50 Main Street, Suite 1000 White
Plains, NY 10606 Tel: (914) 400-1920 Fax: (914) 301-3514 Email:
srowley@rowleylawpllc.com Email: drl@rowleylawpllc.com Attorneys
for Plaintiff |
Exhibit 99.4
 |
Case 1:21-cv-00331
Document 1 Filed 01/20/21 Page 1 of 15 PageID #: 1 Daniel Sadeh,
Esq. HALPER SADEH LLP 667 Madison Avenue, 5th Floor New York, NY
10065 Telephone: (212) 763-0060 Facsimile: (646) 776-2600 Email:
sadeh@halpersadeh.com Counsel for Plaintiff UNITED STATES DISTRICT
COURT EASTERN DISTRICT OF NEW YORK KEN BISHOP, Plaintiff, v.
ANWORTH MORTGAGE ASSET CORPORATION, JOSEPH E. MCADAMS, JOE E.
DAVIS, ROBERT C. DAVIS, MARK S. MARON, LLOYD MCADAMS, and DOMINIQUE
MIELLE, Defendants. Case No: COMPLAINT FOR VIOLATION OF THE FEDERAL
SECURITIES LAWS JURY TRIAL DEMANDED Plaintiff Ken Bishop
(“Plaintiff”), by Plaintiff’s undersigned attorneys, for
Plaintiff’s complaint against Defendants (defined below), alleges
the following based upon personal knowledge as to Plaintiff and
Plaintiff’s own acts, and upon information and belief as to all
other matters, based upon, inter alia, the investigation conducted
by and through Plaintiff’s attorneys. NATURE OF THE ACTION This is
an action against Anworth Mortgage Asset Corporation (“Anworth” or
the “Company”), and its Board of Directors (the “Board” or the
“Individual Defendants”) for their violations of Sections 14(a) and
20(a) of the Securities Exchange Act of 1934 (the “Exchange Act”),
15 U.S.C. §§ 78n(a) and 78t(a), and Rule 14a-9 promulgated
thereunder by the SEC, 17 |
 |
Case 1:21-cv-00331
Document 1 Filed 01/20/21 Page 2 of 15 PageID #: 2 C.F.R. §
240.14a-9, in connection with the proposed acquisition (the
“Proposed Transaction”) of Anworth by Ready Capital Corporation
(“Ready Capital”) and RC Merger Subsidiary, LLC (“Merger Sub”).
JURISDICTION AND VENUE The claims asserted herein arise under and
pursuant to Sections 14(a) and 20(a) of the Exchange Act (15 U.S.C.
§§ 78n(a) and 78t(a)) and Rule 14a-9 promulgated thereunder by the
SEC (17 C.F.R. § 240.14a-9). This Court has jurisdiction over the
subject matter of this action pursuant to 28 U.S.C. § 1331, and
Section 27 of the Exchange Act, 15 U.S.C. § 78aa. Venue is proper
in this District pursuant to 28 U.S.C. § 1391(b) and Section 27 of
the Exchange Act (15 U.S.C. § 78aa(c)) as a substantial portion of
the transactions and wrongs complained of herein had an effect in
this District, the alleged misstatements entered and the subsequent
damages occurred in this District, and the combined company will be
headquartered in New York after the closing of the Proposed
Transaction. In connection with the acts, conduct and other wrongs
alleged in this complaint, Defendants, directly or indirectly, used
the means and instrumentalities of interstate commerce, including
but not limited to, the United States mails, interstate telephone
communications and the facilities of the national securities
exchange. PARTIES Plaintiff is, and has been at all relevant times
hereto, an owner of Anworth common stock. |
 |
Case 1:21-cv-00331
Document 1 Filed 01/20/21 Page 3 of 15 PageID #: 3 Defendant
Anworth operates as a real estate investment trust in the United
States. The Company is incorporated in Maryland. The Company’s
common stock trades on the New York Stock Exchange under the ticker
symbol, “ANH.” Defendant Joseph E. McAdams (“J. McAdams”) is
President, Chief Executive Officer, Chief Investment Officer, and
Chairman of the Board of the Company. Defendant Joe E. Davis (“J.
Davis”) is a director of the Company. Defendant Robert C. Davis
(“R. Davis”) is a director of the Company. Defendant Mark S. Maron
(“Maron”) is a director of the Company. Defendant Lloyd McAdams
(“L. McAdams”) is a director of the Company. Defendant Dominique
Mielle (“Mielle”) is a director of the Company. Defendants J.
McAdams, J. Davis, R. Davis, Maron, L. McAdams, and Mielle are
collectively referred to herein as the “Individual Defendants.”
Defendants Anworth and the Individual Defendants are collectively
referred to herein as the “Defendants.” SUBSTANTIVE ALLEGATIONS The
Proposed Transaction On December 7, 2020, Anworth and Ready Capital
announced that they had entered into a definitive merger agreement
pursuant to which Ready Capital would acquire each share of Anworth
common stock for 0.1688 shares of Ready Capital common stock and
$0.61 of cash consideration. Upon the closing of the merger, Ready
Capital stockholders are expected to own approximately 76% of the
combined company’s stock while Anworth stockholders are expected to
own approximately 24%. The press release announcing the merger
states, in pertinent part: |
 |
Case 1:21-cv-00331
Document 1 Filed 01/20/21 Page 4 of 15 PageID #: 4 Ready Capital
and Anworth Mortgage Asset Corporation Announce Merger Transaction
— Transaction Will Create a Scaled Commercial Mortgage REIT with a
Combined Capital Base in Excess of $1 Billion and a Diversified
Investment Portfolio — — Substantially Improved Operating Leverage
Due to Increased Scale — — Investment Portfolio Redeployment to
Drive Long-Term Earnings Accretion— December 07, 2020 09:25 AM
Eastern Standard Time NEW YORK & SANTA MONICA,
Calif.--(BUSINESS WIRE)--Ready Capital Corporation (NYSE:RC)
(“Ready Capital”), a multi-strategy real estate finance company
that originates, acquires, finances and services small-to
medium-sized balance commercial loans, and Anworth Mortgage Asset
Corporation (NYSE:ANH) (“Anworth”), a specialty finance REIT that
focuses primarily on investments in residential mortgage-backed
securities, announced today that they have entered into a
definitive merger agreement pursuant to which Ready Capital will
combine with Anworth. The combined company is expected to have a
pro forma equity capital base in excess of $1 billion. The
combination is expected to enhance shareholder liquidity and
provide for increased operating leverage across the larger equity
base. Under the terms of the merger agreement, each share of
Anworth common stock will be converted into 0.1688 shares of Ready
Capital common stock and $0.61 of cash consideration. Based on
Ready Capital’s closing stock price on Friday, December 4, 2020,
the implied offer price is $2.94 per share. Upon the closing of the
merger, Ready Capital stockholders are expected to own
approximately 76% of the combined company’s stock, while Anworth
stockholders are expected to own approximately 24% of the combined
company’s stock. Ready Capital will also assume Anworth’s three
outstanding series of preferred stock. In connection with the
merger, Waterfall Asset Management, LLC (“Waterfall”), Ready
Capital’s external manager, has agreed to reduce the base
management fee it charges Ready Capital by an aggregate of $4
million over the four quarters immediately following the closing of
the transaction. Based on the closing prices of Ready Capital’s
common stock on December 4, 2020, the market capitalization of the
combined company would be approximately $984 million. The combined
company will operate under the name Ready Capital and its shares
are expected to continue trading on the New York Stock Exchange
under the existing ticker symbol “RC”. *** |
 |
Case 1:21-cv-00331
Document 1 Filed 01/20/21 Page 5 of 15 PageID #: 5 Management,
Governance and Corporate Headquarters Upon completion of the
merger, Ready Capital’s Chairman and Chief Executive Officer Thomas
Capasse will lead the company and Ready Capital executives Jack
Ross, Thomas Buttacavoli, Andrew Ahlborn and Gary Taylor will
remain in their current roles. The combined company will be
headquartered in New York, New York. The Board of the combined
company is expected to have eight directors, consisting of Ready
Capital’s existing seven directors and one independent director
from Anworth’s current Board. Timing and Approvals The transaction
has been unanimously approved by each of the Boards of Directors of
Ready Capital and Anworth. The transaction is expected to close by
the end of the first quarter of 2021, subject to the respective
approvals by the stockholders of Anworth and Ready Capital and
other customary closing conditions. Advisors Wells Fargo Securities
is acting as exclusive financial advisor and Alston & Bird LLP
is acting as legal advisor to Ready Capital. Credit Suisse is
acting as exclusive financial advisor and Greenberg Traurig LLP is
acting as legal advisor to the Board of Directors of Anworth. ***
About Anworth Mortgage Asset Corporation Anworth Mortgage Asset
Corporation (NYSE: ANH), a Maryland corporation, is a specialty
finance mortgage company organized to qualify as a real estate
investment trust (“REIT”) that invests primarily in mortgage-backed
securities that are either rated “investment grade” or are
guaranteed by federally sponsored enterprises, such as Fannie Mae
or Freddie Mac. Anworth seeks to generate income for distribution
primarily based on the difference between the yield on their
mortgage assets and the cost of their borrowings. Anworth Mortgage
Asset Corporation is headquartered in Santa Monica, California, and
is externally managed and advised by Anworth Management LLC. About
Ready Capital Corporation Ready Capital Corporation (NYSE: RC) is a
multi-strategy real estate finance company that originates,
acquires, finances and services small-to medium-sized balance
commercial loans. Ready Capital specializes in loans backed by
commercial real estate, including agency multifamily, investor and
bridge as well as SBA 7(a) business loans. Headquartered in New
York, New York, Ready Capital |
 |
Case 1:21-cv-00331
Document 1 Filed 01/20/21 Page 6 of 15 PageID #: 6 employs over 400
lending professionals nationwide. The company is externally managed
and advised by Waterfall Asset Management, LLC. On January 4, 2021,
Defendants caused to be filed with the SEC a Form S-4 Registration
Statement (the “Registration Statement”) under the Securities Act
of 1933 in connection with the Proposed Transaction. The
Registration Statement Contains Materially False and Misleading
Statements and Omissions The Registration Statement, which
recommends that Anworth shareholders vote in favor of the Proposed
Transaction, omits and/or misrepresents material information
concerning: (i) Anworth’s and Ready Capital’s financial
projections; (ii) the financial analyses performed by Anworth’s
financial advisor, Credit Suisse Securities (USA) LLC (“Credit
Suisse”), in connection with its fairness opinion; (iii) potential
conflicts of interest involving Credit Suisse; and (iv) the sales
process leading up to the Proposed Transaction. The omission of the
material information (referenced below) renders the following
sections of the Registration Statement false and misleading, among
others: (i) Background of the Merger; (ii) Recommendation of the
Anworth Board and Its Reasons for the Merger; (iii) Opinion of
Anworth’s Financial Advisor, (iv) Certain Ready Capital Unaudited
Prospective Financial Information; and (v) Certain Anworth
Unaudited Prospective Financial Information. Unless and until the
material misstatements and omissions (referenced below) are
remedied before the anticipated shareholder vote on the Proposed
Transaction, Anworth shareholders will be forced to make a voting
decision on the Proposed Transaction without full disclosure of all
material information. In the event the Proposed Transaction is
consummated, Plaintiff may seek to recover damages resulting from
Defendants’ misconduct. |
 |
Case 1:21-cv-00331
Document 1 Filed 01/20/21 Page 7 of 15 PageID #: 7 Material
Omissions Concerning Anworth’s and Ready Capital’s Financial
Projections The Registration Statement omits material information
concerning Anworth’s and Ready Capital’s financial projections.
With respect to the Ready Capital Projections and Anworth
Projections, the Registration Statement fails to disclose: (1) all
line items underlying (i) Core Earnings Per Share,1 and (ii) Core
Earnings per Common Share;2 (2) Anworth’s and Ready Capital’s net
income With respect to the Ready Capital Projections, the
Registration Statement states the following concerning “Core
Earnings Per Share”: Core earnings is a non-GAAP measure that Ready
Capital defines as net income (loss) excluding (i) any unrealized
gains or losses on certain MBS, (ii) any unrealized gains or losses
on sales of certain MBS, (iii) any unrealized gains or losses on
residential mortgage servicing rights and (iv) one-time
non-recurring gains or losses, such as gains or losses on
discontinued operations, bargain purchase gains, or merger related
expenses. Ready Capital believes that providing investors with core
earnings gives investors greater transparency into the information
used by management in its financial and operational
decision-making. However, because core earnings is an incomplete
measure of Ready Capital’s financial performance and involves
differences from net income computed in accordance with GAAP, it
should be considered along with, but not as an alternative to, net
income as a measure of financial performance. See Registration
Statement at 111. With respect to the Anworth Projections, the
Registration Statement states the following concerning “Core
Earnings Per Common Share”: Core Earnings is a non-U.S. GAAP
measure that Anworth defines as net income (loss) to common
stockholders, excluding (a) all realized and unrealized gains and
losses on securities and derivatives, (b) premium amortization
expense, (c) depreciation expense on real property, (d) changes in
loss reserves or impairments, and (d) non-recurring expenses such
as transaction-related expenses. . . . As a result, Core Earnings
should not be considered a substitute for Anworth’s GAAP net income
(loss), as a measure of its financial performance, or any measure
of Anworth’s liquidity under GAAP. See Registration Statement at
113. |
 |
Case 1:21-cv-00331
Document 1 Filed 01/20/21 Page 8 of 15 PageID #: 8 projections; and
(3) a reconciliation of all non-GAAP to GAAP financial metrics.
When a company discloses non-GAAP financial metrics in a
Registration Statement, the company must also disclose all
projections and information necessary to make the non-GAAP metrics
not misleading, and must provide a reconciliation (by schedule or
other clearly understandable method) of the differences between the
non-GAAP financial metrics disclosed or released with the most
comparable financial metrics calculated and presented in accordance
with GAAP. The SEC has increased its scrutiny of a company’s use of
non-GAAP financial measures as such measures can be misleading and
“crowd out” more reliable GAAP information.3 The disclosure of the
aforementioned information is material because it would provide the
Company’s shareholders with a basis to project the future financial
performances of the Company and combined company and would allow
shareholders to better understand the financial analyses performed
by the Company’s financial advisor in support of its fairness
opinion. Shareholders cannot hope to replicate management’s inside
view of the future prospects of the Company. Without such
information, which is uniquely possessed by Defendant(s) and the
Company’s financial advisor, the Company’s shareholders are unable
to determine how much weight, if any, to place on the Company’s
financial advisor’s fairness opinion in determining whether to vote
for or against the Proposed Transaction. The above-referenced
omitted information, if disclosed, would significantly alter Mary
Jo White, Keynote Address, International Corporate Governance
Network Annual Conference: Focusing the Lens of Disclosure to Set
the Path Forward on Board Diversity, Non-GAAP, and Sustainability
(June 27, 2016),
https://www.sec.gov/news/speech/chair-white-icgn-speech.html
(footnotes omitted) (last visited Jan. 20, 2021) (“And last month,
the staff issued guidance addressing a number of troublesome
practices which can make non-GAAP disclosures misleading: the lack
of equal or greater prominence for GAAP measures; exclusion of
normal, recurring cash operating expenses; individually tailored
non-GAAP revenues; lack of consistency; cherry-picking; and the use
of cash per share data. I strongly urge companies to carefully
consider this guidance and revisit their approach to non-GAAP
disclosures.”). |
 |
Case 1:21-cv-00331
Document 1 Filed 01/20/21 Page 9 of 15 PageID #: 9 the total mix of
information available to the Company’s shareholders. 2. Material
Omissions Concerning Credit Suisse’s Analyses In connection with
the Proposed Transaction, the Registration Statement omits material
information concerning analyses performed by Credit Suisse. With
respect to Credit Suisse’s “Selected Public Companies Analysis” of
Anworth and Ready Capital, and Credit Suisse’s “Selected Precedent
Transactions Analysis,” the Registration Statement fails to
disclose the individual multiples and financial metrics of the
companies and transactions Credit Suisse observed in its analyses.
The Registration Statement fails to disclose the following
concerning Credit Suisse’s “Dividend Discount Analysis” of Anworth
and Ready Capital: (1) the distributed cash flows that Anworth was
forecasted to generate during the last quarter of Anworth’s fiscal
year ending December 31, 2020 through the full fiscal year ending
December 31, 2023, and all underlying line items; (2) the
distributed cash flows that Ready Capital was forecasted to
generate during the last quarter of Ready Capital’s fiscal year
ending December 31, 2020 through the full fiscal year ending
December 31, 2025, and all underlying line items; (3) the terminal
values for Anworth and Ready Capital; (4) the individual inputs and
assumptions underlying the (i) range of TBVPS multiples of 0.70x to
0.90x, and of 0.80x to 1.00x, and (ii) range of discount rates of
9.0% to 14.0%, and of 9.0% to 13.0%; and (5) the total number of
fully diluted shares of Anworth common stock outstanding. The
valuation methods, underlying assumptions, and key inputs used by
Credit Suisse in rendering its purported fairness opinion must be
fairly disclosed to Anworth shareholders. The description of Credit
Suisse’s fairness opinion and analyses, however, fails to include
key inputs and assumptions underlying those analyses. Without the
information described above, Anworth shareholders are unable to
fully understand Credit Suisse’s fairness opinion and |
 |
Case 1:21-cv-00331
Document 1 Filed 01/20/21 Page 10 of 15 PageID #: 10 analyses, and
are thus unable to determine how much weight, if any, to place on
them in determining whether to vote for or against the Proposed
Transaction. This omitted information, if disclosed, would
significantly alter the total mix of information available to the
Company’s shareholders. 3. Material Omissions Concerning Potential
Conflicts of Interest Involving Credit Suisse The Registration
Statement omits material information concerning potential conflicts
of interest involving Credit Suisse. The Registration Statement
fails to disclose whether Credit Suisse has performed past services
for Anworth and/or its affiliates, and if so, the timing and nature
of the services Credit Suisse provided to Anworth and/or its
affiliates, including the amount of compensation Credit Suisse
received from Anworth and/or its affiliates for providing each
service. Disclosure of a financial advisor’s compensation and
potential conflicts of interest to shareholders is required due to
their central role in the evaluation, exploration, selection, and
implementation of strategic alternatives and the rendering of any
fairness opinions. Disclosure of a financial advisor’s potential
conflicts of interest may inform shareholders on how much weight to
place on that analysis. The above-referenced omitted information,
if disclosed, would significantly alter the total mix of
information available to the Company’s shareholders. 4. Material
Omissions Concerning the Sales Process Leading up to the Proposed
Transaction The Registration Statement omits material information
concerning the sales process leading up to the Proposed
Transaction. The Registration Statement provides that Anworth
entered into confidentiality and non-disclosure agreements with
potential buyers during the sales process. |
 |
Case 1:21-cv-00331
Document 1 Filed 01/20/21 Page 11 of 15 PageID #: 11 The
Registration Statement, however, fails to disclose the terms of all
confidentiality and non-disclosure agreements, including whether
such agreements contained standstill provisions with “don’t ask,
don’t waive” (DADW) provisions (including their time of
enforcement) that would preclude interested parties from making
superior offers for the Company. Without this information, Anworth
shareholders may have the mistaken belief that potential suitors
are or were permitted to submit superior proposals for the Company,
when in fact they are or were contractually prohibited from doing
so. This information is material because a reasonable Anworth
shareholder would want to know, prior to voting for or against the
Proposed Transaction, whether other potential buyers are or were
foreclosed from submitting a superior proposal. The
above-referenced omitted information, if disclosed, would
significantly alter the total mix of information available to the
Company’s shareholders. COUNT I For Violations of Section 14(a) and
Rule 14a-9 Promulgated Thereunder Against All Defendants Plaintiff
repeats and realleges each and every allegation contained above as
if fully set forth herein. During the relevant period, Defendants,
individually and in concert, directly or indirectly, disseminated
or approved the false and misleading Registration Statement
specified above, which failed to disclose material facts necessary
in order to make the statements made, in light of the circumstances
under which they were made, not misleading, in violation of Section
14(a) of the Exchange Act and Rule 14a-9 promulgated thereunder by
the SEC. Each of the Individual Defendants, by virtue of his/her
positions within the Company as officers and/or directors, were
aware of the omitted information but failed to disclose such
information, in violation of Section 14(a) of the Exchange Act.
Defendants, by use of the |
 |
Case 1:21-cv-00331
Document 1 Filed 01/20/21 Page 12 of 15 PageID #: 12 mails and
means and instrumentalities of interstate commerce, solicited
and/or permitted the use of their names to file and disseminate the
Registration Statement with respect to the Proposed Transaction.
The Defendants were, at minimum, negligent in filing the materially
false and misleading Registration Statement. The false and
misleading statements and omissions in the Registration Statement
are material in that a reasonable shareholder would consider them
important in deciding how to vote on the Proposed Transaction. By
reason of the foregoing, Defendants have violated Section 14(a) of
the Exchange Act and Rule 14a-9 promulgated thereunder. Because of
the false and misleading statements and omissions in the
Registration Statement, Plaintiff is threatened with irreparable
harm. COUNT II Violations of Section 20(a) of the Exchange Act
Against the Individual Defendants Plaintiff repeats and realleges
each and every allegation contained in the foregoing paragraphs as
if fully set forth herein. The Individual Defendants acted as
control persons of the Company within the meaning of Section 20(a)
of the Exchange Act as alleged herein. By virtue of their senior
positions as officers and/or directors of the Company and
participation in and/or awareness of the Company’s operations
and/or intimate knowledge of the false statements contained in the
Registration Statement filed with the SEC, they had the power to
and did influence and control, directly or indirectly, the
decision-making of the Company, including the content and
dissemination of the false and misleading Registration Statement.
Each of the Individual Defendants was provided with or had
unlimited access to |
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Case 1:21-cv-00331
Document 1 Filed 01/20/21 Page 13 of 15 PageID #: 13 copies of the
Registration Statement and other statements alleged by Plaintiff to
be misleading prior to and/or shortly after these statements were
issued and had the ability to prevent the issuance of the
statements or cause the statements to be corrected. As officers
and/or directors of a publicly owned company, the Individual
Defendants had a duty to disseminate accurate and truthful
information with respect to the Registration Statement, and to
correct promptly any public statements issued by the Company which
were or had become materially false or misleading. In particular,
each of the Individual Defendants had direct and supervisory
involvement in the operations of the Company, and, therefore, is
presumed to have had the power to control or influence the
particular transactions giving rise to the securities violations as
alleged herein, and exercised the same. The Individual Defendants
were provided with or had unlimited access to copies of the
Registration Statement and had the ability to prevent the issuance
of the statements or to cause the statements to be corrected. The
Registration Statement at issue contains the recommendation of the
Individual Defendants to approve the Proposed Transaction. Thus,
the Individual Defendants were directly involved in the making of
the Registration Statement. In addition, as the Registration
Statement sets forth at length, and as described herein, the
Individual Defendants were involved in negotiating, reviewing, and
approving the Proposed Transaction. The Registration Statement
purports to describe the various issues and information that they
reviewed and considered—descriptions which had input from the
Individual Defendants. By virtue of the foregoing, the Individual
Defendants have violated Section 20(a) of the Exchange Act. As set
forth above, the Individual Defendants had the ability to exercise
control over and did control a person or persons who have each
violated Section 14(a) and Rule 14a-9 |
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Case 1:21-cv-00331
Document 1 Filed 01/20/21 Page 14 of 15 PageID #: 14 promulgated
thereunder, by their acts and omissions as alleged herein. By
virtue of their positions as controlling persons, the Individual
Defendants are liable pursuant to Section 20(a) of the Exchange
Act. As a direct and proximate result of Defendants’ conduct, the
Company’s shareholders will be irreparably harmed. PRAYER FOR
RELIEF WHEREFORE, Plaintiff prays for judgment and relief as
follows: Preliminarily and permanently enjoining Defendants and all
persons acting in concert with them from proceeding with,
consummating, or closing the Proposed Transaction and any vote on
the Proposed Transaction, unless and until Defendants disclose and
disseminate the material information identified above to Company
shareholders; In the event Defendants consummate the Proposed
Transaction, rescinding it and setting it aside or awarding
rescissory damages; Declaring that Defendants violated Sections
14(a) and 20(a) of the Exchange Act, and Rule 14a-9 promulgated
thereunder; Awarding Plaintiff reasonable costs and expenses
incurred in this action, including counsel fees and expert fees;
and Granting such other and further relief as the Court may deem
just and proper. JURY TRIAL DEMANDED Plaintiff hereby demands a
trial by jury. Dated: January 20, 2021Respectfully submitted,
HALPER SADEH LLP By: /s/ Daniel Sadeh Daniel Sadeh, Esq. Zachary
Halper, Esq. (to be admitted pro hac vice) |
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Case 1:21-cv-00331
Document 1 Filed 01/20/21 Page 15 of 15 PageID #: 15 667 Madison
Avenue, 5th Floor New York, NY 10065 Telephone: (212) 763-0060
Facsimile: (646) 776-2600 Email: sadeh@halpersadeh.com
zhalper@halpersadeh.com Counsel for Plaintiff |
Exhibit 99.5
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Case 2:21-cv-00566
Document 1 Filed 01/21/21 Page 1 of 22 Page ID #:1 Joel E. Elkins
(SBN 256020) jelkins@weisslawllp.com WEISSLAW LLP 9100 Wilshire
Blvd. #725 E. Beverly Hills, CA 90210 3Telephone: 310/208-2800
Facsimile: 310/209-2348 4 Attorneys for Plaintiff 5 6 7 8UNITED
STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SAMUEL
CARLISLE,) ) ) Plaintiff,) ) ) ) ANWORTH MORTGAGE ASSET) ) MCADAMS,
JOE E. DAVIS,) ROBERT C. DAVIS, MARK S.) ) DOMINIQUE MIELLE,) )
Defendants.) 21 22 Case No. COMPLAINT FOR VIOLATIONS OF THE FEDERAL
SECURITIES LAWS JURY TRIAL DEMANDED Plaintiff Samuel Carlisle
(“Plaintiff”), on behalf of himself and all others 23 similarly
situated, upon information and belief, including an examination and
inquiry conducted by and through his counsel, except as to those
allegations pertaining to 26 27 28 - 1 - COMPLAINT FOR VIOLATIONS
OF THE FEDERAL SECURITIES LAWS |
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Case 2:21-cv-00566
Document 1 Filed 01/21/21 Page 2 of 22 Page ID #:2 Plaintiff, which
are alleged upon personal belief, alleges the following for his
Complaint: 3 NATURE OF THE ACTION 4 1.This is an action brought by
Plaintiff against Anworth Mortgage Asset Corporation (“Anworth” or
the “Company”) and the members of Anworth’s Board of 7 Directors
(the “Board” or the “Individual Defendants”) for their violations
of Sections 8 14(a) and 20(a) of the Securities Exchange Act of
1934 (the “Exchange Act”), 15 U.S.C. §§ 78n(a), 78t(a), and U.S.
Securities and Exchange Commission (“SEC”) Rule 11 14a-9, 17 C.F.R.
§ 240.14a-9, and to enjoin the vote on a proposed transaction, 12
pursuant to which Anworth will be acquired by Ready Capital
Corporation (“Ready Capital”) through Ready Capital’s subsidiary RC
Merger Subsidiary (“Merger Sub”) 15 (the “Proposed Transaction”).
16 2.On December 7, 2020, Anworth issued a press release announcing
that it had entered into an Agreement and Plan of Merger dated
December 6, 2020 (the 19 “Merger Agreement”) to merge Anworth with
Ready Capital. Under the terms of the 20 Merger Agreement, each
Anworth stockholder will be entitled to receive (i) 0.1688 shares
of Ready Capital common stock, and (ii) $0.61 in cashfor each share
of 23 Anworth common stock they own (the “Merger
Consideration”).Upon the closing 24 of the Proposed Transaction,
Ready Capital stockholders are expected to own approximately 76% of
the combined company’s stock, while Anworth stockholders 27 are
expected to own approximately 24% of the combined company’s stock.
28 - 2 - COMPLAINT FOR VIOLATIONS OF THE FEDERAL SECURITIES
LAWS |
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Case 2:21-cv-00566
Document 1 Filed 01/21/21 Page 3 of 22 Page ID #:3 3.On January 4,
2021, Ready Capital filed a Form S-4 Registration Statement (the
“Registration Statement”) with the SEC. The Registration Statement,
3 which recommends that Anworth stockholders vote in favor of the
Proposed 4 Transaction, omits or misrepresents material information
concerning, among other things: (i) the financial projections for
Anworth and Ready Capital and the data and 7 inputs underlying the
financial valuation analyses that support the fairness opinion 8
provided by the Company’s financial advisor, Credit Suisse
Securities (USA) LLC (“Credit Suisse”); (ii) Credit Suisse’s
potential conflicts of interest; and (iii) the 11 background of the
Proposed Transaction. Defendants authorized the issuance of the 12
false and misleading Registration Statement in violation of
Sections 14(a) and 20(a) of the Exchange Act. 15 In short, unless
remedied, Anworth’s public stockholders will be 16 irreparably
harmed because the Registration Statement’s material
misrepresentations and omissions prevent them from making a
sufficiently informed voting decision on 19 the Proposed
Transaction.Plaintiff seeks to enjoin the stockholder vote on the
20 Proposed Transaction unless and until such Exchange Act
violations are cured. JURISDICTION AND VENUE 23 This Court has
jurisdiction over the claims asserted herein for violations 24 of
Sections 14(a) and 20(a) of the Exchange Act and Rule 14a-9
promulgated thereunder pursuant to Section 27 of the Exchange Act,
15 U.S.C. § 78aa, and 28 27 U.S.C. §1331 (federal question
jurisdiction). 28 - 3 - COMPLAINT FOR VIOLATIONS OF THE FEDERAL
SECURITIES LAWS |
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Case 2:21-cv-00566
Document 1 Filed 01/21/21 Page 4 of 22 Page ID #:4 6.The Court has
jurisdiction over defendants because each defendant is either a
corporation that conducts business in and maintains operations in
this District, 3 or is an individual who has sufficient minimum
contacts with this District so as to 4 render the exercise of
jurisdiction by this Court permissible under traditional notions of
fair play and substantial justice. 7 7.Venue is proper in this
District under Section 27 of the Exchange Act, 15 8 U.S.C. § 78aa,
as well as under 28 U.S.C. § 1391 because: (i) the Company’s
principal executive offices are located in this District; (ii) one
or more of the defendants either 11 resides in or maintains
executive offices in this District; and (iii) defendants have 12
received substantial compensation in this District by doing
business here and engaging in numerous activities that had an
effect in this District. 15 THE PARTIES 16 8.Plaintiff is, and has
been at all times relevant hereto, a continuous stockholder of
Anworth. 19 9.Defendant Anworth is a Maryland corporation, with its
principal 20 executive offices located at 1299 Ocean Avenue, 2nd
Floor, Santa Monica, California 90401. The Company is a specialty
finance mortgage company organized to qualify 23 as a real estate
investment trust (“REIT”). Anworth’s common stock trades on the New
24 York Stock Exchange under the ticker symbol “ANH.” 10.Defendant
Joseph E. McAdams (“Joseph McAdams”) is Chairman of the 27 Board
and has been Chief Executive Officer (“CEO”) of the Company since
September 28 - 4 - COMPLAINT FOR VIOLATIONS OF THE FEDERAL
SECURITIES LAWS |
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Case 2:21-cv-00566
Document 1 Filed 01/21/21 Page 5 of 22 Page ID #:5 2018, President
since July 2016, Chief Investment Officer since January 2003, and a
director and Executive Vice President of the Company since June
2002. 3 11.Defendant Joe E. Davis (“Joe Davis”) has been a director
of the Company 4 since its formation in 1997. 12.Defendant Robert
C. Davis (“Robert Davis”) has been a director of the 7 Company
since May 2005. 8 913.Defendant Mark S. Maron (“Maron”) has been a
director of the Company 10since May 2014. 11 14.Defendant Lloyd
McAdams (“Lloyd McAdams”) has been a director of 12 the Company
since its formation in 1997.Defendant Lloyd McAdams previously
served as Anworth’s Chairman until November 2018, CEO until
September 2018, and 15 President until July 2016. 16 15.Defendant
Dominique Mielle (“Mielle”) has been a director of the Company
since November 2018. 19 Defendants identified in paragraphs 10-15
are referred to herein as the 20 “Board” or the “Individual
Defendants.” OTHER RELEVANT ENTITIES 23 Headquartered in New York,
Ready Capital is a multi-strategy real estate 24 finance company
that originates, acquires, finances and services small-to
medium-sized balance commercial loans.Ready Capital specializes in
loans backed by 27 commercial real estate, including agency
multifamily, investor and bridge as well as 28 - 5 - COMPLAINT FOR
VIOLATIONS OF THE FEDERAL SECURITIES LAWS |
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Case 2:21-cv-00566
Document 1 Filed 01/21/21 Page 6 of 22 Page ID #:6 SBA 7(a)
business loans.Ready Capital employs over 400 lending professionals
nationwide, and is externally managed and advised by Waterfall
Asset Management, 3 LLC. 4 18.Merger Sub is a Delaware limited
liability company and wholly owned subsidiary of Ready Capital. 7
SUBSTANTIVE ALLEGATIONS Background of the Company 19.Incorporated
in Maryland on October 20, 1997, Anworth is a REIT 11 externally
managed and advised by Anworth Management, LLC (the “Manager”) 12
under the Management Agreement between the Company and the Manager
(the “Management Agreement”). The Manager is supervised and
directed by Board. The 15 Company invests in, finances and manages
a leveraged portfolio of residential 16 mortgage-backed securities
(“MBS”) and residential mortgage loans, which presently includes
the following types of investments: 19 •Agency MBS, which include
residential mortgage pass-through certificates and collateralized
mortgage obligations (“CMOs”), which are securities representing 22
interests in pools of mortgage loans secured by residential
property in which the 23 principal and interest payments are
guaranteed by a government-sponsored enterprise (“GSE”), such as
the Federal National Mortgage Association (“Fannie 26 Mae”), or the
Federal Home Loan Mortgage Corporation (“Freddie Mac”). 27 28 - 6 -
COMPLAINT FOR VIOLATIONS OF THE FEDERAL SECURITIES LAWS |
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Case 2:21-cv-00566
Document 1 Filed 01/21/21 Page 7 of 22 Page ID #:7 •Non-agency MBS,
which are securities issued by companies that are not guaranteed by
federally sponsored enterprises and that are secured primarily by 3
first-lien residential mortgage loans. 4 •Residential mortgage
loans. Anworth acquires non-Qualified Mortgage (“Non-QM”)
residential mortgage loans from independent loan originators with
the 7 intent of holding these loans for securitization. These loans
are financed by a 8 warehouse line of credit until
securitization.Anworth also holds residential mortgage loans
through consolidated securitization trusts, and finances these 11
loans through asset-backed securities (“ABS”) issued by the
consolidated 12 securitization trusts. The ABS, which are held by
unaffiliated third parties, are non-recourse financing. The
difference in the amount of the loans in the trusts 15 and the
amount of the ABS represents the Company’s retained net interest in
the 16 securitization trusts. The Proposed Transaction 19 20.On
December 07, 2020, Anworth and Ready Capital issued a joint press
20 release announcing the Proposed Transaction. The press release
states, in relevant part: NEW YORK & SANTA MONICA, Calif.
--Ready Capital Corporation 23 (NYSE:RC) (“Ready Capital”), a
multi-strategy real estate finance 24 company that originates,
acquires, finances and services small-to medium-sized balance
commercial loans, and Anworth Mortgage Asset 27 Corporation
(NYSE:ANH) (“Anworth”), a specialty finance REIT that 28 - 7 -
COMPLAINT FOR VIOLATIONS OF THE FEDERAL SECURITIES LAWS |
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Case 2:21-cv-00566
Document 1 Filed 01/21/21 Page 8 of 22 Page ID #:8
focusesprimarilyoninvestmentsinresidentialmortgage-backed
securities, announced today that they have entered into a
definitive merger 3 agreement pursuant to which Ready Capital will
combine with Anworth. 4 The combined company is expected to have a
pro forma equity capital base in excess of $1 billion.The
combination is expected to enhance 7 shareholder liquidity and
provide for increased operating leverage across 8 9the larger
equity base. 10 Under the terms of the merger agreement, each share
of Anworth common stock will be converted into 0.1688 shares of
Ready Capital common stock 13 and $0.61 of cash consideration.
Based on Ready Capital’s closing stock 14 price on Friday, December
4, 2020, the implied offer price is $2.94 per share. Upon the
closing of the merger, Ready Capital stockholders are 17 expected
to own approximately 76% of the combined company’s stock, 18 while
Anworth stockholders are expected to own approximately 24% of the
combined company’s stock.Ready Capital will also assume 21
Anworth’s three outstanding series of preferred stock. 22 23 In
connection with the merger, Waterfall Asset Management, LLC 24
(“Waterfall”), Ready Capital’s external manager, has agreed to
reduce the base management fee it charges Ready Capital by an
aggregate of $4 27 28 - 8 - COMPLAINT FOR VIOLATIONS OF THE FEDERAL
SECURITIES LAWS |
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Case 2:21-cv-00566
Document 1 Filed 01/21/21 Page 9 of 22 Page ID #:9 million over the
four quarters immediately following the closing of the transaction.
3 Based on the closing prices of Ready Capital’s common stock on
December 4, 2020, the market capitalization of the combined company
6 would be approximately $984 million.The combined company will
operate under the name Ready Capital and its shares are expected to
9 continue trading on the New York Stock Exchange under the
existing 10 11ticker symbol “RC”. 12 “This merger highlights our
continued focus on establishing Ready 13 Capital as an
industry-leading mortgage REIT, with the scale and financial
resources to pursue compelling risk-adjusted returns across its
diversified 16
investmentplatform,”statedReadyCapitalChairmanandChief 17 Executive
Officer Thomas Capasse. “The combined company will be in a more
formidable position to execute its business plan, improve operating
20 and cost efficiencies, and continue growth in a prudent and
profitable manner.” 23 Anticipated Benefits to Ready Capital and
Anworth Stockholders 24 from the Merger •Over $1 billion combined
capital base and a diversified investment 27 portfolio 28 - 9 -
COMPLAINT FOR VIOLATIONS OF THE FEDERAL SECURITIES LAWS |
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Case 2:21-cv-00566
Document 1 Filed 01/21/21 Page 10 of 22 Page ID #:10 •Portfolio
redeployment will enable Ready Capital to capitalize on attractive
investment opportunities 3 Scale advantages include: 4 o Reduced
operating expenses (as a percentage of combined capital base) 7 o
Improved access to financing, including corporate debt 8 9funding
alternatives 10o Greater portfolio diversification 11 o Enhanced
shareholder liquidity and investor base diversity 12 Management,
Governance and Corporate Headquarters Upon completion of the
merger, Ready Capital’s Chairman and Chief 15 Executive Officer
Thomas Capasse will lead the company and Ready 16 Capital
executives Jack Ross, Thomas Buttacavoli, Andrew Ahlborn and Gary
Taylor will remain in their current roles. The combined company 19
will be headquartered in New York, New York.The Board of the 20
combined company is expected to have eight directors, consisting of
Ready Capital’s existing seven directors and one independent
director 23 from Anworth’s current Board. 24 Insiders’ Interests in
the Proposed Transaction
21.AnworthinsidersaretheprimarybeneficiariesoftheProposed 27
Transaction, not the Company’s public stockholders. The Board and
the Company’s 28 - 10 - COMPLAINT FOR VIOLATIONS OF THE FEDERAL
SECURITIES LAWS |
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Case 2:21-cv-00566
Document 1 Filed 01/21/21 Page 11 of 22 Page ID #:11 executive
officers are conflicted because they will have secured unique
benefits for themselves from the Proposed Transaction not available
to Plaintiff and the public 3 stockholders of Anworth. 4
22.Notably, certain Company insiders have secured positions for
themselves with the combined company. Specifically, the
Registration Statement provides that 7 defendant Mielle will be
appointed to serve on the board of the combined company. 8
923.Moreover, Company insiders stand to reap financial benefits for
securing 10the deal with Ready Capital.Pursuant to the Merger
Agreement, all outstanding 11 phantom shares will vest and convert
into the right to receive cash payments.The 12 following table sets
forth the cash payments the Company’s named executive officers
stand to receive in connection with their outstanding equity
awards: 15 16 17 18 19 20 21 24.Additionally, in connection with
the entry into the Merger Agreement, the Management Agreement was
amended (the “Management Agreement Amendment”). 24 The Management
Agreement Amendment provides that upon closing, the Management 25
Agreement will terminate, and as a result of such termination,
Anworth will pay the Manager a termination fee of $20.3 million,
and Ready Capital or Merger Sub (as the 28 - 11 - COMPLAINT FOR
VIOLATIONS OF THE FEDERAL SECURITIES LAWS |
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Case 2:21-cv-00566
Document 1 Filed 01/21/21 Page 12 of 22 Page ID #:12 surviving
company following the merger) will reimburse the Manager for
certain unpaid expenses and pay to the Manager all accrued and
unpaid management fees then 3 owed under the Management Agreement,
as and when specified in the Management 4 Agreement Amendment.
Defendants Joseph McAdams and Lloyd McAdams own an interest in the
Manager, and therefore will receive a part of the payments that
will be 7 due to the Manager in connection with the termination of
the Management Agreement. 8 9The Registration Statement Contains
Material Misstatements or Omissions 1025.The defendants filed a
materially incomplete and misleading Registration 11 Statement with
the SEC and disseminated it to Anworth’s stockholders.The 12
Registration Statement misrepresents or omits material information
that is necessary for the Company’s stockholders to make an
informed decision whether to vote in favor 15 of the Proposed
Transaction. 16 26.Specifically, as set forth below, the
Registration Statement fails to provide Company stockholders with
material information or provides them with materially 19 misleading
information concerning: (i) the financial projections for Anworth
and 20 Ready Capital and the data and inputs underlying the
financial valuation analyses that support the fairness opinion
provided by the Company’s financial advisor, Credit 23 Suisse; (ii)
Credit Suisse’s potential conflicts of interest; and (iii) the
background of 24 the Proposed Transaction. Material Omissions
Concerning the Financial Projections for Anworth and Ready 27
Capital and Credit Suisse’s Financial Analyses 28 - 12 - COMPLAINT
FOR VIOLATIONS OF THE FEDERAL SECURITIES LAWS |
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Case 2:21-cv-00566
Document 1 Filed 01/21/21 Page 13 of 22 Page ID #:13 1 27.The
Registration Statement omits material information regarding the 2
financial projections for Anworth and Ready Capital. 28.For
example, in connection with rendering its fairness opinion, Credit
5 Suisse, among other things: 6 performed a dividend discount
analysis of Anworth to calculate the estimated present value of the
distributed cash flows that Anworth was 9 forecasted to generate
during the last quarter of Anworth’s fiscal year 10 ending December
31, 2020 through the full fiscal year ending December 31, 2023
based on the Anworth Projections. 13 * * * 14 performed a dividend
discount analysis of Ready Capital (on a standalone basis) to
calculate the estimated present value of the distributed cash flows
17 that Ready Capital was forecasted to generate during the last
quarter of 18 Ready Capital’s fiscal year ending December 31, 2020
through the full fiscal year ending December 31, 2025 based on the
Ready Capital 21 Projections. 22 Registration Statement at 99-100.
Yet, the Registration Statement fails to disclose (i) the
distributed cash flows that Anworth was forecasted to generate
during the last 25 quarter of Anworth’s fiscal year ending December
31, 2020 through the full fiscal year 26 27ending December 31, 2023
and (ii) the distributed cash flows that Ready Capital was 28 - 13
- COMPLAINT FOR VIOLATIONS OF THE FEDERAL SECURITIES
LAWS |
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Case 2:21-cv-00566
Document 1 Filed 01/21/21 Page 14 of 22 Page ID #:14 forecasted to
generate during the last quarter of Ready Capital’s fiscal year
ending December 31, 2020 through the full fiscal year ending
December 31, 2025. 3 29.Additionally, the Registration Statement
fails to disclose Anworth’s 4 estimated total book value per share
over the projection period. 30.The Registration Statement omits
material information regarding Credit 7 Suisse’s financial
analyses. 8 931.The Registration Statement describes Credit
Suisse’s fairness opinion and 10the various valuation analyses it
performed in support of its opinion. However, the 11 description of
Credit Suisse’s fairness opinion and analyses fails to include key
inputs 12 and assumptions underlying these analyses.Without this
information, as described below, Anworth’s public stockholders are
unable to fully understand these analyses 15 and, thus, are unable
to determine what weight, if any, to place on Credit Suisse’s 16
fairness opinion in determining whether to vote in favor of the
Proposed Transaction. 32.With respect to Credit Suisse’s Selected
Public Companies Analysis, the 19 Registration Statement fails to
disclose the individual multiples and financial metrics 20 for each
of the comparable companies observed by Credit Suisse in the
analysis. 33.With respect to Credit Suisse’s Selected Precedent
Transactions Analysis, 23 the Registration Statement fails to
disclose the individual multiples and financial 24 metrics for each
of the transactions observed by Credit Suisse in the analysis.
34.With respect to Credit Suisse’s Dividend Discount Analysis of
Anworth, 27 the Registration Statement fails to disclose: (i) the
distributed cash flows that Anworth 28 - 14 - COMPLAINT FOR
VIOLATIONS OF THE FEDERAL SECURITIES LAWS |
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Case 2:21-cv-00566
Document 1 Filed 01/21/21 Page 15 of 22 Page ID #:15 was forecasted
to generate during the last quarter of Anworth’s fiscal year ending
December 31, 2020 through the full fiscal year ending December 31,
2023; (ii) Credit 3 Suisse’s basis for selecting the range of
tangible book value per share (“TBVPS”) 4 multiples of 0.70x to
0.90x; and (iii) quantification of the inputs and assumptions
underlying the discount rates ranging from 9.0% to 14.0%. 7 35.With
respect to Credit Suisse’s Dividend Discount Analysis of Ready 8
Capital, the Registration Statement fails to disclose: (i) the
distributed cash flows that Ready Capital was forecasted to
generate during the last quarter of Ready Capital’s 11 fiscal year
ending December 31, 2020 through the full fiscal year ending
December 31, 12 2025; (ii) Credit Suisse’s basis for selecting the
range of TBVPS multiples of 0.80x to 1.00x; and (iii)
quantification of the inputs and assumptions underlying the
discount 15 rates ranging from 9.0% to 13.0%. 16 36.The omission of
this material information renders the statements in the “Certain
Ready Capital Unaudited Prospective Financial Information,”
“Certain 19 Anworth Unaudited Prospective Financial Information”
and “Opinion of Anworth’s 20 Financial Advisor” sections of the
Registration Statement false and/or materially misleading in
contravention of the Exchange Act. 23 Material Omissions Concerning
Credit Suisse’s Potential Conflicts of Interest 24
37.TheRegistrationStatementfailstodisclosematerialinformation
concerning the potential conflicts of interest faced by Credit
Suisse. 27 28 - 15 - COMPLAINT FOR VIOLATIONS OF THE FEDERAL
SECURITIES LAWS |
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Case 2:21-cv-00566
Document 1 Filed 01/21/21 Page 16 of 22 Page ID #:16 38.For
example, the Registration Statement fails to disclose any past
services performed by Credit Suisse for the Company or its
affiliates and the fees received by 3 Credit Suisse for providing
these services. 4 39.Full disclosure of investment banker
compensation and all potential conflicts is required due to the
central role played by investment banks in the 7 evaluation,
exploration, selection, and implementation of strategic
alternatives. 8 940.The omission of this material information
renders the statements in the 10“Opinion of Anworth’s Financial
Advisor” section of the Registration Statement false 11 and/or
materially misleading in contravention of the Exchange Act. 12
Material Omissions Concerning the Background of the Proposed
Transaction
41.TheRegistrationStatementfailstodisclosematerialinformation 15
concerning the background of the Proposed Transaction. 16 42.For
example, the Registration Statement fails to disclose the specific
terms of the confidentiality agreements the Company entered into
with potential bidders. 19 Specifically, the Registration Statement
fails to disclose whether any of the 20 confidentiality agreements
entered into with potential bidders during the sale process
included standstill provisions or “don’t-ask, don’t-waive” (“DADW”)
standstill 23 provisions that are still in effect and presently
precluding any potential counterparty 24 from submitting a topping
bid for Anworth. 43.The failure to disclose the existence of DADW
provisions creates the false 27 impression that a potential bidder
who entered into a confidentiality agreement could 28 - 16 -
COMPLAINT FOR VIOLATIONS OF THE FEDERAL SECURITIES LAWS |
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Case 2:21-cv-00566
Document 1 Filed 01/21/21 Page 17 of 22 Page ID #:17 make a
superior proposal for Anworth.If the potential acquirer’s
confidentiality agreement contains a DADW provision, then that
potential bidder can only make a 3 superior proposal by (i)
breaching the confidentiality agreement—since in order to 4 make
the superior proposal, it would have to ask for a waiver, either
directly or indirectly; or by (ii) being released from the
agreement, which if action has been done, 7 is omitted from the
Registration Statement. 8 944.Any reasonable Anworth stockholder
would deem the fact that a likely 10topping bidder may be precluded
from making a topping bid for the Company to 11 significantly alter
the total mix of information. 12 45.Additionally, the Registration
Statement fails to disclose (i) the financial terms of any bids or
indications of interest received by the Company from a party 15
identified in the Registration Statement as “Company A”; (ii) the
financial terms of the 16 verbal proposals the Company received
between May and August 2020; and (iii) a fair summary of the third
party valuation reports and sum-of-the-parts analyses to validate
19 Anworth’s and Ready Capital’s respective book value, discussed
by Credit Suisse and 20 Ready Capital’s financial advisor Wells
Fargo Securities, LLC. 46.The omission of this material information
renders the statements in the 23 “Background of the Merger” section
of the Registration Statement false and/or 24 materially misleading
in contravention of the Exchange Act. 47.The Individual Defendants
were aware of their duty to disclose the above-27 referenced
omitted information and acted negligently (if not deliberately) in
failing to 28 - 17 - COMPLAINT FOR VIOLATIONS OF THE FEDERAL
SECURITIES LAWS |
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Case 2:21-cv-00566
Document 1 Filed 01/21/21 Page 18 of 22 Page ID #:18 include this
information in the Registration Statement.Absent disclosure of the
foregoing material information prior to the stockholder vote on the
Proposed 3 Transaction, Plaintiff and the other stockholders of
Anworth will be unable to make an 4 informed voting decision in
connection with the Proposed Transaction and are thus threatened
with irreparable harm warranting the injunctive relief sought
herein. 7 CLAIMS FOR RELIEF 8 COUNT I 9 10Claims Against All
Defendants for Violations of Section 14(a) of the Exchange Act and
Rule 14a-9 Promulgated Thereunder 11 48.Plaintiff repeats all
previous allegations as if set forth in full. 49.During the
relevant period, defendants disseminated the false and 14
misleading Registration Statement specified above, which failed to
disclose material 15 facts necessary to make the statements, in
light of the circumstances under which they were made, not
misleading in violation of Section 14(a) of the Exchange Act and
SEC 18 Rule 14a-9 promulgated thereunder. 19 50.By virtue of their
positions within the Company, the defendants were aware of this
information and of their duty to disclose this information in the
22 Registration Statement. The Registration Statement was prepared,
reviewed, and/or 23 disseminated by the defendants.It
misrepresented and/or omitted material facts, including material
information about Anworth’s and Ready Capital’s projections, the 26
data and inputs underlying the financial valuation analyses that
support the fairness 27 28 - 18 - COMPLAINT FOR VIOLATIONS OF THE
FEDERAL SECURITIES LAWS |
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Case 2:21-cv-00566
Document 1 Filed 01/21/21 Page 19 of 22 Page ID #:19 opinion
provided by Credit Suisse, Credit Suisse’s potential conflicts of
interest and the background of the Proposed Transaction. The
defendants were at least negligent 3 in filing the Registration
Statement with these materially false and misleading 4 statements.
51.The omissions and false and misleading statements in the
Registration 7 Statement are material in that a reasonable
stockholder would consider them important 8 9in deciding how to
vote on the Proposed Transaction. 1052.By reason of the foregoing,
the defendants have violated Section 14(a) of 11 the Exchange Act
and SEC Rule 14a-9(a) promulgated thereunder. 12 53.Because of the
false and misleading statements in the Registration Statement,
Plaintiff is threatened with irreparable harm, rendering money
damages 15 inadequate.Therefore, injunctive relief is appropriate
to ensure defendants’ 16 misconduct is corrected. COUNT II Claims
Against the Individual Defendants for Violations of Section 20(a)
of the Exchange Act 54.Plaintiff repeats all previous allegations
as if set forth in full. 22 55.The Individual Defendants acted as
controlling persons of Anworth within 23 the meaning of Section
20(a) of the Exchange Act as alleged herein. By virtue of their
positions as officers and/or directors of Anworth, and
participation in and/or awareness 26 of the Company’s operations
and/or intimate knowledge of the false statements 27 28 - 19 -
COMPLAINT FOR VIOLATIONS OF THE FEDERAL SECURITIES LAWS |
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Case 2:21-cv-00566
Document 1 Filed 01/21/21 Page 20 of 22 Page ID #:20 contained in
the Registration Statement filed with the SEC, they had the power
to influence and control and did influence and control, directly or
indirectly, the decision-3 making of the Company, including the
content and dissemination of the various 4 statements which
Plaintiff contends are false and misleading. 56.Each of the
Individual Defendants was provided with or had unlimited 7 access
to copies of the Registration Statement and other statements
alleged by Plaintiff 8 to be misleading prior to and/or shortly
after these statements were issued and had the ability to prevent
the issuance of the statements or cause the statements to be
corrected. 11 57.In particular, each of the Individual Defendants
had direct and supervisory 12 involvement in the day-to-day
operations of the Company, and, therefore, is presumed to have had
the power to control or influence the particular transactions
giving rise to 15 the securities violations as alleged herein, and
exercised the same. The Registration 16 Statement at issue contains
the unanimous recommendation of each of the Individual Defendants
to approve the Proposed Transaction. They were, thus, directly
involved 19 in the making of the Registration Statement. 20 58.In
addition, as the Registration Statement sets forth at length, and
as described herein, the Individual Defendants were each involved
in negotiating, 23 reviewing, and approving the Proposed
Transaction.The Registration Statement 24 purports to describe the
various issues and information that they reviewed and
considered—descriptions the Company directors had input into. 27 28
- 20 - COMPLAINT FOR VIOLATIONS OF THE FEDERAL SECURITIES
LAWS |
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Case 2:21-cv-00566
Document 1 Filed 01/21/21 Page 21 of 22 Page ID #:21 59.By virtue
of the foregoing, the Individual Defendants have violated Section
20(a) of the Exchange Act. 3 60.As set forth above, the Individual
Defendants had the ability to exercise 4 control over and did
control a person or persons who have each violated Section 14(a)
and SEC Rule 14a-9, promulgated thereunder, by their acts and
omissions as alleged 7 herein. By virtue of their positions as
controlling persons, these defendants are liable 8 pursuant to
Section 20(a) of the Exchange Act. As a direct and proximate result
of defendants’ conduct, Anworth’s stockholders will be irreparably
harmed. 11 PRAYER FOR RELIEF 12 WHEREFORE, Plaintiff demands
judgment and preliminary and permanent relief, including injunctive
relief, in his favor on behalf of Anworth, and against 15
defendants, as follows: 16 A.Preliminarily and permanently
enjoining defendants and all persons acting in concert with them
from proceeding with, consummating, or closing the 19 Proposed
Transaction and any vote on the Proposed Transaction, unless 20 and
until defendants disclose and disseminate the material information
identified above to Anworth stockholders; 23 B.In the event
defendants consummate the Proposed Transaction, rescinding 24 it
and setting it aside or awarding rescissory damages to Plaintiff;
C.Declaring that defendants violated Sections 14(a) and/or 20(a) of
the 27 Exchange Act, as well as SEC Rule 14a-9 promulgated
thereunder; 28 - 21 - COMPLAINT FOR VIOLATIONS OF THE FEDERAL
SECURITIES LAWS |
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Case 2:21-cv-00566
Document 1 Filed 01/21/21 Page 22 of 22 Page ID #:22 D.Awarding
Plaintiff the costs of this action, including reasonable allowance
for Plaintiff’s attorneys’ and experts’ fees; and 3 E.Granting such
other and further relief as this Court may deem just and 4proper. 5
JURY DEMAND 6 Plaintiff demands a trial by jury on all claims and
issues so triable. 7 8Dated: January 21, 2021WEISSLAW LLP Joel E.
Elkins ________________ By: _ Joel E. Elkins 9100 Wilshire Blvd.
#725 E. Beverly Hills, CA 90210 13Telephone: 310/208-2800
14Facsimile:310/209-2348 -and-Richard A. Acocelli 1500 Broadway,
16th Floor New York, NY 10036 17Telephone: 212/682-3025
18Facsimile: 212/682-3010 19Attorneys for Plaintiff 20 21 22 23 24
25 26 27 28 - 22 - COMPLAINT FOR VIOLATIONS OF THE FEDERAL
SECURITIES LAWS |
Exhibit 99.6
 |
Case 2:21-cv-00702
Document 1 Filed 01/26/21 Page 1 of 18 Page ID #:1 Joel E. Elkins
(SBN 256020) jelkins@weisslawllp.com WEISSLAW LLP 9100 Wilshire
Blvd. #725 E. Beverly Hills, CA 90210 3Telephone: 310/208-2800
Facsimile: 310/209-2348 4 Attorneys for Plaintiff 5 6 7 8UNITED
STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11
REGINALD PADILLA,) ) ) Plaintiff,) ) ) ) ANWORTH MORTGAGE ASSET) )
MCADAMS, JOE E. DAVIS,) ROBERT C. DAVIS, MARK S.) ) DOMINIQUE
MIELLE,) ) Defendants.) 21 22 Case No. COMPLAINT FOR VIOLATIONS OF
THE FEDERAL SECURITIES LAWS JURY TRIAL DEMANDED Plaintiff Reginald
Padilla (“Plaintiff”), by and through his undersigned counsel, 23
for his complaint against defendants, alleges upon personal
knowledge with respect to himself, and upon information and belief
based upon, inter alia, the investigation of 26 counsel as to all
other allegations herein, as follows: 27 28 - 1 - COMPLAINT FOR
VIOLATIONS OF THE FEDERAL SECURITIES LAWS |
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Case 2:21-cv-00702
Document 1 Filed 01/26/21 Page 2 of 18 Page ID #:2 NATURE OF THE
ACTION 1.Plaintiff brings this action against Anworth Mortgage
Asset Corporation 3 (“Anworth” or the “Company”) and the members of
Anworth’s Board of Directors (the 4 “Board” or the “Individual
Defendants”) for their violations of Sections 14(a) and 20(a) of
the Securities Exchange Act of 1934 (the “Exchange Act”), 15 U.S.C.
§§ 78n(a), 7 78t(a), and U.S. Securities and Exchange Commission
(“SEC”) Rule 14a-9, 17 C.F.R. 8 § 240.14a-9, arising out of their
attempts to merge with Ready Capital Corporation (“Ready Capital”)
through Ready Capital’s subsidiary RC Merger Subsidiary (“Merger 11
Sub”) (the “Proposed Transaction”). 12 2.On December 7, 2020,
Anworth announced that it had entered into an Agreement and Plan of
Merger (the “Merger Agreement”) pursuant to which, each 15 Anworth
stockholder will be entitled to receive 0.1688 shares of Ready
Capital 16 common stock and $0.61 in cash for each share of Anworth
common stock they own. 3.On January 4, 2021, Ready Capital filed a
Form S-4 Registration 19 Statement (the “S-4”) with the SEC. The
S-4 is materially deficient and misleading 20 because, inter alia,
it fails to disclose material information regarding: (i) the
financial projections for Anworth and Ready Capital and the data
and inputs underlying the 23 valuation analyses that support the
fairness opinion provided by the Company’s 24 financial advisor,
Credit Suisse Securities (USA) LLC (“Credit Suisse”); (ii) Credit
Suisse’s potential conflicts of interest; and (iii) the background
of the Proposed 27 28 - 2 - COMPLAINT FOR VIOLATIONS OF THE FEDERAL
SECURITIES LAWS |
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Case 2:21-cv-00702
Document 1 Filed 01/26/21 Page 3 of 18 Page ID #:3
Transaction.Without additional information, the S-4 is materially
misleading in violation of the federal securities laws. 3 The
stockholder vote to approve the Proposed Transaction is
forthcoming. 4 Under the Merger Agreement, following a successful
stockholder vote, the Proposed Transaction will be consummated. For
these reasons and as set forth in detail herein, 7 Plaintiff seeks
to enjoin defendants from conducting the stockholder vote on the 8
Proposed Transaction unless and until the material information
discussed below is disclosed to the holders of the Company common
stock, or, in the event the Proposed 11 Transaction is consummated,
to recover damages resulting from the defendants’ 12 violations of
the Exchange Act. JURISDICTION AND VENUE 15 This Court has
jurisdiction over the claims asserted herein for violations 16 of
Sections 14(a) and 20(a) of the Exchange Act and Rule 14a-9
promulgated thereunder pursuant to Section 27 of the Exchange Act,
15 U.S.C. § 78aa, and 28 19 U.S.C. §1331 (federal question
jurisdiction). 20 6.The Court has jurisdiction over defendants
because each defendant is either a corporation that conducts
business in and maintains operations in this District, 23 or is an
individual who has sufficient minimum contacts with this District
so as to 24 render the exercise of jurisdiction by this Court
permissible under traditional notions of fair play and substantial
justice. 27 28 - 3 - COMPLAINT FOR VIOLATIONS OF THE FEDERAL
SECURITIES LAWS |
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Case 2:21-cv-00702
Document 1 Filed 01/26/21 Page 4 of 18 Page ID #:4 7.Venue is
proper in this District under Section 27 of the Exchange Act, 15
U.S.C. § 78aa, as well as under 28 U.S.C. § 1391 because: (i) the
Company’s principal 3 executive offices are located in this
District; (ii) one or more of the defendants either 4 resides in or
maintains executive offices in this District; and (iii) defendants
have received substantial compensation in this District by doing
business here and engaging 7 in numerous activities that had an
effect in this District. 8 9THE PARTIES 108.Plaintiff is, and has
been at all times relevant hereto, a continuous 11 stockholder of
Anworth. 12 9.Defendant Anworth is a Maryland corporation, with its
principal executive offices located at 1299 Ocean Avenue, 2nd
Floor, Santa Monica, California 15 90401. Anworth’s common stock
trades on the New York Stock Exchange under the 16 ticker symbol
“ANH.” 10.Defendant Joseph E. McAdams is Chairman of the Board and
has served 19 as Chief Executive Officer of the Company since
September 2018, President since July 20 2016, Chief Investment
Officer since January 2003, and a director and Executive Vice
President of the Company since June 2002. 23 11.Defendant Joe E.
Davis has served as a director of the Company since 24 251997.
2612.Defendant Robert C. Davis has served as a director of the
Company since 27 May 2005. 28 - 4 - COMPLAINT FOR VIOLATIONS OF THE
FEDERAL SECURITIES LAWS |
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Case 2:21-cv-00702
Document 1 Filed 01/26/21 Page 5 of 18 Page ID #:5 113.Defendant
Mark S. Maron has served as a director of the Company since 2May
2014. 3 14.Defendant Lloyd McAdams has served as a director of the
Company since 4 51997. 615.Defendant Dominique Mielle has served as
a director of the Company 7 since November 2018. 8 916.Defendants
identified in paragraphs 10-15 are referred to herein as the
10“Board” or the “Individual Defendants.” 11 17.Relevant non-party
Ready Capital is a multi-strategy real estate finance 12 company
that originates, acquires, finances and services small-to
medium-sized balance commercial loans. 15 SUBSTANTIVE ALLEGATIONS
Background of the Company and the Proposed Transaction 18.Anworth
is a real estate investment trust (“REIT”) externally managed 19
and advised by Anworth Management, LLC (the “Manager”). The Company
invests in, finances, and manages a leveraged portfolio of
residential mortgage-backed securities (“MBS”) and residential
mortgage loans, which presently includes the 23 following types of
investments: •Agency MBS, which include residential mortgage
pass-through certificates and 26 collateralized mortgage
obligations (“CMOs”), which are securities representing 27
28interests in pools of mortgage loans secured by residential
property in which the - 5 - COMPLAINT FOR VIOLATIONS OF THE FEDERAL
SECURITIES LAWS |
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Case 2:21-cv-00702
Document 1 Filed 01/26/21 Page 6 of 18 Page ID #:6 principal and
interest payments are guaranteed by a government-sponsored
enterprise (“GSE”), such as the Federal National Mortgage
Association (“Fannie 3 Mae”), or the Federal Home Loan Mortgage
Corporation (“Freddie Mac”). 4 •Non-agency MBS, which are
securities issued by companies that are not guaranteed by federally
sponsored enterprises and that are secured primarily by 7
first-lien residential mortgage loans. 8 9•Residential mortgage
loans. Anworth acquires non-Qualified Mortgage (“Non-10QM”)
residential mortgage loans from independent loan originators with
the 11 intent of holding these loans for securitization. These
loans are financed by a 12 warehouse line of credit until
securitization.Anworth also holds residential mortgage loans
through consolidated securitization trusts, and finances these 15
loans through asset-backed securities (“ABS”) issued by the
consolidated 16 securitization trusts. The ABS, which are held by
unaffiliated third parties, are non-recourse financing. The
difference in the amount of the loans in the trusts 19 and the
amount of the ABS represents the Company’s retained net interest in
the 20 securitization trusts. 19.On December 07, 2020, Anworth and
Ready Capital issued a joint press 23 release announcing the
Proposed Transaction. The press release states, in relevant part:
24 NEW YORK & SANTA MONICA, Calif. --Ready Capital Corporation
(NYSE:RC) (“Ready Capital”), a multi-strategy real estate finance
27 company that originates, acquires, finances and services
small-to 28 - 6 - COMPLAINT FOR VIOLATIONS OF THE FEDERAL
SECURITIES LAWS |
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Case 2:21-cv-00702
Document 1 Filed 01/26/21 Page 7 of 18 Page ID #:7 medium-sized
balance commercial loans, and Anworth Mortgage Asset Corporation
(NYSE:ANH) (“Anworth”), a specialty finance REIT that 3
focusesprimarilyoninvestmentsinresidentialmortgage-backed 4
securities, announced today that they have entered into a
definitive merger agreement pursuant to which Ready Capital will
combine with Anworth. 7 The combined company is expected to have a
pro forma equity capital 8 base in excess of $1 billion.The
combination is expected to enhance shareholder liquidity and
provide for increased operating leverage across 11 the larger
equity base. 12 13 Under the terms of the merger agreement, each
share of Anworth common 14 stock will be converted into 0.1688
shares of Ready Capital common stock and $0.61 of cash
consideration. Based on Ready Capital’s closing stock 17 price on
Friday, December 4, 2020, the implied offer price is $2.94 per 18
share. Upon the closing of the merger, Ready Capital stockholders
are expected to own approximately 76% of the combined company’s
stock, 21 while Anworth stockholders are expected to own
approximately 24% of 22 the combined company’s stock.Ready Capital
will also assume Anworth’s three outstanding series of preferred
stock. 25 26In connection with the merger, Waterfall Asset
Management, LLC 27 (“Waterfall”), Ready Capital’s external manager,
has agreed to reduce the 28 - 7 - COMPLAINT FOR VIOLATIONS OF THE
FEDERAL SECURITIES LAWS |
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Case 2:21-cv-00702
Document 1 Filed 01/26/21 Page 8 of 18 Page ID #:8 base management
fee it charges Ready Capital by an aggregate of $4 million over the
four quarters immediately following the closing of the 3
transaction. 4 5Based on the closing prices of Ready Capital’s
common stock on 6 December 4, 2020, the market capitalization of
the combined company would be approximately $984 million.The
combined company will 9 operate under the name Ready Capital and
its shares are expected to 10 continue trading on the New York
Stock Exchange under the existing ticker symbol “RC”. 13 “This
merger highlights our continued focus on establishing Ready Capital
as an industry-leading mortgage REIT, with the scale and financial
16 resources to pursue compelling risk-adjusted returns across its
diversified 17
investmentplatform,”statedReadyCapitalChairmanandChief Executive
Officer Thomas Capasse. “The combined company will be in 20 a more
formidable position to execute its business plan, improve operating
and cost efficiencies, and continue growth in a prudent and
profitable 23 manner.” 24 Anticipated Benefits to Ready Capital and
Anworth Stockholders from the Merger 27 28 - 8 - COMPLAINT FOR
VIOLATIONS OF THE FEDERAL SECURITIES LAWS |
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Case 2:21-cv-00702
Document 1 Filed 01/26/21 Page 9 of 18 Page ID #:9 •Over $1 billion
combined capital base and a diversified investment portfolio 3
Portfolio redeployment will enable Ready Capital to capitalize on 4
attractive investment opportunities •Scale advantages include: 7 o
Reduced operating expenses (as a percentage of combined 8 9capital
base) 10o Improved access to financing, including corporate debt 11
funding alternatives 12 o Greater portfolio diversification o
Enhanced shareholder liquidity and investor base diversity 15
Management, Governance and Corporate Headquarters 16 Upon
completion of the merger, Ready Capital’s Chairman and Chief
Executive Officer Thomas Capasse will lead the company and Ready 19
Capital executives Jack Ross, Thomas Buttacavoli, Andrew Ahlborn
and 20 Gary Taylor will remain in their current roles. The combined
company will be headquartered in New York, New York.The Board of
the 23 combined company is expected to have eight directors,
consisting of Ready Capital’s existing seven directors and one
independent director from Anworth’s current Board. 27 28The S-4
Misleads Anworth Stockholders by Omitting Material Information - 9
- COMPLAINT FOR VIOLATIONS OF THE FEDERAL SECURITIES
LAWS |
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Case 2:21-cv-00702
Document 1 Filed 01/26/21 Page 10 of 18 Page ID #:10 20.On January
4, 2021, defendants filed the materially misleading and incomplete
S-4 with the SEC. Designed to convince Anworth’s stockholders to
vote 3 in favor of the Proposed Transaction, the S-4 is rendered
misleading by the omission 4 of critical information concerning:
(i) the financial projections for Anworth and Ready Capital and the
data and inputs underlying the valuation analyses that support the
7 fairness opinion provided by the Company’s financial advisor,
Credit Suisse; (ii) Credit 8 Suisse’s potential conflicts of
interest; and (iii) the background of the Proposed Transaction. 11
MaterialOmissionsConcerningAnworth’sandReadyCapital’sFinancial 12
Projections and Credit Suisse’s Financial Analyses 21.The S-4 omits
material information regarding the financial projections for 15
Anworth and Ready Capital. 16 22.For example, the S-4 fails to
disclose: (i) the distributed cash flows that Anworth was
forecasted to generate during the last quarter of Anworth’s fiscal
year 19 ending December 31, 2020 through the full fiscal year
ending December 31, 2023; (ii) 20 the distributed cash flows that
Ready Capital was forecasted to generate during the last quarter of
Ready Capital’s fiscal year ending December 31, 2020 through the
full fiscal 23 year ending December 31, 2025; and (iii) Anworth’s
estimated total book value per 24 share over the projection period.
23.The S-4 omits material information regarding Credit Suisse’s
financial 27 analyses. 28 - 10 - COMPLAINT FOR VIOLATIONS OF THE
FEDERAL SECURITIES LAWS |
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Case 2:21-cv-00702
Document 1 Filed 01/26/21 Page 11 of 18 Page ID #:11 24.The S-4
describes Credit Suisse’s fairness opinion, and the various
valuation analyses it performed in support of its opinion. However,
the description of 3 Credit Suisse’s fairness opinion and analyses
fails to include key inputs and 4 assumptions underlying these
analyses. Without this information, as described below, Anworth’s
public stockholders are unable to fully understand these analyses
and, thus, 7 are unable to determine what weight, if any, to place
on Credit Suisse’s fairness opinion 8 9in determining whether to
vote in favor of the Proposed Transaction. 1025.With respect to
Credit Suisse’s Selected Public Companies Analysis, the 11 S-4
fails to disclose the individual multiples and financial metrics
for each of the 12 companies observed by Credit Suisse. 26.With
respect to Credit Suisse’s Selected Precedent Transactions
Analysis, 15 the S-4 fails to disclose the individual multiples and
financial metrics for each of the 16 transactions observed by
Credit Suisse. 27.With respect to Credit Suisse’s Dividend Discount
Analysis of Anworth 19 and Ready Capital, the S-4 fails to
disclose: (i) the distributed cash flows that Anworth 20 was
forecasted to generate during the last quarter of Anworth’s fiscal
year ending December 31, 2020 through the full fiscal year ending
December 31, 2023; (ii) the 23 distributed cash flows that Ready
Capital was forecasted to generate during the last 24 quarter of
Ready Capital’s fiscal year ending December 31, 2020 through the
full fiscal year ending December 31, 2025; (iii) Credit Suisse’s
basis for selecting the range of 27 tangible book value per share
(“TBVPS”) multiples of 0.70x to 0.90x for Anworth and 28 - 11 -
COMPLAINT FOR VIOLATIONS OF THE FEDERAL SECURITIES LAWS |
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Case 2:21-cv-00702
Document 1 Filed 01/26/21 Page 12 of 18 Page ID #:12 0.80x to 1.00x
for Ready Capital; and (iv) the inputs and assumptions underlying
the discount rates ranging from 9.0% to 14.0% and 9.0% to 13.0%,
respectively. 3 The omission of this material information renders
certain portions of the 4 S-4 materially misleading, including,
inter alia, the following sections of the S-4: “Certain Ready
Capital Unaudited Prospective Financial Information,” “Certain 7
Anworth Unaudited Prospective Financial Information” and “Opinion
of Anworth’s 8 Financial Advisor.” Material Omissions Concerning
Credit Suisse’s Potential Conflicts of Interest 11 The S-4 fails to
disclose material information concerning the potential 12 conflicts
of interest faced by Credit Suisse. 30.For example, the S-4 fails
to disclose any past services performed by 15 Credit Suisse for the
Company or its affiliates and the fees received by Credit Suisse 16
for providing these services. 31.Full disclosure of investment
banker compensation and all potential 19 conflicts is required due
to the central role played by investment banks in the 20
evaluation, exploration, selection, and implementation of strategic
alternatives. 32.The omission of this material information renders
certain portions of the 23 S-4 materially misleading, including,
inter alia, the following section of the S-4: 24 “Opinion of
Anworth’s Financial Advisor.” Material Omissions Concerning the
Background of the Proposed Transaction 27 28 - 12 - COMPLAINT FOR
VIOLATIONS OF THE FEDERAL SECURITIES LAWS |
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Case 2:21-cv-00702
Document 1 Filed 01/26/21 Page 13 of 18 Page ID #:13 33.The S-4
fails to disclose material information concerning the background of
the Proposed Transaction. 3 For example, the S-4 fails to disclose
the specific terms of the 4 confidentiality agreements the Company
entered into with potential bidders and whether any of the
confidentiality agreements entered into with potential bidders 7
during the sale process included standstill provisions or
“don’t-ask, don’t-waive” 8 standstill provisions that are still in
effect and presently precluding any potential counterparty from
submitting a topping bid for Anworth. 11 Any reasonable Anworth
stockholder would deem the fact that a likely 12 topping bidder may
be precluded from making a topping bid for the Company to
significantly alter the total mix of information. 15 Additionally,
the S-4 fails to disclose (i) the terms of any bids or 16
indications of interest received by the Company from a party
identified in the S-4 as “Company A”; (ii) the terms of the verbal
proposals the Company received between 19 May and August 2020; and
(iii) the third party valuation reports and sum-of-the-parts 20
analyses used to validate Anworth’s and Ready Capital’s respective
book value, discussed by Credit Suisse and Ready Capital’s
financial advisor Wells Fargo 23 Securities, LLC. 24 37.The
omission of this material information renders certain portions of
the S-4 materially misleading, including, inter alia, the following
section of the S-4: 27 “Background of the Merger.” 28 - 13 -
COMPLAINT FOR VIOLATIONS OF THE FEDERAL SECURITIES LAWS |
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Case 2:21-cv-00702
Document 1 Filed 01/26/21 Page 14 of 18 Page ID #:14
38.Accordingly, Plaintiff seeks injunctive and other equitable
relief to prevent the irreparable injury that Company stockholders
will continue to suffer absent 3 judicial intervention. 4 CLAIMS
FOR RELIEF COUNT I Claims Against All Defendants for Violations of
Section 14(a) of the 8 Exchange Act and Rule 14a-9 Promulgated
Thereunder 9 39.Plaintiff repeats all previous allegations as if
set forth in full. 40.During the relevant period, defendants
disseminated the false and 12 misleading S-4 specified above, which
failed to disclose material facts necessary to 13 make the
statements, in light of the circumstances under which they were
made, not misleading in violation of Section 14(a) of the Exchange
Act and SEC Rule 14a-9 16 promulgated thereunder. 17 41.By virtue
of their positions within the Company, the defendants were aware of
this information and of their duty to disclose this information in
the S-4. The 20 S-4 was prepared, reviewed, and/or disseminated by
the defendants. It misrepresented and/or omitted material facts,
including material information about Anworth’s and 23 Ready
Capital’s projections, the data and inputs underlying the financial
valuation 24 analyses that support the fairness opinion provided by
Credit Suisse, Credit Suisse’s potential conflicts of interest and
the background of the Proposed Transaction. The 27 28 - 14 -
COMPLAINT FOR VIOLATIONS OF THE FEDERAL SECURITIES LAWS |
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Case 2:21-cv-00702
Document 1 Filed 01/26/21 Page 15 of 18 Page ID #:15 defendants
were at least negligent in filing the S-4 with these materially
false and misleading statements. 3 The omissions and false and
misleading statements in the S-4 are material 4 in that a
reasonable stockholder would consider them important in deciding
how to vote on the Proposed Transaction. 7 By reason of the
foregoing, the defendants have violated Section 14(a) of 8 9the
Exchange Act and SEC Rule 14a-9(a) promulgated thereunder.
1044.Because of the false and misleading statements in the S-4,
Plaintiff is 11 threatened with irreparable harm, rendering money
damages inadequate. Therefore, 12 injunctive relief is appropriate
to ensure defendants’ misconduct is corrected. COUNT II Claims
Against the Individual Defendants for 16 Violations of Section
20(a) of the Exchange Act 17 45.Plaintiff repeats all previous
allegations as if set forth in full. 46.The Individual Defendants
acted as controlling persons of Anworth within 20 the meaning of
Section 20(a) of the Exchange Act as alleged herein. By virtue of
their positions as officers and/or directors of Anworth, and
participation in and/or awareness 23 of the Company’s operations
and/or intimate knowledge of the false statements 24 contained in
the S-4 filed with the SEC, they had the power to influence and
control and did influence and control, directly or indirectly, the
decision-making of the 27 28 - 15 - COMPLAINT FOR VIOLATIONS OF THE
FEDERAL SECURITIES LAWS |
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Case 2:21-cv-00702
Document 1 Filed 01/26/21 Page 16 of 18 Page ID #:16 Company,
including the content and dissemination of the various statements
which Plaintiff contends are false and misleading. 3 47.Each of the
Individual Defendants was provided with or had unlimited 4 access
to copies of the S-4 and other statements alleged by Plaintiff to
be misleading prior to and/or shortly after these statements were
issued and had the ability to prevent 7 the issuance of the
statements or cause the statements to be corrected. 8 948.In
particular, each of the Individual Defendants had direct and
supervisory 10involvement in the day-to-day operations of the
Company, and, therefore, is presumed 11 to have had the power to
control or influence the particular transactions giving rise to 12
the securities violations as alleged herein, and exercised the
same. The S-4 at issue contains the unanimous recommendation of
each of the Individual Defendants to 15 approve the Proposed
Transaction. They were, thus, directly involved in the making 16 of
the S-4. 49.In addition, as the S-4 sets forth at length, and as
described herein, the 19 Individual Defendants were each involved
in negotiating, reviewing, and approving the 20 Proposed
Transaction. The S-4 purports to describe the various issues and
information that they reviewed and considered—descriptions the
Company directors had input into. 23 50.By virtue of the foregoing,
the Individual Defendants have violated 24 Section 20(a) of the
Exchange Act. 51.As set forth above, the Individual Defendants had
the ability to exercise 27 control over and did control a person or
persons who have each violated Section 14(a) 28 - 16 - COMPLAINT
FOR VIOLATIONS OF THE FEDERAL SECURITIES LAWS |
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Case 2:21-cv-00702
Document 1 Filed 01/26/21 Page 17 of 18 Page ID #:17 and SEC Rule
14a-9, promulgated thereunder, by their acts and omissions as
alleged herein. By virtue of their positions as controlling
persons, these defendants are liable 3 pursuant to Section 20(a) of
the Exchange Act. As a direct and proximate result of 4 defendants’
conduct, Anworth’s stockholders will be irreparably harmed. PRAYER
FOR RELIEF 7 WHEREFORE, Plaintiff demands judgment and preliminary
and permanent 8 relief, including injunctive relief, in his favor
on behalf of Anworth, and against defendants, as follows: 11
Preliminarily and permanently enjoining defendants and all persons
acting 12 in concert with them from proceeding with, consummating,
or closing the Proposed Transaction and any vote on the Proposed
Transaction; 15 In the event defendants consummate the Proposed
Transaction, rescinding 16 it and setting it aside or awarding
rescissory damages to Plaintiff; C.Directing the Individual
Defendants to disseminate an S-4 that does not 19 contain any
untrue statements of material fact and that states all material 20
facts required in it or necessary to make the statements contained
therein not misleading; 23 D.Declaring that defendants violated
Sections 14(a) and/or 20(a) of the 24 Exchange Act, as well as SEC
Rule 14a-9 promulgated thereunder; E.Awarding Plaintiff the costs
of this action, including reasonable allowance 27 for Plaintiff’s
attorneys’ and experts’ fees; and 28 - 17 - COMPLAINT FOR
VIOLATIONS OF THE FEDERAL SECURITIES LAWS |
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Case 2:21-cv-00702
Document 1 Filed 01/26/21 Page 18 of 18 Page ID #:18 1F.Granting
such other and further relief as this Court may deem just and
proper. 2 JURY DEMAND Plaintiff demands a trial by jury on all
claims and issues so triable. Dated: January 26, 2021 6 7 8 9 10 11
12 13 BRAGAR EAGEL & SQUIRE, P.C. Alexandra B. Raymond 810
Seventh Avenue, Suite 620 New York, NY 10019 Tel: (646) 860-9158
16Fax: (212) 214-0506 Email: raymond@bespc.com 17 Attorneys for
Plaintiff 18 19 20 21 22 23 24 WEISSLAW LLP ___________________
Joel E. Elkins 9100 Wilshire Blvd. #725 E. Beverly Hills, CA 90210
Telephone: 310/208-2800 Facsimile:310/209-2348 -and-Richard A.
Acocelli 1500 Broadway, 16th Floor New York, NY 10036 Telephone:
212/682-3025 Facsimile: 212/682-3010 Attorneys for Plaintiff 25 26
27 28 - 18 - COMPLAINT FOR VIOLATIONS OF THE FEDERAL SECURITIES
LAWS |
Exhibit 99.7
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BRODSKY &
SMITH, LLC Evan J. Smith, Esquire (SBN 242352)
esmith@brodskysmith.com Ryan P. Cardona, Esquire (SBN 302113)
rcardona@brodskysm.ith.com 9595 Wilshire Boulevard, Suite 900
Beverly Hills, CA 90212 Phone: (877) 534-2590 5Facsimile: (310)
247-0160 6Attorneys for Plaintiff 7 INTHE UNITED STATES DISTRICT
COURT 8 FOR THE CENTRAL DISTRICT OF CALIFORNIA 9 10DIANE ANTASEK,
AS TRUSTEE FOR THE DIANE R. ANTASEK TRUST AGREEMENT, APRIL 8, 1997
AND RONALD ANTASEK, AS TRUSTEE FOR THE RONALD J, ANTASEK SR. TRUST
AGREEMENT, APRIL 8, 1997, on behalf of themselves and all others
similarly situated, 14 Plaintiff, 15 vs. 16 ANWORTH MORTGAGE ASSET
CORPORATION, JOSEPH E. MCADAMS, JOE E. DAVIS, ROBERT C. DAVID, MARK
S. MARON, LLOYD MCADAMS, and DOMINIQUE MIELLE, 19 Defendants. 20
Case No.: CLASS ACTION CLASS ACTION COMPLAINT FOR: Breach of
Fiduciary Duties Aiding and Abetting Breach of Fiduciary Duties
Violation of § 14(a) of the Securities Exchange Act of 1934
Violation of § 20(a) of the Securities Exchange Act of 1934 DEMAND
FOR JURY TRIAL Plaintiffs, Diane Antasek, As Trustee For The Diane
R. Antasek Trust Agreement, April 8, 1997 And Ronald Antasek, As
Trustee For The Ronald J, Antasek Sr. Trust Agreement, April 8,
1997 ("Plaintiffs"), by their attorneys, on behalf of themselves
and those similarly situated, files this action against the
defendants, and alleges upon information and belief, except for
those allegations that pertain to them, which are alleged upon
personal knowledge, as follows: 26 27 28 - 1-CLASS ACTION
COMPLAINT |
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Case
2:21-cv-00917Document 1 Filed 02/01/21 Page 2 of 24Page ID #:2
1SUMMARY OF THE ACTION 2I.Plaintiffs bring this stockholder class
action on behalf of themselves and all other public stockholders of
Anworth Mortgage Asset Corporation ("Anworth" or the "Company''),
against Anworth, the Company's Board of Directors (the "Board" or
the "Individual Defendants," and collectively with Anworth and the
Individual Defendants, the "Defendants"), for violations of
Sections 14(a) and 20(a) of the Securities and Exchange Act of 1934
(the "Exchange Act") and for breaches of fiduciary duty as a result
of the Individual Defendants' efforts to sell the Company to Ready
Capital Corporation ("Parent"), and RC Merger Subsidiary, LLC
("Merger Sub," and collectively with Parent, "Ready Capital") as a
result of an unfair process for an unfair price, and to enjoin an
upcoming stockholder vote on a proposed stock and cash transaction
valued at approximately $1 billion (the "Proposed Transaction").
2.The terms of the Proposed Transaction were memorialized in a
December 8, 2020, filing with the Securities and Exchange
Commission ("SEC") on Form 8-K attaching the definitive Agreement
and Plan of Merger (the "Merger Agreement").Under the terms of the
Merger Agreement, Ready Capital will acquire all of the outstanding
shares of Anworth's common stock, in exchange for 0.1688 shares of
Ready Capital common stock and $0.61 incash for each share of
Anworth common stock they own.As a result of the Proposed
Transaction, Anworth's shareholders interests will be significantly
diluted - they will own only 24% of the combined company, while
existing Ready Capital shareholders will own the vast majority, or
76%, of the go-forward company. In fact, the merger consideration
is well below the 52-week high of $3.80 for Anworth shares. 223.
Thereafter, on January 4, 2021, Ready Capital filed a Form S-4
Regiastration Statement (the "Registration Statement") with the SEC
in support of the Proposed Transaction. 4.The Proposed Transaction
is unfair and undervalued for a number of reasons. Significantly,
the Registration Statement describes an insufficient process in
which the Board acquiesced to Ready Capital's low price bid without
fielding indications of interest from other potentially interested
third parties. 28 -2-CLASS ACTION COMPLAINT |
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5.In approving the
Proposed Transaction, the Individual Defendants have breached their
fiduciary duties ofloyalty, good faith, due care and disclosure by,
inter alia, (i) agreeing to sell Anworth without first taking steps
to ensure that Plaintiffs and Class members (defined below) would
obtain adequate, fair and maximum consideration under the
circumstances; and (ii) 5engineering the Proposed Transaction to
benefit themselves and/or Ready Capital without regard for Anworth
public stockholders.Accordingly, this action seeks to enjoin the
Proposed Transaction and compel the Individual Defendants to
properly exercise their fiduciary duties to Anworth stockholders.
96. Next, it appears as though the Board has entered into the
Proposed Transaction to procure for themselves and senior
management of the Company significant and immediate benefits with
no thought to the Company's public stockholders. For instance,
pursuant to the terms of the Merger Agreement, upon the
consummation of the Proposed Transaction, Company Board Members and
executive officers will be able to exchange all Company equity
awards for the merger consideration. 7.In violation of the Exchange
Act and in further violation of their fiduciary duties, Defendants
caused to be filed the materially deficient Registration Statement
on January 4, 2021 with the SEC in an effort to solicit
stockholders to vote their Anworth shares in favor of the Proposed
Transaction. The Registration Statement is materially deficient,
deprives Anworth's stockholders of the information they need to
make an intelligent, informed and rational decision of whether to
vote their shares in favor of the Proposed Transaction, and is thus
in breach of the Defendants fiduciary duties.As detailed below, the
Registration Statement omits and/or misrepresents material
information concerning, among other things: (a) the sales process
and in particular certain conflicts of interest for management; (b)
the fmancial projections for Anworth, provided by Anworth to the
Company's fmancial advisors, Credit Suisse Securities (USA) LLC
("Credit Suisse"); and (c) the data and inputs underlying the
financial valuation analyses, if any, that purport to support the
fairness opinions created by Credit Suisse and provided to the
Company and the Board. 28 - 3 - CLASS ACTION COMPLAINT |
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Case
2:21-cv-00917Document 1 Filed 02/01/21 Page 4 of 24Page ID #:4 18.
Absent judicial intervention, the Proposed Transaction will be
consummated, resulting in irreparable injury to Plaintiffs and the
Class. This action seeks to enjoin the Proposed Transaction or, in
the event the Proposed Transaction is consummated, to recover
damages resulting from violation oflaw by Defendants. PARTIES
69.Plaintiffs are citizens of Florida and, at all times relevant
hereto, have been Anworth 7stockholders. 810. Defendant Anworth is
a Delaware corporation and has its principal place of business at
1288 Ocean Avenue, 2nd Floor, Santa Monica, CA 90401. Shares of
Anworth common stock are traded on the NasdaqGS under the symbol
"ANH." 11.Defendant Joseph E. McAdams ("McAdams ")has been a
Director of the Company at all relevant times. In addition, McAdams
serves as the Company's President, Chief Executive Officer ("CEO"),
and Chairman of the Board. 1412. Defendant Joe E. Davis ("Joe
Davis") has been a director of the Company at all relevant times.
13.Defendant Robert C. Davis ("Robert Davis") has been a director
of the Company at all relevant times. 1814. Defendant Mark S. Maron
("Maron") has been a director of the Company at all 19 relevant
times. 2015.Defendant Dominique Mielle ("Mielle ") has been a
director of the Company at 21all relevant times. 2216. Defendants
identified in11-16 are collectively referred to as the "Individual
Defendants." 17.Non-Defendant Ready Capital operates as a real
estate finance company in the United States. Ready Capital
Corporation was founded in 2007 and is headquartered in New York,
NY. Ready Capital common stock is traded on the New York Stock
Exchange (''NYSE") under the ticker symbol "RC." 28 -4-CLASS ACTION
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118.Non-Defendant Merger Sub is a wholly owned subsidiary of Parent
created to effectuate the Proposed Transaction. JURISDICTION AND
VENUE 419.This Court has subject matter jurisdiction pursuant to
Section 27 of the Exchange 5Act (15 U.S.C. § 78aa) and 28 U.S.C. §
1331 (federal question jurisdiction) as Plaintiffs alleges
6violations of Sections 14(a) and Section 20(a) of the Exchange
Act. This action is not a collusive one to confer jurisdiction on a
court of the United States, which it would not otherwise have.
20.Personal jurisdiction exists over each defendant either because
the defendant conducts business in or maintains operations in this
District, or is an individual who is either present in this
District for jurisdictional purposes or has sufficient minimum
contacts with this District as to render the exercise of
jurisdiction over defendant by this Court permissible under
traditional notions of fair play and substantial justice. 1321.
Venue is proper in this District pursuant to 28 U.S.C. § 1391,
because Anworth has its principal place of business is located in
this District, and each of the Individual Defendants, as Company
officers or directors, has extensive contacts within this District.
CLASS ACTION ALLEGATIONS 22.Plaintiffs bring this action pursuant
to Federal Rule of Civil Procedure 23, as trustees and on behalf of
the stockholders of Anworth common stock who are being and will be
harmed by Defendants' actions described herein (the "Class"). The
Class specifically excludes Defendants herein, and any person,
firm, trust, corporation or other entity related to, or affiliated
with, any of the Defendants. 2223. 23 24 25 26 27 28 This action is
properly maintainable as a class action because: The Class is so
numerous that joinder of all members is impracticable. According to
Company's most recently filed 10-Q prior to the announcement of the
Proposed Transaction, as of November 4, 2020, there were 99,235,604
shares of Anworth common stock outstanding. The actual - 5 - CLASS
ACTION COMPLAINT |
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Case
2:21-cv-00917Document 1 Filed 02/01/21 Page 6 of 24Page ID #:6
number of public stockholders of Anworth will be ascertained
through discovery; b. There are questions of law and fact which are
common to the Class, including inter alia, the following: 5i.
Whether Defendants have violated the federal securities laws; 6IL
Whether Defendants made material misrepresentations and/or omitted
material facts in the Registration Statement; and iii. Whether
Plaintiffs and the other members of the Class have and will
continue to suffer irreparable injury if the Proposed Transaction
is 10consummated. c. Plaintiffs are adequate representatives of the
Class, have retained competent counsel experienced in litigation of
this nature and will fairly and adequately protect the interests of
the Class; d. Plaintiffs' claims are typical of the claims of the
other members of the Class and Plaintiffs do not have any interests
adverse to the Class; e. The prosecution of separate actions by
individual members of the Class would create a risk of inconsistent
or varying adjudications with respect to individual members of the
Class which would establish incompatible standards of conduct for
the party opposing the Class; 20f. Plaintiffs anticipate that there
will be no difficulty in the management of this litigation and,
thus, a class action is superior to other available methods for the
fair and efficient adjudication of this controversy; and 23g.
Defendants have acted on grounds generally applicable to the Class
with respect to the matters complained of herein, thereby making
appropriate the relief sought herein with respect to the Class as a
whole. 26 27 28 - 6 - CLASS ACTION COMPLAINT |
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Case
2:21-cv-00917Document 1 Filed 02/01/21 Page 7 of 24Page ID #:7 1
224. THE INDIVIDUAL DEFENDANTS' FIDUCAIRY DUTIES By reason of the
Individual Defendants' positions with the Company as officers
and/or directors, said individuals are in a fiduciary relationship
with Anworth and owe the Company the duties of due care, loyalty,
and good faith. 25.By virtue of their positions as directors and/or
officers of Anworth, the Individual Defendants, at all relevant
times, had the power to control and influence, and did control and
influence and cause Anworth to engage in the practices complained
of herein. 26.Each of the Individual Defendants are required to act
with due care, loyalty, good faith and in the best interests of the
Company. To diligently comply with these duties, directors of a
corporation must: a. act with the requisite diligence and due care
that is reasonable under the circumstances; b. act in the best
interest of the Company; c. use reasonable means to obtain material
information relating to a given action or decision; d. refrain from
acts involving conflicts of interest between the fulfillment of
their roles in the Company and the fulfillment of any other roles
or their personal affairs; e. avoid competing against the Company
or exploiting any business 20opportunities of the company for their
own benefit, or the benefit of others; and f.disclose to the
Company all information and documents relating to the 23company's
affairs that they received by virtue of their positions in the
24company. 2527. In accordance with their duties of loyalty and
good faith, the Individual 26Defendants, as directors and/or
officers of Anworth, are obligated to refrain from: 27 28 CLASS
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a.participating in any transaction where the directors' or
officers' loyalties are divided; b.participating in any transaction
where the directors or officers are entitled to receive personal
financial benefit not equally shared by the Company or its public
stockholders; and/or 6c.unjustly enriching themselves at the
expense or to the detriment of 7the Company or its stockholders.
828. Plaintiffs allege herein that the Individual Defendants,
separately and together, in connection with the Proposed
Transaction, violated, and are violating, the fiduciary duties they
owe to Anworth, Plaintiffs and the other public stockholders of
Anworth, including their duties of loyalty, good faith, and due
care. 1229. As a result of the Individual Defendants' divided
loyalties, Plaintiffs and Class members will not receive adequate,
fair or maximum value for their Anworth common stock in the
Proposed Transaction. SUBSTANTIVE ALLEGATIONS Company Background
1730. The Company operates as a real estate investment trust (REIT)
in the United States. It primarily invests in, finances, and
manages a leveraged portfolio of residential mortgage-backed
securities and loans that are guaranteed by government-sponsored
enterprises, such as the Federal National Mortgage Association or
the Federal Home Loan Mortgage Corporation. The company also
invests in non-agency mortgage backed securities that are secured
by first-lien residential mortgage loans; and other
mortgage-related investments consisting of mortgage derivative
securities, subordinated interests, and residential real estate
properties. Anworth Mortgage Asset Corporation qualifies as a real
estate investment trust ("REIT") for federal income tax purposes ..
2531. The Company's most recent financial performance press
release, revealing financial results from the quarter preceding the
announcement of the Proposed Transaction, indicated sustained and
solid fmancial performance.For example, in an November 4, 2020 28 -
8 - CLASS ACTION COMPLAINT |
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Case
2:21-cv-00917Document 1 Filed 02/01/21 Page 9 of 24Page ID #:9
Investors Conference Calls announcing its 2020 Q3 fmancial results,
CEO Defendant McAdams spoke on the Company's financials, "With our
mortgage credit investments, we have seen improving performance
metrics regarding COVID forbearance and delinquency trends, and the
values of these assets saw increases during the quarter as a
result. While agency prepayment rates on our portfolio remain high,
which is a drag on core earnings, roll income from our TBA
positions continue to be attractive and drove core earnings higher
on the quarter. Core earnings were $3.6 million or $0.04 per common
share during the third quarter, up from $0.02 in the second
quarter. GAAP net income was $0.20 per share.. Our book value per
share increased $0.19 on the quarter from $2.85 to $3.04 per common
share. When talcing into account the $0.05 dividend that was
declared during the quarter, total economic return on book value
for common shareholders was 8.4% for the quarter." 1232. These
positive results are not an anomaly, but rather, are indicative of
a trend of continued financial success and future potential success
by Anworth. Clearly, based upon these positive financial results
and outlook, the Company is likely to have tremendous future
success and should command a much higher consideration than the
amount contained within the Proposed Transaction. 1733. Despite
this upward trajectory and increasing financial results, the
Individual Defendants have caused Anworth to enter into the
Proposed Transaction for insufficient consideration. The Proposed
Transaction 2134. On December 8, 2020, Anworth and Ready Capital
issued a joint press release announcing the Proposed Transaction.
The press release stated, in relevant part: NEW YORK & SANTA
MONICA, Calif.--(BUSINESS WIRE)--Ready Capital Corporation
(NYSE:RC) ("Ready Capital"), a multi-strategy real estate fmance
company that originates, acquires, :finances and services small-to
medium-sized
balancecommercialloans,andAnworthMortgageAssetCorporation
(NYSE:ANH) ("Anworth"), a specialty fmance REIT that focuses
primarily on 26investments in residential mortgage-backed
securities, announced today that they have entered into a defmitive
merger agreement pursuant to which Ready Capital 27will combine
with Anworth. The combined company is expected to have a pro 28
-9-CLASS ACTION COMPLAINT |
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Case
2:21-cv-00917Document 1 Filed 02/01121 Page 10 of 24Page ID #:10
fonna equity capital base in excess of $1 billion. The combination
is expected to enhance shareholder liquidity and provide for
increased operating leverage across the larger equity base. Under
the terms of the merger agreement, each share of Anworth common
stock will be converted into 0.1688 shares of Ready Capital common
stock and $0.61 of cash consideration. Based on Ready Capital's
closing stock price on Friday, 5December 4, 2020, the implied offer
price is $2.94 per share. Upon the closing of the merger, Ready
Capital stockholders are expected to own approximately 76% of 6the
combined company's stock, while Anworth stockholders are expected
to own approximately 24% of the combined company's stock. Ready
Capital will also assume Anworth' s three outstanding series of
preferred stock. In connection with the merger, Waterfall Asset
Management, LLC (''Waterfall"), Ready Capital's external manager,
has agreed to reduce the base management fee it charges Ready
Capital by an aggregate of $4 million over the four quarters
immediately following the closing of the transaction. 10 Based on
the closing prices of Ready Capital's common stock on December 4,
2020, the market capitalization of the combined company would be
approximately $984 million. The combined company will operate under
the name Ready Capital and its shares are expected to continue
trading on the New York Stock Exchange under the existing ticker
symbol "RC". "This merger highlights our continued focus on
establishing Ready Capital as an industry-leading mortgage REIT,
with the scale and financial resources to pursue compelling
risk-adjusted returns across its diversified investment platform,"
stated Ready Capital Chairman and Chief Executive Officer Thomas
Capasse. ''The combined company will be in a more formidable
position to execute its business plan, improve operating and cost
efficiencies, and continue growth in a prudent and profitable
manner." Anticipated Benefits to Ready Capital and Anworth
Stockholders from the Merger 19 Over $1 billion combined capital
base and a diversified investment portfolio 20 Portfolio
redeployment will enable Ready Capital to capitalize on attractive
investment opportunities •Scale advantages include: 23•Reduced
operating expenses (as a percentage of combined capital base)
Improved access to financing, including corporate debt funding
alternatives 24 Greater portfolio diversification 25 Enhanced
shareholder liquidity and investor base diversity 26Management,
Governance and Corporate Headquarters 27 28 -10-CLASS ACTION
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Upon completion of the merger, Ready Capital's Chairman and Chief
Executive Officer Thomas Capasse will lead the company and Ready
Capital executives Jack Ross, Thomas Buttacavoli, Andrew Ahlborn
and Gary Taylor will remain intheir current roles. The combined
company will be headquartered in New York, New York. The Board of
the combined company is expected to have eight directors,
consisting of Ready Capital's existing seven directors and one
independent director from Anworth's current Board. 5Timing and
Approvals 6The transaction has been unanimously approved by each of
the Boards of Directors of Ready Capital and Anworth. The
transaction is expected to close by the end of the first quarter
of2021, subject to the respective approvals by the stockholders of
Anworth and Ready Capital and other customary closing conditions.
The Inadequate Merger Consideration 1035.Significantly, the
Company's financial prospects and opportunities for future growth,
and synergies with Ready Capital establish the inadequacy of the
merger consideration. 36.First, the compensation afforded under the
Proposed Transaction to Company stockholders significantly
undervalues the Company. For example, the deal consideration is
below the 52-week high of $3.80 for the Company's shares. The
proposed valuation does not adequately reflect the intrinsic value
of the Company. 37.To be more specific, since COVID-19 global
pandemic affected the market in March 2020, the stock price has
increased exponentially and worked its way back up from $0.83 per
share to $2.51 per share on December 7, 2020, and due to the
consistent upward progression, there was no indication that the
stock would not continue to climb. 38.Additionally, the Proposed
Transaction represents a significant synergistic benefit to Ready
Capital, which operates in the same industry as Anworth, and will
use the new portfolio, operational capabilities, and brand capital
to bolster its own position in the market. 39.Specifically, the
Press Release for the Proposed Transaction highlights some of the
benefits Ready Capital will be enjoying at the expense of the
Company's shareholders, for example, "Portfolio redeployment will
enable Ready Capital to capitalize on attractive investment
opportunities, with reduced operating expenses (as a percentage of
combined capital base), improved access to financing, including
corporate debt funding alternatives, greater portfolio 28 - 11 -
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diversification, and enhanced shareholder liquidity and investor
base diversity." Anworth's shareholders invested in the Company's
long establishment and prior success in the real estate industry,
where those attributted benefits will no longer carry such weight
on their investment. 440. Clearly, while the deal will be
beneficial to Ready Capital it comes at great expense 5to
Plaintiffs and other public stockholders of the Company. 641.
Moreover, post-closure, Anworth's shareholders interests will be
significantly diluted - they will own only 24% of the combined
company, while existing Ready Capital shareholders will own the
vast majority, or 76%, of the go-forward company. 942. It is clear
from these statements and the facts set forth herein that this deal
is designed to maximize benefits for Ready Capital at the expense
of Anworth stockholders, which clearly indicates that Anworth
stockholders were not an overriding concern inthe formation of the
Proposed Transaction. Precluslve Deal Mechanisms 1443. The Merger
Agreement contains certain provisions that unduly benefit Ready
Capital by making an alternative transaction either prohibitively
expensive or otherwise impossible.Significantly, the Merger
Agreement contains a termination fee provision that is especially
onerous and impermissible. Notably, in the event of termination,
the Merger Agreement requires Anworth to pay up to $15 million to
Ready Capital, if the Merger Agreement is terminated under certain
circumstances.Moreover, under one circumstance, Anworth must pay
this termination fee even if it consummates any competing company
Acquisition Proposal (as defined in the Merger Agreement) within 12
monthsfollowing the termination of the Merger Agreement. The
termination fee will make the Company that much more expensive to
acquire for potential purchasers. The termination fee in
combination with other preclusive deal protection devices will all
but ensure that no competing offer will be forthcoming. 2544. The
Merger Agreement also contains a "No Solicitation by the Company''
provision that restricts Anworth from considering alternative
acquisition proposals by, inter alia, constraining Anworth's
ability to solicit or communicate with potential acquirers or
consider their 28 - 12 - CLASS ACTION COMPLAINT |
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proposals.
Specifically, the provision prohibits the Company from directly or
indirectly soliCredit Suisseng, initiating, proposing or inducing
any alternative proposal, but permits the Board to consider an
unsolicited bona fide written "Company Competing Proposal" if it
constitutes or is reasonably calculated to lead to a "Company
Superior Proposaf' as defined in the Merger Agreement. 645.
Moreover, the Merger Agreement further reduces the possibility of a
topping offer from an unsolicited purchaser. Here, the Individual
Defendants agreed to provide Ready Capital information in order to
match any other offer, thus providing Ready Capital access to the
unsolicited bidder's financial information and giving Ready Capital
the ability to top the superior offer. Thus, a rival bidder is not
likely to emerge with the cards stacked so much in favor of Ready
Capital. 1246. These provisions, individually and collectively,
materially and improperly impede the Board's ability to fulfill its
fiduciary duties with respect to fully and fairly investigating and
pursuing other reasonable and more valuable proposals and
alternatives in the best interests of the Company and its public
stockholders. 47.Accordingly, the Company's true value is
compromised by the consideration offered in the Proposed
Transaction. Potential Conflicts of Interest 48.The breakdown of
the benefits of the deal indicate that Anworth insiders are the
primary beneficiaries of the Proposed Transaction, not the
Company's public stockholders. The Board and the Company's
executive officers are conflicted because they will have secured
unique benefits for themselves from the Proposed Transaction not
available to Plaintiffs and the public stockholders of Anworth.
49.Certain insiders stand to receive fmancial benefits as a result
of the Proposed Transaction. According to the Registration
Statement, "Pursuant to the Merger Agreement, as of the effective
time of the Merger, the Vesting Anworth Phantom Shares will
automatically vest in 27 28 -13 - CLASS ACTION
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full and then immediately be cancelled in exchange for the right to
receive the Per Share Common Merger Consideration with respect to
such Vesting Anworth Phantom Share.'' 3 4Executive Oflicen and
Direetol'l(l) 5Joseph E. McAdams Charles J. Siegel Joe E. Davis
24,000 $62,880 Robert C. Davis 24,000 $62,880 Mark S. Maron 16,000
$41,920 7 Number of Vesting Anworth Phantom Shara Vldue ofVe1ting
Anworth Phantom Share1 8 9 10 Lloyd McAdams 11 12Dominique
Mielle6,000$15,720 13 Furthermore, according to the Registration
Statement, "Anworth is currently 14 externally managed by the
Anworth Manager pursuant to the Anworth Management Agreement. 15 In
connection with the entry into the Merger Agreement, the Anworth
Management Agreement 16 was amended pursuant to the Anworth
Management Agreement Amendment. The Anworth 17 Management Agreement
Amendment provides that upon the Closing, the Anworth Management 18
Agreement will terminate, and as a result of such termination,
Anworth will pay the Anworth 19 Manager a termination fee of $20.3
million, and Ready Capital or Merger Sub (as the surviving 20
company following the Merger) will reimburse the Anworth Manager
for certain unpaid expenses 21 and pay to the Anworth Manager all
accrued and unpaid management fees then owed under the 22 Anworth
Management Agreement, as and when specified in the Anworth
Management Agreement 23 Amendment." 24 Defendants Joseph McAdams
and Lloyd McAdams "own an interest in the 25 Anworth Manager, and
therefore will receive a part of the payments that will be due to
the Anworth 26 Manager in connection with the termination of the
Anworth Management Agreement." 27 28 - 14 - CLASS ACTION
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52.Moreover,
Defedant Mielle will serve on the Board of the new, combined
compamy. 353. Thus, while the Proposed Transaction is not in the
best interests of Anworth 4stockholders, it will produce lucrative
benefits for the Company's officers and directors. 5The Materially
Misleading and/or Incomplete Registration Statement 654. On January
4, 2021, the Defendants caused to be filed with the SEC a
materially misleading and incomplete Registration Statement that,
in violation of the Exchange Act and their fiduciary duties, failed
to provide the Company's stockholders with material information
and/or provides them with materially misleading information
critical to the total mix of information available to the Company's
stockholders concerning the financial and procedural fairness of
the Proposed Transaction. Omissions and/or Material
Misrepresentations Concerning the Sales Process Leading up to the
Proposed Transaction 1455. The Registration Statement fails to
provide material information concerning the process conducted by
the Company and the events leading up to the Proposed Transaction.
In particular, the Registration Statement fails to disclose: a.
Whether the Company entered into any confidentiality agreements
with any other party besides Ready Capital relating to the sales
process, and if so, whether the terms of that agreement differed
from the one with Ready Capital, 20and in what way; b. All specific
conditions under which any standstill provision contained in any
entered confidentiality agreement entered into between the Company
and 23potentially interested third parties throughout the sales
process, including Ready Capital, would fall away; and c. Whether
Credit Suisse has performed past services for any parties to the
Merger 26Agreement or their affiliates, including the timing and
nature of such services, 27and the amount of compensation received
for providing such services; 28 - 15 - CLASS ACTION
COMPLAINT |
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Case
2:21-cv-00917Document 1 Filed 02/01121 Page 16 of 24Page ID #:16
1Omissions and/or Material Misrepresentations Concerning Financial
Projections 56.The Registration Statement fails to provide material
information concerning financial projections provided by Anworth
and Ready Capital management and relied upon by Credit Suisse in
its analyses. The Registration Statement discloses
management-prepared financial projections for which are
insufficient and/or are materially misleading. 657.The Registration
Statement indicates that in connection with the rendering of Credit
Suisse's fairness opinion, Credit Suisse reviewed "(i) fmancial
forecasts relating to Anworth for the fiscal years ending December
31, 2020 through December 31, 2023 (which are referred to in this
section as the "Anworth Projections") prepared and provided to
Credit Suisse by the Anworth Manager and (ii) financial forecasts
relating to Ready Capital for the fiscal years ending December 31,
2020 through December 31, 2025 (which are referred to in this
section as the "Ready Capital Projections") prepared and provided
to Credit Suisse by the Ready Capital Manager." 1358. Accordingly,
the Registration Statement should have, but fails to provide,
certain information inthe projections that Anworth management
provided to the Board, Credit Suisse, and Credit Suisse. Courts
have uniformly stated that ''projections ... are probably among the
most highly-prized disclosures by investors. Investors can come up
with their own estimates of discount rates or[] market multiples.
What they cannot hope to do is replicate management's inside view
of the company's prospects." In re Netsmart Techs., Inc. S'holders
Litig., 924 A.2d 171, 201-203 19(Del. Ch. 2007). 59.With respect to
both the "Anworth Management Projections," and the "Ready Capital
Management Projections," the Registration Statement fails to
disclose material line items for Core Earnings Per Share. the
following metrics: 60.The Registration Statement also fails to
disclose a reconciliation of all non-GAAP to GAAP metrics utilized
by Anworth and Ready Capital in the projections. 2561. The
Registration Statement fails to disclose the distributed cash flows
that both 26Anworth (fiscal year ending December 31, 2020 through
fiscal year ending December 31, 2023) 27 28 - 16 - CLASS ACTION
COMPLAINT |
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and Ready Capital
(last quarter fiscal year ending December 31, 2020 through full
fiscal year ending December 31, 2025) were forecast to generate.
62.This information is necessary to provide Company stockholders a
complete and accurate picture of the sales process and its
fairness. Without this information, stockholders were 5not fully
informed as to Defendants' actions, including those that may have
been taken in bad faith, 6 and cannot fairly assess the process. 7
63.Without accurate projection data presented in the Registration
Statement, Plaintiffs 8 and other stockholders of Anworth are
unable to properly evaluate the Company's true worth, the 9 merger
consideration's true value, the accuracy of Credit Suisse's
fmancial analyses, or make an 10 informed decision whether to vote
their Company stock in favor of the Proposed Transaction. As 11
such, the Board has breached their fiduciary duties by failing to
include such information in the 12 Registration Statement. 13
Omissions and/or Material Misrepresentations Concerning the
Financial Analyses by 14 Credit Suisse 15 64.In the Registration
Statement, Credit Suisse describes its respective fairness 16
opinion and the various valuation analyses performed to render such
opinion.However, the 17 descriptions fail to include necessary
underlying data, support for conclusions, or the existence of, 18
or basis for, underlying assumptions. Without this information, one
cannot replicate the analyses, 19 confirm the valuations or
evaluate the fairness opinions. 20 With respect to the Dividend
Discount Analysis, for both Anworth and Ready 21 Capital, the
Registration Statement fails to disclose the following: 22 The
terminal values for Anworth and Ready Capital; 23 The basis for the
application of the range of TBVPS multiples to ach of 24 Anworth's
and Ready Capital's book value; 25 The forecasted distributed cash
flows that Anworth (fiscal year ending 26 December 31, 2020 through
fiscal year ending December 31, 2023) and Ready 27 28 - 1 - CLASS
ACTION COMPLAINT |
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Case
2:21-cv-00917Document 1 Filed 02/01121 Page 18 of 24Page ID #:18 1
2 3 4 5 666. Capital (last quarter fiscal year ending December 31,
2020 through full fiscal year ending December 31, 2025) were
forecast to generate; The specific inputs and assumptions used to
calculate the applied discount rate range of9.0% - 14% (Anworth)
and 9.0% - 13.0% (Ready Capital); and The number of Anworth common
stock outstanding on a fully diluted basis. With respect to the
Selected Public Companies Analysis, for both Anworth and Ready
Capital, the Registration Statement fails to disclose the benchmark
multiples and metrics for each selected company. 67.With respect to
the Selected Precedent Transactions Analysis, the Registration
Statement fails to disclose the benchmark multiples and metrics fo
reach selected transaction. 68.These disclosures are critical for
stockholders to be able to make an informed decision on whether to
vote their shares in favor of the Proposed Transaction. 69.Without
the omitted information identified above, Anworth public
stockholders are missing critical information necessary to evaluate
whether the proposed consideration truly maximizes stockholder
value and serves their interests.Moreover, without the key
financial information and related disclosures, Anworth public
stockholders cannot gauge the reliability of the fairness opinion
and the Board's determination that the Proposed Transaction is in
their best interests.As such, the Board has breached their
fiduciary duties by failing to include such information inthe
Registration Statement. FIRST COUNT Claim for Breach of Fiduciary
Duties 22 2370. 2471. (Against the Individual Defendants)
Plaintiffs repeats all previous allegations as if set forth in full
herein. The Individual Defendants have violated their fiduciary
duties of care, loyalty and 25good faith owed to Plaintiffs and the
Company's public stockholders. 26 27 28 - 18 - CLASS ACTION
COMPLAINT |
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172. By the acts,
transactions and courses of conduct alleged herein, Defendants,
individually and acting as a part of a common plan, are attempting
to unfairly deprive Plaintiffs and other members of the Class of
the true value of their investment in Anworth. 473. As demonstrated
by the allegations above, the Individual Defendants failed to
exercise the care required, and breached their duties of loyalty
and good faith owed to the stockholders of Anworth by entering into
the Proposed Transaction through a flawed and unfair process and
failing to take steps to maximize the value of Anworth to its
public stockholders. 874. Indeed, Defendants have accepted an offer
to sell Anworth at a price that fails to reflect the true value of
the Company, thus depriving stockholders of the reasonable, fair
and adequate value of their shares. 75.Moreover, the Individual
Defendants breached their duty of due care and candor by failing to
disclose to Plaintiffs and the Class all material information
necessary for them to make an informed decision on whether to vote
their shares in favor of the Proposed Transaction. 1476. The
Individual Defendants dominate and control the business and
corporate affairs of Anworth, and are in possession of private
corporate information concerning Anworth's assets, business and
future prospects. Thus, there exists an imbalance and disparity of
knowledge and economic power between them and the public
stockholders of Anworth which makes it inherently unfair for them
to benefit their own interests to the exclusion of maximizing
stockholder value. 77.By reason of the foregoing acts, practices
and course of conduct, the Individual Defendants have failed to
exercise due care and diligence in the exercise of their fiduciary
obligations toward Plaintiffs and the other members of the Class.
2278. As a result of the actions of the Individual Defendants,
Plaintiffs and the Class will suffer irreparable injury in that
they have not and will not receive their fair portion of the value
of Anworth's assets and have been and will be prevented from
obtaining a fair price for their common stock. 26 27 28 - 19 -
CLASS ACTION COMPLAINT |
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Case
2:21-cv-00917Document 1 Filed 02/01121 Page 20 of 24Page ID #:20
79.Unless the Individual Defendants are enjoined by the Court, they
will continue to breach their fiduciary duties owed to Plaintiffs
and the members of the Class, all to the irreparable harm of the
Class. 80.Plaintiffs and the members of the Class have no adequate
remedy at law. Only through the exercise of this Court's equitable
powers can Plaintiffs and the Class be fully protected from the
immediate and irreparable injury which Defendants' actions threaten
to inflict. SECOND COUNT Aiding and Abetting the Board's Breaches
of Fiduciary Duty Against Defendant Anworth, Inc. 10 herein. 81.
Plaintiffs incorporate each and every allegation set forth above as
if fully set forth 82.Defendant Anworth, knowingly assisted the
Individual Defendants' breaches of fiduciary duty in connection
with the Proposed Acquisition, which, without such aid, would not
have occurred. 83.As a result of this conduct, Plaintiffs and the
other members of the Class have been and will be damaged in that
they have been and will be prevented from obtaining a fair price
for their shares. 84.Plaintiffs and the members of the Class have
no adequate remedy at law. THIRD COUNT 20Violations of Section
14(a) of the Exchange Act 21(Against All Defendants) 2285. 2386.
Plaintiff repeat all previous allegations as if set forth in full
herein. Defendants have disseminated the Registration Statement
with the intention of soliCredit Suisseng stockholders to vote
their shares in favor of the Proposed Transaction. 87.Section 14(a)
of the Exchange Act requires full and fair disclosure in connection
with the Proposed Transaction. Specifically, Section 14(a) provides
that: 27 28 -20-CLASS ACTION COMPLAINT |
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Case
2:21-cv-00917Document 1 Filed 02/01121 Page 21 of 24Page ID #:21 It
shall be unlawful for any person, by the use of the mails or by any
means or instrumentality of interstate commerce or of any facility
of a national securities exchange or otherwise, in contravention of
such rules and regulations as the [SEC] may prescribe as necessary
or appropriate in the 5public interest or for the protection of
investors, to solicit or to permit the 6use of his name to solicit
any proxy or consent or authorization in respect of any security
(other than an exempted security) registered pursuant to section
781 of this title. 88.As such, SEC Rule 14a-9, 17 C.F.R. 240.14a-9,
states the following: 10No solicitation subject to this regulation
shall be made by means of any proxy statement, form of proxy,
notice of meeting or other communication, written or oral,
containing any statement which, at the time and in the light of the
circumstances under which it is made, is false or misleading with
respect to any material fact, or which omits to state any material
fact necessary in order to make the statements therein not false or
misleading or necessary to correct any statement in any earlier
communication with 17respect to the solicitation of a proxy for the
same meeting or subject matter 18which has become false or
misleading. 1989. The Registration Statement was prepared in
violation of Section 14(a) because it is materially misleading in
numerous respects and omits material facts, including those set
forth above. Moreover, in the exercise of reasonable care,
Defendants knew or should have known that the Registration
Statement is materially misleading and omits material facts that
are necessary to render them non-misleading. 90.The Individual
Defendants had actual knowledge or should have known of the
misrepresentations and omissions of material facts set forth
herein. 26 27 28 -21 - CLASS ACTION COMPLAINT |
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Case
2:21-cv-00917Document 1 Filed 02/01121 Page 22 of 24Page ID #:22
191. The Individual Defendants were at least negligent in filing a
Registration Statement that was materially misleading and/or
omitted material facts necessary to make the Registration Statement
not misleading. 492. The misrepresentations and omissions in the
Registration Statement are material to Plaintiffs and the Class,
and Plaintiffs and the Class will be deprived of their entitlement
to decide whether to vote their shares in favor of the Proposed
Transaction on the basis of complete information if such
misrepresentations and omissions are not corrected prior to the
stockholder vote regarding the Proposed Transaction. FOURTH COUNT
10Violations of Section 20(a) of the Exchange Act 11 1293. 1394.
(Against All Individual Defendants) Plaintiffs repeats all previous
allegations as if set forth in full herein. The Individual
Defendants were privy to non-public information concerning the
Company and its business and operations via access to internal
corporate documents, conversations and connections with other
corporate officers and employees, attendance at management and
Board meetings and committees thereof and via reports and other
information provided to them in connection therewith. Because of
their possession of such information, the Individual Defendants
knew or should have known that the Registration Statement was
materially misleading to Company stockholders. 2095.The Individual
Defendants were involved in drafting, producing, reviewing and/or
disseminating the materially false and misleading statements
complained ofherein. The Individual Defendants were aware or should
have been aware that materially false and misleading statements
were being issued by the Company in the Registration Statement and
nevertheless approved, ratified and/or failed to correct those
statements, in violation of federal securities laws. The Individual
Defendants were able to, and did, control the contents of the
Registration Statement. The Individual Defendants were provided
with copies of, reviewed and approved, and/or signed 27 28
-22-CLASS ACTION COMPLAINT |
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Case
2:21-cv-00917Document 1 Filed 02/01121 Page 23 of 24Page ID #:23
the Registration Statement before its issuance and had the ability
or opportunity to prevent its issuance or to cause it to be
corrected. 96.The Individual Defendants also were able to, and did,
directly or indirectly, control the conduct of Anworth's business,
the information contained in its filings with the SEC, and its
public statements.Because of their positions and access to material
non-public information available to them but not the public, the
Individual Defendants knew or should have known that the
misrepresentations specified herein had not been properly disclosed
to and were being concealed from the Company's stockholders and
that the Registration Statement was misleading. As a result, the
Individual Defendants are responsible for the accuracy of the
Registration 10Statement and are therefore responsible and liable
for the misrepresentations contained herein. 1197. The Individual
Defendants acted as controlling persons of Anworth within the
meaning of Section 20(a) of the Exchange Act. By reason of their
position with the Company, the Individual Defendants had the power
and authority to cause Anworth to engage in the wrongful conduct
complained of herein.The Individual Defendants controlled Anworth
and all of its employees. As alleged above, Anworth is a primary
violator of Section 14 of the Exchange Act and SEC Rule 14a-9. By
reason of their conduct, the Individual Defendants are liable
pursuant to section 20(a) of the Exchange Act. WHEREFORE,
Plaintiffs demand injunctive relief, in their favor and in favor of
the Class, and against the Defendants, as follows: A.Ordering that
this action may be maintained as a class action and certifying
Plaintiffs as the Class representatives and Plaintiffs' counsel as
Class counsel; B.Enjoining the Proposed Transaction; 23 C.In the
event Defendants consummate the Proposed Transaction, rescinding it
and 24 setting it aside or awarding rescissory damages to
Plaintiffs and the Class; 25 D.Declaring and decreeing that the
Merger Agreement was agreed to in breach of the fiduciary duties of
the Individual Defendants and is therefore unlawful and
unenforceable; 28 -23 - CLASS ACTION COMPLAINT |
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Case
2:21-cv-00917Document 1 Filed 02/01121 Page 24 of 24 Page ID #:24
1E.Directing the Individual Defendants to exercise their fiduciary
duties to commence 2a sale process that is reasonably designed to
secme the best possible consideration for 3Anworth and obtain a
transaction which is in the best interests of Anworth and its 4
stockholders; 5 F.Directing defendants to account to Plaintiffs and
the Class for damages sustained 6 7because of the wrongs complained
of herein; 8G.Awarding Plaintiffs the costs of this action,
including reasonable allowance for 9Plaintiff's attorneys' and
experts' fees; and 10H.Granting such other and further relief as
this Court may deem just and proper. 11 DEMAND FOR JURY TRIAL 12
Plaintiffs hereby demand a jury on all issues which can be heard by
ajury. 13 14Dated:Februaryl,2021BRODSKY & SMITH, LLC 15By: 16
17 18 19 20 21 22 23 24 25 26 27 28 &J.
------------------------------------------------------------Evan J.
Smith, Esquire (SBN 242352) esmith@brodskysmith.com Ryan P.
Cardona, Esqull'e (SBN 302113) rcardona@brodskysmith.com 9595
Wilshire Blvd, Ste. 900 Phone: (877) 534-2590 Facsimile (310)
247-0160 Attorneys for Plaintiffs -24-CLASS ACTION
COMPLAINT |
Exhibit 99.8
 |
IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK SEAN
MCGILLIVRAY, Plaintiff, v. READY CAPITAL CORPORATION, THOMAS EDWARD
CAPASSE, JACK JAY ROSS, FRANK P. FILIPPS, GILBERT NATHAN, ANDREA
PETRO, J. MITCHELL REESE, and TODD M. SINAI, Defendants. Civil
Action No. COMPLAINT FOR VIOLATIONS OF THE FEDERAL SECURITIES LAWS
JURY TRIAL DEMANDED Plaintiff Sean McGillivray (“Plaintiff”) by and
through his undersigned attorneys, brings this action on behalf of
himself, and alleges the following based upon personal knowledge as
to those allegations concerning Plaintiff and, as to all other
matters, upon the investigation of counsel, which includes, without
limitation: (a) review and analysis of public filings made by Ready
Capital Corporation (“Ready Capital” or the “Company”) and other
related parties and non-parties with the United States Securities
and Exchange Commission (“SEC”); (b) review and analysis of press
releases and other publications disseminated by certain of the
Defendants (defined below) and other related non-parties; (c)
review of news articles, shareholder communications, and postings
on the Company’s website concerning the Company’s public
statements; and (d) review of other publicly available information
concerning Ready Capital and the Defendants. |
 |
SUMMARY OF THE ACTION
This is an action brought by Plaintiff against Ready Capital and
the Company’s Board of Directors (the “Board” or the “Individual
Defendants”) for their violations of Section 14(a) and 20(a) of the
Securities Exchange Act of 1934, 15.U.S.C. §§ 78n(a), 78t(a), and
SEC Rule 14a-9, 17 C.F.R. 240.14a-9, in connection with the
Company’s proposed acquisition of Anworth Mortgage Asset
Corporation (“Anworth”) (the “Proposed Transaction”). On December
6, 2020, the Company entered into an Agreement and Plan of Merger
(the “Merger Agreement”) with Anworth. Pursuant to the terms of the
Merger Agreement, Anworth stockholders will receive $0.61 in cash
and 0.1688 shares of Ready Capital common stock per share of
Anworth owned (the “Merger Consideration”). On February 5, 2021, in
order to convince the Company’s shareholders to vote in favor of
the Proposed Transaction, the Board authorized the filing of a
materially incomplete and misleading registration statement with
the SEC on Form S-4/A (the “Registration Statement”), in violation
of Sections 14(a) and 20(a) of the Exchange Act. For these reasons,
and as set forth in detail herein, Plaintiff asserts claims against
Ready Capital and the Board for violations of Sections 14(a) and
20(a) of the Exchange Act and Rule 14a-9. Plaintiff seeks to enjoin
Defendants from taking any steps to consummate the Proposed
Transaction unless and until the material information discussed
below is disclosed to Ready Capital shareholders before the vote on
the Proposed Transaction or, in the event the Proposed Transaction
is consummated, recover damages resulting from the Defendants’
violations of the Exchange Act. |
 |
JURISDICTION AND VENUE
This Court has subject matter jurisdiction over all claims asserted
herein pursuant to Section 27 of the Exchange Act, 15 U.S.C § 78aa,
and 28 U.S.C. § 1331, as Plaintiff alleges violations of Sections
14(a) and 20(a) of the Exchange Act. This Court has personal
jurisdiction over all of the Defendants because each is either a
corporation that conducts business in, solicits shareholders in,
and/or maintains operations within, this District, or is an
individual who is either present in this District for
jurisdictional purposes or has sufficient minimum contacts with
this District so as to make the exercise of jurisdiction by this
Court permissible under traditional notions of fair play and
substantial justice. Venue is proper under 28 U.S.C. § 1391 because
a substantial portion of the transactions and wrongs complained of
herein occurred in this District. THE PARTIES Plaintiff is, and has
been at all times relevant hereto, the owner of Ready Capital
shares. Defendant Ready Capital is incorporated under the laws of
Maryland and has its principal executive offices located at 1140
Avenue of the Americas, 7th Floor, New York, New York 10036. The
Company’s common stock trades on the New York Stock Exchange under
the symbol “RC.” Defendant Thomas Edward Capasse (“Capasse”) is and
has been a the Chairman of the Board and Chief Executive Officer of
Ready Capital at all times during the relevant time
period. |
 |
Defendant Jack Jay Ross
(“Ross”) is and has been a director of Ready Capital at all times
during the relevant time period. Defendant Frank P. Filipps
(“Filipps”) is and has been a director of Ready Capital at all
times during the relevant time period. Defendant Gilbert Nathan
(“Nathan”) is and has been a director of Ready Capital at all times
during the relevant time period. Defendant Andrea Petro (“Petro”)
is and has been a director of Ready Capital at all times during the
relevant time period. Defendant J. Mitchell Reese (“Reese”) is and
has been a director of Ready Capital at all times during the
relevant time period. Defendant Todd M. Sinai (“Sinai”) is and has
been a director of Ready Capital at all times during the relevant
time period. Defendants Capasse, Ross, Filipps, Nathan, Petro,
Reese, and Sinai are collectively referred to herein as the
“Individual Defendants.” The Individual Defendants, along with
Defendant Ready Capital, are collectively referred to herein as
“Defendants.” SUBSTANTIVE ALLEGATIONS Background of the Company
Ready Capital is a multi-strategy real estate finance company that
originates, acquires, finances and services small to medium balance
commercial (“SBC”) loans, Small Business Administration (“SBA”)
loans, residential mortgage loans, and to a lesser extent, mortgage
backed securities (“MBS”) collateralized primarily by SBC loans, or
other real estate-related investments. Ready Capital’s loans
generally range in original principal amounts up to |
 |
$35 million and are used
by businesses to purchase real estate used in their operations or
by investors seeking to acquire small multi-family, office, retail,
mixed use or warehouse properties. Ready Capital’s acquisition and
origination platforms consist of four operating segments: loan
acquisitions, SBC originations, SBA originations, acquisitions and
servicing, and residential mortgage banking. Ready Capital is
externally managed and advised by the Ready Capital Manager, an
investment advisor registered with the SEC under the Investment
Advisors Act of 1940, as amended. The Company Announces the
Proposed Transaction On December 7, 2020, the Company jointly
issued a press release announcing the Proposed Transaction. The
press release stated in part: NEW YORK and SANTA MONICA, Calif.,
Dec. 7, 2020 /PRNewswire/ --Ready Capital Corporation (NYSE:RC)
("Ready Capital"), a multi-strategy real estate finance company
that originates, acquires, finances and services small-to
medium-sized balance commercial loans, and Anworth Mortgage Asset
Corporation (NYSE:ANH) ("Anworth"), a specialty finance REIT that
focuses primarily on investments in residential mortgage-backed
securities, announced today that they have entered into a
definitive merger agreement pursuant to which Ready Capital will
combine with Anworth. The combined company is expected to have a
pro forma equity capital base in excess of $1 billion. The
combination is expected to enhance shareholder liquidity and
provide for increased operating leverage across the larger equity
base. Under the terms of the merger agreement, each share of
Anworth common stock will be converted into 0.1688 shares of Ready
Capital common stock and $0.61 of cash consideration. Based on
Ready Capital's closing stock price on Friday, December 4, 2020,
the implied offer price is $2.94 per share. Upon the closing of the
merger, Ready Capital stockholders are expected to own
approximately 76% of the combined company's stock, while Anworth
stockholders are expected to own approximately 24% of the combined
company's stock. Ready Capital will also assume Anworth's three
outstanding series of preferred stock. In connection with the
merger, Waterfall Asset Management, LLC ("Waterfall"), Ready
Capital's external manager, has agreed to reduce the base
management fee it charges Ready Capital by an aggregate of $4
million over the four quarters immediately following the closing of
the transaction. |
 |
Based on the closing
prices of Ready Capital's common stock on December 4, 2020, the
market capitalization of the combined company would be
approximately $984 million. The combined company will operate under
the name Ready Capital and its shares are expected to continue
trading on the New York Stock Exchange under the existing ticker
symbol "RC". "This merger highlights our continued focus on
establishing Ready Capital as an industry-leading mortgage REIT,
with the scale and financial resources to pursue compelling
risk-adjusted returns across its diversified investment platform,"
stated Ready Capital Chairman and Chief Executive Officer Thomas
Capasse. "The combined company will be in a more formidable
position to execute its business plan, improve operating and cost
efficiencies, and continue growth in a prudent and profitable
manner." *** Timing and Approvals The transaction has been
unanimously approved by each of the Boards of Directors of Ready
Capital and Anworth. The transaction is expected to close by the
end of the first quarter of 2021, subject to the respective
approvals by the stockholders of Anworth and Ready Capital and
other customary closing conditions. Advisors Wells Fargo Securities
is acting as exclusive financial advisor and Alston & Bird LLP
is acting as legal advisor to Ready Capital. Credit Suisse is
acting as exclusive financial advisor and Greenberg Traurig LLP is
acting as legal advisor to the Board of Directors of Anworth. FALSE
AND MISLEADING STATEMENTS AND/OR MATERIAL OMISSIONS IN THE
REGISTRATION STATEMENT On February 5, 2021, the Company authorized
the filing of the Registration Statement with the SEC. The
Registration Statement recommends that the Company’s shareholders
vote in favor of the Proposed Transaction. Defendants were
obligated to carefully review the Registration Statement prior to
its filing with the SEC and dissemination to the Company’s
shareholders to ensure that it did not contain any material
misrepresentations or omissions. However, the Registration
Statement |
 |
misrepresents and/or
omits material information that is necessary for the Company’s
shareholders to make informed decisions regarding whether to vote
in favor of the Proposed Transaction, in violation of Sections
14(a) and 20(a) of the Exchange Act. Material False and Misleading
Statements or Material Misrepresentations or Omissions Regarding
the Company’s Financial Projections The Registration Statement
contains projections prepared by the Company’s and Anworth’s
management concerning the Proposed Transaction, but fails to
provide material information concerning such. The SEC has
repeatedly emphasized that disclosure of non-GAAP projections can
be inherently misleading, and has therefore heightened its scrutiny
of the use of such projections.1 Indeed, on May 17, 2016, the SEC’s
Division of Corporation Finance released new and updated Compliance
and Disclosure Interpretations (“C&DIs”) on the use of non-GAAP
financial measures that demonstrate the SEC’s tightening policy.2
One of the new C&DIs regarding forward-looking information,
such as financial projections, explicitly requires companies to
provide any reconciling metrics that are available without
unreasonable efforts. In order to make management’s projections
included in the Registration Statement materially complete and not
misleading, Defendants must provide a reconciliation table of the
non-GAAP measures to the most comparable GAAP measures. See, e.g.,
Nicolas Grabar and Sandra Flow, Non-GAAP Financial Measures: The
SEC’s Evolving Views, Harvard Law School Forum on Corporate
Governance and Financial Regulation (June 24, 2016), available at
https://corpgov.law.harvard.edu/2016/06/24/non-gaap-financial-measuresthesecs
evolving-views/; Gretchen Morgenson, Fantasy Math Is Helping
Companies Spin Losses Into Profits, N.Y. Times, Apr. 22, 2016,
available at
http://www.nytimes.com/2016/04/24/business/fantasy-mathis-helping-companies-spin-ossesinto-profits.html?_r=0.
Non-GAAP Financial Measures, Compliance & Disclosure
Interpretations, U.S. SECURITIES AND EXCHANGE COMMISSION (May 17,
2017), available at
https://www.sec.gov/divisions/corpfin/guidance/nongaapinterp.htm. |
 |
Specifically, with
respect to the Company’s projections, the Company must disclose the
line item projections for the financial metrics that were used to
calculate the non-GAAP measures, including Core Earnings Per Share.
With respect to Anworth’s projections, the Company must disclose
the line item projections for the financial metrics that were used
to calculate the non-GAAP measures, including Core Earnings Per
Common Share. Disclosure of the above information is vital to
provide investors with the complete mix of information necessary to
make an informed decision when voting on the Proposed Transaction.
Specifically, the above information would provide shareholders with
a better understanding of the analyses performed by the Company’s
financial advisor in support of its opinion. Material False and
Misleading Statements or Material Misrepresentations or Omissions
Regarding Credit Suisse’s Financial Opinion The Registration
Statement contains the financial analyses and opinion of Credit
Suisse Securities (USA) LLC (“Credit Suisse”) concerning the
Proposed Transaction, but fails to provide material information
concerning such. With respect to Credit Suisse’s Selected Public
Companies Analysis – Anworth, the Registration Statement fails to
disclose the individual multiples and metrics for each of the
companies observed in the analysis. With respect to Credit Suisse’s
Selected Public Companies Analysis – Ready Capital, the
Registration Statement fails to disclose the individual multiples
and metrics for each of the companies observed in the
analysis. |
 |
With respect to Credit
Suisse’s Selected Precedent Transactions Analysis, the Registration
Statement fails to disclose the individual multiples and metrics
for each of the transactions observed in the analysis. With respect
to Credit Suisse’s Dividend Discount Analysis – Anworth, the
Registration Statement fails to disclose: (i) the terminal values
for Anworth; (ii) Anworth’s estimated book value; and (iii) the
number of fully diluted outstanding shares of Anworth common stock.
With respect to Credit Suisse’s Dividend Discount Analysis – Ready
Capital, the Registration Statement fails to disclose: (i) the
terminal values for Ready Capital; (ii) the distributed cash flows
for Ready Capital; and (iii) Ready Capital’s estimated book value.
When a banker’s endorsement of the fairness of a transaction is
touted to shareholders, the valuation methods used to arrive at
that opinion as well as the key inputs and range of ultimate values
generated by those analyses must also be fairly disclosed.
Moreover, the disclosure of projected financial information is
material because it provides shareholders with a basis to project
the future financial performance of a company and allows
shareholders to better understand the financial analyses performed
by the Company’s financial advisor in support of its fairness
opinion. Without the above described information, the Company’s
shareholders are unable to cast a fully informed vote on the
Proposed Transactions. Accordingly, in order to provide
shareholders with a complete mix of information, the omitted
information described above should be disclosed. |
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COUNT I (Against All
Defendants for Violations of Section 14(a) of the Exchange Act and
Rule 14a-9 Promulgated Thereunder) Plaintiff incorporates each and
every allegation set forth above as if fully set forth herein.
Section 14(a)(1) of the Exchange Act makes it “unlawful for any
person, by the use of the mails or by any means or instrumentality
of interstate commerce or of any facility of a national securities
exchange or otherwise, in contravention of such rules and
regulations as the Commission may prescribe as necessary or
appropriate in the public interest or for the protection of
investors, to solicit or to permit the use of his name to solicit
any proxy or consent or authorization in respect of any security
(other than an exempted security) registered pursuant to section
78l of this title.” 15 U.S.C. § 78n(a)(1). Rule 14a-9, promulgated
by the SEC pursuant to Section 14(a) of the Exchange Act, provides
that communications with stockholders in a recommendation statement
shall not contain “any statement which, at the time and in the
light of the circumstances under which it is made, is false or
misleading with respect to any material fact, or which omits to
state any material fact necessary in order to make the statements
therein not false or misleading.” 17 C.F.R. § 240.14a-9. Defendants
have issued the Registration Statement with the intention of
soliciting shareholders support for the Proposed Transaction. Each
of the Defendants reviewed and authorized the dissemination of the
Registration Statement, which fails to provide critical information
regarding, among other things, the financial projections for the
Company. In so doing, Defendants made untrue statements of fact
and/or omitted material facts necessary to make the statements made
not misleading. Each of the Defendants, by virtue |
 |
of their roles as
officers and/or directors, were aware of the omitted information
but failed to disclose such information, in violation of Section
14(a). The Defendants were therefore negligent, as they had
reasonable grounds to believe material facts existed that were
misstated or omitted from the Registration Statement, but
nonetheless failed to obtain and disclose such information to
shareholders although they could have done so without extraordinary
effort. The Defendants knew or were negligent in not knowing that
the Registration Statement is materially misleading and omits
material facts that are necessary to render it not misleading. The
Defendants undoubtedly reviewed and relied upon the omitted
information identified above in connection with their decision to
approve and recommend the Proposed Transaction. The Defendants knew
or were negligent in not knowing that the material information
identified above has been omitted from the Registration Statement,
rendering the sections of the Registration Statement identified
above to be materially incomplete and misleading. Indeed, the
Defendants were required to be particularly attentive to the
procedures followed in preparing the Registration Statement and
review it carefully before it was disseminated, to corroborate that
there are no material misstatements or omissions. The Defendants
were, at the very least, negligent in preparing and reviewing the
Registration Statement. The preparation of a Registration Statement
by corporate insiders containing materially false or misleading
statements or omitting a material fact constitutes negligence. The
Defendants were negligent in choosing to omit material information
from the Registration Statement or failing to notice the material
omissions in the Registration Statement upon reviewing it, which
they were required to do carefully as the Company’s directors.
Indeed, the Defendants were intricately involved in the process
leading up to the signing of the Merger |
 |
Agreement and the
preparation of the Company’s financial projections. The
misrepresentations and omissions in the Registration Statement are
material to Plaintiff, who will be deprived of his right to cast an
informed vote if such misrepresentations and omissions are not
corrected prior to the vote on the Proposed Transaction. Plaintiff
has no adequate remedy at law. Only through the exercise of this
Court’s equitable powers can Plaintiff be fully protected from the
immediate and irreparable injury that Defendants’ actions threaten
to inflict. COUNT II (Against the Individual Defendants for
Violations of Section 20(a) of the Exchange Act) Plaintiff
incorporates each and every allegation set forth above as if fully
set forth herein. The Individual Defendants acted as controlling
persons of Ready Capital within the meaning of Section 20(a) of the
Exchange Act as alleged herein. By virtue of their positions as
officers and/or directors of Ready Capital, and participation in
and/or awareness of the Company’s operations and/or intimate
knowledge of the incomplete and misleading statements contained in
the Registration Statement filed with the SEC, they had the power
to influence and control and did influence and control, directly or
indirectly, the decision making of the Company, including the
content and dissemination of the various statements that Plaintiff
contends are materially incomplete and misleading. Each of the
Individual Defendants was provided with, or had unlimited access
to, copies of the Registration Statement and other statements
alleged by Plaintiff to be misleading prior to and/or shortly after
these statements were issued and had the ability to prevent the
issuance of the statements or cause the statements to be
corrected. |
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In particular, each of
the Individual Defendants had direct and supervisory involvement in
the day-to-day operations of the Company, and, therefore, is
presumed to have had the power to control or influence the
particular transactions giving rise to the Exchange Act violations
alleged herein, and exercised the same. The Registration Statement
at issue contains the unanimous recommendation of each of the
Individual Defendants to approve the Proposed Transaction. They
were thus directly involved in preparing this document. In
addition, as set forth in the Registration Statement sets forth at
length and described herein, the Individual Defendants were
involved in negotiating, reviewing, and approving the Merger
Agreement. The Registration Statement purports to describe the
various issues and information that the Individual Defendants
reviewed and considered. The Individual Defendants participated in
drafting and/or gave their input on the content of those
descriptions. By virtue of the foregoing, the Individual Defendants
have violated Section 20(a) of the Exchange Act. As set forth
above, the Individual Defendants had the ability to exercise
control over and did control a person or persons who have each
violated Section 14(a) and Rule 14a-9 by their acts and omissions
as alleged herein. By virtue of their positions as controlling
persons, these Defendants are liable pursuant to Section 20(a) of
the Exchange Act. As a direct and proximate result of Individual
Defendants’ conduct, Plaintiff will be irreparably harmed.
Plaintiff has no adequate remedy at law. Only through the exercise
of this Court’s equitable powers can Plaintiff be fully protected
from the immediate and irreparable injury that Defendants’ actions
threaten to inflict. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays
for judgment and relief as follows: |
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Preliminarily and
permanently enjoining Defendants and all persons acting in concert
with them from proceeding with, consummating, or closing the
Proposed Transaction; Directing the Individual Defendants to
disseminate an Amendment to the Registration Statement that does
not contain any untrue statements of material fact and that states
all material facts required in it or necessary to make the
statements contained therein not misleading; Directing Defendants
to account to Plaintiff for all damages sustained because of the
wrongs complained of herein; Awarding Plaintiff the costs of this
action, including reasonable allowance for Plaintiff’s attorneys’
and experts’ fees; and Granting such other and further relief as
this Court may deem just and proper. JURY DEMAND Plaintiff demands
a trial by jury on all issues so triable. Dated: February 9,
2021Respectfully submitted, By: /s/ Joshua M. Lifshitz Joshua M.
Lifshitz Email: jml@jlclasslaw.com LIFSHITZ LAW FIRM, P.C. 1190
Broadway Hewlett, New York 11557 Telephone: (516) 493-9780
Facsimile: (516) 280-7376 Attorneys for Plaintiff |
Exhibit 99.9
 |
Case 2:21-cv-01782
Document 1 Filed 02/25/21 Page 1 of 19 Page ID #:1 Joel E. Elkins
(SBN 256020) jelkins@weisslawllp.com WEISSLAW LLP 9100 Wilshire
Blvd. #725 E. Beverly Hills, CA 90210 3Telephone: 310/208-2800
Facsimile: 310/209-2348 4 Attorneys for Plaintiff 5 6 7 8UNITED
STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ADAM
FRANCHI,) ) ) Plaintiff,) ) ) ) ANWORTH MORTGAGE ASSET) ) MCADAMS,
JOE E. DAVIS,) ROBERT C. DAVIS, MARK S.) ) DOMINIQUE MIELLE,) )
Defendants.) 21 22 23 Case No. COMPLAINT FOR VIOLATIONS OF THE
FEDERAL SECURITIES LAWS JURY TRIAL DEMANDED 24Plaintiff Adam
Franchi (“Plaintiff”), on behalf of himself and all others
similarly 25 situated, upon information and belief, including an
examination and inquiry conducted 26 27 28 - 1 - COMPLAINT FOR
VIOLATIONS OF THE FEDERAL SECURITIES LAWS |
 |
Case 2:21-cv-01782
Document 1 Filed 02/25/21 Page 2 of 19 Page ID #:2 by and through
his counsel, except as to those allegations pertaining to
Plaintiff, which are alleged upon personal belief, alleges the
following for his Complaint: 3 NATURE OF THE ACTION 4 1.Plaintiff
brings this action against Anworth Mortgage Asset Corporation
(“Anworth” or the “Company”) and the members of Anworth’s Board of
Directors (the 7 “Board” or the “Individual Defendants”) for their
violations of Sections 14(a) and 20(a) 8 of the Securities Exchange
Act of 1934 (the “Exchange Act”), 15 U.S.C. §§ 78n(a), 78t(a), and
U.S. Securities and Exchange Commission (“SEC”) Rule 14a-9, 17
C.F.R. 11 § 240.14a-9. By the action, plaintiff seeks to enjoin the
vote on a proposed transaction, 12 pursuant to which Anworth will
be acquired by Ready Capital Corporation (“Ready Capital”) through
Ready Capital’s subsidiary RC Merger Subsidiary (“Merger Sub”) 15
(the “Proposed Transaction”). 16 2.On December 7, 2020, Anworth
announced it had entered into an Agreement and Plan of Merger dated
December 6, 2020 (the “Merger Agreement”) to 19 merge Anworth with
Ready Capital.The Merger Agreement provides that each 20 Anworth
stockholder will receive (i) 0.1688 shares of Ready Capital common
stock, and (ii) $0.61 in cash for each share of Anworth common
stock they own (the “Merger 23 Consideration”). Ready Capital
stockholders are expected to own approximately 76% 24 of the
combined company’s stock when the deal closes. Anworth
stockholders, on the other hand, are expected to own approximately
24% of the combined company’s stock 27 upon consummation of the
Proposed Transaction. 28 - 2 - COMPLAINT FOR VIOLATIONS OF THE
FEDERAL SECURITIES LAWS |
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Case 2:21-cv-01782
Document 1 Filed 02/25/21 Page 3 of 19 Page ID #:3 3.On February 9,
2021, Anworth filed a Definitive Proxy Statement (the “Proxy
Statement”) with the SEC.The Proxy Statement, which recommends that
3 AnworthstockholdersvoteinfavoroftheProposedTransaction,omitsor 4
misrepresents material information concerning, among other things:
(i) the financial projections for Anworth and Ready Capital and the
data and inputs underlying the 7 financial valuation analyses that
support the fairness opinion provided by the 8 Company’s financial
advisor, Credit Suisse Securities (USA) LLC (“Credit Suisse”); (ii)
Credit Suisse’s potential conflicts of interest; and (iii) the
background of the 11 Proposed Transaction. Defendants authorized
the issuance of the false and misleading 12 Proxy Statement in
violation of Sections 14(a) and 20(a) of the Exchange Act. 4.It is
imperative that the material information omitted from the Proxy 15
Statement is disclosed to the Company’s stockholders prior to the
forthcoming 16 stockholder vote so that they can properly exercise
their corporate suffrage rights. 5.For these reasons and as set
forth in detail herein, Plaintiff seeks to enjoin 19 Defendants
from taking any steps to consummate the Proposed Transaction unless
and 20 until the material information discussed below is disclosed
to the Company’s stockholders or, in the event the Proposed
Transaction is consummated, to recover 23 damages resulting from
the defendants’ violations of the Exchange Act. 24 JURISDICTION AND
VENUE 6.This Court has jurisdiction over the claims asserted herein
for violations 27 of Sections 14(a) and 20(a) of the Exchange Act
and Rule 14a-9 promulgated 28 - 3 - COMPLAINT FOR VIOLATIONS OF THE
FEDERAL SECURITIES LAWS |
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Case 2:21-cv-01782
Document 1 Filed 02/25/21 Page 4 of 19 Page ID #:4 thereunder
pursuant to Section 27 of the Exchange Act, 15 U.S.C. § 78aa, and
28 U.S.C. §1331 (federal question jurisdiction). 3 7.The Court has
jurisdiction over defendants because each defendant is 4 either a
corporation that conducts business in and maintains operations in
this District, or is an individual who has sufficient minimum
contacts with this District so as to 7 render the exercise of
jurisdiction by this Court permissible under traditional notions 8
9of fair play and substantial justice. 108.Venue is proper in this
District under Section 27 of the Exchange Act, 15 11 U.S.C. § 78aa,
as well as under 28 U.S.C. § 1391 because: (i) the Company’s
principal 12 executive offices are located in this District; (ii)
one or more of the defendants either resides in or maintains
executive offices in this District; and (iii) defendants have 15
received substantial compensation in this District by doing
business here and engaging 16 in numerous activities that had an
effect in this District. THE PARTIES 19 9.Plaintiff is, and has
been at all times relevant hereto, a continuous 20 stockholder of
Anworth. 10.Defendant Anworth is a Maryland corporation, with its
principal 23 executive offices located at 1299 Ocean Avenue, 2nd
Floor, Santa Monica, California 24 90401. The Company is a
specialty finance mortgage company organized to qualify as a real
estate investment trust (“REIT”). Anworth’s common stock trades on
the New 27 York Stock Exchange under the ticker symbol “ANH.” 28 -
4 - COMPLAINT FOR VIOLATIONS OF THE FEDERAL SECURITIES
LAWS |
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Case 2:21-cv-01782
Document 1 Filed 02/25/21 Page 5 of 19 Page ID #:5 11.Defendant
Joseph E. McAdams (“Joseph McAdams”) is Chairman of the Board and
has been Chief Executive Officer (“CEO”) of the Company since
September 3 2018, President since July 2016, Chief Investment
Officer since January 2003, and a 4 director and Executive Vice
President of the Company since June 2002. 12.Defendant Joe E. Davis
(“Joe Davis”) has been a director of the Company 7 since its
formation in 1997. 8 913.Defendant Robert C. Davis (“Robert Davis”)
has been a director of the 10Company since May 2005. 11
14.Defendant Mark S. Maron (“Maron”) has been a director of the
Company 12 since May 2014. 15.Defendant Lloyd McAdams (“Lloyd
McAdams”) has been a director of 15 the Company since its formation
in 1997.Defendant Lloyd McAdams previously 16 served as Anworth’s
Chairman until November 2018, CEO until September 2018, and
President until July 2016. 19 16.Defendant Dominique Mielle
(“Mielle”) has been a director of the 20 Company since November
2018. 17.Defendants identified in paragraphs 11-16 are referred to
herein as the 23 “Board” or the “Individual Defendants.” 24
18.Non-party Ready Capital is a multi-strategy real estate finance
company, principally located in New York. 27 28 - 5 - COMPLAINT FOR
VIOLATIONS OF THE FEDERAL SECURITIES LAWS |
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Case 2:21-cv-01782
Document 1 Filed 02/25/21 Page 6 of 19 Page ID #:6 19.Non-party
Merger Sub is a Delaware limited liability company and wholly owned
subsidiary of Ready Capital. 3 SUBSTANTIVE ALLEGATIONS The Proposed
Transaction 20.On December 07, 2020, Anworth and Ready Capital
jointly announced: 7 NEW YORK & SANTA MONICA, Calif. --Ready
Capital Corporation 8 (NYSE:RC) (“Ready Capital”), a multi-strategy
real estate finance company that originates, acquires, finances and
services small-to 11 medium-sized balance commercial loans, and
Anworth Mortgage Asset 12 Corporation (NYSE:ANH) (“Anworth”), a
specialty finance REIT that
focusesprimarilyoninvestmentsinresidentialmortgage-backed 15
securities, announced today that they have entered into a
definitive merger 16 agreement pursuant to which Ready Capital will
combine with Anworth. The combined company is expected to have a
pro forma equity capital 19 base in excess of $1 billion.The
combination is expected to enhance shareholder liquidity and
provide for increased operating leverage across the larger equity
base. 23 24Under the terms of the merger agreement, each share of
Anworth common 25 stock will be converted into 0.1688 shares of
Ready Capital common stock 26 27and $0.61 of cash consideration.
Based on Ready Capital’s closing stock 28 - 6 - COMPLAINT FOR
VIOLATIONS OF THE FEDERAL SECURITIES LAWS |
 |
Case 2:21-cv-01782
Document 1 Filed 02/25/21 Page 7 of 19 Page ID #:7 price on Friday,
December 4, 2020, the implied offer price is $2.94 per share. Upon
the closing of the merger, Ready Capital stockholders are 3
expected to own approximately 76% of the combined company’s stock,
4 while Anworth stockholders are expected to own approximately 24%
of the combined company’s stock.Ready Capital will also assume 7
Anworth’s three outstanding series of preferred stock. 8 9 In
connection with the merger, Waterfall Asset Management, LLC 10
(“Waterfall”), Ready Capital’s external manager, has agreed to
reduce the base management fee it charges Ready Capital by an
aggregate of $4 13 million over the four quarters immediately
following the closing of the 14 15transaction. 16 Based on the
closing prices of Ready Capital’s common stock on 17 December 4,
2020, the market capitalization of the combined company would be
approximately $984 million.The combined company will 20 operate
under the name Ready Capital and its shares are expected to
continue trading on the New York Stock Exchange under the existing
23 ticker symbol “RC”. 24 25“This merger highlights our continued
focus on establishing Ready 26 Capital as an industry-leading
mortgage REIT, with the scale and financial 27 28 - 7 - COMPLAINT
FOR VIOLATIONS OF THE FEDERAL SECURITIES LAWS |
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Case 2:21-cv-01782
Document 1 Filed 02/25/21 Page 8 of 19 Page ID #:8 resources to
pursue compelling risk-adjusted returns across its diversified
investmentplatform,”statedReadyCapitalChairmanandChief 3 Executive
Officer Thomas Capasse. “The combined company will be in 4 a more
formidable position to execute its business plan, improve operating
and cost efficiencies, and continue growth in a prudent and
profitable 7 manner.” 8 9 Anticipated Benefits to Ready Capital and
Anworth Stockholders 10 11from the Merger 12 •Over $1 billion
combined capital base and a diversified investment portfolio 15
•Portfolio redeployment will enable Ready Capital to capitalize on
attractive investment opportunities 18 19•Scale advantages include:
20 21o Reduced operating expenses (as a percentage of combined 22
capital base) 23 24 o Improved access to financing, including
corporate debt 25 26funding alternatives 27 28o Greater portfolio
diversification - 8 - COMPLAINT FOR VIOLATIONS OF THE FEDERAL
SECURITIES LAWS |
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Case 2:21-cv-01782
Document 1 Filed 02/25/21 Page 9 of 19 Page ID #:9 1o Enhanced
shareholder liquidity and investor base diversity 2 Management,
Governance and Corporate Headquarters 3 4 Upon completion of the
merger, Ready Capital’s Chairman and Chief 5 Executive Officer
Thomas Capasse will lead the company and Ready Capital executives
Jack Ross, Thomas Buttacavoli, Andrew Ahlborn and 8 Gary Taylor
will remain in their current roles. The combined company 9 will be
headquartered in New York, New York.The Board of the combined
company is expected to have eight directors, consisting of 12 Ready
Capital’s existing seven directors and one independent director 13
14from Anworth’s current Board. 15 The Proxy Statement Contains
Material Misstatements or Omissions 21.The Proxy Statement was
furnished to Company stockholder to solicit 18 their votes in favor
of the Proposed Transaction.The Proxy Statement, however, 19
misrepresents and/or omits material information that is necessary
for the Company’s stockholders to make an informed decision
concerning whether to vote in favor of that 22 deal. As such, the
Proxy Statement has been issued in violation of Sections 14(a) and
23 20(a) of the Exchange Act. The Individual Defendants, moreover,
were obligated to carefully review the Proxy Statement before it
was filed with the SEC and disseminated 26 27 28 - 9 - COMPLAINT
FOR VIOLATIONS OF THE FEDERAL SECURITIES LAWS |
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Case 2:21-cv-01782
Document 1 Filed 02/25/21 Page 10 of 19 Page ID #:10 to the
Company’s stockholders to ensure that it did not contain any
material misrepresentations or omissions. They failed to do so. 3
As set forth herein, the Proxy Statement fails to provide Company 4
stockholders with material information or provides them with
materially misleading information concerning: (a) the financial
projections for Anworth and Ready Capital 7 and the data and inputs
underlying the financial valuation analyses that support the 8
fairness opinion provided by the Company’s financial advisor,
Credit Suisse; (b) Credit Suisse’s potential conflicts of interest;
and (c) the background of the Proposed 11 Transaction. 12 Material
Omissions Concerning the Financial Projections for Anworth and
Ready Capital and Credit Suisse’s Financial Analyses 15 The Proxy
Statement omits material information regarding the financial 16
projections for Anworth and Ready Capital. This omission is
critical because Credit Suisse relied on these projections in
performing the analyses underlying its fairness 19 opinion. See
Proxy Statement at 100-101. Specifically, the Proxy Statement fails
to 20 disclose: (a) the distributed cash flows that Anworth was
forecasted to generate during the last quarter of Anworth’s fiscal
year ending December 31, 2020 through the full 23 fiscal year
ending December 31, 2023 and (b) the distributed cash flows that
Ready 24 Capital was forecasted to generate during the last quarter
of Ready Capital’s fiscal year ending December 31, 2020 through the
full fiscal year ending December 31, 2025. 27 28 - 10 - COMPLAINT
FOR VIOLATIONS OF THE FEDERAL SECURITIES LAWS |
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Case 2:21-cv-01782
Document 1 Filed 02/25/21 Page 11 of 19 Page ID #:11 24.The Proxy
Statement omits material information regarding Credit Suisse’s
financial analyses. 3 25.The Proxy Statement describes Credit
Suisse’s fairness opinion and the 4 various valuation analyses it
performed in support of its opinion.However, the description of
Credit Suisse’s fairness opinion and analyses fails to include key
inputs 7 and assumptions underlying these analyses.Without this
information, as described 8 below, Anworth’s public stockholders
are unable to fully understand these analyses and, thus, are unable
to determine what weight, if any, to place on Credit Suisse’s 11
fairness opinion in determining whether to vote in favor of the
Proposed Transaction. 12 26.With respect to Credit Suisse’s
Dividend Discount Analysis of Anworth, the Proxy Statement fails to
disclose: (s) the distributed cash flows that Anworth was 15
forecasted to generate during the last quarter of Anworth’s fiscal
year ending December 16 31, 2020 through the full fiscal year
ending December 31, 2023; (b) Credit Suisse’s basis for selecting
the range of tangible book value per share (“TBVPS”) multiples of
19 0.70x to 0.90x; and (c) quantification of the inputs and
assumptions underlying the 20 discount rates ranging from 9.0% to
14.0%. 27.With respect to Credit Suisse’s Dividend Discount
Analysis of Ready 23 Capital, the Proxy Statement fails to
disclose: (a) the distributed cash flows that Ready 24 Capital was
forecasted to generate during the last quarter of Ready Capital’s
fiscal year ending December 31, 2020 through the full fiscal year
ending December 31, 2025; (b) 27 Credit Suisse’s basis for
selecting the range of TBVPS multiples of 0.80x to 1.00x; and 28 -
11 - COMPLAINT FOR VIOLATIONS OF THE FEDERAL SECURITIES
LAWS |
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Case 2:21-cv-01782
Document 1 Filed 02/25/21 Page 12 of 19 Page ID #:12 1(c)
quantification of the inputs and assumptions underlying the
discount rates ranging 2from 9.0% to 13.0%. 3 The omission of this
material information renders the statements in the 4 “Certain Ready
Capital Unaudited Prospective Financial Information,” “Certain
Anworth Unaudited Prospective Financial Information” and “Opinion
of Anworth’s 7 Financial Advisor” sections of the Proxy Statement
false and/or materially misleading 8 in contravention of the
Exchange Act. Material Omissions Concerning Credit Suisse’s
Potential Conflicts of Interest 11 The Proxy Statement fails to
disclose material information concerning the 12 potential conflicts
of interest faced by Credit Suisse. Specifically, the Proxy
Statement fails to disclose any past services performed by Credit
Suisse for the Company or its 15 affiliates. The Proxy Statement
also fails to disclose the fees received by Credit Suisse 16 for
providing any such services. 30.Full disclosure of investment
banker compensation and all potential 19 conflicts is required due
to the central role played by investment banks in the 20
evaluation, exploration, selection, and implementation of strategic
alternatives. The omission of this material information renders the
statements in the “Opinion of 23 Anworth’s Financial Advisor”
section of the Proxy Statement false and/or materially 24
misleading in contravention of the Exchange Act. Material Omissions
Concerning the Background of the Proposed Transaction 27 28 - 12 -
COMPLAINT FOR VIOLATIONS OF THE FEDERAL SECURITIES LAWS |
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Case 2:21-cv-01782
Document 1 Filed 02/25/21 Page 13 of 19 Page ID #:13 31.The Proxy
Statement fails to disclose material information concerning the
background of the Proposed Transaction, including (a) the financial
terms of any bids 3 or indications of interest received by the
Company from a party identified in the Proxy 4 Statement as
“Company A”; (b) the financial terms of the verbal proposals the
Company received between May and August 2020; and (c) a fair
summary of the third 7 party valuation reports and sum-of-the-parts
analyses to validate Anworth’s and Ready 8 Capital’s respective
book value, discussed by Credit Suisse and Ready Capital’s
financial advisor Wells Fargo Securities, LLC. 11 The Proxy
Statement also fails to disclose the terms of the confidentiality
12 agreements the Company entered into with potential bidders.
Specifically, the Proxy Statement fails to disclose whether any of
the confidentiality agreements entered into 15 with potential
bidders during the sale process included standstill provisions or
“don’t-16 ask, don’t-waive” (“DADW”) standstill provisions that are
still in effect and presently precluding any potential counterparty
from submitting a topping bid for Anworth. 19 The failure to
disclose the existence of DADW provisions creates the false 20
impression that a potential bidder who entered into a
confidentiality agreement could make a superior proposal for
Anworth.If the potential acquirer’s confidentiality 23 agreement
contains a DADW provision, then that potential bidder can only make
a 24 superior proposal by (a) breaching the confidentiality
agreement—since in order to make the superior proposal, it would
have to ask for a waiver, either directly or 27 28 - 13 - COMPLAINT
FOR VIOLATIONS OF THE FEDERAL SECURITIES LAWS |
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Case 2:21-cv-01782
Document 1 Filed 02/25/21 Page 14 of 19 Page ID #:14 indirectly; or
by (b) being released from the agreement, which if action has been
done, is omitted from the Proxy Statement. 3 A reasonable Anworth
stockholder would deem the fact that a likely 4 topping bidder may
be precluded from making a topping bid for the Company to
significantly alter the total mix of information.The omission of
this material 7 information renders the statements in the
“Background of the Merger” section of the 8 Proxy Statement false
and/or materially misleading in contravention of the Exchange Act.
11 The Individual Defendants were aware of their duty to disclose
the above-12 referenced omitted information and acted negligently
(if not deliberately) in failing to include this information in the
Proxy Statement. Absent disclosure of the foregoing 15 material
information prior to the stockholder vote on the Proposed
Transaction, 16 Plaintiff and the other stockholders of Anworth
will be unable to make an informed voting decision in connection
with the Proposed Transaction and are thus threatened 19 with
irreparable harm warranting the injunctive relief sought herein. 20
CLAIMS FOR RELIEF COUNT I 23 Claims Against All Defendants for
Violations of Section 14(a) of the 24 Exchange Act and Rule 14a-9
Promulgated Thereunder 36.Plaintiff repeats all previous
allegations as if set forth in full. 27 28 - 14 - COMPLAINT FOR
VIOLATIONS OF THE FEDERAL SECURITIES LAWS |
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Case 2:21-cv-01782
Document 1 Filed 02/25/21 Page 15 of 19 Page ID #:15 37.During the
relevant period, defendants disseminated the false and misleading
Proxy Statement specified above, which failed to disclose material
facts 3 necessary to make the statements, in light of the
circumstances under which they were 4 made, not misleading in
violation of Section 14(a) of the Exchange Act and SEC Rule 14a-9
promulgated thereunder. 7 By virtue of their positions within the
Company, the defendants were 8 aware of this information and of
their duty to disclose this information in the Proxy Statement. The
Proxy Statement was prepared, reviewed, and/or disseminated by the
11 defendants.It misrepresented and/or omitted material facts,
including material 12 information about Anworth’s and Ready
Capital’s projections, the data and inputs underlying the financial
valuation analyses that support the fairness opinion provided 15 by
Credit Suisse, Credit Suisse’s potential conflicts of interest and
the background of 16 the Proposed Transaction. The defendants were
at least negligent in filing the Proxy Statement with these
materially false and misleading statements. 19 The omissions and
false and misleading statements in the Proxy Statement 20 are
material in that a reasonable stockholder would consider them
important in deciding how to vote on the Proposed Transaction. 23
By reason of the foregoing, the defendants have violated Section
14(a) of 24 the Exchange Act and SEC Rule 14a-9(a) promulgated
thereunder. 41.Because of the false and misleading statements in
the Proxy Statement, 27 Plaintiff is threatened with irreparable
harm, rendering money damages inadequate. 28 - 15 - COMPLAINT FOR
VIOLATIONS OF THE FEDERAL SECURITIES LAWS |
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Case 2:21-cv-01782
Document 1 Filed 02/25/21 Page 16 of 19 Page ID #:16 Therefore,
injunctive relief is appropriate to ensure defendants’ misconduct
is corrected. 3 COUNT II 4 Claims Against the Individual Defendants
for 5Violations of Section 20(a) of the Exchange Act 6 42.Plaintiff
repeats all previous allegations as if set forth in full. 7 43.The
Individual Defendants acted as controlling persons of Anworth
within the meaning of Section 20(a) of the Exchange Act as alleged
herein. By virtue of their 10 positions as officers and/or
directors of Anworth, and participation in and/or awareness 11 of
the Company’s operations and/or intimate knowledge of the false
statements contained in the Proxy Statement filed with the SEC,
they had the power to influence 14 and control and did influence
and control, directly or indirectly, the decision-making 15 of the
Company, including the content and dissemination of the various
statements which Plaintiff contends are false and misleading. 18
44.Each of the Individual Defendants was provided with or had
unlimited 19 access to copies of the Proxy Statement and other
statements alleged by Plaintiff to be misleading prior to and/or
shortly after these statements were issued and had the ability 22
to prevent the issuance of the statements or cause the statements
to be corrected. 23 45.In particular, each of the Individual
Defendants had direct and supervisory involvement in the day-to-day
operations of the Company, and, therefore, is presumed 26 to have
had the power to control or influence the particular transactions
giving rise to 27 28 - 16 - COMPLAINT FOR VIOLATIONS OF THE FEDERAL
SECURITIES LAWS |
 |
Case 2:21-cv-01782
Document 1 Filed 02/25/21 Page 17 of 19 Page ID #:17 the securities
violations as alleged herein, and exercised the same.The Proxy
Statement at issue contains the unanimous recommendation of each of
the Individual 3 Defendants to approve the Proposed Transaction.
They were, thus, directly involved 4 in the making of the Proxy
Statement. 46.In addition, as the Proxy Statement sets forth at
length, and as described 7 herein, the Individual Defendants were
each involved in negotiating, reviewing, and 8 approving the
Proposed Transaction. The Proxy Statement purports to describe the
various issues and information that they reviewed and
considered—descriptions the 11 Company directors had input into. 12
47.By virtue of the foregoing, the Individual Defendants have
violated Section 20(a) of the Exchange Act. 15 48.As set forth
above, the Individual Defendants had the ability to exercise 16
control over and did control a person or persons who have each
violated Section 14(a) and SEC Rule 14a-9, promulgated thereunder,
by their acts and omissions as alleged 19 herein. By virtue of
their positions as controlling persons, these defendants are liable
20 pursuant to Section 20(a) of the Exchange Act. As a direct and
proximate result of defendants’ conduct, Anworth’s stockholders
will be irreparably harmed. 23 PRAYER FOR RELIEF 24 WHEREFORE,
Plaintiff demands judgment and preliminary and permanent relief,
including injunctive relief, in his favor on behalf of Anworth, and
against 27 defendants, as follows: 28 - 17 - COMPLAINT FOR
VIOLATIONS OF THE FEDERAL SECURITIES LAWS |
 |
Case 2:21-cv-01782
Document 1 Filed 02/25/21 Page 18 of 19 Page ID #:18
A.Preliminarily and permanently enjoining defendants and all
persons acting in concert with them from proceeding with,
consummating, or closing the Proposed 3 Transaction and any vote on
the Proposed Transaction, unless and until defendants 4 disclose
and disseminate the material information identified above to
Anworth stockholders; 7 B.In the event defendants consummate the
Proposed Transaction, rescinding 8 9it and setting it aside or
awarding rescissory damages to Plaintiff; 10C.Declaring that
defendants violated Sections 14(a) and/or 20(a) of the 11 Exchange
Act, as well as SEC Rule 14a-9 promulgated thereunder; 12
D.Awarding Plaintiff the costs of this action, including reasonable
allowance for Plaintiff’s attorneys’ and experts’ fees; and 15
E.Granting such other and further relief as this Court may deem
just and 16 proper. JURY DEMAND 19 Plaintiff demands a trial by
jury on all claims and issues so triable. 20 21 22 23 24 25 26 27
28 - 18 - COMPLAINT FOR VIOLATIONS OF THE FEDERAL SECURITIES
LAWS |
 |
Case 2:21-cv-01782
Document 1 Filed 02/25/21 Page 19 of 19 Page ID #:19 1Dated:
February 25, 2021 2 3 4OF COUNSEL: 5 LONG LAW, LLC Brian D. Long
3828 Kennett Pike, Suite 208 Wilmington, DE 19807 8Telephone:
302/729-9100 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
WEISSLAW LLP Joel E. Elkins By: Joel E. Elkins 9100 Wilshire Blvd.
#725 E. Beverly Hills, CA 90210 Telephone: 310/208-2800
Facsimile:310/209-2348 -and-Richard A. Acocelli 1500 Broadway, 16th
Floor New York, NY 10036 Telephone: 212/682-3025 Facsimile:
212/682-3010 Attorneys for Plaintiff 25 26 27 28 - 19 - COMPLAINT
FOR VIOLATIONS OF THE FEDERAL SECURITIES LAWS |
Exhibit 99.10
 |
IN THE UNITED
STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
TERRANCE BRODT, Plaintiff, v. ANWORTH MORTGAGE ASSET CORPORATION,
JOSEPH E. MCADAMS, JOE E. DAVIS, ROBERT C. DAVIS, MARK MARON, LLYOD
MCADAMS, DOMINIQUE MIELLE, READY CAPITAL CORPORATION, and RC MERGER
SUBSIDIARY, LLC, Defendants. : :Case No. : :JURY TRIAL DEMANDED :
:COMPLAINT FOR VIOLATION OF THE :SECURITIES EXCHANGE ACT OF 1934 :
: : : : : : : Plaintiff, by his undersigned attorneys, for this
complaint against defendants, alleges the following upon personal
knowledge with respect to himself, and upon information and belief
based upon the investigation of counsel as to all other allegations
herein: NATURE OF ACTION On December 7, 2020, Anworth Mortgage
Asset Corporation (“Anworth” or the “Company”) entered into an
agreement (the “Merger Agreement”) to be acquired by Ready Capital
Corporation (“Parent”) and RC Merger Subsidiary, LLC (“Merger Sub”)
(collectively, “Ready Capital”) (the “Proposed Merger”). Under the
terms of the Merger Agreement, Anworth’s stockholders will receive
0.1688 shares of Parent common stock and $0.61 in cash per share.
On February 9, 2021, defendants filed a Form 424B3 (the “424B3”)
with the U.S. Securities and Exchange Commission (the “SEC”). As
alleged herein, the 424B3 fails to disclose material information
regarding the Proposed Merger, and defendants violated Sections
14(a) and 20(a) of the Securities Exchange |
 |
Act of 1934 (the
“Exchange Act”). JURISDICTION AND VENUE This Court has jurisdiction
over the claims asserted herein pursuant to Section 27 of the
Exchange Act because the claims asserted herein arise under
Sections 14(a) and 20(a) of the Exchange Act and Rule 14a-9. This
Court has jurisdiction over defendants because each defendant is
either a corporation that conducts business in and maintains
operations within this District, or is an individual with
sufficient minimum contacts with this District so as to make the
exercise of jurisdiction by this Court permissible under
traditional notions of fair play and substantial justice. Venue is
proper under 28 U.S.C. § 1391(b) because a portion of the
transactions and wrongs complained of herein occurred in this
District. THE PARTIES Plaintiff is and has been continuously
throughout all relevant times the owner of Anworth common stock.
Defendant Anworth is a Maryland corporation. Anworth’s common stock
is traded on the NYSE under the ticker symbol “ANH.” Defendant
Joseph E. McAdams is Chief Executive Officer, President, and a
member of the Board of Directors of Anworth (the “Board”).
Defendant Joe E. Davis is a member of the Board. Defendant Robert
C. Davis is a member of the Board. Defendant Mark S. Maron is a
member of the Board. Defendant Llyod McAdams is a member of the
Board. Defendant Dominique Mielle is a member of the
Board. |
 |
Defendants
identified in ¶¶ 10-15 are referred to herein as the “Individual
Defendants.” Defendant Parent is a Maryland corporation. Defendant
Merger Sub is a Delaware limited liability company. SUBSTANTIVE
ALLEGATIONS Anworth is a specialty finance mortgage company. On
December 6, 2020, Anworth entered into the Merger Agreement, under
which Anworth’s stockholders will receive 0.1688 shares of Parent
common stock and $0.61 in cash per share. The press release
announcing the Proposed Merger provides as follows: Ready Capital
Corporation (NYSE:RC) (“Ready Capital”), a multi-strategy real
estate finance company that originates, acquires, finances and
services small-to medium-sized balance commercial loans, and
Anworth Mortgage Asset Corporation (NYSE:ANH) (“Anworth”), a
specialty finance REIT that focuses primarily on investments in
residential mortgage-backed securities, announced today that they
have entered into a definitive merger agreement pursuant to which
Ready Capital will combine with Anworth. The combined company is
expected to have a pro forma equity capital base in excess of $1
billion. The combination is expected to enhance shareholder
liquidity and provide for increased operating leverage across the
larger equity base. Under the terms of the merger agreement, each
share of Anworth common stock will be converted into 0.1688 shares
of Ready Capital common stock and $0.61 of cash consideration.
Based on Ready Capital’s closing stock price on Friday, December 4,
2020, the implied offer price is $2.94 per share. Upon the closing
of the merger, Ready Capital stockholders are expected to own
approximately 76% of the combined company’s stock, while Anworth
stockholders are expected to own approximately 24% of the combined
company’s stock. Ready Capital will also assume Anworth’s three
outstanding series of preferred stock. In connection with the
merger, Waterfall Asset Management, LLC (“Waterfall”), Ready
Capital’s external manager, has agreed to reduce the base
management fee it charges Ready Capital by an aggregate of $4
million over the four quarters immediately following the closing of
the transaction. |
 |
Based on the
closing prices of Ready Capital’s common stock on December 4, 2020,
the market capitalization of the combined company would be
approximately $984 million. The combined company will operate under
the name Ready Capital and its shares are expected to continue
trading on the New York Stock Exchange under the existing ticker
symbol “RC”. [] Management, Governance and Corporate Headquarters
Upon completion of the merger, Ready Capital’s Chairman and Chief
Executive Officer Thomas Capasse will lead the company and Ready
Capital executives Jack Ross, Thomas Buttacavoli, Andrew Ahlborn
and Gary Taylor will remain in their current roles. The combined
company will be headquartered in New York, New York. The Board of
the combined company is expected to have eight directors,
consisting of Ready Capital’s existing seven directors and one
independent director from Anworth’s current Board. Timing and
Approvals The transaction has been unanimously approved by each of
the Boards of Directors of Ready Capital and Anworth. The
transaction is expected to close by the end of the first quarter of
2021, subject to the respective approvals by the stockholders of
Anworth and Ready Capital and other customary closing conditions.
Advisors Wells Fargo Securities is acting as exclusive financial
advisor and Alston & Bird LLP is acting as legal advisor to
Ready Capital. Credit Suisse is acting as exclusive financial
advisor and Greenberg Traurig LLP is acting as legal advisor to the
Board of Directors of Anworth. On February 9, 2021, defendants
filed the 424B3, which fails to disclose material information
regarding the Proposed Merger. Financial Projections The 424B3
fails to disclose material information regarding Anworth’s and
Ready Capital’s financial projections. The disclosure of projected
financial information is material because it provides stockholders
with a basis to project the future financial performance of a
company, and allows stockholders to better understand the financial
analyses performed by a company’s financial advisor in support of
its fairness opinion. |
 |
The 424B3 fails to
disclose the following regarding Anworth’s financial projections:
(i) the line items used to calculate Core Earnings Per Common
Share; and (ii) projected distributed cash flows. The 424B3 fails
to disclose the following regarding Ready Capital’s financial
projections: (i) the line items used to calculate Core Earnings Per
Share; and (ii) projected distributed cash flows. Background of the
Proposed Merger and Potential Conflicts of Interest The 424B3 fails
to disclose the terms of the confidentiality agreements Anworth
signed during the time leading up to the Proposed Merger, including
whether any include don’t ask, don’t waive provisions. The 424B3
fails to disclose the terms and values of all proposals made during
the time leading up to the Proposed Merger. The 424B3 fails to
disclose whether Credit Suisse has provided prior services for
Anworth or its affiliates, and if so, the timing and nature of the
services and the fees received by Credit Suisse for the services.
If disclosed, the omitted information would significantly alter the
total mix of information available to Anworth’s stockholders. COUNT
I Claim Against the Individual Defendants and Anworth for Violation
of Section 14(a) of the Exchange Act and Rule 14a-9 Plaintiff
repeats and realleges the above-referenced allegations as if fully
set forth herein. The Individual Defendants disseminated the false
and misleading 424B3, which contained statements that, in violation
of Section 14(a) of the Exchange Act and Rule 14a-9, in |
 |
light of the
circumstances under which they were made, failed to state material
facts necessary to make the statements therein not materially false
or misleading. Anworth is liable as the issuer of these statements.
The 424B3 was prepared, reviewed, and/or disseminated by the
Individual Defendants. By virtue of their positions within the
Company, the Individual Defendants were aware of this information
and their duty to disclose this information in the 424B3. The
Individual Defendants were at least negligent in filing the 424B3
with these materially false and misleading statements. The
omissions and false and misleading statements in the 424B3 are
material in that a reasonable stockholder will consider them
important in deciding how to vote on the Proposed Merger. A
reasonable investor will view a full and accurate disclosure as
significantly altering the total mix of information made available
in the 424B3 and in other information reasonably available to
stockholders. The 424B3 is an essential link in causing plaintiff
to approve the Proposed Merger. Accordingly, defendants violated
Section 14(a) of the Exchange Act and Rule 14a-9. Plaintiff is
threatened with irreparable harm. COUNT II Claim Against the
Individual Defendants and Ready Capital for Violation of Section
20(a) of the Exchange Act Plaintiff repeats and realleges the
above-referenced allegations as if fully set forth
herein. |
 |
The Individual
Defendants and Ready Capital acted as controlling persons of
Anworth within the meaning of Section 20(a) of the Exchange Act as
alleged herein. Due to their positions as officers and/or directors
of Anworth and participation in and/or awareness of the Company’s
operations and/or intimate knowledge of the false statements
contained in the 424B3, they had the power to influence and control
and did influence and control, directly or indirectly, the decision
making of the Company, including the content and dissemination of
the various statements that plaintiff contends are false and
misleading. Each of the Individual Defendants and Ready Capital was
provided with or had unlimited access to copies of the 424B3
alleged by plaintiff to be misleading prior to and/or shortly after
these statements were issued and had the ability to prevent the
issuance of the statements or cause them to be corrected. Each of
the Individual Defendants had direct and supervisory involvement in
the day-to-day operations of the Company, and, therefore, is
presumed to have had the power to control and influence the
particular transactions giving rise to the violations as alleged
herein, and exercised the same. The 424B3 contains the unanimous
recommendation of the Individual Defendants to approve the Proposed
Merger. They were thus directly involved in the making of the
424B3. Ready Capital also had supervisory control over the
composition of the 424B3 and the information disclosed therein, as
well as the information that was omitted and/or misrepresented in
the 424B3. Accordingly, the Individual Defendants and Ready Capital
violated Section 20(a) of the Exchange Act. |
 |
The Individual
Defendants and Ready Capital had the ability to exercise control
over and did control a person or persons who have each violated
Section 14(a) of the Exchange Act and Rule 14a-9, by their acts and
omissions as alleged herein. These defendants are liable pursuant
to Section 20(a) of the Exchange Act. Plaintiff is threatened with
irreparable harm. PRAYER FOR RELIEF WHEREFORE, plaintiff prays for
judgment and relief against defendants as follows: Preliminarily
and permanently enjoining defendants and all persons acting in
concert with them from consummating the Proposed Merger; In the
event defendants consummate the Proposed Merger, rescinding it and
setting it aside or awarding rescissory damages; Directing the
Individual Defendants to disseminate a 424B3 that does not contain
any untrue statements of material fact and that states all material
facts required in it or necessary to make the statements contained
therein not misleading; Declaring that defendants violated Sections
14(a) and/or 20(a) of the Exchange Act, as well as Rule 14a-9
promulgated thereunder; Awarding plaintiff the costs of this
action, including reasonable allowance for plaintiff’s attorneys’
and experts’ fees; and Granting such other and further relief as
this Court may deem just and proper. JURY DEMAND Plaintiff requests
a trial by jury on all issues so triable. |
 |
Dated: March 1,
2021 By: GRABAR LAW OFFICE Joshua H. Grabar (#82525) One Liberty
Place 1650 Market Street, Suite 3600 Philadelphia, PA 19103
267-507-6085 jgrabar@grabarlaw.com Counsel for
Plaintiff |
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