-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CR/qZUGprIN7pRPMYbe5Fb3JVCUANroQmiA3iOiNmSH89hIW/cEiwaq7LcVKfnPl 0bcLAmSws+qB25vgMSnT1g== 0001021408-02-008133.txt : 20020610 0001021408-02-008133.hdr.sgml : 20020610 20020607164307 ACCESSION NUMBER: 0001021408-02-008133 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20020607 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ANWORTH MORTGAGE ASSET CORP CENTRAL INDEX KEY: 0001047884 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 522059785 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-85036 FILM NUMBER: 02673936 BUSINESS ADDRESS: STREET 1: 1299 OCEAN AVENUE STREET 2: SUITE 210 CITY: SANTA MONICA STATE: CA ZIP: 90401 BUSINESS PHONE: 3103931428 MAIL ADDRESS: STREET 1: 1299 OCEAN AVENUE STREET 2: SUITE 210 CITY: SANTA MONICA STATE: CA ZIP: 90401 S-3/A 1 ds3a.txt AMENDMENT NO.3 TO S-3 As filed with the Securities and Exchange Commission on June 7, 2002 Registration No. 333-85036 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------- AMENDMENT NO. 3 TO FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------- ANWORTH MORTGAGE ASSET CORPORATION (Exact Name of Registrant as Specified in Its Charter) Maryland 52-2059785 (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification Number) 1299 Ocean Avenue, Suite 200 Santa Monica, California 90401 (310) 394-0115 (Address, Including Zip Code, and Telephone Number, Including Area Code of Registrant's Principal Executive Offices) Lloyd McAdams Chairman and Chief Executive Officer 1299 Ocean Avenue, Suite 200 Santa Monica, California 90401 (310) 394-0115 (Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service) Copies to: Mark J. Kelson Allen Matkins Leck Gamble & Mallory LLP 1901 Avenue of the Stars, Suite 1800 Los Angeles, California 90067 (310) 788-2400 Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective. If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. [X] If the registrant elects to deliver its latest annual report to security holders or a complete and legible facsimile thereof, pursuant to Item 11(a)(1) of this Form, check the following box. [_] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration number of the earlier effective registration statement for the same offering. [_] If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration number of the earlier effective registration statement for the same offering. [_] If delivery of the prospectus is expected to be made pursuant to Rule 434 of the Securities Act, please check the following box. [_] We hereby amend this Registration Statement on such date or dates as may be necessary to delay its effective date until we file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 14. Other Expenses of Issuance and Distribution. The following table sets forth our costs and expenses in connection with the registration of our securities being registered. All amounts are estimates except the Securities and Exchange Commission registration fee and the National Association of Securities Dealers fee. Description Amount ------------- ------------- Securities and Exchange Commission Registration Fee $ 18,400 American Stock Exchange Fees 22,500 Printing and Engraving 200,000 Legal Fees and Expenses 300,000 Accountants' Fees and Expenses 100,000 Miscellaneous 9,100 ------------- Total $ 650,000 ============= Item 15. Indemnification of Directors and Officers. Section 2-418 of the Maryland General Corporation Law permits us to indemnify, subject to the exceptions set forth therein, any director or officer of our company who is made a party to any proceeding by reason of service in that capacity to the company, or who is or was, serving as such with respect to another entity at the request of our company. The Maryland General Corporation Law also provides that we may purchase insurance on behalf of our directors, officers, employees or agents. Our charter and bylaws require us to provide for indemnification of our officers and directors substantially identical in scope to that permitted under Section 2-418 of the Maryland General Corporation Law. Our bylaws also provide that we must pay the expenses of our officers and directors (acting in their capacity as such) incurred in defending any action, suit or proceeding, whether civil, criminal, administrative or investigative, as they are incurred and in advance of the final disposition of the action, suit or proceeding, upon receipt of a written undertaking by or on behalf of the director or officer to repay all amounts so advanced if it is ultimately determined by a court of appropriate jurisdiction that the officer or director is not entitled to be indemnified by us. Our charter limits the liability of our directors and officers for money damages to us and our stockholders to the fullest extent permitted from time to time by Maryland law. Maryland law presently permits the liability of directors and officers to a corporation or its stockholders for money damages to be limited, except: . to the extent that it is proved that the director or officer actually received an improper benefit or profit in money, property or services; or . if a judgment or other final adjudication adverse to the director or officer is entered in a proceeding based on a finding that the director's or officer's action, or failure to act, was the result of active and deliberate dishonesty and was material to the cause of action adjudicated in the proceeding. This provision does not limit our ability or our stockholders' ability to obtain other relief, such as an injunction or rescission. II-1 Item 16. Exhibits. Exhibit Number Exhibit 1.1* Underwriting Agreement. 4.1 Charter of the Company(1). 4.2 Specimen Common Stock Certificate(1). 4.3 Bylaws of the Company(1). 4.4* Specimen Preferred Stock Certificate. 5.1 Opinion of Piper Rudnick LLP as to the legality of the shares being registered. 8.1* Opinion of Allen Matkins Leck Gamble & Mallory LLP as to selected federal income tax matters. 12.1* Statements re: Computation of Ratios. 23.1* Consent of PricewaterhouseCoopers LLP. 23.2 Consent of Piper Rudnick LLP (contained within the opinion filed as Exhibit 5.1). 23.3* Consent of Allen Matkins Leck Gamble & Mallory LLP (contained within the opinion filed as Exhibit 8.1). 24.1* Powers of Attorney. - ----------- * Previously filed. (1) Incorporated by reference from the Company's Registration Statement on Form S-11, Registration No. 333-38641, which became effective under the Securities Act of 1933, as amended, on March 12, 1998. Item 17. Undertakings. A. The Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; notwithstanding the foregoing, any increase or decrease in the of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement; II-2 (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. B. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act, and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. D. The undersigned Registrant hereby undertakes that: (1) For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective (2) For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. II-3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, Anworth Mortgage Asset Corporation certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Santa Monica, State of California, on the 7th day of June, 2002. ANWORTH MORTGAGE ASSET CORPORATION By: /s/ Joseph Lloyd McAdams ------------------------------------- Joseph Lloyd McAdams President and Chief Executive Officer POWER OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated below on the 7th day of June, 2002.
Signature Title --------- ----- /s/ Joseph Lloyd McAdams President, Chief Executive Officer and Chairman of the - ---------------------------------- Board of Directors (Principal Executive Officer) Joseph Lloyd McAdams * Chief Financial Officer (Principal Financial and - ---------------------------------- Accounting Officer) Pamela J. Watson * Vice President and Director - ---------------------------------- Joseph E. McAdams * Director - ---------------------------------- Joe E. Davis * Director - ---------------------------------- Charles H. Black * Director - ---------------------------------- Charles F. Smith
*By: /s/ Joseph Lloyd McAdams ------------------------------ Joseph Lloyd McAdams Attorney-In-Fact II-4 EXHIBIT INDEX
Exhibit Number Exhibit - -------------- --------------------------------------------------------------------------------------------- 1.1* Underwriting Agreement. 4.1 Charter of the Company(1). 4.2 Specimen Common Stock Certificate(1). 4.3 Bylaws of the Company(1). 4.4* Specimen Preferred Stock Certificate. 5.1 Opinion of Piper Rudnick LLP as to the legality of the shares being registered. 8.1* Opinion of Allen Matkins Leck Gamble & Mallory LLP as to selected federal income tax matters. 12.1* Statements re: Computation of Ratios. 23.1* Consent of PricewaterhouseCoopers LLP. 23.2 Consent of Piper Rudnick LLP (contained within the opinion filed as Exhibit 5.1). 23.3* Consent of Allen Matkins Leck Gamble & Mallory LLP (contained within the opinion filed as Exhibit 8.1). 24.1* Powers of Attorney.
- -------------- * Previously filed. (1) Incorporated by reference from the Company's Registration Statement on Form S-11, Registration No. 333-38641, which became effective under the Securities Act of 1933, as amended, on March 12, 1998. EX-5.1 3 dex51.txt OPINION OF PIPER RUDNICK LLP EXHIBIT 5.1 OPINION OF PIPER RUDNICK LLP 6225 Smith Avenue Baltimore, Maryland 21209-3600 main 410.580.3000 fax 410.580.3001 June 6, 2002 Anworth Mortgage Asset Corporation 1299 Ocean Avenue Suite 200 Santa Monica, California 90401 Re: Registration Statement on Form S-3 Ladies and Gentlemen: We have acted as special Maryland counsel to Anworth Mortgage Asset Corporation, a Maryland corporation (the "Company"), in connection with the registration under the Securities Act of 1933, as amended (the "Securities Act"), pursuant to a Registration Statement (the "Registration Statement") on Form S-3 (File No. 333-85036) filed with the Securities and Exchange Commission (the "Commission"), including the preliminary prospectus included therein (the "Prospectus"), for offering and sale by the Company from time to time of up to $200,000,000 aggregate initial offering price of Securities (as defined below). This opinion is being provided at your request in connection with the filing of the Registration Statement. As used herein, the term "Securities" includes (i) shares of common stock of the Company, par value $0.01 per share ("Common Shares"), and (ii) whole or fractional shares of preferred stock of the Company, par value $0.01 per share ("Preferred Shares"), including Preferred Shares that are convertible into Common Shares. The Registration Statement provides that the Securities may be offered separately or together, in separate series, in amounts, at prices, and on terms to be set forth in one or more supplements to the Prospectus contained in the Registration Statement (each, a "Prospectus Supplement"). The Registration Statement includes a Prospectus Supplement (the "Offering Prospectus Supplement") relating to the offer and sale of up to 6,900,000 Common Shares (the "Offered Shares"). In rendering the opinion expressed herein, we have reviewed originals or copies, certified or otherwise identified to our satisfaction, of the following documents: (a) The Registration Statement, including the Prospectus and the Offering Prospectus Supplement, in the form filed with the Commission. (b) The charter of the Company (the "Charter"), as in effect on the date hereof, certified by the Department of Assessments and Taxation of the State of Maryland (the "MSDAT"), and bylaws of the Company (the "Bylaws"), as amended and restated and in effect on the date hereof, of the Company. (c) Certified resolutions of the Board of Directors of the Company relating to the authorization of the filing of the Registration Statement and of the Securities and the Offered Shares. (d) A short-form good standing certificate for the Company, dated a recent date, issued by the MSDAT. (e) A Certificate of Secretary of the Company, dated the date hereof (the "Certificate"), as to certain factual matters. (f) Such other documents as we have considered necessary to the rendering of the opinions expressed below. In our examination of the aforesaid documents, we have assumed, without independent investigation, the genuineness of all signatures, the legal capacity of all individuals who have executed any of the aforesaid documents, the authenticity of all documents submitted to us as originals, the conformity with originals of all documents submitted to us as copies (and the authenticity of the originals of such copies), and the accuracy and completeness of all public records reviewed by us. In making our examination of documents executed by parties other than the Company (and for purposes of the documents referred to below, to be executed by parties other than the Company), we have assumed that such parties had the power, corporate or other, to enter into and perform all obligations thereunder, and we have also assumed the due authorization by all requisite action, corporate or other, and the valid execution and delivery by such parties of such documents and the validity, binding effect, and enforceability thereof with respect to such parties. As to any facts material to this opinion, we have relied solely upon the Certificate. With respect to Securities other than the Offered Shares, we further assume that: (a) The issuance, sale, amount, and terms of Securities to be offered and sold from time to time by the Company will be authorized and determined by proper action of the Company's Board of Directors (or where permitted, a committee of the Company's Board of Directors) in accordance with the Company's Charter and Bylaws and applicable law (each, a "Board Action") and will not result in a default under or breach of any agreement or instrument binding upon the Company, or any affiliates or subsidiaries of the Company and so as to comply with any requirement or restriction imposed by any court or governmental or regulatory body having jurisdiction over the Company. (b) Prior to the issuance of any Common Shares or Preferred Shares, there will exist, under the Company's Charter, the requisite number of authorized but unissued Common Shares or Preferred Shares, as the case may be, including the requisite number of Common Shares issuable upon conversion of any convertible Preferred Shares, and that all actions necessary to the creation of any such Preferred Shares, whether by amendment to the Company's Charter or by classification or reclassification of existing authorized but unissued shares of capital stock and the filing of Articles Supplementary, will have been taken. (c) Appropriate certificates representing Common Shares or Preferred Shares will be executed and delivered upon issuance and sale of any Common Shares or Preferred Shares, and will comply with the Company's Charter and Bylaws and applicable law. (d) The underwriting, subscription or purchase agreements for offerings of any Securities (each, an "Underwriting Agreement," and collectively, the "Underwriting Agreements") will constitute the legally valid and binding obligations of the parties enforceable in accordance with their terms and will conform to the description thereof set forth in the Prospectus or the applicable Prospectus Supplement. Based upon the foregoing and having regard for such legal considerations as we deem relevant, we are of the opinion and advise you that: (1) The Offered Shares have been duly authorized and, upon issuance and delivery of certificates for such Offered Shares against payment therefor as authorized by the Board of Directors and in accordance with the terms of the Registration Statement, the Prospectus and the Offering Prospectus Supplement, will be validly issued, fully paid and non-assessable. -2- (2) The Common Shares (including the Common Shares issued pursuant to the conversion of one or more series of Securities convertible into Common Shares but excluding the Offered Shares) will be duly authorized, validly issued, fully paid, and non-assessable upon (i) due authorization by Board Action of an issuance of the Common Shares (including the Common Shares issuable pursuant to the conversion of one or more series of Securities convertible into Common Shares) and (ii) issuance and delivery of certificates for such Common Shares against payment therefor in accordance with the terms and provisions of the applicable Board Action, the Registration Statement (as declared effective under the Securities Act), the Prospectus or the applicable Prospectus Supplement and, if applicable, an Underwriting Agreement. (3) The Preferred Shares (including any Preferred Shares issuable pursuant to the conversion of one or more series of Securities convertible into Preferred Shares) will be duly authorized, validly issued, fully paid, and non-assessable upon (i) due authorization by Board Action of an issuance of any Preferred Shares (including any Preferred Shares issuable pursuant to the conversion of one or more series of Securities convertible into Preferred Shares) and (ii) issuance and delivery of certificates for shares of such Preferred Shares against payment therefor in accordance with the terms and provisions of the applicable Board Action, the Registration Statement (as declared effective under the Securities Act), the Prospectus or the applicable Prospectus Supplement and, if applicable, an Underwriting Agreement. In addition to the qualifications set forth above, this opinion is subject to the qualification that we express no opinion as to the laws of any jurisdiction other than the State of Maryland. To the extent that any documents referred to herein are governed by the laws of a jurisdiction other than Maryland, we have assumed that the laws of such jurisdiction are the same as the laws of the State of Maryland. This opinion concerns only the effect of the laws (exclusive of the securities or "blue sky" laws and the principles of conflict of laws) of the State of Maryland as currently in effect. This opinion is limited to the matters set forth herein, and no other opinion should be inferred beyond the matters expressly stated. The foregoing opinion is rendered as of the date hereof. We assume no obligation to update such opinion to reflect any facts or circumstances which may hereafter come to our attention or changes in the law which may hereafter occur. We hereby consent to (i) the reference to this firm under the caption "Legal Matters" in the Prospectus and the Offering Prospectus Supplement forming a part of the Registration Statement and (ii) the filing of this opinion as an exhibit to the Registration Statement. Allen Matkins Leck Gamble & Mallory LLP is authorized to rely on this opinion as if it were addressed to them solely for the purpose of rendering their opinion to be filed as Exhibit 8.1 to the Registration Statement. This opinion is furnished to you for your use in connection with the Registration Statement. Very truly yours, PIPER RUDNICK LLP -3- -----END PRIVACY-ENHANCED MESSAGE-----