Purpose of Amendment
This Amendment No. 7 (this
Amendment
) amends and supplements the Solicitation/Recommendation Statement on Schedule
14D-9
of MTGE Investment Corp. (
MTGE
), a Maryland corporation, filed with the Securities and Exchange Commission (the
SEC
) on May 16, 2018, as amended by
Amendment No. 1 filed with the SEC on May 31, 2018, as amended by Amendment No. 2 filed with the SEC on June 6, 2018, as amended by Amendment No. 3 filed with the SEC on June 15, 2018, as amended by Amendment No. 4
filed with the SEC on July 17, 2018, as amended by Amendment No. 5 filed with the SEC on August 20, 2018, as amended by Amendment No. 6 filed with the SEC on August 21, 2018 (as amended, the
Schedule
14D-9
). The Schedule
14D-9
relates to the tender offer (the
Offer
) by Annaly Capital Management, Inc., a Maryland corporation
(
Annaly
), and its direct wholly owned subsidiary, Mountain Merger Sub Corporation (the
Purchaser
), to exchange for each outstanding share of common stock, $0.001 par value per share, of MTGE, at
the election of the holder thereof: (a) $9.82 in cash and 0.9519 shares of Annaly common stock, par value $0.01 per share (
Annaly common stock
) (the
mixed consideration
), (b) $19.65 in cash (the
all-cash
consideration
), or (c) 1.9037 shares of Annaly common stock (the
all-stock
consideration
), subject in each
case to the election procedures and, in the case of elections to receive the
all-cash
consideration or the
all-stock
consideration, to the proration procedures described
in the Prospectus (as defined below) and the related Letter of Election and Transmittal (as defined below).
Annaly has filed with the SEC a Tender Offer
Statement on Schedule TO dated May 16, 2018, as amended, and a Registration Statement on Form
S-4
dated May 16, 2018, relating to, among other things, the offer and sale of shares of Annaly common
stock to be issued to holders of shares of MTGE common stock in the Offer (as amended by Amendment No. 1 to the Registration Statement on Form
S-4
dated May 31, 2018, the
Registration
Statement
). The terms and conditions of the Offer are set forth in the Prospectus/Offer to Exchange, which is a part of the Registration Statement (the
Prospectus
), and the related letter of election and
transmittal (the
Letter of Election and Transmittal
), which are filed as Exhibit (a)(4) and (a)(1)(A), respectively, hereto. The Agreement and Plan of Merger, dated as of May 2, 2018, by and among Annaly, Purchaser and
MTGE (the
Merger Agreement
), a copy of which is attached as Exhibit (e)(1) to this Schedule
14D-9,
is incorporated into this Schedule
14D-9
by
reference.
MTGE believes that no further disclosure is required to supplement the Schedule
14D-9
under applicable
law; however, to avoid any risk that stockholder litigation, as further described in Item 8 of the Schedule
14D-9
under the subsection entitled Certain Litigation, may delay or otherwise
adversely affect the consummation of the Offer and to minimize the expense of defending such actions, MTGE is making available certain additional information (which it considers immaterial) to its stockholders in this Amendment No. 7. Except as
otherwise set forth below, the information set forth in the Schedule
14D-9
remains unchanged and is incorporated by reference as relevant to the items in this Amendment. Capitalized terms used and not defined
herein shall have the meanings assigned to such terms in the Schedule
14D-9.
This Amendment is being filed to reflect certain disclosures as set forth below.
Item 4. The Solicitation or Recommendation.
Item 4 of the Schedule
14D-9
is hereby amended by deleting the first full paragraph on page 23 of the Schedule
14D-9
under the heading Unaudited Prospective Financial Information and replacing it with the following paragraph:
The unaudited prospective financial information was not prepared with a view toward public disclosure, nor was it prepared with a view toward compliance
with published guidelines of the SEC or the guidelines established by the American Institute of Certified Public Accountants for preparation and presentation of prospective financial information, or U.S. generally accepted accounting principles
(
GAAP
). The unaudited prospective financial information includes
non-GAAP
financial measures, which are financial measures that are not calculated in accordance with GAAP.
The
non-GAAP
financial measures in the unaudited prospective financial information were relied upon by Barclays for purposes of its opinion and by the special committee in connection with its consideration of
the offer and the merger. Financial measures provided to a financial advisor in these circumstances are excluded from the definition of
non-GAAP
financial measures for purposes of SEC rules and, therefore, are
not subject to SEC rules that would otherwise require a reconciliation of a
non-GAAP
financial measure to a GAAP financial measure. Reconciliations of the
non-GAAP
financial measures in the unaudited prospective financial information were not relied upon by Barclays for purposes of its opinion or by the special committee in connection with its consideration of the offer or the merger. Accordingly, a
reconciliation is not provided of the
non-GAAP
financial measures included in the unaudited prospective financial information to the relevant GAAP financial measures. These
non-GAAP
financial measures should not be viewed as a substitute for GAAP financial measures and may be different from
non-GAAP
financial measures used by other
companies. Furthermore, there are limitations inherent in
non-GAAP
financial measures because they exclude items, including charges and credits, that are required to be included in a GAAP presentation.