Securities Registration: Employee Benefit Plan (s-8)
27 Juni 2023 - 10:32PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission
on June 27, 2023
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MFA FINANCIAL, INC.
(Exact name of registrant as specified in its charter)
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Maryland
(State or other jurisdiction of
incorporation or organization) |
13-3974868
(IRS Employer
Identification No.) |
| |
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One Vanderbilt Ave., 48th Floor
New York, New York
(Address of Principal Executive Offices) |
10017
(Zip Code) |
MFA Financial, Inc. Equity Compensation Plan
(Full title of the plan)
Craig L. Knutson
Chief Executive Officer and President
MFA Financial, Inc.
One Vanderbilt Ave., 48th Floor
New York, New York 10017
(212) 207-6400
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
With copies to:
|
Harold E. Schwartz
Senior Vice President, General Counsel and Secretary
MFA Financial, Inc.
One Vanderbilt Ave., 48th Floor
New York, New York 10017
(212) 207-6400 |
Robert K. Smith, Esq.
Hunton Andrews Kurth LLP
2200 Pennsylvania Ave NW
Washington,
DC 20037
(202) 955-1500 |
| Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. |
| Large accelerated filer x |
Accelerated filer ¨ |
|
Non-accelerated
filer ¨ (Do not check if a smaller reporting company)
Emerging growth company ¨ |
Smaller reporting 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. ¨
EXPLANATORY NOTE
MFA Financial, Inc. (the “Company,”
“we” or “our”) is filing this registration statement on Form S-8 to register 7,719,496 additional shares
of our common stock, par value $0.01 per share (the “Common Stock”), issuable pursuant to the MFA Financial, Inc. Equity
Compensation Plan (the “Plan”). The Plan was amended and restated on June 10, 2020 to, among other things, increase the
total number of shares of Common Stock that the Company was authorized to issue under the Plan to an aggregate of 4,500,000 shares (of
which 1,280,504 shares were previously registered by the Company on separate Form S-8s, as discussed below, and 3,219,496 shares
were additional shares (the “2020 Additional Shares”). The Plan was further amended and restated on June 6, 2023, to,
among other things, further increase the total number of shares of Common Stock authorized to be issued under the Plan by authorizing
an aggregate of 4,500,000 additional shares (the “2023 Additional Shares”). The 7,719,496 additional shares of Common Stock
registered herein is the sum of the 2020 Additional Shares and the 2023 Additional Shares.
The Company previously filed the following registration
statements on Form S-8 relating to shares of Common Stock issuable under earlier versions of the Plan: (i) the Company’s
Amended and Restated Equity Compensation Plan (File No. 333-205105) filed by the Company and effective on June 19, 2015, (ii) the
Company’s Amended and Restated 2010 Equity Compensation Plan (File No. 333-167107) filed by the Company and effective on May 26,
2010, (iii) the Company’s 2004 Equity Compensation Plan (File No. 333-121365) filed by the Company and effective on December 17,
2004, and (iv) the Company’s 1997 Stock Option Plan (File Nos. 333-39772 and 333-67758) filed by the Company and effective
on June 21, 2000 and August 17, 2001, respectively. The contents of these previously filed registration statements are hereby
incorporated by reference herein.
Including the 7,719,496 additional shares registered
hereunder, the number of shares of Common Stock reserved for issuance under the Plan is an aggregate of 8,468,548 shares.
To the extent applicable, all numbers of shares
above have been retroactively adjusted to reflect the Company’s one-for-four reverse stock split of its Common Stock effected on
April 4, 2022.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
| Item 1. | Plan Information.* |
| Item 2. | Registrant Information and Employee Plan Annual Information.* |
* As permitted by Rule 428 under the Securities Act this registration
statement omits the information specified in Part I of Form S-8. The documents containing the information specified in Part I
of Form S-8 will be sent or given to employees as specified by Rule 428(b)(1) of the Securities Act. These documents need
not be filed with the Securities and Exchange Commission (the “SEC”) either as part of this registration statement or as prospectuses
or prospectus supplements pursuant to Rule 424 under the Securities Act. These documents and the documents incorporated by reference
in this registration statement pursuant to Item 3 of Part II of this registration statement, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The following documents filed by the Company with
the SEC pursuant to the Securities Act, and the Securities Exchange Act of 1934, as amended (the “Exchange Act”) are incorporated
herein by reference and made a part hereof:
(a) the Company’s Annual Report on Form 10-K for the year ended December 31, 2022, filed with the SEC on February 24, 2023;
(b) the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2023, filed with the SEC on May 4, 2023;
(c) the
information specifically incorporated by reference into the Company’s Annual Report on Form 10-K for the year ended December 31, 2022, from the Company’s Definitive Proxy Statement on Schedule 14A, filed with the SEC on April 24, 2023;
(d) the Company’s Current Reports on Form 8-K, filed with the SEC on each of April 21, 2023 and June 8, 2023; and
(e) the description of the Company’s common stock, par value $0.01 per share, contained in the Company’s registration statement on Form 8-A filed with the SEC on March 26, 1998, including all amendments and reports filed for the purpose of updating such description.
All reports and other documents that we file in
accordance with Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this registration statement and prior
to the filing of a post-effective amendment to this registration statement that indicates that all securities offered by this registration
statement have been sold or that deregisters all securities covered hereby then remaining unsold, shall be deemed to be incorporated by
reference into this registration statement and to be a part hereof from the date of filing of such documents. If any document
that we file changes anything stated in this registration statement or in an earlier document that is incorporated into this registration
statement, the later document will modify or supersede what is stated in this registration statement or the earlier document. Unless
expressly incorporated by reference into this registration statement, nothing in this Item 3 shall be deemed to incorporate information
furnished by us on Form 8-K (pursuant to the requirements of Regulation FD or otherwise) that, pursuant to and in accordance with
the rules and regulations of the SEC, is not deemed “filed” for purposes of the Exchange Act.
| Item 4. | Description of Securities |
Not applicable.
| Item 5. | Interests of Named Experts and Counsel |
Not applicable.
| Item 6. | Indemnification of Officers and Directors |
Maryland law permits a Maryland corporation to
include in its charter a provision limiting the liability of its directors and officers to the corporation and its stockholders for money
damages except for liability resulting from (i) actual receipt of an improper benefit or profit in money, property or services or
(ii) active and deliberate dishonesty established by a final judgment and which is material to the cause of action. Our charter contains
such a provision which eliminates directors’ and officers’ liability to the maximum extent permitted by Maryland law.
Our charter obligates us, to the maximum extent
permitted by Maryland law, to indemnify any director or officer or any individual who, while a director or officer of our company, serves
our company or, at the request of our company, serves or has served another entity, from and against any claim or liability to which that
individual may become subject or which that individual may incur by reason of his or her status as a director or officer of our company
and to pay or reimburse his or her reasonable expenses in advance of final disposition of a proceeding. The charter also permits our company
to indemnify and advance expenses to any employee or agent of our company.
Maryland
law requires a corporation (unless its charter provides otherwise, which our charter does not) to indemnify a director or officer who
has been successful in the defense of any proceeding to which he or she is made, or threatened to be made, a party by reason of his or
her service in that capacity. Maryland law permits a corporation to indemnify its present and former directors and officers, among others,
against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding to
which they may be made, or threatened to be made, a party by reason of their service in those or other capacities unless it is established
that (i) the act or omission of the director or officer was material to the matter giving rise to the proceeding and (a) was
committed in bad faith or (b) was the result of active and deliberate dishonesty, (ii) the director or officer actually received
an improper personal benefit in money, property or services or (iii) in the case of any criminal proceeding, the director or officer
had reasonable cause to believe that the act or omission was unlawful. However, under Maryland
law, a Maryland corporation may not indemnify for an adverse judgment in a suit by or in the right of the corporation or for a judgment
of liability on the basis that personal benefit was improperly received, unless in either case a court orders indemnification and then
only for expenses. In addition, Maryland law permits a corporation to advance reasonable expenses to a director or officer upon
the corporation’s receipt of (i) a written affirmation by the director or officer of his or her good faith belief that he or
she has met the standard of conduct necessary for indemnification by the corporation and (ii) a written undertaking by him or her
or on his or her behalf to repay the amount paid or reimbursed by the corporation if it is ultimately determined that the standard of
conduct was not met.
We maintain directors and officers insurance policies
designed to reimburse us for any payments made by us pursuant to the foregoing indemnifications. Pursuant to employment agreements with
our executive officers, we are required to maintain such policies during the officers’ employment and for six years thereafter.
| Item 7. | Exemption From Registration Claimed |
Not applicable.
† Filed herewith.
(a) The
undersigned 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 of 1933;
(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 volume 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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20% 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 the registration statement or any
material change to such information in the 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 reports filed with or furnished to the SEC by the registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933, 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.
(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 of 1933, each filing
of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the 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 of 1933 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 SEC such
indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, as amended, the registrant 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 New York, State of New York, on June 27, 2023.
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MFA FINANCIAL, INC. |
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By: |
/s/ Craig L. Knutson |
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Name: |
Craig L. Knutson |
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Title: |
Chief Executive Officer, President and Director |
POWER
OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person
whose signature appears below constitutes and appoints Craig L. Knutson, Stephen D. Yarad and Harold E. Schwartz, and each of them, with
full power to act without the other, such person’s true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign this Registration Statement, and any
and all amendments thereto (including post-effective amendments), and to file the same, with exhibits and schedules thereto, and other
documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents, and each of them, full power and authority
to do and perform each and every act and thing necessary or desirable to be done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any
of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
| Name and Signature |
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Title |
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Date |
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| /s/ Craig L. Knutson |
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Chief Executive Officer, President and Director (Principal Executive Officer) |
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June 27, 2023 |
| Craig L. Knutson |
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| /s/ Stephen D. Yarad |
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Chief Financial Officer (Principal Financial Officer) |
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June 27, 2023 |
| Stephen D. Yarad |
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| /s/ Michael C. Roper |
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Chief Accounting Officer (Principal Accounting Officer) |
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June 27, 2023 |
| Michael C. Roper |
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| /s/ Laurie S. Goodman |
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Director |
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June 27, 2023 |
| Laurie S. Goodman |
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| /s/ Robin Josephs |
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Director |
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June 27, 2023 |
| Robin Josephs |
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| /s/ Francis J. Oelerich III |
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Director |
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June 27, 2023 |
| Francis J. Oelerich III |
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| /s/ Lisa Polsky |
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Director |
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June 27, 2023 |
| Lisa Polsky |
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| /s/ Sheila A. Stamps |
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Director |
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June 27, 2023 |
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Sheila A. Stamps |
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| /s/ Richard C. Wald |
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Director |
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June 27, 2023 |
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Richard C. Wald |
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