S-8: Initial registration statement for securities to be offered to employees pursuant to employee benefit plans
Published on May 26, 2010
As
filed with the Securities and Exchange Commission on May 26, 2010
Registration
No. _________
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 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)
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13-3974868
(I.R.S.
Employer Identification No.)
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——————————
350
Park Avenue, 21st
Floor
New
York, NY 10022
(Address
of Principal Executive Offices)
——————————
MFA
Financial, Inc. Amended and Restated 2010 Equity Compensation Plan
(Full
Title of Plan)
——————————
Stewart
Zimmerman
Chairman
of the Board and Chief Executive Officer
MFA
Financial, Inc.
350
Park Avenue, 21st
Floor
New
York, NY 10022
Tel:(212)
207-6400
Fax: (212)
207-6420
(Name,
Address and Telephone Number,
Including
Area Code, of Agent for Service)
——————————
Copies
to:
|
Timothy
W. Korth, Esq.
MFA
Financial, Inc.
350
Park Avenue, 21st Floor
New
York, NY 10022
Tel: (212)
207-6400
Fax: (212)
207-6420
|
Jay
L. Bernstein, Esq.
Clifford
Chance US LLP
31
West 52nd Street
New
York, NY 10019
Tel: (212)
878-8000
Fax: (212)
878-8375
|
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of "large accelerated filer,"
"accelerated filer" and "smaller reporting company" in Rule 12b-2 of the
Exchange Act.
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Large
accelerated filer Q
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Accelerated
filer £
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Non-accelerated
filer £ (do not
check if a smaller reporting company)
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Smaller
reporting company £
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CALCULATION
OF REGISTRATION FEE
|
Title
of Each Class of Securities To Be Registered
|
Amount
To Be
Registered(1)
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Proposed
Maximum
Offering
Price
Per
Share(2)
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Proposed
Maximum
Aggregate
Offering
Price(2)
|
Amount
Of
Registration
Fee
|
||||
|
Common
Stock, par value $0.01 per share, to be issued under the Amended and
Restated 2010 Equity Compensation Plan
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10,000,000
shares
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$6.90
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$69,000,000
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$4,919.70
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(1)
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Pursuant
to Rule 416 under the Securities Act of 1933, as amended (the
"Securities Act"), this registration statement also covers such additional
securities as may hereinafter be offered or issued to prevent dilution
resulting from any share split, share dividends, recapitalization or
certain other capital adjustments.
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(2)
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Estimated
solely for the purpose of calculating the amount of the registration fee
pursuant to Rule 457(c) and Rule 457(h) of the Securities
Act. The price per share is estimated to be $6.90, based on the
average of the high and low prices of the registrant's common stock as
reported on the New York Stock Exchange on May 25 2010, which was
within five business days of the filing of this registration
statement.
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EXPLANATORY
NOTE
MFA
Financial, Inc. (the "Company") has filed this registration statement on
Form S-8 to register 10,000,000 shares of its common stock, par value $0.01
per share (the "Common Stock"), issuable pursuant to the MFA Financial, Inc.
Amended and Restated 2010 Equity Compensation Plan (the "Plan"). The Plan amends
and restates the Company's Amended and Restated 2004 Equity Compensation Plan,
which in turn amended and restated the Company's Second Amended and Restated
1997 Stock Option Plan. The Company previously filed the following
registration statements on Form S-8 relating to a total of 3,500,000 shares of
Common Stock, in the aggregate, issuable under (i) the Company's 2004 Equity
Compensation Plan (File No. 333-121365) filed by the Company and effective
on December 17, 2004, and (ii) 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.
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 of 1933, as amended (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
We
incorporate by reference into this registration statement the following
documents which we previously filed with the SEC:
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·
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Our
annual report on Form 10-K for the fiscal year ended
December 31, 2009;
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·
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Our
quarterly report on Form 10-Q for the fiscal quarter ended
March 31, 2010;
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·
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Our
current reports on Form 8-K filed with the SEC on January 5,
2010, March 5, 2010, May 10, 2010 and May 26,
2010;
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·
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Our
definitive proxy statement on Schedule 14A filed with the SEC on
April 4, 2010 and the supplement thereto filed with the SEC on May
10, 2010; and
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·
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The
description of our common stock, par value $0.01 per share, contained in
our 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.
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All
reports and other documents that we file in accordance with Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (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 said 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 said in this registration
statement or the earlier document. 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.
- 1
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Item 4. Description
of Securities
Not
applicable.
Item 5. Interests
of Named Experts and Counsel
Not
applicable.
Item 6. Indemnification
of Directors and Officers
As
permitted by the Maryland General Corporation Law (the "MGCL"), Article Eighth,
Paragraph (a)(5) of our Amended and Restated Articles of Incorporation
("Articles") provides for indemnification of our directors and officers as
follows:
The
Corporation may provide any indemnification permitted by the general laws of
Maryland and shall indemnify current and former directors, officers, agents and
employees as follows: (A) the Corporation shall indemnify its directors and
officers, whether serving the Corporation or, at its request, any other entity,
to the full extent required or permitted by the general laws of the State of
Maryland now or hereafter in force, including the advance of expenses under the
procedures and to the full extent permitted by law and (B) the Corporation shall
indemnify other employees and agents, whether serving the Corporation or at its
request any other entity, to such extent as shall be authorized by the Board of
Directors or the Corporation's Bylaws and be permitted by law. The
foregoing rights of indemnification shall not be exclusive of any other rights
to which those seeking indemnification may be entitled. The Board of
Directors may take such action as is necessary to carry out these
indemnification provisions and is expressly empowered to adopt, approve and
amend from time to time such bylaws, resolutions or contracts implementing such
provisions or such further indemnification arrangements as may be permitted by
law. No amendment of the Charter of the Corporation or repeal of any
of its provisions shall limit or eliminate the right to indemnification provided
hereunder with respect to acts or omissions occurring prior to such amendment or
repeal or shall limit or eliminate the rights granted under indemnification
agreements entered into by the Corporation and its directors, officers, agents
and employees.
Our
Bylaws contain indemnification procedures that implement those of our
Articles. The MGCL permits a corporation to indemnify its 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 a party by reason of their service in those or other
capacities, unless it is established that (a) the act or omission of the
director or officer was material to the matter giving rise to such proceeding
and was (i) committed in bad faith or (ii) was the result of active
and deliberate dishonesty, (b) the director or officer actually received an
improper personal benefit in money, property or services, or (c) in the
case of any criminal proceeding, the director or officer had reasonable cause to
believe that the action or omission was unlawful.
As
permitted by the MGCL, Article Eighth, Paragraph (a)(6) of our Articles
provides for limitation of liability of our directors and officers as
follows:
To the
fullest extent permitted by Maryland statutory or decisional law, as amended or
interpreted, no current and former director or officer of the Corporation shall
be personally liable to the Corporation or its stockholders for money
damages. No amendment of the Charter of the Corporation or repeal of
any of its provisions shall limit or eliminate the benefits provided to
directors and officers under this provision with respect to any act or omission
which occurred prior to such amendment or repeal.
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The MGCL
permits the charter of a Maryland corporation to include a provision limiting
the liability of its directors and officers to the corporation and its
stockholders for money damages, except to the extent that (i) the person
actually received an improper benefit or profit in money, property or services
or (ii) a judgment or other final adjudication is entered in a proceeding
based on a finding that the person'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.
As
permitted under Section 2-418(k) of the MGCL, we have purchased and
maintain insurance on behalf of our directors and officers against any liability
asserted against such directors and officers in their capacities as
such.
Item 7. Exemption
from Registration Claimed
Not
applicable.
Item 8. Exhibits
The
following documents are filed with or incorporated by reference in this
registration statement:
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Exhibit
No.
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Description
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|
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4.1
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Amended
and Restated Articles of Incorporation of the Company (incorporated herein
by reference to Exhibit 3.1 of the Form 8-K, dated April 10, 1998, filed
by the Company pursuant to the Exchange Act (Commission File No.
1-13991)).
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4.2
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Articles
of Amendment to the Amended and Restated Articles of Incorporation of the
Company, dated August 5, 2002 (incorporated herein by reference to Exhibit
3.1 of the Form 8-K, dated August 13, 2002, filed by the Company pursuant
to the Exchange Act (Commission File No. 1-13991)).
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4.3
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Articles
of Amendment to the Amended and Restated Articles of Incorporation of the
Company, dated August 13, 2002 (incorporated herein by reference to
Exhibit 3.3 of the Form 10-Q for the quarter ended December 31, 2002,
filed by the Company pursuant to the Exchange Act (Commission File No.
1-13991)).
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4.4
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Articles
of Amendment to the Amended and Restated Articles of Incorporation of the
Company, dated December 29, 2008 (incorporated herein by reference to
Exhibit 3.1 of the Form 8-K, dated December 29, 2008, filed by the Company
pursuant to the Exchange Act (Commission File No.
1-13991)).
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4.5
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Articles
of Amendment to the Amended and Restated Articles of Incorporation of the
Company, dated January 1, 2010 (incorporated herein by reference to
Exhibit 3.1 of the Form 8-K, dated December 31, 2009, filed by the Company
pursuant to the Exchange Act (Commission File No.
1-13991)).
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4.6
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Articles
Supplementary of the Company, dated April 22, 2004, designating the
Company's 8.50% Series A Cumulative Redeemable Preferred Stock
(incorporated herein by reference to Exhibit 3.4 of the Form 8-A, dated
April 23, 2004, filed by the Company pursuant to the Exchange Act
(Commission File No. 1-13991)).
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4.7
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Amended
and Restated Bylaws of the Company (incorporated herein by reference to
Exhibit 3.2 of the Form 8-K, dated December 29, 2008, filed by the Company
pursuant to the Exchange Act (Commission File No.
1-13991)).
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4.8
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Specimen
of common stock certificate of the Company (incorporated herein by
reference to Exhibit 4.1 of the registration statement on
Form S-4, dated February 12, 1998, filed by the Company pursuant
to the Securities Act (Commission File
No. 333-46179)).
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4.9
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Amended
and Restated 2010 Equity Compensation Plan of the Company (incorporated
herein by reference to Exhibit 10.1 of the Form 8-K, dated May 10, 2010,
filed by the Company pursuant to the Exchange Act (Commission File No.
1-13991)).
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5.1
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Opinion
of Clifford Chance US LLP.
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23.1
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Consent
of Clifford Chance US LLP (included in
Exhibit 5.1).
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23.2
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Consent
of Ernst & Young LLP.
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24.1
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Power
of Attorney (included on signature page of this registration
statement).
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Item 9. Undertakings
(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;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of this 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 this registration
statement. Notwithstanding the foregoing, any increase or decrease in
the 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 a 20% change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
and
(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 the periodic reports filed with or furnished to the SEC by the
registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in this registration statement.
(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.
(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
(and, where applicable, each filing of an employee benefit plan's annual report
pursuant to 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 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.
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SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, 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 May 26, 2010.
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MFA
FINANCIAL, INC.
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By:
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/s/
Stewart Zimmerman
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Stewart
Zimmerman
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Chairman
of the Board and Chief Executive
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Officer
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POWER
OF ATTORNEY
KNOW ALL
MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Stewart Zimmerman and William S. Gorin, 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-infact 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, this registration statement
has been signed by the following persons in the capacities and on the dates
indicated.
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Name
and Signature
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Title
|
Date
|
||
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/s/
Stewart Zimmerman
|
Chairman
of the Board and Chief Executive
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May 26,
2010
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||
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Stewart
Zimmerman
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Officer
(Principal Executive Officer)
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|||
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/s/
William S. Gorin
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President
and Chief Financial Officer
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May 26,
2010
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William
S. Gorin
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(Principal
Financial Officer)
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|||
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/s/
Teresa D. Covello
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Senior
Vice President and Chief Accounting
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May 26,
2010
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Teresa
D. Covello
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Officer
(Principal Accounting Officer)
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/s/
Stephen R. Blank
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Director
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May 26,
2010
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Stephen
R. Blank
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||||
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/s/
James A. Brodsky
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Director
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May 26,
2010
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James
A. Brodsky
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||||
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/s/
Edison C. Buchanan
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Director
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May 26,
2010
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Edison
C. Buchanan
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||||
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/s/
Michael L. Dahir
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Director
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May 26,
2010
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Michael
L. Dahir
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||||
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/s/
Alan Gosule
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Director
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May 26,
2010
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Alan
Gosule
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||||
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/s/
Robin Josephs
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Director
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May 26,
2010
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Robin
Josephs
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EXHIBIT
INDEX
|
Exhibit
No.
|
Description
|
|
4.1
|
Amended
and Restated Articles of Incorporation of the Company (incorporated herein
by reference to Exhibit 3.1 of the Form 8-K, dated April 10, 1998, filed
by the Company pursuant to the Exchange Act (Commission File No.
1-13991)).
|
|
|
4.2
|
Articles
of Amendment to the Amended and Restated Articles of Incorporation of the
Company, dated August 5, 2002 (incorporated herein by reference to Exhibit
3.1 of the Form 8-K, dated August 13, 2002, filed by the Company pursuant
to the Exchange Act (Commission File No. 1-13991)).
|
|
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4.3
|
Articles
of Amendment to the Amended and Restated Articles of Incorporation of the
Company, dated August 13, 2002 (incorporated herein by reference to
Exhibit 3.3 of the Form 10-Q for the quarter ended December 31, 2002,
filed by the Company pursuant to the Exchange Act (Commission File No.
1-13991)).
|
|
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4.4
|
Articles
of Amendment to the Amended and Restated Articles of Incorporation of the
Company, dated December 29, 2008 (incorporated herein by reference to
Exhibit 3.1 of the Form 8-K, dated December 29, 2008, filed by the Company
pursuant to the Exchange Act (Commission File No.
1-13991)).
|
|
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4.5
|
Articles
of Amendment to the Amended and Restated Articles of Incorporation of the
Company, dated January 1, 2010 (incorporated herein by reference to
Exhibit 3.1 of the Form 8-K, dated December 31, 2009, filed by the Company
pursuant to the Exchange Act (Commission File No.
1-13991)).
|
|
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4.6
|
Articles
Supplementary of the Company, dated April 22, 2004, designating the
Company's 8.50% Series A Cumulative Redeemable Preferred Stock
(incorporated herein by reference to Exhibit 3.4 of the Form 8-A, dated
April 23, 2004, filed by the Company pursuant to the Exchange Act
(Commission File No. 1-13991)).
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|
|
4.7
|
Amended
and Restated Bylaws of the Company (incorporated herein by reference to
Exhibit 3.2 of the Form 8-K, dated December 29, 2008, filed by the Company
pursuant to the Exchange Act (Commission File No.
1-13991)).
|
|
|
4.8
|
Specimen
of common stock certificate of the Company (incorporated herein by
reference to Exhibit 4.1 of the registration statement on
Form S-4, dated February 12, 1998, filed by the Company pursuant
to the Securities Act (Commission File
No. 333-46179)).
|
|
4.9
|
Amended
and Restated 2010 Equity Compensation Plan of the Company (incorporated
herein by reference to Exhibit 10.1 of the Form 8-K, dated May 10, 2010,
filed by the Company pursuant to the Exchange Act (Commission File No.
1-13991)).
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|
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5.1
|
Opinion
of Clifford Chance US LLP.
|
|
|
23.1
|
Consent
of Clifford Chance US LLP (included in
Exhibit 5.1).
|
|
|
23.2
|
Consent
of Ernst & Young LLP.
|
|
|
24.1
|
Power
of Attorney (included on signature page of this registration
statement).
|
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