As filed with the Securities and Exchange Commission on November
9, 2022
Registration No. 333-256283
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
(POST-EFFECTIVE AMENDMENT NO. 1)
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Two Harbors Investment Corp.
(Exact Name of Registrant as Specified in Its Charter)
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Maryland |
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27-0312904 |
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(State or Other Jurisdiction
of |
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(I.R.S. Employer |
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Incorporation or
Organization) |
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Identification No.) |
1601 Utica Avenue South, Suite 900
St. Louis Park, Minnesota 55416
(612) 453-4100
(Address of Principal Executive Offices)
Two Harbors Investment Corp.
2021 Equity Incentive Plan
(Full Title of the Plans)
Rebecca B. Sandberg
Vice President, General Counsel and Secretary
c/o Two Harbors Investment Corp.
1601 Utica Avenue South, Suite 900
St. Louis Park, Minnesota 55416
Tel: (612) 453-4100
(Name, Address and Telephone Number, including Area Code, of Agent
for Service)
Copy to:
Stephen M. Quinlivan, Esq.
Colin D. Phaneuf, Esq.
Stinson LLP
50 South Sixth Street, Suite 2600
Minneapolis, MN 55402
(612) 335-7076
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,” “smaller reporting
company,” and “emerging growth company” in Rule 12b-2 of the
Exchange Act. (Check one):
| Large accelerated filer x |
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Accelerated filer ¨ |
| Non-accelerated filer ¨ |
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Smaller reporting company ¨ |
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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 7(a)(2)(B) of the Securities
Act. ¨
EXPLANATORY STATEMENT
This Post-Effective Amendment No. 1 to the Registration Statement
on Form S-8 (the “Post-Effective Amendment No. 1”), relates to the
Registration Statement on Form S-8 (File No. 333-256283) filed with
the Securities and Exchange Commission (the “SEC”) by Two Harbors
Investment Corp. (the “Registrant”) on May 19, 2021 (the “2021
Registration Statement”), and is being filed to adjust the number
of securities covered by the 2021 Registration Statement pursuant
to Rule 416(b) of the Securities Act of 1933, as amended (the
“Securities Act”), and related interpretations of the staff of the
SEC.
The 2021 Registration Statement registered 17,000,000 shares of
common stock, par value $0.01 per share (the “Common Stock”), of
the Registrant to be issued pursuant to the Registrant’s 2021
Equity Incentive Plan (the “2021 Plan”). On November 1, 2022, the
Registrant completed a one-for-four reverse stock split of the
Common Stock (the “Reverse Stock Split”). Accordingly, the purpose
of this Post-Effective Amendment No. 1 is to proportionately reduce
the number of shares of Common Stock covered by the 2021
Registration Statement. As a result, as of November 1, 2022, on a
post-Reverse Stock Split basis, the 2021 Registration Statement now
covers a maximum of 4,250,000 shares of Common Stock.
Except to the extent specified above, the 2021 Registration
Statement, as originally filed, is not amended or otherwise
affected by this Post-Effective Amendment No. 1.
PART II
| Item 3. |
Incorporation of Certain Documents by Reference |
The Registrant hereby incorporates by reference into this
Registration Statement the following documents previously filed
with the Securities and Exchange Commission:
(a) The Registrant’s Annual Report on
Form 10-K for the fiscal year ended December 31, 2021;
(b) The Registrant’s Quarterly Report on Form 10-Q for the fiscal
quarters ended March 31, 2022, June 30, 2022, and September 30, 2022;
(c) Information specifically incorporated by reference into the
Registrant’s Form 10-K from the definitive Proxy Statement for
Registrant’s 2022 Annual Stockholders Meeting;
(d) Our Current Reports on Form 8-K filed on January 10, 2022, March 28, 2022, May 18, 2022, June 22, 2022, August 3, 2022, August 15, 2022, November 2, 2022, and November 8, 2022; and
(e) The description of the Registrant’s Common Stock contained in
the Company’s Registration Statement on Form 8-A filed with the
Commission on February 10, 2011, as amended by
Amendment No. 1 to Form 8-A filed with the Commission on November 2, 2017, and by
Amendment No. 2 to Form 8-A filed with the Commission on November 2, 2022.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act on or 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 have been sold or that
deregisters all securities then remaining unsold shall be deemed to
be incorporated by reference in this Registration Statement and to
be part hereof from the date of filing of such documents.
Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement
contained in a subsequently filed document which is also
incorporated by reference herein modifies or supersedes such
statement.
| Item 4. |
Description of Securities |
Not applicable.
| Item 5. |
Interests of Named Experts and Counsel |
Not applicable.
| Item 6. |
Indemnification of Directors and Officers |
Maryland law permits a Maryland corporation to include in its
charter a provision eliminating the liability of its directors and
officers to the corporation and its stockholders for money damages,
except for liability resulting from (1) actual receipt of an
improper benefit or profit in money, property or services or (2)
active and deliberate dishonesty established by a final judgment as
being material to the cause of action. Our charter contains such a
provision that eliminates such liability to the maximum extent
permitted by Maryland law.
The Maryland General Corporation law, or MGCL, requires us (unless
our charter provides otherwise, which our charter does not) to
indemnify a director or officer who has been successful, on the
merits or otherwise, 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. The MGCL 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:
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the act or omission of the director or officer was material to
the matter giving rise to the proceeding and (1) was committed in
bad faith or (2) was the result of active and deliberate
dishonesty; |
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the director or officer actually received an improper personal
benefit in money, property or services; or |
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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 the MGCL, a Maryland corporation may not indemnify a
director or officer in a suit by or in the right of the corporation
in which the director or officer was adjudged liable to the
corporation or in a proceeding in which the director or officer was
adjudged liable on the basis that personal benefit was improperly
received. A court may order indemnification if it determines that
the director or officer is fairly and reasonably entitled to
indemnification, even though the director or officer did not meet
the prescribed standard of conduct or was adjudged liable on the
basis that personal benefit was improperly received. However,
indemnification for an adverse judgment in a suit by us or in our
right, or for a judgment of liability on the basis that personal
benefit was improperly received, is limited to expenses.
In addition, the MGCL permits a corporation to advance reasonable
expenses to a director or officer upon the corporation’s receipt
of:
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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 |
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a written undertaking by the director or officer or on the
director’s or officer’s behalf to repay the amount paid or
reimbursed by the corporation if it is ultimately determined that
the director or officer did not meet the standard of conduct. |
Our charter authorizes us to obligate ourselves and our bylaws
obligate us, to the maximum extent permitted by Maryland law in
effect from time to time, to indemnify and, without requiring a
preliminary determination of the ultimate entitlement to
indemnification, pay or reimburse reasonable expenses in advance of
final disposition of a proceeding to:
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any present or former director or officer who is made or
threatened to be made a party to the proceeding by reason of his or
her service in that capacity; or |
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any individual who, while a director or officer of our company
and at our request, serves or has served another corporation, real
estate investment trust, partnership, joint venture, trust,
employee benefit plan or other enterprise as a director, officer,
partner or trustee of such corporation, real estate investment
trust, partnership, joint venture, trust, employee benefit plan or
other enterprise and who is made or threatened to be made a party
to the proceeding by reason of his or her service in that
capacity. |
Our charter and bylaws also permit us to indemnify and advance
expenses to any person who served a predecessor of ours in any of
the capacities described above and to any employee or agent of ours
or a predecessor of ours.
We have entered into indemnification agreements with each of our
directors and executive officers that provide for indemnification
to the maximum extent permitted by Maryland law. In addition, the
operating agreements of our subsidiaries provide that we, as
managing member, and our officers and directors are indemnified to
the fullest extent permitted by law.
Insofar as the foregoing provisions permit indemnification of
directors, officers or persons controlling us for liability arising
under the Securities Act, we have been informed that, in the
opinion of the SEC, this indemnification is against public policy
as expressed in the Securities Act and is therefore
unenforceable.
| Item 7. |
Exemption from Registration Claimed |
Not applicable.
*Previously filed.
(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 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 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% 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
reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that
are incorporated by reference in the 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 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 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 Securities and Exchange 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.
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 St. Louis Park,
Minnesota, as of November 9, 2022.
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TWO HARBORS INVESTMENT
CORP. |
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(Registrant) |
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By: |
/s/ William Greenberg |
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William Greenberg |
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President and Chief
Executive Officer |
POWER OF ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints, William Greenberg
and Mary K. Riskey, acting singly, his or her attorneys-in-fact and
agents, each with the power of substitution and resubstitution, for
him or her and in his or her name, place or stead, in any and all
capacities, to sign any amendments to this Registration Statement
on Form S-8, and to file such amendments, together with exhibits
and other documents in connection therewith, with the Securities
and Exchange Commission, granting to each attorney-in-fact and
agent full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the
premises, as fully as he or she might or could do in person, and
ratifying and confirming all that the attorneys-in-fact and agents,
or his substitute or substitutes, may 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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Signatures |
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Title |
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Date |
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| By: |
/s/ William Greenberg
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President and Chief
Executive Officer |
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November 9, 2022 |
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William Greenberg |
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(principal executive officer) |
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| By: |
/s/ Mary K. Riskey |
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Chief Financial Officer |
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November 9, 2022 |
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Mary K. Riskey |
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(principal financial and accounting
officer) |
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| By: |
/s/ Stephen G. Kasnet |
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Chairman of the Board of Directors |
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November 9, 2022 |
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Stephen G. Kasnet |
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| By: |
/s/ E. Spencer Abraham |
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Director |
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November 9, 2022 |
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E. Spencer Abraham |
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| By: |
/s/ James J. Bender |
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Director |
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November 9, 2022 |
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James J. Bender |
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| By: |
/s/ Karen Hammond |
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Director |
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November 9, 2022 |
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Karen Hammond |
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| By: |
/s/ W. Reid Sanders |
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Director |
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November 9, 2022 |
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W. Reid Sanders |
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| By: |
/s/ James A. Stern |
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Director |
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November 9, 2022 |
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James A. Stern |
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| By: |
/s/ Hope B. Woodhouse |
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Director |
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November 9, 2022 |
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Hope B. Woodhouse |
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