<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 9, 1994
REGISTRATION NO. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
CAPSTEAD MORTGAGE CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
----------------
MARYLAND 75-2027937
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
2001 BRYAN TOWER
SUITE 3300
DALLAS, TEXAS 75201
(214) 999-2323
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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1994 FLEXIBLE LONG TERM INCENTIVE PLAN
(Full title of the plan)
----------------
ANDREW F. JACOBS
2001 BRYAN TOWER
SUITE 3300
DALLAS, TEXAS 75201
(214) 999-2350
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
----------------
THE COMMISSION IS REQUESTED TO SEND COPIES OF ALL COMMUNICATIONS TO:
DAVID BARBOUR
ANDREWS & KURTH L.L.P.
4400 THANKSGIVING TOWER
DALLAS, TEXAS 75201
(214) 979-4400
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE(1) PRICE(1)(2) FEE
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value 1,250,000(3) $27.6875 $34,609,375 $11,934.27
========================================================================================================
</TABLE>
(1) Calculated on the basis of the average of the high and low sales prices of
the Registrant's Common Stock on May 5, 1994, as reported by the New York
Stock Exchange, Inc.
(2) Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457(c).
(3) Issuable in connection with stock-related awards available for grant under
the Plan.
----------------
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents constituting Part I of this Registration Statement will be sent
or given to employees and directors of Capstead Mortgage Corporation
("Capstead" or the "Company"), as specified by Rule 428(b)(1) promulgated
under the Securities Act of 1933, as amended (the "Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
------------------------------------------------
The following documents heretofore filed by the Company with the Commission
are incorporated herein by reference:
1. Annual Report on Form 10-K for the year ended December 31, 1993, filed
on March 31, 1994.
2. Amendment No. 1 to the Annual Report on Form 10-K/A for the year ended
December 31, 1993, filed on April 20, 1994.
3. The description of the Common Stock contained in the Company's
Registration Statement on Form S-3 filed on May 6, 1993.
In addition, all documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus, and prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed incorporated
by reference in this Prospectus and to be a part hereof from the date of filing
of such documents. Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be modified or superseded for
purposes of this Prospectus to the extent that a statement contained in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute part of this Prospectus.
Item 4. Description of Securities.
--------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
The validity of the Common Stock offered hereby has been passed on for the
Company by Andrews & Kurth L.L.P., Dallas, Texas. Andrews & Kurth L.L.P. will
rely as to all matters of Maryland law on Piper & Marbury, Baltimore, Maryland.
Attorneys at Andrews & Kurth L.L.P. beneficially own 7,718 shares of Common
Stock and 44,744 shares of the Company's $1.26 Cumulative Convertible Preferred
Stock, Series B.
Item 6. Indemnification of Directors and Officers.
------------------------------------------
Capstead's Articles of Incorporation provide for indemnification of directors
to the full extent permitted by Maryland law, indemnification of officers who
are also directors to the extent Capstead shall indemnify its directors and
indemnification of officers who are not directors to such further extent as
shall be authorized by the Board of Directors and be consistent with law.
Section 2-418 of the Maryland General Corporation Law generally permits a
Maryland corporation to indemnify any director made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative, or investigative, by reason of service in his capacity as a
director, unless it is established that (i) the act or omission of the director
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; or (ii)
the director actually received an improper personal benefit in money, property,
or services; or (iii) in the case of any criminal proceeding, the director had
reasonable cause to believe that the act or omission was unlawful.
Indemnification may be against judgments, penalties, fines, settlements, and
reasonable expenses actually incurred by the director in connection with the
proceeding. If the proceeding was one by or in the right of the corporation,
indemnification may not be made in respect of any proceeding in which the
director shall have been adjudged to be liable to the corporation. In addition,
a director may not be indemnified in respect of any proceeding charging
improper personal benefit to the director, whether or not involving action in
the director's official capacity, in which the director was adjudged to be
liable on the basis that personal benefit was improperly received. The
termination of any proceeding by conviction, or a plea of nolo contendere or
its equivalent, or an entry of an order of probation prior to judgment, creates
a rebuttable presumption that the director did not meet the requisite standard
of conduct.
Section 2-418 also provides that a court of appropriate jurisdiction may, upon
application of a director and such notice as the court shall require, order
indemnification if it determines that a director is entitled to reimbursement
because the director has been successful on the merits or otherwise, in any such
proceeding, in which case the director shall be entitled to recover the expenses
of securing such reimbursement, or if the court determines that the director is
fairly and reasonably entitled to indemnification in view of all the relevant
circumstances, whether or not the director has met the applicable standards of
conduct or has been adjudged liable in a proceeding charging improper personal
benefit to the director. Indemnification with respect to any proceeding by or in
the right of the corporation or in which liability shall have been adjudged on
the basis that personal benefit was improperly received shall be limited to
expenses. The indemnification and advancement of expenses provided or authorized
by Section 2-418 may not be deemed exclusive of any other rights, by
indemnification or otherwise, to which a director may be entitled under the
charter, the bylaws, a resolution of stockholders or directors, an agreement or
otherwise, both as to action in an official capacity and as to action in another
capacity while holding such office. A corporation may indemnify and advance
expenses to an officer, employee, or agent of the corporation to the same extent
that it may indemnify directors under Section 2-418 and, in addition, may
indemnify an officer, employee, or agent who is not a director to such further
extent, consistent with law, as may be provided by its charter, bylaws, general
or specific action of its board of directors or contract. Section 2-418 also
provides that a corporation may purchase and maintain insurance against
liabilities for which indemnification is not expressly provided by the statute.
Capstead provides insurance from commercial carriers against certain
liabilities incurred by the directors and officers of the Company.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of Capstead
pursuant to the foregoing provisions, Capstead has been informed that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
-----------------------------------
Not applicable.
ITEM 8. EXHIBITS.
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<TABLE>
<CAPTION>
EXHIBITS DESCRIPTION
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<C> <S>
5.1 --Opinion of Andrews & Kurth L.L.P., counsel to the
Registrant, as to the legality of the Common Stock
being offered
5.2 --Opinion of Piper & Marbury as to the legality of the
Common Stock being offered
23.1 --Consent of Ernst & Young, independent accountants
23.2 --Consent of Andrews & Kurth L.L.P. (incorporated in
Exhibit 5.1)
23.3 --Consent of Piper & Marbury (incorporated in Exhibit
5.2)
24 --Power of Attorney (included on page 3 of this
Registration Statement)
</TABLE>
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 the
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.
(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 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 Securities and Exchange
Commission 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 had been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of
whether such indemnification by them is against public policy as expressed in
the Act and will be governed by the final adjudication of such issue.
<PAGE>
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 DALLAS, STATE OF TEXAS, ON THE 9TH DAY OF MAY,
1994.
Capstead Mortgage Corporation
/s/ Andrew F. Jacobs
By___________________________________
ANDREW F. JACOBS Senior Vice
President--Control and Treasurer
POWER OF ATTORNEY
EACH PERSON WHOSE SIGNATURE APPEARS BELOW CONSTITUTES AND APPOINTS RONN K.
LYTLE, ANDREW F. JACOBS AND JULIE A. MOORE, AND EACH AND ANY OF THEM, HIS OR
HER TRUE AND LAWFUL ATTORNEYS-IN-FACT AND AGENTS, WITH FULL POWER OF
SUBSTITUTION AND RESUBSTITUTION, FOR HIM OR HER IN HIS OR HER NAME, PLACE AND
STEAD, IN ANY AND ALL CAPACITIES, TO SIGN ANY AND ALL AMENDMENTS (INCLUDING
POST-EFFECTIVE AMENDMENTS) TO THIS REGISTRATION STATEMENT, AND TO FILE THE
SAME, WITH ALL EXHIBITS THERETO AND OTHER DOCUMENTS IN CONNECTION THEREWITH,
WITH THE SECURITIES AND EXCHANGE COMMISSION, GRANTING UNTO SAID ATTORNEYS-IN-
FACT AND AGENTS, AND EACH AND ANY OF THEM, 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 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 OR HER SUBSTITUTE OR
SUBSTITUTES, MAY LAWFULLY DO OR CAUSE TO BE DONE BY VIRTUE THEREOF.
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.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Ronn K. Lytle Chairman, Chief May 9, 1994
- ------------------------------------- Executive Officer,
RONN K. LYTLE President and Director
(Principal Executive
Officer)
/s/ Andrew F. Jacobs Senior Vice President-- May 9, 1994
- ------------------------------------- Control and Treasurer
ANDREW F. JACOBS (Principal Financial
and Accounting Officer)
/s/ J. Michael Cornwall Director May 9, 1994
- -------------------------------------
J. MICHAEL CORNWALL
/s/ Bevis Longstreth Director May 9, 1994
- -------------------------------------
BEVIS LONGSTRETH
<PAGE>
SIGNATURE TITLE DATE
/s/ Paul M. Low Director May 9, 1994
- -------------------------------------
PAUL M. LOW
/s/ Harriet E. Miers Director May 9, 1994
- -------------------------------------
HARRIET E. MIERS
/s/ William R. Smith Director May 9, 1994
- -------------------------------------
WILLIAM R. SMITH
<PAGE>
Exhibit 5.1
[LETTERHEAD OF ANDREWS & KURTH APPEARS HERE]
May 9, 1994
Capstead Mortgage Corporation
2001 Bryan Tower
Suite 3300
Dallas, Texas 75201
Re: Capstead Mortgage Corporation
Registration Statement on Form S-8
1994 Flexible Long Term Incentive Plan
Ladies and Gentlemen:
We have acted as counsel for Capstead Mortgage Corporation, a Maryland
corporation (the "Company"), in connection with a Registration Statement on Form
S-8 filed with the Securities and Exchange Commission under the Securities Act
of 1933, as amended (the "Registration Statement"), covering shares of the
Company's common stock, par value $.01 per share ("Common Stock"), to be offered
pursuant to the 1994 Flexible Long Term Incentive Plan (the "Incentive Plan").
In that capacity, we have examined the charter and bylaws of the Company, the
Registration Statement, the corporate action taken by the Company that creates
the Incentive Plan and provides for the issuance of up to 1,250,000 shares of
the Common Stock pursuant thereto, and such other materials and matters as we
have deemed necessary to the issuance of this opinion.
In all such examinations, we have assumed the genuineness of all
signatures, the authority to sign of all signatories, the due execution of all
original and certified documents, and the conformity to the original and
certified documents of all copies submitted to us as conformed or photostatic
copies. As to various questions of fact material to our opinion, we have relied
upon statements and certificates of officers of the Company, public officials
and others.
Based upon such examination and the qualifications herein specified and in
reliance thereon, we are of the opinion that the 1,250,000 shares of the
Company's Common Stock to be offered pursuant to the Incentive Plan have been
duly and validly authorized and, upon issuance and delivery thereof as
contemplated in the Registration Statement, will be legally issued, fully paid
and non-assessable.
<PAGE>
Capstead Mortgage Corporation
May 9, 1994
Page 2
To the extent that the opinion set forth herein is governed by the laws of
the State of Maryland, we have relied solely on, and our opinion is subject to
the limitations and assumptions set forth in, the opinion of Piper & Marbury,
dated of even date herewith and addressed to the Company and upon which we are
authorized to rely. We have made no independent examination of the laws of the
State of Maryland.
This opinion is solely for the benefit of the addressee hereof, and,
without our prior written consent, may not be quoted in whole or in part or
otherwise referred to in any legal opinion, document, or other report, and may
not be furnished to any person or entity. We consent to the filing of this
opinion as an exhibit to the Registration Statement and to the reference to this
firm in the Registration Statement and Prospectus which is a part thereof. This
opinion is delivered as of the date hereof and we disclaim any responsibility to
update this opinion at any time following the date hereof.
Very truly yours,
ANDREWS & KURTH L.L.P.
By:/s/ David Barbour
---------------------------------
David Barbour, Partner
DAB/red
<PAGE>
Exhibit 5.2
Piper & Marbury
May 9, 1994
Capstead Mortgage Corporation
2001 Bryan Tower, Suite 3300
Dallas, Texas 75201
Ladies and Gentlemen:
We have acted as special Maryland counsel for Capstead Mortgage
Corporation, a Maryland corporation (the "Company"), in connection with a
Registration Statement on Form S-8 which was filed by the Company under the
Securities Act of 1933, as amended (the "Registration Statement"), and which
registers certain shares of the Company's common stock, par value $.01 per share
(the "Common Stock"), to be issued pursuant to the Company's 1994 Flexible Long
Term Incentive Plan (the "Plan"). In that capacity, we have reviewed the charter
and by-laws of the Company, the Registration Statement, the corporate action
taken by the Company that creates the Plan and provides for the issuance of up
to 1,250,000 shares of the Common Stock pursuant thereto, and such materials and
matters as we have deemed necessary to the issuance of this opinion.
Based upon the foregoing, as the date hereof, and assuming that up
to 1,250,000 shares of the Company's Common Stock to be offered pursuant to the
Plan have been duly and validly reserved for issuance pursuant to the terms
of the Plan, we are of the opinion that upon issuance or delivery thereof
as contemplated in the Registration Statement, such shares will be fully paid
and non-assessable.
<PAGE>
Capstead Mortgage Corporation
May 9, 1994
Page 2
This opinion is solely for the benefit of the addressee hereof, and,
without our prior written consent, may not be quoted in whole or in part or
otherwise referred to in any legal opinion, document or other report, and may
not be furnished to any person or entity except that Andrews & Kurth L.L.P.,
is authorized to rely on this opinion in rendering its opinion to be filed as
an exhibit to the Registration Statement. We consent to the filing of this
opinion as an exhibit to the Registration Statement and to the reference to
our firm and to our opinion in the Registration Statement and Prospectus which
is a part thereof. This opinion is delivered as of the date hereof and we
disclaim any responsibility to update this opinion at any time following the
date hereof.
Very truly yours,
Piper & Marbury
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8 to be filed on or about May 9, 1994) pertaining to the 1994 Flexible Long
Term Incentive Plan of Capstead Mortgage Corporation of our reports dated
January 24, 1993, with respect to the consolidated financial statements and
schedules of Capstead Mortgage Corporation included in its Annual Report (Form
10-K) as amended by Amendment No. 1 to the Annual Report (Form 10-K/A) for the
year ended December 31, 1993, filed with the Securities and Exchange Commission.
ERNST & YOUNG
Dallas, Texas
May 9, 1994
