<PAGE>
As filed with the Securities and Exchange Commission on May 15, 1997
Registration No. 333-_____
- --------------------------------------------------------------------------------
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.)
2711 NORTH HASKELL AVENUE
SUITE 900
DALLAS, TEXAS 75204
(214) 874-2323
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices)
1997 FLEXIBLE LONG TERM INCENTIVE PLAN
(Full title of the plan)
ANDREW F. JACOBS
2711 NORTH HASKELL AVENUE
SUITE 900
DALLAS, TEXAS 75204
(214) 874-2350
(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
1601 ELM STREET
DALLAS, TEXAS 75201
(214) 979-4400
_____________
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
============================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount To Be Offering Price Aggregate Amount of
To Be Registered Registered Per Share (1) Offering Price (1)(2) Registration Fee
<S> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------
Common Stock, $0.01 par value 2,000,000 shares(3) $23.75 $47,500,000 $14,393.94
============================================================================================================
</TABLE>
(1) Calculated on the basis of the average of the high and low sales prices of
the Registrant's Common Stock on May 14, 1997, as reported by the New York
Stock Exchange, Inc.
(2) Estimated solely for the purposes 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 II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by Capstead Mortgage Corporation
(the "Company") with the Securities and Exchange Commission (the "Commission")
are incorporated herein by reference:
1. Annual Report on Form 10-K for the year ended December 31, 1996, filed
on March 14, 1997.
2. Current Report on Form 8-K dated March 26 1997, filed on March 26, 1997.
3. Quarterly Report on Form 10-Q for the quarter ended March 31, 1997,
filed on May 9, 1997.
4. The description of the Common Stock contained in the Company's
Registration Statement under Section 12 of the Securities Exchange Act
of 1934 and all amendments and reports filed for the purpose of updating
that description.
ITEM 4. DESCRIPTION OF SECURITIES.
The information required by Item 4 is not applicable to this Registration
Statement.
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 L.L.P., Baltimore,
Maryland. Attorneys at Andrews & Kurth L.L.P. beneficially own approximately
45,600 shares of Common Stock and approximately 9,700 shares of the Company's
$1.26 Cumulative Convertible Preferred Stock, Series B.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company'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 the Company 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, a plea of nolo contendere or its equivalent,
II-1
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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 the 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 and advance expenses to 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 statute.
The Company provides insurance from commercial carriers against certain
liabilities incurred by the directors and officers of the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The information required by Item 7 is not applicable to this Registration
Statement.
ITEM 8. EXHIBITS.
EXHIBIT DESCRIPTION
------- -----------
5.1 Opinion of Andrews & Kurth L.L.P. as to the legality of the
Common Stock being offered
5.2 Opinion of Piper & Marbury L.L.P. as to the legality of the
Common Stock being offered
23.1 Consent of Ernst & Young LLP
23.2 Consent of Andrews & Kurth L.L.P. (incorporated in Exhibit 5.1)
23.3 Consent of Piper & Marbury L.L.P. (incorporated in Exhibit 5.2)
24.1 Power of Attorney (included on page II-4 of this Registration
Statement)
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 hereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement;
II-2
<PAGE>
(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 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 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 of 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.
II-3
<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 15th day of May,
1997.
CAPSTEAD MORTGAGE CORPORATION
By: /s/ Andrew F. Jacobs
-----------------------------------------------
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 all 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 Executive May 15, 1997
- ----------------------------- Officer, President and Director
RONN K. LYTLE (Principal Executive Officer)
/s/ Andrew F. Jacobs Senior Vice President - Control May 15, 1997
- ----------------------------- and Treasurer (Principal
ANDREW F. JACOBS Financial and Accounting Officer)
/s/ Bevis Longstreth Director May 15, 1997
- -----------------------------
BEVIS LONGSTRETH
<PAGE>
/s/ Paul M. Low Director May 15, 1997
- -----------------------------
PAUL M. LOW
/s/ Harriet E. Miers Director May 15, 1997
- -----------------------------
HARRIET E. MIERS
/s/ William R. Smith Director May 15, 1997
- -----------------------------
WILLIAM R. SMITH
/s/ John C. Tolleson Director May 15, 1997
- -----------------------------
JOHN C. TOLLESON
<PAGE>
[LETTERHEAD OF ANDREWS & KURTH APPEARS HERE]
EXHIBIT 5.1
May 15, 1997
Capstead Mortgage Corporation
2711 N. Haskell
Suite 900
Dallas, Texas 75204
Re: Capstead Mortgage Corporation
Registration Statement on Form S-8
1997 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 by the Company under the Securities Act of 1933 (the "Registration
Statement"), 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 1997 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 2,000,000 shares of Common Stock
pursuant thereto, a Certificate of the Senior Vice President-Control and
Treasurer of the Company dated the date hereof as to certain factual matters and
such other materials and matters as we have deemed necessary to the issuance of
this opinion.
In such examination, we have assumed, without independent investigation,
the genuineness of all signatures, the legal capacity of all individuals who
have executed any of the aforesaid documents, the authenticity of all documents
submitted to us as originals, the conformity with originals of all documents
submitted to us as copies (and the authenticity of the originals of such
copies), and all public records reviewed are accurate and complete. As to
factual matters, we have
<PAGE>
Capstead Mortgage Corporation
May 15, 1997
Page 2
relied on the Certificate of the Senior Vice President-Control and Treasurer of
the Company and have not independently verified the matters stated therein.
Based upon the foregoing, and subject to the assumptions and qualifications
set forth above, we are of the opinion that upon issuance upon issuance and
delivery thereof as contemplated in the Registration Statement and in accordance
with the Plan, such Shares will have been validly issued, fully paid, and non-
assessable.
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
L.L.P., dated May 15, 1997 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 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,
ANDREWS & KURTH L.L.P.
By: /s/ DAVID BARBOUR
-----------------------------------------
David Barbour, Partner
<PAGE>
EXHIBIT 5.2
PIPER & MARBURY
L.L.P.
CHARLES CENTER SOUTH
36 SOUTH CHARLES STREET
BALTIMORE, MARYLAND 21201-3018
410-539-2530 WASHINGTON
FAX: 410-539-0489 NEW YORK
PHILADELPHIA
EASTON
May 15, 1997
Capstead Mortgage Corporation
2711 North Haskell Avenue
Suite 900
Dallas, Texas 75204
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 filed by the Company under the Securities Act
of 1933, as amended (the "Registration Statement"), which registers 2,000,000
shares of the Company's common stock, par value $.01 per share (the "Common
Stock"), to be issued pursuant to the Company's 1997 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
2,000,000 shares of Common Stock pursuant thereto, a Certificate of the Senior
Vice President-Control and Treasurer of the Company dated the date hereof as to
certain factual matters and such other materials and matters as we have deemed
necessary to the issuance of this opinion.
In such examination, we have assumed, without independent investigation,
the genuineness of all signatures, the legal capacity of all individuals who
have executed any of the aforesaid documents, the authenticity of all documents
submitted to us as originals, the conformity with originals of all documents
submitted to us as copies (and the authenticity of the originals of such copies)
and that all public records reviewed are accurate and complete. As to certain
factual matters, we have relied on the Certificate of the Senior Vice President-
Control and Treasurer of the Company and have not independently verified the
matters stated therein.
Based upon the foregoing and having regard for such legal considerations as
we deem relevant, we are of the opinion and so advise you that the Shares to be
issued by the
<PAGE>
PIPER & MARBURY
L.L.P.
Capstead Mortgage Corporation
May 15, 1997
Page 2
Company pursuant to the Plan have been duly and validly authorized and when
issued and delivered as contemplated in the Registration Statement and in
accordance with the Plan, will be, validly issued, fully paid, and non-
assessable.
The opinion herein is limited to the laws of the State of Maryland and we
express no opinion as to the laws of any other jurisdiction. 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. 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,
/s/ Piper & Marbury L.L.P.
<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 14, 1997) pertaining to the 1997 Flexible Long
Term Incentive Plan of Capstead Mortgage Corporation of our reports dated
January 22, 1997, with respect to the consolidated financial statements and
schedule of Capstead Mortgage Corporation included and/or incorporated by
reference in its Annual Report (Form 10-K) for the year ended December 31, 1996,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Ernst & Young LLP
Dallas, Texas
May 13, 1997
