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As filed with the Securities and Exchange Commission on June 4, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THORNBURG MORTGAGE ASSET CORPORATION
(Exact name of registrant as specified in its charter)
MARYLAND 85-0404134
(State or other jurisdiction of (I.R.S. Employer)
incorporation or organization) Identification No.)
119 E. MARCY STREET
SANTA FE, NEW MEXICO 87501
(Address of Principal Executive Offices) (Zip Code)
AMENDED AND RESTATED
1992 STOCK OPTION AND INCENTIVE PLAN
(Full title of the plan)
H. GARRETT THORNBURG, JR.
CHAIRMAN OF THE BOARD
THORNBURG MORTGAGE ASSET CORPORATION
119 E. MARCY STREET
SANTA FE, NEW MEXICO 87501
(Name and address of agent for service of process)
(505) 989-1900
(Telephone number, including area code, of agent for service)
The Commission is requested to send copies of all
communication to:
MICHAEL B. JEFFERS, ESQ.
JEFFERS, WILSON, SHAFF & FALK, LLP
18881 VON KARMAN AVENUE, SUITE 1400
IRVINE, CA 92612
(714) 660-7700
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title of securities to be registered Amount to be Proposed maximum Proposed maximum Amount of
registered offering price per share aggregate offering price(1) registration fee
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<S> <C> <C> <C> <C>
Common Stock, par
value, $.01 per share 800,000 shares $20.00 $16,000,000(1) $4848.48
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</TABLE>
(1) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(h)(1), based on the closing price of the Company's
Common Stock.
(2) Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus
included herein also relates to shares of Common Stock previously
registered for sale under Registration Statement No. 33-8112, which was
declared effective on July 1, 1994 and for which a filing fee of
$4,741.38 was previously paid. The amount of securities being
registered for sale, together with the 976,405 remaining securities
registered under Registration Statement 33-8112 represent the maximum
number of securities which are expected to be offered and sold.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information required by Part I (plan
information and registrant information) will be sent or given to employees as
specified by Rule 428(b)(1). Such documents need not be filed with the
Securities and Exchange Commission (the "Commission") either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424. These documents and the documents incorporated by reference in the
Registration Statement pursuant to Item 3 of Part II of this form, 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 CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Thornburg Mortgage Asset Corporation,
a Maryland corporation (the "Company"), with the Commission are incorporated in
and made a part of this Registration Statement by reference, except to the
extent that any statement or information therein is modified, superseded or
replaced by a statement or information contained in any other subsequently filed
document incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996, filed on March 26, 1997;
(2) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997 filed May 5, 1997;
(3) The Company's Form 8-K Dated May 16, 1997
In addition, all reports and documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to filing a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities offered hereby then remaining
unsold shall be deemed to be incorporated by reference herein and shall be
deemed to be a part hereof from the date of the filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES
The Common Stock, par value $.01 per share, of the Company (the
"Common Stock") is registered pursuant to Section 12 of the Exchange Act, and,
therefore, the description of securities is omitted.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of shares of Common Stock issued pursuant to the 1992
Stock Option and Incentive Plan (the "Plan") has been passed upon by Jeffers,
Wilson, Shaff & Falk, LLP. Michael B. Jeffers, a partner in Jeffers, Wilson,
Shaff & Falk, LLP, is the Secretary of the Company, owns 672 shares of the
Company's Common Stock, 1% of the stock of the Manager of the Company, has been
granted options to purchase 38,941 shares of Common Stock at prices ranging from
$9.375 to $20.00 per share and holds dividend equivalent rights (DERs) for 1,811
shares of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Maryland General Corporation Law provides that a Maryland corporation
may indemnify any person who is or was serving at the request of the
corporation as a director, officer, partner, trustee, employee, or agent of
another foreign or domestic corporation, partnership, joint venture, trust or
other enterprise of employee benefit plan ("director"), that is made a party to
any proceeding by reason of service in that capacity unless it is established
that the act or omission of the director was material to the matter giving rise
to the 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, but 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 be adjudged to be liable to the
corporation. Such indemnification may not be made unless authorized for a
specific proceeding after a determination has been made, in a manner prescribed
by law, that indemnification is permissible in the circumstances because the
director has met the applicable standard of conduct. The director must be
indemnified for expenses, however, if he has been successful in the defense of
the proceeding or as otherwise ordered by a court. The law also prescribes the
circumstances under which a corporation may advance expenses to, or obtain
insurance or similar cover for, directors.
The Company's Articles of Incorporation provides for indemnification
of the officers and directors of the Company and eliminates the liability of a
director or officer to the Company or its stockholders for money damages to the
fullest extent permitted by Maryland law.
ITEM 8. EXHIBITS
See Exhibit Index appearing at numbered page 4.
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any Prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the Prospectus any facts or events
arising after the effective date to 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;
(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)(1) 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 by the Registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement;
(2) That, for the purpose of determining liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof;
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, 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.
(h) Insofar as indemnification of directors, officers and
controlling persons of the Registrant for liabilities arising under the
Securities Act of 1933 may be permitted, pursuant to the provisions referred to
in Item 6 of this Registration Statement, 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 has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question of whether such indemnification by the
Registrant is against the 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 requirement of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Santa Fe, New Mexico on June 2, 1997.
THORNBURG MORTGAGE ASSET CORPORATION
Date: June 2, 1997 By /s/ LARRY A. GOLDSTONE
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Larry A. Goldstone
President
POWER OF ATTORNEY
We, the undersigned directors and officers of Thornburg Mortgage Asset
Corporation, do hereby constitute and appoint Larry A. Goldstone, our true and
lawful attorney and agent, to do any and all acts and things in our name and
behalf in our capacities as directors and officers and to execute any and all
instruments for us and in our names in the capacities indicated below, which
said attorneys and agents, or any one of them, may deem necessary or advisable
to enable said corporation to comply with the Securities Act of 1933, as
amended, and any rules, regulations, and requirements of the Securities and
Exchange Commission, in connection with this Registration Statement, including
specifically, but without limitation, power and authority to sign for us or any
of us in our names and in the capacities indicated below, any and all
amendments (including post-effective amendments) hereof; and we do hereby
ratify and confirm all that the said attorneys and agents, or any of them,
shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date Signed
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<S> <C> <C>
/s/ H. GARRETT THORNBURG, JR. Chairman of the Board June 2, 1997
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H. Garrett Thornburg, Jr.
/s/ LARRY A. GOLDSTONE President and Director June 2, 1997
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Larry A. Goldstone
/s/ RICHARD P. STORY Chief Financial Officer and June 2, 1997
- ----------------------------- Treasurer (Principal
Richard P. Story Accounting Officer)
/s/ JOSEPH H. BADAL Director June 2, 1997
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Joseph H. Badal
/s/ OWEN M. LOPEZ Director June 2, 1997
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Owen M. Lopez
/s/ STUART C. SHERMAN Director June 2, 1997
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Stuart C. Sherman
</TABLE>
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EXHIBIT LIST
<TABLE>
<CAPTION>
Exhibit Sequentially
Number Description Number page
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<S> <C>
4.1.1 Amended and Restated 1992 Stock Option and
Incentive Plan (previously filed as Exhibit 10.3
to the Company's Form 10-K for the period ending
December 31, 1996 (file no. 001-11914) and
incorporated herein by reference)
5.1 Opinion of Jeffers, Wilson, Shaff & Falk, LLP
23.1 Consent of counsel (included in Exhibit 5.1)
23.2 Consent of McGladrey & Pullen
</TABLE>
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JEFFERS, WILSON, SHAFF & FALK, LLP
ATTORNEYS AT LAW
18881 VON KARMAN AVENUE
SUITE 1400
IRVINE, CALIFORNIA 92612
TELEPHONE: (714) 660-7700
FACSIMILE: (714) 660-7799
June 3, 1997
Mr. H. Garrett Thornburg, Jr., Chairman
Thornburg Mortgage Asset Corporation
119 East Marcy Street, Suite 202
Santa Fe, New Mexico 87501
Re: Issuance of Shares Pursuant to S-8 Registration Statement
Dear Mr. Thornburg:
This letter relates to the issuance of up to 800,000 shares of Common
Stock, par value $.01 per share (the "Shares"), of Thornburg Mortgage Asset
Corporation, a Maryland corporation (the "Company"), registered pursuant to
its Registration Statement on Form S-8, filed with the Securities and Exchange
Commission on June 4, 1997 (the "Registration Statement"). You have requested
that we deliver to you an opinion as to whether the Shares will have been duly
authorized, validly issued, and, when issued, will be fully paid and
nonassessable shares of Common Stock of the Company. We have also examined the
Articles of Incorporation, as amended, and such other corporate records,
including the resolutions of the Company's Board of Directors, and such other
documents as we have deemed necessary in order to express the opinion set forth
below. In our examination we have assumed the genuineness of all signatures and
the authenticity of all documents submitted to us as originals and the
conformity of all originals of all documents submitted to us as copies. As to
questions of fact material to such opinion, we have relied upon statements and
representations of the Company.
Our opinion is based on existing law which is subject to change either
prospectively or retroactively. Relevant laws could change in a manner that
could adversely affect the Company or its stockholders. We have no obligation to
inform the Company of any such change in the law. We have not been requested to
opine, and we have not opined, as to any issues other than those expressly set
forth herein. This opinion extends only to questions relating to the validity of
the Shares offered and sold under the Registration Statement. We express no
opinion with respect to any other issue.
We are admitted to practice law in the State of California and our
opinion is limited to federal law and the corporate laws of the State of
Maryland that affect such opinion. We express no opinion with respect to any
other law or the laws of any other jurisdiction.
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Thornburg Mortgage Asset Corporation
May 30, 1997
Page 2
Assuming the Shares are issued and paid for in accordance with the
terms of the offering described in the Registration Statement, including
documents incorporated by reference thereto, and when certificates representing
such Shares have been issued to the purchasers, based on the foregoing, we are
of the opinion that the Shares will have been duly authorized, validly issued,
and will be fully paid and nonassessable shares of Common Stock of the Company.
For purposes of rendering this opinion we have made such legal and
factual inquiries as we have deemed necessary under the circumstances. Although
we have not independently verified all of the facts relied upon for purposes
hereof, nothing has come to our attention that has led us to believe that the
facts are other than as stated herein or that there exist other material facts
not considered.
Our Opinion contained herein is solely for the benefit of the Company
and may be relied upon by the Company only in connection with the Registration
Statement. In this regard, we hereby consent to the filing of this opinion,
including this consent, as an exhibit to the Registration Statement.
Very truly yours,
/s/ JEFFERS, WILSON, SHAFF & FALK, LLP
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JEFFERS, WILSON, SHAFF & FALK, LLP
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EXHIBIT 23.2
[LETTERHEAD OF McGLADREY & PULLEN, LLP]
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Amendment to Registration
Statement of Thornburg Mortgage Asset Corporation (the "Company") on Form S-8
of our report, dated January 14, 1997 accompanying the financial statements of
the Company appearing in its 1996 Annual Report on Form 10-K.
/s/ McGLADREY & PULLEN, LLP
McGLADREY & PULLEN, LLP
New York, New York
May 30, 1997
