.
.
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CAPSTEAD MORTGAGE CORPORATION
INDEX TO EXHIBIT 10.4
NON-QUALIFIED STOCK OPTION AGREEMENTS:
EXHIBIT NO. GRANTEE
- ----------- -------
10.4(a) Michael W. Brown, Vice President - Asset and Liability
Management and Treasurer
10.4(b) Andrew F. Jacobs, President and Chief Executive Officer
10.4(c) Amar R. Patel, Senior Vice President - Asset and Liability
Management
10.4(d) Phillip A. Reinsch, Senior Vice President, Chief Financial
Officer and Secretary
10.4(e) Robert R. Spears, Jr., Senior Vice President - Asset and
Liability Management
10.4(f) Jack Biegler, Director
10.4(g) Gary Keiser, Director
10.4(h) Paul M. Low, Chairman of the Board
10.4(i) Christopher W. Mahowald, Director
10.4(j) Michael G. O'Neil, Director
10.4(k) Howard Rubin, Director
10.4(l) Mark S. Whiting, Director
RESTRICTED STOCK AGREEMENTS:
EXHIBIT NO. GRANTEE
- ----------- -------
10.4(m) Michael W. Brown, Vice President - Asset and Liability
Management and Treasurer
10.4(n) Andrew F. Jacobs, President and Chief Executive Officer
10.4(o) Amar R. Patel, Senior Vice President - Asset and Liability
Management
10.4(p) Phillip A. Reinsch, Senior Vice President, Chief Financial
Officer and Secretary
10.4(q) Robert R. Spears, Jr., Senior Vice President - Asset and
Liability Management
10.4(r) Jack Biegler, Director
10.4(s) Gary Keiser, Director
10.4(t) Paul M. Low, Chairman of the Board
10.4(u) Christopher W. Mahowald, Director
10.4(v) Michael G. O'Neil, Director
10.4(w) Howard Rubin, Director
10.4(x) Mark S. Whiting, Director
EXHIBIT 10.4(a)
CAPSTEAD MORTGAGE CORPORATION
NONQUALIFIED STOCK OPTION AGREEMENT
FOR EMPLOYEES
THIS AGREEMENT, made as of this 13th day of May, 2005, (hereinafter called
the "Date of Grant") between Capstead Mortgage Corporation, a Maryland
corporation (hereinafter called the "Company"), and Michael W. Brown
(hereinafter called the "Optionee"):
R E C I T A L S:
The Company has adopted the 2004 Flexible Long-Term Incentive Plan (the
"Plan"), which Plan is incorporated herein by reference and made a part of this
Agreement. Capitalized terms not otherwise defined herein shall have the same
meanings as in the Plan.
The Company has determined that it is in the best interests of the Company
and its stockholders to grant the Optionee the option provided for in this
Agreement pursuant to the Plan on the terms set forth therein as an inducement
to enter into or remain in the employment of the Company or one of its
Affiliates, to enable the Optionee to participate in the long-term growth and
financial success of the Company and as an increased incentive to contribute to
the Company's future success and prosperity.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the parties hereto agree as follows:
1. Grant of the Option. The Company hereby grants to the Optionee the
right and option to purchase, on the terms and conditions hereinafter set forth,
30,000 Shares (the "Option"). The purchase price of the Shares subject to this
Option shall be $7.82 per Share (the "Exercise Price"). The Option is not
intended to be treated as an option that complies with Section 422 of the Code
or any successor provision thereto.
2. Option Term. The term of the Option shall begin immediately and
continue until the tenth anniversary of the Date of Grant, subject to earlier
termination as hereinafter provided.
(a) If the Optionee ceases to be an officer or employee of the Company or
any Affiliate by reason of the Optionee's discharge for cause, all rights of the
Optionee to exercise the Option shall terminate, lapse and be forfeited
immediately at the time of the Optionee's discharge for cause.
(b) If the Optionee ceases to be an employee of the Company or any
Affiliate by reason of death, the personal representatives, heirs, legatees or
distributees of the Optionee, as appropriate, shall have the right to exercise
the Option up to the earlier of (i) six months from the Optionee's death or (ii)
the remaining term of the Option.
(c) If the Optionee ceases to be an employee of the Company or any
Affiliate by reason of the Optionee's resignation, Retirement, Disability or for
any reason other than the
2
Optionee's death or discharge for cause, all rights of the Optionee to exercise
the Option shall terminate, lapse, and be forfeited upon the earlier of (i) six
months after the date of the Optionee's termination of employment by reason of
such employee's resignation, Retirement, Disability or such other reason or (ii)
the remaining term of the Option, except that in case the Optionee shall die
within six months after the date of termination of employment by reason of such
employee's resignation, Retirement, Disability or such other reason, the
personal representatives, heirs, legatees or distributees of the Optionee, as
appropriate, shall have the right up to an additional three months from the date
of the Optionee's death to exercise the Option.
3. Vesting of Stock Options.
(a) The Options shall vest (become nonforfeitable) in accordance with the
schedule set forth below:
Percentage of Shares Cumulative
Date Vested on Specified Date Percentage of Shares
- ------------- ------------------------ --------------------
May 13, 2006 25 25
May 13, 2007 25 50
May 13, 2008 25 75
May 13, 2009 25 100
provided, however, that notwithstanding the foregoing schedule, and except as
otherwise provided below in paragraphs (b), (c), (d) or (e) below, no additional
Options shall vest after:
(i) termination of Optionee's employment with the Company or any
Affiliate for any reason (including voluntary and involuntary discharge,
Disability or Retirement), in which case the Optionee shall, at the time
of termination, forfeit all right, title and interest in and to any
Options not then vested;
(ii) an Optionee working full-time at the Date of Grant reduces
his/her scheduled hours worked per week below a standard 40-hour work
week, in which case the Optionee shall, at the time of such reduction and
subject to management's discretion, forfeit all right, title and interest
in and to any Options not then vested; or
(iii) an Optionee working part-time at the Date of Grant reduces
his/her scheduled hours worked per week below a standard 20-hour work
week, in which case the Optionee shall, at the time of such reduction and
subject to management's discretion, forfeit all right, title and interest
in and to any Options not then vested.
(b) If the Optionee ceases to be an employee of the Company or any
Affiliate by reason of death, the personal representatives heirs, legatees or
distributees of the Optionee, as appropriate, shall become fully vested in the
Option effective on the date of the Optionee's death and shall have the
immediate right to exercise the Option to the extent not previously exercised.
(c) In the event of the dissolution or liquidation of the Company, the
Option shall terminate as of a date to be fixed by the Board; provided, however,
that not less than 30 days'
3
written notice of the date so fixed shall be given to the Optionee and the
Optionee shall be fully vested in and shall have the right during such period to
exercise the Option even though the Option would not otherwise be exercisable
under the Vesting Schedule. At the end of such period, any unexercised portion
of the Option shall terminate and be of no further effect.
(d) In the event of a Reorganization:
(1) If there is no plan or agreement respecting the Reorganization
or if such plan or agreement does not specifically provide for the change,
conversion or exchange of the Shares under the unexercised portion of the
Option for other securities, then the provisions of the above paragraph
(c) of this Section 3 shall apply as if the Company had dissolved or been
liquidated on the effective date of the Reorganization; or
(2) If there is a plan or agreement respecting the Reorganization
and if such plan or agreement specifically provides for the change,
conversion or exchange of the Shares under the unexercised portion of the
Option for securities of another corporation, then the Board shall adjust
the Shares under the unexercised portion of the Option in a manner not
inconsistent with the provisions of such plan or agreement for the
adjustment, change, conversion or exchange of such Shares and the Option.
(e) In the event of a Change in Control of the Company, the Option shall
become fully vested and immediately exercisable.
4. Exercise of the Option.
(a) This Option may be exercised as to Shares only in amounts and at
intervals of time specified in this Agreement. Each exercise of the Option, or
any part thereof, shall be evidenced by a notice in writing to the Company. The
Exercise Price of the Shares as to which the Option shall be exercised shall be
paid in full at the time of exercise, and may be paid to the Company either:
(1) in cash (including check, bank draft or money order); or
(2) by the delivery of Shares having a Fair Market Value equal to
the aggregate Exercise Price; provided, however, that such Shares, if
acquired by the exercise of an Option shall have been owned by the
Optionee for more than six months prior to exercise; or
(3) by a combination of cash and Shares as described above; or
(4) by arrangement with a broker acceptable to the Committee in
which payment of the Exercise Price is made pursuant to an irrevocable
direction from the Optionee to the broker to deliver the Company proceeds
from the sale of the option Shares in an amount equal to the exercise
price of the Shares.
4
(b) The amount, as determined by the Committee, of any federal, state or
local tax required to be withheld by the Company due to the exercise of the
Option granted hereunder shall be satisfied either (i) by payment by the
Optionee to the Company of the amount of such withholding obligation in cash or
(ii) through either the retention by the Company of a number of shares out of
the Shares being acquired through the exercise of the Option granted hereunder
or the delivery of already owned Shares having a Fair Market Value equal to the
amount of the withholding obligation. The cash payment or the amount equal to
the Fair Market Value of the Shares so withheld, as the case may be, shall be
remitted by the Company to the appropriate taxing authorities.
(c) The Optionee shall not have any of the rights of a stockholder of the
Company with respect to the Shares covered by this Agreement except to the
extent that one or more certificates of such Shares shall have been delivered to
the Optionee, or the Optionee has been determined to be a stockholder of record
by the Company's Transfer Agent, upon due exercise of the Option granted
hereunder.
5. No Right to Continued Employment. This Agreement shall not confer on
the Optionee any right to continue serving as an employee of the Company nor
shall this Agreement limit in any way the Company's right to terminate or change
the terms of the Optionee's employment.
6. Adjustments Upon Changes in Capitalization or Reorganization. The
number of Shares subject to the Option shall be adjusted from time to time as
follows:
(a) Subject to any required action by stockholders, the number of Shares
subject to the option granted hereunder, and the Exercise Price, shall be
proportionately adjusted for any increase or decrease in the number of issued
Shares of the Company resulting from a subdivision or consolidation of Shares or
the payment of a stock dividend (but only in Shares) or any other increase or
decrease in the number of Shares effected without receipt of consideration by
the Company.
(b) Subject to any required action by stockholders, if the Company shall
be the surviving corporation in any Reorganization, merger or consolidation, the
Option granted hereunder shall pertain to and apply to the securities to which a
holder of the number of Shares subject to the Option granted hereunder would
have been entitled, and if a plan or agreement reflecting any such event is in
effect that specifically provides for the change, conversion or exchange of
Shares, then any adjustment to Shares subject to the Option granted hereunder
shall not be inconsistent with the terms of any such plan or agreement.
(c) In the event of a change in the Shares of the Company as presently
constituted, which is limited to a change of par value into the same number of
Shares with a different par value or without par value, the Shares resulting
from any such change shall be deemed to be the Shares within the meaning of the
Plan.
To the extent that the foregoing adjustments relate to stock or securities
of the Company, such adjustments shall be made by the Board, whose determination
shall be final, binding and conclusive.
5
Except as otherwise specifically provided in this Agreement, the Optionee
shall have no rights by reason of any subdivision or consolidation of stock of
any class or the payment of any stock dividend or any other increase or decrease
in the number of shares of stock of any class or by reason of any dissolution,
liquidation, reorganization, merger or consolidation or spin-off of assets or
stock of another corporation, and any issued by the Company of shares of stock
of any class, or securities convertible into shares of stock of any class, shall
not affect, and no adjustment by reason thereof shall be made with respect to,
the number or Exercise Price of Shares subject to the Option granted hereunder.
7. Non-Transferability of the Option. This Agreement, and the Option
granted hereunder, shall not be transferable otherwise than by will or the laws
of descent and distribution and may be exercised, during the lifetime of the
Optionee, only by the Optionee; provided, however, that this Agreement, and the
Option granted hereunder, may be transferred to one or more members of the
immediate family of the Optionee or to a trust for the benefit of such person or
as directed under a qualified domestic relations order. Any attempted
assignment, transfer, pledge, hypothecation or other disposition of this
Agreement and the Option granted hereunder contrary to the provisions hereof, or
the levy of any execution, attachment or similar process upon this Agreement,
and the Option granted hereunder, shall be null and void and without effect.
8. Compliance with Securities and other Laws. In no event shall the
Company be required to issue Shares under the Option granted hereunder, if the
issuance thereof would constitute a violation of applicable federal or state
securities laws or regulations or a violation of any other law or regulation of
any governmental or regulatory agency or authority or any national securities
exchange. As a condition to any issuance of Shares, the Company may place
legends on shares, issue stop transfer orders and require such agreements or
undertakings as the Company may deem necessary or advisable to assure compliance
with any such laws or regulations, including, if the Company or its counsel
deems it appropriate, representations from the Optionee that the Optionee is
acquiring the Shares solely for investment and not with a view to distribution
and that no distribution of the Shares will be made unless such shares are
registered pursuant to applicable federal and state securities laws, or in the
opinion of counsel of the Company, such registration is unnecessary.
9. Issuance of Shares. Upon the Company's determination that the Option
granted hereunder has been validly exercised as to any of the Shares, the
Committee shall, at its sole discretion, cause the Secretary of the Company to
issue certificates in the Optionee's name for such Shares. The Company shall not
be liable to the Optionee for damages relating to any delays in issuing the
certificates, if any, to the Optionee, any loss of the certificates, or any
mistakes or errors in the issuance of the certificates or in the certificates
themselves.
10. Alternative Award for Cancellation of the Option. For purposes of this
Agreement, the payment to the Optionee of an alternative award or an amount in
cash pursuant to the terms of Section 16 of the Plan in consideration of the
cancellation of the Option granted hereunder shall extinguish any rights of the
Optionee in connection with this Agreement.
11. Notices. Any notice necessary under this Agreement shall be in
writing, signed by the party giving or making the same, and addressed (a) to the
Company in the care of its
6
President or Secretary at the principal executive office of the Company in
Dallas, Texas, (b) to the Optionee at the address appearing in the personnel
records of the Company for such Optionee or (c) to either party at such other
address as either party hereto may hereafter designate in writing to the other.
Except as otherwise provided herein, any such notice shall be deemed effective
upon receipt thereof by the addressee.
12. Choice of Law. THE INTERPRETATION, PERFORMANCE AND ENFORCEMENT OF THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF MARYLAND.
13. Option Subject to Plan. The Option is subject to the Plan. The terms
and provisions of the Plan as it may be amended from time to time are hereby
incorporated herein by reference. In the event of a conflict between any term or
provision contained herein and a term or provision of the Plan, the applicable
terms and provisions of the Plan will govern and prevail.
14. Amendment of Agreement. This Agreement may be amended, altered,
suspended, discontinued or terminated by the Committee; provided that no such
amendment, alteration, suspension or termination shall materially impair the
rights of the Optionee hereunder without the consent of the Optionee.
15. Administration of Plan and Agreement. Any determinations or decisions
made or actions taken arising out of or in connection with the interpretation
and administration of the Plan and this Agreement by the Committee shall be
final and conclusive.
16. Execution in Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original for all purposes and
both of which taken together shall constitute but one and the same instrument.
[Signature Page Follows]
7
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the Date of Grant. By execution of this Agreement the Optionee acknowledges
receipt of a copy of the Plan, the Company's Annual Report on Form 10-K for the
year ended December 31, 2004 and the informational supplement required by Rule
428(b)(1) under the Securities Act of 1933.
CAPSTEAD MORTGAGE CORPORATION
By: /s/ ANDREW F. JACOBS
---------------------------------------
Andrew F. Jacobs
President and Chief Executive Officer
[OPTIONEE]
/s/ MICHAEL W. BROWN
-------------------------------------------
Michael W. Brown
8
EXHIBIT 10.4(b)
CAPSTEAD MORTGAGE CORPORATION
NONQUALIFIED STOCK OPTION AGREEMENT
FOR EMPLOYEES
THIS AGREEMENT, made as of this 13th day of May, 2005, (hereinafter called
the "Date of Grant") between Capstead Mortgage Corporation, a Maryland
corporation (hereinafter called the "Company"), and Andrew F. Jacobs
(hereinafter called the "Optionee"):
R E C I T A L S:
The Company has adopted the 2004 Flexible Long-Term Incentive Plan (the
"Plan"), which Plan is incorporated herein by reference and made a part of this
Agreement. Capitalized terms not otherwise defined herein shall have the same
meanings as in the Plan.
The Company has determined that it is in the best interests of the Company
and its stockholders to grant the Optionee the option provided for in this
Agreement pursuant to the Plan on the terms set forth therein as an inducement
to enter into or remain in the employment of the Company or one of its
Affiliates, to enable the Optionee to participate in the long-term growth and
financial success of the Company and as an increased incentive to contribute to
the Company's future success and prosperity.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the parties hereto agree as follows:
1. Grant of the Option. The Company hereby grants to the Optionee the
right and option to purchase, on the terms and conditions hereinafter set forth,
100,000 Shares (the "Option"). The purchase price of the Shares subject to this
Option shall be $7.82 per Share (the "Exercise Price"). The Option is not
intended to be treated as an option that complies with Section 422 of the Code
or any successor provision thereto.
2. Option Term. The term of the Option shall begin immediately and
continue until the tenth anniversary of the Date of Grant, subject to earlier
termination as hereinafter provided.
(a) If the Optionee ceases to be an officer or employee of the Company or
any Affiliate by reason of the Optionee's discharge for cause, all rights of the
Optionee to exercise the Option shall terminate, lapse and be forfeited
immediately at the time of the Optionee's discharge for cause.
(b) If the Optionee ceases to be an employee of the Company or any
Affiliate by reason of death, the personal representatives, heirs, legatees or
distributees of the Optionee, as appropriate, shall have the right to exercise
the Option up to the earlier of (i) six months from the Optionee's death or (ii)
the remaining term of the Option.
(c) If the Optionee ceases to be an employee of the Company or any
Affiliate by reason of the Optionee's resignation, Retirement, Disability or for
any reason other than the
Optionee's death or discharge for cause, all rights of the Optionee to exercise
the Option shall terminate, lapse, and be forfeited upon the earlier of (i) six
months after the date of the Optionee's termination of employment by reason of
such employee's resignation, Retirement, Disability or such other reason or (ii)
the remaining term of the Option, except that in case the Optionee shall die
within six months after the date of termination of employment by reason of such
employee's resignation, Retirement, Disability or such other reason, the
personal representatives, heirs, legatees or distributees of the Optionee, as
appropriate, shall have the right up to an additional three months from the date
of the Optionee's death to exercise the Option.
3. Vesting of Stock Options.
(a) The Options shall vest (become nonforfeitable) in accordance with the
schedule set forth below:
Percentage of Shares Cumulative
Date Vested on Specified Date Percentage of Shares
- ------------ ------------------------ --------------------
May 13, 2006 25 25
May 13, 2007 25 50
May 13, 2008 25 75
May 13, 2009 25 100
provided, however, that notwithstanding the foregoing schedule, and except as
otherwise provided below in paragraphs (b), (c), (d) or (e) below, no additional
Options shall vest after:
(i) termination of Optionee's employment with the Company or any
Affiliate for any reason (including voluntary and involuntary discharge,
Disability or Retirement), in which case the Optionee shall, at the time
of termination, forfeit all right, title and interest in and to any
Options not then vested;
(ii) an Optionee working full-time at the Date of Grant reduces
his/her scheduled hours worked per week below a standard 40-hour work
week, in which case the Optionee shall, at the time of such reduction and
subject to management's discretion, forfeit all right, title and interest
in and to any Options not then vested; or
(iii) an Optionee working part-time at the Date of Grant reduces
his/her scheduled hours worked per week below a standard 20-hour work
week, in which case the Optionee shall, at the time of such reduction and
subject to management's discretion, forfeit all right, title and interest
in and to any Options not then vested.
(b) If the Optionee ceases to be an employee of the Company or any
Affiliate by reason of death, the personal representatives heirs, legatees or
distributees of the Optionee, as appropriate, shall become fully vested in the
Option effective on the date of the Optionee's death and shall have the
immediate right to exercise the Option to the extent not previously exercised.
(c) In the event of the dissolution or liquidation of the Company, the
Option shall terminate as of a date to be fixed by the Board; provided, however,
that not less than 30 days'
2
written notice of the date so fixed shall be given to the Optionee and the
Optionee shall be fully vested in and shall have the right during such period to
exercise the Option even though the Option would not otherwise be exercisable
under the Vesting Schedule. At the end of such period, any unexercised portion
of the Option shall terminate and be of no further effect.
(d) In the event of a Reorganization:
(1) If there is no plan or agreement respecting the Reorganization
or if such plan or agreement does not specifically provide for the change,
conversion or exchange of the Shares under the unexercised portion of the
Option for other securities, then the provisions of the above paragraph
(c) of this Section 3 shall apply as if the Company had dissolved or been
liquidated on the effective date of the Reorganization; or
(2) If there is a plan or agreement respecting the Reorganization
and if such plan or agreement specifically provides for the change,
conversion or exchange of the Shares under the unexercised portion of the
Option for securities of another corporation, then the Board shall adjust
the Shares under the unexercised portion of the Option in a manner not
inconsistent with the provisions of such plan or agreement for the
adjustment, change, conversion or exchange of such Shares and the Option.
(e) In the event of a Change in Control of the Company, the Option shall
become fully vested and immediately exercisable.
4. Exercise of the Option.
(a) This Option may be exercised as to Shares only in amounts and at
intervals of time specified in this Agreement. Each exercise of the Option, or
any part thereof, shall be evidenced by a notice in writing to the Company. The
Exercise Price of the Shares as to which the Option shall be exercised shall be
paid in full at the time of exercise, and may be paid to the Company either:
(1) in cash (including check, bank draft or money order); or
(2) by the delivery of Shares having a Fair Market Value equal to
the aggregate Exercise Price; provided, however, that such Shares, if
acquired by the exercise of an Option shall have been owned by the
Optionee for more than six months prior to exercise; or
(3) by a combination of cash and Shares as described above; or
(4) by arrangement with a broker acceptable to the Committee in
which payment of the Exercise Price is made pursuant to an irrevocable
direction from the Optionee to the broker to deliver the Company proceeds
from the sale of the option Shares in an amount equal to the exercise
price of the Shares.
3
(b) The amount, as determined by the Committee, of any federal, state or
local tax required to be withheld by the Company due to the exercise of the
Option granted hereunder shall be satisfied either (i) by payment by the
Optionee to the Company of the amount of such withholding obligation in cash or
(ii) through either the retention by the Company of a number of shares out of
the Shares being acquired through the exercise of the Option granted hereunder
or the delivery of already owned Shares having a Fair Market Value equal to the
amount of the withholding obligation. The cash payment or the amount equal to
the Fair Market Value of the Shares so withheld, as the case may be, shall be
remitted by the Company to the appropriate taxing authorities.
(c) The Optionee shall not have any of the rights of a stockholder of the
Company with respect to the Shares covered by this Agreement except to the
extent that one or more certificates of such Shares shall have been delivered to
the Optionee, or the Optionee has been determined to be a stockholder of record
by the Company's Transfer Agent, upon due exercise of the Option granted
hereunder.
5. No Right to Continued Employment. This Agreement shall not confer on
the Optionee any right to continue serving as an employee of the Company nor
shall this Agreement limit in any way the Company's right to terminate or change
the terms of the Optionee's employment.
6. Adjustments Upon Changes in Capitalization or Reorganization. The
number of Shares subject to the Option shall be adjusted from time to time as
follows:
(a) Subject to any required action by stockholders, the number of Shares
subject to the option granted hereunder, and the Exercise Price, shall be
proportionately adjusted for any increase or decrease in the number of issued
Shares of the Company resulting from a subdivision or consolidation of Shares or
the payment of a stock dividend (but only in Shares) or any other increase or
decrease in the number of Shares effected without receipt of consideration by
the Company.
(b) Subject to any required action by stockholders, if the Company shall
be the surviving corporation in any Reorganization, merger or consolidation, the
Option granted hereunder shall pertain to and apply to the securities to which a
holder of the number of Shares subject to the Option granted hereunder would
have been entitled, and if a plan or agreement reflecting any such event is in
effect that specifically provides for the change, conversion or exchange of
Shares, then any adjustment to Shares subject to the Option granted hereunder
shall not be inconsistent with the terms of any such plan or agreement.
(c) In the event of a change in the Shares of the Company as presently
constituted, which is limited to a change of par value into the same number of
Shares with a different par value or without par value, the Shares resulting
from any such change shall be deemed to be the Shares within the meaning of the
Plan.
To the extent that the foregoing adjustments relate to stock or securities
of the Company, such adjustments shall be made by the Board, whose determination
shall be final, binding and conclusive.
4
Except as otherwise specifically provided in this Agreement, the Optionee
shall have no rights by reason of any subdivision or consolidation of stock of
any class or the payment of any stock dividend or any other increase or decrease
in the number of shares of stock of any class or by reason of any dissolution,
liquidation, reorganization, merger or consolidation or spin-off of assets or
stock of another corporation, and any issued by the Company of shares of stock
of any class, or securities convertible into shares of stock of any class, shall
not affect, and no adjustment by reason thereof shall be made with respect to,
the number or Exercise Price of Shares subject to the Option granted hereunder.
7. Non-Transferability of the Option. This Agreement, and the Option
granted hereunder, shall not be transferable otherwise than by will or the laws
of descent and distribution and may be exercised, during the lifetime of the
Optionee, only by the Optionee; provided, however, that this Agreement, and the
Option granted hereunder, may be transferred to one or more members of the
immediate family of the Optionee or to a trust for the benefit of such person or
as directed under a qualified domestic relations order. Any attempted
assignment, transfer, pledge, hypothecation or other disposition of this
Agreement and the Option granted hereunder contrary to the provisions hereof, or
the levy of any execution, attachment or similar process upon this Agreement,
and the Option granted hereunder, shall be null and void and without effect.
8. Compliance with Securities and other Laws. In no event shall the
Company be required to issue Shares under the Option granted hereunder, if the
issuance thereof would constitute a violation of applicable federal or state
securities laws or regulations or a violation of any other law or regulation of
any governmental or regulatory agency or authority or any national securities
exchange. As a condition to any issuance of Shares, the Company may place
legends on shares, issue stop transfer orders and require such agreements or
undertakings as the Company may deem necessary or advisable to assure compliance
with any such laws or regulations, including, if the Company or its counsel
deems it appropriate, representations from the Optionee that the Optionee is
acquiring the Shares solely for investment and not with a view to distribution
and that no distribution of the Shares will be made unless such shares are
registered pursuant to applicable federal and state securities laws, or in the
opinion of counsel of the Company, such registration is unnecessary.
9. Issuance of Shares. Upon the Company's determination that the Option
granted hereunder has been validly exercised as to any of the Shares, the
Committee shall, at its sole discretion, cause the Secretary of the Company to
issue certificates in the Optionee's name for such Shares. The Company shall not
be liable to the Optionee for damages relating to any delays in issuing the
certificates, if any, to the Optionee, any loss of the certificates, or any
mistakes or errors in the issuance of the certificates or in the certificates
themselves.
10. Alternative Award for Cancellation of the Option. For purposes of this
Agreement, the payment to the Optionee of an alternative award or an amount in
cash pursuant to the terms of Section 16 of the Plan in consideration of the
cancellation of the Option granted hereunder shall extinguish any rights of the
Optionee in connection with this Agreement.
11. Notices. Any notice necessary under this Agreement shall be in
writing, signed by the party giving or making the same, and addressed (a) to the
Company in the care of its
5
President or Secretary at the principal executive office of the Company in
Dallas, Texas, (b) to the Optionee at the address appearing in the personnel
records of the Company for such Optionee or (c) to either party at such other
address as either party hereto may hereafter designate in writing to the other.
Except as otherwise provided herein, any such notice shall be deemed effective
upon receipt thereof by the addressee.
12. Choice of Law. THE INTERPRETATION, PERFORMANCE AND ENFORCEMENT OF THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF MARYLAND.
13. Option Subject to Plan. The Option is subject to the Plan. The terms
and provisions of the Plan as it may be amended from time to time are hereby
incorporated herein by reference. In the event of a conflict between any term or
provision contained herein and a term or provision of the Plan, the applicable
terms and provisions of the Plan will govern and prevail.
14. Amendment of Agreement. This Agreement may be amended, altered,
suspended, discontinued or terminated by the Committee; provided that no such
amendment, alteration, suspension or termination shall materially impair the
rights of the Optionee hereunder without the consent of the Optionee.
15. Administration of Plan and Agreement. Any determinations or decisions
made or actions taken arising out of or in connection with the interpretation
and administration of the Plan and this Agreement by the Committee shall be
final and conclusive.
16. Execution in Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original for all purposes and
both of which taken together shall constitute but one and the same instrument.
[Signature Page Follows]
6
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the Date of Grant. By execution of this Agreement the Optionee acknowledges
receipt of a copy of the Plan, the Company's Annual Report on Form 10-K for the
year ended December 31, 2004 and the informational supplement required by Rule
428(b)(1) under the Securities Act of 1933.
CAPSTEAD MORTGAGE CORPORATION
By: /s/ PHILLIP A. REINSCH
---------------------------------------
Phillip A. Reinsch
Senior Vice President and Chief
Financial Officer
[OPTIONEE]
/s/ ANDREW F. JACOBS
-------------------------------------------
Andrew F. Jacobs
7
EXHIBIT 10.4(c)
CAPSTEAD MORTGAGE CORPORATION
NONQUALIFIED STOCK OPTION AGREEMENT
FOR EMPLOYEES
THIS AGREEMENT, made as of this 13th day of May, 2005, (hereinafter called
the "Date of Grant") between Capstead Mortgage Corporation, a Maryland
corporation (hereinafter called the "Company"), and Amar R. Patel (hereinafter
called the "Optionee"):
R E C I T A L S:
The Company has adopted the 2004 Flexible Long-Term Incentive Plan (the
"Plan"), which Plan is incorporated herein by reference and made a part of this
Agreement. Capitalized terms not otherwise defined herein shall have the same
meanings as in the Plan.
The Company has determined that it is in the best interests of the Company
and its stockholders to grant the Optionee the option provided for in this
Agreement pursuant to the Plan on the terms set forth therein as an inducement
to enter into or remain in the employment of the Company or one of its
Affiliates, to enable the Optionee to participate in the long-term growth and
financial success of the Company and as an increased incentive to contribute to
the Company's future success and prosperity.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the parties hereto agree as follows:
1. Grant of the Option. The Company hereby grants to the Optionee the
right and option to purchase, on the terms and conditions hereinafter set forth,
50,000 Shares (the "Option"). The purchase price of the Shares subject to this
Option shall be $7.82 per Share (the "Exercise Price"). The Option is not
intended to be treated as an option that complies with Section 422 of the Code
or any successor provision thereto.
2. Option Term. The term of the Option shall begin immediately and
continue until the tenth anniversary of the Date of Grant, subject to earlier
termination as hereinafter provided.
(a) If the Optionee ceases to be an officer or employee of the Company or
any Affiliate by reason of the Optionee's discharge for cause, all rights of the
Optionee to exercise the Option shall terminate, lapse and be forfeited
immediately at the time of the Optionee's discharge for cause.
(b) If the Optionee ceases to be an employee of the Company or any
Affiliate by reason of death, the personal representatives, heirs, legatees or
distributees of the Optionee, as appropriate, shall have the right to exercise
the Option up to the earlier of (i) six months from the Optionee's death or (ii)
the remaining term of the Option.
(c) If the Optionee ceases to be an employee of the Company or any
Affiliate by reason of the Optionee's resignation, Retirement, Disability or for
any reason other than the
Optionee's death or discharge for cause, all rights of the Optionee to exercise
the Option shall terminate, lapse, and be forfeited upon the earlier of (i) six
months after the date of the Optionee's termination of employment by reason of
such employee's resignation, Retirement, Disability or such other reason or (ii)
the remaining term of the Option, except that in case the Optionee shall die
within six months after the date of termination of employment by reason of such
employee's resignation, Retirement, Disability or such other reason, the
personal representatives, heirs, legatees or distributees of the Optionee, as
appropriate, shall have the right up to an additional three months from the date
of the Optionee's death to exercise the Option.
3. Vesting of Stock Options.
(a) The Options shall vest (become nonforfeitable) in accordance with the
schedule set forth below:
Percentage of Shares Cumulative
Date Vested on Specified Date Percentage of Shares
- ------------ ------------------------ --------------------
May 13, 2006 25 25
May 13, 2007 25 50
May 13, 2008 25 75
May 13, 2009 25 100
provided, however, that notwithstanding the foregoing schedule, and except as
otherwise provided below in paragraphs (b), (c), (d) or (e) below, no additional
Options shall vest after:
(i) termination of Optionee's employment with the Company or any
Affiliate for any reason (including voluntary and involuntary discharge,
Disability or Retirement), in which case the Optionee shall, at the time
of termination, forfeit all right, title and interest in and to any
Options not then vested;
(ii) an Optionee working full-time at the Date of Grant reduces
his/her scheduled hours worked per week below a standard 40-hour work
week, in which case the Optionee shall, at the time of such reduction and
subject to management's discretion, forfeit all right, title and interest
in and to any Options not then vested; or
(iii) an Optionee working part-time at the Date of Grant reduces
his/her scheduled hours worked per week below a standard 20-hour work
week, in which case the Optionee shall, at the time of such reduction and
subject to management's discretion, forfeit all right, title and interest
in and to any Options not then vested.
(b) If the Optionee ceases to be an employee of the Company or any
Affiliate by reason of death, the personal representatives heirs, legatees or
distributees of the Optionee, as appropriate, shall become fully vested in the
Option effective on the date of the Optionee's death and shall have the
immediate right to exercise the Option to the extent not previously exercised.
(c) In the event of the dissolution or liquidation of the Company, the
Option shall terminate as of a date to be fixed by the Board; provided, however,
that not less than 30 days'
2
written notice of the date so fixed shall be given to the Optionee and the
Optionee shall be fully vested in and shall have the right during such period to
exercise the Option even though the Option would not otherwise be exercisable
under the Vesting Schedule. At the end of such period, any unexercised portion
of the Option shall terminate and be of no further effect.
(d) In the event of a Reorganization:
(1) If there is no plan or agreement respecting the Reorganization
or if such plan or agreement does not specifically provide for the change,
conversion or exchange of the Shares under the unexercised portion of the
Option for other securities, then the provisions of the above paragraph
(c) of this Section 3 shall apply as if the Company had dissolved or been
liquidated on the effective date of the Reorganization; or
(2) If there is a plan or agreement respecting the Reorganization
and if such plan or agreement specifically provides for the change,
conversion or exchange of the Shares under the unexercised portion of the
Option for securities of another corporation, then the Board shall adjust
the Shares under the unexercised portion of the Option in a manner not
inconsistent with the provisions of such plan or agreement for the
adjustment, change, conversion or exchange of such Shares and the Option.
(e) In the event of a Change in Control of the Company, the Option shall
become fully vested and immediately exercisable.
4. Exercise of the Option.
(a) This Option may be exercised as to Shares only in amounts and at
intervals of time specified in this Agreement. Each exercise of the Option, or
any part thereof, shall be evidenced by a notice in writing to the Company. The
Exercise Price of the Shares as to which the Option shall be exercised shall be
paid in full at the time of exercise, and may be paid to the Company either:
(1) in cash (including check, bank draft or money order); or
(2) by the delivery of Shares having a Fair Market Value equal to
the aggregate Exercise Price; provided, however, that such Shares, if
acquired by the exercise of an Option shall have been owned by the
Optionee for more than six months prior to exercise; or
(3) by a combination of cash and Shares as described above; or
(4) by arrangement with a broker acceptable to the Committee in
which payment of the Exercise Price is made pursuant to an irrevocable
direction from the Optionee to the broker to deliver the Company proceeds
from the sale of the option Shares in an amount equal to the exercise
price of the Shares.
3
(b) The amount, as determined by the Committee, of any federal, state or
local tax required to be withheld by the Company due to the exercise of the
Option granted hereunder shall be satisfied either (i) by payment by the
Optionee to the Company of the amount of such withholding obligation in cash or
(ii) through either the retention by the Company of a number of shares out of
the Shares being acquired through the exercise of the Option granted hereunder
or the delivery of already owned Shares having a Fair Market Value equal to the
amount of the withholding obligation. The cash payment or the amount equal to
the Fair Market Value of the Shares so withheld, as the case may be, shall be
remitted by the Company to the appropriate taxing authorities.
(c) The Optionee shall not have any of the rights of a stockholder of the
Company with respect to the Shares covered by this Agreement except to the
extent that one or more certificates of such Shares shall have been delivered to
the Optionee, or the Optionee has been determined to be a stockholder of record
by the Company's Transfer Agent, upon due exercise of the Option granted
hereunder.
5. No Right to Continued Employment. This Agreement shall not confer on
the Optionee any right to continue serving as an employee of the Company nor
shall this Agreement limit in any way the Company's right to terminate or change
the terms of the Optionee's employment.
6. Adjustments Upon Changes in Capitalization or Reorganization. The
number of Shares subject to the Option shall be adjusted from time to time as
follows:
(a) Subject to any required action by stockholders, the number of Shares
subject to the option granted hereunder, and the Exercise Price, shall be
proportionately adjusted for any increase or decrease in the number of issued
Shares of the Company resulting from a subdivision or consolidation of Shares or
the payment of a stock dividend (but only in Shares) or any other increase or
decrease in the number of Shares effected without receipt of consideration by
the Company.
(b) Subject to any required action by stockholders, if the Company shall
be the surviving corporation in any Reorganization, merger or consolidation, the
Option granted hereunder shall pertain to and apply to the securities to which a
holder of the number of Shares subject to the Option granted hereunder would
have been entitled, and if a plan or agreement reflecting any such event is in
effect that specifically provides for the change, conversion or exchange of
Shares, then any adjustment to Shares subject to the Option granted hereunder
shall not be inconsistent with the terms of any such plan or agreement.
(c) In the event of a change in the Shares of the Company as presently
constituted, which is limited to a change of par value into the same number of
Shares with a different par value or without par value, the Shares resulting
from any such change shall be deemed to be the Shares within the meaning of the
Plan.
To the extent that the foregoing adjustments relate to stock or securities
of the Company, such adjustments shall be made by the Board, whose determination
shall be final, binding and conclusive.
4
Except as otherwise specifically provided in this Agreement, the Optionee
shall have no rights by reason of any subdivision or consolidation of stock of
any class or the payment of any stock dividend or any other increase or decrease
in the number of shares of stock of any class or by reason of any dissolution,
liquidation, reorganization, merger or consolidation or spin-off of assets or
stock of another corporation, and any issued by the Company of shares of stock
of any class, or securities convertible into shares of stock of any class, shall
not affect, and no adjustment by reason thereof shall be made with respect to,
the number or Exercise Price of Shares subject to the Option granted hereunder.
7. Non-Transferability of the Option. This Agreement, and the Option
granted hereunder, shall not be transferable otherwise than by will or the laws
of descent and distribution and may be exercised, during the lifetime of the
Optionee, only by the Optionee; provided, however, that this Agreement, and the
Option granted hereunder, may be transferred to one or more members of the
immediate family of the Optionee or to a trust for the benefit of such person or
as directed under a qualified domestic relations order. Any attempted
assignment, transfer, pledge, hypothecation or other disposition of this
Agreement and the Option granted hereunder contrary to the provisions hereof, or
the levy of any execution, attachment or similar process upon this Agreement,
and the Option granted hereunder, shall be null and void and without effect.
8. Compliance with Securities and other Laws. In no event shall the
Company be required to issue Shares under the Option granted hereunder, if the
issuance thereof would constitute a violation of applicable federal or state
securities laws or regulations or a violation of any other law or regulation of
any governmental or regulatory agency or authority or any national securities
exchange. As a condition to any issuance of Shares, the Company may place
legends on shares, issue stop transfer orders and require such agreements or
undertakings as the Company may deem necessary or advisable to assure compliance
with any such laws or regulations, including, if the Company or its counsel
deems it appropriate, representations from the Optionee that the Optionee is
acquiring the Shares solely for investment and not with a view to distribution
and that no distribution of the Shares will be made unless such shares are
registered pursuant to applicable federal and state securities laws, or in the
opinion of counsel of the Company, such registration is unnecessary.
9. Issuance of Shares. Upon the Company's determination that the Option
granted hereunder has been validly exercised as to any of the Shares, the
Committee shall, at its sole discretion, cause the Secretary of the Company to
issue certificates in the Optionee's name for such Shares. The Company shall not
be liable to the Optionee for damages relating to any delays in issuing the
certificates, if any, to the Optionee, any loss of the certificates, or any
mistakes or errors in the issuance of the certificates or in the certificates
themselves.
10. Alternative Award for Cancellation of the Option. For purposes of this
Agreement, the payment to the Optionee of an alternative award or an amount in
cash pursuant to the terms of Section 16 of the Plan in consideration of the
cancellation of the Option granted hereunder shall extinguish any rights of the
Optionee in connection with this Agreement.
11. Notices. Any notice necessary under this Agreement shall be in
writing, signed by the party giving or making the same, and addressed (a) to the
Company in the care of its
5
President or Secretary at the principal executive office of the Company in
Dallas, Texas, (b) to the Optionee at the address appearing in the personnel
records of the Company for such Optionee or (c) to either party at such other
address as either party hereto may hereafter designate in writing to the other.
Except as otherwise provided herein, any such notice shall be deemed effective
upon receipt thereof by the addressee.
12. Choice of Law. THE INTERPRETATION, PERFORMANCE AND ENFORCEMENT OF THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF MARYLAND.
13. Option Subject to Plan. The Option is subject to the Plan. The terms
and provisions of the Plan as it may be amended from time to time are hereby
incorporated herein by reference. In the event of a conflict between any term or
provision contained herein and a term or provision of the Plan, the applicable
terms and provisions of the Plan will govern and prevail.
14. Amendment of Agreement. This Agreement may be amended, altered,
suspended, discontinued or terminated by the Committee; provided that no such
amendment, alteration, suspension or termination shall materially impair the
rights of the Optionee hereunder without the consent of the Optionee.
15. Administration of Plan and Agreement. Any determinations or decisions
made or actions taken arising out of or in connection with the interpretation
and administration of the Plan and this Agreement by the Committee shall be
final and conclusive.
16. Execution in Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original for all purposes and
both of which taken together shall constitute but one and the same instrument.
[Signature Page Follows]
6
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the Date of Grant. By execution of this Agreement the Optionee acknowledges
receipt of a copy of the Plan, the Company's Annual Report on Form 10-K for the
year ended December 31, 2004 and the informational supplement required by Rule
428(b)(1) under the Securities Act of 1933.
CAPSTEAD MORTGAGE CORPORATION
By: /s/ ANDREW F. JACOBS
-----------------------------------------
Andrew F. Jacobs
President and Chief Executive Officer
[OPTIONEE]
/s/ AMAR R. PATEL
---------------------------------------------
Amar R. Patel
7
EXHIBIT 10.4(d)
CAPSTEAD MORTGAGE CORPORATION
NONQUALIFIED STOCK OPTION AGREEMENT
FOR EMPLOYEES
THIS AGREEMENT, made as of this 13th day of May, 2005, (hereinafter called
the "Date of Grant") between Capstead Mortgage Corporation, a Maryland
corporation (hereinafter called the "Company"), and Phillip A. Reinsch
(hereinafter called the "Optionee"):
R E C I T A L S:
The Company has adopted the 2004 Flexible Long-Term Incentive Plan (the
"Plan"), which Plan is incorporated herein by reference and made a part of this
Agreement. Capitalized terms not otherwise defined herein shall have the same
meanings as in the Plan.
The Company has determined that it is in the best interests of the Company
and its stockholders to grant the Optionee the option provided for in this
Agreement pursuant to the Plan on the terms set forth therein as an inducement
to enter into or remain in the employment of the Company or one of its
Affiliates, to enable the Optionee to participate in the long-term growth and
financial success of the Company and as an increased incentive to contribute to
the Company's future success and prosperity.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the parties hereto agree as follows:
1. Grant of the Option. The Company hereby grants to the Optionee the
right and option to purchase, on the terms and conditions hereinafter set forth,
50,000 Shares (the "Option"). The purchase price of the Shares subject to this
Option shall be $7.82 per Share (the "Exercise Price"). The Option is not
intended to be treated as an option that complies with Section 422 of the Code
or any successor provision thereto.
2. Option Term. The term of the Option shall begin immediately and
continue until the tenth anniversary of the Date of Grant, subject to earlier
termination as hereinafter provided.
(a) If the Optionee ceases to be an officer or employee of the Company or
any Affiliate by reason of the Optionee's discharge for cause, all rights of the
Optionee to exercise the Option shall terminate, lapse and be forfeited
immediately at the time of the Optionee's discharge for cause.
(b) If the Optionee ceases to be an employee of the Company or any
Affiliate by reason of death, the personal representatives, heirs, legatees or
distributees of the Optionee, as appropriate, shall have the right to exercise
the Option up to the earlier of (i) six months from the Optionee's death or (ii)
the remaining term of the Option.
(c) If the Optionee ceases to be an employee of the Company or any
Affiliate by reason of the Optionee's resignation, Retirement, Disability or for
any reason other than the
Optionee's death or discharge for cause, all rights of the Optionee to exercise
the Option shall terminate, lapse, and be forfeited upon the earlier of (i) six
months after the date of the Optionee's termination of employment by reason of
such employee's resignation, Retirement, Disability or such other reason or (ii)
the remaining term of the Option, except that in case the Optionee shall die
within six months after the date of termination of employment by reason of such
employee's resignation, Retirement, Disability or such other reason, the
personal representatives, heirs, legatees or distributees of the Optionee, as
appropriate, shall have the right up to an additional three months from the date
of the Optionee's death to exercise the Option.
3. Vesting of Stock Options.
(a) The Options shall vest (become nonforfeitable) in accordance with the
schedule set forth below:
Percentage of Shares Cumulative
Date Vested on Specified Date Percentage of Shares
- ------------ ------------------------ --------------------
May 13, 2006 25 25
May 13, 2007 25 50
May 13, 2008 25 75
May 13, 2009 25 100
provided, however, that notwithstanding the foregoing schedule, and except as
otherwise provided below in paragraphs (b), (c), (d) or (e) below, no additional
Options shall vest after:
(i) termination of Optionee's employment with the Company or any
Affiliate for any reason (including voluntary and involuntary discharge,
Disability or Retirement), in which case the Optionee shall, at the time
of termination, forfeit all right, title and interest in and to any
Options not then vested;
(ii) an Optionee working full-time at the Date of Grant reduces
his/her scheduled hours worked per week below a standard 40-hour work
week, in which case the Optionee shall, at the time of such reduction and
subject to management's discretion, forfeit all right, title and interest
in and to any Options not then vested; or
(iii) an Optionee working part-time at the Date of Grant reduces
his/her scheduled hours worked per week below a standard 20-hour work
week, in which case the Optionee shall, at the time of such reduction and
subject to management's discretion, forfeit all right, title and interest
in and to any Options not then vested.
(b) If the Optionee ceases to be an employee of the Company or any
Affiliate by reason of death, the personal representatives heirs, legatees or
distributees of the Optionee, as appropriate, shall become fully vested in the
Option effective on the date of the Optionee's death and shall have the
immediate right to exercise the Option to the extent not previously exercised.
(c) In the event of the dissolution or liquidation of the Company, the
Option shall terminate as of a date to be fixed by the Board; provided, however,
that not less than 30 days'
2
written notice of the date so fixed shall be given to the Optionee and the
Optionee shall be fully vested in and shall have the right during such period to
exercise the Option even though the Option would not otherwise be exercisable
under the Vesting Schedule. At the end of such period, any unexercised portion
of the Option shall terminate and be of no further effect.
(d) In the event of a Reorganization:
(1) If there is no plan or agreement respecting the Reorganization
or if such plan or agreement does not specifically provide for the change,
conversion or exchange of the Shares under the unexercised portion of the
Option for other securities, then the provisions of the above paragraph
(c) of this Section 3 shall apply as if the Company had dissolved or been
liquidated on the effective date of the Reorganization; or
(2) If there is a plan or agreement respecting the Reorganization
and if such plan or agreement specifically provides for the change,
conversion or exchange of the Shares under the unexercised portion of the
Option for securities of another corporation, then the Board shall adjust
the Shares under the unexercised portion of the Option in a manner not
inconsistent with the provisions of such plan or agreement for the
adjustment, change, conversion or exchange of such Shares and the Option.
(e) In the event of a Change in Control of the Company, the Option shall
become fully vested and immediately exercisable.
4. Exercise of the Option.
(a) This Option may be exercised as to Shares only in amounts and at
intervals of time specified in this Agreement. Each exercise of the Option, or
any part thereof, shall be evidenced by a notice in writing to the Company. The
Exercise Price of the Shares as to which the Option shall be exercised shall be
paid in full at the time of exercise, and may be paid to the Company either:
(1) in cash (including check, bank draft or money order); or
(2) by the delivery of Shares having a Fair Market Value equal to
the aggregate Exercise Price; provided, however, that such Shares, if
acquired by the exercise of an Option shall have been owned by the
Optionee for more than six months prior to exercise; or
(3) by a combination of cash and Shares as described above; or
(4) by arrangement with a broker acceptable to the Committee in
which payment of the Exercise Price is made pursuant to an irrevocable
direction from the Optionee to the broker to deliver the Company proceeds
from the sale of the option Shares in an amount equal to the exercise
price of the Shares.
3
(b) The amount, as determined by the Committee, of any federal, state or
local tax required to be withheld by the Company due to the exercise of the
Option granted hereunder shall be satisfied either (i) by payment by the
Optionee to the Company of the amount of such withholding obligation in cash or
(ii) through either the retention by the Company of a number of shares out of
the Shares being acquired through the exercise of the Option granted hereunder
or the delivery of already owned Shares having a Fair Market Value equal to the
amount of the withholding obligation. The cash payment or the amount equal to
the Fair Market Value of the Shares so withheld, as the case may be, shall be
remitted by the Company to the appropriate taxing authorities.
(c) The Optionee shall not have any of the rights of a stockholder of the
Company with respect to the Shares covered by this Agreement except to the
extent that one or more certificates of such Shares shall have been delivered to
the Optionee, or the Optionee has been determined to be a stockholder of record
by the Company's Transfer Agent, upon due exercise of the Option granted
hereunder.
5. No Right to Continued Employment. This Agreement shall not confer on
the Optionee any right to continue serving as an employee of the Company nor
shall this Agreement limit in any way the Company's right to terminate or change
the terms of the Optionee's employment.
6. Adjustments Upon Changes in Capitalization or Reorganization. The
number of Shares subject to the Option shall be adjusted from time to time as
follows:
(a) Subject to any required action by stockholders, the number of Shares
subject to the option granted hereunder, and the Exercise Price, shall be
proportionately adjusted for any increase or decrease in the number of issued
Shares of the Company resulting from a subdivision or consolidation of Shares or
the payment of a stock dividend (but only in Shares) or any other increase or
decrease in the number of Shares effected without receipt of consideration by
the Company.
(b) Subject to any required action by stockholders, if the Company shall
be the surviving corporation in any Reorganization, merger or consolidation, the
Option granted hereunder shall pertain to and apply to the securities to which a
holder of the number of Shares subject to the Option granted hereunder would
have been entitled, and if a plan or agreement reflecting any such event is in
effect that specifically provides for the change, conversion or exchange of
Shares, then any adjustment to Shares subject to the Option granted hereunder
shall not be inconsistent with the terms of any such plan or agreement.
(c) In the event of a change in the Shares of the Company as presently
constituted, which is limited to a change of par value into the same number of
Shares with a different par value or without par value, the Shares resulting
from any such change shall be deemed to be the Shares within the meaning of the
Plan.
To the extent that the foregoing adjustments relate to stock or securities
of the Company, such adjustments shall be made by the Board, whose determination
shall be final, binding and conclusive.
4
Except as otherwise specifically provided in this Agreement, the Optionee
shall have no rights by reason of any subdivision or consolidation of stock of
any class or the payment of any stock dividend or any other increase or decrease
in the number of shares of stock of any class or by reason of any dissolution,
liquidation, reorganization, merger or consolidation or spin-off of assets or
stock of another corporation, and any issued by the Company of shares of stock
of any class, or securities convertible into shares of stock of any class, shall
not affect, and no adjustment by reason thereof shall be made with respect to,
the number or Exercise Price of Shares subject to the Option granted hereunder.
7. Non-Transferability of the Option. This Agreement, and the Option
granted hereunder, shall not be transferable otherwise than by will or the laws
of descent and distribution and may be exercised, during the lifetime of the
Optionee, only by the Optionee; provided, however, that this Agreement, and the
Option granted hereunder, may be transferred to one or more members of the
immediate family of the Optionee or to a trust for the benefit of such person or
as directed under a qualified domestic relations order. Any attempted
assignment, transfer, pledge, hypothecation or other disposition of this
Agreement and the Option granted hereunder contrary to the provisions hereof, or
the levy of any execution, attachment or similar process upon this Agreement,
and the Option granted hereunder, shall be null and void and without effect.
8. Compliance with Securities and other Laws. In no event shall the
Company be required to issue Shares under the Option granted hereunder, if the
issuance thereof would constitute a violation of applicable federal or state
securities laws or regulations or a violation of any other law or regulation of
any governmental or regulatory agency or authority or any national securities
exchange. As a condition to any issuance of Shares, the Company may place
legends on shares, issue stop transfer orders and require such agreements or
undertakings as the Company may deem necessary or advisable to assure compliance
with any such laws or regulations, including, if the Company or its counsel
deems it appropriate, representations from the Optionee that the Optionee is
acquiring the Shares solely for investment and not with a view to distribution
and that no distribution of the Shares will be made unless such shares are
registered pursuant to applicable federal and state securities laws, or in the
opinion of counsel of the Company, such registration is unnecessary.
9. Issuance of Shares. Upon the Company's determination that the Option
granted hereunder has been validly exercised as to any of the Shares, the
Committee shall, at its sole discretion, cause the Secretary of the Company to
issue certificates in the Optionee's name for such Shares. The Company shall not
be liable to the Optionee for damages relating to any delays in issuing the
certificates, if any, to the Optionee, any loss of the certificates, or any
mistakes or errors in the issuance of the certificates or in the certificates
themselves.
10. Alternative Award for Cancellation of the Option. For purposes of this
Agreement, the payment to the Optionee of an alternative award or an amount in
cash pursuant to the terms of Section 16 of the Plan in consideration of the
cancellation of the Option granted hereunder shall extinguish any rights of the
Optionee in connection with this Agreement.
11. Notices. Any notice necessary under this Agreement shall be in
writing, signed by the party giving or making the same, and addressed (a) to the
Company in the care of its
5
President or Secretary at the principal executive office of the Company in
Dallas, Texas, (b) to the Optionee at the address appearing in the personnel
records of the Company for such Optionee or (c) to either party at such other
address as either party hereto may hereafter designate in writing to the other.
Except as otherwise provided herein, any such notice shall be deemed effective
upon receipt thereof by the addressee.
12. Choice of Law. THE INTERPRETATION, PERFORMANCE AND ENFORCEMENT OF THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF MARYLAND.
13. Option Subject to Plan. The Option is subject to the Plan. The terms
and provisions of the Plan as it may be amended from time to time are hereby
incorporated herein by reference. In the event of a conflict between any term or
provision contained herein and a term or provision of the Plan, the applicable
terms and provisions of the Plan will govern and prevail.
14. Amendment of Agreement. This Agreement may be amended, altered,
suspended, discontinued or terminated by the Committee; provided that no such
amendment, alteration, suspension or termination shall materially impair the
rights of the Optionee hereunder without the consent of the Optionee.
15. Administration of Plan and Agreement. Any determinations or decisions
made or actions taken arising out of or in connection with the interpretation
and administration of the Plan and this Agreement by the Committee shall be
final and conclusive.
16. Execution in Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original for all purposes and
both of which taken together shall constitute but one and the same instrument.
[Signature Page Follows]
6
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the Date of Grant. By execution of this Agreement the Optionee acknowledges
receipt of a copy of the Plan, the Company's Annual Report on Form 10-K for the
year ended December 31, 2004 and the informational supplement required by Rule
428(b)(1) under the Securities Act of 1933.
CAPSTEAD MORTGAGE CORPORATION
By: /s/ ANDREW F. JACOBS
--------------------------------------
Andrew F. Jacobs
President and Chief Executive Officer
[OPTIONEE]
/s/ PHILLIP A. REINSCH
-----------------------------------------
Phillip A. Reinsch
7
EXHIBIT 10.4(e)
CAPSTEAD MORTGAGE CORPORATION
NONQUALIFIED STOCK OPTION AGREEMENT
FOR EMPLOYEES
THIS AGREEMENT, made as of this 13th day of May, 2005, (hereinafter called
the "Date of Grant") between Capstead Mortgage Corporation, a Maryland
corporation (hereinafter called the "Company"), and Robert R. Spears, Jr.
(hereinafter called the "Optionee"):
RECITALS:
The Company has adopted the 2004 Flexible Long-Term Incentive Plan (the
"Plan"), which Plan is incorporated herein by reference and made a part of this
Agreement. Capitalized terms not otherwise defined herein shall have the same
meanings as in the Plan.
The Company has determined that it is in the best interests of the Company
and its stockholders to grant the Optionee the option provided for in this
Agreement pursuant to the Plan on the terms set forth therein as an inducement
to enter into or remain in the employment of the Company or one of its
Affiliates, to enable the Optionee to participate in the long-term growth and
financial success of the Company and as an increased incentive to contribute to
the Company's future success and prosperity.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the parties hereto agree as follows:
1. Grant of the Option. The Company hereby grants to the Optionee the
right and option to purchase, on the terms and conditions hereinafter set forth,
50,000 Shares (the "Option"). The purchase price of the Shares subject to this
Option shall be $7.82 per Share (the "Exercise Price"). The Option is not
intended to be treated as an option that complies with Section 422 of the Code
or any successor provision thereto.
2. Option Term. The term of the Option shall begin immediately and
continue until the tenth anniversary of the Date of Grant, subject to earlier
termination as hereinafter provided.
(a) If the Optionee ceases to be an officer or employee of the Company or
any Affiliate by reason of the Optionee's discharge for cause, all rights of the
Optionee to exercise the Option shall terminate, lapse and be forfeited
immediately at the time of the Optionee's discharge for cause.
(b) If the Optionee ceases to be an employee of the Company or any
Affiliate by reason of death, the personal representatives, heirs, legatees or
distributees of the Optionee, as appropriate, shall have the right to exercise
the Option up to the earlier of (i) six months from the Optionee's death or (ii)
the remaining term of the Option.
(c) If the Optionee ceases to be an employee of the Company or any
Affiliate by reason of the Optionee's resignation, Retirement, Disability or for
any reason other than the
Optionee's death or discharge for cause, all rights of the Optionee to exercise
the Option shall terminate, lapse, and be forfeited upon the earlier of (i) six
months after the date of the Optionee's termination of employment by reason of
such employee's resignation, Retirement, Disability or such other reason or (ii)
the remaining term of the Option, except that in case the Optionee shall die
within six months after the date of termination of employment by reason of such
employee's resignation, Retirement, Disability or such other reason, the
personal representatives, heirs, legatees or distributees of the Optionee, as
appropriate, shall have the right up to an additional three months from the date
of the Optionee's death to exercise the Option.
3. Vesting of Stock Options.
(a) The Options shall vest (become nonforfeitable) in accordance with the
schedule set forth below:
Percentage of Shares Cumulative
Date Vested on Specified Date Percentage of Shares
- ------------ ------------------------ --------------------
May 13, 2006 25 25
May 13, 2007 25 50
May 13, 2008 25 75
May 13, 2009 25 100
provided, however, that notwithstanding the foregoing schedule, and except as
otherwise provided below in paragraphs (b), (c), (d) or (e) below, no additional
Options shall vest after:
(i) termination of Optionee's employment with the Company or any
Affiliate for any reason (including voluntary and involuntary discharge,
Disability or Retirement), in which case the Optionee shall, at the time
of termination, forfeit all right, title and interest in and to any
Options not then vested;
(ii) an Optionee working full-time at the Date of Grant reduces
his/her scheduled hours worked per week below a standard 40-hour work
week, in which case the Optionee shall, at the time of such reduction and
subject to management's discretion, forfeit all right, title and interest
in and to any Options not then vested; or
(iii) an Optionee working part-time at the Date of Grant reduces
his/her scheduled hours worked per week below a standard 20-hour work
week, in which case the Optionee shall, at the time of such reduction and
subject to management's discretion, forfeit all right, title and interest
in and to any Options not then vested.
(b) If the Optionee ceases to be an employee of the Company or any
Affiliate by reason of death, the personal representatives heirs, legatees or
distributees of the Optionee, as appropriate, shall become fully vested in the
Option effective on the date of the Optionee's death and shall have the
immediate right to exercise the Option to the extent not previously exercised.
(c) In the event of the dissolution or liquidation of the Company, the
Option shall terminate as of a date to be fixed by the Board; provided, however,
that not less than 30 days'
2
written notice of the date so fixed shall be given to the Optionee and the
Optionee shall be fully vested in and shall have the right during such period to
exercise the Option even though the Option would not otherwise be exercisable
under the Vesting Schedule. At the end of such period, any unexercised portion
of the Option shall terminate and be of no further effect.
(d) In the event of a Reorganization:
(1) If there is no plan or agreement respecting the Reorganization
or if such plan or agreement does not specifically provide for the change,
conversion or exchange of the Shares under the unexercised portion of the
Option for other securities, then the provisions of the above paragraph
(c) of this Section 3 shall apply as if the Company had dissolved or been
liquidated on the effective date of the Reorganization; or
(2) If there is a plan or agreement respecting the Reorganization
and if such plan or agreement specifically provides for the change,
conversion or exchange of the Shares under the unexercised portion of the
Option for securities of another corporation, then the Board shall adjust
the Shares under the unexercised portion of the Option in a manner not
inconsistent with the provisions of such plan or agreement for the
adjustment, change, conversion or exchange of such Shares and the Option.
(e) In the event of a Change in Control of the Company, the Option shall
become fully vested and immediately exercisable.
4. Exercise of the Option.
(a) This Option may be exercised as to Shares only in amounts and at
intervals of time specified in this Agreement. Each exercise of the Option, or
any part thereof, shall be evidenced by a notice in writing to the Company. The
Exercise Price of the Shares as to which the Option shall be exercised shall be
paid in full at the time of exercise, and may be paid to the Company either:
(1) in cash (including check, bank draft or money order); or
(2) by the delivery of Shares having a Fair Market Value equal to
the aggregate Exercise Price; provided, however, that such Shares, if
acquired by the exercise of an Option shall have been owned by the
Optionee for more than six months prior to exercise; or
(3) by a combination of cash and Shares as described above; or
(4) by arrangement with a broker acceptable to the Committee in
which payment of the Exercise Price is made pursuant to an irrevocable
direction from the Optionee to the broker to deliver the Company proceeds
from the sale of the option Shares in an amount equal to the exercise
price of the Shares.
3
(b) The amount, as determined by the Committee, of any federal, state or
local tax required to be withheld by the Company due to the exercise of the
Option granted hereunder shall be satisfied either (i) by payment by the
Optionee to the Company of the amount of such withholding obligation in cash or
(ii) through either the retention by the Company of a number of shares out of
the Shares being acquired through the exercise of the Option granted hereunder
or the delivery of already owned Shares having a Fair Market Value equal to the
amount of the withholding obligation. The cash payment or the amount equal to
the Fair Market Value of the Shares so withheld, as the case may be, shall be
remitted by the Company to the appropriate taxing authorities.
(c) The Optionee shall not have any of the rights of a stockholder of the
Company with respect to the Shares covered by this Agreement except to the
extent that one or more certificates of such Shares shall have been delivered to
the Optionee, or the Optionee has been determined to be a stockholder of record
by the Company's Transfer Agent, upon due exercise of the Option granted
hereunder.
5. No Right to Continued Employment. This Agreement shall not confer on
the Optionee any right to continue serving as an employee of the Company nor
shall this Agreement limit in any way the Company's right to terminate or change
the terms of the Optionee's employment.
6. Adjustments Upon Changes in Capitalization or Reorganization. The
number of Shares subject to the Option shall be adjusted from time to time as
follows:
(a) Subject to any required action by stockholders, the number of Shares
subject to the option granted hereunder, and the Exercise Price, shall be
proportionately adjusted for any increase or decrease in the number of issued
Shares of the Company resulting from a subdivision or consolidation of Shares or
the payment of a stock dividend (but only in Shares) or any other increase or
decrease in the number of Shares effected without receipt of consideration by
the Company.
(b) Subject to any required action by stockholders, if the Company shall
be the surviving corporation in any Reorganization, merger or consolidation, the
Option granted hereunder shall pertain to and apply to the securities to which a
holder of the number of Shares subject to the Option granted hereunder would
have been entitled, and if a plan or agreement reflecting any such event is in
effect that specifically provides for the change, conversion or exchange of
Shares, then any adjustment to Shares subject to the Option granted hereunder
shall not be inconsistent with the terms of any such plan or agreement.
(c) In the event of a change in the Shares of the Company as presently
constituted, which is limited to a change of par value into the same number of
Shares with a different par value or without par value, the Shares resulting
from any such change shall be deemed to be the Shares within the meaning of the
Plan.
To the extent that the foregoing adjustments relate to stock or securities
of the Company, such adjustments shall be made by the Board, whose determination
shall be final, binding and conclusive.
4
Except as otherwise specifically provided in this Agreement, the Optionee
shall have no rights by reason of any subdivision or consolidation of stock of
any class or the payment of any stock dividend or any other increase or decrease
in the number of shares of stock of any class or by reason of any dissolution,
liquidation, reorganization, merger or consolidation or spin-off of assets or
stock of another corporation, and any issued by the Company of shares of stock
of any class, or securities convertible into shares of stock of any class, shall
not affect, and no adjustment by reason thereof shall be made with respect to,
the number or Exercise Price of Shares subject to the Option granted hereunder.
7. Non-Transferability of the Option. This Agreement, and the Option
granted hereunder, shall not be transferable otherwise than by will or the laws
of descent and distribution and may be exercised, during the lifetime of the
Optionee, only by the Optionee; provided, however, that this Agreement, and the
Option granted hereunder, may be transferred to one or more members of the
immediate family of the Optionee or to a trust for the benefit of such person or
as directed under a qualified domestic relations order. Any attempted
assignment, transfer, pledge, hypothecation or other disposition of this
Agreement and the Option granted hereunder contrary to the provisions hereof, or
the levy of any execution, attachment or similar process upon this Agreement,
and the Option granted hereunder, shall be null and void and without effect.
8. Compliance with Securities and other Laws. In no event shall the
Company be required to issue Shares under the Option granted hereunder, if the
issuance thereof would constitute a violation of applicable federal or state
securities laws or regulations or a violation of any other law or regulation of
any governmental or regulatory agency or authority or any national securities
exchange. As a condition to any issuance of Shares, the Company may place
legends on shares, issue stop transfer orders and require such agreements or
undertakings as the Company may deem necessary or advisable to assure compliance
with any such laws or regulations, including, if the Company or its counsel
deems it appropriate, representations from the Optionee that the Optionee is
acquiring the Shares solely for investment and not with a view to distribution
and that no distribution of the Shares will be made unless such shares are
registered pursuant to applicable federal and state securities laws, or in the
opinion of counsel of the Company, such registration is unnecessary.
9. Issuance of Shares. Upon the Company's determination that the Option
granted hereunder has been validly exercised as to any of the Shares, the
Committee shall, at its sole discretion, cause the Secretary of the Company to
issue certificates in the Optionee's name for such Shares. The Company shall not
be liable to the Optionee for damages relating to any delays in issuing the
certificates, if any, to the Optionee, any loss of the certificates, or any
mistakes or errors in the issuance of the certificates or in the certificates
themselves.
10. Alternative Award for Cancellation of the Option. For purposes of this
Agreement, the payment to the Optionee of an alternative award or an amount in
cash pursuant to the terms of Section 16 of the Plan in consideration of the
cancellation of the Option granted hereunder shall extinguish any rights of the
Optionee in connection with this Agreement.
11. Notices. Any notice necessary under this Agreement shall be in
writing, signed by the party giving or making the same, and addressed (a) to the
Company in the care of its
5
President or Secretary at the principal executive office of the Company in
Dallas, Texas, (b) to the Optionee at the address appearing in the personnel
records of the Company for such Optionee or (c) to either party at such other
address as either party hereto may hereafter designate in writing to the other.
Except as otherwise provided herein, any such notice shall be deemed effective
upon receipt thereof by the addressee.
12. Choice of Law. THE INTERPRETATION, PERFORMANCE AND ENFORCEMENT OF THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF MARYLAND.
13. Option Subject to Plan. The Option is subject to the Plan. The terms
and provisions of the Plan as it may be amended from time to time are hereby
incorporated herein by reference. In the event of a conflict between any term or
provision contained herein and a term or provision of the Plan, the applicable
terms and provisions of the Plan will govern and prevail.
14. Amendment of Agreement. This Agreement may be amended, altered,
suspended, discontinued or terminated by the Committee; provided that no such
amendment, alteration, suspension or termination shall materially impair the
rights of the Optionee hereunder without the consent of the Optionee.
15. Administration of Plan and Agreement. Any determinations or decisions
made or actions taken arising out of or in connection with the interpretation
and administration of the Plan and this Agreement by the Committee shall be
final and conclusive.
16. Execution in Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original for all purposes and
both of which taken together shall constitute but one and the same instrument.
[Signature Page Follows]
6
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the Date of Grant. By execution of this Agreement the Optionee acknowledges
receipt of a copy of the Plan, the Company's Annual Report on Form 10-K for the
year ended December 31, 2004 and the informational supplement required by Rule
428(b)(1) under the Securities Act of 1933.
CAPSTEAD MORTGAGE CORPORATION
By: /s/ ANDREW F. JACOBS
-----------------------------------------
Andrew F. Jacobs
President and Chief Executive Officer
[OPTIONEE]
/s/ ROBERT R. SPEARS, JR.
--------------------------------------------
Robert R. Spears, Jr.
7
EXHIBIT 10.4(f)
CAPSTEAD MORTGAGE CORPORATION
NONQUALIFIED STOCK OPTION AGREEMENT
FOR NON-EMPLOYEE DIRECTORS
THIS AGREEMENT, made as of this 21st day of June, 2005 (hereinafter called
the "Date of Grant"), between Capstead Mortgage Corporation, a Maryland
corporation (hereinafter called the "Company"), and Jack Biegler (hereinafter
called the "Optionee"):
RECITALS:
The Company has adopted the 2004 Flexible Long-Term Incentive Plan (the
"Plan"), which Plan is incorporated herein by reference and made a part of this
Agreement. Capitalized terms not otherwise defined herein shall have the same
meanings as in the Plan.
The Company has determined that it is in the best interests of the Company
and its stockholders to grant the option provided for herein to the Optionee
pursuant to the Plan on the terms set forth herein as an inducement to become or
remain a director of the Company, to enable the Optionee to participate in the
long-term growth and financial success of the Company and as an increased
incentive to contribute to the Company's future success and prosperity.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the parties hereto agree as follows:
1. Grant of the Option. (a) The Company hereby grants to the Optionee the
right and option to purchase, on the terms and conditions hereinafter set forth,
10,000 Shares (the "Option"). The purchase price of the Shares subject to this
Option shall be $8.57 per Share (the "Exercise Price"). This Option is not
intended to be treated as an option that complies with Section 422 of the Code,
or any successor provision thereto.
2. Option Term. The term of the Option shall begin immediately and
continue until the tenth anniversary of the Date of Grant, subject to earlier
termination as hereinafter provided.
(a) If the Optionee ceases to be a director of the Company or any
Affiliate by reason of the Optionee's discharge for cause, all rights of the
Optionee to exercise the Option shall terminate, lapse and be forfeited
immediately at the time of the Optionee's discharge for cause.
(b) If the Optionee ceases to be a director of the Company or any
Affiliate by reason of death, the personal representatives, heirs, legatees or
distributees of the Optionee, as appropriate, shall have the right to exercise
the Option up to the earlier of (i) six months from the Optionee's death or (ii)
the remaining term of the Option.
(c) If the Optionee ceases to be a director of the Company or any
Affiliate by reason of the Optionee's resignation, Retirement, Disability or for
any reason other than the Optionee's death or discharge for cause, all rights of
the Optionee to exercise the Option shall terminate, lapse, and be forfeited
upon the earlier of (i) six months after the date Optionee's service as a
director of the Company terminates by reason of such director's resignation,
Retirement, Disability or such other reason or (ii) the remaining term of the
Option, except that in case the Optionee shall die within six months after the
date Optionee's service as an Eligible Director of the Company terminates by
reason of such director's resignation, Retirement, Disability or such other
reason, the personal representatives, heirs, legatees or distributees of the
Optionee, as appropriate, shall have the right up to an additional three months
from the date of the Optionee's death to exercise the Option.
3. Exercise of Option.
(a) This Option is immediately exercisable. Each exercise of the Option,
or any part thereof, shall be evidenced by a notice in writing to the Company.
The Exercise Price of the Shares as to which the Option shall be exercised shall
be paid in full at the time of exercise, and may be paid to the Company either:
(1) in cash (including check, bank draft or money order); or
(2) by the delivery of Shares having a Fair Market Value equal to
the aggregate Exercise Price; provided, however, that such Shares, if
acquired by the exercise of an Option shall have been owned by the
Optionee for more than six months prior to exercise; or
(3) by a combination of cash and Shares as described above; or
(4) by arrangement with a broker acceptable to the Committee in
which payment of the Exercise Price is made pursuant to an irrevocable
direction from the Optionee to the broker to deliver the Company proceeds
from the sale of the option Shares in an amount equal to the exercise
price of the Shares.
(b) The Optionee shall not have any of the rights of a stockholder of the
Company with respect to the Shares covered by this Agreement except to the
extent that one or more certificates of such Shares shall have been delivered to
the Optionee, or the Optionee has been determined to be a stockholder of record
by the Company's Transfer Agent, upon due exercise of the Option granted
hereunder.
4. Adjustments Upon Changes in Capitalization or Reorganization. The
number of Shares subject to the Option shall be adjusted from time to time as
follows:
(a) Subject to any required action by stockholders, the number of Shares
subject to the option granted hereunder, and the Exercise Price, shall be
proportionately adjusted for any increase or decrease in the number of issued
Shares of the Company resulting from a subdivision or consolidation of Shares or
the payment of a stock dividend (but only in Shares) or any other increase or
decrease in the number of Shares effected without receipt of consideration by
the Company.
(b) Subject to any required action by stockholders, if the Company shall
be the surviving corporation in any Reorganization, merger or consolidation, the
Option granted
2
hereunder shall pertain to and apply to the securities to which a holder of the
number of Shares subject to the Option granted hereunder would have been
entitled, and if a plan or agreement reflecting any such event is in effect that
specifically provides for the change, conversion or exchange of Shares, then any
adjustment to Shares subject to the Option granted hereunder shall not be
inconsistent with the terms of any such plan or agreement.
(c) In the event of a change in the Shares of the Company as presently
constituted, which is limited to a change of par value into the same number of
Shares with a different par value or without par value, the Shares resulting
from any such change shall be deemed to be the Shares within the meaning of the
Plan.
To the extent that the foregoing adjustments relate to stock or securities
of the Company, such adjustments shall be made by the Committee, whose
determination shall be final, binding and conclusive.
Except as otherwise specifically provided in this Agreement, the Optionee
shall have no rights by reason of any subdivision or consolidation of stock of
any class or the payment of any stock dividend or any other increase or decrease
in the number of shares of stock of any class or by reason of any dissolution,
liquidation, reorganization, merger or consolidation or spin-off of assets or
stock of another corporation, and any issued by the Company of shares of stock
of any class, or securities convertible into shares of stock of any class, shall
not affect, and no adjustment by reason thereof shall be made with respect to,
the number or Exercise Price of Shares subject to the Option granted hereunder.
5. Non-Transferability of the Option. This Agreement, and the Option
granted hereunder, shall not be transferable otherwise than by will or the laws
of descent and distribution and may be exercised, during the lifetime of the
Optionee, only by the Optionee; provided, however, that this Agreement, and the
Option granted hereunder, may be transferred to one or more members of the
immediate family of the Optionee or to a trust for the benefit of such person or
as directed under a qualified domestic relations order. Any attempted
assignment, transfer, pledge, hypothecation or other disposition of this
Agreement and the Option granted hereunder contrary to the provisions hereof, or
the levy of any execution, attachment or similar process upon this Agreement,
and the Option granted hereunder, shall be null and void and without effect.
6. Compliance with Securities and other Laws. In no event shall the
Company be required to issue Shares under the Option granted hereunder, if the
issuance thereof would constitute a violation of applicable federal or state
securities laws or regulations or a violation of any other law or regulation of
any governmental or regulatory agency or authority or any national securities
exchange. As a condition to any issuance of Shares, the Company may place
legends on shares, issue stop transfer orders and require such agreements or
undertakings as the Company may deem necessary or advisable to assure compliance
with any such laws or regulations, including, if the Company or its counsel
deems it appropriate, representations from the Optionee that the Optionee is
acquiring the Shares solely for investment and not with a view to distribution
and that no distribution of the Shares will be made unless such shares are
registered pursuant to applicable federal and state securities laws, or in the
opinion of counsel of the Company, such registration is unnecessary.
3
7. Issuance of Shares. Upon the Company's determination that the Option
granted hereunder has been validly exercised as to any of the Shares, the
Committee shall, at its sole discretion, cause the Secretary of the Company to
issue certificates in the Optionee's name for such Shares. The Company shall not
be liable to the Optionee for damages relating to any delays in issuing the
certificates, if any, to the Optionee, any loss of the certificates, or any
mistakes or errors in the issuance of the certificates or in the certificates
themselves.
8. Alternative Award for Cancellation of the Option. For purposes of this
Agreement, the payment to the Optionee of an alternative award or an amount in
cash pursuant to the terms of Section 16 of the Plan in consideration of the
cancellation of the Option granted hereunder shall extinguish any rights of the
Optionee in connection with this Agreement.
9. Notices. Any notice necessary under this Agreement shall be in writing,
signed by the party giving or making the same, and addressed (a) to the Company
in the care of its President or Secretary at the principal executive office of
the Company in Dallas, Texas, (b) to the Optionee at the address appearing in
the personnel records of the Company for such Optionee or (c) to either party at
such other address as either party hereto may hereafter designate in writing to
the other. Except as otherwise provided herein, any such notice shall be deemed
effective upon receipt thereof by the addressee.
10. Choice of Law. THE INTERPRETATION, PERFORMANCE AND ENFORCEMENT OF THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF MARYLAND.
11. Option Subject to Plan. The Option is subject to the Plan. The terms
and provisions of the Plan as it may be amended from time to time are hereby
incorporated herein by reference. In the event of a conflict between any term or
provision contained herein and a term or provision of the Plan, the applicable
terms and provisions of the Plan will govern and prevail.
12. Amendment of Agreement. This Agreement may be amended, altered,
suspended, discontinued or terminated by the Committee; provided that no such
amendment, alteration suspension or termination shall materially impair the
rights of the Optionee hereunder without the consent of the Optionee.
13. Administration of Plan and Agreement. Any determinations or decisions
made or actions taken arising out of or in connection with the interpretation
and administration of the Plan and this Agreement by the Committee shall be
final and conclusive.
14. Execution in Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original for all purposes and
both of which taken together shall constitute but one and the same instrument.
[Signature Page Follows]
4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the Date of Grant. By execution of this Agreement, the Optionee acknowledges
receipt of a copy of the Plan, the Company's Annual Report on Form 10-K for the
year ended December 31, 2004 and the informational supplement required by Rule
428(b)(1) under the Securities Act of 1933.
CAPSTEAD MORTGAGE CORPORATION
By: /s/ ANDREW F. JACOBS
--------------------------------------------
President and Chief Executive Officer
[OPTIONEE]
/s/ JACK BIEGLER
----------------------------------------------
Jack Biegler
5
EXHIBIT 10.4(g)
CAPSTEAD MORTGAGE CORPORATION
NONQUALIFIED STOCK OPTION AGREEMENT
FOR NON-EMPLOYEE DIRECTORS
THIS AGREEMENT, made as of this 13th day of May, 2005 (hereinafter called
the "Date of Grant"), between Capstead Mortgage Corporation, a Maryland
corporation (hereinafter called the "Company"), and Gary Keiser (hereinafter
called the "Optionee"):
RECITALS:
The Company has adopted the 2004 Flexible Long-Term Incentive Plan (the
"Plan"), which Plan is incorporated herein by reference and made a part of this
Agreement. Capitalized terms not otherwise defined herein shall have the same
meanings as in the Plan.
The Company has determined that it is in the best interests of the Company
and its stockholders to grant the option provided for herein to the Optionee
pursuant to the Plan on the terms set forth herein as an inducement to become or
remain a director of the Company, to enable the Optionee to participate in the
long-term growth and financial success of the Company and as an increased
incentive to contribute to the Company's future success and prosperity.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the parties hereto agree as follows:
1. Grant of the Option. (a) The Company hereby grants to the Optionee the
right and option to purchase, on the terms and conditions hereinafter set forth,
10,000 Shares (the "Option"). The purchase price of the Shares subject to this
Option shall be $7.82 per Share (the "Exercise Price"). This Option is not
intended to be treated as an option that complies with Section 422 of the Code,
or any successor provision thereto.
2. Option Term. The term of the Option shall begin immediately and
continue until the tenth anniversary of the Date of Grant, subject to earlier
termination as hereinafter provided.
(a) If the Optionee ceases to be a director of the Company or any
Affiliate by reason of the Optionee's discharge for cause, all rights of the
Optionee to exercise the Option shall terminate, lapse and be forfeited
immediately at the time of the Optionee's discharge for cause.
(b) If the Optionee ceases to be a director of the Company or any
Affiliate by reason of death, the personal representatives, heirs, legatees or
distributees of the Optionee, as appropriate, shall have the right to exercise
the Option up to the earlier of (i) six months from the Optionee's death or (ii)
the remaining term of the Option.
(c) If the Optionee ceases to be a director of the Company or any
Affiliate by reason of the Optionee's resignation, Retirement, Disability or for
any reason other than the Optionee's death or discharge for cause, all rights of
the Optionee to exercise the Option shall terminate, lapse, and be forfeited
upon the earlier of (i) six months after the date Optionee's service as a
director of the Company terminates by reason of such director's resignation,
Retirement, Disability or such other reason or (ii) the remaining term of the
Option, except that in case the Optionee shall die within six months after the
date Optionee's service as an Eligible Director of the Company terminates by
reason of such director's resignation, Retirement, Disability or such other
reason, the personal representatives, heirs, legatees or distributees of the
Optionee, as appropriate, shall have the right up to an additional three months
from the date of the Optionee's death to exercise the Option.
3. Exercise of Option.
(a) This Option is immediately exercisable. Each exercise of the Option,
or any part thereof, shall be evidenced by a notice in writing to the Company.
The Exercise Price of the Shares as to which the Option shall be exercised shall
be paid in full at the time of exercise, and may be paid to the Company either:
(1) in cash (including check, bank draft or money order); or
(2) by the delivery of Shares having a Fair Market Value equal to
the aggregate Exercise Price; provided, however, that such Shares, if
acquired by the exercise of an Option shall have been owned by the
Optionee for more than six months prior to exercise; or
(3) by a combination of cash and Shares as described above; or
(4) by arrangement with a broker acceptable to the Committee in
which payment of the Exercise Price is made pursuant to an irrevocable
direction from the Optionee to the broker to deliver the Company proceeds
from the sale of the option Shares in an amount equal to the exercise
price of the Shares.
(b) The Optionee shall not have any of the rights of a stockholder of the
Company with respect to the Shares covered by this Agreement except to the
extent that one or more certificates of such Shares shall have been delivered to
the Optionee, or the Optionee has been determined to be a stockholder of record
by the Company's Transfer Agent, upon due exercise of the Option granted
hereunder.
4. Adjustments Upon Changes in Capitalization or Reorganization. The
number of Shares subject to the Option shall be adjusted from time to time as
follows:
(a) Subject to any required action by stockholders, the number of Shares
subject to the option granted hereunder, and the Exercise Price, shall be
proportionately adjusted for any increase or decrease in the number of issued
Shares of the Company resulting from a subdivision or consolidation of Shares or
the payment of a stock dividend (but only in Shares) or any other increase or
decrease in the number of Shares effected without receipt of consideration by
the Company.
(b) Subject to any required action by stockholders, if the Company shall
be the surviving corporation in any Reorganization, merger or consolidation, the
Option granted
2
hereunder shall pertain to and apply to the securities to which a holder of the
number of Shares subject to the Option granted hereunder would have been
entitled, and if a plan or agreement reflecting any such event is in effect that
specifically provides for the change, conversion or exchange of Shares, then any
adjustment to Shares subject to the Option granted hereunder shall not be
inconsistent with the terms of any such plan or agreement.
(c) In the event of a change in the Shares of the Company as presently
constituted, which is limited to a change of par value into the same number of
Shares with a different par value or without par value, the Shares resulting
from any such change shall be deemed to be the Shares within the meaning of the
Plan.
To the extent that the foregoing adjustments relate to stock or securities
of the Company, such adjustments shall be made by the Committee, whose
determination shall be final, binding and conclusive.
Except as otherwise specifically provided in this Agreement, the Optionee
shall have no rights by reason of any subdivision or consolidation of stock of
any class or the payment of any stock dividend or any other increase or decrease
in the number of shares of stock of any class or by reason of any dissolution,
liquidation, reorganization, merger or consolidation or spin-off of assets or
stock of another corporation, and any issued by the Company of shares of stock
of any class, or securities convertible into shares of stock of any class, shall
not affect, and no adjustment by reason thereof shall be made with respect to,
the number or Exercise Price of Shares subject to the Option granted hereunder.
5. Non-Transferability of the Option. This Agreement, and the Option
granted hereunder, shall not be transferable otherwise than by will or the laws
of descent and distribution and may be exercised, during the lifetime of the
Optionee, only by the Optionee; provided, however, that this Agreement, and the
Option granted hereunder, may be transferred to one or more members of the
immediate family of the Optionee or to a trust for the benefit of such person or
as directed under a qualified domestic relations order. Any attempted
assignment, transfer, pledge, hypothecation or other disposition of this
Agreement and the Option granted hereunder contrary to the provisions hereof, or
the levy of any execution, attachment or similar process upon this Agreement,
and the Option granted hereunder, shall be null and void and without effect.
6. Compliance with Securities and other Laws. In no event shall the
Company be required to issue Shares under the Option granted hereunder, if the
issuance thereof would constitute a violation of applicable federal or state
securities laws or regulations or a violation of any other law or regulation of
any governmental or regulatory agency or authority or any national securities
exchange. As a condition to any issuance of Shares, the Company may place
legends on shares, issue stop transfer orders and require such agreements or
undertakings as the Company may deem necessary or advisable to assure compliance
with any such laws or regulations, including, if the Company or its counsel
deems it appropriate, representations from the Optionee that the Optionee is
acquiring the Shares solely for investment and not with a view to distribution
and that no distribution of the Shares will be made unless such shares are
registered pursuant to applicable federal and state securities laws, or in the
opinion of counsel of the Company, such registration is unnecessary.
3
7. Issuance of Shares. Upon the Company's determination that the Option
granted hereunder has been validly exercised as to any of the Shares, the
Committee shall, at its sole discretion, cause the Secretary of the Company to
issue certificates in the Optionee's name for such Shares. The Company shall not
be liable to the Optionee for damages relating to any delays in issuing the
certificates, if any, to the Optionee, any loss of the certificates, or any
mistakes or errors in the issuance of the certificates or in the certificates
themselves.
8. Alternative Award for Cancellation of the Option. For purposes of this
Agreement, the payment to the Optionee of an alternative award or an amount in
cash pursuant to the terms of Section 16 of the Plan in consideration of the
cancellation of the Option granted hereunder shall extinguish any rights of the
Optionee in connection with this Agreement.
9. Notices. Any notice necessary under this Agreement shall be in writing,
signed by the party giving or making the same, and addressed (a) to the Company
in the care of its President or Secretary at the principal executive office of
the Company in Dallas, Texas, (b) to the Optionee at the address appearing in
the personnel records of the Company for such Optionee or (c) to either party at
such other address as either party hereto may hereafter designate in writing to
the other. Except as otherwise provided herein, any such notice shall be deemed
effective upon receipt thereof by the addressee.
10. Choice of Law. THE INTERPRETATION, PERFORMANCE AND ENFORCEMENT OF THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF MARYLAND.
11. Option Subject to Plan. The Option is subject to the Plan. The terms
and provisions of the Plan as it may be amended from time to time are hereby
incorporated herein by reference. In the event of a conflict between any term or
provision contained herein and a term or provision of the Plan, the applicable
terms and provisions of the Plan will govern and prevail.
12. Amendment of Agreement. This Agreement may be amended, altered,
suspended, discontinued or terminated by the Committee; provided that no such
amendment, alteration suspension or termination shall materially impair the
rights of the Optionee hereunder without the consent of the Optionee.
13. Administration of Plan and Agreement. Any determinations or decisions
made or actions taken arising out of or in connection with the interpretation
and administration of the Plan and this Agreement by the Committee shall be
final and conclusive.
14. Execution in Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original for all purposes and
both of which taken together shall constitute but one and the same instrument.
[Signature Page Follows]
4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the Date of Grant. By execution of this Agreement, the Optionee acknowledges
receipt of a copy of the Plan, the Company's Annual Report on Form 10-K for the
year ended December 31, 2004 and the informational supplement required by Rule
428(b)(1) under the Securities Act of 1933.
CAPSTEAD MORTGAGE CORPORATION
By: /s/ ANDREW F. JACOBS
----------------------------------------------
Andrew F. Jacobs
President and Chief Executive Officer
[OPTIONEE]
/s/ GARY KEISER
-----------------------------------------------
Gary Keiser
5
EXHIBIT 10.4(h)
CAPSTEAD MORTGAGE CORPORATION
NONQUALIFIED STOCK OPTION AGREEMENT
FOR NON-EMPLOYEE DIRECTORS
THIS AGREEMENT, made as of this 13th day of May, 2005 (hereinafter called
the "Date of Grant"), between Capstead Mortgage Corporation, a Maryland
corporation (hereinafter called the "Company"), and Paul M. Low (hereinafter
called the "Optionee"):
RECITALS:
The Company has adopted the 2004 Flexible Long-Term Incentive Plan (the
"Plan"), which Plan is incorporated herein by reference and made a part of this
Agreement. Capitalized terms not otherwise defined herein shall have the same
meanings as in the Plan.
The Company has determined that it is in the best interests of the Company
and its stockholders to grant the option provided for herein to the Optionee
pursuant to the Plan on the terms set forth herein as an inducement to become or
remain a director of the Company, to enable the Optionee to participate in the
long-term growth and financial success of the Company and as an increased
incentive to contribute to the Company's future success and prosperity.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the parties hereto agree as follows:
1. Grant of the Option. (a) The Company hereby grants to the Optionee the
right and option to purchase, on the terms and conditions hereinafter set forth,
10,000 Shares (the "Option"). The purchase price of the Shares subject to this
Option shall be $7.82 per Share (the "Exercise Price"). This Option is not
intended to be treated as an option that complies with Section 422 of the Code,
or any successor provision thereto.
2. Option Term. The term of the Option shall begin immediately and
continue until the tenth anniversary of the Date of Grant, subject to earlier
termination as hereinafter provided.
(a) If the Optionee ceases to be a director of the Company or any
Affiliate by reason of the Optionee's discharge for cause, all rights of the
Optionee to exercise the Option shall terminate, lapse and be forfeited
immediately at the time of the Optionee's discharge for cause.
(b) If the Optionee ceases to be a director of the Company or any
Affiliate by reason of death, the personal representatives, heirs, legatees or
distributees of the Optionee, as appropriate, shall have the right to exercise
the Option up to the earlier of (i) six months from the Optionee's death or (ii)
the remaining term of the Option.
(c) If the Optionee ceases to be a director of the Company or any
Affiliate by reason of the Optionee's resignation, Retirement, Disability or for
any reason other than the Optionee's death or discharge for cause, all rights of
the Optionee to exercise the Option shall terminate, lapse, and be forfeited
upon the earlier of (i) six months after the date Optionee's service as a
director of the Company terminates by reason of such director's resignation,
Retirement, Disability or such other reason or (ii) the remaining term of the
Option, except that in case the Optionee shall die within six months after the
date Optionee's service as an Eligible Director of the Company terminates by
reason of such director's resignation, Retirement, Disability or such other
reason, the personal representatives, heirs, legatees or distributees of the
Optionee, as appropriate, shall have the right up to an additional three months
from the date of the Optionee's death to exercise the Option.
3. Exercise of Option.
(a) This Option is immediately exercisable. Each exercise of the Option,
or any part thereof, shall be evidenced by a notice in writing to the Company.
The Exercise Price of the Shares as to which the Option shall be exercised shall
be paid in full at the time of exercise, and may be paid to the Company either:
(1) in cash (including check, bank draft or money order); or
(2) by the delivery of Shares having a Fair Market Value equal to
the aggregate Exercise Price; provided, however, that such Shares, if
acquired by the exercise of an Option shall have been owned by the
Optionee for more than six months prior to exercise; or
(3) by a combination of cash and Shares as described above; or
(4) by arrangement with a broker acceptable to the Committee in
which payment of the Exercise Price is made pursuant to an irrevocable
direction from the Optionee to the broker to deliver the Company proceeds
from the sale of the option Shares in an amount equal to the exercise
price of the Shares.
(b) The Optionee shall not have any of the rights of a stockholder of the
Company with respect to the Shares covered by this Agreement except to the
extent that one or more certificates of such Shares shall have been delivered to
the Optionee, or the Optionee has been determined to be a stockholder of record
by the Company's Transfer Agent, upon due exercise of the Option granted
hereunder.
4. Adjustments Upon Changes in Capitalization or Reorganization. The
number of Shares subject to the Option shall be adjusted from time to time as
follows:
(a) Subject to any required action by stockholders, the number of Shares
subject to the option granted hereunder, and the Exercise Price, shall be
proportionately adjusted for any increase or decrease in the number of issued
Shares of the Company resulting from a subdivision or consolidation of Shares or
the payment of a stock dividend (but only in Shares) or any other increase or
decrease in the number of Shares effected without receipt of consideration by
the Company.
(b) Subject to any required action by stockholders, if the Company shall
be the surviving corporation in any Reorganization, merger or consolidation, the
Option granted
2
hereunder shall pertain to and apply to the securities to which a holder of the
number of Shares subject to the Option granted hereunder would have been
entitled, and if a plan or agreement reflecting any such event is in effect that
specifically provides for the change, conversion or exchange of Shares, then any
adjustment to Shares subject to the Option granted hereunder shall not be
inconsistent with the terms of any such plan or agreement.
(c) In the event of a change in the Shares of the Company as presently
constituted, which is limited to a change of par value into the same number of
Shares with a different par value or without par value, the Shares resulting
from any such change shall be deemed to be the Shares within the meaning of the
Plan.
To the extent that the foregoing adjustments relate to stock or securities
of the Company, such adjustments shall be made by the Committee, whose
determination shall be final, binding and conclusive.
Except as otherwise specifically provided in this Agreement, the Optionee
shall have no rights by reason of any subdivision or consolidation of stock of
any class or the payment of any stock dividend or any other increase or decrease
in the number of shares of stock of any class or by reason of any dissolution,
liquidation, reorganization, merger or consolidation or spin-off of assets or
stock of another corporation, and any issued by the Company of shares of stock
of any class, or securities convertible into shares of stock of any class, shall
not affect, and no adjustment by reason thereof shall be made with respect to,
the number or Exercise Price of Shares subject to the Option granted hereunder.
5. Non-Transferability of the Option. This Agreement, and the Option
granted hereunder, shall not be transferable otherwise than by will or the laws
of descent and distribution and may be exercised, during the lifetime of the
Optionee, only by the Optionee; provided, however, that this Agreement, and the
Option granted hereunder, may be transferred to one or more members of the
immediate family of the Optionee or to a trust for the benefit of such person or
as directed under a qualified domestic relations order. Any attempted
assignment, transfer, pledge, hypothecation or other disposition of this
Agreement and the Option granted hereunder contrary to the provisions hereof, or
the levy of any execution, attachment or similar process upon this Agreement,
and the Option granted hereunder, shall be null and void and without effect.
6. Compliance with Securities and other Laws. In no event shall the
Company be required to issue Shares under the Option granted hereunder, if the
issuance thereof would constitute a violation of applicable federal or state
securities laws or regulations or a violation of any other law or regulation of
any governmental or regulatory agency or authority or any national securities
exchange. As a condition to any issuance of Shares, the Company may place
legends on shares, issue stop transfer orders and require such agreements or
undertakings as the Company may deem necessary or advisable to assure compliance
with any such laws or regulations, including, if the Company or its counsel
deems it appropriate, representations from the Optionee that the Optionee is
acquiring the Shares solely for investment and not with a view to distribution
and that no distribution of the Shares will be made unless such shares are
registered pursuant to applicable federal and state securities laws, or in the
opinion of counsel of the Company, such registration is unnecessary.
3
7. Issuance of Shares. Upon the Company's determination that the Option
granted hereunder has been validly exercised as to any of the Shares, the
Committee shall, at its sole discretion, cause the Secretary of the Company to
issue certificates in the Optionee's name for such Shares. The Company shall not
be liable to the Optionee for damages relating to any delays in issuing the
certificates, if any, to the Optionee, any loss of the certificates, or any
mistakes or errors in the issuance of the certificates or in the certificates
themselves.
8. Alternative Award for Cancellation of the Option. For purposes of this
Agreement, the payment to the Optionee of an alternative award or an amount in
cash pursuant to the terms of Section 16 of the Plan in consideration of the
cancellation of the Option granted hereunder shall extinguish any rights of the
Optionee in connection with this Agreement.
9. Notices. Any notice necessary under this Agreement shall be in writing,
signed by the party giving or making the same, and addressed (a) to the Company
in the care of its President or Secretary at the principal executive office of
the Company in Dallas, Texas, (b) to the Optionee at the address appearing in
the personnel records of the Company for such Optionee or (c) to either party at
such other address as either party hereto may hereafter designate in writing to
the other. Except as otherwise provided herein, any such notice shall be deemed
effective upon receipt thereof by the addressee.
10. Choice of Law. THE INTERPRETATION, PERFORMANCE AND ENFORCEMENT OF THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF MARYLAND.
11. Option Subject to Plan. The Option is subject to the Plan. The terms
and provisions of the Plan as it may be amended from time to time are hereby
incorporated herein by reference. In the event of a conflict between any term or
provision contained herein and a term or provision of the Plan, the applicable
terms and provisions of the Plan will govern and prevail.
12. Amendment of Agreement. This Agreement may be amended, altered,
suspended, discontinued or terminated by the Committee; provided that no such
amendment, alteration suspension or termination shall materially impair the
rights of the Optionee hereunder without the consent of the Optionee.
13. Administration of Plan and Agreement. Any determinations or decisions
made or actions taken arising out of or in connection with the interpretation
and administration of the Plan and this Agreement by the Committee shall be
final and conclusive.
14. Execution in Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original for all purposes and
both of which taken together shall constitute but one and the same instrument.
[Signature Page Follows]
4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the Date of Grant. By execution of this Agreement, the Optionee acknowledges
receipt of a copy of the Plan, the Company's Annual Report on Form 10-K for the
year ended December 31, 2004 and the informational supplement required by Rule
428(b)(1) under the Securities Act of 1933.
CAPSTEAD MORTGAGE CORPORATION
By: /s/ ANDREW F. JACOBS
----------------------------
Andrew F. Jacobs
President and Chief Executive Officer
[OPTIONEE]
/s/ PAUL M. LOW
-------------------------------
Paul M. Low
5
EXHIBIT 10.4(i)
CAPSTEAD MORTGAGE CORPORATION
NONQUALIFIED STOCK OPTION AGREEMENT
FOR NON-EMPLOYEE DIRECTORS
THIS AGREEMENT, made as of this 21st day of June, 2005 (hereinafter called
the "Date of Grant"), between Capstead Mortgage Corporation, a Maryland
corporation (hereinafter called the "Company"), and Christopher W. Mahowald
(hereinafter called the "Optionee"):
RECITALS:
The Company has adopted the 2004 Flexible Long-Term Incentive Plan (the
"Plan"), which Plan is incorporated herein by reference and made a part of this
Agreement. Capitalized terms not otherwise defined herein shall have the same
meanings as in the Plan.
The Company has determined that it is in the best interests of the Company
and its stockholders to grant the option provided for herein to the Optionee
pursuant to the Plan on the terms set forth herein as an inducement to become or
remain a director of the Company, to enable the Optionee to participate in the
long-term growth and financial success of the Company and as an increased
incentive to contribute to the Company's future success and prosperity.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the parties hereto agree as follows:
1. Grant of the Option. (a) The Company hereby grants to the Optionee the
right and option to purchase, on the terms and conditions hereinafter set forth,
10,000 Shares (the "Option"). The purchase price of the Shares subject to this
Option shall be $8.57 per Share (the "Exercise Price"). This Option is not
intended to be treated as an option that complies with Section 422 of the Code,
or any successor provision thereto.
2. Option Term. The term of the Option shall begin immediately and
continue until the tenth anniversary of the Date of Grant, subject to earlier
termination as hereinafter provided.
(a) If the Optionee ceases to be a director of the Company or any
Affiliate by reason of the Optionee's discharge for cause, all rights of the
Optionee to exercise the Option shall terminate, lapse and be forfeited
immediately at the time of the Optionee's discharge for cause.
(b) If the Optionee ceases to be a director of the Company or any
Affiliate by reason of death, the personal representatives, heirs, legatees or
distributees of the Optionee, as appropriate, shall have the right to exercise
the Option up to the earlier of (i) six months from the Optionee's death or (ii)
the remaining term of the Option.
(c) If the Optionee ceases to be a director of the Company or any
Affiliate by reason of the Optionee's resignation, Retirement, Disability or for
any reason other than the Optionee's death or discharge for cause, all rights of
the Optionee to exercise the Option shall terminate, lapse, and be forfeited
upon the earlier of (i) six months after the date Optionee's service as a
director of the Company terminates by reason of such director's resignation,
Retirement, Disability or such other reason or (ii) the remaining term of the
Option, except that in case the Optionee shall die within six months after the
date Optionee's service as an Eligible Director of the Company terminates by
reason of such director's resignation, Retirement, Disability or such other
reason, the personal representatives, heirs, legatees or distributees of the
Optionee, as appropriate, shall have the right up to an additional three months
from the date of the Optionee's death to exercise the Option.
3. Exercise of Option.
(a) This Option is immediately exercisable. Each exercise of the Option,
or any part thereof, shall be evidenced by a notice in writing to the Company.
The Exercise Price of the Shares as to which the Option shall be exercised shall
be paid in full at the time of exercise, and may be paid to the Company either:
(1) in cash (including check, bank draft or money order); or
(2) by the delivery of Shares having a Fair Market Value equal to
the aggregate Exercise Price; provided, however, that such Shares, if
acquired by the exercise of an Option shall have been owned by the
Optionee for more than six months prior to exercise; or
(3) by a combination of cash and Shares as described above; or
(4) by arrangement with a broker acceptable to the Committee in
which payment of the Exercise Price is made pursuant to an irrevocable
direction from the Optionee to the broker to deliver the Company proceeds
from the sale of the option Shares in an amount equal to the exercise
price of the Shares.
(b) The Optionee shall not have any of the rights of a stockholder of the
Company with respect to the Shares covered by this Agreement except to the
extent that one or more certificates of such Shares shall have been delivered to
the Optionee, or the Optionee has been determined to be a stockholder of record
by the Company's Transfer Agent, upon due exercise of the Option granted
hereunder.
4. Adjustments Upon Changes in Capitalization or Reorganization. The
number of Shares subject to the Option shall be adjusted from time to time as
follows:
(a) Subject to any required action by stockholders, the number of Shares
subject to the option granted hereunder, and the Exercise Price, shall be
proportionately adjusted for any increase or decrease in the number of issued
Shares of the Company resulting from a subdivision or consolidation of Shares or
the payment of a stock dividend (but only in Shares) or any other increase or
decrease in the number of Shares effected without receipt of consideration by
the Company.
(b) Subject to any required action by stockholders, if the Company shall
be the surviving corporation in any Reorganization, merger or consolidation, the
Option granted
2
hereunder shall pertain to and apply to the securities to which a holder of the
number of Shares subject to the Option granted hereunder would have been
entitled, and if a plan or agreement reflecting any such event is in effect that
specifically provides for the change, conversion or exchange of Shares, then any
adjustment to Shares subject to the Option granted hereunder shall not be
inconsistent with the terms of any such plan or agreement.
(c) In the event of a change in the Shares of the Company as presently
constituted, which is limited to a change of par value into the same number of
Shares with a different par value or without par value, the Shares resulting
from any such change shall be deemed to be the Shares within the meaning of the
Plan.
To the extent that the foregoing adjustments relate to stock or securities
of the Company, such adjustments shall be made by the Committee, whose
determination shall be final, binding and conclusive.
Except as otherwise specifically provided in this Agreement, the Optionee
shall have no rights by reason of any subdivision or consolidation of stock of
any class or the payment of any stock dividend or any other increase or decrease
in the number of shares of stock of any class or by reason of any dissolution,
liquidation, reorganization, merger or consolidation or spin-off of assets or
stock of another corporation, and any issued by the Company of shares of stock
of any class, or securities convertible into shares of stock of any class, shall
not affect, and no adjustment by reason thereof shall be made with respect to,
the number or Exercise Price of Shares subject to the Option granted hereunder.
5. Non-Transferability of the Option. This Agreement, and the Option
granted hereunder, shall not be transferable otherwise than by will or the laws
of descent and distribution and may be exercised, during the lifetime of the
Optionee, only by the Optionee; provided, however, that this Agreement, and the
Option granted hereunder, may be transferred to one or more members of the
immediate family of the Optionee or to a trust for the benefit of such person or
as directed under a qualified domestic relations order. Any attempted
assignment, transfer, pledge, hypothecation or other disposition of this
Agreement and the Option granted hereunder contrary to the provisions hereof, or
the levy of any execution, attachment or similar process upon this Agreement,
and the Option granted hereunder, shall be null and void and without effect.
6. Compliance with Securities and other Laws. In no event shall the
Company be required to issue Shares under the Option granted hereunder, if the
issuance thereof would constitute a violation of applicable federal or state
securities laws or regulations or a violation of any other law or regulation of
any governmental or regulatory agency or authority or any national securities
exchange. As a condition to any issuance of Shares, the Company may place
legends on shares, issue stop transfer orders and require such agreements or
undertakings as the Company may deem necessary or advisable to assure compliance
with any such laws or regulations, including, if the Company or its counsel
deems it appropriate, representations from the Optionee that the Optionee is
acquiring the Shares solely for investment and not with a view to distribution
and that no distribution of the Shares will be made unless such shares are
registered pursuant to applicable federal and state securities laws, or in the
opinion of counsel of the Company, such registration is unnecessary.
3
7. Issuance of Shares. Upon the Company's determination that the Option
granted hereunder has been validly exercised as to any of the Shares, the
Committee shall, at its sole discretion, cause the Secretary of the Company to
issue certificates in the Optionee's name for such Shares. The Company shall not
be liable to the Optionee for damages relating to any delays in issuing the
certificates, if any, to the Optionee, any loss of the certificates, or any
mistakes or errors in the issuance of the certificates or in the certificates
themselves.
8. Alternative Award for Cancellation of the Option. For purposes of this
Agreement, the payment to the Optionee of an alternative award or an amount in
cash pursuant to the terms of Section 16 of the Plan in consideration of the
cancellation of the Option granted hereunder shall extinguish any rights of the
Optionee in connection with this Agreement.
9. Notices. Any notice necessary under this Agreement shall be in writing,
signed by the party giving or making the same, and addressed (a) to the Company
in the care of its President or Secretary at the principal executive office of
the Company in Dallas, Texas, (b) to the Optionee at the address appearing in
the personnel records of the Company for such Optionee or (c) to either party at
such other address as either party hereto may hereafter designate in writing to
the other. Except as otherwise provided herein, any such notice shall be deemed
effective upon receipt thereof by the addressee.
10. Choice of Law. THE INTERPRETATION, PERFORMANCE AND ENFORCEMENT OF THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF MARYLAND.
11. Option Subject to Plan. The Option is subject to the Plan. The terms
and provisions of the Plan as it may be amended from time to time are hereby
incorporated herein by reference. In the event of a conflict between any term or
provision contained herein and a term or provision of the Plan, the applicable
terms and provisions of the Plan will govern and prevail.
12. Amendment of Agreement. This Agreement may be amended, altered,
suspended, discontinued or terminated by the Committee; provided that no such
amendment, alteration suspension or termination shall materially impair the
rights of the Optionee hereunder without the consent of the Optionee.
13. Administration of Plan and Agreement. Any determinations or decisions
made or actions taken arising out of or in connection with the interpretation
and administration of the Plan and this Agreement by the Committee shall be
final and conclusive.
14. Execution in Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original for all purposes and
both of which taken together shall constitute but one and the same instrument.
[Signature Page Follows]
4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the Date of Grant. By execution of this Agreement, the Optionee acknowledges
receipt of a copy of the Plan, the Company's Annual Report on Form 10-K for the
year ended December 31, 2004 and the informational supplement required by Rule
428(b)(1) under the Securities Act of 1933.
CAPSTEAD MORTGAGE CORPORATION
By: /s/ ANDREW F. JACOBS
--------------------------------------
Andrew F. Jacobs
President and Chief Executive Officer
[OPTIONEE]
/s/ CHRISTOPHER W. MAHOWALD
-----------------------------------------
Christopher W. Mahowald
5
EXHIBIT 10.4(j)
CAPSTEAD MORTGAGE CORPORATION
NONQUALIFIED STOCK OPTION AGREEMENT
FOR NON-EMPLOYEE DIRECTORS
THIS AGREEMENT, made as of this 13th day of May, 2005 (hereinafter called
the "Date of Grant"), between Capstead Mortgage Corporation, a Maryland
corporation (hereinafter called the "Company"), and Michael G. O'Neil
(hereinafter called the "Optionee"):
RECITALS:
The Company has adopted the 2004 Flexible Long-Term Incentive Plan (the
"Plan"), which Plan is incorporated herein by reference and made a part of this
Agreement. Capitalized terms not otherwise defined herein shall have the same
meanings as in the Plan.
The Company has determined that it is in the best interests of the Company
and its stockholders to grant the option provided for herein to the Optionee
pursuant to the Plan on the terms set forth herein as an inducement to become or
remain a director of the Company, to enable the Optionee to participate in the
long-term growth and financial success of the Company and as an increased
incentive to contribute to the Company's future success and prosperity.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the parties hereto agree as follows:
1. Grant of the Option. (a) The Company hereby grants to the Optionee the
right and option to purchase, on the terms and conditions hereinafter set forth,
10,000 Shares (the "Option"). The purchase price of the Shares subject to this
Option shall be $7.82 per Share (the "Exercise Price"). This Option is not
intended to be treated as an option that complies with Section 422 of the Code,
or any successor provision thereto.
2. Option Term. The term of the Option shall begin immediately and
continue until the tenth anniversary of the Date of Grant, subject to earlier
termination as hereinafter provided.
(a) If the Optionee ceases to be a director of the Company or any
Affiliate by reason of the Optionee's discharge for cause, all rights of the
Optionee to exercise the Option shall terminate, lapse and be forfeited
immediately at the time of the Optionee's discharge for cause.
(b) If the Optionee ceases to be a director of the Company or any
Affiliate by reason of death, the personal representatives, heirs, legatees or
distributees of the Optionee, as appropriate, shall have the right to exercise
the Option up to the earlier of (i) six months from the Optionee's death or (ii)
the remaining term of the Option.
(c) If the Optionee ceases to be a director of the Company or any
Affiliate by reason of the Optionee's resignation, Retirement, Disability or for
any reason other than the Optionee's death or discharge for cause, all rights of
the Optionee to exercise the Option shall terminate, lapse, and be forfeited
upon the earlier of (i) six months after the date Optionee's service as
a director of the Company terminates by reason of such director's resignation,
Retirement, Disability or such other reason or (ii) the remaining term of the
Option, except that in case the Optionee shall die within six months after the
date Optionee's service as an Eligible Director of the Company terminates by
reason of such director's resignation, Retirement, Disability or such other
reason, the personal representatives, heirs, legatees or distributees of the
Optionee, as appropriate, shall have the right up to an additional three months
from the date of the Optionee's death to exercise the Option.
3. Exercise of Option.
(a) This Option is immediately exercisable. Each exercise of the Option,
or any part thereof, shall be evidenced by a notice in writing to the Company.
The Exercise Price of the Shares as to which the Option shall be exercised shall
be paid in full at the time of exercise, and may be paid to the Company either:
(1) in cash (including check, bank draft or money order); or
(2) by the delivery of Shares having a Fair Market Value equal to
the aggregate Exercise Price; provided, however, that such Shares, if
acquired by the exercise of an Option shall have been owned by the
Optionee for more than six months prior to exercise; or
(3) by a combination of cash and Shares as described above; or
(4) by arrangement with a broker acceptable to the Committee in
which payment of the Exercise Price is made pursuant to an irrevocable
direction from the Optionee to the broker to deliver the Company proceeds
from the sale of the option Shares in an amount equal to the exercise
price of the Shares.
(b) The Optionee shall not have any of the rights of a stockholder of the
Company with respect to the Shares covered by this Agreement except to the
extent that one or more certificates of such Shares shall have been delivered to
the Optionee, or the Optionee has been determined to be a stockholder of record
by the Company's Transfer Agent, upon due exercise of the Option granted
hereunder.
4. Adjustments Upon Changes in Capitalization or Reorganization. The
number of Shares subject to the Option shall be adjusted from time to time as
follows:
(a) Subject to any required action by stockholders, the number of Shares
subject to the option granted hereunder, and the Exercise Price, shall be
proportionately adjusted for any increase or decrease in the number of issued
Shares of the Company resulting from a subdivision or consolidation of Shares or
the payment of a stock dividend (but only in Shares) or any other increase or
decrease in the number of Shares effected without receipt of consideration by
the Company.
(b) Subject to any required action by stockholders, if the Company shall
be the surviving corporation in any Reorganization, merger or consolidation, the
Option granted
2
hereunder shall pertain to and apply to the securities to which a holder of the
number of Shares subject to the Option granted hereunder would have been
entitled, and if a plan or agreement reflecting any such event is in effect that
specifically provides for the change, conversion or exchange of Shares, then any
adjustment to Shares subject to the Option granted hereunder shall not be
inconsistent with the terms of any such plan or agreement.
(c) In the event of a change in the Shares of the Company as presently
constituted, which is limited to a change of par value into the same number of
Shares with a different par value or without par value, the Shares resulting
from any such change shall be deemed to be the Shares within the meaning of the
Plan.
To the extent that the foregoing adjustments relate to stock or securities
of the Company, such adjustments shall be made by the Committee, whose
determination shall be final, binding and conclusive.
Except as otherwise specifically provided in this Agreement, the Optionee
shall have no rights by reason of any subdivision or consolidation of stock of
any class or the payment of any stock dividend or any other increase or decrease
in the number of shares of stock of any class or by reason of any dissolution,
liquidation, reorganization, merger or consolidation or spin-off of assets or
stock of another corporation, and any issued by the Company of shares of stock
of any class, or securities convertible into shares of stock of any class, shall
not affect, and no adjustment by reason thereof shall be made with respect to,
the number or Exercise Price of Shares subject to the Option granted hereunder.
5. Non-Transferability of the Option. This Agreement, and the Option
granted hereunder, shall not be transferable otherwise than by will or the laws
of descent and distribution and may be exercised, during the lifetime of the
Optionee, only by the Optionee; provided, however, that this Agreement, and the
Option granted hereunder, may be transferred to one or more members of the
immediate family of the Optionee or to a trust for the benefit of such person or
as directed under a qualified domestic relations order. Any attempted
assignment, transfer, pledge, hypothecation or other disposition of this
Agreement and the Option granted hereunder contrary to the provisions hereof, or
the levy of any execution, attachment or similar process upon this Agreement,
and the Option granted hereunder, shall be null and void and without effect.
6. Compliance with Securities and other Laws. In no event shall the
Company be required to issue Shares under the Option granted hereunder, if the
issuance thereof would constitute a violation of applicable federal or state
securities laws or regulations or a violation of any other law or regulation of
any governmental or regulatory agency or authority or any national securities
exchange. As a condition to any issuance of Shares, the Company may place
legends on shares, issue stop transfer orders and require such agreements or
undertakings as the Company may deem necessary or advisable to assure compliance
with any such laws or regulations, including, if the Company or its counsel
deems it appropriate, representations from the Optionee that the Optionee is
acquiring the Shares solely for investment and not with a view to distribution
and that no distribution of the Shares will be made unless such shares are
registered pursuant to applicable federal and state securities laws, or in the
opinion of counsel of the Company, such registration is unnecessary.
3
7. Issuance of Shares. Upon the Company's determination that the Option
granted hereunder has been validly exercised as to any of the Shares, the
Committee shall, at its sole discretion, cause the Secretary of the Company to
issue certificates in the Optionee's name for such Shares. The Company shall not
be liable to the Optionee for damages relating to any delays in issuing the
certificates, if any, to the Optionee, any loss of the certificates, or any
mistakes or errors in the issuance of the certificates or in the certificates
themselves.
8. Alternative Award for Cancellation of the Option. For purposes of this
Agreement, the payment to the Optionee of an alternative award or an amount in
cash pursuant to the terms of Section 16 of the Plan in consideration of the
cancellation of the Option granted hereunder shall extinguish any rights of the
Optionee in connection with this Agreement.
9. Notices. Any notice necessary under this Agreement shall be in writing,
signed by the party giving or making the same, and addressed (a) to the Company
in the care of its President or Secretary at the principal executive office of
the Company in Dallas, Texas, (b) to the Optionee at the address appearing in
the personnel records of the Company for such Optionee or (c) to either party at
such other address as either party hereto may hereafter designate in writing to
the other. Except as otherwise provided herein, any such notice shall be deemed
effective upon receipt thereof by the addressee.
10. Choice of Law. THE INTERPRETATION, PERFORMANCE AND ENFORCEMENT OF THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF MARYLAND.
11. Option Subject to Plan. The Option is subject to the Plan. The terms
and provisions of the Plan as it may be amended from time to time are hereby
incorporated herein by reference. In the event of a conflict between any term or
provision contained herein and a term or provision of the Plan, the applicable
terms and provisions of the Plan will govern and prevail.
12. Amendment of Agreement. This Agreement may be amended, altered,
suspended, discontinued or terminated by the Committee; provided that no such
amendment, alteration suspension or termination shall materially impair the
rights of the Optionee hereunder without the consent of the Optionee.
13. Administration of Plan and Agreement. Any determinations or decisions
made or actions taken arising out of or in connection with the interpretation
and administration of the Plan and this Agreement by the Committee shall be
final and conclusive.
14. Execution in Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original for all purposes and
both of which taken together shall constitute but one and the same instrument.
[Signature Page Follows]
4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the Date of Grant. By execution of this Agreement, the Optionee acknowledges
receipt of a copy of the Plan, the Company's Annual Report on Form 10-K for the
year ended December 31, 2004 and the informational supplement required by Rule
428(b)(1) under the Securities Act of 1933.
CAPSTEAD MORTGAGE CORPORATION
By: /s/ ANDREW F. JACOBS
------------------------------------------
Andrew F. Jacobs
President and Chief Executive Officer
[OPTIONEE]
/s/ MICHAEL G. O'NEIL
---------------------------------------------
Michael G. O'Neil
5
EXHIBIT 10.4(k)
CAPSTEAD MORTGAGE CORPORATION
NONQUALIFIED STOCK OPTION AGREEMENT
FOR NON-EMPLOYEE DIRECTORS
THIS AGREEMENT, made as of this 13th day of May, 2005 (hereinafter called
the "Date of Grant"), between Capstead Mortgage Corporation, a Maryland
corporation (hereinafter called the "Company"), and Howard Rubin (hereinafter
called the "Optionee"):
RECITALS:
The Company has adopted the 2004 Flexible Long-Term Incentive Plan (the
"Plan"), which Plan is incorporated herein by reference and made a part of this
Agreement. Capitalized terms not otherwise defined herein shall have the same
meanings as in the Plan.
The Company has determined that it is in the best interests of the Company
and its stockholders to grant the option provided for herein to the Optionee
pursuant to the Plan on the terms set forth herein as an inducement to become or
remain a director of the Company, to enable the Optionee to participate in the
long-term growth and financial success of the Company and as an increased
incentive to contribute to the Company's future success and prosperity.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the parties hereto agree as follows:
1. Grant of the Option. (a) The Company hereby grants to the Optionee the
right and option to purchase, on the terms and conditions hereinafter set forth,
10,000 Shares (the "Option"). The purchase price of the Shares subject to this
Option shall be $7.82 per Share (the "Exercise Price"). This Option is not
intended to be treated as an option that complies with Section 422 of the Code,
or any successor provision thereto.
2. Option Term. The term of the Option shall begin immediately and
continue until the tenth anniversary of the Date of Grant, subject to earlier
termination as hereinafter provided.
(a) If the Optionee ceases to be a director of the Company or any
Affiliate by reason of the Optionee's discharge for cause, all rights of the
Optionee to exercise the Option shall terminate, lapse and be forfeited
immediately at the time of the Optionee's discharge for cause.
(b) If the Optionee ceases to be a director of the Company or any
Affiliate by reason of death, the personal representatives, heirs, legatees or
distributees of the Optionee, as appropriate, shall have the right to exercise
the Option up to the earlier of (i) six months from the Optionee's death or (ii)
the remaining term of the Option.
(c) If the Optionee ceases to be a director of the Company or any
Affiliate by reason of the Optionee's resignation, Retirement, Disability or for
any reason other than the Optionee's death or discharge for cause, all rights of
the Optionee to exercise the Option shall terminate, lapse, and be forfeited
upon the earlier of (i) six months after the date Optionee's service as a
director of the Company terminates by reason of such director's resignation,
Retirement, Disability or such other reason or (ii) the remaining term of the
Option, except that in case the Optionee shall die within six months after the
date Optionee's service as an Eligible Director of the Company terminates by
reason of such director's resignation, Retirement, Disability or such other
reason, the personal representatives, heirs, legatees or distributees of the
Optionee, as appropriate, shall have the right up to an additional three months
from the date of the Optionee's death to exercise the Option.
3. Exercise of Option.
(a) This Option is immediately exercisable. Each exercise of the Option,
or any part thereof, shall be evidenced by a notice in writing to the Company.
The Exercise Price of the Shares as to which the Option shall be exercised shall
be paid in full at the time of exercise, and may be paid to the Company either:
(1) in cash (including check, bank draft or money order); or
(2) by the delivery of Shares having a Fair Market Value equal to
the aggregate Exercise Price; provided, however, that such Shares, if
acquired by the exercise of an Option shall have been owned by the
Optionee for more than six months prior to exercise; or
(3) by a combination of cash and Shares as described above; or
(4) by arrangement with a broker acceptable to the Committee in
which payment of the Exercise Price is made pursuant to an irrevocable
direction from the Optionee to the broker to deliver the Company proceeds
from the sale of the option Shares in an amount equal to the exercise
price of the Shares.
(b) The Optionee shall not have any of the rights of a stockholder of the
Company with respect to the Shares covered by this Agreement except to the
extent that one or more certificates of such Shares shall have been delivered to
the Optionee, or the Optionee has been determined to be a stockholder of record
by the Company's Transfer Agent, upon due exercise of the Option granted
hereunder.
4. Adjustments Upon Changes in Capitalization or Reorganization. The
number of Shares subject to the Option shall be adjusted from time to time as
follows:
(a) Subject to any required action by stockholders, the number of Shares
subject to the option granted hereunder, and the Exercise Price, shall be
proportionately adjusted for any increase or decrease in the number of issued
Shares of the Company resulting from a subdivision or consolidation of Shares or
the payment of a stock dividend (but only in Shares) or any other increase or
decrease in the number of Shares effected without receipt of consideration by
the Company.
(b) Subject to any required action by stockholders, if the Company shall
be the surviving corporation in any Reorganization, merger or consolidation, the
Option granted
2
hereunder shall pertain to and apply to the securities to which a holder of the
number of Shares subject to the Option granted hereunder would have been
entitled, and if a plan or agreement reflecting any such event is in effect that
specifically provides for the change, conversion or exchange of Shares, then any
adjustment to Shares subject to the Option granted hereunder shall not be
inconsistent with the terms of any such plan or agreement.
(c) In the event of a change in the Shares of the Company as presently
constituted, which is limited to a change of par value into the same number of
Shares with a different par value or without par value, the Shares resulting
from any such change shall be deemed to be the Shares within the meaning of the
Plan.
To the extent that the foregoing adjustments relate to stock or securities
of the Company, such adjustments shall be made by the Committee, whose
determination shall be final, binding and conclusive.
Except as otherwise specifically provided in this Agreement, the Optionee
shall have no rights by reason of any subdivision or consolidation of stock of
any class or the payment of any stock dividend or any other increase or decrease
in the number of shares of stock of any class or by reason of any dissolution,
liquidation, reorganization, merger or consolidation or spin-off of assets or
stock of another corporation, and any issued by the Company of shares of stock
of any class, or securities convertible into shares of stock of any class, shall
not affect, and no adjustment by reason thereof shall be made with respect to,
the number or Exercise Price of Shares subject to the Option granted hereunder.
5. Non-Transferability of the Option. This Agreement, and the Option
granted hereunder, shall not be transferable otherwise than by will or the laws
of descent and distribution and may be exercised, during the lifetime of the
Optionee, only by the Optionee; provided, however, that this Agreement, and the
Option granted hereunder, may be transferred to one or more members of the
immediate family of the Optionee or to a trust for the benefit of such person or
as directed under a qualified domestic relations order. Any attempted
assignment, transfer, pledge, hypothecation or other disposition of this
Agreement and the Option granted hereunder contrary to the provisions hereof, or
the levy of any execution, attachment or similar process upon this Agreement,
and the Option granted hereunder, shall be null and void and without effect.
6. Compliance with Securities and other Laws. In no event shall the
Company be required to issue Shares under the Option granted hereunder, if the
issuance thereof would constitute a violation of applicable federal or state
securities laws or regulations or a violation of any other law or regulation of
any governmental or regulatory agency or authority or any national securities
exchange. As a condition to any issuance of Shares, the Company may place
legends on shares, issue stop transfer orders and require such agreements or
undertakings as the Company may deem necessary or advisable to assure compliance
with any such laws or regulations, including, if the Company or its counsel
deems it appropriate, representations from the Optionee that the Optionee is
acquiring the Shares solely for investment and not with a view to distribution
and that no distribution of the Shares will be made unless such shares are
registered pursuant to applicable federal and state securities laws, or in the
opinion of counsel of the Company, such registration is unnecessary.
3
7. Issuance of Shares. Upon the Company's determination that the Option
granted hereunder has been validly exercised as to any of the Shares, the
Committee shall, at its sole discretion, cause the Secretary of the Company to
issue certificates in the Optionee's name for such Shares. The Company shall not
be liable to the Optionee for damages relating to any delays in issuing the
certificates, if any, to the Optionee, any loss of the certificates, or any
mistakes or errors in the issuance of the certificates or in the certificates
themselves.
8. Alternative Award for Cancellation of the Option. For purposes of this
Agreement, the payment to the Optionee of an alternative award or an amount in
cash pursuant to the terms of Section 16 of the Plan in consideration of the
cancellation of the Option granted hereunder shall extinguish any rights of the
Optionee in connection with this Agreement.
9. Notices. Any notice necessary under this Agreement shall be in writing,
signed by the party giving or making the same, and addressed (a) to the Company
in the care of its President or Secretary at the principal executive office of
the Company in Dallas, Texas, (b) to the Optionee at the address appearing in
the personnel records of the Company for such Optionee or (c) to either party at
such other address as either party hereto may hereafter designate in writing to
the other. Except as otherwise provided herein, any such notice shall be deemed
effective upon receipt thereof by the addressee.
10. Choice of Law. THE INTERPRETATION, PERFORMANCE AND ENFORCEMENT OF THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF MARYLAND.
11. Option Subject to Plan. The Option is subject to the Plan. The terms
and provisions of the Plan as it may be amended from time to time are hereby
incorporated herein by reference. In the event of a conflict between any term or
provision contained herein and a term or provision of the Plan, the applicable
terms and provisions of the Plan will govern and prevail.
12. Amendment of Agreement. This Agreement may be amended, altered,
suspended, discontinued or terminated by the Committee; provided that no such
amendment, alteration suspension or termination shall materially impair the
rights of the Optionee hereunder without the consent of the Optionee.
13. Administration of Plan and Agreement. Any determinations or decisions
made or actions taken arising out of or in connection with the interpretation
and administration of the Plan and this Agreement by the Committee shall be
final and conclusive.
14. Execution in Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original for all purposes and
both of which taken together shall constitute but one and the same instrument.
[Signature Page Follows]
4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the Date of Grant. By execution of this Agreement, the Optionee acknowledges
receipt of a copy of the Plan, the Company's Annual Report on Form 10-K for the
year ended December 31, 2004 and the informational supplement required by Rule
428(b)(1) under the Securities Act of 1933.
CAPSTEAD MORTGAGE CORPORATION
By: /s/ ANDREW F. JACOBS
------------------------------------------
Andrew F. Jacobs
President and Chief Executive Officer
[OPTIONEE]
/s/ HOWARD RUBIN
---------------------------------------------
Howard Rubin
5
EXHIBIT 10.4(l)
CAPSTEAD MORTGAGE CORPORATION
NONQUALIFIED STOCK OPTION AGREEMENT
FOR NON-EMPLOYEE DIRECTORS
THIS AGREEMENT, made as of this 13th day of May, 2005 (hereinafter
called the "Date of Grant"), between Capstead Mortgage Corporation, a Maryland
corporation (hereinafter called the "Company"), and Mark S. Whiting (hereinafter
called the "Optionee"):
R E C I T A L S:
The Company has adopted the 2004 Flexible Long-Term Incentive Plan (the
"Plan"), which Plan is incorporated herein by reference and made a part of this
Agreement. Capitalized terms not otherwise defined herein shall have the same
meanings as in the Plan.
The Company has determined that it is in the best interests of the
Company and its stockholders to grant the option provided for herein to the
Optionee pursuant to the Plan on the terms set forth herein as an inducement to
become or remain a director of the Company, to enable the Optionee to
participate in the long-term growth and financial success of the Company and as
an increased incentive to contribute to the Company's future success and
prosperity.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the parties hereto agree as follows:
1. Grant of the Option. (a) The Company hereby grants to the Optionee
the right and option to purchase, on the terms and conditions hereinafter set
forth, 10,000 Shares (the "Option"). The purchase price of the Shares subject to
this Option shall be $7.82 per Share (the "Exercise Price"). This Option is not
intended to be treated as an option that complies with Section 422 of the Code,
or any successor provision thereto.
2. Option Term. The term of the Option shall begin immediately and
continue until the tenth anniversary of the Date of Grant, subject to earlier
termination as hereinafter provided.
(a) If the Optionee ceases to be a director of the Company or any
Affiliate by reason of the Optionee's discharge for cause, all rights of the
Optionee to exercise the Option shall terminate, lapse and be forfeited
immediately at the time of the Optionee's discharge for cause.
(b) If the Optionee ceases to be a director of the Company or any
Affiliate by reason of death, the personal representatives, heirs, legatees or
distributees of the Optionee, as appropriate, shall have the right to exercise
the Option up to the earlier of (i) six months from the Optionee's death or (ii)
the remaining term of the Option.
(c) If the Optionee ceases to be a director of the Company or any
Affiliate by reason of the Optionee's resignation, Retirement, Disability or for
any reason other than the Optionee's death or discharge for cause, all rights of
the Optionee to exercise the Option shall terminate, lapse, and be forfeited
upon the earlier of (i) six months after the date Optionee's service as a
director of the Company terminates by reason of such director's resignation,
Retirement, Disability or such other reason or (ii) the remaining term of the
Option, except that in case the Optionee shall die within six months after the
date Optionee's service as an Eligible Director of the Company terminates by
reason of such director's resignation, Retirement, Disability or such other
reason, the personal representatives, heirs, legatees or distributees of the
Optionee, as appropriate, shall have the right up to an additional three months
from the date of the Optionee's death to exercise the Option.
3. Exercise of Option.
(a) This Option is immediately exercisable. Each exercise of the
Option, or any part thereof, shall be evidenced by a notice in writing to the
Company. The Exercise Price of the Shares as to which the Option shall be
exercised shall be paid in full at the time of exercise, and may be paid to the
Company either:
(1) in cash (including check, bank draft or money order); or
(2) by the delivery of Shares having a Fair Market Value equal
to the aggregate Exercise Price; provided, however, that such Shares,
if acquired by the exercise of an Option shall have been owned by the
Optionee for more than six months prior to exercise; or
(3) by a combination of cash and Shares as described above; or
(4) by arrangement with a broker acceptable to the Committee
in which payment of the Exercise Price is made pursuant to an
irrevocable direction from the Optionee to the broker to deliver the
Company proceeds from the sale of the option Shares in an amount equal
to the exercise price of the Shares.
(b) The Optionee shall not have any of the rights of a stockholder of
the Company with respect to the Shares covered by this Agreement except to the
extent that one or more certificates of such Shares shall have been delivered to
the Optionee, or the Optionee has been determined to be a stockholder of record
by the Company's Transfer Agent, upon due exercise of the Option granted
hereunder.
4. Adjustments Upon Changes in Capitalization or Reorganization. The
number of Shares subject to the Option shall be adjusted from time to time as
follows:
(a) Subject to any required action by stockholders, the number of
Shares subject to the option granted hereunder, and the Exercise Price, shall be
proportionately adjusted for any increase or decrease in the number of issued
Shares of the Company resulting from a subdivision or consolidation of Shares or
the payment of a stock dividend (but only in Shares) or any other increase or
decrease in the number of Shares effected without receipt of consideration by
the Company.
(b) Subject to any required action by stockholders, if the Company
shall be the surviving corporation in any Reorganization, merger or
consolidation, the Option granted
2
hereunder shall pertain to and apply to the securities to which a holder of the
number of Shares subject to the Option granted hereunder would have been
entitled, and if a plan or agreement reflecting any such event is in effect that
specifically provides for the change, conversion or exchange of Shares, then any
adjustment to Shares subject to the Option granted hereunder shall not be
inconsistent with the terms of any such plan or agreement.
(c) In the event of a change in the Shares of the Company as presently
constituted, which is limited to a change of par value into the same number of
Shares with a different par value or without par value, the Shares resulting
from any such change shall be deemed to be the Shares within the meaning of the
Plan.
To the extent that the foregoing adjustments relate to stock or
securities of the Company, such adjustments shall be made by the Committee,
whose determination shall be final, binding and conclusive.
Except as otherwise specifically provided in this Agreement, the
Optionee shall have no rights by reason of any subdivision or consolidation of
stock of any class or the payment of any stock dividend or any other increase or
decrease in the number of shares of stock of any class or by reason of any
dissolution, liquidation, reorganization, merger or consolidation or spin-off of
assets or stock of another corporation, and any issued by the Company of shares
of stock of any class, or securities convertible into shares of stock of any
class, shall not affect, and no adjustment by reason thereof shall be made with
respect to, the number or Exercise Price of Shares subject to the Option granted
hereunder.
5. Non-Transferability of the Option. This Agreement, and the Option
granted hereunder, shall not be transferable otherwise than by will or the laws
of descent and distribution and may be exercised, during the lifetime of the
Optionee, only by the Optionee; provided, however, that this Agreement, and the
Option granted hereunder, may be transferred to one or more members of the
immediate family of the Optionee or to a trust for the benefit of such person or
as directed under a qualified domestic relations order. Any attempted
assignment, transfer, pledge, hypothecation or other disposition of this
Agreement and the Option granted hereunder contrary to the provisions hereof, or
the levy of any execution, attachment or similar process upon this Agreement,
and the Option granted hereunder, shall be null and void and without effect.
6. Compliance with Securities and other Laws. In no event shall the
Company be required to issue Shares under the Option granted hereunder, if the
issuance thereof would constitute a violation of applicable federal or state
securities laws or regulations or a violation of any other law or regulation of
any governmental or regulatory agency or authority or any national securities
exchange. As a condition to any issuance of Shares, the Company may place
legends on shares, issue stop transfer orders and require such agreements or
undertakings as the Company may deem necessary or advisable to assure compliance
with any such laws or regulations, including, if the Company or its counsel
deems it appropriate, representations from the Optionee that the Optionee is
acquiring the Shares solely for investment and not with a view to distribution
and that no distribution of the Shares will be made unless such shares are
registered pursuant to applicable federal and state securities laws, or in the
opinion of counsel of the Company, such registration is unnecessary.
3
7. Issuance of Shares. Upon the Company's determination that the Option
granted hereunder has been validly exercised as to any of the Shares, the
Committee shall, at its sole discretion, cause the Secretary of the Company to
issue certificates in the Optionee's name for such Shares. The Company shall not
be liable to the Optionee for damages relating to any delays in issuing the
certificates, if any, to the Optionee, any loss of the certificates, or any
mistakes or errors in the issuance of the certificates or in the certificates
themselves.
8. Alternative Award for Cancellation of the Option. For purposes of
this Agreement, the payment to the Optionee of an alternative award or an amount
in cash pursuant to the terms of Section 16 of the Plan in consideration of the
cancellation of the Option granted hereunder shall extinguish any rights of the
Optionee in connection with this Agreement.
9. Notices. Any notice necessary under this Agreement shall be in
writing, signed by the party giving or making the same, and addressed (a) to the
Company in the care of its President or Secretary at the principal executive
office of the Company in Dallas, Texas, (b) to the Optionee at the address
appearing in the personnel records of the Company for such Optionee or (c) to
either party at such other address as either party hereto may hereafter
designate in writing to the other. Except as otherwise provided herein, any such
notice shall be deemed effective upon receipt thereof by the addressee.
10. Choice of Law. THE INTERPRETATION, PERFORMANCE AND ENFORCEMENT OF
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF MARYLAND.
11. Option Subject to Plan. The Option is subject to the Plan. The
terms and provisions of the Plan as it may be amended from time to time are
hereby incorporated herein by reference. In the event of a conflict between any
term or provision contained herein and a term or provision of the Plan, the
applicable terms and provisions of the Plan will govern and prevail.
12. Amendment of Agreement. This Agreement may be amended, altered,
suspended, discontinued or terminated by the Committee; provided that no such
amendment, alteration suspension or termination shall materially impair the
rights of the Optionee hereunder without the consent of the Optionee.
13. Administration of Plan and Agreement. Any determinations or
decisions made or actions taken arising out of or in connection with the
interpretation and administration of the Plan and this Agreement by the
Committee shall be final and conclusive.
14. Execution in Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original for all purposes and
both of which taken together shall constitute but one and the same instrument.
[Signature Page Follows]
4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the Date of Grant. By execution of this Agreement, the Optionee acknowledges
receipt of a copy of the Plan, the Company's Annual Report on Form 10-K for the
year ended December 31, 2004 and the informational supplement required by Rule
428(b)(1) under the Securities Act of 1933.
CAPSTEAD MORTGAGE CORPORATION
By: /s/ ANDREW F. JACOBS
---------------------------------------
Andrew F. Jacobs
President and Chief Executive Officer
[OPTIONEE]
/s/ MARK S. WHITING
---------------------------------------
Mark S. Whiting
5
EXHIBIT 10.4(m)
CAPSTEAD MORTGAGE CORPORATION
RESTRICTED STOCK AGREEMENT
FOR EMPLOYEES
THIS AGREEMENT made and entered into as of the 13th day of May, 2005
(hereinafter called the "Award Date"), by and between Capstead Mortgage
Corporation, a Maryland corporation (the "Company"), and Michael W. Brown (the
"Grantee").
WHEREAS, the Company, having determined that its interests will be
advanced by providing an incentive to the Grantee to increase the performance of
the Company and its Affiliates, has awarded to the grantee a restricted stock
award conditioned upon the execution by the Company and the Grantee of a
Restricted Stock Agreement.
THEREFORE, in consideration of the mutual promise(s) and covenant(s)
contained herein, the parties hereby agree as follows:
SECTION 1. GRANT.
1.1 Grant and Acceptance. Pursuant to the May 13, 2005 authorization to
grant shares of restricted stock to the current employees, the Company does
hereby grant and transfer to the Grantee, for no cash consideration from the
Grantee, and the Grantee does hereby accept from the Company, an aggregate of
12,000 shares (the "Award Shares") of the Common Stock, $0.01 par value per
share, of the Company (the "Common Stock") according to the terms and conditions
and subject to the restrictions hereinafter set forth.
1.2 Effect of Plan. The Award Shares shall constitute Restricted Stock
and this grant shall constitute an Award, each as defined in the Company's 2004
Flexible Long-Term Incentive Plan (the "Plan"). This Agreement is expressly
subject to the terms and provisions of the Plan and in the event there is a
conflict between the terms of the Plan and this Agreement, the terms of the Plan
shall control. All undefined capitalized terms used herein shall have the
meanings assigned in the Plan. The Award is subject to all laws, approvals,
requirements and regulations of any governmental authority which may be
applicable thereto.
SECTION 2. RIGHTS IN SHARES. The Grantee, for the duration of this
Agreement, shall be the record owner of, and shall be entitled to vote, the
Award Shares and shall be entitled to receive all dividends and any other
distributions declared on the Award Shares (provided, however, that nothing
contained herein shall cause the Company to declare any such dividends or to
make any such distributions).
SECTION 3. VESTING.
3.1 Vesting. The Award Shares shall vest (become nonforfeitable) in
accordance with the schedule set forth below:
Percentage of Shares Cumulative
Date Vested on Specified Date Percentage of Shares
- ------------ ------------------------ --------------------
May 13, 2006 25 25
May 13, 2007 25 50
May 13, 2008 25 75
May 13, 2009 25 100
provided, however, that notwithstanding the foregoing schedule, and except as
otherwise provided in Sections 3.2, 3.3 and 3.4 below, no additional Award
Shares shall vest after:
(i) termination of Grantee's employment with the Company or
any Affiliate for any reason (including termination by reason of
voluntary or involuntary discharge, Disability or Retirement) in which
case the Grantee shall, at the time of termination, forfeit all right,
title and interest in and to any Award Shares not then vested, or
(ii) a Grantee working full-time at the Award Date reduces
his/her scheduled hours worked per week below a standard 40-hour work
week, in which case the Grantee shall, at the time of such reduction
and subject to management's discretion, forfeit all right, title and
interest in and to any Award Shares not then vested; or
(iii) a Grantee working part-time at the Award Date reduces
his/her scheduled hours worked per week below a standard 20-hour work
week, in which case the Grantee shall, at the time of such reduction
and subject to management's discretion, forfeit all right, title and
interest in and to any Award Shares not then vested.
3.2 Effect of Grantee's Death. If the Grantee ceases to be an employee
of the Company or any Affiliate by reason of death, any and all outstanding
Award Shares not fully vested shall automatically vest in full and the personal
representatives heirs, legatees or distributees of the Grantee, as appropriate,
shall become fully vested in the Award Shares effective on the date of the
Grantee's death.
3.3 Effect of Dissolution or Liquidation. In the event of the
dissolution or liquidation of the Company, any and all outstanding Award Shares
not fully vested shall automatically vest in full immediately prior to such
dissolution or liquidation.
3.4 Effect of Change of Control. In the event of a Change in Control
(as defined in the Plan), any and all outstanding Award Shares not fully vested
shall automatically vest in full. The date on which such accelerated vesting
shall occur shall be the date of the occurrence of the Change in Control.
3.5 Effect of Forfeiture. Any Award Shares forfeited pursuant to
Section 3.1 shall revert to the Company.
SECTION 4. STOCK CERTIFICATES. Upon grant of the Award Shares, the
Company shall cause its Transfer Agent to record Grantee's ownership of such
Award Shares in book entry
2
form. As Award Shares vest hereunder, such Award Shares shall be transferred
into an unrestricted account in the name of the Grantee or, at the request of
the Grantee, issued in stock certificate form. Any such certificates shall be
unencumbered by any of the restrictions enumerated herein other than such
restrictions as may be imposed by applicable federal or state securities laws
and regulations.
SECTION 5. TRANSFER AND REPURCHASES UPON TERMINATION.
5.1 The unvested Award Shares shall not be offered, sold, transferred,
assigned, exchanged, pledged, encumbered or otherwise disposed of (each, a
"Transfer") for any purpose whatsoever, other than to the Company, and shall not
be subject, in whole or in part, to execution, attachment, or similar process in
all such cases until the date of vesting. Any attempted Transfer of the unvested
Award Shares, other than in accordance with the terms set forth herein, shall be
void and of no effect.
5.2 Grantee acknowledges that any sale, assignment, transfer or other
disposition of vested Award Shares may be subject to restrictions contained in
applicable federal or state securities laws and regulations and that any such
sale, assignment, transfer or other disposition of Award Shares by him or her
will be in compliance with such laws and regulations.
SECTION 6. WITHHOLDINGS. The Company and each Affiliate shall have the
right to retain and withhold from any payment (including the vesting) of Award
Shares (and any dividends on Award Shares) any amounts required to be withheld
or otherwise deducted and paid with respect to such payment (including the
vesting thereof). At its discretion, the Company and each Affiliate may require
the Grantee receiving Award Shares to reimburse the Company or any Affiliate for
any such taxes required to be withheld by the Company or the Affiliate and
withhold any distribution in whole or in part until the Company and each
Affiliate is so reimbursed. In lieu thereof, the Company and each Affiliate
shall have the right to withhold from any other cash amounts due or to become
due from the Company or the Affiliate to the Grantee an amount equal to such
taxes required to be withheld by the Company or the Affiliate as reimbursement
for any such taxes or retain and withhold a number of shares having a market
value not less than the amount of such taxes in order to reimburse the Company
or the Affiliate for any such taxes.
SECTION 7. ADJUSTMENTS TO AWARD SHARES.
7.1 Stock Dividends and Splits and Similar Transactions. Subject to any
required action by the Company's Board of Directors and stockholders, the number
of Award Shares shall be proportionately adjusted for any increase or decrease
in the number of issued Shares of the Company resulting from the payment of a
Share dividend, a Share split, a Share reverse-split or any similar transaction.
7.2 Change in Par Value. In the event of a change in the Company's
Shares which is limited to a change of all of its authorized shares with par
value into the same number of shares with a different par value or without par
value, the shares resulting from any such change shall be deemed to be shares
within the meaning of the Plan.
7.3 Other Capital Adjustments. Except as hereinbefore expressly
provided in Section 7.1 and except for rights that all holders of Common Stock
shall have, Grantee shall have no rights by reason of any subdivision or
consolidation of Shares of any class or payment of any share dividend
3
or any other increase or decrease in the number of shares of any class or by
reason of any dissolution, liquidation, merger or consolidation or spin-off of
assets or stock of another corporation; any issuance by the Company of Shares of
any class, or securities convertible into Shares of any class, shall not affect
the Award, and no adjustment by reason thereof shall be made with respect to the
number or price of the Company's Shares subject to the Award. An Award of
Restricted Stock shall not affect in any way the right or power of the Company
to make adjustments, reclassifications, reorganizations or changes of its
capital or business structure or to merge or to consolidate or to dissolve,
liquidate or sell or transfer all or any part of its business or assets.
SECTION 8. GRANTEE'S REPRESENTATIONS AND WARRANTIES. Grantee represents
and warrants that:
(a) such Grantee has not and will not, directly or indirectly, Transfer
any Award Shares except in accordance with the terms of this Agreement;
(b) such Grantee has, or such Grantee together with such Grantee's
advisors, if any, have such knowledge and experience in financial, business and
tax matters that such Grantee is, or such Grantee together with such Grantee's
advisors, if any, are capable of evaluating the merits and risks relating to
such Grantee's investment in the Award Shares and making an investment decision
with respect to the Company;
(c) such Grantee has been given the opportunity to obtain information
and documents relating to the Company and to ask questions of and receive
answers from representatives of the Company concerning the Company and such
Grantee's investment in the Award Shares; and
(d) such Grantee realizes that there are substantial risks incident to
an investment in the Award Shares.
SECTION 9. IMPACT ON OTHER BENEFITS. The value of the Award Shares
(either on the Award Date or at the time the shares are vested) shall not be
includable as compensation or earnings for purposes of any other benefit plan
offered by the Company.
SECTION 10. ADMINISTRATION. The Committee shall have full authority and
discretion (subject only to the express provisions of the Plan) to decide all
matters relating to the administration and interpretation of the Plan and this
Agreement. All such Committee determinations shall be final, conclusive, and
binding upon the Company, the Grantee, and any and all interested parties.
SECTION 11. NO AGREEMENT TO CONTINUE IN EMPLOYMENT. Nothing in the Plan
or this Agreement shall confer on the Grantee any right to continue in the
employ of the Company or any Affiliate or interfere in any way with the right of
the Company and any Affiliate to terminate the Grantee's employment at any time.
SECTION 12. AMENDMENT(S). This Agreement shall be subject to the terms
of the Plan, as amended from time to time, except that the Award that is the
subject of this Agreement may not in any way be restricted or limited by any
amendment or termination approved after the Award Date without the Grantee's
written consent.
4
SECTION 13. FORCE AND EFFECT. The various provisions of this Agreement
are severable in their entirety. Any determination of invalidity or
unenforceability of any one provision shall have no effect on the continuing
force and effect of the remaining provisions.
SECTION 14. GOVERNING LAWS. This Agreement shall be construed and
enforced in accordance with and governed by the laws of the State of Maryland.
SECTION 15. MISCELLANEOUS.
15.1 Any notice necessary under this Agreement shall be in writing,
signed by the party giving or making the same, and addressed (a) to the Company
in the care of its President or Secretary at the principal executive office of
the Company in Dallas, Texas, (b) to the Grantee at the address appearing in the
personnel records of the Company for such Grantee or (c) to either party at such
other address as either party hereto may hereafter designate in writing to the
other. Except as otherwise provided herein, any such notice shall be deemed
effective upon receipt thereof by the addressee.
15.2 This Agreement may be executed in counterparts, each of which
shall be deemed an original for all purposes and both of which taken together
shall constitute but one and the same instrument.
[Signature Page Follows]
5
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date hereof. By execution of this Agreement, the Grantee acknowledges
receipt of a copy of the Plan, the Company's Annual Report on Form 10-K for the
year ended December 31, 2004 and the informational supplement required by Rule
428(b)(1) under the Securities Act of 1933.
CAPSTEAD MORTGAGE CORPORATION
By: /s/ ANDREW F. JACOBS
-------------------------------------
Andrew F. Jacobs
President and Chief Executive Officer
[GRANTEE]
/s/ MICHAEL W. BROWN
-----------------------------------------
Michael W. Brown
6
EXHIBIT 10.4(n)
CAPSTEAD MORTGAGE CORPORATION
RESTRICTED STOCK AGREEMENT
FOR EMPLOYEES
THIS AGREEMENT made and entered into as of the 13th day of May, 2005
(hereinafter called the "Award Date"), by and between Capstead Mortgage
Corporation, a Maryland corporation (the "Company"), and Andrew F. Jacobs (the
"Grantee").
WHEREAS, the Company, having determined that its interests will be
advanced by providing an incentive to the Grantee to increase the performance of
the Company and its Affiliates, has awarded to the grantee a restricted stock
award conditioned upon the execution by the Company and the Grantee of a
Restricted Stock Agreement.
THEREFORE, in consideration of the mutual promise(s) and covenant(s)
contained herein, the parties hereby agree as follows:
SECTION 1. GRANT.
1.1 Grant and Acceptance. Pursuant to the May 13, 2005 authorization to
grant shares of restricted stock to the current employees, the Company does
hereby grant and transfer to the Grantee, for no cash consideration from the
Grantee, and the Grantee does hereby accept from the Company, an aggregate of
40,000 shares (the "Award Shares") of the Common Stock, $0.01 par value per
share, of the Company (the "Common Stock") according to the terms and conditions
and subject to the restrictions hereinafter set forth.
1.2 Effect of Plan. The Award Shares shall constitute Restricted Stock and
this grant shall constitute an Award, each as defined in the Company's 2004
Flexible Long-Term Incentive Plan (the "Plan"). This Agreement is expressly
subject to the terms and provisions of the Plan and in the event there is a
conflict between the terms of the Plan and this Agreement, the terms of the Plan
shall control. All undefined capitalized terms used herein shall have the
meanings assigned in the Plan. The Award is subject to all laws, approvals,
requirements and regulations of any governmental authority which may be
applicable thereto.
SECTION 2. RIGHTS IN SHARES. The Grantee, for the duration of this
Agreement, shall be the record owner of, and shall be entitled to vote, the
Award Shares and shall be entitled to receive all dividends and any other
distributions declared on the Award Shares (provided, however, that nothing
contained herein shall cause the Company to declare any such dividends or to
make any such distributions).
SECTION 3. VESTING.
3.1 Vesting. The Award Shares shall vest (become nonforfeitable) in
accordance with the schedule set forth below:
1
Percentage of Shares Cumulative
Date Vested on Specified Date Percentage of Shares
- ------------ ------------------------ --------------------
May 13, 2006 25 25
May 13, 2007 25 50
May 13, 2008 25 75
May 13, 2009 25 100
provided, however, that notwithstanding the foregoing schedule, and except as
otherwise provided in Sections 3.2, 3.3 and 3.4 below, no additional Award
Shares shall vest after:
(i) termination of Grantee's employment with the Company or any
Affiliate for any reason (including termination by reason of voluntary or
involuntary discharge, Disability or Retirement) in which case the Grantee
shall, at the time of termination, forfeit all right, title and interest
in and to any Award Shares not then vested, or
(ii) a Grantee working full-time at the Award Date reduces his/her
scheduled hours worked per week below a standard 40-hour work week, in
which case the Grantee shall, at the time of such reduction and subject to
management's discretion, forfeit all right, title and interest in and to
any Award Shares not then vested; or
(iii) a Grantee working part-time at the Award Date reduces his/her
scheduled hours worked per week below a standard 20-hour work week, in
which case the Grantee shall, at the time of such reduction and subject to
management's discretion, forfeit all right, title and interest in and to
any Award Shares not then vested.
3.2 Effect of Grantee's Death. If the Grantee ceases to be an employee of
the Company or any Affiliate by reason of death, any and all outstanding Award
Shares not fully vested shall automatically vest in full and the personal
representatives heirs, legatees or distributees of the Grantee, as appropriate,
shall become fully vested in the Award Shares effective on the date of the
Grantee's death.
3.3 Effect of Dissolution or Liquidation. In the event of the dissolution
or liquidation of the Company, any and all outstanding Award Shares not fully
vested shall automatically vest in full immediately prior to such dissolution or
liquidation.
3.4 Effect of Change of Control. In the event of a Change in Control (as
defined in the Plan), any and all outstanding Award Shares not fully vested
shall automatically vest in full. The date on which such accelerated vesting
shall occur shall be the date of the occurrence of the Change in Control.
3.5 Effect of Forfeiture. Any Award Shares forfeited pursuant to Section
3.1 shall revert to the Company.
SECTION 4. STOCK CERTIFICATES. Upon grant of the Award Shares, the Company
shall cause its Transfer Agent to record Grantee's ownership of such Award
Shares in book entry
2
form. As Award Shares vest hereunder, such Award Shares shall be transferred
into an unrestricted account in the name of the Grantee or, at the request of
the Grantee, issued in stock certificate form. Any such certificates shall be
unencumbered by any of the restrictions enumerated herein other than such
restrictions as may be imposed by applicable federal or state securities laws
and regulations.
SECTION 5. TRANSFER AND REPURCHASES UPON TERMINATION.
5.1 The unvested Award Shares shall not be offered, sold, transferred,
assigned, exchanged, pledged, encumbered or otherwise disposed of (each, a
"Transfer") for any purpose whatsoever, other than to the Company, and shall not
be subject, in whole or in part, to execution, attachment, or similar process in
all such cases until the date of vesting. Any attempted Transfer of the unvested
Award Shares, other than in accordance with the terms set forth herein, shall be
void and of no effect.
5.2 Grantee acknowledges that any sale, assignment, transfer or other
disposition of vested Award Shares may be subject to restrictions contained in
applicable federal or state securities laws and regulations and that any such
sale, assignment, transfer or other disposition of Award Shares by him or her
will be in compliance with such laws and regulations.
SECTION 6. WITHHOLDINGS. The Company and each Affiliate shall have the
right to retain and withhold from any payment (including the vesting) of Award
Shares (and any dividends on Award Shares) any amounts required to be withheld
or otherwise deducted and paid with respect to such payment (including the
vesting thereof). At its discretion, the Company and each Affiliate may require
the Grantee receiving Award Shares to reimburse the Company or any Affiliate for
any such taxes required to be withheld by the Company or the Affiliate and
withhold any distribution in whole or in part until the Company and each
Affiliate is so reimbursed. In lieu thereof, the Company and each Affiliate
shall have the right to withhold from any other cash amounts due or to become
due from the Company or the Affiliate to the Grantee an amount equal to such
taxes required to be withheld by the Company or the Affiliate as reimbursement
for any such taxes or retain and withhold a number of shares having a market
value not less than the amount of such taxes in order to reimburse the Company
or the Affiliate for any such taxes.
SECTION 7. ADJUSTMENTS TO AWARD SHARES.
7.1 Stock Dividends and Splits and Similar Transactions. Subject to any
required action by the Company's Board of Directors and stockholders, the number
of Award Shares shall be proportionately adjusted for any increase or decrease
in the number of issued Shares of the Company resulting from the payment of a
Share dividend, a Share split, a Share reverse-split or any similar transaction.
7.2 Change in Par Value. In the event of a change in the Company's Shares
which is limited to a change of all of its authorized shares with par value into
the same number of shares with a different par value or without par value, the
shares resulting from any such change shall be deemed to be shares within the
meaning of the Plan.
7.3 Other Capital Adjustments. Except as hereinbefore expressly provided
in Section 7.1 and except for rights that all holders of Common Stock shall
have, Grantee shall have no rights by reason of any subdivision or consolidation
of Shares of any class or payment of any share dividend
3
or any other increase or decrease in the number of shares of any class or by
reason of any dissolution, liquidation, merger or consolidation or spin-off of
assets or stock of another corporation; any issuance by the Company of Shares of
any class, or securities convertible into Shares of any class, shall not affect
the Award, and no adjustment by reason thereof shall be made with respect to the
number or price of the Company's Shares subject to the Award. An Award of
Restricted Stock shall not affect in any way the right or power of the Company
to make adjustments, reclassifications, reorganizations or changes of its
capital or business structure or to merge or to consolidate or to dissolve,
liquidate or sell or transfer all or any part of its business or assets.
SECTION 8. GRANTEE'S REPRESENTATIONS AND WARRANTIES. Grantee represents
and warrants that:
(a) such Grantee has not and will not, directly or indirectly, Transfer
any Award Shares except in accordance with the terms of this Agreement;
(b) such Grantee has, or such Grantee together with such Grantee's
advisors, if any, have such knowledge and experience in financial, business and
tax matters that such Grantee is, or such Grantee together with such Grantee's
advisors, if any, are capable of evaluating the merits and risks relating to
such Grantee's investment in the Award Shares and making an investment decision
with respect to the Company;
(c) such Grantee has been given the opportunity to obtain information and
documents relating to the Company and to ask questions of and receive answers
from representatives of the Company concerning the Company and such Grantee's
investment in the Award Shares; and
(d) such Grantee realizes that there are substantial risks incident to an
investment in the Award Shares.
SECTION 9. IMPACT ON OTHER BENEFITS. The value of the Award Shares (either
on the Award Date or at the time the shares are vested) shall not be includable
as compensation or earnings for purposes of any other benefit plan offered by
the Company.
SECTION 10. ADMINISTRATION. The Committee shall have full authority and
discretion (subject only to the express provisions of the Plan) to decide all
matters relating to the administration and interpretation of the Plan and this
Agreement. All such Committee determinations shall be final, conclusive, and
binding upon the Company, the Grantee, and any and all interested parties.
SECTION 11. NO AGREEMENT TO CONTINUE IN EMPLOYMENT. Nothing in the Plan or
this Agreement shall confer on the Grantee any right to continue in the employ
of the Company or any Affiliate or interfere in any way with the right of the
Company and any Affiliate to terminate the Grantee's employment at any time.
SECTION 12. AMENDMENT(S). This Agreement shall be subject to the terms of
the Plan, as amended from time to time, except that the Award that is the
subject of this Agreement may not in any way be restricted or limited by any
amendment or termination approved after the Award Date without the Grantee's
written consent.
4
SECTION 13. FORCE AND EFFECT. The various provisions of this Agreement are
severable in their entirety. Any determination of invalidity or unenforceability
of any one provision shall have no effect on the continuing force and effect of
the remaining provisions.
SECTION 14. GOVERNING LAWS. This Agreement shall be construed and enforced
in accordance with and governed by the laws of the State of Maryland.
SECTION 15. MISCELLANEOUS.
15.1 Any notice necessary under this Agreement shall be in writing, signed
by the party giving or making the same, and addressed (a) to the Company in the
care of its President or Secretary at the principal executive office of the
Company in Dallas, Texas, (b) to the Grantee at the address appearing in the
personnel records of the Company for such Grantee or (c) to either party at such
other address as either party hereto may hereafter designate in writing to the
other. Except as otherwise provided herein, any such notice shall be deemed
effective upon receipt thereof by the addressee.
15.2 This Agreement may be executed in counterparts, each of which shall
be deemed an original for all purposes and both of which taken together shall
constitute but one and the same instrument.
[Signature Page Follows]
5
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date hereof. By execution of this Agreement, the Grantee acknowledges
receipt of a copy of the Plan, the Company's Annual Report on Form 10-K for the
year ended December 31, 2004 and the informational supplement required by Rule
428(b)(1) under the Securities Act of 1933.
CAPSTEAD MORTGAGE CORPORATION
By: /s/ PHILLIP A. REINSCH
-----------------------------------
Phillip A. Reinsch
Senior Vice President and Chief
Financial Officer
[GRANTEE]
/s/ ANDREW F. JACOBS
----------------------------------------
Andrew F. Jacobs
6
EXHIBIT 10.4(o)
CAPSTEAD MORTGAGE CORPORATION
RESTRICTED STOCK AGREEMENT
FOR EMPLOYEES
THIS AGREEMENT made and entered into as of the 13th day of May, 2005
(hereinafter called the "Award Date"), by and between Capstead Mortgage
Corporation, a Maryland corporation (the "Company"), and Amar R. Patel (the
"Grantee").
WHEREAS, the Company, having determined that its interests will be
advanced by providing an incentive to the Grantee to increase the performance of
the Company and its Affiliates, has awarded to the grantee a restricted stock
award conditioned upon the execution by the Company and the Grantee of a
Restricted Stock Agreement.
THEREFORE, in consideration of the mutual promise(s) and covenant(s)
contained herein, the parties hereby agree as follows:
SECTION 1. GRANT.
1.1 Grant and Acceptance. Pursuant to the May 13, 2005 authorization to
grant shares of restricted stock to the current employees, the Company does
hereby grant and transfer to the Grantee, for no cash consideration from the
Grantee, and the Grantee does hereby accept from the Company, an aggregate of
20,000 shares (the "Award Shares") of the Common Stock, $0.01 par value per
share, of the Company (the "Common Stock") according to the terms and conditions
and subject to the restrictions hereinafter set forth.
1.2 Effect of Plan. The Award Shares shall constitute Restricted Stock and
this grant shall constitute an Award, each as defined in the Company's 2004
Flexible Long-Term Incentive Plan (the "Plan"). This Agreement is expressly
subject to the terms and provisions of the Plan and in the event there is a
conflict between the terms of the Plan and this Agreement, the terms of the Plan
shall control. All undefined capitalized terms used herein shall have the
meanings assigned in the Plan. The Award is subject to all laws, approvals,
requirements and regulations of any governmental authority which may be
applicable thereto.
SECTION 2. RIGHTS IN SHARES. The Grantee, for the duration of this
Agreement, shall be the record owner of, and shall be entitled to vote, the
Award Shares and shall be entitled to receive all dividends and any other
distributions declared on the Award Shares (provided, however, that nothing
contained herein shall cause the Company to declare any such dividends or to
make any such distributions).
SECTION 3. VESTING.
3.1 Vesting. The Award Shares shall vest (become nonforfeitable) in
accordance with the schedule set forth below:
1
Percentage of Shares Cumulative
Date Vested on Specified Date Percentage of Shares
- ------------ ------------------------ --------------------
May 13, 2006 25 25
May 13, 2007 25 50
May 13, 2008 25 75
May 13, 2009 25 100
provided, however, that notwithstanding the foregoing schedule, and except as
otherwise provided in Sections 3.2, 3.3 and 3.4 below, no additional Award
Shares shall vest after:
(i) termination of Grantee's employment with the Company or any
Affiliate for any reason (including termination by reason of voluntary or
involuntary discharge, Disability or Retirement) in which case the Grantee
shall, at the time of termination, forfeit all right, title and interest
in and to any Award Shares not then vested, or
(ii) a Grantee working full-time at the Award Date reduces his/her
scheduled hours worked per week below a standard 40-hour work week, in
which case the Grantee shall, at the time of such reduction and subject to
management's discretion, forfeit all right, title and interest in and to
any Award Shares not then vested; or
(iii) a Grantee working part-time at the Award Date reduces his/her
scheduled hours worked per week below a standard 20-hour work week, in
which case the Grantee shall, at the time of such reduction and subject to
management's discretion, forfeit all right, title and interest in and to
any Award Shares not then vested.
3.2 Effect of Grantee's Death. If the Grantee ceases to be an employee of
the Company or any Affiliate by reason of death, any and all outstanding Award
Shares not fully vested shall automatically vest in full and the personal
representatives heirs, legatees or distributees of the Grantee, as appropriate,
shall become fully vested in the Award Shares effective on the date of the
Grantee's death.
3.3 Effect of Dissolution or Liquidation. In the event of the dissolution
or liquidation of the Company, any and all outstanding Award Shares not fully
vested shall automatically vest in full immediately prior to such dissolution or
liquidation.
3.4 Effect of Change of Control. In the event of a Change in Control (as
defined in the Plan), any and all outstanding Award Shares not fully vested
shall automatically vest in full. The date on which such accelerated vesting
shall occur shall be the date of the occurrence of the Change in Control.
3.5 Effect of Forfeiture. Any Award Shares forfeited pursuant to Section
3.1 shall revert to the Company.
SECTION 4. STOCK CERTIFICATES. Upon grant of the Award Shares, the Company
shall cause its Transfer Agent to record Grantee's ownership of such Award
Shares in book entry
2
form. As Award Shares vest hereunder, such Award Shares shall be transferred
into an unrestricted account in the name of the Grantee or, at the request of
the Grantee, issued in stock certificate form. Any such certificates shall be
unencumbered by any of the restrictions enumerated herein other than such
restrictions as may be imposed by applicable federal or state securities laws
and regulations.
SECTION 5. TRANSFER AND REPURCHASES UPON TERMINATION.
5.1 The unvested Award Shares shall not be offered, sold, transferred,
assigned, exchanged, pledged, encumbered or otherwise disposed of (each, a
"Transfer") for any purpose whatsoever, other than to the Company, and shall not
be subject, in whole or in part, to execution, attachment, or similar process in
all such cases until the date of vesting. Any attempted Transfer of the unvested
Award Shares, other than in accordance with the terms set forth herein, shall be
void and of no effect.
5.2 Grantee acknowledges that any sale, assignment, transfer or other
disposition of vested Award Shares may be subject to restrictions contained in
applicable federal or state securities laws and regulations and that any such
sale, assignment, transfer or other disposition of Award Shares by him or her
will be in compliance with such laws and regulations.
SECTION 6. WITHHOLDINGS. The Company and each Affiliate shall have the
right to retain and withhold from any payment (including the vesting) of Award
Shares (and any dividends on Award Shares) any amounts required to be withheld
or otherwise deducted and paid with respect to such payment (including the
vesting thereof). At its discretion, the Company and each Affiliate may require
the Grantee receiving Award Shares to reimburse the Company or any Affiliate for
any such taxes required to be withheld by the Company or the Affiliate and
withhold any distribution in whole or in part until the Company and each
Affiliate is so reimbursed. In lieu thereof, the Company and each Affiliate
shall have the right to withhold from any other cash amounts due or to become
due from the Company or the Affiliate to the Grantee an amount equal to such
taxes required to be withheld by the Company or the Affiliate as reimbursement
for any such taxes or retain and withhold a number of shares having a market
value not less than the amount of such taxes in order to reimburse the Company
or the Affiliate for any such taxes.
SECTION 7. ADJUSTMENTS TO AWARD SHARES.
7.1 Stock Dividends and Splits and Similar Transactions. Subject to any
required action by the Company's Board of Directors and stockholders, the number
of Award Shares shall be proportionately adjusted for any increase or decrease
in the number of issued Shares of the Company resulting from the payment of a
Share dividend, a Share split, a Share reverse-split or any similar transaction.
7.2 Change in Par Value. In the event of a change in the Company's Shares
which is limited to a change of all of its authorized shares with par value into
the same number of shares with a different par value or without par value, the
shares resulting from any such change shall be deemed to be shares within the
meaning of the Plan.
7.3 Other Capital Adjustments. Except as hereinbefore expressly provided
in Section 7.1 and except for rights that all holders of Common Stock shall
have, Grantee shall have no rights by reason of any subdivision or consolidation
of Shares of any class or payment of any share dividend
3
or any other increase or decrease in the number of shares of any class or by
reason of any dissolution, liquidation, merger or consolidation or spin-off of
assets or stock of another corporation; any issuance by the Company of Shares of
any class, or securities convertible into Shares of any class, shall not affect
the Award, and no adjustment by reason thereof shall be made with respect to the
number or price of the Company's Shares subject to the Award. An Award of
Restricted Stock shall not affect in any way the right or power of the Company
to make adjustments, reclassifications, reorganizations or changes of its
capital or business structure or to merge or to consolidate or to dissolve,
liquidate or sell or transfer all or any part of its business or assets.
SECTION 8. GRANTEE'S REPRESENTATIONS AND WARRANTIES. Grantee represents
and warrants that:
(a) such Grantee has not and will not, directly or indirectly, Transfer
any Award Shares except in accordance with the terms of this Agreement;
(b) such Grantee has, or such Grantee together with such Grantee's
advisors, if any, have such knowledge and experience in financial, business and
tax matters that such Grantee is, or such Grantee together with such Grantee's
advisors, if any, are capable of evaluating the merits and risks relating to
such Grantee's investment in the Award Shares and making an investment decision
with respect to the Company;
(c) such Grantee has been given the opportunity to obtain information and
documents relating to the Company and to ask questions of and receive answers
from representatives of the Company concerning the Company and such Grantee's
investment in the Award Shares; and
(d) such Grantee realizes that there are substantial risks incident to an
investment in the Award Shares.
SECTION 9. IMPACT ON OTHER BENEFITS. The value of the Award Shares (either
on the Award Date or at the time the shares are vested) shall not be includable
as compensation or earnings for purposes of any other benefit plan offered by
the Company.
SECTION 10. ADMINISTRATION. The Committee shall have full authority and
discretion (subject only to the express provisions of the Plan) to decide all
matters relating to the administration and interpretation of the Plan and this
Agreement. All such Committee determinations shall be final, conclusive, and
binding upon the Company, the Grantee, and any and all interested parties.
SECTION 11. NO AGREEMENT TO CONTINUE IN EMPLOYMENT. Nothing in the Plan or
this Agreement shall confer on the Grantee any right to continue in the employ
of the Company or any Affiliate or interfere in any way with the right of the
Company and any Affiliate to terminate the Grantee's employment at any time.
SECTION 12. AMENDMENT(S). This Agreement shall be subject to the terms of
the Plan, as amended from time to time, except that the Award that is the
subject of this Agreement may not in any way be restricted or limited by any
amendment or termination approved after the Award Date without the Grantee's
written consent.
4
SECTION 13. FORCE AND EFFECT. The various provisions of this Agreement are
severable in their entirety. Any determination of invalidity or unenforceability
of any one provision shall have no effect on the continuing force and effect of
the remaining provisions.
SECTION 14. GOVERNING LAWS. This Agreement shall be construed and enforced
in accordance with and governed by the laws of the State of Maryland.
SECTION 15. MISCELLANEOUS.
15.1 Any notice necessary under this Agreement shall be in writing, signed
by the party giving or making the same, and addressed (a) to the Company in the
care of its President or Secretary at the principal executive office of the
Company in Dallas, Texas, (b) to the Grantee at the address appearing in the
personnel records of the Company for such Grantee or (c) to either party at such
other address as either party hereto may hereafter designate in writing to the
other. Except as otherwise provided herein, any such notice shall be deemed
effective upon receipt thereof by the addressee.
15.2 This Agreement may be executed in counterparts, each of which shall
be deemed an original for all purposes and both of which taken together shall
constitute but one and the same instrument.
[Signature Page Follows]
5
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date hereof. By execution of this Agreement, the Grantee acknowledges
receipt of a copy of the Plan, the Company's Annual Report on Form 10-K for the
year ended December 31, 2004 and the informational supplement required by Rule
428(b)(1) under the Securities Act of 1933.
CAPSTEAD MORTGAGE CORPORATION
By: /s/ ANDREW F. JACOBS
--------------------------------------
Andrew F. Jacobs
President and Chief Executive Officer
[GRANTEE]
/s/ AMAR R. PATEL
-------------------------------------------
Amar R. Patel
6
EXHIBIT 10.4(p)
CAPSTEAD MORTGAGE CORPORATION
RESTRICTED STOCK AGREEMENT
FOR EMPLOYEES
THIS AGREEMENT made and entered into as of the 13th day of May, 2005
(hereinafter called the "Award Date"), by and between Capstead Mortgage
Corporation, a Maryland corporation (the "Company"), and Phillip A. Reinsch (the
"Grantee").
WHEREAS, the Company, having determined that its interests will be
advanced by providing an incentive to the Grantee to increase the performance of
the Company and its Affiliates, has awarded to the grantee a restricted stock
award conditioned upon the execution by the Company and the Grantee of a
Restricted Stock Agreement.
THEREFORE, in consideration of the mutual promise(s) and covenant(s)
contained herein, the parties hereby agree as follows:
SECTION 1. GRANT.
1.1 Grant and Acceptance. Pursuant to the May 13, 2005 authorization to
grant shares of restricted stock to the current employees, the Company does
hereby grant and transfer to the Grantee, for no cash consideration from the
Grantee, and the Grantee does hereby accept from the Company, an aggregate of
20,000 shares (the "Award Shares") of the Common Stock, $0.01 par value per
share, of the Company (the "Common Stock") according to the terms and conditions
and subject to the restrictions hereinafter set forth.
1.2 Effect of Plan. The Award Shares shall constitute Restricted Stock and
this grant shall constitute an Award, each as defined in the Company's 2004
Flexible Long-Term Incentive Plan (the "Plan"). This Agreement is expressly
subject to the terms and provisions of the Plan and in the event there is a
conflict between the terms of the Plan and this Agreement, the terms of the Plan
shall control. All undefined capitalized terms used herein shall have the
meanings assigned in the Plan. The Award is subject to all laws, approvals,
requirements and regulations of any governmental authority which may be
applicable thereto.
SECTION 2. RIGHTS IN SHARES. The Grantee, for the duration of this
Agreement, shall be the record owner of, and shall be entitled to vote, the
Award Shares and shall be entitled to receive all dividends and any other
distributions declared on the Award Shares (provided, however, that nothing
contained herein shall cause the Company to declare any such dividends or to
make any such distributions).
SECTION 3. VESTING.
3.1 Vesting. The Award Shares shall vest (become nonforfeitable) in
accordance with the schedule set forth below:
1
Percentage of Shares Cumulative
Date Vested on Specified Date Percentage of Shares
- ------------ ------------------------ --------------------
May 13, 2006 25 25
May 13, 2007 25 50
May 13, 2008 25 75
May 13, 2009 25 100
provided, however, that notwithstanding the foregoing schedule, and except as
otherwise provided in Sections 3.2, 3.3 and 3.4 below, no additional Award
Shares shall vest after:
(i) termination of Grantee's employment with the Company or any
Affiliate for any reason (including termination by reason of voluntary or
involuntary discharge, Disability or Retirement) in which case the Grantee
shall, at the time of termination, forfeit all right, title and interest
in and to any Award Shares not then vested, or
(ii) a Grantee working full-time at the Award Date reduces his/her
scheduled hours worked per week below a standard 40-hour work week, in
which case the Grantee shall, at the time of such reduction and subject to
management's discretion, forfeit all right, title and interest in and to
any Award Shares not then vested; or
(iii) a Grantee working part-time at the Award Date reduces his/her
scheduled hours worked per week below a standard 20-hour work week, in
which case the Grantee shall, at the time of such reduction and subject to
management's discretion, forfeit all right, title and interest in and to
any Award Shares not then vested.
3.2 Effect of Grantee's Death. If the Grantee ceases to be an employee of
the Company or any Affiliate by reason of death, any and all outstanding Award
Shares not fully vested shall automatically vest in full and the personal
representatives heirs, legatees or distributees of the Grantee, as appropriate,
shall become fully vested in the Award Shares effective on the date of the
Grantee's death.
3.3 Effect of Dissolution or Liquidation. In the event of the dissolution
or liquidation of the Company, any and all outstanding Award Shares not fully
vested shall automatically vest in full immediately prior to such dissolution or
liquidation.
3.4 Effect of Change of Control. In the event of a Change in Control (as
defined in the Plan), any and all outstanding Award Shares not fully vested
shall automatically vest in full. The date on which such accelerated vesting
shall occur shall be the date of the occurrence of the Change in Control.
3.5 Effect of Forfeiture. Any Award Shares forfeited pursuant to Section
3.1 shall revert to the Company.
SECTION 4. STOCK CERTIFICATES. Upon grant of the Award Shares, the Company
shall cause its Transfer Agent to record Grantee's ownership of such Award
Shares in book entry
2
form. As Award Shares vest hereunder, such Award Shares shall be transferred
into an unrestricted account in the name of the Grantee or, at the request of
the Grantee, issued in stock certificate form. Any such certificates shall be
unencumbered by any of the restrictions enumerated herein other than such
restrictions as may be imposed by applicable federal or state securities laws
and regulations.
SECTION 5. TRANSFER AND REPURCHASES UPON TERMINATION.
5.1 The unvested Award Shares shall not be offered, sold, transferred,
assigned, exchanged, pledged, encumbered or otherwise disposed of (each, a
"Transfer") for any purpose whatsoever, other than to the Company, and shall not
be subject, in whole or in part, to execution, attachment, or similar process in
all such cases until the date of vesting. Any attempted Transfer of the unvested
Award Shares, other than in accordance with the terms set forth herein, shall be
void and of no effect.
5.2 Grantee acknowledges that any sale, assignment, transfer or other
disposition of vested Award Shares may be subject to restrictions contained in
applicable federal or state securities laws and regulations and that any such
sale, assignment, transfer or other disposition of Award Shares by him or her
will be in compliance with such laws and regulations.
SECTION 6. WITHHOLDINGS. The Company and each Affiliate shall have the
right to retain and withhold from any payment (including the vesting) of Award
Shares (and any dividends on Award Shares) any amounts required to be withheld
or otherwise deducted and paid with respect to such payment (including the
vesting thereof). At its discretion, the Company and each Affiliate may require
the Grantee receiving Award Shares to reimburse the Company or any Affiliate for
any such taxes required to be withheld by the Company or the Affiliate and
withhold any distribution in whole or in part until the Company and each
Affiliate is so reimbursed. In lieu thereof, the Company and each Affiliate
shall have the right to withhold from any other cash amounts due or to become
due from the Company or the Affiliate to the Grantee an amount equal to such
taxes required to be withheld by the Company or the Affiliate as reimbursement
for any such taxes or retain and withhold a number of shares having a market
value not less than the amount of such taxes in order to reimburse the Company
or the Affiliate for any such taxes.
SECTION 7. ADJUSTMENTS TO AWARD SHARES.
7.1 Stock Dividends and Splits and Similar Transactions. Subject to any
required action by the Company's Board of Directors and stockholders, the number
of Award Shares shall be proportionately adjusted for any increase or decrease
in the number of issued Shares of the Company resulting from the payment of a
Share dividend, a Share split, a Share reverse-split or any similar transaction.
7.2 Change in Par Value. In the event of a change in the Company's Shares
which is limited to a change of all of its authorized shares with par value into
the same number of shares with a different par value or without par value, the
shares resulting from any such change shall be deemed to be shares within the
meaning of the Plan.
7.3 Other Capital Adjustments. Except as hereinbefore expressly provided
in Section 7.1 and except for rights that all holders of Common Stock shall
have, Grantee shall have no rights by reason of any subdivision or consolidation
of Shares of any class or payment of any share dividend
3
or any other increase or decrease in the number of shares of any class or by
reason of any dissolution, liquidation, merger or consolidation or spin-off of
assets or stock of another corporation; any issuance by the Company of Shares of
any class, or securities convertible into Shares of any class, shall not affect
the Award, and no adjustment by reason thereof shall be made with respect to the
number or price of the Company's Shares subject to the Award. An Award of
Restricted Stock shall not affect in any way the right or power of the Company
to make adjustments, reclassifications, reorganizations or changes of its
capital or business structure or to merge or to consolidate or to dissolve,
liquidate or sell or transfer all or any part of its business or assets.
SECTION 8. GRANTEE'S REPRESENTATIONS AND WARRANTIES. Grantee represents
and warrants that:
(a) such Grantee has not and will not, directly or indirectly, Transfer
any Award Shares except in accordance with the terms of this Agreement;
(b) such Grantee has, or such Grantee together with such Grantee's
advisors, if any, have such knowledge and experience in financial, business and
tax matters that such Grantee is, or such Grantee together with such Grantee's
advisors, if any, are capable of evaluating the merits and risks relating to
such Grantee's investment in the Award Shares and making an investment decision
with respect to the Company;
(c) such Grantee has been given the opportunity to obtain information and
documents relating to the Company and to ask questions of and receive answers
from representatives of the Company concerning the Company and such Grantee's
investment in the Award Shares; and
(d) such Grantee realizes that there are substantial risks incident to an
investment in the Award Shares.
SECTION 9. IMPACT ON OTHER BENEFITS. The value of the Award Shares (either
on the Award Date or at the time the shares are vested) shall not be includable
as compensation or earnings for purposes of any other benefit plan offered by
the Company.
SECTION 10. ADMINISTRATION. The Committee shall have full authority and
discretion (subject only to the express provisions of the Plan) to decide all
matters relating to the administration and interpretation of the Plan and this
Agreement. All such Committee determinations shall be final, conclusive, and
binding upon the Company, the Grantee, and any and all interested parties.
SECTION 11. NO AGREEMENT TO CONTINUE IN EMPLOYMENT. Nothing in the Plan or
this Agreement shall confer on the Grantee any right to continue in the employ
of the Company or any Affiliate or interfere in any way with the right of the
Company and any Affiliate to terminate the Grantee's employment at any time.
SECTION 12. AMENDMENT(S). This Agreement shall be subject to the terms of
the Plan, as amended from time to time, except that the Award that is the
subject of this Agreement may not in any way be restricted or limited by any
amendment or termination approved after the Award Date without the Grantee's
written consent.
4
SECTION 13. FORCE AND EFFECT. The various provisions of this Agreement are
severable in their entirety. Any determination of invalidity or unenforceability
of any one provision shall have no effect on the continuing force and effect of
the remaining provisions.
SECTION 14. GOVERNING LAWS. This Agreement shall be construed and enforced
in accordance with and governed by the laws of the State of Maryland.
SECTION 15. MISCELLANEOUS.
15.1 Any notice necessary under this Agreement shall be in writing, signed
by the party giving or making the same, and addressed (a) to the Company in the
care of its President or Secretary at the principal executive office of the
Company in Dallas, Texas, (b) to the Grantee at the address appearing in the
personnel records of the Company for such Grantee or (c) to either party at such
other address as either party hereto may hereafter designate in writing to the
other. Except as otherwise provided herein, any such notice shall be deemed
effective upon receipt thereof by the addressee.
15.2 This Agreement may be executed in counterparts, each of which shall
be deemed an original for all purposes and both of which taken together shall
constitute but one and the same instrument.
[Signature Page Follows]
5
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date hereof. By execution of this Agreement, the Grantee acknowledges
receipt of a copy of the Plan, the Company's Annual Report on Form 10-K for the
year ended December 31, 2004 and the informational supplement required by Rule
428(b)(1) under the Securities Act of 1933.
CAPSTEAD MORTGAGE CORPORATION
By: /s/ ANDREW F. JACOBS
----------------------------------------
Andrew F. Jacobs
President and Chief Executive Officer
[GRANTEE]
/s/ PHILLIP A. REINSCH
-------------------------------------------
Phillip A. Reinsch
6
EXHIBIT 10.4(q)
CAPSTEAD MORTGAGE CORPORATION
RESTRICTED STOCK AGREEMENT
FOR EMPLOYEES
THIS AGREEMENT made and entered into as of the 13th day of May, 2005
(hereinafter called the "Award Date"), by and between Capstead Mortgage
Corporation, a Maryland corporation (the "Company"), and Robert R. Spears, Jr.
(the "Grantee").
WHEREAS, the Company, having determined that its interests will be
advanced by providing an incentive to the Grantee to increase the performance of
the Company and its Affiliates, has awarded to the grantee a restricted stock
award conditioned upon the execution by the Company and the Grantee of a
Restricted Stock Agreement.
THEREFORE, in consideration of the mutual promise(s) and covenant(s)
contained herein, the parties hereby agree as follows:
SECTION 1. GRANT.
1.1 Grant and Acceptance. Pursuant to the May 13, 2005 authorization to
grant shares of restricted stock to the current employees, the Company does
hereby grant and transfer to the Grantee, for no cash consideration from the
Grantee, and the Grantee does hereby accept from the Company, an aggregate of
20,000 shares (the "Award Shares") of the Common Stock, $0.01 par value per
share, of the Company (the "Common Stock") according to the terms and conditions
and subject to the restrictions hereinafter set forth.
1.2 Effect of Plan. The Award Shares shall constitute Restricted Stock and
this grant shall constitute an Award, each as defined in the Company's 2004
Flexible Long-Term Incentive Plan (the "Plan"). This Agreement is expressly
subject to the terms and provisions of the Plan and in the event there is a
conflict between the terms of the Plan and this Agreement, the terms of the Plan
shall control. All undefined capitalized terms used herein shall have the
meanings assigned in the Plan. The Award is subject to all laws, approvals,
requirements and regulations of any governmental authority which may be
applicable thereto.
SECTION 2. RIGHTS IN SHARES. The Grantee, for the duration of this
Agreement, shall be the record owner of, and shall be entitled to vote, the
Award Shares and shall be entitled to receive all dividends and any other
distributions declared on the Award Shares (provided, however, that nothing
contained herein shall cause the Company to declare any such dividends or to
make any such distributions).
SECTION 3. VESTING.
3.1 Vesting. The Award Shares shall vest (become nonforfeitable) in
accordance with the schedule set forth below:
1
Percentage of Shares Cumulative
Date Vested on Specified Date Percentage of Shares
- ------------ ------------------------ --------------------
May 13, 2006 25 25
May 13, 2007 25 50
May 13, 2008 25 75
May 13, 2009 25 100
provided, however, that notwithstanding the foregoing schedule, and except as
otherwise provided in Sections 3.2, 3.3 and 3.4 below, no additional Award
Shares shall vest after:
(i) termination of Grantee's employment with the Company or any
Affiliate for any reason (including termination by reason of voluntary or
involuntary discharge, Disability or Retirement) in which case the Grantee
shall, at the time of termination, forfeit all right, title and interest
in and to any Award Shares not then vested, or
(ii) a Grantee working full-time at the Award Date reduces his/her
scheduled hours worked per week below a standard 40-hour work week, in
which case the Grantee shall, at the time of such reduction and subject to
management's discretion, forfeit all right, title and interest in and to
any Award Shares not then vested; or
(iii) a Grantee working part-time at the Award Date reduces his/her
scheduled hours worked per week below a standard 20-hour work week, in
which case the Grantee shall, at the time of such reduction and subject to
management's discretion, forfeit all right, title and interest in and to
any Award Shares not then vested.
3.2 Effect of Grantee's Death. If the Grantee ceases to be an employee of
the Company or any Affiliate by reason of death, any and all outstanding Award
Shares not fully vested shall automatically vest in full and the personal
representatives heirs, legatees or distributees of the Grantee, as appropriate,
shall become fully vested in the Award Shares effective on the date of the
Grantee's death.
3.3 Effect of Dissolution or Liquidation. In the event of the dissolution
or liquidation of the Company, any and all outstanding Award Shares not fully
vested shall automatically vest in full immediately prior to such dissolution or
liquidation.
3.4 Effect of Change of Control. In the event of a Change in Control (as
defined in the Plan), any and all outstanding Award Shares not fully vested
shall automatically vest in full. The date on which such accelerated vesting
shall occur shall be the date of the occurrence of the Change in Control.
3.5 Effect of Forfeiture. Any Award Shares forfeited pursuant to Section
3.1 shall revert to the Company.
SECTION 4. STOCK CERTIFICATES. Upon grant of the Award Shares, the Company
shall cause its Transfer Agent to record Grantee's ownership of such Award
Shares in book entry
2
form. As Award Shares vest hereunder, such Award Shares shall be transferred
into an unrestricted account in the name of the Grantee or, at the request of
the Grantee, issued in stock certificate form. Any such certificates shall be
unencumbered by any of the restrictions enumerated herein other than such
restrictions as may be imposed by applicable federal or state securities laws
and regulations.
SECTION 5. TRANSFER AND REPURCHASES UPON TERMINATION.
5.1 The unvested Award Shares shall not be offered, sold, transferred,
assigned, exchanged, pledged, encumbered or otherwise disposed of (each, a
"Transfer") for any purpose whatsoever, other than to the Company, and shall not
be subject, in whole or in part, to execution, attachment, or similar process in
all such cases until the date of vesting. Any attempted Transfer of the unvested
Award Shares, other than in accordance with the terms set forth herein, shall be
void and of no effect.
5.2 Grantee acknowledges that any sale, assignment, transfer or other
disposition of vested Award Shares may be subject to restrictions contained in
applicable federal or state securities laws and regulations and that any such
sale, assignment, transfer or other disposition of Award Shares by him or her
will be in compliance with such laws and regulations.
SECTION 6. WITHHOLDINGS. The Company and each Affiliate shall have the
right to retain and withhold from any payment (including the vesting) of Award
Shares (and any dividends on Award Shares) any amounts required to be withheld
or otherwise deducted and paid with respect to such payment (including the
vesting thereof). At its discretion, the Company and each Affiliate may require
the Grantee receiving Award Shares to reimburse the Company or any Affiliate for
any such taxes required to be withheld by the Company or the Affiliate and
withhold any distribution in whole or in part until the Company and each
Affiliate is so reimbursed. In lieu thereof, the Company and each Affiliate
shall have the right to withhold from any other cash amounts due or to become
due from the Company or the Affiliate to the Grantee an amount equal to such
taxes required to be withheld by the Company or the Affiliate as reimbursement
for any such taxes or retain and withhold a number of shares having a market
value not less than the amount of such taxes in order to reimburse the Company
or the Affiliate for any such taxes.
SECTION 7. ADJUSTMENTS TO AWARD SHARES.
7.1 Stock Dividends and Splits and Similar Transactions. Subject to any
required action by the Company's Board of Directors and stockholders, the number
of Award Shares shall be proportionately adjusted for any increase or decrease
in the number of issued Shares of the Company resulting from the payment of a
Share dividend, a Share split, a Share reverse-split or any similar transaction.
7.2 Change in Par Value. In the event of a change in the Company's Shares
which is limited to a change of all of its authorized shares with par value into
the same number of shares with a different par value or without par value, the
shares resulting from any such change shall be deemed to be shares within the
meaning of the Plan.
7.3 Other Capital Adjustments. Except as hereinbefore expressly provided
in Section 7.1 and except for rights that all holders of Common Stock shall
have, Grantee shall have no rights by reason of any subdivision or consolidation
of Shares of any class or payment of any share dividend
3
or any other increase or decrease in the number of shares of any class or by
reason of any dissolution, liquidation, merger or consolidation or spin-off of
assets or stock of another corporation; any issuance by the Company of Shares of
any class, or securities convertible into Shares of any class, shall not affect
the Award, and no adjustment by reason thereof shall be made with respect to the
number or price of the Company's Shares subject to the Award. An Award of
Restricted Stock shall not affect in any way the right or power of the Company
to make adjustments, reclassifications, reorganizations or changes of its
capital or business structure or to merge or to consolidate or to dissolve,
liquidate or sell or transfer all or any part of its business or assets.
SECTION 8. GRANTEE'S REPRESENTATIONS AND WARRANTIES. Grantee represents
and warrants that:
(a) such Grantee has not and will not, directly or indirectly, Transfer
any Award Shares except in accordance with the terms of this Agreement;
(b) such Grantee has, or such Grantee together with such Grantee's
advisors, if any, have such knowledge and experience in financial, business and
tax matters that such Grantee is, or such Grantee together with such Grantee's
advisors, if any, are capable of evaluating the merits and risks relating to
such Grantee's investment in the Award Shares and making an investment decision
with respect to the Company;
(c) such Grantee has been given the opportunity to obtain information and
documents relating to the Company and to ask questions of and receive answers
from representatives of the Company concerning the Company and such Grantee's
investment in the Award Shares; and
(d) such Grantee realizes that there are substantial risks incident to an
investment in the Award Shares.
SECTION 9. IMPACT ON OTHER BENEFITS. The value of the Award Shares (either
on the Award Date or at the time the shares are vested) shall not be includable
as compensation or earnings for purposes of any other benefit plan offered by
the Company.
SECTION 10. ADMINISTRATION. The Committee shall have full authority and
discretion (subject only to the express provisions of the Plan) to decide all
matters relating to the administration and interpretation of the Plan and this
Agreement. All such Committee determinations shall be final, conclusive, and
binding upon the Company, the Grantee, and any and all interested parties.
SECTION 11. NO AGREEMENT TO CONTINUE IN EMPLOYMENT. Nothing in the Plan or
this Agreement shall confer on the Grantee any right to continue in the employ
of the Company or any Affiliate or interfere in any way with the right of the
Company and any Affiliate to terminate the Grantee's employment at any time.
SECTION 12. AMENDMENT(S). This Agreement shall be subject to the terms of
the Plan, as amended from time to time, except that the Award that is the
subject of this Agreement may not in any way be restricted or limited by any
amendment or termination approved after the Award Date without the Grantee's
written consent.
4
SECTION 13. FORCE AND EFFECT. The various provisions of this Agreement are
severable in their entirety. Any determination of invalidity or unenforceability
of any one provision shall have no effect on the continuing force and effect of
the remaining provisions.
SECTION 14. GOVERNING LAWS. This Agreement shall be construed and enforced
in accordance with and governed by the laws of the State of Maryland.
SECTION 15. MISCELLANEOUS.
15.1 Any notice necessary under this Agreement shall be in writing, signed
by the party giving or making the same, and addressed (a) to the Company in the
care of its President or Secretary at the principal executive office of the
Company in Dallas, Texas, (b) to the Grantee at the address appearing in the
personnel records of the Company for such Grantee or (c) to either party at such
other address as either party hereto may hereafter designate in writing to the
other. Except as otherwise provided herein, any such notice shall be deemed
effective upon receipt thereof by the addressee.
15.2 This Agreement may be executed in counterparts, each of which shall
be deemed an original for all purposes and both of which taken together shall
constitute but one and the same instrument.
[Signature Page Follows]
5
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date hereof. By execution of this Agreement, the Grantee acknowledges
receipt of a copy of the Plan, the Company's Annual Report on Form 10-K for the
year ended December 31, 2004 and the informational supplement required by Rule
428(b)(1) under the Securities Act of 1933.
CAPSTEAD MORTGAGE CORPORATION
By: /s/ ANDREW F. JACOBS
----------------------------------------
Andrew F. Jacobs
President and Chief Executive Officer
[GRANTEE]
/s/ ROBERT R. SPEARS, JR.
-------------------------------------------
Robert R. Spears, Jr.
6
EXHIBIT 10.4(r)
CAPSTEAD MORTGAGE CORPORATION
RESTRICTED STOCK AGREEMENT
FOR NON-EMPLOYEE DIRECTORS
THIS AGREEMENT made and entered into as of the 21st day of June, 2005
(hereinafter called the "Award Date"), by and between Capstead Mortgage
Corporation, a Maryland corporation (the "Company"), and Jack Biegler (the
"Grantee").
WHEREAS, the Company, having determined that its interests will be
advanced by providing an incentive to the Grantee to increase the performance of
the Company and its Affiliates, has awarded to the grantee a restricted stock
award conditioned upon the execution by the Company and the Grantee of a
Restricted Stock Agreement.
THEREFORE, in consideration of the mutual promise(s) and covenant(s)
contained herein, the parties hereby agree as follows:
SECTION 1. GRANT.
1.1 Grant and Acceptance. The Company does hereby grant and transfer to
the Grantee, for no cash consideration from the Grantee, and the Grantee does
hereby accept from the Company, an aggregate of 5,000 shares (the "Award
Shares") of the Common Stock, $0.01 par value per share, of the Company (the
"Common Stock") according to the terms and conditions and subject to the
restrictions hereinafter set forth.
1.2 Effect of Plan. The Award Shares shall constitute Restricted Stock and
this grant shall constitute an Award, each as defined in the Company's 2004
Flexible Long-Term Incentive Plan (the "Plan"). This Agreement is expressly
subject to the terms and provisions of the Plan and in the event there is a
conflict between the terms of the Plan and this Agreement, the terms of the Plan
shall control. All undefined capitalized terms used herein shall have the
meanings assigned in the Plan. The Award is subject to all laws, approvals,
requirements and regulations of any governmental authority which may be
applicable thereto.
SECTION 2. RIGHTS IN SHARES. The Grantee, for the duration of this
Agreement, shall be the record owner of, and shall be entitled to vote, the
Award Shares and shall be entitled to receive all dividends and any other
distributions declared on the Award Shares (provided, however, that nothing
contained herein shall cause the Company to declare any such dividends or to
make any such distributions).
SECTION 3. VESTING.
3.1 Vesting. The Award Shares shall vest (become nonforfeitable) in
accordance with the schedule set forth below:
1
Percentage of Shares Cumulative
Date Vested on Specified Date Percentage of Shares
- ------------- ------------------------ --------------------
June 21, 2006 25 25
June 21, 2007 25 50
June 21, 2008 25 75
June 21, 2009 25 100
provided, however, that notwithstanding the foregoing schedule, and except as
otherwise provided in Sections 3.2, 3.3 and 3.4 below, no additional Award
Shares shall vest after termination of Grantee's directorship with the Company
or any Affiliate for any reason (including termination by reason of voluntary or
involuntary discharge, Disability or Retirement) in which case the Grantee
shall, at the time of termination, forfeit all right, title and interest in and
to any Award Shares not then vested.
3.2 Effect of Grantee's Death. If the Grantee ceases to be a director of
the Company or any Affiliate by reason of death, any and all outstanding Award
Shares not fully vested shall automatically vest in full and the personal
representatives heirs, legatees or distributees of the Grantee, as appropriate,
shall become fully vested in the Award Shares effective on the date of the
Grantee's death.
3.3 Effect of Dissolution or Liquidation. In the event of the dissolution
or liquidation of the Company, any and all outstanding Award Shares not fully
vested shall automatically vest in full immediately prior to such dissolution or
liquidation.
3.4 Effect of Change of Control. In the event of a Change in Control (as
defined in the Plan), any and all outstanding Award Shares not fully vested
shall automatically vest in full. The date on which such accelerated vesting
shall occur shall be the date of the occurrence of the Change in Control.
3.5 Effect of Forfeiture. Any Award Shares forfeited pursuant to Section
3.1 shall revert to the Company.
SECTION 4. STOCK CERTIFICATES. Upon grant of the Award Shares, the Company
shall cause its Transfer Agent to record Grantee's ownership of such Award
Shares in book entry form. As Award Shares vest hereunder, such Award Shares
shall be transferred into an unrestricted account in the name of the Grantee or,
at the request of the Grantee, issued in stock certificate form. Any such
certificates shall be unencumbered by any of the restrictions enumerated herein
other than such restrictions as may be imposed by applicable federal or state
securities laws and regulations.
SECTION 5. TRANSFER AND REPURCHASES UPON TERMINATION.
5.1 The unvested Award Shares shall not be offered, sold, transferred,
assigned, exchanged, pledged, encumbered or otherwise disposed of (each, a
"Transfer") for any purpose whatsoever, other than to the Company, and shall not
be subject, in whole or in part, to execution, attachment, or similar process in
all such cases until the date of vesting. Any attempted Transfer of
2
the unvested Award Shares, other than in accordance with the terms set forth
herein, shall be void and of no effect.
5.2 Grantee acknowledges that any sale, assignment, transfer or other
disposition of vested Award Shares may be subject to restrictions contained in
applicable federal or state securities laws and regulations and that any such
sale, assignment, transfer or other disposition of Award Shares by him or her
will be in compliance with such laws and regulations.
SECTION 6. WITHHOLDINGS. The Company and each Affiliate shall have the
right to retain and withhold from any payment (including the vesting) of Award
Shares (and any dividends on Award Shares) any amounts required to be withheld
or otherwise deducted and paid with respect to such payment (including the
vesting thereof). At its discretion, the Company and each Affiliate may require
the Grantee receiving Award Shares to reimburse the Company or any Affiliate for
any such taxes required to be withheld by the Company or the Affiliate and
withhold any distribution in whole or in part until the Company and each
Affiliate is so reimbursed. In lieu thereof, the Company and each Affiliate
shall have the right to withhold from any other cash amounts due or to become
due from the Company or the Affiliate to the Grantee an amount equal to such
taxes required to be withheld by the Company or the Affiliate as reimbursement
for any such taxes or retain and withhold a number of shares having a market
value not less than the amount of such taxes in order to reimburse the Company
or the Affiliate for any such taxes.
SECTION 7. ADJUSTMENTS TO AWARD SHARES.
7.1 Stock Dividends and Splits and Similar Transactions. Subject to any
required action by the Company's Board of Directors and stockholders, the number
of Award Shares shall be proportionately adjusted for any increase or decrease
in the number of issued Shares of the Company resulting from the payment of a
Share dividend, a Share split, a Share reverse-split or any similar transaction.
7.2 Change in Par Value. In the event of a change in the Company's Shares
which is limited to a change of all of its authorized shares with par value into
the same number of shares with a different par value or without par value, the
shares resulting from any such change shall be deemed to be shares within the
meaning of the Plan.
7.3 Other Capital Adjustments. Except as hereinbefore expressly provided
in Section 7.1 and except for rights that all holders of Common Stock shall
have, Grantee shall have no rights by reason of any subdivision or consolidation
of Shares of any class or payment of any share dividend or any other increase or
decrease in the number of shares of any class or by reason of any dissolution,
liquidation, merger or consolidation or spin-off of assets or stock of another
corporation; any issuance by the Company of Shares of any class, or securities
convertible into Shares of any class, shall not affect the Award, and no
adjustment by reason thereof shall be made with respect to the number or price
of the Company's Shares subject to the Award. An Award of Restricted Stock shall
not affect in any way the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge or to consolidate or to dissolve, liquidate or sell or
transfer all or any part of its business or assets.
3
SECTION 8. GRANTEE'S REPRESENTATIONS AND WARRANTIES. Grantee represents
and warrants that:
(a) such Grantee has not and will not, directly or indirectly, Transfer
any Award Shares except in accordance with the terms of this Agreement;
(b) such Grantee has, or such Grantee together with such Grantee's
advisors, if any, have such knowledge and experience in financial, business and
tax matters that such Grantee is, or such Grantee together with such Grantee's
advisors, if any, are capable of evaluating the merits and risks relating to
such Grantee's investment in the Award Shares and making an investment decision
with respect to the Company;
(c) such Grantee has been given the opportunity to obtain information and
documents relating to the Company and to ask questions of and receive answers
from representatives of the Company concerning the Company and such Grantee's
investment in the Award Shares; and
(d) such Grantee realizes that there are substantial risks incident to an
investment in the Award Shares.
SECTION 9. IMPACT ON OTHER BENEFITS. The value of the Award Shares (either
on the Award Date or at the time the shares are vested) shall not be includable
as compensation or earnings for purposes of any other benefit plan offered by
the Company.
SECTION 10. ADMINISTRATION. The Committee shall have full authority and
discretion (subject only to the express provisions of the Plan) to decide all
matters relating to the administration and interpretation of the Plan and this
Agreement. All such Committee determinations shall be final, conclusive, and
binding upon the Company, the Grantee, and any and all interested parties.
SECTION 11. AMENDMENT(S). This Agreement shall be subject to the terms of
the Plan, as amended from time to time, except that the Award that is the
subject of this Agreement may not in any way be restricted or limited by any
amendment or termination approved after the Award Date without the Grantee's
written consent.
SECTION 12. FORCE AND EFFECT. The various provisions of this Agreement are
severable in their entirety. Any determination of invalidity or unenforceability
of any one provision shall have no effect on the continuing force and effect of
the remaining provisions.
SECTION 13. GOVERNING LAWS. This Agreement shall be construed and enforced
in accordance with and governed by the laws of the State of Maryland.
SECTION 14. MISCELLANEOUS.
14.1 Any notice necessary under this Agreement shall be in writing, signed
by the party giving or making the same, and addressed (a) to the Company in the
care of its President or Secretary at the principal executive office of the
Company in Dallas, Texas, (b) to the Grantee at the address appearing in the
personnel records of the Company for such Grantee or (c) to either party at such
other address as either party hereto may hereafter designate in writing to the
other. Except as
4
otherwise provided herein, any such notice shall be deemed effective upon
receipt thereof by the addressee.
14.2 This Agreement may be executed in counterparts, each of which shall
be deemed an original for all purposes and both of which taken together shall
constitute but one and the same instrument.
[Signature Page Follows]
5
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date hereof. By execution of this Agreement, the Grantee acknowledges
receipt of a copy of the Plan, the Company's Annual Report on Form 10-K for the
year ended December 31, 2004 and the informational supplement required by Rule
428(b)(1) under the Securities Act of 1933.
CAPSTEAD MORTGAGE CORPORATION
By: /s/ ANDREW F. JACOBS
-------------------------------------------
Andrew F. Jacobs
President and Chief Executive Officer
[GRANTEE]
/s/ JACK BIEGLER
---------------------------------------------
Jack Biegler
6
EXHIBIT 10.4(s)
CAPSTEAD MORTGAGE CORPORATION
RESTRICTED STOCK AGREEMENT
FOR NON-EMPLOYEE DIRECTORS
THIS AGREEMENT made and entered into as of the 13th day of May, 2005
(hereinafter called the "Award Date"), by and between Capstead Mortgage
Corporation, a Maryland corporation (the "Company"), and Gary Keiser (the
"Grantee").
WHEREAS, the Company, having determined that its interests will be
advanced by providing an incentive to the Grantee to increase the performance of
the Company and its Affiliates, has awarded to the grantee a restricted stock
award conditioned upon the execution by the Company and the Grantee of a
Restricted Stock Agreement.
THEREFORE, in consideration of the mutual promise(s) and covenant(s)
contained herein, the parties hereby agree as follows:
SECTION 1. GRANT.
1.1 Grant and Acceptance. The Company does hereby grant and transfer to
the Grantee, for no cash consideration from the Grantee, and the Grantee does
hereby accept from the Company, an aggregate of 5,000 shares (the "Award
Shares") of the Common Stock, $0.01 par value per share, of the Company (the
"Common Stock") according to the terms and conditions and subject to the
restrictions hereinafter set forth.
1.2 Effect of Plan. The Award Shares shall constitute Restricted Stock and
this grant shall constitute an Award, each as defined in the Company's 2004
Flexible Long-Term Incentive Plan (the "Plan"). This Agreement is expressly
subject to the terms and provisions of the Plan and in the event there is a
conflict between the terms of the Plan and this Agreement, the terms of the Plan
shall control. All undefined capitalized terms used herein shall have the
meanings assigned in the Plan. The Award is subject to all laws, approvals,
requirements and regulations of any governmental authority which may be
applicable thereto.
SECTION 2. RIGHTS IN SHARES. The Grantee, for the duration of this
Agreement, shall be the record owner of, and shall be entitled to vote, the
Award Shares and shall be entitled to receive all dividends and any other
distributions declared on the Award Shares (provided, however, that nothing
contained herein shall cause the Company to declare any such dividends or to
make any such distributions).
SECTION 3. VESTING.
3.1 Vesting. The Award Shares shall vest (become nonforfeitable) in
accordance with the schedule set forth below:
1
Percentage of Shares Cumulative
Date Vested on Specified Date Percentage of Shares
- ------------ ------------------------ --------------------
May 13, 2006 25 25
May 13, 2007 25 50
May 13, 2008 25 75
May 13, 2009 25 100
provided, however, that notwithstanding the foregoing schedule, and except as
otherwise provided in Sections 3.2, 3.3 and 3.4 below, no additional Award
Shares shall vest after termination of Grantee's directorship with the Company
or any Affiliate for any reason (including termination by reason of voluntary or
involuntary discharge, Disability or Retirement) in which case the Grantee
shall, at the time of termination, forfeit all right, title and interest in and
to any Award Shares not then vested.
3.2 Effect of Grantee's Death. If the Grantee ceases to be a director of
the Company or any Affiliate by reason of death, any and all outstanding Award
Shares not fully vested shall automatically vest in full and the personal
representatives heirs, legatees or distributees of the Grantee, as appropriate,
shall become fully vested in the Award Shares effective on the date of the
Grantee's death.
3.3 Effect of Dissolution or Liquidation. In the event of the dissolution
or liquidation of the Company, any and all outstanding Award Shares not fully
vested shall automatically vest in full immediately prior to such dissolution or
liquidation.
3.4 Effect of Change of Control. In the event of a Change in Control (as
defined in the Plan), any and all outstanding Award Shares not fully vested
shall automatically vest in full. The date on which such accelerated vesting
shall occur shall be the date of the occurrence of the Change in Control.
3.5 Effect of Forfeiture. Any Award Shares forfeited pursuant to Section
3.1 shall revert to the Company.
SECTION 4. STOCK CERTIFICATES. Upon grant of the Award Shares, the Company
shall cause its Transfer Agent to record Grantee's ownership of such Award
Shares in book entry form. As Award Shares vest hereunder, such Award Shares
shall be transferred into an unrestricted account in the name of the Grantee or,
at the request of the Grantee, issued in stock certificate form. Any such
certificates shall be unencumbered by any of the restrictions enumerated herein
other than such restrictions as may be imposed by applicable federal or state
securities laws and regulations.
SECTION 5. TRANSFER AND REPURCHASES UPON TERMINATION.
5.1 The unvested Award Shares shall not be offered, sold, transferred,
assigned, exchanged, pledged, encumbered or otherwise disposed of (each, a
"Transfer") for any purpose whatsoever, other than to the Company, and shall not
be subject, in whole or in part, to execution, attachment, or similar process in
all such cases until the date of vesting. Any attempted Transfer of
2
the unvested Award Shares, other than in accordance with the terms set forth
herein, shall be void and of no effect.
5.2 Grantee acknowledges that any sale, assignment, transfer or other
disposition of vested Award Shares may be subject to restrictions contained in
applicable federal or state securities laws and regulations and that any such
sale, assignment, transfer or other disposition of Award Shares by him or her
will be in compliance with such laws and regulations.
SECTION 6. WITHHOLDINGS. The Company and each Affiliate shall have the
right to retain and withhold from any payment (including the vesting) of Award
Shares (and any dividends on Award Shares) any amounts required to be withheld
or otherwise deducted and paid with respect to such payment (including the
vesting thereof). At its discretion, the Company and each Affiliate may require
the Grantee receiving Award Shares to reimburse the Company or any Affiliate for
any such taxes required to be withheld by the Company or the Affiliate and
withhold any distribution in whole or in part until the Company and each
Affiliate is so reimbursed. In lieu thereof, the Company and each Affiliate
shall have the right to withhold from any other cash amounts due or to become
due from the Company or the Affiliate to the Grantee an amount equal to such
taxes required to be withheld by the Company or the Affiliate as reimbursement
for any such taxes or retain and withhold a number of shares having a market
value not less than the amount of such taxes in order to reimburse the Company
or the Affiliate for any such taxes.
SECTION 7. ADJUSTMENTS TO AWARD SHARES.
7.1 Stock Dividends and Splits and Similar Transactions. Subject to any
required action by the Company's Board of Directors and stockholders, the number
of Award Shares shall be proportionately adjusted for any increase or decrease
in the number of issued Shares of the Company resulting from the payment of a
Share dividend, a Share split, a Share reverse-split or any similar transaction.
7.2 Change in Par Value. In the event of a change in the Company's Shares
which is limited to a change of all of its authorized shares with par value into
the same number of shares with a different par value or without par value, the
shares resulting from any such change shall be deemed to be shares within the
meaning of the Plan.
7.3 Other Capital Adjustments. Except as hereinbefore expressly provided
in Section 7.1 and except for rights that all holders of Common Stock shall
have, Grantee shall have no rights by reason of any subdivision or consolidation
of Shares of any class or payment of any share dividend or any other increase or
decrease in the number of shares of any class or by reason of any dissolution,
liquidation, merger or consolidation or spin-off of assets or stock of another
corporation; any issuance by the Company of Shares of any class, or securities
convertible into Shares of any class, shall not affect the Award, and no
adjustment by reason thereof shall be made with respect to the number or price
of the Company's Shares subject to the Award. An Award of Restricted Stock shall
not affect in any way the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge or to consolidate or to dissolve, liquidate or sell or
transfer all or any part of its business or assets.
3
SECTION 8. GRANTEE'S REPRESENTATIONS AND WARRANTIES. Grantee represents
and warrants that:
(a) such Grantee has not and will not, directly or indirectly, Transfer
any Award Shares except in accordance with the terms of this Agreement;
(b) such Grantee has, or such Grantee together with such Grantee's
advisors, if any, have such knowledge and experience in financial, business and
tax matters that such Grantee is, or such Grantee together with such Grantee's
advisors, if any, are capable of evaluating the merits and risks relating to
such Grantee's investment in the Award Shares and making an investment decision
with respect to the Company;
(c) such Grantee has been given the opportunity to obtain information and
documents relating to the Company and to ask questions of and receive answers
from representatives of the Company concerning the Company and such Grantee's
investment in the Award Shares; and
(d) such Grantee realizes that there are substantial risks incident to an
investment in the Award Shares.
SECTION 9. IMPACT ON OTHER BENEFITS. The value of the Award Shares (either
on the Award Date or at the time the shares are vested) shall not be includable
as compensation or earnings for purposes of any other benefit plan offered by
the Company.
SECTION 10. ADMINISTRATION. The Committee shall have full authority and
discretion (subject only to the express provisions of the Plan) to decide all
matters relating to the administration and interpretation of the Plan and this
Agreement. All such Committee determinations shall be final, conclusive, and
binding upon the Company, the Grantee, and any and all interested parties.
SECTION 11. AMENDMENT(S). This Agreement shall be subject to the terms of
the Plan, as amended from time to time, except that the Award that is the
subject of this Agreement may not in any way be restricted or limited by any
amendment or termination approved after the Award Date without the Grantee's
written consent.
SECTION 12. FORCE AND EFFECT. The various provisions of this Agreement are
severable in their entirety. Any determination of invalidity or unenforceability
of any one provision shall have no effect on the continuing force and effect of
the remaining provisions.
SECTION 13. GOVERNING LAWS. This Agreement shall be construed and enforced
in accordance with and governed by the laws of the State of Maryland.
SECTION 14. MISCELLANEOUS.
14.1 Any notice necessary under this Agreement shall be in writing, signed
by the party giving or making the same, and addressed (a) to the Company in the
care of its President or Secretary at the principal executive office of the
Company in Dallas, Texas, (b) to the Grantee at the address appearing in the
personnel records of the Company for such Grantee or (c) to either party at such
other address as either party hereto may hereafter designate in writing to the
other. Except as
4
otherwise provided herein, any such notice shall be deemed effective upon
receipt thereof by the addressee.
14.2 This Agreement may be executed in counterparts, each of which shall
be deemed an original for all purposes and both of which taken together shall
constitute but one and the same instrument.
[Signature Page Follows]
5
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date hereof. By execution of this Agreement, the Grantee acknowledges
receipt of a copy of the Plan, the Company's Annual Report on Form 10-K for the
year ended December 31, 2004 and the informational supplement required by Rule
428(b)(1) under the Securities Act of 1933.
CAPSTEAD MORTGAGE CORPORATION
By: /s/ ANDREW F. JACOBS
-----------------------------------------
Andrew F. Jacobs
President and Chief Executive Officer
[GRANTEE]
/s/ GARY KEISER
--------------------------------------------
Gary Keiser
6
EXHIBIT 10.4(t)
CAPSTEAD MORTGAGE CORPORATION
RESTRICTED STOCK AGREEMENT
FOR NON-EMPLOYEE DIRECTORS
THIS AGREEMENT made and entered into as of the 13th day of May, 2005
(hereinafter called the "Award Date"), by and between Capstead Mortgage
Corporation, a Maryland corporation (the "Company"), and Paul M. Low (the
"Grantee").
WHEREAS, the Company, having determined that its interests will be
advanced by providing an incentive to the Grantee to increase the performance of
the Company and its Affiliates, has awarded to the grantee a restricted stock
award conditioned upon the execution by the Company and the Grantee of a
Restricted Stock Agreement.
THEREFORE, in consideration of the mutual promise(s) and covenant(s)
contained herein, the parties hereby agree as follows:
SECTION 1. GRANT.
1.1 Grant and Acceptance. The Company does hereby grant and transfer to
the Grantee, for no cash consideration from the Grantee, and the Grantee does
hereby accept from the Company, an aggregate of 5,000 shares (the "Award
Shares") of the Common Stock, $0.01 par value per share, of the Company (the
"Common Stock") according to the terms and conditions and subject to the
restrictions hereinafter set forth.
1.2 Effect of Plan. The Award Shares shall constitute Restricted Stock and
this grant shall constitute an Award, each as defined in the Company's 2004
Flexible Long-Term Incentive Plan (the "Plan"). This Agreement is expressly
subject to the terms and provisions of the Plan and in the event there is a
conflict between the terms of the Plan and this Agreement, the terms of the Plan
shall control. All undefined capitalized terms used herein shall have the
meanings assigned in the Plan. The Award is subject to all laws, approvals,
requirements and regulations of any governmental authority which may be
applicable thereto.
SECTION 2. RIGHTS IN SHARES. The Grantee, for the duration of this
Agreement, shall be the record owner of, and shall be entitled to vote, the
Award Shares and shall be entitled to receive all dividends and any other
distributions declared on the Award Shares (provided, however, that nothing
contained herein shall cause the Company to declare any such dividends or to
make any such distributions).
SECTION 3. VESTING.
3.1 Vesting. The Award Shares shall vest (become nonforfeitable) in
accordance with the schedule set forth below:
1
Percentage of Shares Cumulative
Date Vested on Specified Date Percentage of Shares
- ------------ ------------------------ --------------------
May 13, 2006 25 25
May 13, 2007 25 50
May 13, 2008 25 75
May 13, 2009 25 100
provided, however, that notwithstanding the foregoing schedule, and except as
otherwise provided in Sections 3.2, 3.3 and 3.4 below, no additional Award
Shares shall vest after termination of Grantee's directorship with the Company
or any Affiliate for any reason (including termination by reason of voluntary or
involuntary discharge, Disability or Retirement) in which case the Grantee
shall, at the time of termination, forfeit all right, title and interest in and
to any Award Shares not then vested.
3.2 Effect of Grantee's Death. If the Grantee ceases to be a director of
the Company or any Affiliate by reason of death, any and all outstanding Award
Shares not fully vested shall automatically vest in full and the personal
representatives heirs, legatees or distributees of the Grantee, as appropriate,
shall become fully vested in the Award Shares effective on the date of the
Grantee's death.
3.3 Effect of Dissolution or Liquidation. In the event of the dissolution
or liquidation of the Company, any and all outstanding Award Shares not fully
vested shall automatically vest in full immediately prior to such dissolution or
liquidation.
3.4 Effect of Change of Control. In the event of a Change in Control (as
defined in the Plan), any and all outstanding Award Shares not fully vested
shall automatically vest in full. The date on which such accelerated vesting
shall occur shall be the date of the occurrence of the Change in Control.
3.5 Effect of Forfeiture. Any Award Shares forfeited pursuant to Section
3.1 shall revert to the Company.
SECTION 4. STOCK CERTIFICATES. Upon grant of the Award Shares, the Company
shall cause its Transfer Agent to record Grantee's ownership of such Award
Shares in book entry form. As Award Shares vest hereunder, such Award Shares
shall be transferred into an unrestricted account in the name of the Grantee or,
at the request of the Grantee, issued in stock certificate form. Any such
certificates shall be unencumbered by any of the restrictions enumerated herein
other than such restrictions as may be imposed by applicable federal or state
securities laws and regulations.
SECTION 5. TRANSFER AND REPURCHASES UPON TERMINATION.
5.1 The unvested Award Shares shall not be offered, sold, transferred,
assigned, exchanged, pledged, encumbered or otherwise disposed of (each, a
"Transfer") for any purpose whatsoever, other than to the Company, and shall not
be subject, in whole or in part, to execution, attachment, or similar process in
all such cases until the date of vesting. Any attempted Transfer of
2
the unvested Award Shares, other than in accordance with the terms set forth
herein, shall be void and of no effect.
5.2 Grantee acknowledges that any sale, assignment, transfer or other
disposition of vested Award Shares may be subject to restrictions contained in
applicable federal or state securities laws and regulations and that any such
sale, assignment, transfer or other disposition of Award Shares by him or her
will be in compliance with such laws and regulations.
SECTION 6. WITHHOLDINGS. The Company and each Affiliate shall have the
right to retain and withhold from any payment (including the vesting) of Award
Shares (and any dividends on Award Shares) any amounts required to be withheld
or otherwise deducted and paid with respect to such payment (including the
vesting thereof). At its discretion, the Company and each Affiliate may require
the Grantee receiving Award Shares to reimburse the Company or any Affiliate for
any such taxes required to be withheld by the Company or the Affiliate and
withhold any distribution in whole or in part until the Company and each
Affiliate is so reimbursed. In lieu thereof, the Company and each Affiliate
shall have the right to withhold from any other cash amounts due or to become
due from the Company or the Affiliate to the Grantee an amount equal to such
taxes required to be withheld by the Company or the Affiliate as reimbursement
for any such taxes or retain and withhold a number of shares having a market
value not less than the amount of such taxes in order to reimburse the Company
or the Affiliate for any such taxes.
SECTION 7. ADJUSTMENTS TO AWARD SHARES.
7.1 Stock Dividends and Splits and Similar Transactions. Subject to any
required action by the Company's Board of Directors and stockholders, the number
of Award Shares shall be proportionately adjusted for any increase or decrease
in the number of issued Shares of the Company resulting from the payment of a
Share dividend, a Share split, a Share reverse-split or any similar transaction.
7.2 Change in Par Value. In the event of a change in the Company's Shares
which is limited to a change of all of its authorized shares with par value into
the same number of shares with a different par value or without par value, the
shares resulting from any such change shall be deemed to be shares within the
meaning of the Plan.
7.3 Other Capital Adjustments. Except as hereinbefore expressly provided
in Section 7.1 and except for rights that all holders of Common Stock shall
have, Grantee shall have no rights by reason of any subdivision or consolidation
of Shares of any class or payment of any share dividend or any other increase or
decrease in the number of shares of any class or by reason of any dissolution,
liquidation, merger or consolidation or spin-off of assets or stock of another
corporation; any issuance by the Company of Shares of any class, or securities
convertible into Shares of any class, shall not affect the Award, and no
adjustment by reason thereof shall be made with respect to the number or price
of the Company's Shares subject to the Award. An Award of Restricted Stock shall
not affect in any way the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge or to consolidate or to dissolve, liquidate or sell or
transfer all or any part of its business or assets.
3
SECTION 8. GRANTEE'S REPRESENTATIONS AND WARRANTIES. Grantee represents
and warrants that:
(a) such Grantee has not and will not, directly or indirectly, Transfer
any Award Shares except in accordance with the terms of this Agreement;
(b) such Grantee has, or such Grantee together with such Grantee's
advisors, if any, have such knowledge and experience in financial, business and
tax matters that such Grantee is, or such Grantee together with such Grantee's
advisors, if any, are capable of evaluating the merits and risks relating to
such Grantee's investment in the Award Shares and making an investment decision
with respect to the Company;
(c) such Grantee has been given the opportunity to obtain information and
documents relating to the Company and to ask questions of and receive answers
from representatives of the Company concerning the Company and such Grantee's
investment in the Award Shares; and
(d) such Grantee realizes that there are substantial risks incident to an
investment in the Award Shares.
SECTION 9. IMPACT ON OTHER BENEFITS. The value of the Award Shares (either
on the Award Date or at the time the shares are vested) shall not be includable
as compensation or earnings for purposes of any other benefit plan offered by
the Company.
SECTION 10. ADMINISTRATION. The Committee shall have full authority and
discretion (subject only to the express provisions of the Plan) to decide all
matters relating to the administration and interpretation of the Plan and this
Agreement. All such Committee determinations shall be final, conclusive, and
binding upon the Company, the Grantee, and any and all interested parties.
SECTION 11. AMENDMENT(S). This Agreement shall be subject to the terms of
the Plan, as amended from time to time, except that the Award that is the
subject of this Agreement may not in any way be restricted or limited by any
amendment or termination approved after the Award Date without the Grantee's
written consent.
SECTION 12. FORCE AND EFFECT. The various provisions of this Agreement are
severable in their entirety. Any determination of invalidity or unenforceability
of any one provision shall have no effect on the continuing force and effect of
the remaining provisions.
SECTION 13. GOVERNING LAWS. This Agreement shall be construed and enforced
in accordance with and governed by the laws of the State of Maryland.
SECTION 14. MISCELLANEOUS.
14.1 Any notice necessary under this Agreement shall be in writing, signed
by the party giving or making the same, and addressed (a) to the Company in the
care of its President or Secretary at the principal executive office of the
Company in Dallas, Texas, (b) to the Grantee at the address appearing in the
personnel records of the Company for such Grantee or (c) to either party at such
other address as either party hereto may hereafter designate in writing to the
other. Except as
4
otherwise provided herein, any such notice shall be deemed effective upon
receipt thereof by the addressee.
14.2 This Agreement may be executed in counterparts, each of which shall
be deemed an original for all purposes and both of which taken together shall
constitute but one and the same instrument.
[Signature Page Follows]
5
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date hereof. By execution of this Agreement, the Grantee acknowledges
receipt of a copy of the Plan, the Company's Annual Report on Form 10-K for the
year ended December 31, 2004 and the informational supplement required by Rule
428(b)(1) under the Securities Act of 1933.
CAPSTEAD MORTGAGE CORPORATION
By: /s/ ANDREW F. JACOBS
-------------------------------------
Andrew F. Jacobs
President and Chief Executive Officer
[GRANTEE]
/s/ PAUL M. LOW
------------------------------------------
Paul M. Low
6
EXHIBIT 10.4(u)
CAPSTEAD MORTGAGE CORPORATION
RESTRICTED STOCK AGREEMENT
FOR NON-EMPLOYEE DIRECTORS
THIS AGREEMENT made and entered into as of the 21st day of June, 2005
(hereinafter called the "Award Date"), by and between Capstead Mortgage
Corporation, a Maryland corporation (the "Company"), and Christopher W. Mahowald
(the "Grantee").
WHEREAS, the Company, having determined that its interests will be
advanced by providing an incentive to the Grantee to increase the performance of
the Company and its Affiliates, has awarded to the grantee a restricted stock
award conditioned upon the execution by the Company and the Grantee of a
Restricted Stock Agreement.
THEREFORE, in consideration of the mutual promise(s) and covenant(s)
contained herein, the parties hereby agree as follows:
SECTION 1. GRANT.
1.1 Grant and Acceptance. The Company does hereby grant and transfer to
the Grantee, for no cash consideration from the Grantee, and the Grantee does
hereby accept from the Company, an aggregate of 5,000 shares (the "Award
Shares") of the Common Stock, $0.01 par value per share, of the Company (the
"Common Stock") according to the terms and conditions and subject to the
restrictions hereinafter set forth.
1.2 Effect of Plan. The Award Shares shall constitute Restricted Stock and
this grant shall constitute an Award, each as defined in the Company's 2004
Flexible Long-Term Incentive Plan (the "Plan"). This Agreement is expressly
subject to the terms and provisions of the Plan and in the event there is a
conflict between the terms of the Plan and this Agreement, the terms of the Plan
shall control. All undefined capitalized terms used herein shall have the
meanings assigned in the Plan. The Award is subject to all laws, approvals,
requirements and regulations of any governmental authority which may be
applicable thereto.
SECTION 2. RIGHTS IN SHARES. The Grantee, for the duration of this
Agreement, shall be the record owner of, and shall be entitled to vote, the
Award Shares and shall be entitled to receive all dividends and any other
distributions declared on the Award Shares (provided, however, that nothing
contained herein shall cause the Company to declare any such dividends or to
make any such distributions).
SECTION 3. VESTING.
3.1 Vesting. The Award Shares shall vest (become nonforfeitable) in
accordance with the schedule set forth below:
1
Percentage of Shares Cumulative
Date Vested on Specified Date Percentage of Shares
- ------------- ------------------------ --------------------
June 21, 2006 25 25
June 21, 2007 25 50
June 21, 2008 25 75
June 21, 2009 25 100
provided, however, that notwithstanding the foregoing schedule, and except as
otherwise provided in Sections 3.2, 3.3 and 3.4 below, no additional Award
Shares shall vest after termination of Grantee's directorship with the Company
or any Affiliate for any reason (including termination by reason of voluntary or
involuntary discharge, Disability or Retirement) in which case the Grantee
shall, at the time of termination, forfeit all right, title and interest in and
to any Award Shares not then vested.
3.2 Effect of Grantee's Death. If the Grantee ceases to be a director of
the Company or any Affiliate by reason of death, any and all outstanding Award
Shares not fully vested shall automatically vest in full and the personal
representatives heirs, legatees or distributees of the Grantee, as appropriate,
shall become fully vested in the Award Shares effective on the date of the
Grantee's death.
3.3 Effect of Dissolution or Liquidation. In the event of the dissolution
or liquidation of the Company, any and all outstanding Award Shares not fully
vested shall automatically vest in full immediately prior to such dissolution or
liquidation.
3.4 Effect of Change of Control. In the event of a Change in Control (as
defined in the Plan), any and all outstanding Award Shares not fully vested
shall automatically vest in full. The date on which such accelerated vesting
shall occur shall be the date of the occurrence of the Change in Control.
3.5 Effect of Forfeiture. Any Award Shares forfeited pursuant to Section
3.1 shall revert to the Company.
SECTION 4. STOCK CERTIFICATES. Upon grant of the Award Shares, the Company
shall cause its Transfer Agent to record Grantee's ownership of such Award
Shares in book entry form. As Award Shares vest hereunder, such Award Shares
shall be transferred into an unrestricted account in the name of the Grantee or,
at the request of the Grantee, issued in stock certificate form. Any such
certificates shall be unencumbered by any of the restrictions enumerated herein
other than such restrictions as may be imposed by applicable federal or state
securities laws and regulations.
SECTION 5. TRANSFER AND REPURCHASES UPON TERMINATION.
5.1 The unvested Award Shares shall not be offered, sold, transferred,
assigned, exchanged, pledged, encumbered or otherwise disposed of (each, a
"Transfer") for any purpose whatsoever, other than to the Company, and shall not
be subject, in whole or in part, to execution, attachment, or similar process in
all such cases until the date of vesting. Any attempted Transfer of
2
the unvested Award Shares, other than in accordance with the terms set forth
herein, shall be void and of no effect.
5.2 Grantee acknowledges that any sale, assignment, transfer or other
disposition of vested Award Shares may be subject to restrictions contained in
applicable federal or state securities laws and regulations and that any such
sale, assignment, transfer or other disposition of Award Shares by him or her
will be in compliance with such laws and regulations.
SECTION 6. WITHHOLDINGS. The Company and each Affiliate shall have the
right to retain and withhold from any payment (including the vesting) of Award
Shares (and any dividends on Award Shares) any amounts required to be withheld
or otherwise deducted and paid with respect to such payment (including the
vesting thereof). At its discretion, the Company and each Affiliate may require
the Grantee receiving Award Shares to reimburse the Company or any Affiliate for
any such taxes required to be withheld by the Company or the Affiliate and
withhold any distribution in whole or in part until the Company and each
Affiliate is so reimbursed. In lieu thereof, the Company and each Affiliate
shall have the right to withhold from any other cash amounts due or to become
due from the Company or the Affiliate to the Grantee an amount equal to such
taxes required to be withheld by the Company or the Affiliate as reimbursement
for any such taxes or retain and withhold a number of shares having a market
value not less than the amount of such taxes in order to reimburse the Company
or the Affiliate for any such taxes.
SECTION 7. ADJUSTMENTS TO AWARD SHARES.
7.1 Stock Dividends and Splits and Similar Transactions. Subject to any
required action by the Company's Board of Directors and stockholders, the number
of Award Shares shall be proportionately adjusted for any increase or decrease
in the number of issued Shares of the Company resulting from the payment of a
Share dividend, a Share split, a Share reverse-split or any similar transaction.
7.2 Change in Par Value. In the event of a change in the Company's Shares
which is limited to a change of all of its authorized shares with par value into
the same number of shares with a different par value or without par value, the
shares resulting from any such change shall be deemed to be shares within the
meaning of the Plan.
7.3 Other Capital Adjustments. Except as hereinbefore expressly provided
in Section 7.1 and except for rights that all holders of Common Stock shall
have, Grantee shall have no rights by reason of any subdivision or consolidation
of Shares of any class or payment of any share dividend or any other increase or
decrease in the number of shares of any class or by reason of any dissolution,
liquidation, merger or consolidation or spin-off of assets or stock of another
corporation; any issuance by the Company of Shares of any class, or securities
convertible into Shares of any class, shall not affect the Award, and no
adjustment by reason thereof shall be made with respect to the number or price
of the Company's Shares subject to the Award. An Award of Restricted Stock shall
not affect in any way the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge or to consolidate or to dissolve, liquidate or sell or
transfer all or any part of its business or assets.
3
SECTION 8. GRANTEE'S REPRESENTATIONS AND WARRANTIES. Grantee represents
and warrants that:
(a) such Grantee has not and will not, directly or indirectly, Transfer
any Award Shares except in accordance with the terms of this Agreement;
(b) such Grantee has, or such Grantee together with such Grantee's
advisors, if any, have such knowledge and experience in financial, business and
tax matters that such Grantee is, or such Grantee together with such Grantee's
advisors, if any, are capable of evaluating the merits and risks relating to
such Grantee's investment in the Award Shares and making an investment decision
with respect to the Company;
(c) such Grantee has been given the opportunity to obtain information and
documents relating to the Company and to ask questions of and receive answers
from representatives of the Company concerning the Company and such Grantee's
investment in the Award Shares; and
(d) such Grantee realizes that there are substantial risks incident to an
investment in the Award Shares.
SECTION 9. IMPACT ON OTHER BENEFITS. The value of the Award Shares (either
on the Award Date or at the time the shares are vested) shall not be includable
as compensation or earnings for purposes of any other benefit plan offered by
the Company.
SECTION 10. ADMINISTRATION. The Committee shall have full authority and
discretion (subject only to the express provisions of the Plan) to decide all
matters relating to the administration and interpretation of the Plan and this
Agreement. All such Committee determinations shall be final, conclusive, and
binding upon the Company, the Grantee, and any and all interested parties.
SECTION 11. AMENDMENT(S). This Agreement shall be subject to the terms of
the Plan, as amended from time to time, except that the Award that is the
subject of this Agreement may not in any way be restricted or limited by any
amendment or termination approved after the Award Date without the Grantee's
written consent.
SECTION 12. FORCE AND EFFECT. The various provisions of this Agreement are
severable in their entirety. Any determination of invalidity or unenforceability
of any one provision shall have no effect on the continuing force and effect of
the remaining provisions.
SECTION 13. GOVERNING LAWS. This Agreement shall be construed and enforced
in accordance with and governed by the laws of the State of Maryland.
SECTION 14. MISCELLANEOUS.
14.1 Any notice necessary under this Agreement shall be in writing, signed
by the party giving or making the same, and addressed (a) to the Company in the
care of its President or Secretary at the principal executive office of the
Company in Dallas, Texas, (b) to the Grantee at the address appearing in the
personnel records of the Company for such Grantee or (c) to either party at such
other address as either party hereto may hereafter designate in writing to the
other. Except as
4
otherwise provided herein, any such notice shall be deemed effective upon
receipt thereof by the addressee.
14.2 This Agreement may be executed in counterparts, each of which shall
be deemed an original for all purposes and both of which taken together shall
constitute but one and the same instrument.
[Signature Page Follows]
5
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date hereof. By execution of this Agreement, the Grantee acknowledges
receipt of a copy of the Plan, the Company's Annual Report on Form 10-K for the
year ended December 31, 2004 and the informational supplement required by Rule
428(b)(1) under the Securities Act of 1933.
CAPSTEAD MORTGAGE CORPORATION
By: /s/ ANDREW F. JACOBS
-------------------------------------
Andrew F. Jacobs
President and Chief Executive Officer
[GRANTEE]
/s/ CHRISTOPHER W. MAHOWALD
-----------------------------------------
Christopher W. Mahowald
6
EXHIBIT 10.4(v)
CAPSTEAD MORTGAGE CORPORATION
RESTRICTED STOCK AGREEMENT
FOR NON-EMPLOYEE DIRECTORS
THIS AGREEMENT made and entered into as of the 13th day of May, 2005
(hereinafter called the "Award Date"), by and between Capstead Mortgage
Corporation, a Maryland corporation (the "Company"), and Michael G. O'Neil (the
"Grantee").
WHEREAS, the Company, having determined that its interests will be
advanced by providing an incentive to the Grantee to increase the performance of
the Company and its Affiliates, has awarded to the grantee a restricted stock
award conditioned upon the execution by the Company and the Grantee of a
Restricted Stock Agreement.
THEREFORE, in consideration of the mutual promise(s) and covenant(s)
contained herein, the parties hereby agree as follows:
SECTION 1. GRANT.
1.1 Grant and Acceptance. The Company does hereby grant and transfer to
the Grantee, for no cash consideration from the Grantee, and the Grantee does
hereby accept from the Company, an aggregate of 5,000 shares (the "Award
Shares") of the Common Stock, $0.01 par value per share, of the Company (the
"Common Stock") according to the terms and conditions and subject to the
restrictions hereinafter set forth.
1.2 Effect of Plan. The Award Shares shall constitute Restricted Stock and
this grant shall constitute an Award, each as defined in the Company's 2004
Flexible Long-Term Incentive Plan (the "Plan"). This Agreement is expressly
subject to the terms and provisions of the Plan and in the event there is a
conflict between the terms of the Plan and this Agreement, the terms of the Plan
shall control. All undefined capitalized terms used herein shall have the
meanings assigned in the Plan. The Award is subject to all laws, approvals,
requirements and regulations of any governmental authority which may be
applicable thereto.
SECTION 2. RIGHTS IN SHARES. The Grantee, for the duration of this
Agreement, shall be the record owner of, and shall be entitled to vote, the
Award Shares and shall be entitled to receive all dividends and any other
distributions declared on the Award Shares (provided, however, that nothing
contained herein shall cause the Company to declare any such dividends or to
make any such distributions).
SECTION 3. VESTING.
3.1 Vesting. The Award Shares shall vest (become nonforfeitable) in
accordance with the schedule set forth below:
1
Percentage of Shares Cumulative
Date Vested on Specified Date Percentage of Shares
- ------------ ------------------------ --------------------
May 13, 2006 25 25
May 13, 2007 25 50
May 13, 2008 25 75
May 13, 2009 25 100
provided, however, that notwithstanding the foregoing schedule, and except as
otherwise provided in Sections 3.2, 3.3 and 3.4 below, no additional Award
Shares shall vest after termination of Grantee's directorship with the Company
or any Affiliate for any reason (including termination by reason of voluntary or
involuntary discharge, Disability or Retirement) in which case the Grantee
shall, at the time of termination, forfeit all right, title and interest in and
to any Award Shares not then vested.
3.2 Effect of Grantee's Death. If the Grantee ceases to be a director of
the Company or any Affiliate by reason of death, any and all outstanding Award
Shares not fully vested shall automatically vest in full and the personal
representatives heirs, legatees or distributees of the Grantee, as appropriate,
shall become fully vested in the Award Shares effective on the date of the
Grantee's death.
3.3 Effect of Dissolution or Liquidation. In the event of the dissolution
or liquidation of the Company, any and all outstanding Award Shares not fully
vested shall automatically vest in full immediately prior to such dissolution or
liquidation.
3.4 Effect of Change of Control. In the event of a Change in Control (as
defined in the Plan), any and all outstanding Award Shares not fully vested
shall automatically vest in full. The date on which such accelerated vesting
shall occur shall be the date of the occurrence of the Change in Control.
3.5 Effect of Forfeiture. Any Award Shares forfeited pursuant to Section
3.1 shall revert to the Company.
SECTION 4. STOCK CERTIFICATES. Upon grant of the Award Shares, the Company
shall cause its Transfer Agent to record Grantee's ownership of such Award
Shares in book entry form. As Award Shares vest hereunder, such Award Shares
shall be transferred into an unrestricted account in the name of the Grantee or,
at the request of the Grantee, issued in stock certificate form. Any such
certificates shall be unencumbered by any of the restrictions enumerated herein
other than such restrictions as may be imposed by applicable federal or state
securities laws and regulations.
SECTION 5. TRANSFER AND REPURCHASES UPON TERMINATION.
5.1 The unvested Award Shares shall not be offered, sold, transferred,
assigned, exchanged, pledged, encumbered or otherwise disposed of (each, a
"Transfer") for any purpose whatsoever, other than to the Company, and shall not
be subject, in whole or in part, to execution, attachment, or similar process in
all such cases until the date of vesting. Any attempted Transfer of
2
the unvested Award Shares, other than in accordance with the terms set forth
herein, shall be void and of no effect.
5.2 Grantee acknowledges that any sale, assignment, transfer or other
disposition of vested Award Shares may be subject to restrictions contained in
applicable federal or state securities laws and regulations and that any such
sale, assignment, transfer or other disposition of Award Shares by him or her
will be in compliance with such laws and regulations.
SECTION 6. WITHHOLDINGS. The Company and each Affiliate shall have the
right to retain and withhold from any payment (including the vesting) of Award
Shares (and any dividends on Award Shares) any amounts required to be withheld
or otherwise deducted and paid with respect to such payment (including the
vesting thereof). At its discretion, the Company and each Affiliate may require
the Grantee receiving Award Shares to reimburse the Company or any Affiliate for
any such taxes required to be withheld by the Company or the Affiliate and
withhold any distribution in whole or in part until the Company and each
Affiliate is so reimbursed. In lieu thereof, the Company and each Affiliate
shall have the right to withhold from any other cash amounts due or to become
due from the Company or the Affiliate to the Grantee an amount equal to such
taxes required to be withheld by the Company or the Affiliate as reimbursement
for any such taxes or retain and withhold a number of shares having a market
value not less than the amount of such taxes in order to reimburse the Company
or the Affiliate for any such taxes.
SECTION 7. ADJUSTMENTS TO AWARD SHARES.
7.1 Stock Dividends and Splits and Similar Transactions. Subject to any
required action by the Company's Board of Directors and stockholders, the number
of Award Shares shall be proportionately adjusted for any increase or decrease
in the number of issued Shares of the Company resulting from the payment of a
Share dividend, a Share split, a Share reverse-split or any similar transaction.
7.2 Change in Par Value. In the event of a change in the Company's Shares
which is limited to a change of all of its authorized shares with par value into
the same number of shares with a different par value or without par value, the
shares resulting from any such change shall be deemed to be shares within the
meaning of the Plan.
7.3 Other Capital Adjustments. Except as hereinbefore expressly provided
in Section 7.1 and except for rights that all holders of Common Stock shall
have, Grantee shall have no rights by reason of any subdivision or consolidation
of Shares of any class or payment of any share dividend or any other increase or
decrease in the number of shares of any class or by reason of any dissolution,
liquidation, merger or consolidation or spin-off of assets or stock of another
corporation; any issuance by the Company of Shares of any class, or securities
convertible into Shares of any class, shall not affect the Award, and no
adjustment by reason thereof shall be made with respect to the number or price
of the Company's Shares subject to the Award. An Award of Restricted Stock shall
not affect in any way the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge or to consolidate or to dissolve, liquidate or sell or
transfer all or any part of its business or assets.
3
SECTION 8. GRANTEE'S REPRESENTATIONS AND WARRANTIES. Grantee represents
and warrants that:
(a) such Grantee has not and will not, directly or indirectly, Transfer
any Award Shares except in accordance with the terms of this Agreement;
(b) such Grantee has, or such Grantee together with such Grantee's
advisors, if any, have such knowledge and experience in financial, business and
tax matters that such Grantee is, or such Grantee together with such Grantee's
advisors, if any, are capable of evaluating the merits and risks relating to
such Grantee's investment in the Award Shares and making an investment decision
with respect to the Company;
(c) such Grantee has been given the opportunity to obtain information and
documents relating to the Company and to ask questions of and receive answers
from representatives of the Company concerning the Company and such Grantee's
investment in the Award Shares; and
(d) such Grantee realizes that there are substantial risks incident to an
investment in the Award Shares.
SECTION 9. IMPACT ON OTHER BENEFITS. The value of the Award Shares (either
on the Award Date or at the time the shares are vested) shall not be includable
as compensation or earnings for purposes of any other benefit plan offered by
the Company.
SECTION 10. ADMINISTRATION. The Committee shall have full authority and
discretion (subject only to the express provisions of the Plan) to decide all
matters relating to the administration and interpretation of the Plan and this
Agreement. All such Committee determinations shall be final, conclusive, and
binding upon the Company, the Grantee, and any and all interested parties.
SECTION 11. AMENDMENT(S). This Agreement shall be subject to the terms of
the Plan, as amended from time to time, except that the Award that is the
subject of this Agreement may not in any way be restricted or limited by any
amendment or termination approved after the Award Date without the Grantee's
written consent.
SECTION 12. FORCE AND EFFECT. The various provisions of this Agreement are
severable in their entirety. Any determination of invalidity or unenforceability
of any one provision shall have no effect on the continuing force and effect of
the remaining provisions.
SECTION 13. GOVERNING LAWS. This Agreement shall be construed and enforced
in accordance with and governed by the laws of the State of Maryland.
SECTION 14. MISCELLANEOUS.
14.1 Any notice necessary under this Agreement shall be in writing, signed
by the party giving or making the same, and addressed (a) to the Company in the
care of its President or Secretary at the principal executive office of the
Company in Dallas, Texas, (b) to the Grantee at the address appearing in the
personnel records of the Company for such Grantee or (c) to either party at such
other address as either party hereto may hereafter designate in writing to the
other. Except as
4
otherwise provided herein, any such notice shall be deemed effective upon
receipt thereof by the addressee.
14.2 This Agreement may be executed in counterparts, each of which shall
be deemed an original for all purposes and both of which taken together shall
constitute but one and the same instrument.
[Signature Page Follows]
5
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date hereof. By execution of this Agreement, the Grantee acknowledges
receipt of a copy of the Plan, the Company's Annual Report on Form 10-K for the
year ended December 31, 2004 and the informational supplement required by Rule
428(b)(1) under the Securities Act of 1933.
CAPSTEAD MORTGAGE CORPORATION
By: /s/ ANDREW F. JACOBS
-------------------------------------
Andrew F. Jacobs
President and Chief Executive Officer
[GRANTEE]
/s/ MICHAEL G. O'NEIL
------------------------------------------
Michael G. O'Neil
6
EXHIBIT 10.4(w)
CAPSTEAD MORTGAGE CORPORATION
RESTRICTED STOCK AGREEMENT
FOR NON-EMPLOYEE DIRECTORS
THIS AGREEMENT made and entered into as of the 13th day of May, 2005
(hereinafter called the "Award Date"), by and between Capstead Mortgage
Corporation, a Maryland corporation (the "Company"), and Howard Rubin (the
"Grantee").
WHEREAS, the Company, having determined that its interests will be
advanced by providing an incentive to the Grantee to increase the performance of
the Company and its Affiliates, has awarded to the grantee a restricted stock
award conditioned upon the execution by the Company and the Grantee of a
Restricted Stock Agreement.
THEREFORE, in consideration of the mutual promise(s) and covenant(s)
contained herein, the parties hereby agree as follows:
SECTION 1. GRANT.
1.1 Grant and Acceptance. The Company does hereby grant and transfer to
the Grantee, for no cash consideration from the Grantee, and the Grantee does
hereby accept from the Company, an aggregate of 5,000 shares (the "Award
Shares") of the Common Stock, $0.01 par value per share, of the Company (the
"Common Stock") according to the terms and conditions and subject to the
restrictions hereinafter set forth.
1.2 Effect of Plan. The Award Shares shall constitute Restricted Stock and
this grant shall constitute an Award, each as defined in the Company's 2004
Flexible Long-Term Incentive Plan (the "Plan"). This Agreement is expressly
subject to the terms and provisions of the Plan and in the event there is a
conflict between the terms of the Plan and this Agreement, the terms of the Plan
shall control. All undefined capitalized terms used herein shall have the
meanings assigned in the Plan. The Award is subject to all laws, approvals,
requirements and regulations of any governmental authority which may be
applicable thereto.
SECTION 2. RIGHTS IN SHARES. The Grantee, for the duration of this
Agreement, shall be the record owner of, and shall be entitled to vote, the
Award Shares and shall be entitled to receive all dividends and any other
distributions declared on the Award Shares (provided, however, that nothing
contained herein shall cause the Company to declare any such dividends or to
make any such distributions).
SECTION 3. VESTING.
3.1 Vesting. The Award Shares shall vest (become nonforfeitable) in
accordance with the schedule set forth below:
1
Percentage of Shares Cumulative
Date Vested on Specified Date Percentage of Shares
- ------------ ------------------------ --------------------
May 13, 2006 25 25
May 13, 2007 25 50
May 13, 2008 25 75
May 13, 2009 25 100
provided, however, that notwithstanding the foregoing schedule, and except as
otherwise provided in Sections 3.2, 3.3 and 3.4 below, no additional Award
Shares shall vest after termination of Grantee's directorship with the Company
or any Affiliate for any reason (including termination by reason of voluntary or
involuntary discharge, Disability or Retirement) in which case the Grantee
shall, at the time of termination, forfeit all right, title and interest in and
to any Award Shares not then vested.
3.2 Effect of Grantee's Death. If the Grantee ceases to be a director of
the Company or any Affiliate by reason of death, any and all outstanding Award
Shares not fully vested shall automatically vest in full and the personal
representatives heirs, legatees or distributees of the Grantee, as appropriate,
shall become fully vested in the Award Shares effective on the date of the
Grantee's death.
3.3 Effect of Dissolution or Liquidation. In the event of the dissolution
or liquidation of the Company, any and all outstanding Award Shares not fully
vested shall automatically vest in full immediately prior to such dissolution or
liquidation.
3.4 Effect of Change of Control. In the event of a Change in Control (as
defined in the Plan), any and all outstanding Award Shares not fully vested
shall automatically vest in full. The date on which such accelerated vesting
shall occur shall be the date of the occurrence of the Change in Control.
3.5 Effect of Forfeiture. Any Award Shares forfeited pursuant to Section
3.1 shall revert to the Company.
SECTION 4. STOCK CERTIFICATES. Upon grant of the Award Shares, the Company
shall cause its Transfer Agent to record Grantee's ownership of such Award
Shares in book entry form. As Award Shares vest hereunder, such Award Shares
shall be transferred into an unrestricted account in the name of the Grantee or,
at the request of the Grantee, issued in stock certificate form. Any such
certificates shall be unencumbered by any of the restrictions enumerated herein
other than such restrictions as may be imposed by applicable federal or state
securities laws and regulations.
SECTION 5. TRANSFER AND REPURCHASES UPON TERMINATION.
5.1 The unvested Award Shares shall not be offered, sold, transferred,
assigned, exchanged, pledged, encumbered or otherwise disposed of (each, a
"Transfer") for any purpose whatsoever, other than to the Company, and shall not
be subject, in whole or in part, to execution, attachment, or similar process in
all such cases until the date of vesting. Any attempted Transfer of
2
the unvested Award Shares, other than in accordance with the terms set forth
herein, shall be void and of no effect.
5.2 Grantee acknowledges that any sale, assignment, transfer or other
disposition of vested Award Shares may be subject to restrictions contained in
applicable federal or state securities laws and regulations and that any such
sale, assignment, transfer or other disposition of Award Shares by him or her
will be in compliance with such laws and regulations.
SECTION 6. WITHHOLDINGS. The Company and each Affiliate shall have the
right to retain and withhold from any payment (including the vesting) of Award
Shares (and any dividends on Award Shares) any amounts required to be withheld
or otherwise deducted and paid with respect to such payment (including the
vesting thereof). At its discretion, the Company and each Affiliate may require
the Grantee receiving Award Shares to reimburse the Company or any Affiliate for
any such taxes required to be withheld by the Company or the Affiliate and
withhold any distribution in whole or in part until the Company and each
Affiliate is so reimbursed. In lieu thereof, the Company and each Affiliate
shall have the right to withhold from any other cash amounts due or to become
due from the Company or the Affiliate to the Grantee an amount equal to such
taxes required to be withheld by the Company or the Affiliate as reimbursement
for any such taxes or retain and withhold a number of shares having a market
value not less than the amount of such taxes in order to reimburse the Company
or the Affiliate for any such taxes.
SECTION 7. ADJUSTMENTS TO AWARD SHARES.
7.1 Stock Dividends and Splits and Similar Transactions. Subject to any
required action by the Company's Board of Directors and stockholders, the number
of Award Shares shall be proportionately adjusted for any increase or decrease
in the number of issued Shares of the Company resulting from the payment of a
Share dividend, a Share split, a Share reverse-split or any similar transaction.
7.2 Change in Par Value. In the event of a change in the Company's Shares
which is limited to a change of all of its authorized shares with par value into
the same number of shares with a different par value or without par value, the
shares resulting from any such change shall be deemed to be shares within the
meaning of the Plan.
7.3 Other Capital Adjustments. Except as hereinbefore expressly provided
in Section 7.1 and except for rights that all holders of Common Stock shall
have, Grantee shall have no rights by reason of any subdivision or consolidation
of Shares of any class or payment of any share dividend or any other increase or
decrease in the number of shares of any class or by reason of any dissolution,
liquidation, merger or consolidation or spin-off of assets or stock of another
corporation; any issuance by the Company of Shares of any class, or securities
convertible into Shares of any class, shall not affect the Award, and no
adjustment by reason thereof shall be made with respect to the number or price
of the Company's Shares subject to the Award. An Award of Restricted Stock shall
not affect in any way the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge or to consolidate or to dissolve, liquidate or sell or
transfer all or any part of its business or assets.
3
SECTION 8. GRANTEE'S REPRESENTATIONS AND WARRANTIES. Grantee represents
and warrants that:
(a) such Grantee has not and will not, directly or indirectly, Transfer
any Award Shares except in accordance with the terms of this Agreement;
(b) such Grantee has, or such Grantee together with such Grantee's
advisors, if any, have such knowledge and experience in financial, business and
tax matters that such Grantee is, or such Grantee together with such Grantee's
advisors, if any, are capable of evaluating the merits and risks relating to
such Grantee's investment in the Award Shares and making an investment decision
with respect to the Company;
(c) such Grantee has been given the opportunity to obtain information and
documents relating to the Company and to ask questions of and receive answers
from representatives of the Company concerning the Company and such Grantee's
investment in the Award Shares; and
(d) such Grantee realizes that there are substantial risks incident to an
investment in the Award Shares.
SECTION 9. IMPACT ON OTHER BENEFITS. The value of the Award Shares (either
on the Award Date or at the time the shares are vested) shall not be includable
as compensation or earnings for purposes of any other benefit plan offered by
the Company.
SECTION 10. ADMINISTRATION. The Committee shall have full authority and
discretion (subject only to the express provisions of the Plan) to decide all
matters relating to the administration and interpretation of the Plan and this
Agreement. All such Committee determinations shall be final, conclusive, and
binding upon the Company, the Grantee, and any and all interested parties.
SECTION 11. AMENDMENT(S). This Agreement shall be subject to the terms of
the Plan, as amended from time to time, except that the Award that is the
subject of this Agreement may not in any way be restricted or limited by any
amendment or termination approved after the Award Date without the Grantee's
written consent.
SECTION 12. FORCE AND EFFECT. The various provisions of this Agreement are
severable in their entirety. Any determination of invalidity or unenforceability
of any one provision shall have no effect on the continuing force and effect of
the remaining provisions.
SECTION 13. GOVERNING LAWS. This Agreement shall be construed and enforced
in accordance with and governed by the laws of the State of Maryland.
SECTION 14. MISCELLANEOUS.
14.1 Any notice necessary under this Agreement shall be in writing, signed
by the party giving or making the same, and addressed (a) to the Company in the
care of its President or Secretary at the principal executive office of the
Company in Dallas, Texas, (b) to the Grantee at the address appearing in the
personnel records of the Company for such Grantee or (c) to either party at such
other address as either party hereto may hereafter designate in writing to the
other. Except as
4
otherwise provided herein, any such notice shall be deemed effective upon
receipt thereof by the addressee.
14.2 This Agreement may be executed in counterparts, each of which shall
be deemed an original for all purposes and both of which taken together shall
constitute but one and the same instrument.
[Signature Page Follows]
5
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date hereof. By execution of this Agreement, the Grantee acknowledges
receipt of a copy of the Plan, the Company's Annual Report on Form 10-K for the
year ended December 31, 2004 and the informational supplement required by Rule
428(b)(1) under the Securities Act of 1933.
CAPSTEAD MORTGAGE CORPORATION
By: /s/ ANDREW F. JACOBS
-------------------------------------
Andrew F. Jacobs
President and Chief Executive Officer
[GRANTEE]
/s/ HOWARD RUBIN
-----------------------------------------
Howard Rubin
6
EXHIBIT 10.4(x)
CAPSTEAD MORTGAGE CORPORATION
RESTRICTED STOCK AGREEMENT
FOR NON-EMPLOYEE DIRECTORS
THIS AGREEMENT made and entered into as of the 13th day of May, 2005
(hereinafter called the "Award Date"), by and between Capstead Mortgage
Corporation, a Maryland corporation (the "Company"), and Mark S. Whiting (the
"Grantee").
WHEREAS, the Company, having determined that its interests will be
advanced by providing an incentive to the Grantee to increase the performance of
the Company and its Affiliates, has awarded to the grantee a restricted stock
award conditioned upon the execution by the Company and the Grantee of a
Restricted Stock Agreement.
THEREFORE, in consideration of the mutual promise(s) and covenant(s)
contained herein, the parties hereby agree as follows:
SECTION 1.GRANT.
1.1 Grant and Acceptance. The Company does hereby grant and transfer to
the Grantee, for no cash consideration from the Grantee, and the Grantee does
hereby accept from the Company, an aggregate of 5,000 shares (the "Award
Shares") of the Common Stock, $0.01 par value per share, of the Company (the
"Common Stock") according to the terms and conditions and subject to the
restrictions hereinafter set forth.
1.2 Effect of Plan. The Award Shares shall constitute Restricted Stock and
this grant shall constitute an Award, each as defined in the Company's 2004
Flexible Long-Term Incentive Plan (the "Plan"). This Agreement is expressly
subject to the terms and provisions of the Plan and in the event there is a
conflict between the terms of the Plan and this Agreement, the terms of the Plan
shall control. All undefined capitalized terms used herein shall have the
meanings assigned in the Plan. The Award is subject to all laws, approvals,
requirements and regulations of any governmental authority which may be
applicable thereto.
SECTION 2.RIGHTS IN SHARES. The Grantee, for the duration of this
Agreement, shall be the record owner of, and shall be entitled to vote, the
Award Shares and shall be entitled to receive all dividends and any other
distributions declared on the Award Shares (provided, however, that nothing
contained herein shall cause the Company to declare any such dividends or to
make any such distributions).
SECTION 3.VESTING.
3.1 Vesting. The Award Shares shall vest (become nonforfeitable) in
accordance with the schedule set forth below:
1
Percentage of Shares Cumulative
Date Vested on Specified Date Percentage of Shares
- ------------ ------------------------ --------------------
May 13, 2006 25 25
May 13, 2007 25 50
May 13, 2008 25 75
May 13, 2009 25 100
provided, however, that notwithstanding the foregoing schedule, and except as
otherwise provided in Sections 3.2, 3.3 and 3.4 below, no additional Award
Shares shall vest after termination of Grantee's directorship with the Company
or any Affiliate for any reason (including termination by reason of voluntary or
involuntary discharge, Disability or Retirement) in which case the Grantee
shall, at the time of termination, forfeit all right, title and interest in and
to any Award Shares not then vested.
3.2 Effect of Grantee's Death. If the Grantee ceases to be a director of
the Company or any Affiliate by reason of death, any and all outstanding Award
Shares not fully vested shall automatically vest in full and the personal
representatives heirs, legatees or distributees of the Grantee, as appropriate,
shall become fully vested in the Award Shares effective on the date of the
Grantee's death.
3.3 Effect of Dissolution or Liquidation. In the event of the dissolution
or liquidation of the Company, any and all outstanding Award Shares not fully
vested shall automatically vest in full immediately prior to such dissolution or
liquidation.
3.4 Effect of Change of Control. In the event of a Change in Control (as
defined in the Plan), any and all outstanding Award Shares not fully vested
shall automatically vest in full. The date on which such accelerated vesting
shall occur shall be the date of the occurrence of the Change in Control.
3.5 Effect of Forfeiture. Any Award Shares forfeited pursuant to Section
3.1 shall revert to the Company.
SECTION 4.STOCK CERTIFICATES. Upon grant of the Award Shares, the Company
shall cause its Transfer Agent to record Grantee's ownership of such Award
Shares in book entry form. As Award Shares vest hereunder, such Award Shares
shall be transferred into an unrestricted account in the name of the Grantee or,
at the request of the Grantee, issued in stock certificate form. Any such
certificates shall be unencumbered by any of the restrictions enumerated herein
other than such restrictions as may be imposed by applicable federal or state
securities laws and regulations.
SECTION 5.TRANSFER AND REPURCHASES UPON TERMINATION.
5.1 The unvested Award Shares shall not be offered, sold, transferred,
assigned, exchanged, pledged, encumbered or otherwise disposed of (each, a
"Transfer") for any purpose whatsoever, other than to the Company, and shall not
be subject, in whole or in part, to execution, attachment, or similar process in
all such cases until the date of vesting. Any attempted Transfer of
2
the unvested Award Shares, other than in accordance with the terms set forth
herein, shall be void and of no effect.
5.2 Grantee acknowledges that any sale, assignment, transfer or other
disposition of vested Award Shares may be subject to restrictions contained in
applicable federal or state securities laws and regulations and that any such
sale, assignment, transfer or other disposition of Award Shares by him or her
will be in compliance with such laws and regulations.
SECTION 6.WITHHOLDINGS. The Company and each Affiliate shall have the
right to retain and withhold from any payment (including the vesting) of Award
Shares (and any dividends on Award Shares) any amounts required to be withheld
or otherwise deducted and paid with respect to such payment (including the
vesting thereof). At its discretion, the Company and each Affiliate may require
the Grantee receiving Award Shares to reimburse the Company or any Affiliate for
any such taxes required to be withheld by the Company or the Affiliate and
withhold any distribution in whole or in part until the Company and each
Affiliate is so reimbursed. In lieu thereof, the Company and each Affiliate
shall have the right to withhold from any other cash amounts due or to become
due from the Company or the Affiliate to the Grantee an amount equal to such
taxes required to be withheld by the Company or the Affiliate as reimbursement
for any such taxes or retain and withhold a number of shares having a market
value not less than the amount of such taxes in order to reimburse the Company
or the Affiliate for any such taxes.
SECTION 7.ADJUSTMENTS TO AWARD SHARES.
7.1 Stock Dividends and Splits and Similar Transactions. Subject to any
required action by the Company's Board of Directors and stockholders, the number
of Award Shares shall be proportionately adjusted for any increase or decrease
in the number of issued Shares of the Company resulting from the payment of a
Share dividend, a Share split, a Share reverse-split or any similar transaction.
7.2 Change in Par Value. In the event of a change in the Company's Shares
which is limited to a change of all of its authorized shares with par value into
the same number of shares with a different par value or without par value, the
shares resulting from any such change shall be deemed to be shares within the
meaning of the Plan.
7.3 Other Capital Adjustments. Except as hereinbefore expressly provided
in Section 7.1 and except for rights that all holders of Common Stock shall
have, Grantee shall have no rights by reason of any subdivision or consolidation
of Shares of any class or payment of any share dividend or any other increase or
decrease in the number of shares of any class or by reason of any dissolution,
liquidation, merger or consolidation or spin-off of assets or stock of another
corporation; any issuance by the Company of Shares of any class, or securities
convertible into Shares of any class, shall not affect the Award, and no
adjustment by reason thereof shall be made with respect to the number or price
of the Company's Shares subject to the Award. An Award of Restricted Stock shall
not affect in any way the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge or to consolidate or to dissolve, liquidate or sell or
transfer all or any part of its business or assets.
3
SECTION 8.GRANTEE'S REPRESENTATIONS AND WARRANTIES. Grantee represents and
warrants that:
(a) such Grantee has not and will not, directly or indirectly, Transfer
any Award Shares except in accordance with the terms of this Agreement;
(b) such Grantee has, or such Grantee together with such Grantee's
advisors, if any, have such knowledge and experience in financial, business and
tax matters that such Grantee is, or such Grantee together with such Grantee's
advisors, if any, are capable of evaluating the merits and risks relating to
such Grantee's investment in the Award Shares and making an investment decision
with respect to the Company;
(c) such Grantee has been given the opportunity to obtain information and
documents relating to the Company and to ask questions of and receive answers
from representatives of the Company concerning the Company and such Grantee's
investment in the Award Shares; and
(d) such Grantee realizes that there are substantial risks incident to an
investment in the Award Shares.
SECTION 9.IMPACT ON OTHER BENEFITS. The value of the Award Shares (either
on the Award Date or at the time the shares are vested) shall not be includable
as compensation or earnings for purposes of any other benefit plan offered by
the Company.
SECTION 10. ADMINISTRATION. The Committee shall have full authority and
discretion (subject only to the express provisions of the Plan) to decide all
matters relating to the administration and interpretation of the Plan and this
Agreement. All such Committee determinations shall be final, conclusive, and
binding upon the Company, the Grantee, and any and all interested parties.
SECTION 11. AMENDMENT(S). This Agreement shall be subject to the terms of
the Plan, as amended from time to time, except that the Award that is the
subject of this Agreement may not in any way be restricted or limited by any
amendment or termination approved after the Award Date without the Grantee's
written consent.
SECTION 12. FORCE AND EFFECT. The various provisions of this Agreement are
severable in their entirety. Any determination of invalidity or unenforceability
of any one provision shall have no effect on the continuing force and effect of
the remaining provisions.
SECTION 13. GOVERNING LAWS. This Agreement shall be construed and enforced
in accordance with and governed by the laws of the State of Maryland.
SECTION 14. MISCELLANEOUS.
14.1 Any notice necessary under this Agreement shall be in writing, signed
by the party giving or making the same, and addressed (a) to the Company in the
care of its President or Secretary at the principal executive office of the
Company in Dallas, Texas, (b) to the Grantee at the address appearing in the
personnel records of the Company for such Grantee or (c) to either party at such
other address as either party hereto may hereafter designate in writing to the
other. Except as
4
otherwise provided herein, any such notice shall be deemed effective upon
receipt thereof by the addressee.
14.2 This Agreement may be executed in counterparts, each of which shall
be deemed an original for all purposes and both of which taken together shall
constitute but one and the same instrument.
[Signature Page Follows]
5
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date hereof. By execution of this Agreement, the Grantee acknowledges
receipt of a copy of the Plan, the Company's Annual Report on Form 10-K for the
year ended December 31, 2004 and the informational supplement required by Rule
428(b)(1) under the Securities Act of 1933.
CAPSTEAD MORTGAGE CORPORATION
By: /s/ ANDREW F. JACOBS
---------------------------------------
Andrew F. Jacobs
President and Chief Executive Officer
[GRANTEE]
/s/ MARK S. WHITING
------------------------------------------
Mark S. Whiting
6