As filed with the Securities and Exchange Commission on August 31, 2004.
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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Capital Southwest Corporation
(Exact Name of Registrant as Specified in its Charter)
Texas 75-1072796
(State of Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
12900 Preston Road, Suite 700 75230
Dallas, Texas (Zip Code)
(Address of Principal Executive Offices)
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1999 Stock Option Plan
(Full Title of the Plan)
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William R. Thomas
President and Chairman of the Board
Capital Southwest Corporation
12900 Preston Road, Suite 700
Dallas, Texas 75230
(Name and Address of Agent for Service)
(972) 233-8242
(Telephone Number, Including Area Code, of Agent for Service)
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Copy to:
Gina E. Betts
Locke Liddell & Sapp LLP
2200 Ross Avenue, Suite 2200
Dallas, Texas 75201
(214) 740-8000
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CALCULATION OF REGISTRATION FEE
================================= ========================= ==================== ==================== ===================
Proposed Maximum Proposed Maximum
Title of Securities Offering Price per Aggregate Offering Amount of
to be Registered Amount to be Registered Share(1) Price(1) Registration Fee(2)
- --------------------------------- ------------------------- -------------------- -------------------- -------------------
Common Stock, 140,000 $76.92 $10,768,800 $1,364.41
$1.00 par value(1).............
================================= ========================= ==================== ==================== ===================
(1) Estimated solely for the purpose of calculating the registration fee. This
fee was calculated pursuant to Rule 457(h) under the Securities Act of
1933, as amended, (the "Securities Act") on the basis of the average of
the high and low prices for the Common Stock on The Nasdaq Stock Market on
August 25, 2004.
(2) Calculated pursuant to Section 6(b) of the Securities Act.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information.
The information specified by Item 1 of Part I of Form S-8 is omitted from
this Registration Statement in accordance with Rule 428 under the Securities Act
of 1933, as amended, and the introductory note to Part I of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information.
The information specified by Item 2 of Part I of Form S-8 is omitted from
this Registration Statement in accordance with Rule 428 under the Securities Act
and the introductory note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents set forth below are hereby incorporated by reference in this
Registration Statement.
(i) Our Annual Report on Form 10-K for the fiscal year ended March
31, 2004.
(ii) Our Quarterly Report on Form 10-Q for the quarter ended June
30, 2004.
(iii) All other reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended, since the end of the
fiscal year covered by the 2004 Form 10-K.
(iv) The description of our Common Stock, par value $1.00 per share,
set forth in our Amendment No. 11 to its Form N-2 for the fiscal year
ended March 31, 1987, including any amendment or report filed for the
purpose of updating such information.
All documents subsequently filed by us pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to the
filing of a post-effective amendment which indicates that all securities offered
hereby have been sold or which deregisters the securities offered hereby then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof commencing on the respective
dates on which such documents are filed. Any statement contained in a document
incorporated or deemed to be incorporated by reference in this Registration
Statement shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained in this
Registration Statement or in any other subsequently filed document which also is
or is deemed to be incorporated by reference in this Registration Statement
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed to constitute a part of this Registration
Statement, except as such statement is so modified or superceded.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
1
Item 6. Indemnification of Directors and Officers.
Article 2.02-1 of the Texas Business Corporation Act provides that any
director or officer of a Texas corporation may be indemnified against judgments,
penalties, fines, settlements and reasonable expenses actually incurred by him
in connection with or in defending any action, suit or proceeding in which he is
a party by reason of his position with the corporation. With respect to any
proceeding arising from actions taken in his official capacity, as a director or
officer, he may be indemnified if it is determined that he conducted himself in
good faith and that he reasonably believed that such conduct was in the
corporation's best interests. In cases not concerning conduct in his official
capacity as a director or officer, a director may be indemnified as long as he
conducted himself in good faith and reasonably believed that his conduct was not
opposed to the corporation's best interests. In the case of any criminal
proceeding, a director or officer may be indemnified if he had no reasonable
cause to believe his conduct was unlawful. If a director or officer is wholly
successful, on the merits or otherwise, in connection with such a proceeding,
such indemnification is mandatory.
Our Articles of Incorporation, as amended, provide for indemnification of
our present and former directors, officers and employees, and those of our
affiliates, Capital Southwest Management Corporation and Capital Southwest
Venture Corporation.
Our Articles of Incorporation, as amended, provide that we may only
provide indemnification to the extent permitted by or not prohibited by the
Investment Company Act of 1940, as amended, and the rules and regulations of the
SEC.
We entered into Indemnification Agreements with all of our directors and
officers and may in the future enter into such indemnification agreements with
our directors, officers, employees and agents. Such indemnification agreements
are intended to provide a contractual right to indemnification, to the extent
permitted by law, for any and all judgments, penalties (including excise and
similar taxes), fines, settlements and reasonable expenses (including attorneys'
fees) actually incurred by the person to be indemnified in connection with any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative, arbitrative or investigative, any appeal in such
action, suit or proceeding, and any inquiry or investigation that could lead to
any such action, suit or proceeding, by reason of such person's service in such
position. Such indemnification agreements do not change the basic legal
standards for indemnification set forth in the Texas Business Corporation Act or
our Articles of Incorporation, as amended. Such provisions are intended to be in
furtherance, and not in limitation of, the general right to the indemnification
provided in our Articles of Incorporation, as amended, and our Bylaws.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
EXHIBIT INDEX
Exhibit
Number Description
- ---------- --------------------------------------------------------------------
3.1 (a) Articles of Incorporation and Articles of Amendment to Articles of
Incorporation, dated June 25, 1969 (filed as Exhibit 1(a) and 1(b)
to Amendment No. 3 to Form N-2 for the fiscal year ended March 31,
1979).
3.1 (b) Articles of Amendment to Articles of Incorporation, dated July 20,
1987 (filed as an exhibit to Form N-SAR for the six month period
ended September 30, 1987).
3.2 By-Laws of the Company, as amended (filed as Exhibit 2 to Amendment
No. 11 to Form N-2 for the fiscal year ended March 31, 1987).
4.1 Specimen of Common Stock certificate (filed as Exhibit 4.1 to Form
10-K for the fiscal year ended March 31, 2002).
*5.1 Opinion of Locke Liddell & Sapp LLP.
2
*23.1 Consent of Independent Registered Public Accounting Firm - Ernst &
Young LLP.
*23.2 Consent of Independent Registered Public Accounting Firm - KPMG LLP.
23.3 Consent of Locke Liddell & Sapp LLP (included in opinion filed as
Exhibit 5.1).
24.1 Power of attorney (set forth on the signature page(s) hereof).
- ------------
*Filed herewith.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of this registration statement (or the most recent
post-effective amendment hereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this registration
statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in this registration statement or any
material change to such information in this registration statement;
provided, however, that paragraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered that remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
3
SIGNATURES
Pursuant to the requirements of the Securities Act, Capital Southwest
Corporation certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Dallas, State of Texas, on the 31st day of
August, 2004.
CAPITAL SOUTHWEST CORPORATION
By: /s/ William R. Thomas
-----------------------------------
William R. Thomas
President and Chairman of the Board
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated. Each of the undersigned officers and
directors of the registrant hereby constitutes William R. Thomas and Susan K.
Hodgson, either of whom may act, his true and lawful attorneys-in-fact with full
power to sign for him and in his name in the capacities indicated below and to
file any and all amendments to the registration statement filed herewith, making
such changes in the registration statement as the registrant deems appropriate,
and generally to do all such things in his name and behalf in his capacity as an
officer and director to enable the registrant to comply with the provisions of
the Securities Act of 1933 and all requirements of the Securities and Exchange
Commission and any state or other securities authority.
Signature Title Date
--------- ----- ----
/s/ William R. Thomas President and Chairman of the Board,
- --------------------------- and Director (Chief Executive Officer) August 31, 2004
William R. Thomas
/s/ Gary L. Martin Director August 31, 2004
- ---------------------------
Gary L. Martin
/s/ Graeme W. Henderson Director August 31, 2004
- --------------------------
Graeme W. Henderson
/s/ Samuel B. Ligon Director August 31, 2004
- --------------------------
Samuel B. Ligon
/s/ John H. Wilson Director August 31, 2004
- --------------------------
John H. Wilson
/s/ Susan K. Hodgson Secretary-Treasurer (Chief
- ------------------------ Financial/Accounting Officer) August 31, 2004
Susan K. Hodgson
4
EXHIBIT INDEX
Exhibit
Number Description
- ---------- --------------------------------------------------------------------
3.1 (a) Articles of Incorporation and Articles of Amendment to Articles of
Incorporation, dated June 25, 1969 (filed as Exhibit 1(a) and 1(b)
to Amendment No. 3 to Form N-2 for the fiscal year ended March 31,
1979).
3.1 (b) Articles of Amendment to Articles of Incorporation, dated July 20,
1987 (filed as an exhibit to Form N-SAR for the six month period
ended September 30, 1987).
3.2 By-Laws of the Company, as amended (filed as Exhibit 2 to Amendment
No. 11 to Form N-2 for the fiscal year ended March 31, 1987).
4.1 Specimen of Common Stock certificate (filed as Exhibit 4.1 to Form
10-K for the fiscal year ended March 31, 2002).
*5.1 Opinion of Locke Liddell & Sapp LLP.
*23.1 Consent of Independent Registered Public Accounting Firm - Ernst &
Young LLP.
*23.2 Consent of Independent Registered Public Accounting Firm - KPMG LLP.
23.3 Consent of Locke Liddell & Sapp LLP (included in opinion filed as
Exhibit 5.1).
24.1 Power of attorney (set forth on the signature page(s) hereof).
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*Filed herewith.
5
Exhibit 5.1
[Letterhead of Locke Liddell & Sapp LLP]
August 31, 2004
Capital Southwest Corporation
12900 Preston Road, Suite 700
Dallas, Texas 75230
Ladies and Gentlemen:
We have acted as counsel to Capital Southwest Corporation, a Texas
corporation (the "Company"), in connection with the Registration Statement on
Form S-8 filed by the Company with the Securities and Exchange Commission
pursuant to the Securities Act of 1933, as amended, relating to the offer and
sale of up to an additional 140,000 shares of the Company's Common Stock, $1.00
par value per share (the "Common Stock"), that may be issued pursuant to the
Company's 1999 Stock Option Plan (the "Plan").
In connection with this opinion, we have examined and are familiar with
originals or copies, certified or otherwise identified to our satisfaction, of
such documents, corporate records, certificates of public officials and other
instruments as we have deemed necessary or advisable in connection with this
opinion, including the Company's Articles of Incorporation, as amended, the
Company's Bylaws and the Plan. In our examination we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies, the authenticity of originals of such copies and the authenticity of
telegraphic or telephonic confirmations of public officials and others. As to
facts material to our opinion, we have relied upon certificates or telegraphic
or telephonic confirmations of public officials and certificates, documents,
statements and other information of the Company or its representatives or
officers.
Based upon the foregoing, we are of the opinion that the Common Stock
that may be issued by the Company, when issued and paid for in accordance with
the terms of the Plan, will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
LOCKE LIDDELL & SAPP LLP
By:/s/ Gina E. Betts
----------------------
Gina E. Betts, Partner
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in this Registration Statement Form
S-8 pertaining to the 1999 Stock Option Plan of Capital Southwest Corporation of
our report dated May 12, 2004, with respect to the consolidated financial
statements and schedules of Capital Southwest Corporation and subsidiaries
incorporated by reference in its Annual Report (Form 10-K) for the year ended
March 31, 2004, filed with the Securities and Exchange Commission.
Ernst & Young LLP
August 27, 2004
Dallas, Texas
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
The Board of Directors
Capital Southwest Corporation:
We consent to the incorporation by reference in the registration statement on
Form S-8 of Capital Southwest Corporation of our report dated April 25, 2003,
with respect to the consolidated statement of financial condition of Capital
Southwest Corporation and subsidiary as of March 31, 2003, and the related
consolidated statements of operations, changes in net assets, and cash flows for
each of the years in the two-year period ended March 31, 2003, and the selected
per share data and ratios for each of the years in the four-year period ended
March 31, 2003, which report appears in the annual report to shareholders for
the year ended March 31, 2004, and is incorporated by reference in the March 31,
2004 annual report on Form 10-K of Capital Southwest Corporation.
KPMG LLP
Dallas, Texas
August 30, 2004