Attached files
file | filename |
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8-K - FORM 8-K - CAPSTEAD MORTGAGE CORP | d70241e8vk.htm |
EX-10.1 - EX-10.1 - CAPSTEAD MORTGAGE CORP | d70241exv10w1.htm |
Exhibit 5.1
November 24, 2009
BRINSON PATRICK SECURITIES CORPORATION
1515 Broadway, 11th Floor
New York, New York 10036
1515 Broadway, 11th Floor
New York, New York 10036
Re: Capstead Mortgage Corporation 5,000,000 Shares of Common Stock
Ladies and Gentlemen:
This firm has acted as Maryland counsel to Capstead Mortgage Corporation, a Maryland corporation
(the Company), in connection with the issuance and sale from time to time of 5,000,000 shares of
Common Stock (par value $0.01 per share) of the Company (the Shares), pursuant to the terms of
the Sales Agreement, dated March 10, 2008, as amended by the First Amendment to Sales Agreement
dated August 4, 2008 and the Second Amendment to Sales Agreement dated November 24, 2009, by and
between the Company and you (the Agreement). This opinion letter is furnished to
you pursuant to the requirements set forth in Section 4(d)(i) of the Agreement in connection with
the execution and delivery of the Agreement on the date hereof. Capitalized terms used herein
which are defined in the Agreement shall have the meanings set forth in the Agreement, unless
otherwise defined herein.
For purposes of the opinions expressed in this letter, which are set forth in paragraphs (a)
through (h) below (the Opinions), and other statements made in this letter, we have examined
copies of the documents listed on Schedule 1 hereto (the Documents). We believe the
Documents provide an appropriate basis on which to render the opinions hereinafter expressed.
In our examination of the Agreement and the other Documents, we have assumed the genuineness of all
signatures, the legal capacity of all natural persons, the accuracy and completeness of all of the
Documents, the authenticity of all originals of the Documents and the conformity to authentic
originals of all of the Documents submitted to us as copies (including telecopies). We have also
assumed the validity and constitutionality of each relevant statute, rule, regulation and agency
action covered by this opinion letter. In our role as Maryland counsel to the Company, we have
assumed that the Shares will not be issued in violation of the ownership limit contained in the
Charter of the Company. As to matters of fact relevant to the Opinions expressed herein, we have
relied on the representations and statements of fact made in the Documents, we have not
independently established the facts so relied on, and we have not
BRINSON PATRICK SECURITIES CORPORATION
November 24, 2009
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November 24, 2009
Page 2
made any investigation or inquiry other than our examination of the Documents. The Opinions are
given in the context of the foregoing.
The Opinions are based as to matters of law solely on applicable provisions of the Maryland General
Corporation Law (the MGCL), as currently in effect.
Based upon, subject to and limited by the foregoing, we are of the opinion that:
(a) The Company was duly incorporated and is validly existing as a corporation and in good
standing as of November 23, 2009 under the laws of the State of Maryland.
(b) The Company has the corporate power to own, lease and operate its current properties and
to conduct its business as described in the Registration Statement and Prospectus.
(c) The authorized capital stock of the Company as of February 12, 2009 was as set forth under
the caption Description of our Capital Stock Authorized Stock in the Prospectus. No holder of
outstanding shares of capital stock of the Company has any statutory preemptive right under the
MGCL, the Charter or By-laws of the Company to subscribe for any of the Shares.
(d) The Agreement has been duly authorized by the Company.
(e) The Shares have been duly authorized for issuance and sale by you under the Agreement and,
when issued in accordance with the provisions of the Agreement, the Shares will be validly issued,
fully paid and non-assessable.
(f) The information in the Registration Statement and the Prospectus under the captions
Description of Our Capital Stock, Description of our Common Stock and Material Provisions of
Maryland Law and of our Charter and By-Laws to the extent that such information constitutes
matters of law or legal conclusions, has been reviewed by us and is accurate in all material
respects. The Common Stock conforms and the Shares conform as to legal matters in all material
respects to the description thereof set forth in the Pricing Prospectus and the Final Prospectus
under the caption Description of our Common Stock. The holders of the Shares will have no
personal liability as such under the laws of the State of Maryland, which is the jurisdiction in
which the Company is organized, except as such holder may be liable by reason of such holders own
conduct and acts.
(g) The execution, delivery and performance by the Company of the Agreement do not violate (i)
the MGCL or the Charter or By-laws of the Company or (ii) violate any Maryland
court or administrative order, judgment, or decree listed on Schedule 2 attached hereto that
names the Company and is specifically directed to it or any of its property.
(h) No approval or consent of, or registration or filing with any Maryland governmental
authority, is required to be obtained or made by the Company under the MGCL in
BRINSON PATRICK SECURITIES CORPORATION
November 24, 2009
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November 24, 2009
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connection with the
execution, delivery and performance on the date hereof by the Company of the Agreement.
Nothing herein shall be construed to cause us to be considered experts within the meaning of
Section 11 of the Securities Act of 1933, as amended.
We express no opinion herein as to any other laws and regulations not specifically identified above
(and in particular, we express no opinion as to any effect that such other laws and regulations may
have on the Opinions). We express no opinion herein as to federal or state securities, antitrust,
unfair competition, or tax laws or regulations or laws or regulations of any political subdivision
below the state level.
We assume no obligation to advise you of any changes in the foregoing subsequent to the delivery of
this opinion letter. This opinion letter has been prepared solely for your use in connection with
the closing under the Agreement on the date hereof, and should not be quoted in whole or in part or
otherwise be referred to, and should not be filed with or furnished to any governmental agency or
other person or entity, without the prior written consent of this firm. The foregoing
notwithstanding, to the extent our Opinions relate to matters of Maryland law, Andrews Kurth LLP
may rely on our Opinions in rendering their opinions to the addressees of these Opinions on the
date hereof, provided that the full text of Andrews Kurth LLPs opinion letter states that our
Opinions speak only as of the date hereof and that no such reliance will have any effect on the
scope, phrasing or originally intended use of our Opinions.
Very truly yours,
/s/ Hogan & Hartson LLP
HOGAN & HARTSON L.L.P.
Schedule 1
1. Executed copy of the Agreement.
2. The Registration Statement on Form S-3, as amended (No. 333-156073) (the Registration
Statement) filed with the Commission on December 11, 2008.
3. The prospectus supplement, dated November 24, 2009 (the Prospectus Supplement), to the
prospectus, dated February 12, 2009 (the Base Prospectus, and together with the Prospectus
Supplement, the Prospectus), as filed pursuant to Rule 424(b)(5) under the Securities Act.
4. The charter of the Company (the Charter), as certified by the Maryland State Department
of Assessments and Taxation (the MSDAT) on November 7, 2008 and as certified by the Secretary of
the Company on the date hereof as being complete, accurate and in effect.
5. The Amended and Restated By-laws of the Company, as certified by the Secretary of the
Company on the date hereof as being complete, accurate and in effect.
6. A certificate of good standing of the Company issued by the MSDAT dated November 23, 2009
under the laws of the State of Maryland.
7. Certain resolutions of the Board of Directors of the Company (the Board) adopted at a
meeting duly held or by unanimous written consent on May 3, 2007, March 7, 2008, May 1, 2008,
December 11, 2008 and October 26, 2009, as certified by the Secretary of the Company on the date
hereof as being accurate and in effect, relating, among other things, to the authorization of the
Agreement and the Shares.
8. A certificate, dated the date hereof, of certain officers of the Company as to the
representations and warranties of the Company set forth in the Sales Agreement and other matters
relating to the Shares.
9. A certificate of the Secretary of the Company, dated the date hereof, as to the incumbency
and signatures of certain officers of the Company.
Schedule 2
None.