Capstead Mortgage Corporation DOCS® financing facility* Shares of Common Stock, $0.01 par value SALES AGREEMENT March 10, 2008
Exhibit 1.1
Capstead Mortgage Corporation
DOCS® financing facility*
Shares of Common Stock,
$0.01 par value
$0.01 par value
March 10, 2008
| * | DOCS® is a registered service xxxx of Xxxxxxx Xxxxxxx Securities Corporation. |
THIS SALES AGREEMENT (the “Agreement”) dated as of March 10, 2008 between Xxxxxxx Xxxxxxx
Securities Corporation, having its principal office at 000 Xxxxxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (the “Sales Manager”) and Capstead Mortgage Corporation, a corporation
organized and existing under the laws of the State of Maryland (the “Company”).
WHEREAS, the Company desires to issue and sell through the Sales Manager shares of its common
stock, par value $0.01 per share (the “Common Stock”) on the terms set forth in Article II hereof.
IN CONSIDERATION of the mutual covenants contained in this Agreement, the Company and the
Sales Manager agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
OF THE COMPANY
1.1 For purposes of this Agreement, unless the context requires to the contrary, the term
“Company” shall also include all significant subsidiaries (as defined by Section 1-02 of Regulation
S-X) of the Company. The Company represents and warrants to, and agrees with, the Sales Manager
that:
(a) The Company meets the requirements for use of Form S-3 under the Securities Act of 1933,
as amended (the “Act”), and the rules and regulations thereunder (“Rules and Regulations”), and the
Company is eligible to use Form S-3 for the transactions contemplated by this Agreement. A
registration statement on Form S-3 (Registration No. 333-143390) with respect to, among other
securities, the Common Stock, including a form of prospectus, has been prepared by the Company in
conformity with the requirements of the Act and the Rules and Regulations, has been filed with the
Securities and Exchange Commission (the “Commission”) and has been declared effective by the
Commission. No stop order suspending the effectiveness of such registration statement has been
issued, and no proceeding for that purpose has been instituted or, to the knowledge of the Company,
threatened by the Commission. Additionally, the Company is eligible to file a new registration
statement on Form S-3 with respect to the Common Stock that will become effective upon filing with
the Commission pursuant to Rule 462(e) under the Act. Each such registration statement, as it may
have heretofore been or may hereafter be filed, as amended, is referred to herein as the
“Registration Statement,” and the final form of prospectus included in the Registration Statement,
as amended or supplemented from time to time, is referred to herein as the “Prospectus.” Any
reference herein to the Registration Statement, the Prospectus, or any amendment or supplement
thereto shall be deemed to refer to and include the documents incorporated (or deemed to be
incorporated) by reference therein, and any reference herein to the terms “amend,” “amendment” or
“supplement” with respect to the Registration Statement or Prospectus shall be deemed to refer to
and include the filing after the execution hereof of any document with the Commission deemed to be
incorporated by reference therein.
(b) Each part of the Registration Statement, when such part became or becomes effective, and
the Prospectus and any amendment or supplement thereto, on the date of
filing thereof with the Commission and at each Settlement Date (as hereinafter defined),
conformed or will conform in all material respects with the requirements of the Act and the Rules
and Regulations; each part of the Registration Statement, when such part became or becomes
effective, did not or will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading; and the Prospectus and any amendment or supplement thereto, on the date of filing
thereof with the Commission and at each Settlement Date, did not or will not include an untrue
statement of a material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading; except that
the foregoing shall not apply to statements in or omissions from any such document in reliance
upon, and in conformity with, written information furnished to the Company by or on behalf of the
Sales Manager, specifically for use in the Registration Statement, the Prospectus or any amendment
or supplement thereto.
(c) The documents incorporated by reference in the Registration Statement or the Prospectus,
or any amendment or supplement thereto, when they became or become effective under the Act or were
or are filed with the Commission under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), as the case may be, conformed or will conform in all material respects with the
requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder.
(d) The financial statements of the Company, together with the related schedules and notes
thereto, set forth or included or incorporated by reference in the Registration Statement and
Prospectus, fairly present the financial condition of the Company as of the dates indicated and the
results of operations, changes in financial position, stockholders’ equity, and cash flows for the
periods therein specified, in conformity with generally accepted accounting principles consistently
applied throughout the periods involved (except as otherwise stated therein). The summary and
selected financial and statistical data included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the information shown therein and, to the extent based
upon or derived from the financial statements, have been compiled on a basis consistent with the
financial statements presented therein.
(e) The accountants who certified the financial statements and the supporting schedules
included in the Registration Statement are and, during the periods covered by their reports, were
qualified and independent public accountants as required by Rule 2-01 of Regulation S-X.
(f) The Company has been duly organized and is validly existing as a corporation in good
standing under the laws of the State of Maryland. Other than as disclosed in the Registration
Statement, the Company has no subsidiaries and does not control, directly or indirectly, any
corporation, partnership, limited liability company, joint venture, association or other business
organization. The Company is duly qualified and in good standing as a foreign corporation in each
jurisdiction in which the character or location of its assets or properties (owned, leased or
licensed) or the nature of its business makes such qualification necessary (including every
jurisdiction in which it owns or leases property), except for such jurisdictions where the failure
to so qualify would not have a Material Adverse Effect on the Company. For purposes of this
Agreement, “Material Adverse Effect” means any adverse effect on the
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business, operations, properties or financial condition of the Company that is (either alone
or together with all other adverse effects) material to the Company, and any material adverse
effect on the transactions contemplated under this Agreement or any other agreement or document
contemplated hereby or thereby. Each of the Company’s significant subsidiaries is validly existing
as a corporation, limited liability company or partnership, as applicable, in its respective
jurisdiction of formation. Schedule 1.1(f) hereto identifies each of the Company’s subsidiaries
that is a significant subsidiary (as defined in Section 1-02 of Regulation S-X) of the Company.
All of the issued and outstanding capital stock, limited liability company interests or partnership
interests, as applicable, of each significant subsidiary has been duly authorized and validly
issued, is fully paid and nonassessable and (except as otherwise disclosed or incorporated by
reference in the Registration Statement and the Prospectus) is owned by the Company, directly or
indirectly, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity. Except as disclosed or incorporated by reference in the Registration Statement and the
Prospectus, the Company does not own, lease or license any asset or property or conduct any
business outside the United States of America. The Company has all requisite corporate or limited
liability company power and authority, as applicable, and all necessary authorizations, approvals,
consents, orders, licenses, certificates and permits of and from all governmental orders or
regulatory bodies or any other person or entity, to own, lease, license and operate its assets and
properties and conduct its business as now being conducted and as described or incorporated by
reference in the Registration Statement and the Prospectus; except for such authorizations,
approvals, consents, orders, licenses, certificates and permits the absence of which would not have
a Material Adverse Effect; and no such authorization, approval, consent, order, license,
certificate or permit contains a materially burdensome restriction other than as disclosed or
incorporated by reference in the Registration Statement and the Prospectus.
(g) The Company has good title to each of the items of personal property which are reflected
in the financial statements referred to in Section 1.1(d) or are referred to in the Registration
Statement and the Prospectus or any document incorporated by reference therein as being owned by
the Company and valid and enforceable leasehold interests in each of the items of real and personal
property which are referred to in the Registration Statement and the Prospectus or any document
incorporated by reference therein as being leased by the Company, in each case free and clear of
all liens, encumbrances, claims, security interests and defects, other than those described in the
Registration Statement and the Prospectus and those which do not and will not have a Material
Adverse Effect.
(h) The Company has been subject to the requirements of Section 12 of the Exchange Act during
the period commencing 12 months preceding the filing of the Registration Statement and ending on
the date hereof (the “Reporting Period”) and during such Reporting Period the Company has timely
filed all material and reports required under Sections 13(a), 14 and/or 15(d) of the Exchange Act.
All such materials and reports conformed in form and substance to the requirements of the Exchange
Act and the rules and regulations thereunder. As of the date of filing of the Registration
Statement, and as of the date hereof, the aggregate market value of the voting and non-voting
common equity held by non-affiliates of the Company was and is at least $150 million.
(i) The Company has good and marketable title to, or leasehold interests in, all properties
and assets (including, without limitation, mortgaged assets) as described in the
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Registration Statement and the Prospectus or any document incorporated by reference therein,
owned by the Company, free and clear of all liens, charges, encumbrances or restrictions, except
such as are described in the Registration Statement and the Prospectus or any document incorporated
by reference therein, and except such as would not have a Material Adverse Effect on the Company.
(j) The debt financing employed by the Company to acquire its portfolio of mortgage assets is
not convertible into shares of common stock of the Company or other equity interests in the
Company.
(k) There is no litigation or governmental or other proceeding or investigation before any
court or before or by any public body or board pending or, to the knowledge of the Company,
threatened (and the Company does not know of any basis therefor) against, or involving the assets,
properties or businesses of the Company which would materially adversely affect the value or the
operation of any such assets or otherwise have a Material Adverse Effect on the Company except as
described or incorporated by reference in the Registration Statement.
(l) The Company maintains insurance (issued by insurers of recognized financial
responsibility) of the types and in the amounts generally deemed adequate for its businesses and,
to the knowledge of the Company, consistent with insurance coverage maintained by similar companies
in similar businesses, including, but not limited to, insurance covering real and personal property
owned or leased by the Company against theft, damage, destruction, acts of vandalism and all other
risks customarily insured against, all of which insurance is in full force and effect.
(m) Subsequent to the respective dates as of which information is given in the Registration
Statement and the Prospectus, except as described therein, (i) there has not been any material
adverse change in the assets or properties, business, results of operations or condition (financial
or otherwise) of the Company, whether or not arising from transactions in the ordinary course of
business; (ii) the Company has not sustained any material loss or interference with its assets,
businesses or properties (whether owned or leased) from fire, explosion, earthquake, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or any court or
legislative or other governmental action, order or decree; (iii) since the date of the latest
balance sheet, included or incorporated by reference in the Registration Statement and the
Prospectus, except as reflected therein, the Company has not undertaken any liability or
obligation, direct or contingent, except such liabilities or obligations undertaken in the ordinary
course of business; and (iv) there has not been any transaction that is material to the Company,
except transactions in the ordinary course of business or as otherwise disclosed in the
Registration Statement and the Prospectus.
(n) There is no document or contract of a character required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement
that is not described or filed as required. Each document, instrument, contract and agreement of
the Company described in the Registration Statement or the Prospectus or incorporated by reference
therein or listed as exhibits to the Registration Statement is in full force and effect and is
valid and enforceable by and against the Company in accordance with their terms, assuming the due
authorization, execution and delivery thereof by each of the other
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parties thereto except as otherwise disclosed in the Registration Statement or Prospectus.
The Company is not, nor to the knowledge of the Company is any other party, in default in the
observance or performance of any term or obligation to be performed by it under any such agreement,
and no event has occurred which with notice or lapse of time or both would constitute such a
default, which default or event would have a Material Adverse Effect. No default exists, and no
event has occurred which with notice or lapse of time or both would constitute a default, in the
due performance and observance of any term, covenant or condition, by the Company of any other
agreement or instrument to which the Company is a party or by which it or its properties or
business may be bound or affected, which default or event would have a Material Adverse Effect.
(o) The Company is not in violation of any term or provision of its charter, by-laws or
operating agreement, as applicable. The Company is not in violation of any franchise, license,
permit, judgment, decree, order, statute, rule or regulation, where the consequences of such
violation would have a Material Adverse Effect.
(p) Neither the execution, delivery and performance of this Agreement by the Company nor the
consummation of any of the transactions contemplated hereby (including, without limitation, the
issuance and sale by the Company of the Common Stock) will give rise to a right to terminate or
accelerate the due date of any payment due under, or conflict with or result in the breach of any
term or provision of, or constitute a default (or an event which with notice or lapse of time or
both would constitute a default) under, or require any consent or waiver under, or result in the
execution or imposition of any lien, charge, encumbrance, claim, security interest, restriction or
defect upon any properties or assets of the Company pursuant to the terms of, any indenture,
mortgage, deed of trust or other agreement or instrument to which the Company is a party or by
which the Company is bound, or any of its properties or businesses are bound, or any franchise,
license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or
violate any provision of the charter or by-laws of the Company, except for such consents or waivers
which have already been obtained and are in full force and effect.
(q) All of the outstanding shares of capital stock of the Company have been duly authorized
and validly issued and are fully paid and nonassessable and none of the shares were issued in
violation of any preemptive or other similar right. The Common Stock, when issued and sold
pursuant to this Agreement, will be duly authorized and validly issued, fully paid and
nonassessable and will not be issued in violation of any preemptive or other similar right. Except
as disclosed in the Registration Statement and the Prospectus, there is no outstanding option,
warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement
to issue, any capital stock of the Company or any security convertible into or exercisable or
exchangeable for such capital stock, except for standard dividend reinvestment plans. The Common
Stock conforms in all material respects to all statements relating thereto contained in the
Registration Statement and the Prospectus. Any stock options issued by the Company have been
issued in compliance with law, and the terms and provisions of such stock options were established
in compliance with law.
(r) Subsequent to the respective dates as of which information is given in the Registration
Statement and the Prospectus, except as (x) described or referred to therein, or (y) are not
material (as to clauses (i) and (ii) only), are consistent with past practice (as to clauses (i)
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and (ii) only), and are publicly disclosed, the Company has not (i) issued any securities or
incurred any liability or obligation, direct or contingent, except such liabilities or obligations
incurred in the ordinary course of business including, without limitation, debt financing to
acquire and develop properties, (ii) entered into any transaction not in the ordinary course of
business or (iii) declared or paid any dividend or made any distribution on any shares of its
capital stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or
otherwise acquire any shares of its capital stock.
(s) Except as disclosed in the Registration Statement and Prospectus, no holder of any
security of the Company has the right, which has not been waived, to have any security owned by
such holder included in the Registration Statement or any right to demand registration of any
security owned by such holder.
(t) All necessary corporate or limited liability company action, as applicable, has been duly
and validly taken by the Company to authorize the execution, delivery and performance of this
Agreement and the issuance and sale of the Common Stock by the Company. This Agreement has been
duly and validly authorized, executed and delivered by the Company and constitutes and will
constitute the legal, valid and binding obligation of the Company, enforceable against the Company
in accordance with its terms. Except for any “blue sky” filings or Trading Market (as defined
below) listing applications to be filed pursuant hereto, each approval, consent, order,
authorization, designation, declaration or filing by or with any regulatory, administrative or
other governmental body necessary in connection with the execution and delivery by the Company of
this Agreement and the consummation of the transactions contemplated hereby and the issuance and
sale of the Common Stock by the Company has been obtained or made and is in full force and effect.
The Company will use its best reasonable efforts to cause the Common Stock to be listed for trading
on the Trading Market. For purposes of this Agreement, the “Trading Market” is (i) the New York
Stock Exchange, Inc., and (ii) each other securities exchange on which the common stock of the
Company is admitted for trading.
(u) The Company has not incurred any liability for a fee, commission or other compensation on
account of the employment of a broker or finder in connection with the transactions contemplated by
this Agreement other than as contemplated hereby or as described in the Registration Statement.
(v) The Company is conducting its business in compliance with all applicable laws, rules and
regulations of the jurisdictions in which it is conducting business, except where the failure to be
so in compliance would not have a Material Adverse Effect.
(w) No transaction has occurred between or among the Company and any of its officers or
directors or any affiliate or affiliates of any such officer or director that is required to be
described in and is not described in the Registration Statement and the Prospectus.
(x) The Company has not taken, nor will it take, directly or indirectly, any action designed
to or which might reasonably be expected to cause or result in, or which has constituted or which
might reasonably be expected to constitute, the stabilization or manipulation of the price of the
Common Stock to facilitate the sale or resale of any of the Common Stock.
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(y) The Company has filed all federal, state, local and foreign tax returns which are required
to be filed through the date hereof (and will file all such tax returns when and as required to be
filed after the date hereof), or has received extensions thereof, and has paid all taxes shown on
such returns to be due on or prior to the date hereof (and will pay all taxes shown on such returns
to be due after the date hereof) and all assessments received by it to the extent that the same are
material and have become due, except where the failure to file such a return or pay such amount
would not have a Material Adverse Effect.
(z) The Company has met the qualification requirements for a “real estate investment trust”
during its taxable years ending on or after December 31, 1999 and its proposed method of operations
will enable it to continue to meet the requirements for qualification and taxation as a “real
estate investment trust” under the Internal Revenue Code of 1986, as amended (the “Code”), assuming
no change in the applicable underlying law. The Company does not know of any event that would
cause or is likely to cause the Company to fail to qualify as a “real estate investment trust” at
any time.
(aa) The Company is not an “investment company” within the meaning of the Investment Company
Act of 1940, as amended.
(bb) The Company’s systems of internal accounting controls taken as a whole are sufficient to
meet the broad objectives of internal accounting control insofar as those objectives pertain to the
prevention or detection of errors or irregularities in amounts that would be material in relation
to the Company’s financial statements; and, to the best of the Company’s knowledge, neither the
Company nor any employee or agent thereof has made any payment of funds of the Company or received
or retained any funds, and no funds of the Company have been set aside to be used for any payment,
in each case in violation of any law, rule or regulation.
(cc) There is and has been no failure on the part of the Company or any of the Company’s
directors or officers, in their capacities as such, to comply with any provision of the
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection therewith,
including without limitation Section 402 related to loans and Sections 302 and 906 related to
certificates.
ARTICLE II
SALE AND DELIVERY OF SECURITIES
2.1 (a) On the basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company agrees to issue and sell through
the Sales Manager, as agent, and the Sales Manager agrees to sell, as agent for the Company, on a
best efforts basis, shares of the Common Stock during the term of this Agreement on the terms set
forth herein. The Common Stock will be sold from time to time as described in the Registration
Statement and Prospectus, in amounts and, subject to price limitations, at prices as directed by
the Company and as agreed to by the Sales Manager; provided that nothing in this Agreement shall be
construed to require the Company to sell any shares of Common Stock through the Sales Manager.
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(b) The Company or the Sales Manager may, upon notice to the other party hereto by telephone
(confirmed promptly by telecopy or e-mail), at any time and from time to time suspend the offering
of Common Stock; provided, however, that such suspension shall not affect or impair
the parties’ respective obligations with respect to the Common Stock sold hereunder prior to the
giving of such notice.
(c) The compensation to the Sales Manager for sales of Common Stock sold under this Agreement
shall be at the following commission rates: 3.0% of the gross sales price per share (“sales
proceeds”) for the first $8 million of aggregate sales proceeds raised in each Sales Period; 2.5%
of sales proceeds for the next $4 million of aggregate sales proceeds raised in each Sales Period
and 2.0% of sales proceeds for any additional aggregate sales proceeds raised in each Sales Period.
For purposes of this section 2.1(c), the initial “Sales Period” shall commence on March 10, 2008
and shall end on December 31, 2009 and each subsequent Sales Period shall be for a two year period,
commencing on January 1 and ending on December 31 of the following calendar year. The remaining
proceeds, after further deduction for any transaction fees imposed by any governmental or
self-regulatory organization in respect to such sale shall constitute the net proceeds to the
Company for such Common Stock (the “Net Proceeds”). For purposes of the first sentence of this
section 2.1(c), sales proceeds include sales proceeds from sales of Common Stock by the Sales
Manager for the account of the Company, whether under this Agreement, or otherwise.
(d) The Company shall open and maintain a trading account (the “Trading Account”) at a
clearing agent designated by the Sales Manager to facilitate the transactions contemplated by this
Agreement. The Net Proceeds from the sale of the Common Stock shall be available in the Trading
Account on the third business day (or such other day as is industry practice for regular-way
trading) following each sale of the Common Stock (each, a “Settlement Date”). The Company shall
effect the delivery of the applicable number of shares of Common Stock to an account designated by
the Sales Manager at The Depository Trust Company on or before the Settlement Date of each sale
hereunder. The Sales Manager’s compensation shall be withheld from the sales proceeds on each
Settlement Date and shall be paid to the Sales Manager.
(e) At each Settlement Date, the Company shall be deemed to have affirmed each representation,
warranty, covenant and other agreement contained in this Agreement. Any obligation of the Sales
Manager under this Agreement shall be subject to the continuing accuracy of the representations and
warranties of the Company herein, to the performance by the Company of its obligations hereunder
and to the continuing satisfaction of the additional conditions specified in Article IV of this
Agreement.
(f) If the Company shall default on its obligation to deliver Common Stock on any Settlement
Date, the Company shall (i) hold the Sales Manager harmless against any loss, claim or damage
arising from or as a result of such default by the Company and (ii) pay the Sales Manager any
commission to which it would otherwise be entitled absent such default.
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ARTICLE III
COVENANTS OF THE COMPANY
3.1 The Company covenants and agrees with the Sales Manager that:
(a) As promptly as practicable after the date of this Agreement, the Company will (if not
previously filed) file the Registration Statement to permit sales of the Common Stock under the
Act. The Company will use its best reasonable efforts to cause the Registration Statement to
become effective as promptly as possible thereafter.
(b) During the period in which the Sales Agent has been requested to offer and sell Common
Stock, the Company will notify the Sales Manager promptly of the time when any subsequent amendment
to the Registration Statement has become effective or any subsequent supplement to the Prospectus
has been filed and of any request by the Commission for any amendment or supplement to the
Registration Statement or the Prospectus or for additional information. The Company will prepare
and file with the Commission, promptly upon the Sales Manager’s reasonable request, any amendments
or supplements to the Registration Statement or Prospectus that, in the Sales Manager’s reasonable
opinion, may be necessary or advisable in connection with the sale of the Common Stock pursuant to
this Agreement. The Company will not file any amendment or supplement to the Registration
Statement or Prospectus (other than a supplement to the Prospectus that (i) does not materially
change the information about the Company or its business, operations, properties or financial
condition previously disclosed in the Registration Statement or Prospectus, (ii) relates to a
“follow-on” offering of the Common Stock by the Company, or (iii) relates to an offering of
securities other than the Common Stock (each, an “Excluded Supplement”)) unless a copy thereof has
been submitted to the Sales Manager a reasonable period of time before the filing and the Sales
Manager has not reasonably objected thereto; and it will notify the Sales Manager at the time of
filing thereof of any document that upon filing is deemed to be incorporated by reference in the
Registration Statement or Prospectus, which will then be available on the Company’s website at
xxx.xxxxxxxx.xxx (and will furnish to the Sales Manager any such document that is not available on
the Company’s website). The Company will cause each amendment to the Registration Statement or
supplement to the Prospectus and each filing or report incorporated therein, to be prepared in form
and substance as required by the Act, the Rules and Regulations, the Exchange Act and the rules and
regulations thereunder, and to be timely filed with the Commission.
(c) The Company will advise the Sales Manager, promptly after it shall receive notice or
obtain knowledge thereof, of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement, of the suspension of the qualification of the Common
Stock for offering or sale in any jurisdiction, or of the initiation or threatening of any
proceeding for any such purpose; and it will promptly use its best reasonable efforts to prevent
the issuance of any stop order or to obtain its withdrawal if such a stop order should be issued.
(d) Within the time during which a prospectus relating to the Common Stock is required to be
delivered under the Act, the Company will comply with all requirements
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imposed upon it by the Act and by the Rules and Regulations, as from time to time in force, so
far as necessary to permit the continuance of sales of or dealings in the Common Stock as
contemplated by the provisions hereof and the Prospectus. If during such period any event occurs
as a result of which the Prospectus, as then amended or supplemented, would include an untrue
statement of a material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances then existing, not misleading, or if during such period
it is necessary to amend or supplement the Registration Statement or Prospectus to comply with the
Act, the Company will promptly notify the Sales Manager to suspend the offering of Common Stock
during such period and the Company will amend or supplement the Registration Statement or
Prospectus (at the expense of the Company) so as to correct such statement or omission or effect
such compliance and will use its best reasonable efforts to have any amendment or supplement to the
Registration Statement or Prospectus declared effective as soon as possible, unless the Company has
reasonable business reasons to defer public disclosure of the relevant information.
(e) The Company will use its best reasonable efforts to qualify the Common Stock for sale
under the securities laws of such jurisdictions as the Sales Manager designates and to continue
such qualifications in effect so long as required for the sale of the Common Stock, except that the
Company shall not be required in connection therewith to qualify as a foreign corporation or to
execute a general consent to service of process in any jurisdiction.
(f) The Company will furnish to the Sales Manager and its legal counsel (at the expense of the
Company) copies of the Registration Statement, the Prospectus (including all documents incorporated
by reference therein) and all amendments and supplements to the Registration Statement or
Prospectus that are filed with the Commission during the period in which a prospectus relating to
the Common Stock is required to be delivered under the Act (including all documents filed with the
Commission during such period that are deemed to be incorporated by reference therein), in each
case as soon as available and in such quantities as the Sales Manager may from time to time
reasonably request. The Company will take such action as to enable the conditions set forth in
Rule 153(b) of the Rules and Regulations to be satisfied at all times that the Sales Agent is
selling Common Stock.
(g) The Company will make generally available to its security holders as soon as practicable,
but in any event not later than 15 months after the end of the Company’s current fiscal quarter, an
earnings statement (which need not be audited) covering a 12-month period that satisfies the
provisions of Section 11(a) of the Act and Rule 158 of the Rules and Regulations.
(h) The Company, whether or not the transactions contemplated hereunder are consummated or
this Agreement is terminated, will pay all of its expenses incident to the performance of its
obligations hereunder (including, but not limited to, any transaction fees imposed by any
governmental or self-regulatory organization with respect to transactions contemplated by this
Agreement and any blue sky fees) and will pay the expenses of printing all documents relating to
the offering. The Company will reimburse the Sales Manager for its reasonable out-of-pocket costs
and expenses incurred in connection with entering into this Agreement, including, without
limitation, reasonable travel, reproduction, printing and similar expenses, as well as the
reasonable fees and disbursements of its legal counsel.
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(i) The Company shall use its best reasonable efforts to list, subject to notice of issuance,
the Common Stock on the applicable Trading Market.
(j) The Company will apply the Net Proceeds from the sale of the Stock as set forth in the
Prospectus.
(k) The Company will not, directly or indirectly, offer or sell any shares of common stock
(other than the Common Stock) or securities convertible into or exchangeable for, or any rights to
purchase or acquire, common stock during the period from the date of this Agreement through the
final Settlement Date for the sale of Common Stock hereunder without (i) giving the Sales Manager
at least one business day prior written notice specifying the nature of the proposed sale and the
date of such proposed sale and (ii) suspending activity under this program for such period of time
as may reasonably be determined by agreement of the Company and the Sales Manager;
provided, however, that no such notice and suspension shall be required in
connection with the Company’s issuance or sale of (i) shares of common stock pursuant to any
employee or director stock option or benefits plan, stock ownership plan, dividend reinvestment
plan, as such plans may be amended from time to time, and (ii) common stock issuable upon
conversion of securities or the exercise of warrants, options or other rights in effect or
outstanding on the date hereof. Notwithstanding the foregoing, this paragraph (k) shall not apply
during periods that the Company is neither selling Common Stock through the Sales Manager nor has
requested the Sales Manager to sell Common Stock.
(l) The Company will, at any time during the term of this Agreement, as supplemented from time
to time, advise the Sales Manager immediately after it shall have received notice or obtain
knowledge thereof, of any information or fact that would alter or affect any opinion, certificate,
letter and other document provided to the Sales Manager pursuant to Article IV herein.
(m) Each time that the Registration Statement or the Prospectus shall be amended or
supplemented (other than an Excluded Supplement) and on the dates specified in Section 4.1(f)
below, the Company shall (unless the Company is not then selling Common Stock through the Sales
Manager and has not requested the Sales Manager to sell Common Stock) furnish or cause to be
furnished to the Sales Manager forthwith a certificate, in form and substance satisfactory to the
Sales Manager to the effect that the statements contained in the certificates referred to in
Section 4.1(f) below that were last furnished to the Sales Manager are true and correct at the time
of such amendment or supplement, as the case may be, as though made at and as of such time (except
that such statements shall be deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to such time) or, in lieu of such certificates, certificates of the same
tenor as the certificates referred to in said Section 4.1(f) below, modified as necessary to relate
to the Registration Statement and the Prospectus as amended and supplemented to the time of
delivery of such certificate.
(n) Each time that a post-effective amendment to the Registration Statement is declared
effective or the Company files an Annual Report on Form 10-K, and at such other times as may be
reasonably requested by the Sales Manager, the Company shall (unless the Company is not then
selling Common Stock through the Sales Manager and has not requested the Sales Manager to sell
Common Stock) furnish or cause to be furnished forthwith to the Sales Manager
11
and to its legal counsel, a written opinion of Xxxxxxx Xxxxx LLP, counsel to the Company
(“Company Counsel”), or other counsel reasonably satisfactory to the Sales Manager, dated the date
of effectiveness of such amendment or the date of filing with the Commission of such document, as
the case may be, in form and substance satisfactory to the Sales Manager, of the same tenor as the
opinion referred to in Section 4.1(d) below, but modified as necessary to relate to the
Registration Statement and the Prospectus as amended and supplemented to the time of delivery of
such opinion; provided , however that in lieu of such opinion, the Company may furnish the Sales
Manager with a letter from Company Counsel to the effect that the Sales Manager may rely on the
prior opinion delivered pursuant to Section 4.1(d) below to the same extent as if it were dated the
date of such letter (except that statements in such prior opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended or supplemented to the time of delivery of
such letter).
(o) Each time that a post-effective amendment to the Registration Statement is declared
effective or the Company files an Annual Report on Form 10-K, and at such other times as may be
reasonably requested by the Sales Manager, the Company shall (unless the Company is not then
selling Common Stock through the Sales Manager and has not requested the Sales Manager to sell
Common Stock) cause Ernst & Young LLP, or other independent accountants then retained by the
Company, forthwith to furnish to the Sales Manager a letter, dated the date of effectiveness of
such amendment, or the date of filing of such supplement or other document with the Commission, as
the case may be, in form and substance satisfactory to the Sales Manager, of the same tenor as the
letter referred to in Section 4.1(e) below but modified to relate to the Registration Statement and
the Prospectus, as amended and supplemented to the date of such letter.
(p) The Company represents and agrees that, unless it obtains the prior consent of the Sales
Manager, and the Sales Manager represents and agrees that, unless it obtains the prior consent of
the Company, it has not made and will not make any offer relating to the Common Stock that would
constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing
prospectus” as defined in Rule 405, required to be filed with the Commission. Any such free
writing prospectus consented to by the Company and the Sales Manager is hereinafter referred to as
a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that
it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as
defined in Rule 433 of the Act, and has complied and will comply with the requirements of Rules 164
and 433 of the Act, as applicable to any Permitted Free Writing Prospectus, including timely
Commission filings where required, legending and record keeping.
For the purposes of this Section, “Issuer Free Writing Prospectus” means any “issuer free
writing prospectus,” as defined in Rule 433 of the Act, relating to the Common Stock in the form
filed or required to be filed with the Commission or, if not required to be filed, in the form
retained in the Company’s records pursuant to Rule 433(g) of the Act.
Notwithstanding the foregoing, the Company shall not be required to obtain the consent of the
Sales Manager with respect to the offering of any securities other than Common Stock or any
“follow-on” offering of Common Stock pursuant to an Issuer Free Writing Prospectus.
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ARTICLE IV
CONDITIONS OF THE SALES MANAGER’S OBLIGATIONS
4.1 The obligations of the Sales Manager to sell the Common Stock as provided herein shall be
subject to the accuracy, as of the date hereof, and as of each Settlement Date contemplated under
this Agreement, of the representations and warranties of the Company herein, to the performance by
the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has been declared effective. No stop order suspending the
effectiveness of the Registration Statement shall have been issued and no proceeding for that
purpose shall have been instituted or, to the knowledge of the Company or the Sales Manager,
threatened by the Commission, and any request of the Commission for additional information (to be
included in the Registration Statement or the Prospectus or otherwise) shall have been complied
with to the Sales Manager’s reasonable satisfaction. The Common Stock shall have been listed for
trading on the Trading Market.
(b) The Sales Manager shall not have advised the Company that the disclosures in the
Registration Statement or the Prospectus, or any amendment or supplement thereto, are not
reasonably acceptable to the Sales Manager.
(c) Except as contemplated in the Prospectus, subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, there shall not have been
any material adverse change in the capital stock of the Company, or any material adverse change, or
any development that may reasonably be expected to cause a material adverse change, in the
condition (financial or other), business, net worth or results of operations of the Company, or any
adverse change in the rating assigned to any securities of the Company.
(d) (i) The Sales Manager shall have received at the date of the first sale of Common Stock
hereunder (the “Commencement Date”) and at every other date specified in Section 3.1(n) hereof,
opinions of Company Counsel, dated as of the Commencement Date and dated as of such other date, in
a form reasonably acceptable to the Sales Manager.
(ii) The Sales Manager shall have received a letter from Company Counsel authorizing
the Sales Manager to rely on the opinion on tax matters delivered by Company Counsel as
Exhibit 8.1 to the Registration Statement.
(e) At the Commencement Date and at such other dates specified in Section 3.1(o) hereof, the
Sales Manager shall have received a “comfort letter” from Ernst & Young LLP, independent public
accountants for the Company, or other independent accountants then retained by the Company, dated
the date of delivery thereof, in form and substance satisfactory to the Sales Manager.
(f) The Sales Manager shall have received from the Company a certificate, or certificates,
signed by the Chief Financial Officer and Executive Vice President of the Company, dated as of the
Commencement Date and (unless the Company is not then selling Common Stock
13
through the Sales Manager and has not requested the Sales Manager to sell Common Stock) dated
as of the first business day of each calendar month thereafter and such other times as the Sales
Manager shall request (each, a “Certificate Date”), to the effect that, to the best of their
knowledge based upon reasonable investigation:
(i) The representations and warranties of the Company in this Agreement are true and
correct, as if made at and as of the Commencement Date or the Certificate Date (as the case
may be), and the Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the Commencement Date and
each such Certificate Date (as the case may be);
(ii) No stop order suspending the effectiveness of the Registration Statement has been
issued, and no proceeding for that purpose has been instituted or, to the knowledge of such
officer after due inquiry, is threatened, by the Commission;
(iii) Since the date of this Agreement there has occurred no event required to be set
forth in an amendment or supplement to the Registration Statement or Prospectus that has not
been so set forth and there has been no document required to be filed under the Exchange Act
and the rules and regulations of the Commission thereunder that upon such filing would be
deemed to be incorporated by reference in the Prospectus that has not been so filed; and
(iv) Since the date of this Agreement, there has not been any material adverse change
in the assets or properties, business, results of operations or condition (financial or
otherwise) of the Company, which has not been described in an amendment or supplement to the
Registration Statement or Prospectus (directly or by incorporation).
(g) At the Commencement Date and on each Settlement Date, the Company shall have furnished to
the Sales Manager such appropriate further information, certificates and documents as the Sales
Manager may reasonably request.
(h) At the Commencement Date and on each Settlement Date, the Company shall have listed for
quotation the Common Stock on the Trading Market.
All such opinions, certificates, letters and other documents will be in compliance with the
provisions hereof only if they are satisfactory in form and substance to the Sales Manager. The
Company will furnish the Sales Manager with such conformed copies of such opinions, certificates,
letters and other documents as the Sales Manager shall reasonably request.
ARTICLE V
INDEMNIFICATION AND CONTRIBUTION
5.1 (a) The Company agrees to indemnify and hold harmless the Sales Manager and each person,
if any, who controls the Sales Manager within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, as follows:
14
(i) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of any untrue statement or alleged untrue statement of a material fact
contained in the representations in this Agreement or contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue statement of a material
fact contained in any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including, subject to
Section 5(c) hereof, the reasonable fees and disbursements of legal counsel chosen by the
Sales Manager), reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that any such expense is not
paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss, liability, claim,
damage or expense to the extent arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with written information furnished to
the Company by the Sales Manager expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(b) The Sales Manager agrees to indemnify and hold harmless the Company and its directors and
each officer of the Company who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
against any and all loss, liability, claim, damage and expense described in the indemnity contained
in Section 5.1(a), as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any amendments thereto) or
any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the Company by the Sales Manager
expressly for use in the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto). The total liability of the
Sales Manager under this Section 5.1(b) shall not exceed the total actual sales price of Common
Stock sold by the Sales Manager that is the subject of the dispute.
15
(c) Any indemnified party that proposes to assert the right to be indemnified under this
Article V will, promptly after receipt of notice of commencement of any action against such party
in respect of which a claim is to be made against an indemnifying party or parties under this
Article V, notify each such indemnifying party of the commencement of such action, enclosing a copy
of all papers served, but the omission so to notify such indemnifying party will not relieve the
indemnifying party from any liability that it might have to any indemnified party to the extent it
is not materially prejudiced as a result thereof. If any such action is brought against any
indemnified party and it notifies the indemnifying party of its commencement, the indemnifying
party will be entitled to participate in and, to the extent that it elects by delivering written
notice to the indemnified party promptly after receiving notice of the commencement of the action
from the indemnified party, jointly with any other indemnifying party similarly notified, to assume
the defense of the action, with legal counsel reasonably satisfactory to the indemnified party, and
after notice from the indemnifying party to the indemnified party of its election to assume the
defense, the indemnifying party will not be liable to the indemnified party for any legal or other
expenses except as provided below and except for the reasonable costs of investigation subsequently
incurred by the indemnified party in connection with the defense. The indemnified party will have
the right to employ its own legal counsel in any such action, but the fees, expenses and other
charges of such legal counsel will be at the expense of such indemnified party unless (1) the
employment of legal counsel by the indemnified party has been authorized in writing by the
indemnifying party, (2) the indemnified party has reasonably concluded (based on written advice of
legal counsel) that there may be legal defenses available to it or other indemnified parties that
are different from or in addition to those available to the indemnifying party, (3) a conflict or
potential conflict exists (based on written advice of legal counsel to the indemnified party)
between the indemnified party and the indemnifying party (in which case the indemnifying party will
not have the right to direct the defense of such action on behalf of the indemnified party) or (4)
the indemnifying party has not in fact employed legal counsel to assume the defense of such action
within a reasonable time after receiving notice of the commencement of the action, in each of which
cases the reasonable fees, disbursements and other charges of legal counsel will be at the expense
of the indemnifying party or parties. It is understood that the indemnifying party or parties
shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be
liable for the reasonable fees, disbursements and other charges of more than one separate firm
admitted to practice in such jurisdiction at any one time for all such indemnified party or
parties. All such fees, disbursements and other charges will be reimbursed by the indemnifying
party promptly as they are incurred. An indemnifying party will not be liable for any settlement
of any action or claim effected without its written consent (which consent will not be unreasonably
withheld).
(d) In order to provide for just and equitable contribution in circumstances in which the
indemnification provided for in the foregoing paragraphs of this Article V is applicable in
accordance with its terms but for any reason is held to be unavailable from the Company or the
Sales Manager, the Company and the Sales Manager will contribute to the total losses, claims,
liabilities, expenses and damages (including any investigative, legal and other expenses reasonably
incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding
or any claim asserted, but after deducting any contribution received by the Company from persons
other than the Sales Manager, such as persons who control the Company within the meaning of the
Act, officers of the Company who signed the Registration Statement and directors of the Company,
who also may be liable for contribution) to which the
16
Company and the Sales Manager may be subject in such proportion as shall be appropriate to
reflect the relative benefits received by the Company on the one hand and the Sales Manager on the
other. The relative benefits received by the Company on the one hand and the Sales Manager on the
other hand shall be deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the total compensation (before
deducting expenses) received by the Sales Manager from the sale of Common Stock on behalf of the
Company. If, but only if, the allocation provided by the foregoing sentence is not permitted by
applicable law, the allocation of contribution shall be made in such proportion as is appropriate
to reflect not only the relative benefits referred to in the foregoing sentence but also the
relative fault of the Company, on the one hand, and the Sales Manager, on the other, with respect
to the statements or omission which resulted in such loss, claim, liability, expense or damage, or
action in respect thereof, as well as any other relevant equitable considerations with respect to
such offering. Such relative fault shall be determined by reference to whether the untrue or
alleged untrue statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Sales Manager, the intent of the parties
and their relative knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Sales Manager agree that it would not be just and
equitable if contributions pursuant to this Section 5.1(d) were to be determined by pro rata
allocation or by any other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified party as a result
of the loss, claim, liability, expense or damage, or action in respect thereof, referred to above
in this Section 5.1(d) shall be deemed to include, for the purpose of this Section 5.1(d), any
legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the foregoing provisions of
this Section 5.1(d), the Sales Manager shall not be required to contribute any amount in excess of
the amount by which the total actual sales price at which Common Stock sold by the Sales Manager
exceeds the amount of any damages that the Sales Manager has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged omission and no person
found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) will
be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 5.1(d), any person who controls a party to this
Agreement within the meaning of the Act will have the same rights to contribution as that party,
and each officer and director of the Company who signed the Registration Statement will have the
same rights to contribution as the Company, subject in each case to the provisions hereof. Any
party entitled to contribution, promptly after receipt of notice of commencement of any action
against such party in respect of which a claim for contribution may be made under this Section
5.1(d), will notify any such party or parties from whom contribution may be sought, but the
omission so to notify will not relieve that party or parties from whom contribution may be sought
from any other obligation it or they may have under this Section 5.1(d). No party will be liable
for contribution with respect to any action or claim settled without its written consent (which
consent will not be unreasonably withheld).
(e) The indemnity and contribution provided by this Article V shall not relieve the Company
and the Sales Manager from any liability the Company and the Sales Manager may otherwise have
(including, without limitation, any liability the Sales Manager may have for a breach of its
obligations under Article II hereof).
17
ARTICLE VI
REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY
6.1 All representations, warranties and agreements of the Company herein or in certificates
delivered pursuant hereto, and the agreements of the Sales Manager contained in Article V hereof,
shall remain operative and in full force and effect regardless of any investigation made by or on
behalf of the Sales Manager or any controlling persons, or the Company (or any of their officers,
directors or controlling persons), and shall survive delivery of and payment for the Common Stock.
ARTICLE VII
TERMINATION
7.1 The Company shall have the right, by giving notice as hereinafter specified, to terminate
this Agreement in its sole discretion at any time. Any such termination shall be without liability
of any party to any other party except that the provisions of Section 3.1(h), Article V and Article
VI hereof shall remain in full force and effect notwithstanding such termination.
7.2 The Sales Manager shall have the right, by giving notice as hereinafter specified, to
terminate this Agreement in its sole discretion at any time. Any such termination shall be without
liability of any party to any other party except that the provisions of Article 3.1(h), Article V
and Article VI hereof shall remain in full force and effect notwithstanding such termination.
7.3 This Agreement shall remain in full force and effect unless terminated pursuant to Section
7.1 or 7.2 above or otherwise by mutual agreement of the parties; provided that any such
termination by mutual agreement shall in all cases be deemed to provide that Section 3.1(h),
Article V and Article VI shall remain in full force and effect.
7.4 Any termination of this Agreement shall be effective on the date specified in such notice
of termination; provided that such termination shall not be effective until the close of business
on the date of receipt of such notice by the Sales Manager or the Company, as the case may be. If
such termination shall occur during a period when sales of Common Stock are being made pursuant to
this Agreement, any sales of Common Stock made prior to the termination of this Agreement shall
settle in accordance with the provisions of this Agreement.
ARTICLE VIII
NOTICES
8.1 All notices or communications hereunder shall be in writing and if sent to the Sales
Manager shall be mailed, delivered or telecopied and confirmed to the Sales Manager at Xxxxxxx
Xxxxxxx Securities Corporation, 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
facsimile number (000) 000-0000, Attention: Corporate Finance, or if sent to the Company, shall be
mailed, delivered or telecopied and confirmed to the Company at Capstead
18
Mortgage Corporation, 0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, facsimile
number (000) 000-0000, Attention: Xx. Xxxxxx X. Xxxxxx. Each party to this Agreement may change
such address for notices by sending to the parties to this Agreement written notice of a new
address for such purpose.
ARTICLE IX
MISCELLANEOUS
9.1 This Agreement shall inure to the benefit of and be binding upon the Company and the Sales
Manager and their respective successors and the controlling persons, officers and directors
referred to in Article V hereof, and no other person will have any right or obligation hereunder.
9.2 This Agreement constitutes the entire agreement and supersedes all other prior and
contemporaneous agreements and undertakings, both written and oral, between the parties hereto with
regard to the subject matter hereof.
9.3 THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS
OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS.
9.4 This Agreement may be executed in two or more counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same instrument. The parties
agree that this Agreement will be considered signed when the signature of a party is delivered by
facsimile transmission. Such facsimile transmission shall be treated in all respects as having the
same effect as an original signature.
19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the date hereof.
| CAPSTEAD MORTGAGE CORPORATION |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | SUP & CFO | |||
| XXXXXXX XXXXXXX SECURITIES CORPORATION |
||||
| By: | /s/ Xxxx Xxxxx | |||
| Name: | Xxxx Xxxxx | |||
| Title: | Managing Director | |||
20
SCHEDULE 1.1(f)
List of Significant Subsidiaries
None.
