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EXHIBIT 5(b)
[Letterhead of Xxxxxxxx, Xxxxxx & Finger, PA]
April 23, 1998
Lincoln National Corporation
000 Xxxx Xxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000-0000
Re: Lincoln National Capital III, Lincoln National Capital IV,
Lincoln National Capital V and Lincoln National Capital VI
Ladies and Gentlemen:
We have acted as special Delaware counsel for Lincoln National
Corporation, an Indiana corporation (the "Company"), Lincoln National Capital
III, a Delaware business trust ("Trust III"), Lincoln National Capital IV, a
Delaware business trust ("Trust IV"), Lincoln National Capital V, a Delaware
business trust ("Trust V"), and Lincoln National Capital VI, a Delaware
business trust ("Trust VI") (Trust III, Trust IV, Trust V and Trust VI are
hereinafter collectively referred to as the "Trusts" and sometimes hereinafter
individually referred to as a "Trust"), in connection with the matters set
forth herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our examination
of documents has been limited to the examination of originals or copies of the
following:
(a) The Certificate of Trust of Trust III, as filed with the office of the
Secretary of State of the State of Delaware (the "Secretary of State") on May
20, 1996;
(b) The Certificate of Trust of Trust IV, as filed with the Secretary of
State on April 20, 1998;
(c) The Certificate of Trust of Trust V, as filed with the Secretary of
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State on April 20, 1998;
(d) The Certificate of Trust of Trust VI, as filed with the Secretary of
State on April 20, 1998;
(e) The Trust Agreement of Trust III, dated as of May 20, 1996 among the
Company and the trustees named therein;
(f) The Trust Agreement of Trust IV, dated as of April 20, 1998 among the
Company and the trustees named therein;
(g) The Trust Agreement of Trust V, dated as of April 20, 1998 among the
Company and the trustees named therein;
(h) The Trust Agreement of Trust VI, dated as of April 20, 1998 among the
Company and the trustees named therein;
(i) The Registration Statement (the "Registration Statement") on Form S-3,
including a preliminary prospectus with respect to the Trusts (the
"Prospectus"), relating to the Preferred Securities of the Trusts representing
preferred undivided beneficial interests in the assets of the Trusts (each, a
"Preferred Security" and collectively, the "Preferred Securities"), filed by
the Company and the Trusts with the Securities and Exchange Commission;
(j) A form of Amended and Restated Trust Agreement for each of the Trusts,
to be entered into between the Company, the trustees of the Trust named
therein, and the holders, from time to time, of the undivided beneficial
interests in the assets of such Trust (collectively, the "Trust Agreements" and
individually, a "Trust Agreement"), attached as an exhibit to the Registration
Statement; and
(k) A Certificate of Good Standing for each of the Trusts, dated April
23, 1998, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are used
as defined in the Trust Agreements.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (k) above. In particular,
we have not reviewed any document (other than the documents listed in
paragraphs (a) through (i) above) that is referred to in or incorporated by
reference into the documents reviewed by us. We have assumed that there exists
no provision in any document that we have not reviewed that is inconsistent
with the opinions stated herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon the foregoing
documents, the statements and information set forth therein and the additional
matters recited or assumed herein, all of which we have assumed to be true,
complete and accurate in all material respects.
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With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that each of the Trust
Agreements will constitute the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the applicable Trust, and that the Trust
Agreements and the Certificates of Trust will be in full force and effect and
will not be amended, (ii) except to the extent provided in paragraph 1 below,
the due organization or due formation, as the case may be, and valid existence
in good standing of each party to the documents examined by us under the laws
of the jurisdiction governing its organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to
whom a Preferred Security is to be issued by the Trusts (collectively, the
"Preferred Security Holders") of a Preferred Security Certificate for such
Preferred Security and the payment for such Preferred Security, in accordance
with the Trust Agreements and the Registration Statement, and (vii) that the
Preferred Securities are authenticated, issued and sold to the Preferred
Security Holders in accordance with the Trust Agreements and the Registration
Statement. We have not participated in the preparation of the Registration
Statement or the Prospectus and assume no responsibility for their contents.
This opinion is limited to the laws of the State of Delaware (excluding
the securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal
laws and rules and regulations relating thereto. Our opinions are rendered
only with respect to Delaware laws and rules, regulations and orders thereunder
which are currently in effect.
Based upon the foregoing, and upon our examination of such questions of
law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. Each of the Trusts has been duly created and is validly existing in
good standing as a business trust under the Business Trust Act.
2. The Preferred Securities of each Trust will represent valid and,
subject to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the applicable
Trust.
3. The Preferred Security Holders, as beneficial owners of the
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applicable Trust, will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware. We note that the Preferred
Security Holders may be obligated to make payments as set forth in the Trust
Agreement.
We consent to the filing of this opinion with the Securities and Exchange
Commission as an exhibit to the Registration Statement. We hereby consent to
the use of our name under the heading "Validity of Securities" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7
of the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other person for any purpose.
Very truly yours,
/s/ Xxxxxxxx, Xxxxxx & Finger
EAM
