EXHIBIT 1.1
UNDERWRITING AGREEMENT
October 26, 1995
SunAmerica Inc.
0 XxxXxxxxxx Xxxxxx
Xxxxxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Dear Ladies and Gentlemen:
We (collectively, the "Manager") are acting on behalf of the
underwriter or underwriters (including ourselves) named below (such
underwriter or underwriters being herein called the "Underwriters"), and we
understand that SunAmerica Inc. a Maryland corporation (the "Company"),
proposes to issue and sell 4,000,000 shares (the "Firm Securities") of its
$3.10 Depositary Shares (the "Depositary Shares") and not more than 600,000 of
its Depositary Shares (the "Additional Securities"), if any, to the extent we
shall have determined to exercise, on behalf of the Underwriters, the right to
purchase such Additional Securities on the terms described below. The Firm
Securities and the Additional Securities are hereinafter collectively referred
to herein as the "Offered Securities."
Each Depositary Share will represent one-fiftieth of a share of
Series E Mandatory Conversion Premium Dividend Preferred Stock (the "Preferred
Securities") of the Company. The Preferred Securities will, when issued, be
deposited by the Company against delivery of Depositary Receipts ("Depositary
Receipts")to be issued by The Bank of New York, as depositary (the
"Depositary"), under a Deposit Agreement dated as of November 1, 1995 (the
"Deposit Agreement") among the Company, the Depositary and the holders from
time to time of the Depositary Receipts issued thereunder. Each Depositary
Receipt will represent one or more Depositary Shares.
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, the respective number of Firm
Securities set forth below opposite their names at a purchase price per
Offered Security of $60.2950:
Number of shares of
Name Firm Securities
---- --------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated...................... 973,334
Xxxxxx Xxxxxxx & Co. Incorporated............. 973,333
Xxxxxxx, Sachs & Co. ......................... 973,333
Xxxx Xxxxxx Xxxxxxxx Inc...................... 120,000
X.X. Xxxxxx Securities Inc.................... 120,000
Xxxxxxxxxxx & Co., Inc........................ 120,000
Xxxxxxxx Wertheim & Co. Incorporated.......... 120,000
Xxxx Xxxxxxxx Incorporated.................... 60,000
EVEREN Securities, Inc........................ 60,000
Forum Capital Markets L. P.................... 60,000
Xxxxxx Xxxx Incorporated...................... 60,000
Xxxxxxxxx & Company, Inc...................... 60,000
Xxxxxx X. Xxxxx & Co.......................... 60,000
Parallax Group, Inc. ......................... 60,000
Xxxxx Xxxxxxx Inc. ........................... 60,000
Wedbush Xxxxxx Securities..................... 60,000
Wheat, First Securities, Inc.................. 60,000
---------
4,000,000
On the basis of the representations and warranties contained in
this Agreement, and subject to its terms and conditions, the Company agrees to
sell to the Underwriters the Additional Securities, and the Underwriters shall
have a one-time right to purchase, severally and not jointly, all or a part of
the Additional Securities at the purchase price per Offered Security listed
above. Additional Securities may be purchased solely for the purpose of
covering over-allotments made in connection with the offering of the Firm
Securities. If any Additional Securities are to be purchased, each
Underwriter agrees, severally and not jointly, to purchase the number of
Additional Securities (subject to such adjustments to eliminate fractional
securities as you may determine) that bears the same proportion to the total
number of Additional Securities to be purchased as the amount of Firm
Securities set forth above opposite the name of such Underwriter bears to the
total amount of Firm Securities.
The Underwriters will pay for the Firm Securities upon delivery
thereof at the offices of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
in New York City, and payment of the purchase price for the Firm Securities
shall be made at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx, Los
Angeles, at 10:00 a.m. (New York time) on November 1, 1995, or at such other
time, not later than 5:00 p.m. (New York time) on November 6, 1995, as shall
be designated by the Manager. The time and date of such payment and delivery
are hereinafter referred to as the "Closing Date."
The Underwriters will pay for any Additional Securities upon
delivery thereof at the offices of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated in New York City, and payment of the purchase price for the
Additional Securities shall be made at the offices of Skadden, Arps, Slate,
Xxxxxxx & Xxxx, Los Angeles, at 10:00 a.m. (New York time), on such date
(which may be the same as the Closing Date but shall in no event be earlier
than the Closing Date nor later than the date ten business days after the
giving of the notice hereinafter referred to) as shall be designated in a
written notice from the Manager to the Company of our determination, on behalf
of the Underwriters, to purchase an aggregate number, specified in said
notice, of Additional Securities, as shall be designated in writing by us.
Such notice of determination to exercise the option to purchase Additional
Securities and of the designated Option Closing Date (defined below) may be
given by the Manager at any time during the 30 days after the date of this
Agreement. The designated time and date of such payment and delivery are
hereinafter referred to as the "Option Closing Date."
The Offered Securities shall have the terms set forth in the
Prospectus dated September 29, 1995, and the Prospectus Supplement dated
October 26, 1995, including the following (with the terms of the Preferred
Securities being established to reflect that each Offered Security represents
one-fiftieth of a Preferred Security):
Terms of Offered Securities
Aggregate Number of
Firm Securities: 4,000,000
Aggregate Number of
Additional Securities: 600,000
Initial Public Offering
Price: $62.00 per share
Purchase Price: $60.295 per share
Closing Date: November 1, 1995
Annual Dividend Rate: $3.10 per share
Initial Call Price: $81.00 per share
Daily Call Price Decline
Rate: $.006111 per share
Initial Premium for
Business Combinations: $6.60 per share
Daily Premium Decline Rate: $.006111 per share
Lock-Up Securities and
Lock-Up Period: Any securities similar to the
Offered Securities, the Preferred
Securities or the Company's
Common Stock; 60 days from the
date hereof
The Company hereby agrees that, without our prior written consent,
it will not, and will cause its subsidiaries not to, directly or indirectly,
sell, offer to sell, contract to sell, grant any option for the sale of or
otherwise dispose of or enter into any agreement to sell any shares of the
securities listed above as "Lock-Up Securities," or any securities convertible
into or exchangeable for Lock-Up Securities, for the period listed above as
the "Lock-Up Period" in respect of such Lock-Up Securities; provided, however,
that such restriction shall not affect the ability of the Company or its
subsidiaries to take any such action (i) as a consequence of obligations under
securities outstanding prior to the date hereof, (ii) in connection with any
employee benefit or incentive plans of the Company or its subsidiaries or
(iii) in connection with the offering of the Offered Securities contemplated
hereby.
All provisions contained in the document entitled SunAmerica Inc.
Underwriting Agreement Standard Provisions (Equity Securities) dated September
29, 1995, a copy of which is attached hereto, are herein incorporated by
reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein,
except that if any term defined in such document is otherwise defined herein,
the definition set forth herein shall control.
The Company will pay all expenses incident to the performance of
its obligations under this Agreement and will pay the expenses of printing all
documents relating to the offering and of the mailing and delivering of copies
thereof to the Underwriters and any fees charged by investment rating agencies
for rating the Offered Securities or the Preferred Securities.
The Company recognizes and acknowledges for all purposes of this
Agreement that the only information relating to any underwriter furnished to
the Company in writing by such Underwriter through the Manager expressly for
use in the Registration Statement or the Prospectus consists of the last
paragraph on the cover page of the Prospectus Supplement, and the names of the
Underwriters, the second paragraph and the last paragraph under the caption
"Underwriting" in the Prospectus Supplement.
Please confirm your agreement by having an authorized officer sign
a copy of this Agreement in the space set forth below.
Very truly yours,
XXXXXXX XXXXX & CO.,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXX, SACHS & CO.,
Acting severally on behalf of themselves and the several Underwriters named
herein
By: Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By: _______________________
Name:
Title:
Accepted:
SUNAMERICA INC.
By: _______________________
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President and Treasurer
SUNAMERICA INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(EQUITY SECURITIES)
September 29, 1995
From time to time, SunAmerica Inc., a Maryland corporation (the
"Company"), may enter into one or more underwriting agreements that provide
for the sale of designated securities to the several underwriters named
therein. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement").
The Underwriting Agreement, including the provisions incorporated therein by
reference, is herein referred to as this Agreement. Terms defined in the
Underwriting Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including a
prospectus, relating to the Offered Securities and has filed with, or
transmitted for filing to, or shall promptly hereafter file with or transmit
for filing to, the Commission a prospectus supplement (the "Prospectus
Supplement") specifically relating to the Offered Securities pursuant to Rule
424 under the Securities Act of 1933, as amended (the "Securities Act"). The
term "Registration Statement" means such registration statement, including the
exhibits thereto, as amended to the date of this Agreement. The term "Basic
Prospectus" means the prospectus included in the Registration Statement at the
time of effectiveness relating to senior and subordinated debt securities,
preferred stock and common stock of the Company and warrants to purchase the
foregoing. The term "Prospectus" means the Basic Prospectus together with the
Prospectus Supplement. The term "preliminary prospectus" means a preliminary
prospectus supplement specifically relating to the Offered Securities,
together with the Basic Prospectus. As used herein, the terms "Basic
Prospectus," "Prospectus" and "preliminary prospectus" shall include in each
case the documents, if any, incorporated by reference therein. The terms
"supplement" and "amendment" or "amend" as used herein shall include all
documents deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
The term "Depositary Shares" means the Depositary Shares of the
Company specified in the Underwriting Agreement, each Depositary Share
representing the portion specified in the Underwriting Agreement of a share of
the series of a share of the series of Preferred Stock, no par value, of the
Company (the "Preferred Stock") specified in the Underwriting Agreement. The
Preferred Stock will, when issued, be deposited by the Company against
delivery of Depositary Receipts ("Depositary Receipts") to be issued by the
Bank of New York, as depositary (the "Depositary"), under a Deposit Agreement
(the "Deposit Agreement") among the Company, the Depositary and the holders
from time to time of the Depositary receipts issued thereunder. Each
Depositary receipt will represent one or more Depositary Shares. If
Depositary Shares are being sold pursuant to the Underwriting Agreement then,
as used herein, term Depositary Shares also means the Offered Securities.
1. Representations and Warranties. The Company represents
and warrants to each of the Underwriters that:
(a) The Registration Statement (including the most recent
post-effective amendment thereto, if any) has been declared effective by the
Commission; no stop order suspending the effectiveness of the Registration
Statement is in effect, and no proceedings for such purpose are pending before
or threatened by the Commission.
(b) (i) Each document filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part
of the Registration Statement, when such part became effective, did not
contain, and each such part, as amended or supplemented, if applicable, will
not contain any 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 Registration Statement, since the
later of the date it became effective and the date of the most recent
post-effective amendment, if any, will not fail to reflect any facts or events
which individually or in the aggregate represent a fundamental change in the
information set forth in the Registration Statement as of such date, (iii) the
Registration Statement and the Prospectus comply, and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any 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 representations and warranties set forth
in this Section 1(b) do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to
any Underwriter furnished to the Company in writing by such Underwriter
through the Manager expressly for use therein.
(c) This Agreement and the transactions contemplated hereby
have been duly authorized, and this Agreement has been duly executed and
delivered by the Company.
(d) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Maryland, with corporate power and authority to own, lease and operate its
properties and to conduct its business as presently conducted and as described
in the Registration Statement and Prospectus; and the Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or be in good standing would not have a
material adverse effect on the condition, financial or otherwise, or the
earnings or business affairs of the Company and its subsidiaries, considered
as one enterprise.
(e) Each of SunAmerica Insurance Company, First SunAmerica
Life Insurance Company, Anchor National Life Insurance Company, SunAmerica
Asset Management Corp., Resources Trust Company, Royal Alliance Associates,
Inc. and SunAmerica Securities, Inc. (together, the "Subsidiaries") has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the corporate
power and authority to own, lease and operate its properties and to conduct
its business as presently conducted and as described in the Registration
Statement and Prospectus, and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify or
be in good standing would not have a material adverse effect on the condition,
financial or otherwise, or the earnings or business affairs of the Company and
its subsidiaries, considered as one enterprise; and all of the issued and
outstanding capital stock of each Subsidiary has been duly authorized and
validly issued, is fully paid and nonassessable and is owned (except for
directors qualifying shares) directly or through subsidiaries, by the Company,
free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity.
(f) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Registration Statement and Prospectus
(except for subsequent issuances, if any, pursuant to reservations, stock
option agreements, employee benefit plans or the exercise of convertible
securities which may be referred to in the Registration Statement and
Prospectus); all of the issued and outstanding shares of capital stock have
been duly authorized and validly issued and are fully paid, nonassessable and
not subject to any preemptive or similar rights.
(g) The shares of Preferred Stock represented by the
Depositary Shares have been duly authorized and, when delivered to and paid
for by the Underwriters in accordance with the terms of the Underwriting
Agreement, the Preferred Stock will be validly issued, fully paid and
non-assessable.
(h) None of the Company nor any of the Subsidiaries is in
violation of its respective charter or bylaws, as applicable, or in default
in the performance of any material obligation, agreement, covenant or
condition contained in any material contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or any of
the Subsidiaries is a party or by which any of them may be bound, or to
which any of the property or assets of the Company or of any of the
Subsidiaries is subject, or in violation of any applicable law,
administrative regulation or administrative or court order or decree, which
violation or default would, singly or in the aggregate, have a material
adverse effect on the condition, financial or otherwise, or the earnings or
business affairs of the Company and its subsidiaries, considered as one
enterprise; and the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement and the
Deposit Agreement and the issuance and sale of the Offered Securities and
the deposit of the Preferred Stock in accordance with the Deposit
Agreement, will not conflict with or constitute a breach of, or a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of the
Subsidiaries pursuant to, any material contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or any of
the Subsidiaries is a party or by which any of them may be bound, or to
which any of the property or assets of the Company or any of the
Subsidiaries is subject, except for a conflict, breach, default, lien,
charge or encumbrance which would not have a material adverse effect on the
condition, financial or otherwise, or the earnings or business affairs of
the Company and its subsidiaries considered as one enterprise, nor will
such action result in any violation of the provisions of the articles of
incorporation or by-laws of the Company or any of the Subsidiaries or any
applicable law, administrative regulation or administrative or court decree
and no consent, approval, authorization or order of or qualification with
any governmental body or agency is required for the performance by the
Company of its obligations under this Agreement or the issuance and sale of
the Offered Securities, except such as may be required by the securities or
Blue Sky laws or insurance securities laws of the various states in
connection with the offer and sale of the Offered Securities.
(i) There are no legal or governmental proceedings pending or,
to the knowledge of the Company threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or
any of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or which are
reasonably likely to result in any material adverse change in the condition,
financial or otherwise, or in the earnings or business affairs of the Company
and its subsidiaries, considered as one enterprise, or which would be
reasonably likely to materially and adversely affect a material portion of the
properties or assets thereof or which is reasonably likely to materially and
adversely affect the consummation of this Agreement; all pending legal or
governmental proceedings to which the Company or any of its subsidiaries is a
party or of which any of their respective property or assets is the subject
which are not described in the Registration Statement or the Prospectus,
including ordinary routine litigation incidental to the business of the
Company or any of its subsidiaries, are, considered in the aggregate, not
material; and there are no contracts or documents that are required to be
filed as exhibits to the Registration Statement by the Securities Act, the
Exchange Act or the rules and regulations thereunder, that have not been filed
as required, except that on the business day following the date of the
Underwriting Agreement, the Company will file on Form 8-K certain exhibits
relating to the Depositary Shares, the Preferred Stock and the transactions
contemplated hereby.
(j) Price Waterhouse LLP, the accountants who certified the
financial statements and supporting schedules of the Company included or
incorporated by reference in the Registration Statement and Prospectus, are
independent public accountants with respect to the Company and the
subsidiaries of the Company as required by the Securities Act and the rules
and regulations promulgated thereunder.
(k) The financial statements of the Company included or
incorporated by reference in the Registration Statement or Prospectus present
fairly the financial position of the Company and the consolidated subsidiaries
of the Company as of the dates indicated and the results of their operations
for the periods specified; except as otherwise stated in the Registration
Statement and Prospectus, said financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis; the ratios of earnings to combined fixed charges (including
preferred stock dividends) included in the Registration Statement or
Prospectus have been calculated in compliance with Item 503(d) of Regulation
S-K of the Commission; and the supporting schedules included or incorporated
by reference in the Registration Statement or Prospectus present fairly the
information required to be included therein.
(l) Since the respective dates as of which information is
given in the Registration Statement and Prospectus, and except as otherwise
stated or contemplated therein, (i) there has been no material adverse change
and no development involving a prospective material adverse change in the
condition, financial or otherwise, or in the earnings or business affairs of
the Company and its subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, (ii) there have been no
transactions entered into by the Company or any of the Subsidiaries which are
material to the Company and its subsidiaries, considered as one enterprise,
other than those entered into in the ordinary course of business and (iii)
except for regular quarterly dividends, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class of
its capital stock.
(m) The Company and the Subsidiaries possess such
certificates, authorizations or permits issued by the appropriate state or
federal regulatory agencies or bodies as are necessary to conduct the business
as now conducted by them and as described in the Registration Statement or
Prospectus, except where the failure to so possess such certificates,
authorizations or permits would not have a material adverse effect on the
condition, financial or otherwise, or the earnings or business affairs of the
Company and its subsidiaries, considered as one enterprise; and neither the
Company nor any of the Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, is reasonably
likely to have a material adverse effect on the condition, financial or
otherwise, or the earnings or business affairs of the Company and its
subsidiaries, considered as one enterprise.
(n) Neither the Company nor any of its affiliates is
presently doing business with the government of Cuba or with any person or
affiliate located in Cuba.
(o) There are no holders of securities of the Company with
currently exercisable registration rights to have any securities registered as
part of the Registration Statement or included in the offering contemplated by
this Agreement.
(p) Assuming due authorization, execution and delivery of
the Deposit Agreement by the Depositary, each Depositary Share will
represent an interest in the portion specified in the Underwriting
Agreement of a share of a validly issued, outstanding, fully paid and
nonassessable share of Preferred Stock; assuming due execution and delivery
of the Depositary Receipts by the Depositary pursuant to the Deposit
Agreement, the Depositary Receipts will entitle the holders thereof to the
benefits provided therein and in the Deposit Agreement.
(q) The Deposit Agreement has been duly authorized and, as of
the Closing Date, will have been duly executed and delivered by the Company.
(r) The Offered Securities, the Preferred Stock and the Common
Stock issuable upon conversion or redemption of the Preferred Stock conform in
all material respects to the respective statements relating thereto contained
in the Prospectus and the Registration Statement.
(s) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(t) The shares of Common Stock, par value $1 per share (the
"Common Stock"), initially reserved for issuance upon conversion of the
Preferred Stock (the "Underlying Securities") have been duly authorized and
have been or, in the case of any shares of Common Stock issuable at the
Company's option upon redemption of the Preferred Stock, such shares will be,
prior to their issuance, validly reserved for issuance.
(u) When the Underlying Securities are issued upon conversion
of the Preferred Stock in accordance with the terms of the Articles
Supplementary governing the Preferred Stock (the "Articles Supplementary"),
such Underlying Securities will be validly issued, fully paid and
non-assessable and will not be subject to any preemptive or other right to
subscribe for or purchase such Underlying Securities.
2. Public Offering. The Company is advised by the Manager
that the Underwriters propose to make a public offering of their respective
portions of the Underwriters' Securities as soon after this Agreement has been
entered into as in the Manager's judgment is advisable. The terms of the
public offering of the Underwriters' Securities are set forth in the
Prospectus.
3. Purchase and Delivery. Payment for the Offered Securities
to be purchased by the Underwriters on the Closing Date or the Option Closing
Date, as the case may be, shall be made by certified or official bank check or
checks payable to the order of the Company in New York Clearing House or
similar next-day funds at the time and place set forth in the Underwriting
Agreement, upon delivery to the Manager for the respective accounts of the
several Underwriters of the Offered Securities in certificated form,
registered in such names and in such denominations as the Manager shall
request in writing not less than one full business day prior to the date of
delivery, with any transfer taxes payable in connection with the transfer of
the Offered Securities to the Underwriters duly paid.
4. Conditions to Closing. The several obligations of the
Underwriters hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such
purpose are pending before or threatened by the Commission.
(b) Subsequent to the execution and delivery of the
Underwriting Agreement and prior to the Closing Date, there shall not
have occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations,
of the Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus.
(c) The Manager shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive
officer of the Company, to the effect set forth in clauses (a) and
(b) above and to the effect that the representations and
warranties of the Company contained in this Agreement are true and
correct as of the Closing Date and that the Company has complied
with all of the agreements and satisfied all of the obligations on
its part to be performed or satisfied on or before the Closing
Date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date
opinions of Piper & Marbury L.L.P., Maryland counsel to the Company,
Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel--Corporate
Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel
to the Company, dated the Closing Date, to the effect set forth in
Exhibits A, B and C, respectively. In giving such opinion, Xx.
Xxxxxx may rely, as to matters governed by laws other than the laws
of the State of California and the federal law of the United States
of America, on an opinion or opinions of Xxxxx Xxxx & Xxxxxxxx and
Xxxxx & Xxxxxxx L.L.P., and Xxxxx Xxxx & Xxxxxxxx may rely, as to
matters governed by laws other than the laws of the State of New York
and the federal law of the United States of America, on an opinion of
Piper & Marbury L.L.P., in each case so long as such opinion shall be
dated the Closing Date and in form and substance satisfactory to the
Manager, and shall expressly permit the Underwriters to rely thereon
as if such opinion were addressed to Underwriters.
(e) The Manager shall have received on the Closing Date an
opinion of special counsel for the Underwriters (the selection of
whom shall be approved by the Company), dated the Closing Date, to
the effect set forth in paragraphs (i), (ii), (iii) and (iv) in
Exhibit A and paragraphs (i), (ii), (iv)(2) and (3), (v) and (vi) in
Exhibit C. In giving such opinion, such counsel may rely, as to
matters governed by laws other than the federal law of the United
States of America, on an opinion or opinions of local counsel
satisfactory to the Manager, so long as each such opinion shall be
dated the Closing Date and in form and substance satisfactory to the
Manager, and shall expressly permit the Underwriters to rely thereon
as if such opinion were addressed to Underwriters.
(f) The Manager shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance satisfactory to
the Manager, from the Company's independent public accountants,
containing statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters in accordance with
AICPA standards, with respect to the financial statements and certain
financial information contained in or incorporated by reference into
the Prospectus.
(g) The Offered Securities and the Underlying Securities
shall have been approved for listing on the New York Stock Exchange
upon notice of issuance.
(h) On the Closing Date, (i) the Preferred Stock shall have a
rating of at least "Baa2" from Xxxxx'x Investors Service, Inc. and at
least "A-" from Standard & Poor's Corporation as evidenced in a
letter from such rating agencies or by other evidence satisfactory to
the Manager and (ii) no securities of the Company shall have been
downgraded or placed on any "watch list" for possible downgrading by
any nationally recognized statistical rating organization and the
Company shall have delivered to the Manager a letter from such rating
agency (or other evidence satisfactory to the Manager), confirming
that the Preferred Stock has such ratings.
(i) The Manager shall have received a letter from Mr. Xxx
Xxxxx, substantially as set forth in the Prospectus in the last
sentence of the fourth paragraph under the caption "Underwriting,"
and such letter shall remain in effect and no terms thereof shall
have been violated.
The several obligations of the Underwriters to purchase
Additional Securities hereunder are subject to delivery to the Manager on the
Option Closing Date of such opinions, certificates and documents contemplated
by this Section 5 as such Manager shall reasonably request relating to the
issuance of the Additional Securities.
5. Covenants of the Company. In further consideration of the
agreements of the Underwriters contained herein, the Company covenants as
follows:
(a) To furnish the Manager, without charge, a signed copy of
the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the
Registration Statement (without exhibits thereto) and, during the
period mentioned in paragraph (c) below, as many copies of the
Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto or to the Registration Statement
as the Manager may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Offered Securities,
to furnish to the Manager a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement
to which the Manager reasonably objects.
(c) If, during such period after the first date of the public
offering of the Offered Securities as the Prospectus is required by
law to be delivered in connection with sales by an Underwriter or
dealer, any event shall occur or condition exist as a result of which
it is necessary to amend or supplement the Prospectus in order to
make the statements therein, in the light of the circumstances when
the Prospectus is delivered to a purchaser, not misleading, forthwith
to prepare, file with the Commission and furnish, at its own expense,
to the Underwriters, and to the dealers (whose names and addresses
the Manager will furnish to the Company) to which Offered Securities
may have been sold by the Manager on behalf of the Underwriters and
to any other dealer upon request, either amendments or supplements to
the Prospectus so that the statements in the Prospectus as so amended
or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as so amended or supplemented, will comply with law.
(d) To endeavor to qualify the Offered Securities for offer
and sale under the securities or Blue Sky laws or insurance
securities laws of such jurisdictions as the Manager shall reasonably
request and to pay all expenses (including fees and disbursements of
counsel) in connection with such qualification and in connection with
any review of the offering of the Offered Securities by the National
Association of Securities Dealers, Inc.
(e) To make generally available to the Company's security
holders and to the Manager as soon as practicable an earning
statement covering a twelve month period beginning on the first day
of the first full fiscal quarter after the date of this Agreement,
which earning statement shall satisfy the provisions of Section 11(a)
of the Securities Act and the rules and regulations of the Commission
thereunder.
(f) During the period mentioned in paragraph (c) above, to
advise the Underwriters promptly of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or the initiation or threatening of any proceeding for that
purpose.
6. Indemnification and Contribution. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities, joint or several (including, without
limitation, any legal or other expenses reasonably incurred by any Underwriter
or any such controlling person in connection with defending or investigating
any such action or claim), caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
amendment thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with information furnished to the Company by any Underwriter in writing
through the Manager expressly for use therein; provided, however, that the
foregoing indemnity agreement with respect to any preliminary prospectus shall
not inure to the benefit of any Underwriter from whom the person asserting
such losses, claims, damages or liabilities purchased Offered Securities, or
any person controlling such Underwriter, if a copy of the Prospectus (as then
amended or supplemented, if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such Underwriter
to such person, if required by law so to have been delivered, at or prior to
such purchase, and if the Prospectus (as so amended or supplemented) would
have cured the defect giving rise to such losses, claims, damages or
liabilities. This indemnity will be in addition to any liability which the
Company may otherwise have.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the
Company to such Underwriter, but only to the extent that any untrue statement
or omission or alleged untrue statement or omission was made in reliance upon
and in conformity with information furnished to the Company by any Underwriter
in writing through the Manager expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto. This indemnity will be in addition to any liability
which the Underwriters may otherwise have.
In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the two preceding paragraphs,
such person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing and
the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the Manager,
in the case of parties indemnified pursuant to the second preceding paragraph,
and by the Company, in the case of parties indemnified pursuant to the first
preceding paragraph. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first or second
paragraph in this Section 6 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Offered Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Offered Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of such Offered Securities (before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus Supplement, bear to the aggregate public offering
price of the Offered Securities. The relative fault of the Company on the one
hand and of the Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this
Section 6 are several in proportion to the respective principal amounts of
Offered Securities purchased by each of such Underwriters and not joint.
The Company and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 6 were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 6, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Offered Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
remedies provided for in this Section 6 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution provisions contained in this
Section 6 and the representations and warranties of the Company contained
herein shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on
behalf of the Company, its directors or officers or any person controlling the
Company and (iii) acceptance of and payment for any of the Offered Securities.
7. Termination. This Agreement shall be subject to
termination, by notice given by the Manager to the Company, if (a) after the
execution and delivery of the Underwriting Agreement and prior to the Closing
Date (i) trading generally shall have been suspended or materially limited on
or by, as the case may be, the New York Stock Exchange or the American Stock
Exchange, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the
Manager, is material and adverse, or (iv) a general moratorium on commercial
banking activities in New York shall have been declared by either federal or
New York State authorities, and (b) in the case of any of the events specified
in clauses (a)(i) through (iii), such event, singly or together with any other
such event, makes it, in the judgment of the Manager, impracticable to market
the Offered Securities on the terms and in the manner contemplated in the
Prospectus.
8. Defaulting Underwriters. If, on the Closing Date or the
Option Closing Date, as the case may be, any one or more of the Underwriters
shall fail or refuse to purchase Offered Securities that it has or they have
agreed to purchase hereunder on such date, and the aggregate number of Offered
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate number of
the Offered Securities to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the number of Offered
Securities set forth opposite their respective names above bears to the
aggregate number of Offered Securities set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as the Manager
may specify, to purchase the Offered Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the number of Offered Securities that
any Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 8 by a number in excess of one-ninth of such number
of Offered Securities without the written consent of such Underwriter. If, on
the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Offered Securities to be purchased on such date and the aggregate
number of Offered Securities with respect to which such default occurs is more
than one-tenth of the aggregate number of Offered Securities to be purchased
on such date, and arrangements satisfactory to the Manager and the Company for
the purchase of such Offered Securities are not made within 36 hours after
such default, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter or the Company. In any such case either the
Manager or the Company shall have the right to postpone the Closing Date but
in no event for longer then seven days, in order that the required changes, if
any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. If, on the Option Closing Date,
any Underwriter or Underwriters shall fail or refuse to purchase Offered
Securities to be purchased on such date and the aggregate number of Offered
Securities with respect to which such default occurs is more than one-tenth of
the aggregate number of Offered Securities to be purchased on such date, the
non-defaulting Underwriters shall have the option to (i) terminate their
obligation hereunder to purchase Offered Securities to be purchased on such
date or (ii) purchase not less than the number of Offered Securities that such
non-defaulting Underwriters would have been obligated to purchase on such date
in the absence of such default. Any action taken under this paragraph shall
not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement,
or if for any reason the Company shall be unable to perform its obligations
under this Agreement, the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering of the Offered Securities.
Nothing in the foregoing sentence shall limit the Company's obligations to pay
expenses as provided in Section 5.
9. Miscellaneous. The Underwriting Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York.
10. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
11. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same agreement.
Exhibit A
Opinion of Maryland Counsel for the Company
The opinion of Piper & Marbury L.L.P., Maryland counsel for the
Company, to be delivered pursuant to Section 4(d) of the Underwriting
Agreement, shall be limited to the laws of the State of Maryland and shall be
to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws under the
State of Maryland; and the Company has the corporate power under the
laws of the State of Maryland and under its charter to own, lease and
operate its properties and to conduct its business as described in
the Registration Statement and the Prospectus.
(ii) each of the Deposit Agreement and the Underwriting
Agreement have been duly authorized and executed by the Company;
(iii) the Preferred Stock, the Offered Securities and the deposit
of the Preferred Stock in accordance with the Deposit Agreement have
been duly authorized, and when issued and delivered by the Company
pursuant to this Agreement, the Preferred Stock will be validly
issued, and fully paid and non-assessable;
(iv) the statements in the Prospectus under the captions
"Description of the Series E Shares and the Depository Shares --
Series E Shares" and "Description of Capital Stock," in each case
insofar as such statements constitute summaries of the legal matters
or documents or proceedings referred to therein, fairly present the
matters referred to therein;
(v) the execution and delivery of each of the Deposit
Agreement and the Underwriting Agreement and the consummation of the
transactions contemplated therein, will not result in any violation
of the provisions of the articles of incorporation or by-laws of the
Company or, any material applicable law, administrative regulations
or administrative or court decree applicable to the Company (except
that no opinion need be expressed with respect to Maryland securities
or Blue Sky laws);
(vi) the shares of Common Stock issuable upon conversion of the
Preferred Stock have been duly authorized and reserved for issuance
upon such conversion, and such shares, when issued and delivered upon
such conversion in the manner provided in the Articles Supplementary
will be validly issued, fully paid and non-assessable and the
issuance of such shares upon such conversion in the manner provided
in the Articles Supplementary will not be subject to any preemptive
or other similar rights arising by law;
(vii) The forms of certificates used to evidence the Offered
Securities, the Preferred Stock and the Common Stock comply with all
applicable statutory requirements; and
(viii) The Company's Restated Articles of Incorporation filed
with the Maryland State Department of Assessments and Taxation on
October 3, 1991 represented on such date the true, correct and
complete articles of incorporation, as amended, governing the
Company;
Exhibit B
Opinion of Counsel for the Company
The opinion of Xxxxx X. Xxxxxx, Vice President and General
Counsel--Corporate Affairs of the Company, to be delivered pursuant to Section
5(d) of the Underwriting Agreement shall be to the effect that:
(i) to the best of such counsel's knowledge and information,
the Company is duly qualified as a foreign corporation to transact
business and in good standing in each jurisdiction in which such
qualification is required, except where the failure to so qualify or
be in good standing would not have a material adverse effect on the
condition, financial or otherwise, on the earnings or business
affairs of the Company and its subsidiaries, taken as a whole;
(ii) The authorized, issued and outstanding capital stock of
the Company is correctly set forth in the Prospectus under
"Description of the Series E Shares and Depositary Shares--Series E
Shares" and "Description of Capital Stock" as of its date;
(iii) Each Subsidiary has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own, lease and operate its properties and to conduct its
business as presently conducted and as described in the Registration
Statement and Prospectus, it being understood that as to each
Subsidiary other than Anchor National Life Insurance Company, the
foregoing opinion is based solely on a certificate dated as of a
recent date of an appropriate official of the jurisdiction of
incorporation of such subsidiaries and, as applicable, a letter from
CT Corporation System dated as of a recent date as to the good
standing of such Subsidiary in such jurisdiction, copies of which
will be delivered to the Manager on the date of such opinion; nothing
has come to the attention of such counsel to lead such counsel to
believe that any of SunAmerica Life Insurance Company, Anchor
National Life Insurance Company or SunAMerica Asset Management Corp.
is not duly qualified as a foreign corporation to transact business
or is not in good standing in each jurisdiction in which such
qualification is required, except where the failure to so qualify or
be in good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings or business
affairs of the Company and its subsidiaries, considered as one
enterprise; to the best of such counsel's knowledge and information,
all of the issued and outstanding capital stock of each Subsidiary is
owned (except for directors qualifying shares) directly or through
subsidiaries, by the Company, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity;
(iv) the issuance and delivery of the Preferred Stock and
the Common Stock issuable upon conversion of the Preferred Stock,
the execution and delivery of this Agreement and the Deposit
Agreement and the consummation of the transactions contemplated
herein and therein, will not conflict with or constitute a breach
of, or default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property of assets of the
Company or any of the Subsidiaries pursuant to, any material
contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Company or any of the Subsidiaries
is a party or by which it or any of them may be bound, or to which
any of the property or assets of the Company or any of the
Subsidiaries is subject, except for a conflict, breach, default,
lien, charge or encumbrance which would not have a material
adverse effect on the condition, financial or otherwise, or the
earnings or business affairs of the Company and its subsidiaries
considered as one enterprise, nor will such action result in any
violation of the provisions of the articles of incorporation or
by-laws of the Company and the Subsidiaries or any material
applicable law, administrative regulation or administrative or
court decree and, to the best of such counsel's knowledge and
information, no consent, approval, authorization or order of or
qualification with any court or administrative or governmental
authority or agency is required for the performance by the Company
of its obligations under the Underwriting Agreement or the
issuance and sale of the Offered Securities or the Preferred
Stock, except such as may be required by the Securities Act or the
rules and regulations thereunder, the securities or Blue Sky laws
or insurance securities laws of the various states or except such
as have been obtained;
(v) to the best of such counsel's knowledge and information,
there are no statutes or regulations that are required to be
described in the Registration Statement or the Prospectus that are
not described as required and there are no legal or governmental
proceedings pending or threatened which are required to be described
in the Registration Statement, other than these disclosed therein;
(vi) To the best of such counsel's knowledge and information
there are no contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments required to be described or
referred to in the Registration Statement or to be filed as exhibits
thereto, other than those described or referred to therein or filed
as exhibits thereto, the descriptions thereof or references thereto
are correct in all material respects and, to the best of such
counsel's knowledge and information, no default exists in the due
performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage
loan agreement, note, lease or other instrument so described,
referred to or filed, which default could have a material adverse
effect on the Company and its subsidiaries considered as one
enterprise;
(vii) such counsel (1) is of the opinion that each document,
if any, filed pursuant to the Exchange Act and incorporated by
reference in the Prospectus at the time it was filed or last amended
(except for financial statements, supporting schedules and other
financial data included or incorporated by reference therein, as to
which such counsel need not express any opinion) appeared on its face
to be appropriately responsive in all material respects to the
requirements of the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (2) believes that (except
for financial statements, supporting schedules and other financial
data included or incorporated by reference therein, as to which such
counsel need not express any belief) each part of the Registration
Statement, when such part became effective and as of the date of the
Underwriting Agreement did not contain any 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,
(3) is of the opinion that the Registration Statement, as of its
effective date, and the Prospectus, as of the date hereof, (except in
each case for financial statements, supporting schedules and other
financial data included or incorporated by reference therein, as to
which such counsel need not express any opinion) appeared on their
face to be appropriately responsive in all material respects to the
requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder and (4) believes that
(except for financial statements, supporting schedules and other
financial data included or incorporated by reference therein, as to
which such counsel need not express any belief) the Prospectus as of
the date such opinion is delivered does not contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; and
(viii) the Registration Statement is effective under the
Securities Act of 1933, as amended, and to the best of such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement is in effect under the Securities Act, and no
proceedings for such purpose are pending before or threatened by the
Commission.
With respect to the foregoing paragraph, such counsel may
state that her opinion and belief are based upon her participation in the
preparation of the Registration Statement and Prospectus and any amendments,
supplements thereto and documents incorporated therein by reference and review
and discussion of the contents thereof, but are without independent check or
verification, except as specified.
Exhibit C
Opinion of Special Counsel for the Company
The opinion of Xxxxx Xxxx & Xxxxxxxx, special counsel to the
Company, to be delivered pursuant to Section 4(d) of the Underwriting
Agreement shall be to the effect that:
(i) assuming due authorization, execution and delivery by the
Company, the Deposit Agreement is a valid and binding agreement of
the Company, enforceable in accordance with its terms except as (a)
the enforceability thereof may be limited by bankruptcy, insolvency
or similar laws affecting creditors' rights generally and (b) the
availability of equitable remedies may be limited by equitable
principles of general applicability;
(ii) When the Depositary Shares evidenced by the Depositary
Receipts are issued and delivered in accordance with the terms of the
Deposit Agreement against the deposit of duly authorized and issued,
fully paid and nonassessable shares of Preferred Stock, the
Depositary Receipts will entitle the holders thereof to the benefits
provided therein and in the Deposit Agreement;
(iii) the statements in the Prospectus under the captions
"Description of the Series E Shares and the Depositary Shares --
Depositary Shares" and "Federal Income Tax Considerations," insofar
as such statements constitute summaries of the legal matters or
documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters, documents
or proceedings and fairly summarize the matters referred to therein;
(iv) such counsel (1) believes that (except for financial
statements, supporting schedules and other financial data included or
incorporated by reference therein and any of the documents
incorporated by reference therein, as to which such counsel need not
express any belief) each part of the Registration Statement, when
such part became effective and as of the date of the Underwriting
Agreement did not contain any 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, (2) is of
the opinion that the Registration Statement as of its effective date
and the Prospectus as of the date of such opinion (except for
financial statements, supporting schedules and other financial data
included or incorporated by reference therein and any of the
documents incorporated or deemed to be incorporated by reference
therein, as to which such counsel need not express any opinion)
appeared on their face to be appropriately responsive in all material
respects to the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder and (3) believes
that (except for financial statements, supporting schedules and other
financial data included or incorporated by reference therein and any
of the documents incorporated or deemed to be incorporated by
reference therein, as to which such counsel need not express any
belief) the Prospectus as of the date such opinion is delivered does
not contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading; and
(v) the Registration Statement is effective under the
Securities Act and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement is
in effect under the Securities Act, and no proceedings for such
purpose are pending before or threatened by the Commission.
(vi) the Company is not an "investment company" or a Company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(vii) to the best of such counsel's knowledge and information,
no consent, approval, authorization or order of or qualification with
any New York State or federal court or New York State or federal
administrative or governmental authority or agency is required for
the issuance and sale of the Offered Securities, except such as may
be required under the Securities Act, the Exchange Act or by the
securities or Blue Sky laws or insurance securities laws of the
various states or except such as have been allowed.
With respect to the opinion set forth in paragraph (iv), such
counsel may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and the
Prospectus and any amendments or supplements thereto (other than the documents
incorporated by reference) and upon review and discussion of the contents
thereof (including documents incorporated by reference) but are without
independent check or verification, except as specified.
