EXHIBIT 1.1
SunAmerica Inc.
UNDERWRITING AGREEMENT
Common Stock $1.00 par value
July 14, 1997
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
SunAmerica Inc., a Maryland corporation (the "Company",
confirms its agreement to sell, subject to the terms and conditions stated
herein, to Xxxxxx Xxxxxxx & Co. Incorporated (the "Underwriter"), and the
Underwriter, subject to the terms and conditions stated herein, has agreed to
purchase from the Company, 10,669,745 shares ( the "Shares")of common stock,
$1.00 par value ("Common Stock"), of the Company.
SunAmerica Capital Trust III, SunAmerica Capital Trust IV,
SunAmerica Capital Trust V and SunAmerica Capital Trust VI (collectively, the
"SunAmerica Trusts") and the Company have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(Nos. 333-14201, 000-00000-00, 000-00000-00, 000-00000-00 and 333-14201-04)
and pre-effective Amendment Nos. 1 and 2 thereto, including a prospectus and
prospectus supplement, covering the registration of securities of the Company
and the SunAmerica Trusts, including the Shares, under the Securities Act of
1933, as amended (the "1933 Act"), and the offering thereof from time to time
in accordance with Rule 415 of the rules and regulations of the Commission
under the 1933 Act (the "1933 Act Regulations"). Such registration statement,
as so amended, has been declared effective by the Commission. Such
registration statement, as so amended, including the exhibits thereto and the
information, if any, deemed to be a part thereof pursuant to Rule 430A(b) of
the 1933 Act Regulations (the "Rule 430A Information") is referred to herein
as the "Registration Statement;" and the final prospectus and the prospectus
supplement relating to the offering of the Shares in the form first furnished
to the Underwriter by the Company for confirming sales of the Shares, are
collectively referred to herein as the "Prospectus;" provided, however, that
all references to the "Registration Statement" and the "Prospectus" shall be
deemed to include all documents incorporated therein by reference pursuant to
the Securities Exchange Act of 1934, as amended (the "1934 Act") and the rules
and regulations of the Commission under the 1934 Act(the "1934 Act
Regulations"), prior to the execution of this Agreement; provided, further,
that if the Company files a registration statement with the Commission
pursuant to Section 462(b) of the 1933 Act Regulations (the "Rule 462(b)
Registration Statement"), then after such filing, all references to
"Registration Statement" shall be deemed to include the Rule 462(b)
Registration Statement. As used herein, the term "preliminary prospectus"
shall be deemed to refer to any preliminary prospectus supplement specifically
relating to the Shares and the prospectus used before the registration
statement became effective.
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated"
in the Registration Statement, any preliminary prospectus or the Prospectus
(or other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information which is
incorporated by reference in the Registration Statement, any preliminary
prospectus or the Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to mean and include
the filing of any document under the 1934 Act which is incorporated by
reference in the Registration Statement, such preliminary prospectus or the
Prospectus, as the case may be.
1. Representations and Warranties. (a) The Company
represents and warrants to the Underwriter as follows:
(i) 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.
(ii) (a) Each document filed or to be filed
pursuant to the 1934 Act and incorporated by reference in the
Prospectus complied or will comply when so filed in all material
respects with the 1934 Act and the applicable rules and
regulations of the Commission thereunder, (b) 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, (c) the Registration
Statement and the Prospectus comply, and, as amended or
supplemented, if applicable, will comply in all material respects
with the 1933 Act and the applicable rules and regulations of the
Commission thereunder and (d) 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(ii) do not apply to (A) statements or omissions in the
Registration Statement or the Prospectus based upon information
relating to the Underwriter furnished to the Company in writing by
the Underwriter expressly for use therein or (B) to that part of
the Registration Statement that constitutes the Statement of
Eligibility and qualification (Form T 1) under the Trust Indenture
Act of 1939 as amended (the "Trust Indenture Act"), of the Trustee
there under.
(iii) This Agreement and the transactions
contemplated hereby have been duly authorized, and this Agreement
has been duly executed and delivered by the Company.
(iv) 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.
(v) Each of SunAmerica Life Insurance Company,
First SunAmerica Life Insurance Company, Anchor National Life
Insurance Company, SunAmerica Asset Management Corp., Resources
Trust Company, Royal Alliance Associates, Inc., SunAmerica
Securities, Inc. and Ford Life Insurance Company and CalFarm Life
Insurance Company (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.
(vi) 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.
(vii) 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, including
the issuance and sale of the Shares, 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 bylaws 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, including the issuance and sale of the
Shares 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 Shares or such as have
been obtained.
(viii) 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 to 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 1933 Act, the 1933 Act Regulations, the 1934 Act
or the 1934 Act Regulations thereunder, that have not been filed
as required, except that by the Closing Date (as defined herein)
the Company will file on Form 8-K this Agreement and any other
agreements relating to the Shares and the transactions
contemplated hereby that are required to be filed.
(ix) The accountants who certified the
financial statements and supporting schedules 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
1933 Act and the 1933 Act Regulations promulgated thereunder.
(x) 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; and the supporting
schedules included or incorporated by reference in the
Registration Statement or Prospectus present fairly the
information required to be included therein.
(xi) Since the respective dates as of which
information is given in the Registration Statement and Prospectus,
and except as otherwise stated or contemplated therein, (a) 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, (b) there have been no
transactions entered into by the Company or any of its
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 (c) except for
regular quarterly dividends on the Common Stock, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(xii) 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.
(xiii) 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.
(xiv) The Company is not an "investment company"
within the meaning of the Investment Company Act of 1940, as
amended.
(xv) The Shares have been duly authorized and
when issued and delivered in accordance with the terms herein will
be validly issued and fully paid and nonassessable and will
conform in all material respects to the description of the common
stock contained in the Prospectus and the Registration Statement;
and the issuance of such Shares are not subject to preemptive or
other rights to subscribe for purchase of such Shares.
(xvi) No "forward looking statement" (as defined
in Rule 175 under the Act) contained in the Registration
Statement, any preliminary prospectus or the Prospectus was made
or reaffirmed without a reasonable basis or was disclosed other
than in good faith.
(xvii) The Company recognizes and acknowledges
for all purposes of this Agreement that the only information
relating to the Underwriter furnished to the Company in writing by
the Underwriter 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 name of the Underwriter, the
fourth paragraph, the fifth paragraph and the sixth paragraph
under the caption "The Underwriter" in the Prospectus Supplement.
2. Public Offering. The Company is advised that the
Underwriter proposes to make a public offering of the Shares as soon after
this Agreement has been entered into as in the Underwriter's judgment is
advisable. The terms of the public offering of the Shares are set forth in
the Prospectus.
3. Purchase, Sale and Delivery. Subject to the terms and
conditions herein set forth, the Company agrees to sell to the Underwriter,
and the Underwriter agrees to purchase the Shares for an aggregate purchase
price of $577,499,948 (the "Purchase Price"). Payment for the Shares shall be
made to the Company in Federal or other funds immediately available in New
York City against delivery of the Shares for the account of the Underwriter.
The time and date of such delivery and payment shall be 9:30 a.m., New York
time, on July 17, 1997 or such other time and date as you and the Company may
agree upon in writing. The time and date of such payment are herein referred
to as the "Closing Date." Certificates in definitive or temporary form for
the Shares to be purchased by the Underwriter hereunder, and in such
denominations and registered in such names as the Underwriter may request upon
at least forty-eight hours' prior notice to the Company, shall be delivered by
or on behalf of the Company to you for the account of the Underwriter at the
office of the Underwriter, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000. The
certificates evidencing the Shares shall be delivered to the Underwriter on the
Closing Date with any transfer taxes payable in connection with the transfer
of the Shares to the Underwriter duly paid, against payment for the purchase
price thereof.
4. Covenants of the Company. In further consideration of
the agreements of the Underwriter contained herein, the Company covenants as
follows:
(a) To furnish the Underwriter, without charge, a
conformed copy of the Registration Statement (including exhibits thereto) and,
prior to 5:00 p.m. New York City time on the Business Day next succeeding this
Agreement and during the period mentioned in paragraph (c) below, in each case
without charge, 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 Underwriter may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Shares, to furnish to the
Underwriter a copy of each such proposed amendment or supplement and not to
file any such proposed amendment or supplement to which the Underwriter
reasonably objects.
(c) If, during such period after the first date of the
public offering of the Shares as the Prospectus is required by law to be
delivered in connection with sales by the Underwriter or a 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 Underwriter, and to the dealers (whose names and
addresses the Underwriter will furnish to the Company) to which any of the
Shares may have been sold by the Underwriter 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 Shares for offer and sale
under the securities or Blue Sky laws or insurance securities laws of such
jurisdictions as the Underwriter 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 Shares
by the National Association of Securities Dealers, Inc., if any.
(e) To make generally available to the Company's security
holders and to the Underwriter as soon as practicable an earnings 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 1933 Act and the 1933 Act
Regulations.
(f) During the period mentioned in paragraph (c) above, to
advise the Underwriter 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.
(g) To use its best efforts to list, subject to notice of
issuance, the Shares on the New York Stock Exchange.
(h) Not to, and to cause its subsidiaries not to, without
the prior written consent of the Underwriter directly or indirectly, for a
period of 60 days after the date of the Prospectus, sell, offer to sell, grant
any option for the sale of, or otherwise dispose of, or enter into any
agreement to sell, any Common Stock or any securities convertible into or
exchangeable or exercisable for any shares of Common Stock; provided, however,
that such restrictions 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 of the Prospectus, (ii) in connection
with any employee benefit or incentive plan of the Company or its subsidiaries
or (iii) in connection with the offering of the Shares.
5. Expenses. The Company will pay (i) all expenses
incident to the performance of its obligations under this Agreement, (ii) the
expenses of printing all documents relating to the offering and of the mailing
and delivering of copies thereof to the Underwriter, (iii) the fees and
expenses incurred in connection with the listing of the Shares on the New York
Stock Exchange.
6. Conditions to Closing. The obligations of the
Underwriter hereunder, as to the Shares shall be subject to the condition that
all representations and warranties and other statements of the Company herein
are, at and as of the Closing Date, are true and correct, the condition that
the Company shall have performed all of its obligations hereunder theretofore
to be performed, and the following additional 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 this
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 Underwriter 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 Underwriter shall have received on the Closing
Date opinions of Piper & Marbury L.L.P., Maryland counsel to the Company,
Xxxxx X. Xxxxxx, Esq., Senior 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 Underwriter.
(e) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for
the Underwriter, shall have furnished to you such opinion or opinions, dated
the Closing Date, as you may reasonably request, and the Company shall have
furnished to such counsel such documents as they may request for the purpose
of enabling them to pass upon such matters.
(f) The Underwriter shall have received on the date hereof
and at the Closing Date a letter, dated the date hereof or the Closing Date,
respectively in form and substance satisfactory to the Underwriter, 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 Shares shall have been approved for listing on the
New York Stock Exchange upon notice of issuance.
(h) On the Closing Date, 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.
(i) The Underwriter shall have received a letter from Mr.
Xxx Xxxxx, substantially as set forth in the Prospectus in the last sentence
of the third paragraph under the caption "The Underwriter" and such letter
shall remain in effect and no term theof shall have been violated.
7. 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 1933
Act or Section 20 of the 1934 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 the 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 the Underwriter in writing expressly
for use therein; provided, however, that the foregoing indemnity agreement
with respect to any preliminary prospectus shall not inure to the benefit of
the Underwriter if the person asserting such losses, claims, damages or
liabilities purchased Shares, or any person controlling the 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 the 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.
The Underwriter agrees 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 1933 Act or Section 20 of the 1934 Act to the same extent as
the foregoing indemnity from the Company to the 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 the Underwriter in writing 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 Underwriter 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
Underwriter, 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 7 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 Underwriter
on the other hand from the offering of the Shares 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 Underwriter 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 Underwriter
on the other hand in connection with the offering of the Shares shall be
deemed to be in the same respective proportions as (i) in the case of the
Company, the Purchase Price (before deducting expenses) or (ii) in the case of
the Underwriter, the difference between the aggregate sales price received by
the Underwriter in connection with the resale of the Shares (the "Sales
Price") less the Purchase Price, bears to the Sales Price plus the Purchase
Price, provided, however, that the difference shall not be less than zero.
The relative fault of the Company on the one hand and of the Underwriter 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 Underwriter and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Underwriter agree that it would not be
just or equitable if contribution pursuant to this Section 7 were determined
by pro rata allocation 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 7, the
Underwriter shall not be required to contribute any amount in excess of the
amount by which the Sales Price less the Purchase Price exceeds the amount of
any damages that the 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 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies
provided for in this Section 7 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 7 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 the Underwriter or any person controlling the 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 Shares.
8. Termination. This Agreement shall be subject to
termination, by notice given by the Underwriter to the Company, if (a) after
the execution and delivery of this 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 Underwriter, 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 (iv), such event, singly or together with any other
such event, makes it, in the judgment of the Underwriter, impracticable to
market the Shares on the terms and in the manner contemplated in the
Prospectus.
If this Agreement shall be terminated by the Underwriter
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 Underwriter for all out-of-pocket
expenses (including the fees and disbursements of its counsel) reasonably
incurred by the Underwriter in connection with this Agreement or the offering
of the Shares. Nothing in the foregoing sentence shall limit the Company's
obligations to pay expenses as provided in Section 5.
9. Notices. All statements, requests, notices and
agreements hereunder shall be in writing, and if to the Underwriter shall be
delivered or sent by mail at 0000 Xxxxxxxx, Xxx Xxxx, X.X. 00000, Xxxxxxxxx:
Legal Department; and if to the Company shall be delivered or sent by mail or
facsimile transmission to it at SunAmerica Inc., 1 SunAmerica Center, 1999
Avenue of the Stars, Xxxxxxx Xxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000;
Attention: Xxxxx Xxxxxx. Any such statements, requests, notices or agreements
shall take effect upon receipt thereof.
10. Parties. This Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriter and the Company and, to the
extent provided in Section 7 hereof, the officers and directors of the Company
and each person who controls the Company or the Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Shares from the Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
11. Governing Law. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of New York.
12. Counterparts. This Agreement may be executed by any
one or more of the parties hereto in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
13. Acknowledgment. The Company and the Underwriter
acknowledge that Xxxxx Xxxx & Xxxxxxxx, which is acting as special counsel to
the Company in connection with the offer and sale of the Shares, also acts as
counsel from time to time to one or more of the Underwriter in connection with
unrelated matters. The Company and the Underwriter consent to Xxxxx Xxxx &
Xxxxxxxx so acting as special counsel to the Company. The Company and the
Underwriter also acknowledge that Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
which is acting as counsel to the Underwriter in connection with the offer and
sale of the Shares, also acts as counsel from time to time to the Company and
certain of its affiliates in connection with unrelated matters. The Company
and the Underwriter consent to Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP so
acting as counsel to the Underwriter.
14. 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.
15. Representations and Agreements of the Underwriter.
The Underwriter represents to and agrees with the Company as
follows:
(i) It has not offered or sold, and will not for a period
of six months following consummation of the Offering offer to sell any Shares
persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances that do not constitute an offer to the public in the United
Kingdom for the purposes of the Public Offers of Securities Regulations 1995;
that it has complied with and will comply with all applicable provisions of
the Public Offers of Securities Regulations 1995 and the Financial Services
Xxx 0000 with respect to anything done by it in relation to the Shares in,
from, or otherwise involving the United Kingdom and that it has only issued or
passed on and will only issue or pass on in the United Kingdom any document
received by it in connection with the issue or sale of the Shares to a person
who is of a kind described in Article 11(3) of the Financial Services Xxx 0000
(Investment Advertisements)(Exemptions) Order 1996 or is a person to whom the
document may otherwise lawfully be issued or passed on.
(ii) It has not offered or sold, and will not offer or
sell, directly or indirectly, in Japan or to or for the account of any
resident thereof, any of the Shares, except pursuant to any exemption from the
registration requirements of the Securities and Exchange Law and otherwise in
compliance with applicable provisions of Japanese law and that it will send to
any dealer in Japan who purchases from it any of the Shares a notice stating
in substance that by purchasing such Shares, such dealer represents and agrees
that it has not offered or sold, and will not offer or sell, any of such
Shares, directly or indirectly, in Japan or to or for the account of any
resident thereof except for offers or sales to dealers and except pursuant to
any exemption from the registration requirements of the Securities and
Exchange Law and otherwise in compliance with applicable provisions of
Japanese law, and will send to any other dealer to whom it sells any of such
Shares a notice containing substantially the same statement as is contained in
this sentence.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Company and the Underwriter.
Very truly yours,
SUNAMERICA INC.
By: /s/ Xxxxx Xxxxxxx
---------------------
Name: Xxxxx Xxxxxxx
Title: Executive Vice
President
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxx XX
------------------------------
Name: Xxxxxxx X. Xxxxxx XX
Title: Principal
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 6(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) the statements in the Prospectus under the caption
"Description of Capital Stock" insofar as such statements
constitute summaries of the legal matters or charter documents
referred to therein, fairly present the matters referred to
therein;
(iii) the execution and delivery of the Underwriting
Agreement and the consummation of the transactions contemplated
therein, will not result in any violation of the provisions of the
charter 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);
(iv) the shares of Shares have been duly authorized and
when issued and delivered by the Company in accordance with the
provisions of the Underwriting Agreement will be validly issued,
fully paid and nonassessable and the issuance of such Shares is
not subject to any preemptive or other similar rights arising by
law;
(v) the forms of certificates used to evidence the
Shares comply with all applicable statutory requirements; and
(vi) 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, Senior Vice President and
General Counsel--Corporate Affairs of the Company, to be delivered pursuant to
Section 6(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 is 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, considered as one enterprise;
(ii) the authorized, issued and outstanding capital
stock of the Company is correctly set forth in the Prospectus
under "Description of Capital Stock" as of October 31, 19967;
(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 and 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 subsidiary 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 Underwriter
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) to the best of such counsel's knowledge and
information, the issuance and delivery of the Shares, the
execution of the Underwriting Agreement and the consummation of
the transactions contemplated 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 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 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 charter 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 authorization, consent, or approval of, or other
order by any court or administrative or governmental authority or
agency is required for the performance by the Company of its
obligations under the Underwriting Agreement, except such as may
be required by the 1933 Act or the 1933 Act Regulations, 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 or the
Prospectus, other than those 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) (1) such counsel is of the opinion that each
document, if any, filed pursuant to the 1934 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 1934 Act and the applicable rules and
regulations of the Commission thereunder, (2) nothing has come to
the attention of such counsel that would lead such counsel to
believe that (except for financial statements, supporting
schedules and other financial data included or incorporated by
reference therein and except for the parts of the Registration
Statement that constitute the Form T-1s, 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
this Agreement contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, (3)
such counsel is of the opinion that the Registration Statement, as
of its effective date, and the Prospectus, as of the Closing Date
(except in each case for financial statements, supporting
schedules and other financial data included or incorporated by
reference therein and except for the parts of the Registration
Statement that constitute the Form T-1s, 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 1933 Act and the applicable rules and
regulations of the Commission thereunder and (4) nothing has come
to the attention of such counsel that would lead such counsel to
believe that (except for financial statements, supporting
schedules and other financial data included or incorporated by
reference therein and except for the parts of the Registration
Statement that constitute the Form T-1s, as to which such counsel
need not express any belief) the Prospectus as of the date such
opinion is delivered contains an untrue statement of a material
fact or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; and
(viii) the Registration Statement is effective under the
1933 Act, and to the best of such counsel's knowledge and
information, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 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 6(d) of the Underwriting
Agreement, shall be to the effect that:
(i) The statements in the Prospectus under the caption
" Certain U. S. Federal Income Tax Considerations For Non-U.S.
Holders of Common Stock" in so far as such statements constitute
summaries of the legal matters or documents referred to therein,
fairly summarize, in all material respects, such legal matters or
documents.
(ii) Nothing has come to the attention of such counsel
that would lead such counsel to believe that (except for
financial statements, supporting schedules and other financial
data included or incorporated by reference therein and except
for those parts of the Registration Statement that constitute
the Form T-1s, 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 this Agreement contained
any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, (2) such counsel 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 except for those parts of the Registration
Statement that constitute the Form T-1s, 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 1933 Act and the applicable rules and
regulations of the Commission thereunder and (3) nothing has
come to the attention of such counsel that would lead such
counsel to believe that (except for financial statements,
supporting schedules and other financial data included or
incorporated by reference therein and except for those parts of
the Registration Statement that constitute the Form T-1s, as to
which such counsel need not express any belief) the Prospectus
as of the date such opinion is delivered contains any untrue
statement of a material fact or omits to state 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) The Registration Statement is effective under the
1933 Act and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act, and no proceedings for such
purpose are pending before or threatened by the Commission.
(iii) The Company is not an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
(iv) To the best of such counsel's knowledge and
information, no authorization, consent or approval of, or other
order by, 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 Shares and sale of the
Shares by the Company pursuant to the terms of the Underwriting
Agreement, except such as may be required under the 1933 Act, the
1934 Act or by the securities or Blue Sky laws or insurance
securities laws of the various states or except such as have been
obtained.
With respect to the opinion set forth in paragraph (ii),
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.
