EXHIBIT 1.1
SunAmerica Inc.
8.5% Premium Equity Redemption Cumulative
Security Units - PERCS Units
(Stated Amount $37.50 Per Security)
UNDERWRITING AGREEMENT
October 31, 1996
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx, Sachs & Co.
Xxxxx Xxxxxx Inc.
As Representatives
(the "Representatives") of
the several Underwriters
c/o Morgan 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
the several Underwriters named in Schedule I hereto (the "Underwriters"), and
the Underwriters, subject to the terms and conditions stated herein, have
agreed to purchase from the Company, 10,000,000 8.5% Premium Equity Redemption
Cumulative Security Units - PERCS Units (the "Firm Securities") of the
Company. Each Security will consist of (a) a stock purchase contract
("Purchase Contract") under which (i) the holder will purchase from the
Company on the Final Settlement Date or an earlier Acceleration Date, for an
amount equal to the Stated Amount, initially one share of Common Stock of the
Company, subject to adjustment under certain circumstances, if such purchase
occurs on the Final Settlement Date or Mandatory Acceleration Date, or such
lesser number of shares of Common Stock as may be payable if such purchase
occurs on a Company Acceleration Date and (ii) the Company will pay the holder
the Contract Fees, and (b) 7.5 % United States Treasury Notes ("Treasury
Notes") having a principal amount equal to $37.50 per Security and maturing on
the Final Settlement Date. In connection therewith, the Underwriters propose,
subject to the terms and conditions stated herein, to purchase and Pledge to
The First National Bank of Chicago, as collateral agent for the Company (the
"Collateral Agent") Treasury Notes bearing interest at the rate of 7.5% per
annum and maturing on October 31, 1999, having an aggregate principal amount
of $375,000,000. The Company proposes to grant the Underwriters an option to
purchase, subject to the terms and conditions stated herein, up to 1,500,000
additional 8.5% Premium Equity Redemption Cumulative Security Units - PERCS
Units (the "Optional Securities") and, in the event any such Optional
Securities are purchased, the Underwriters propose to purchase and Pledge to
the Collateral Agent the additional Treasury Notes (having a principal amount
equal to the Stated Amount times the number of Optional Securities to be
purchased by the Underwriters upon the exercise of such option, and bearing an
identical interest rate and maturity date) underlying such Optional
Securities. The Firm Securities and any Optional Securities are herein called
the "Securities." Capitalized terms used herein without definition shall be
used as defined in the Purchase Contract Agreement to be dated as of the First
Date of Delivery (the "Purchase Contract Agreement"), between the Company and
The Bank of New York, as Purchase Contract Agent (the "Agent").
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 Securities and the Purchase Contracts
and shares of Common Stock underlying the Purchase Contracts and certain
prepaid stock purchase contracts of the Company (the "Prepaid Securities") to
be issued pursuant to a Prepaid Securities Indenture to be dated as of the
First Time of Delivery, as amended by a Supplemental Indenture to be dated as
of November 6, 1996 specifically relating to the Prepaid Securities (as so
amended, the "Prepaid Securities Indenture") between the Company and The Bank
of New York, as trustee), 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 Securities, in the form first furnished to the Underwriters by
the Company for confirming sales of the Securities, 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"), 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 the preliminary prospectus supplement
specifically relating to the Securities 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 each of the Underwriters 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 Regulations of the
Commission thereunder and 1933 Act (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 any Underwriter furnished to the
Company in writing by the Representatives 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 Trustees thereunder.
(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,
Anchor National Life Insurance Company, Resources Trust Company and
Ford 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,
the Purchase Contracts, the Purchase Contract Agreement, the Pledge
Agreement to be dated as of the First Time of Delivery among the
Company, The First National Bank of Chicago, as collateral agent for
the Company, and the Agent (the "Pledge Agreement"), and the Prepaid
Securities Indenture and the issuance and sale of the Securities, the
issuance of the Prepaid Securities and the issuance and sale of the
Common Stock upon settlement of the Securities and the Prepaid
Securities, 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, the Purchase
Contracts, the Purchase Contract Agreement, the Pledge Agreement and
the Prepaid Securities Indenture or the issuance and sale of the
Securities, the issuance of the Prepaid Securities or the issuance and
sale of the Common Stock upon settlement of the Securities and the
Prepaid 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 Securities 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, the Purchase Contracts, the
Purchase Contract Agreements or the Pledge Agreement or the
transactions contemplated hereby or thereby; 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 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 First Time of Delivery (as
defined herein) the Company will file on Form 8-K this Agreement and
certain other agreements relating to the Securities and the
transactions contemplated hereby.
(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; the
ratios of earnings to fixed charges and 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.
(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 Common
Stock of the Company, 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 Securities, including the Purchase
Contracts constituting a part of the Securities, conform in all
material respects to all statements relating to the Securities
contained in the Prospectus and the Registration Statement and have
been duly authorized by the Company and at the Time of Delivery will
have been duly executed and delivered by the Company and constitute
valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except that the Treasury Notes
constituting part of the Securities are obligations of the United
States Government and not of the Company, and except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other similar laws
now or hereafter in effect relating to or affecting creditors' rights
generally and (b) the availability of equitable remedies may be
limited by equitable principles of general applicability (regardless
of whether considered in a proceeding at law or in equity).
(xvi) The shares (the "Shares") of Common Stock to
be issued and sold by the Company pursuant to the Purchase Contracts
or the Prepaid Securities upon settlement thereof, have been duly and
validly authorized and reserved for issuance; such Shares, when issued
and delivered in accordance with the provisions of (a) the Purchase
Contract Agreement and the Pledge Agreement or (b) the Prepaid
Securities Indenture, will be duly authorized, validly issued and
fully paid and nonassessable and will conform in all material respects
to the descriptions 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 Common Stock.
(xvii) The Prepaid Securities have been duly and
validly authorized by the Company for issuance; such Prepaid
Securities, when issued, executed, authenticated and delivered in
accordance with the provisions of the Purchase Contract Agreement, the
Pledge Agreement and the Prepaid Securities Indenture will be valid
and binding agreements of the Company, enforceable in accordance with
their terms except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium and other similar laws now or hereafter in effect relating
to or affecting creditors' rights generally and (b) the availability
of equitable remedies may be limited by equitable principles of
general applicability (regardless of whether considered in a
proceeding at law or in equity). The Prepaid Securities Indenture has
been duly qualified under the Trust Indenture Act of 1939, as amended.
(xviii) The Pledge Agreement, the Purchase Contract
Agreement, and the Prepaid Securities Indenture have been duly
authorized, and at the Time of Delivery will have been duly executed
and delivered by the Company, and, as of the Time of Delivery,
assuming due authorization, execution and delivery by parties other
than the Company thereunder, the Pledge Agreement, the Purchase
Contract Agreement and the Prepaid Securities Indenture will be
valid and binding agreements of the Company, enforceable in
accordance with their terms except as (a) the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium and other similar laws now or
hereafter in effect relating to or affecting creditors' rights
generally and (b) the availability of equitable remedies may be
limited by equitable principles of general applicability
(regardless of whether considered in a proceeding at law or in
equity). The Pledge Agreement, the Purchase Contract Agreement and
the Prepaid Securities Indenture will conform in all material
respects to the descriptions thereof contained in the Prospectus
and the Registration Statement.
(xix) 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.
(xx) 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 the
Underwriters 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 "Underwriters" in
the Prospectus Supplement.
2. Public Offering. The Company is advised by the
Representatives that the Underwriters propose to make a public offering of
their respective portions of the Securities as soon after this Agreement has
been entered into as in the Representatives' judgment is advisable. The terms
of the public offering of the Securities are set forth in the Prospectus.
3. Purchase and Sale. Subject to the terms and conditions
herein set forth, (a) the Company agrees to sell to the Underwriters, and each
of the Underwriters, severally and not jointly, agrees to purchase, the Firm
Securities set forth opposite the name of such Underwriter in Schedule I
hereto and (b) in the event and to the extent that the Underwriters shall
exercise the election to purchase Optional Securities, the Company agrees to
sell, and each of the Underwriters, severally and not jointly, agrees to
purchase, that number of additional Optional Securities as to which such
election has been exercised (to be adjusted by you to eliminate fractional
Securities) determined by multiplying such number of additional Securities by
a fraction, the numerator of which is the maximum number of Optional
Securities set forth opposite the name of such Underwriter in Schedule I
hereto and the denominator of which is the maximum number of Optional
Securities set forth in total opposite the names of all such Underwriters in
Schedule I hereto.
The Company hereby grants to the Underwriters the right to
purchase at their election up to 1,500,000 additional Securities, for the sole
purpose of covering overallotments in the sale by such Underwriters of Firm
Securities. Any such election to purchase such Optional Securities may be
exercised only by written notice from you to the Company, given within a
period of 30 calendar days after the date of this Agreement and setting forth
the aggregate number of such Optional Securities to be purchased and the date
on which the Optional Securities are to be delivered, as determined by you but
in no event earlier than the First Time of Delivery (as defined in Section 4
hereof) or, unless you and the Company otherwise agree in writing, earlier
than two or later than ten business days after the date of such notice.
The Underwriters agree to purchase at the direction of the
Company the Treasury Notes underlying the Securities to be purchased by the
Underwriters. The Treasury Notes will be pledged to the Collateral Agent to
secure the holders' obligations to purchase Common Stock under the Purchase
Contracts. Such Pledge shall be effected by the transfer to the Collateral
Agent by Federal Reserve Bank-Wire of the Treasury Notes to be Pledged at the
appropriate Time of Delivery (as defined below) in accordance with the Pledge
Agreement.
4. Purchase and Delivery. Certificates in definitive or
temporary form for the Securities to be purchased by the Underwriters
hereunder, and in such denominations and registered in such names as Xxxxxx
Xxxxxxx & Co. Incorporated ("Xxxxxx Xxxxxxx") 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 such Underwriter, against the
delivery to the Collateral Agent of the Treasury Notes relating to such
Securities by such Underwriter or on its behalf. At such same time the
Company will pay to you Underwriters' commissions in the amount of $1.03 per
Security plus $1.6808722 per Security, resulting in a net payment of
$2.7108722 per Security, plus, in the case of Optional Securities, any accrued
interest from the First Time of Delivery to the Second Time of Delivery, in
same-day funds, all at the office of Xxxxxx Xxxxxxx, 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000. The time and date of such delivery and payment shall be, with
respect to the Firm Securities, 9:30 a.m., New York time, on November 6, 1996,
or such other time and date as you and the Company may agree upon in writing,
and, with respect to the Optional Securities, 9:30 a.m., New York time, on the
date specified by you in the written notice given by you of the Underwriters'
election to purchase additional Optional Securities, or such other time and
date as you and the Company may agree upon in writing. Such time and date for
delivery of the Firm Securities is herein called the "First Time of Delivery,"
such time and date for delivery of the Optional Securities, if not the First
Time of Delivery, is herein called the "Second Time of Delivery," and each
such time and date of delivery is herein called a "Time of Delivery." Unless
otherwise instructed by Xxxxxx Xxxxxxx in the request referred to above, such
certificates will be made available for checking and packaging at least
twenty-four hours prior to each Time of Delivery at the office of Xxxxxx
Xxxxxxx, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
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 Representatives, without charge, a
conformed 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, 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
Representatives may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Securities, to furnish to the
Representatives a copy of each such proposed amendment or supplement and not
to file any such proposed amendment or supplement to which the Representatives
reasonably objects.
(c) If, during such period after the first date of the public
offering of the Securities as the Prospectus is required by law to be
delivered in connection with sales by an 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 Underwriters, and to the dealers (whose names and
addresses the Representatives will furnish to the Company) to which Securities
may have been sold by the Representatives 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 Securities for offer and sale
under the securities or Blue Sky laws or insurance securities laws of such
jurisdictions as the Underwriters 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
Securities by the National Association of Securities Dealers, Inc., if any.
(e) To make generally available to the Company's security
holders and to the Underwriters 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 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.
(g) To use its best efforts to list, subject to notice of
issuance, the Securities and the Shares on the New York Stock Exchange and to
cause the Securities to be registered under the 1934 Act.
(h) To reserve and keep available at all times, free of liens
and adverse claims, sufficient shares of Common Stock to satisfy any
obligations to issue Shares upon settlement of the Purchase Contracts and
pursuant to the Prepaid Securities Indenture.
(i) Not to, and to cause its subsidiaries not to, without the
prior written consent of the Representatives, 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 Securities, Purchase Contracts, Prepaid Securities or
Common Stock or any Securities of the Company similar to the Securities,
Purchase Contracts, Prepaid Securities or Common Stock or any securities
convertible into or exchangeable or exercisable for any Securities, Purchase
Contracts, Prepaid Securities or 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 Securities.
6. 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 Underwriters, (iii) any fees charged by
investment rating agencies for rating the Securities and (iv) the fees and
expenses incurred in connection with the listing of the Securities, and the
Shares on the New York Stock Exchange.
7. Conditions to Closing. The obligations of the
Underwriters hereunder, as to the Securities to be delivered at each Time of
Delivery, shall be subject to the condition that all representations and
warranties and other statements of the Company herein are, at and as of such
Time of Delivery, 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 Time of Delivery, 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 Representatives shall have received on the Time of
Delivery a certificate, dated the Time of Delivery 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 Time of Delivery
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
Time of Delivery.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(d) The Representatives shall have received on the Time of
Delivery 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 Time of Delivery and in form and substance satisfactory to the
Representatives, and shall expressly permit the Underwriters to rely thereon
as if such opinion were addressed to Underwriters.
(e) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the
Underwriters, shall have furnished to you such opinion or opinions, dated such
Time of Delivery, 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 Representatives shall have received on the date hereof
and at each Time of Delivery a letter, dated the date hereof or the Time of
Delivery, respectively, in form and substance satisfactory to the
Representatives, 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 Securities and the Shares to be issued pursuant to the
Purchase Contract Agreement or the Prepaid Securities Indenture shall have
been approved for listing on the New York Stock Exchange upon notice of
issuance.
(h) On each Time of Delivery, (i) the Securities 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 Underwriters 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
Representatives a letter from such rating agency (or other evidence
satisfactory to the Representatives), confirming that the Securities have such
ratings.
(i) The Representatives 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.
8. 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 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 Representatives 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 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 1933 Act or Section 20 of the
1934 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 Representatives 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 Xxxxxx
Xxxxxxx, 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 8 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 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 Securities shall be
deemed to be in the same respective proportions as (i) in the case of the
Company, the Price to Public less Underwriting Discounts and Commissions
(before deducting expenses) or (ii) in the case of the Underwriters, 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,
bears to the aggregate public offering price of the 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 8 are several in proportion to the respective number of
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 8 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 8, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the 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 Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The remedies provided for
in this Section 8 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 8 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 Securities.
9. Termination. This Agreement (or, in the case of any Time
of Delivery subsequent to the First Time of Delivery, the parties obligations
with respect to the Optional Securities pursuant to Section 4 hereof) shall be
subject to termination, by notice given by the Representatives to the Company,
if (a) after the execution and delivery of this Agreement and prior to any
Time of Delivery (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 Representatives, 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
Representatives, impracticable to market the Securities on the terms and in
the manner contemplated in the Prospectus.
10. Defaulting Underwriters. If, on any Time of Delivery, any
one or more of the Underwriters shall fail or refuse to purchase Securities
that it has or they have agreed to purchase hereunder on such date, and the
aggregate number of 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 Securities to be purchased on such
date, the other Underwriters shall be obligated severally in the proportions
that the number of Securities set forth opposite their respective names set
forth in Schedule I hereto above bears to the aggregate number of Securities
set forth opposite the names of all such non-defaulting Underwriters, or in
such other proportions as the Representatives may specify, to purchase the
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 Securities that any Underwriter has agreed to purchase pursuant to
this Agreement on a Time of Delivery be increased pursuant to this Section 10
by a number in excess of one-ninth of such number of Securities without the
written consent of such Underwriter. If, on the First Time of Delivery, any
Underwriter or Underwriters shall fail or refuse to purchase Securities to be
purchased on such date and the aggregate number of Securities with respect to
which such default occurs is more than one-tenth of the aggregate number of
Securities to be purchased on such date, and arrangements satisfactory to the
Representatives and the Company for the purchase of such 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 Representatives or the Company shall
have the right to postpone the First Time of Delivery but in no event for
longer than 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 Second Time of Delivery, any
Underwriter or Underwriters shall fail or refuse to purchase Securities to be
purchased on such date and the aggregate number of Securities with respect to
which such default occurs is more than one-tenth of the aggregate number of
Securities to be purchased on such date, the non-defaulting Underwriters shall
have the option to (i) terminate their obligation hereunder to purchase
Securities to be purchased on such date or (ii) purchase not less than the
number of 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 Securities. Nothing in
the foregoing sentence shall limit the Company's obligations to pay expenses
as provided in Section 6.
11. Notices. In all dealings hereunder, you shall act on
behalf of each of the Underwriters, and the parties hereto shall be entitled
to act and rely upon any statement, request, notice or agreement on behalf of
any Underwriter made or given by Xxxxxx Xxxxxxx as the lead Representative of
the Underwriters.
All statements, requests, notices and agreements hereunder shall
be in writing, and if to the Underwriters shall be delivered or sent by mail
to Xxxxxx Xxxxxxx as the lead representative, 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, Century City, Xxx Xxxxxxx,
Xxxxxxxxxx 00000-0000; Attention: Xxxxx Xxxxxx; provided, however, that any
notice to an Underwriter pursuant to Section 8 hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its
address set forth in its Underwriters' Questionnaire or telex constituting
such Questionnaire, which address will be supplied to the Company by you upon
request. Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
12. Parties. This Agreement shall be binding upon, and inure
solely to the benefit of, the Underwriters and the Company and, to the extent
provided in Sections 9 hereof, the officers and directors of the Company and
each person who controls the Company or any 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 Securities from any Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
13. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
14. 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.
15. Acknowledgment. The Company and the Underwriters
acknowledge that Xxxxx Xxxx & Xxxxxxxx, which is acting as special counsel to
the Company in connection with the offer and sale of the Securities, also acts
as counsel from time to time to one or more of the Underwriters in connection
with unrelated matters. The Company and the Underwriters consent to Xxxxx
Xxxx & Xxxxxxxx so acting as special counsel to the Company. The Company and
the Underwriters also acknowledge that Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP, which is acting as counsel to the Underwriters in connection with the
offer and sale of the Securities, 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 Underwriters consent to Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP so acting as counsel to the Underwriters.
16. 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.
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
among the Company and the several Underwriters.
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
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXXX, SACHS & CO.
XXXXX XXXXXX INC.
Acting severally on behalf of
themselves and the several
Underwriters named on Schedule I hereto
By: Xxxxxx Xxxxxxx & Co. Incorporated
By: /s/ Xxxx Xxxxxx
-------------------------------
Vice President
SCHEDULE I
NUMBER OF
OPTIONAL
TOTAL NUMBER SECURITIES TO
OF FIRM BE DELIVERED
SECURITIES IF MAXIMUM
TO BE OPTION
Underwriter DELIVERED EXERCISED
----------- ------------ -------------
Xxxxxx Xxxxxxx & Co. Incorporated 1,518,150 227,724
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx 1,518,150 227,722
Incorporated
Xxxxxxx, Sachs & Co. 1,518,150 227,722
Xxxxx Xxxxxx Inc. 1,518,150 227,722
Advest, Inc. 178,500 26,775
Xxxxxxx X. Xxxxxxxxx & Co., Inc. 178,500 26,775
Xxxx Xxxxxxxx Incorporated 178,500 26,775
Xxxx Xxxxxx Xxxxxxxx Inc. 357,100 53,565
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation 357,100 53,565
X.X. Xxxxxxx & Sons, Inc. 357,100 53,565
EVEREN Securities, Inc. 178,500 26,775
First Albany Corporation 178,500 26,775
Interstate/Xxxxxxx Xxxx Corporation 178,500 26,775
Xxxxxx Xxxxxxxxxx Xxxxx Inc. 178,500 26,775
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated 178,500 26,775
XxXxxxxx & Company Securities, Inc. 178,500 26,775
Xxxxxx Xxxxxx & Company, Inc. 178,500 26,775
Xxxxxxxxxxx & Co., Inc. 357,100 53,565
Xxxxx Xxxxxxx Inc. 178,500 26,775
The Xxxxxxxx-Xxxxxxxx Company, Inc. 178,500 26,775
Wedbush Xxxxxx Securities 178,500 26,775
Wheat, First Securities, Inc. 178,500 26,775
---------- ---------
Total 10,000,000 1,500,000
========== =========
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 7(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 Purchase Contract Agreement, the
Purchase Contracts, the Pledge Agreement, the Prepaid Securities
Indenture, the Prepaid Securities and the Underwriting Agreement
has been duly authorized and each of the Purchase Contract
Agreement, the Purchase Contracts, the Pledge Agreement, the
Prepaid Securities Indenture and the Underwriting Agreement has
been duly executed by the Company;
(iii) the Securities, including the Purchase Contracts
constituting a part of the Securities, have been duly authorized,
executed and delivered by the Company and constitute valid and
binding obligations of the Company, enforceable against the
Company in accordance with their terms, except that the Treasury
Notes constituting part of the Securities are obligations of the
United States Government and not of the Company, and except as (a)
the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium and
other similar laws now or hereafter in effect relating to or
affecting creditors' rights generally and (b) the availability of
equitable remedies may be limited by equitable principles of
general applicability (regardless of whether considered in a
proceeding at law or in equity);
(iv) 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;
(v) the execution and delivery of each of the
Underwriting Agreement, the Purchase Contracts, the Purchase
Contract Agreement, the Pledge Agreement and the Prepaid
Securities Indenture, 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);
(vi) the Prepaid Securities have been duly authorized by
the Company and, when issued, executed, authenticated and
delivered in accordance with the Prepaid Securities Indenture the
Purchase Contract Agreement and the Pledge Agreement, will be
valid and binding agreements of the Company, enforceable in
accordance with their terms, except as (a) the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium and other similar laws now or
hereafter in effect relating to or affecting creditors' rights
generally and (b) the availability of equitable remedies may be
limited by equitable principles of general applicability
(regardless of whether considered in a proceeding at law or in
equity).
(vii) the shares of Common Stock issuable upon settlement
of the Securities and the Prepaid Securities have been duly
authorized and reserved for issuance and such shares, when issued
and delivered by the Company in accordance with the provisions of
the Purchase Contract Agreement and the Pledge Agreement, in the
case of the Securities, or the Prepaid Securities Indenture, in
the case of the Prepaid Securities, 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;
(viii) the forms of certificates used to evidence the
Securities, the Prepaid Securities and the Shares comply with all
applicable statutory requirements; and
(ix) 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 7(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 September 30, 1996;
(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 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
Representatives 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 or Anchor National Life
Insurance Company 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 Securities and the
Prepaid Securities and the Common Stock issuable upon settlement
of the Securities and the Prepaid Securities, the execution and
delivery of this Agreement, the Purchase Contracts, the Purchase
Contract Agreement, the Pledge Agreement, and the Prepaid
Securities Indenture 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 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, the Purchase
Contracts, the Purchase Contract Agreement, the Pledge Agreement
and Prepaid Securities Indenture, or for the issuance and sale of
the Securities or the Prepaid Securities, 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 Time of Delivery (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 7(d) of the Underwriting
Agreement, shall be to the effect that:
(i) The statements in the Prospectus under the captions
"Description of the Securities," "Description of the Purchase
Contracts," "Certain Provisions of the Purchase Contract Agreement
and the Pledge Agreement," "Description of the Prepaid
Securities," "Certain United States Federal Income Tax
Considerations," and "United States State and Local Tax
Considerations," insofar 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.
(iii) The Prepaid Securities Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended; 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.
(iv) The Company is not an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
(v) 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 Securities and the
issuance of the Prepaid Securities or the issuance and sale of the
Shares by the Company pursuant to the terms of the Prepaid
Securities Indenture or the Pledge Agreement and Purchase Contract
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.
(vi) Assuming that the Purchase Contract Agreement, the
Pledge Agreement, the Purchase Contracts underlying the Securities
being delivered at the Time of Delivery, the Securities, the
Prepaid Securities Indenture and the issuance of the Prepaid
Securities in accordance with the terms of the Prepaid Securities
Indenture or the Purchase Contract Agreement, have been duly
authorized, executed and delivered by the Company under Maryland
law, each is a valid and binding agreement of the Company (and
together the Purchase Contract Agreement, the Pledge Agreement and
the Purchase Contracts create, to the extent provided therein, a
valid interest of the holders of the Securities in the Treasury
Notes) enforceable against the Company in accordance with its
terms, except (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;
provided, however, that based on a review of applicable case law,
upon the occurrence of a Termination Event, Section 365(e)(2) of
the Bankruptcy Code (11 U.S.C. Section Section 101-1330, as
amended) should not substantively limit the provisions of Sections
4.02 and 5.09 of the Purchase Contract Agreement and Section 4(a)
of the Pledge Agreement that require termination of the Purchase
Contracts and release of the Collateral Agent's security interest
in the Treasury Notes; provided, however, that procedural
restrictions respecting relief from the automatic stay under
Section 362 of the Code may affect the timing of the exercise of
such rights and remedies.
(vii) Assuming that (1) the Pledge Agreement has been duly
authorized, executed and delivered by the Agent on behalf of each
of the holders of the Securities ("Holders"), (2) the Agent is
duly incorporated and validly existing under the laws of the state
of its incorporation, (3) the Agent and each of the Holders has
full power, authority and legal right (including, without
limitation, any legal right dependent upon there being no
necessary governmental approvals or filings and no conflict with
laws, governing documents or contracts) to make and perform its
obligations under the Pledge Agreement, (4) the Pledge Agreement
is the legal, valid, binding and enforceable obligation of the
Agent on behalf of each of the Holders, and (5) the Agent and each
Holder has sufficient rights in the Treasury Notes for the
security interest of the Collateral Agent for the benefit of the
Company to attach, the "transfer" (within the meaning of Section
8-313 of the UCC) of the Treasury Notes to the Collateral Agent
for the benefit of the Company, together with the Pledge
Agreement, will create a valid and perfected Security interest in
such Treasury Notes to secure the obligations of the Holders under
the Purchase Contracts, subject to customary qualifications
reasonably acceptable to the Representatives. References to (x)
the "UCC" shall mean the Uniform Commercial Code as in effect on
the date hereof in the State of New York and (y) "Financial
Intermediary" shall mean The First National Bank of Chicago acting
solely in its capacity as a "depositary" as defined in 31 C.F.R.
Section 306 or similar federal regulations governing the transfer
of U.S. Government book-entry securities. "Transfer" of the
Treasury Notes to the Collateral Agent for the benefit of the
Company will occur upon the latest of (1) the making by The
Federal Reserve Bank of New York of appropriate entries
transferring such Treasury Notes on its books and records to the
book-entry account of the Financial Intermediary at The Federal
Reserve Bank of New York and (2) the sending of a confirmation by
the Financial Intermediary to the Collateral Agent for the benefit
of the Company of the purchase by the Collateral Agent for the
benefit of the Company of such Treasury Notes and the
identification by book-entry by the Financial Intermediary of such
Treasury Notes as belonging to the Collateral Agent for the
benefit of the Company.
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.
