Exhibit 1.2
FORM OF EQUITY UNDERWRITING AGREEMENT
___________, 199_
SunAmerica Inc.
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▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
SunAmerica Inc., a Maryland corporation (the "Company"), proposes to issue and
sell [____________________] of [title of securities] (the "Firm Securities")
[and not more than [___] of its [title of securities] (the "Additional
Securities"), if any, to the extent we shall have determined to exercise, on
behalf of the Underwriters, the right to purchase such Additional Securities
granted to the Underwriters hereby] [and, together with each such Equity
Security or Additional Security, as the case may be, ____ warrants (the "Equity
Warrants") to purchase [___________] of its [title of securities] (the "Equity
Warrant Securities")]. The Firm Securities and the Additional Securities are
hereinafter collectively referred to herein as the "Equity Securities". [(The
Equity Securities and the Equity Warrants, but not the Equity Warrant
Securities, are collectively referred to herein as the "Offered
Securities.")](1)
_______________
(1) If no Equity Warrants are being issued, replace this sentence with the
following sentence:
(The Equity Securities are also referred to herein as the "Offered
Securities.")
[The Equity Warrants will be issued pursuant to the provisions
of an Equity Warrant Agreement dated as of _________________, 199_ (the
"Equity Warrant Agreement") between the Company and _______________, as Equity
Warrant Agent.](2)
_______________
(2) If Depositary Shares are to be sold, include the following paragraph and
make corresponding additions to representations, warranties and opinions:
"Each Depositary Share will represent [ ] of a share of
[title of securities] of the Company. The Equity Securities will,
when issued, be deposited by the Company against delivery of
Depositary Receipts ("Depositary Receipts) to be issued by [
], as depositary (the "Depositary"), under a Deposit Agreement
dated as of [_______________], 199[_] (the "Deposit Agreement") among
the Company, the Depositary and the holders from time to time of the
Depositary Receipts issued thereunder. Each Depositary Receipt will
represent one or more Depositary Shares."
Subject to the terms and conditions set forth or incorporated
by reference herein, the Company hereby agrees to sell and the Underwriters
agree to purchase, severally and not jointly, the respective number of Firm
Securities [and corresponding numbers of Equity Warrants] set forth below
opposite their names at a purchase price per share of $______ [and at a
purchase price of $____ per Equity Warrant]:
Number of shares of
Name Firm Securities
---- --------------------
[Insert syndicate list]
Total . . . . . .
===========
Number of Equity
Name Warrants
---- ----------------
[Insert syndicate list]
Total . . . . . .
===========
[On the basis of the representations and warranties contained
in this Agreement, and subject to its terms and conditions, the Company agrees
to sell to the Underwriters the Additional Securities [and a corresponding
number of additional Equity Warrants], and the Underwriters shall have a
one-time right to purchase, severally and not jointly, all or a part of the
Additional Securities at the purchase price per share listed above [and a
corresponding number of additional Equity Warrants at the purchase price per
Equity Warrant listed above]. Additional Securities [and corresponding
additional Equity Warrants] may be purchased solely for the purpose of
covering over-allotments made in connection with the offering of the Firm
Securities. If any Additional Securities [and corresponding additional Equity
Warrants] are to be purchased, each Underwriter agrees, severally and not
jointly, to purchase the number of Additional Securities [and corresponding
additional Equity Warrants] (subject to such adjustments to eliminate
fractional securities as you may determine) that bears the same proportion to
the total number of Additional Securities [and corresponding additional Equity
Warrants] to be purchased as the amount of Firm Securities set forth above
opposite the name of such Underwriter bears to the total amount of Firm
Securities.]
[The number of Equity Securities and number of Equity Warrants
to be purchased by the several Underwriters shall be reduced by the aggregate
number of Equity Securities and number of Equity Warrants sold pursuant to
Delayed Delivery Contracts.]
The Underwriters will pay for the Firm Securities [and
corresponding Equity Warrants] [(less any such securities sold pursuant to
Delayed Delivery Contracts)] upon delivery thereof at [office] at ______ a.m.
(New York time) on ___________, 199_, or at such other time, not later than
5:00 p.m. (New York time) on __________, 199_, as shall be designated by the
Manager. The time and date of such payment and delivery are hereinafter
referred to as the "Closing Date".
[The Underwriters will pay for any Additional Securities [and
corresponding additional Equity Warrants] [(less any such securities sold
pursuant to Delayed Delivery Contracts)] upon delivery thereof at [office] at
[_____]a.m. (New York time), on such date (which may be the same as the
Closing Date but shall in no event be earlier than the Closing Date nor later
than the date ten business days after the giving of the notice hereinafter
referred to) as shall be designated in a written notice from the Manager to the
Company of our determination, on behalf of the Underwriters, to purchase an
aggregate number, specified in said notice, of Additional Securities [together
with a corresponding aggregate number of additional Equity Warrants], as shall
be designated in writing by us. Such notice of determination to exercise the
option to purchase Additional Securities [and corresponding additional Equity
Warrants] and of the designated Option Closing Date may be given by the Manager
at any time within 30 days after the date of this Agreement. The designated
time and date of such payment and delivery are hereinafter referred to as the
"Option Closing Date".]
The Offered Securities shall have the terms set forth in the
Prospectus dated _________ __, 199_, and the Prospectus Supplement dated
________ __, 199_, including the following:
Terms of Equity Securities
Aggregate Number of
Firm Securities:
Aggregate Number of
Additional Securities:
Purchase Price:
Closing Date:
Option Closing Date:
Form:
Redemption Provisions:
Conversion Provisions:
Exchange Provisions:
Dividend Provisions:
Liquidation Preferences:
Lock-Up Securities:
Lock-Up Period:
[Depositary Share Provisions:]
[Other Terms:]
Terms of Equity Warrants
[Number of Equity Warrants issued
with each Firm and Additional
Security:]
Detachable Date:
Exercise Date:
Expiration Date:
Exercise Price:
Number of Equity Warrant
Securities purchasable upon
exercise of one Equity Warrant:
Anti-Dilution Provisions:
Form:
[Other Terms:]
Terms of Equity Warrant Securities
Form:
Redemption Provisions:
Conversion Provisions:
Exchange Provisions:
Dividend Provisions:
Liquidation Preferences:
Depositary Share Provisions:
[Other Terms:]
[The commission to be paid to the Underwriters in respect of
the Offered Securities purchased pursuant to Delayed Delivery Contracts
arranged by the Underwriters shall be $_____ per share of Firm or Additional
Securities so purchased [and $____ per Equity Warrant so purchased].]
[The Company hereby agrees that, without our prior written
consent, it will not, directly or indirectly, offer, sell, contract to sell or
grant any option to purchase or otherwise dispose of any shares of the
securities listed above as "Lock-Up Securities", or any securities convertible
into or exchangeable for Lock-Up Securities, for the period(s) listed above as
the "Lock-Up Period" in respect of such Lock-Up Securities; provided, however,
that such restriction shall not affect the ability of the Company or its
subsidiaries to take any such action (i) as a consequence of obligations under
securities outstanding prior to the date hereof, (ii) in connection with any
employee benefit or incentive plans of the Company or its subsidiaries or
(iii) in connection with the offering of the Offered Securities contemplated
hereby.]
All provisions contained in the document entitled SunAmerica
Inc. Underwriting Agreement Standard Provisions (Equity Securities and
Warrants to Purchase Equity Securities) dated September __, 1995, a copy of
which is attached hereto, are herein incorporated by reference in their
entirety and shall be deemed to be a part of this Agreement to the same extent
as if such provisions had been set forth in full herein, except that (i) if
any term defined in such document is otherwise defined herein, the definition
set forth herein shall control, (ii) all references in such document to, and
all provisions relating to, a type of security that is not an Offered Security
shall not be deemed to be a part of this Agreement, (iii) if the Offered
Securities do not include Equity Warrants, then all references in such
document to Equity Warrant Securities, and all provisions in such document
relating to Equity Warrants and Equity Warrant Securities, shall not be deemed
to be a part of this Agreement, and (iv) all references in such document to,
and all provisions in such document relating to, a type of agreement that has
not been entered into in connection with the transactions contemplated hereby
shall not be deemed to be a part of this Agreement.
Please confirm your agreement by having an authorized officer
sign a copy of this Agreement in the space set forth below.
Very truly yours,
____________________________
____________________________
____________________________
Acting severally on behalf of themselves and the
several Underwriters named herein
By: _______________________
_______________________
By: _______________________
Name:
Title:
Accepted:
SUNAMERICA INC.
By: ______________________
Name:
Title:
SUNAMERICA INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(EQUITY SECURITIES AND WARRANTS
TO PURCHASE EQUITY SECURITIES)
September __, 1995
From time to time, SunAmerica Inc., a Maryland corporation (the
"Company"), may enter into one or more underwriting agreements that provide
for the sale of designated securities to the several underwriters named
therein. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement").
The Underwriting Agreement, including the provisions incorporated therein by
reference, is herein referred to as this Agreement. Terms defined in the
Underwriting Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including a
prospectus, relating to the Offered Securities and Equity Warrant Securities
and has filed with, or transmitted for filing to, or shall promptly hereafter
file with or transmit for filing to, the Commission a prospectus supplement
(the "Prospectus Supplement") specifically relating to the Offered Securities
and the Equity Warrant Securities pursuant to Rule 424 under the Securities
Act of 1933, as amended (the "Securities Act"). The term "Registration
Statement" means such registration statement, including the exhibits thereto,
as amended to the date of this Agreement. The term "Basic Prospectus" means
the prospectus included in the Registration Statement. The term "Prospectus"
means the Basic Prospectus together with the Prospectus Supplement. The term
"preliminary prospectus" means a preliminary prospectus supplement
specifically relating to the Offered Securities and the Equity Warrant
Securities, together with the Basic Prospectus. As used herein, the terms
"Basic Prospectus," "Prospectus" and "preliminary prospectus" shall include in
each case the documents, if any, incorporated by reference therein. The terms
"supplement" and "amendment" or "amend" as used herein shall include all
documents deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
The term "Contract Securities" means the Offered Securities to
be purchased pursuant to the delayed delivery contracts substantially in the
form of Schedule I hereto, with such changes therein as the Company may
approve (the "Delayed Delivery Contracts"). The term "Underwriters'
Securities" means the Offered Securities other than Contract Securities.
1. Representations and Warranties. The Company represents
and warrants to each of the Underwriters that:
(a) The Registration Statement (including the most recent
post-effective amendment thereto, if any) has been declared effective by the
Commission; no stop order suspending the effectiveness of the Registration
Statement is in effect, and no proceedings for such purpose are pending before
or threatened by the Commission.
(b) (i) Each document filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part
of the Registration Statement, when such part became effective, did not
contain, and each such part, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Registration Statement, since the
later of the date it became effective and the date of the most recent
post-effective amendment, if any, will not fail to reflect any facts or events
which individually or in the aggregate represent a fundamental change in the
information set forth in the Registration Statement as of such date, (iii) the
Registration Statement and the Prospectus comply, and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set forth
in this Section 1(b) do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to
any Underwriter furnished to the Company in writing by such Underwriter
through the Manager expressly for use therein.
(c) This Agreement has been duly authorized, executed and
delivered by the Company.
(d) The Equity Warrant Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement of
the Company, enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(e) The Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company and are valid and binding agreements of
the Company, enforceable in accordance with their respective terms except as
(i) the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) the availability
of equitable remedies may be limited by equitable principles of general
applicability.
(f) The Offered Securities and the Equity Warrant Securities
have been duly authorized and, when executed and delivered to and paid for (A)
by the Underwriters in accordance with the terms of the Underwriting Agreement
and the Equity Warrant Agreement, in the case of the Underwriters' Securities,
or by institutional investors in accordance with the terms of the Delayed
Delivery Contracts in the case of the Contract Securities and (B) upon the
exercise of Equity Warrants pursuant to the Equity Warrant Agreement, in the
case of the Equity Warrant Securities, will be validly issued, fully paid and
non-assessable.
(g) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Delayed Delivery Contracts and the Equity Warrant Agreement, and the issuance
and sale of the Offered Securities or the Equity Warrant Securities, will not
contravene any provision of applicable law or the articles of incorporation or
by-laws of the Company or any agreement or other instrument binding upon the
Company or any of its "significant subsidiaries" (as defined in Article 1 of
Regulation S-X under the Securities Act and hereinafter referred to as
"Significant Subsidiaries") that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any
Significant Subsidiary, 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 Delayed
Delivery Contracts or the Equity Warrant Agreement, or the issuance and sale
of the Offered Securities or the Equity Warrant Securities, except such as may
be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Offered Securities and Equity
Warrants.
(h) There are no legal or governmental proceedings pending or
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 any statutes, regulations, contracts or
other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required.
[(i) The [name of security into which the Equity Securities
[and Equity Warrant Securities] are convertible], initially reserved for
issuance upon conversion of the Equity Securities [and Equity Warrant
Securities] (the "Underlying Securities") have been duly authorized and
reserved for issuance;
(j) When the Underlying Securities are issued upon conversion
of the Equity Securities [and Equity Warrant Securities] in accordance with
the terms of the Equity Securities [and Equity Warrant Securities], such
Underlying Securities will be validly issued, fully paid and non-assessable
and will not be subject to any preemptive or other right to subscribe for or
purchase such Underlying Securities.](3)
_________
(3) Paragraphs (i) and (j) should be included if the Offered Securities will be
convertible.
2. Delayed Delivery Contracts. If the Prospectus provides for
sales of Offered Securities pursuant to Delayed Delivery Contracts, the
Company hereby authorizes the Underwriters to solicit offers to purchase
Contract Securities on the terms and subject to the conditions set forth in
the Prospectus pursuant to Delayed Delivery Contracts. Delayed Delivery
Contracts may be entered into only with institutional investors approved by
the Company of the types set forth in the Prospectus. On the Closing Date,
the Company will pay to the Manager as compensation for the accounts of the
Underwriters the commission set forth in the Underwriting Agreement in respect
of the Contract Securities. The Underwriters will not have any responsibility
in respect of the validity or the performance of any Delayed Delivery
Contracts.
If the Company executes and delivers Delayed Delivery Contracts
with institutional investors, the aggregate principal amount of Offered
Securities to be purchased by the several Underwriters shall be reduced by the
aggregate principal amount of Contract Securities; such reduction shall be
applied to the commitment of each Underwriter pro rata in proportion to the
principal amount of Offered Securities set forth opposite such Underwriter's
name in the Underwriting Agreement, except to the extent that the Manager
determines that such reduction shall be applied in other proportions and so
advises the Company; provided, however, that the total principal amount of
Offered Securities to be purchased by all Underwriters shall be the aggregate
principal amount set forth above, less the aggregate principal amount of
Contract Securities.
3. Public Offering. The Company is advised by the Manager
that the Underwriters propose to make a public offering of their respective
portions of the Underwriters' Securities as soon after this Agreement has been
entered into as in the Manager's judgment is advisable. The terms of the
public offering of the Underwriters' Securities are set forth in the
Prospectus.
4. Purchase and Delivery. Payment for the Offered Securities
to be purchased by the Underwriters on the Closing Date [or the Option Closing
Date, as the case may be,](4) shall be made by certified or official bank check
or checks payable to the order of the Company in New York Clearing House or
similar next-day funds at the time and place set forth in the Underwriting
Agreement, upon delivery to the Manager for the respective accounts of the
several Underwriters of the Underwriters' Securities in certificated form,
registered in such names and in such denominations as the Manager shall
request in writing not less than one full business day prior to the date of
delivery, with any transfer taxes payable in connection with the transfer of
the Underwriters' Securities to the Underwriters duly paid.
_______________
(4) Include if a green shoe is to be offered to Underwriters.
5. Conditions to Closing. The several obligations of the
Underwriters hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such
purpose are pending before or threatened by the Commission.
(b) Subsequent to the execution and delivery of the
Underwriting Agreement and prior to the Closing Date, there shall not
have occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations,
of the Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus.
(c) The Manager shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive
officer of the Company, to the effect set forth in clause (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 knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date
opinions of Piper & Marbury, Maryland counsel to the Company,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., Vice President and General Counsel--
Corporate Affairs for the Company, and ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇,
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, ▇▇. ▇▇▇▇▇▇ 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
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ & ▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇ 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, in each case
so long as such opinion shall be dated the Closing Date and in
form and substance satisfactory to the Manager, and shall
expressly permit the Underwriters to rely thereon as if such
opinion were addressed to Underwriters.
(e) The Manager shall have received on the Closing Date an
opinion of special counsel for the Underwriters (the selection of
whom shall be approved by the Company), dated the Closing Date, to
the effect set forth in paragraphs (ii), (iii) and (iv) [and (vii)
and (viii)](5) in Exhibit A and paragraphs (i) through (iv) in
Exhibit C. In giving such opinion, such counsel may rely, as to
matters governed by laws other than the federal law of the United
States of America, on an opinion or opinions of local counsel
satisfactory to the Manager, so long as each such opinion shall be
dated the Closing Date and in form and substance satisfactory to the
Manager, and shall expressly permit the Underwriters to rely thereon
as if such opinion were addressed to Underwriters.
_______________
(5) References to be included if the Offered Securities are convertible.
(f) The Manager shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance satisfactory
to the Manager, from the Company's independent public accountants,
containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial
information contained in or incorporated by reference into the
Prospectus.
[The several obligations of the Underwriters to purchase
Additional Securities hereunder are subject to delivery to the Manager on the
Option Closing Date of such opinions, certificates and documents contemplated
by this Section 5 as such Manager shall reasonably request relating to the
issuance of the Additional Securities.](6)
_______________
(6) Include if a green shoe is to be offered to Underwriters.
6. Covenants of the Company. In further consideration of the
agreements of the Underwriters contained herein, the Company covenants as
follows:
(a) To furnish the Manager, without charge, a signed copy of
the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the
Registration Statement (without exhibits thereto) and, during the
period mentioned in paragraph (c) below, as many copies of the
Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto or to the Registration Statement
as the Manager may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Offered Securities,
to furnish to the Manager a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement
to which the Manager reasonably objects.
(c) If, during such period after the first date of the public
offering of the Offered Securities as the Prospectus is required by
law to be delivered in connection with sales by an Underwriter or
dealer, any event shall occur or condition exist as a result of which
it is necessary to amend or supplement the Prospectus in order to
make the statements therein, in the light of the circumstances when
the Prospectus is delivered to a purchaser, not misleading, forthwith
to prepare, file with the Commission and furnish, at its own expense,
to the Underwriters, and to the dealers (whose names and addresses
the Manager will furnish to the Company) to which Offered Securities
may have been sold by the Manager on behalf of the Underwriters and
to any other dealer upon request, either amendments or supplements to
the Prospectus so that the statements in the Prospectus as so amended
or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as so amended or supplemented, will comply with law.
(d) To endeavor to qualify the Offered Securities for offer
and sale under the securities or Blue Sky laws or insurance
securities laws of such jurisdictions as the Manager shall reasonably
request and to pay all expenses (including fees and disbursements of
counsel) in connection with such qualification and in connection with
any review of the offering of the Offered Securities by the National
Association of Securities Dealers, Inc.
(e) To make generally available to the Company's security
holders and to the Manager as soon as practicable an earning
statement covering a twelve month period beginning on the first day
of the first full fiscal quarter after the date of this Agreement,
which earning statement shall satisfy the provisions of Section 11(a)
of the Securities Act and the rules and regulations of the Commission
thereunder.
(f) During the period mentioned in paragraph (c) above, to
advise the Underwriters promptly of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or the initiation or threatening of any proceeding for that
purpose.
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
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities, joint or several (including, without
limitation, any legal or other expenses reasonably incurred by any Underwriter
or any such controlling person in connection with defending or investigating
any such action or claim), caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
amendment thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with information furnished to the Company by any Underwriter in writing
through the Manager expressly for use therein; provided, however, that the
foregoing indemnity agreement with respect to any preliminary prospectus shall
not inure to the benefit of any Underwriter from whom the person asserting
such losses, claims, damages or liabilities purchased Offered Securities,
Equity Warrant Securities or Equity Warrants, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or supplemented, if
the Company shall have furnished any amendments or supplements thereto) was
not sent or given by or on behalf of such Underwriter to such person, if
required by law so to have been delivered, at or prior to such purchase, and
if the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such losses, claims, damages or liabilities. This indemnity
will be in addition to any liability which the Company may otherwise have.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the
Company to such Underwriter, but only to the extent that any untrue statement
or omission or alleged untrue statement or omission was made in reliance upon
and in conformity with information furnished to the Company by any Underwriter
in writing through the Manager expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto. This indemnity will be in addition to any liability
which the Underwriters may otherwise have.
In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the two preceding paragraphs,
such person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing and
the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the Manager,
in the case of parties indemnified pursuant to the second preceding paragraph,
and by the Company, in the case of parties indemnified pursuant to the first
preceding paragraph. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first or second
paragraph in this Section 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 Underwriters
on the other hand from the offering of the Offered Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Offered Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of such Offered Securities (before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus Supplement, bear to the aggregate public offering
price of the Offered Securities. The relative fault of the Company on the one
hand and of the Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this
Section 7 are several in proportion to the respective principal amounts of
Offered Securities purchased by each of such Underwriters and not joint.
The Company and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 7 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 7, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Offered Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
remedies provided for in this Section 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 any Underwriter or any person controlling any Underwriter or by or on
behalf of the Company, its directors or officers or any person controlling the
Company and (iii) acceptance of and payment for any of the Offered Securities.
8. Termination. This Agreement shall be subject to
termination, by notice given by the Manager to the Company, if (a) after the
execution and delivery of the Underwriting Agreement and prior to the Closing
Date (i) trading generally shall have been suspended or materially limited on
or by, as the case may be, the New York Stock Exchange or the American Stock
Exchange, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the
Manager, is material and adverse, or (iv) a general moratorium on commercial
banking activities in New York shall have been declared by either federal or
New York State authorities, and (b) in the case of any of the events specified
in clauses (a)(i) through (iii), such event, singly or together with any other
such event, makes it, in the judgment of the Manager, impracticable to market
the Offered Securities on the terms and in the manner contemplated in the
Prospectus.
9. Defaulting Underwriters. If, on the Closing Date [or the
Option Closing Date, as the case may be](7), any one or more of the
Underwriters shall fail or refuse to purchase Underwriters' Securities that it
has or they have agreed to purchase hereunder on such date, and the aggregate
number of Underwriters' 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 Underwriters' Securities to be
purchased on such date, the other Underwriters shall be obligated severally in
the proportions that the number of Underwriters' Securities set forth opposite
their respective names above bears to the aggregate number of Underwriters'
Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Manager may specify, to
purchase the Underwriters' 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 Underwriters' Securities that any
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 9 by a number in excess of one-ninth of such number
of Underwriters' Securities without the written consent of such Underwriter.
If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse
to purchase Underwriters' Securities to be purchased on such date and the
aggregate number of Underwriters' Securities with respect to which such
default occurs is more than one-tenth of the aggregate number of Underwriters'
Securities to be purchased on such date, and arrangements satisfactory to the
Manager and the Company for the purchase of such Underwriters' Securities are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the
Company. In any such case either the Manager or the Company shall have the
right to postpone the Closing Date but in no event for longer then seven days,
in order that the required changes, if any, in the Registration Statement and
in the Prospectus or in any other documents or arrangements may be effected.
[If, on the Option Closing Date, any Underwriter or Underwriters shall fail or
refuse to purchase Underwriters' Securities to be purchased on such date and
the aggregate number of Underwriters' Securities with respect to which such
default occurs is more than one-tenth of the aggregate number of Underwriters'
Securities to be purchased on such date, the non-defaulting Underwriters shall
have the option to (i) terminate their obligation hereunder to purchase
Underwriters' Securities to be purchased on such date or (ii) purchase not
less than the number of Underwriters' Securities that such non-defaulting
Underwriters would have been obligated to purchase on such date in the absence
of such default.](8) 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.
_______________
(7) Applicable if a green shoe is offered to Underwriters.
(8) Applicable if a green shoe is offered to Underwriters.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement,
or if for any reason the Company shall be unable to perform its obligations
under this Agreement, the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering of the Offered Securities.
Nothing in the foregoing sentence shall limit the Company's obligations to pay
expenses as provided in Section 6.
10. Miscellaneous. The Underwriting Agreement may be signed
in any number of counterparts, each of which shall be an original, with the
same effect as if the signatures thereto and hereto were upon the same
instrument.
This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York.
11. 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.
12. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same agreement.
Exhibit A
Opinion of Maryland Counsel for the Company
The opinion of Piper & Marbury, Maryland counsel for the
Company, to be delivered pursuant to Section 5(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 Underwriting Agreement, the Equity Warrant Agreement
and the Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company;
(iii) the Offered Securities and the Equity Warrant Securities
have been duly authorized by the Company;
(iv) when executed and delivered to and paid for (A) by the
Underwriters in accordance with the terms of the Underwriting
Agreement and the Equity Warrant Agreement, in the case of
Underwriters' Securities, or by institutional investors in accordance
with the terms of the Delayed Delivery Contracts and the Equity
Warrant Agreement, in the case of the Contract Securities and (B)
upon the exercise of Equity Warrants pursuant to the Equity Warrant
Agreement, in the case of the Equity Warrant Securities, the Offered
Securities and the Equity Warrant Securities will be validly issued,
fully paid and non-assessable;
(v) the statements in the Prospectus under the captions
"Description of Equity Securities" and "Description of [Warrants],"
in each case insofar as such statements constitute summaries of the
legal matters or documents or proceedings referred to therein, fairly
present the information called for with respect to such legal
matters, documents or proceedings and fairly present the matters
referred to therein;
(vi) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Underwriting
Agreement, the Delayed Delivery Contracts and the Equity Warrant
Agreement, and the issuance and sale of the Offered Securities or the
Equity Warrant Securities, will not contravene any provision of any
material applicable law or the articles of incorporation or by-laws
of the Company (excluding the securities or Blue Sky laws of the
State of Maryland, as to which such counsel need not express any
opinion).
[(vii) the [name of security into which the Equity Securities
[and Equity Warrant Securities] are convertible], initially reserved
for issuance upon conversion of the Equity Securities [and Equity
Warrant Securities] (the "Underlying Securities") have been duly
authorized and reserved for issuance; and
(viii) when the Underlying Securities are issued upon conversion
of the Equity Securities [and Equity Warrant Securities] in
accordance with the terms of the Equity Securities [and Equity
Warrant Securities], such Underlying Securities will be validly
issued, fully paid and non-assessable and will not be subject to any
preemptive or other right to subscribe for or purchase such
Underlying Securities.](9)
_________
(9) Paragraphs (vii) and (viii) should be included if the Offered
Securities are convertible.
Exhibit B
Opinion of Counsel for the Company
The opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President and General
Counsel--Corporate Affairs of the Company, to be delivered pursuant to Section
5(d) of the Underwriting Agreement shall be to the effect that:
(9)Paragraphs (vii) and (viii) should be included if the Offered Securities
are convertible.
(i) to the best of such counsel's knowledge and information,
the Company is duly qualified as a foreign corporation to transact
business and in good standing in each jurisdiction in which such
qualification is required, except where the failure to so qualify or
be in good standing would not have a material adverse effect on the
condition, financial or otherwise, on the earnings or business
affairs of the Company and its subsidiaries, taken as a whole;
(ii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Underwriting
Agreement, the Delayed Delivery Contracts and the Equity Warrant
Agreement, and the issuance and sale of the Offered Securities or the
Equity Warrant Securities, will not contravene any provision of any
material applicable law or the articles of incorporation or by-laws
of the Company or any agreement or other instrument binding upon the
Company or any Significant Subsidiary that is material to the Company
and its subsidiaries, taken as a whole, or any judgment, order or
decree of any governmental body, agency or court having jurisdiction
over the Company or any Significant Subsidiary, 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 the Underwriting Agreement, the
Delayed Delivery Contracts or the Equity Warrant Agreement, or the
issuance and sale of the Offered Securities or the Equity Warrant
Securities, except such as may be required by the securities or Blue
Sky laws or insurance securities laws of the various states in
connection with the offer and sale of the Offered Securities and the
Equity Warrants;
(iii) to the best of such counsel's knowledge and information,
there are no legal or governmental proceedings pending or threatened
or any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus that are not described as required;
(iv) such counsel (1) is of the opinion that each document, if
any, filed pursuant to the Exchange Act and incorporated by reference
in the Prospectus (except for financial statements, supporting
schedules and other financial data included or incorporated by
reference therein, as to which such counsel need not express any
opinion) appeared on its face to be appropriately responsive in all
material respects to the requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (2)
believes that (except for financial statements, supporting schedules
and other financial data included or incorporated by reference
therein, as to which such counsel need not express any belief) each
part of the Registration Statement, when such part became effective
did not, and as of the date such opinion is delivered, does not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (3) is of the opinion that the
Registration Statement and Prospectus (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) appear on their face to be appropriately
responsively in all material respects to the requirements of the
Securities Act and the applicable rules and regulations of the
Commission thereunder and (4) believes that (except for financial
statements, supporting schedules and other financial data included
or incorporated by reference therein, as to which such counsel need
not express any belief) the Prospectus as of the date such opinion is
delivered does not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading; and
(v) to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement is in
effect under the Securities Act, and no proceedings for such purpose
are pending before or threatened by the Commission.
With respect to the foregoing paragraph, such counsel may state
that her opinion and belief are based upon her participation in the
preparation of the Registration Statement and Prospectus and any amendments,
supplements thereto and documents incorporated therein by reference and review
and discussion of the contents thereof, but are without independent check or
verification, except as specified.
Exhibit C
Opinion of Special Counsel for the Company
The opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel to the
Company, to be delivered pursuant to Section 5(d) of the Underwriting
Agreement shall be to the effect that:
(i) assuming due authorization, execution and delivery by the
Company, the Equity Warrant Agreement is a valid and binding
agreement of the Company, enforceable in accordance with its terms
except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (b) the availability of equitable remedies may be
limited by equitable principles of general applicability;
(ii) assuming due authorization, execution and delivery by the
Company, the Delayed Delivery Contracts are valid and binding
agreements of the Company, enforceable in accordance with their
respective terms except as (a) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (b) the availability of equitable
remedies may be limited by equitable principles of general
applicability;
(iii) the statements in the Prospectus under the caption "Plan
of Distribution," insofar as such statements constitute summaries of
the legal matters or documents or proceedings referred to therein,
fairly present the information called for with respect to such legal
matters, documents or proceedings and fairly summarize the matters
referred to therein;
(iv) such counsel (1) believes that (except for financial
statements, supporting schedules and other financial data included or
incorporated by reference therein and any of the documents
incorporated by reference therein, as to which such counsel need not
express any belief) each part of the Registration Statement, when
such part became effective did not, and as of the date such opinion
is delivered, does not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, (2) is of
the opinion that the Registration Statement and Prospectus (except
for financial statements, supporting schedules and other financial
data included or incorporated by reference therein and any of the
documents incorporated or deemed to be incorporated by reference
therein, as to which such counsel need not express any opinion)
appear on their face to be appropriately responsive in all material
respects to the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder and (3) believes
that (except for financial statements, supporting schedules and other
financial data included or incorporated by reference therein and any
of the documents incorporated or deemed to be incorporated by
reference therein, as to which such counsel need not express any
belief) the Prospectus as of the date such opinion is delivered does
not contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading; and
(v) to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement is in
effect under the Securities Act, and no proceedings for such purpose
are pending before or threatened by the Commission.
With respect to the foregoing paragraph, such counsel may
state that 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.
Schedule I
FORM OF DELAYED DELIVERY CONTRACT
________, 199_
Dear Sirs:
The undersigned hereby agrees to purchase from SunAmerica Inc.,
a Maryland corporation (the "Company"), and the Company agrees to sell to the
undersigned the Company's securities described in Schedule A annexed hereto
(the "Securities"), offered by the Company's Prospectus dated ______________,
199_ and Prospectus Supplement dated ________________, 19__, receipt of copies
of which are hereby acknowledged, at a purchase price stated in Schedule A and
on the further terms and conditions set forth in this Agreement. The
undersigned does not contemplate selling Securities prior to making payment
therefor.
The undersigned will purchase from the Company Securities in
the numbers and on the delivery dates set forth in Schedule A. Each such date
on which Securities are to be purchased hereunder is hereinafter referred to
as a "Delivery Date."
Payment for the Securities which the undersigned has agreed to
purchase on each Delivery Date shall be made to the Company or its order by
certified or official bank check in New York Clearing House or similar
next-day funds at the office of ______________________________, New York,
N.Y., at 10:00 A.M. (New York time) on the Delivery Date, upon delivery to
the undersigned of the Securities to be purchased by the undersigned on the
Delivery Date, in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communication addressed to
the Company not less than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for the Securities on the Delivery Date shall be subject to the
conditions that (1) the purchase of Securities to be made by the undersigned
shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (2) the Company shall
have sold, and delivery shall have taken place to the underwriters (the
"Underwriters") named in the Prospectus Supplement referred to above of, such
part of the Securities as is to be sold to them. Promptly after completion of
sale and delivery to the Underwriters, the Company will mail or deliver to the
undersigned as its address set forth below notice to such effect, accompanied
by a copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by
any purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this agreement.
This Agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
If this Agreement is acceptable to the Company, it is requested
that the Company sign the form of acceptance below and mail or deliver one of
the counterparts hereof to the undersigned at its address set forth below.
This will become a binding agreement, as of the date first above written,
between the Company and the undersigned when such counterpart is so mailed or
delivered.
This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York.
Yours very truly,
___________________________
(Purchaser)
By ________________________
___________________________
(Title)
___________________________
___________________________
(Address)
Accepted:
SUNAMERICA INC.
By ________________________
PURCHASER--PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the Purchaser
with whom details of delivery on the Delivery Date may be discussed is as
follows: (Please print.)
Telephone No.
Name (Including Area Code) Department
---- ---------------------- ----------
__________________ ______________________ _________________
SCHEDULE A
Securities:
Numbers of Securities to be Purchased:
Purchase Price:
Delivery Dates: