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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) October __, 1995
SUNAMERICA INC.
(Exact name of registrant as specified in charter)
Maryland 1-4618 86-0176061
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
1 SunAmerica Center, Los Angeles, California 90067-6022
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (310) 772-6000
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ITEM 5. Other Events.
Exhibits are filed herewith in connection with the issuance by
SunAmerica Inc. (the "Company") of $3.10 Depositary Shares, each representing
one-fiftieth of a share of Series E Mandatory Conversion Premium Dividend
Preferred Stock, pursuant to the Company's Registration Statement on Form S-3
(File No. 33-62405).
ITEM 7. Financial Statements, Pro Forma Financial Information and
Exhibits.
EXHIBITS
Exhibit 1.1 - Underwriting Agreement dated October 26, 1995
between the Company and Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Morgan Stanley & Co. Incorporated and Goldman,
Sachs & Co.
Exhibit 4.9 - Form of Articles Supplementary for the Series E
Mandatory Conversion Premium Dividend Preferred
Stock of the Company
Exhibit 4.10 - Form of Deposit Agreement between the Company, The
Bank of New York, as depositary, and the holders
from time to time of Depositary Receipts
Exhibit 4.11 - Form of Depositary Receipt (included in Exhibit
4.10)
Exhibit 5.1 - Opinion of Piper & Marbury L.L.P. as to the
legality of the Company's Mandatory Conversion
Premium Dividend Preferred Stock
Exhibit 5.2 - Opinion of Davis Polk & Wardwell as to the legality
of the Depositary Shares
Exhibit 8.1 - Tax opinion of Davis Polk & Wardwell
Exhibit 23.1 - Consent of Piper & Marbury L.L.P. (included in
Exhibit 5.1)
Exhibit 23.2 - Consent of Davis Polk & Wardwell (included in
Exhibit 5.2 and 8.1)
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
SUNAMERICA INC.
Date: October 30, 1995 By: /s/ Susan L. Harris
____________________
Susan L. Harris
Vice President and
Secretary
EXHIBIT 1.1
UNDERWRITING AGREEMENT
October 26, 1995
SunAmerica Inc.
1 SunAmerica Center
Century City
Los Angeles, California 90067-6022
Dear Ladies and Gentlemen:
We (collectively, the "Manager") are acting on behalf of the
underwriter or underwriters (including ourselves) named below (such
underwriter or underwriters being herein called the "Underwriters"), and we
understand that SunAmerica Inc. a Maryland corporation (the "Company"),
proposes to issue and sell 4,000,000 shares (the "Firm Securities") of its
$3.10 Depositary Shares (the "Depositary Shares") and not more than 600,000 of
its Depositary Shares (the "Additional Securities"), if any, to the extent we
shall have determined to exercise, on behalf of the Underwriters, the right to
purchase such Additional Securities on the terms described below. The Firm
Securities and the Additional Securities are hereinafter collectively referred
to herein as the "Offered Securities."
Each Depositary Share will represent one-fiftieth of a share of
Series E Mandatory Conversion Premium Dividend Preferred Stock (the "Preferred
Securities") of the Company. The Preferred Securities will, when issued, be
deposited by the Company against delivery of Depositary Receipts ("Depositary
Receipts")to be issued by The Bank of New York, as depositary (the
"Depositary"), under a Deposit Agreement dated as of November 1, 1995 (the
"Deposit Agreement") among the Company, the Depositary and the holders from
time to time of the Depositary Receipts issued thereunder. Each Depositary
Receipt will represent one or more Depositary Shares.
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, the respective number of Firm
Securities set forth below opposite their names at a purchase price per
Offered Security of $60.2950:
Number of shares of
Name Firm Securities
---- --------------------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated...................... 973,334
Morgan Stanley & Co. Incorporated............. 973,333
Goldman, Sachs & Co. ......................... 973,333
Dean Witter Reynolds Inc...................... 120,000
J.P. Morgan Securities Inc.................... 120,000
Oppenheimer & Co., Inc........................ 120,000
Schroder Wertheim & Co. Incorporated.......... 120,000
Dain Bosworth Incorporated.................... 60,000
EVEREN Securities, Inc........................ 60,000
Forum Capital Markets L. P.................... 60,000
Furman Selz Incorporated...................... 60,000
Jefferies & Company, Inc...................... 60,000
Edward D. Jones & Co.......................... 60,000
Parallax Group, Inc. ......................... 60,000
Piper Jaffray Inc. ........................... 60,000
Wedbush Morgan Securities..................... 60,000
Wheat, First Securities, Inc.................. 60,000
---------
4,000,000
On the basis of the representations and warranties contained in
this Agreement, and subject to its terms and conditions, the Company agrees to
sell to the Underwriters the Additional Securities, and the Underwriters shall
have a one-time right to purchase, severally and not jointly, all or a part of
the Additional Securities at the purchase price per Offered Security listed
above. Additional Securities may be purchased solely for the purpose of
covering over-allotments made in connection with the offering of the Firm
Securities. If any Additional Securities are to be purchased, each
Underwriter agrees, severally and not jointly, to purchase the number of
Additional Securities (subject to such adjustments to eliminate fractional
securities as you may determine) that bears the same proportion to the total
number of Additional Securities to be purchased as the amount of Firm
Securities set forth above opposite the name of such Underwriter bears to the
total amount of Firm Securities.
The Underwriters will pay for the Firm Securities upon delivery
thereof at the offices of Merrill Lynch, Pierce, Fenner & Smith Incorporated
in New York City, and payment of the purchase price for the Firm Securities
shall be made at the offices of Skadden, Arps, Slate, Meagher & Flom, Los
Angeles, at 10:00 a.m. (New York time) on November 1, 1995, or at such other
time, not later than 5:00 p.m. (New York time) on November 6, 1995, as shall
be designated by the Manager. The time and date of such payment and delivery
are hereinafter referred to as the "Closing Date."
The Underwriters will pay for any Additional Securities upon
delivery thereof at the offices of Merrill Lynch, Pierce, Fenner & Smith
Incorporated in New York City, and payment of the purchase price for the
Additional Securities shall be made at the offices of Skadden, Arps, Slate,
Meagher & Flom, Los Angeles, at 10:00 a.m. (New York time), on such date
(which may be the same as the Closing Date but shall in no event be earlier
than the Closing Date nor later than the date ten business days after the
giving of the notice hereinafter referred to) as shall be designated in a
written notice from the Manager to the Company of our determination, on behalf
of the Underwriters, to purchase an aggregate number, specified in said
notice, of Additional Securities, as shall be designated in writing by us.
Such notice of determination to exercise the option to purchase Additional
Securities and of the designated Option Closing Date (defined below) may be
given by the Manager at any time during the 30 days after the date of this
Agreement. The designated time and date of such payment and delivery are
hereinafter referred to as the "Option Closing Date."
The Offered Securities shall have the terms set forth in the
Prospectus dated September 29, 1995, and the Prospectus Supplement dated
October 26, 1995, including the following (with the terms of the Preferred
Securities being established to reflect that each Offered Security represents
one-fiftieth of a Preferred Security):
Terms of Offered Securities
Aggregate Number of
Firm Securities: 4,000,000
Aggregate Number of
Additional Securities: 600,000
Initial Public Offering
Price: $62.00 per share
Purchase Price: $60.295 per share
Closing Date: November 1, 1995
Annual Dividend Rate: $3.10 per share
Initial Call Price: $81.00 per share
Daily Call Price Decline
Rate: $.006111 per share
Initial Premium for
Business Combinations: $6.60 per share
Daily Premium Decline Rate: $.006111 per share
Lock-Up Securities and
Lock-Up Period: Any securities similar to the
Offered Securities, the Preferred
Securities or the Company's
Common Stock; 60 days from the
date hereof
The Company hereby agrees that, without our prior written consent,
it will not, and will cause its subsidiaries not to, directly or indirectly,
sell, offer to sell, contract to sell, grant any option for the sale of or
otherwise dispose of or enter into any agreement to sell any shares of the
securities listed above as "Lock-Up Securities," or any securities convertible
into or exchangeable for Lock-Up Securities, for the period listed above as
the "Lock-Up Period" in respect of such Lock-Up Securities; provided, however,
that such restriction shall not affect the ability of the Company or its
subsidiaries to take any such action (i) as a consequence of obligations under
securities outstanding prior to the date hereof, (ii) in connection with any
employee benefit or incentive plans of the Company or its subsidiaries or
(iii) in connection with the offering of the Offered Securities contemplated
hereby.
All provisions contained in the document entitled SunAmerica Inc.
Underwriting Agreement Standard Provisions (Equity Securities) dated September
29, 1995, a copy of which is attached hereto, are herein incorporated by
reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein,
except that if any term defined in such document is otherwise defined herein,
the definition set forth herein shall control.
The Company will pay all expenses incident to the performance of
its obligations under this Agreement and will pay the expenses of printing all
documents relating to the offering and of the mailing and delivering of copies
thereof to the Underwriters and any fees charged by investment rating agencies
for rating the Offered Securities or the Preferred Securities.
The Company recognizes and acknowledges for all purposes of this
Agreement that the only information relating to any underwriter furnished to
the Company in writing by such Underwriter through the Manager expressly for
use in the Registration Statement or the Prospectus consists of the last
paragraph on the cover page of the Prospectus Supplement, and the names of the
Underwriters, the second paragraph and the last paragraph under the caption
"Underwriting" in the Prospectus Supplement.
Please confirm your agreement by having an authorized officer sign
a copy of this Agreement in the space set forth below.
Very truly yours,
MERRILL LYNCH & CO.,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
MORGAN STANLEY & CO. INCORPORATED
GOLDMAN, SACHS & CO.,
Acting severally on behalf of themselves and the several Underwriters named
herein
By: Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: _______________________
Name:
Title:
Accepted:
SUNAMERICA INC.
By: _______________________
Name: James R. Belardi
Title: Senior Vice President and Treasurer
SUNAMERICA INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(EQUITY SECURITIES)
September 29, 1995
From time to time, SunAmerica Inc., a Maryland corporation (the
"Company"), may enter into one or more underwriting agreements that provide
for the sale of designated securities to the several underwriters named
therein. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement").
The Underwriting Agreement, including the provisions incorporated therein by
reference, is herein referred to as this Agreement. Terms defined in the
Underwriting Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including a
prospectus, relating to the Offered Securities and has filed with, or
transmitted for filing to, or shall promptly hereafter file with or transmit
for filing to, the Commission a prospectus supplement (the "Prospectus
Supplement") specifically relating to the Offered Securities pursuant to Rule
424 under the Securities Act of 1933, as amended (the "Securities Act"). The
term "Registration Statement" means such registration statement, including the
exhibits thereto, as amended to the date of this Agreement. The term "Basic
Prospectus" means the prospectus included in the Registration Statement at the
time of effectiveness relating to senior and subordinated debt securities,
preferred stock and common stock of the Company and warrants to purchase the
foregoing. The term "Prospectus" means the Basic Prospectus together with the
Prospectus Supplement. The term "preliminary prospectus" means a preliminary
prospectus supplement specifically relating to the Offered Securities,
together with the Basic Prospectus. As used herein, the terms "Basic
Prospectus," "Prospectus" and "preliminary prospectus" shall include in each
case the documents, if any, incorporated by reference therein. The terms
"supplement" and "amendment" or "amend" as used herein shall include all
documents deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
The term "Depositary Shares" means the Depositary Shares of the
Company specified in the Underwriting Agreement, each Depositary Share
representing the portion specified in the Underwriting Agreement of a share of
the series of a share of the series of Preferred Stock, no par value, of the
Company (the "Preferred Stock") specified in the Underwriting Agreement. The
Preferred Stock will, when issued, be deposited by the Company against
delivery of Depositary Receipts ("Depositary Receipts") to be issued by the
Bank of New York, as depositary (the "Depositary"), under a Deposit Agreement
(the "Deposit Agreement") among the Company, the Depositary and the holders
from time to time of the Depositary receipts issued thereunder. Each
Depositary receipt will represent one or more Depositary Shares. If
Depositary Shares are being sold pursuant to the Underwriting Agreement then,
as used herein, term Depositary Shares also means the Offered Securities.
1. Representations and Warranties. The Company represents
and warrants to each of the Underwriters that:
(a) The Registration Statement (including the most recent
post-effective amendment thereto, if any) has been declared effective by the
Commission; no stop order suspending the effectiveness of the Registration
Statement is in effect, and no proceedings for such purpose are pending before
or threatened by the Commission.
(b) (i) Each document filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part
of the Registration Statement, when such part became effective, did not
contain, and each such part, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Registration Statement, since the
later of the date it became effective and the date of the most recent
post-effective amendment, if any, will not fail to reflect any facts or events
which individually or in the aggregate represent a fundamental change in the
information set forth in the Registration Statement as of such date, (iii) the
Registration Statement and the Prospectus comply, and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set forth
in this Section 1(b) do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to
any Underwriter furnished to the Company in writing by such Underwriter
through the Manager expressly for use therein.
(c) This Agreement and the transactions contemplated hereby
have been duly authorized, and this Agreement has been duly executed and
delivered by the Company.
(d) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Maryland, with corporate power and authority to own, lease and operate its
properties and to conduct its business as presently conducted and as described
in the Registration Statement and Prospectus; and the Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or be in good standing would not have a
material adverse effect on the condition, financial or otherwise, or the
earnings or business affairs of the Company and its subsidiaries, considered
as one enterprise.
(e) Each of SunAmerica Insurance Company, First SunAmerica
Life Insurance Company, Anchor National Life Insurance Company, SunAmerica
Asset Management Corp., Resources Trust Company, Royal Alliance Associates,
Inc. and SunAmerica Securities, Inc. (together, the "Subsidiaries") has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the corporate
power and authority to own, lease and operate its properties and to conduct
its business as presently conducted and as described in the Registration
Statement and Prospectus, and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify or
be in good standing would not have a material adverse effect on the condition,
financial or otherwise, or the earnings or business affairs of the Company and
its subsidiaries, considered as one enterprise; and all of the issued and
outstanding capital stock of each Subsidiary has been duly authorized and
validly issued, is fully paid and nonassessable and is owned (except for
directors qualifying shares) directly or through subsidiaries, by the Company,
free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity.
(f) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Registration Statement and Prospectus
(except for subsequent issuances, if any, pursuant to reservations, stock
option agreements, employee benefit plans or the exercise of convertible
securities which may be referred to in the Registration Statement and
Prospectus); all of the issued and outstanding shares of capital stock have
been duly authorized and validly issued and are fully paid, nonassessable and
not subject to any preemptive or similar rights.
(g) The shares of Preferred Stock represented by the
Depositary Shares have been duly authorized and, when delivered to and paid
for by the Underwriters in accordance with the terms of the Underwriting
Agreement, the Preferred Stock will be validly issued, fully paid and
non-assessable.
(h) None of the Company nor any of the Subsidiaries is in
violation of its respective charter or bylaws, as applicable, or in default
in the performance of any material obligation, agreement, covenant or
condition contained in any material contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or any of
the Subsidiaries is a party or by which any of them may be bound, or to
which any of the property or assets of the Company or of any of the
Subsidiaries is subject, or in violation of any applicable law,
administrative regulation or administrative or court order or decree, which
violation or default would, singly or in the aggregate, have a material
adverse effect on the condition, financial or otherwise, or the earnings or
business affairs of the Company and its subsidiaries, considered as one
enterprise; and the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement and the
Deposit Agreement and the issuance and sale of the Offered Securities and
the deposit of the Preferred Stock in accordance with the Deposit
Agreement, will not conflict with or constitute a breach of, or a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of the
Subsidiaries pursuant to, any material contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or any of
the Subsidiaries is a party or by which any of them may be bound, or to
which any of the property or assets of the Company or any of the
Subsidiaries is subject, except for a conflict, breach, default, lien,
charge or encumbrance which would not have a material adverse effect on the
condition, financial or otherwise, or the earnings or business affairs of
the Company and its subsidiaries considered as one enterprise, nor will
such action result in any violation of the provisions of the articles of
incorporation or by-laws of the Company or any of the Subsidiaries or any
applicable law, administrative regulation or administrative or court decree
and no consent, approval, authorization or order of or qualification with
any governmental body or agency is required for the performance by the
Company of its obligations under this Agreement or the issuance and sale of
the Offered Securities, except such as may be required by the securities or
Blue Sky laws or insurance securities laws of the various states in
connection with the offer and sale of the Offered Securities.
(i) There are no legal or governmental proceedings pending or,
to the knowledge of the Company threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or
any of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or which are
reasonably likely to result in any material adverse change in the condition,
financial or otherwise, or in the earnings or business affairs of the Company
and its subsidiaries, considered as one enterprise, or which would be
reasonably likely to materially and adversely affect a material portion of the
properties or assets thereof or which is reasonably likely to materially and
adversely affect the consummation of this Agreement; all pending legal or
governmental proceedings to which the Company or any of its subsidiaries is a
party or of which any of their respective property or assets is the subject
which are not described in the Registration Statement or the Prospectus,
including ordinary routine litigation incidental to the business of the
Company or any of its subsidiaries, are, considered in the aggregate, not
material; and there are no contracts or documents that are required to be
filed as exhibits to the Registration Statement by the Securities Act, the
Exchange Act or the rules and regulations thereunder, that have not been filed
as required, except that on the business day following the date of the
Underwriting Agreement, the Company will file on Form 8-K certain exhibits
relating to the Depositary Shares, the Preferred Stock and the transactions
contemplated hereby.
(j) Price Waterhouse LLP, the accountants who certified the
financial statements and supporting schedules of the Company included or
incorporated by reference in the Registration Statement and Prospectus, are
independent public accountants with respect to the Company and the
subsidiaries of the Company as required by the Securities Act and the rules
and regulations promulgated thereunder.
(k) The financial statements of the Company included or
incorporated by reference in the Registration Statement or Prospectus present
fairly the financial position of the Company and the consolidated subsidiaries
of the Company as of the dates indicated and the results of their operations
for the periods specified; except as otherwise stated in the Registration
Statement and Prospectus, said financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis; the ratios of earnings to combined fixed charges (including
preferred stock dividends) included in the Registration Statement or
Prospectus have been calculated in compliance with Item 503(d) of Regulation
S-K of the Commission; and the supporting schedules included or incorporated
by reference in the Registration Statement or Prospectus present fairly the
information required to be included therein.
(l) Since the respective dates as of which information is
given in the Registration Statement and Prospectus, and except as otherwise
stated or contemplated therein, (i) there has been no material adverse change
and no development involving a prospective material adverse change in the
condition, financial or otherwise, or in the earnings or business affairs of
the Company and its subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, (ii) there have been no
transactions entered into by the Company or any of the Subsidiaries which are
material to the Company and its subsidiaries, considered as one enterprise,
other than those entered into in the ordinary course of business and (iii)
except for regular quarterly dividends, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class of
its capital stock.
(m) The Company and the Subsidiaries possess such
certificates, authorizations or permits issued by the appropriate state or
federal regulatory agencies or bodies as are necessary to conduct the business
as now conducted by them and as described in the Registration Statement or
Prospectus, except where the failure to so possess such certificates,
authorizations or permits would not have a material adverse effect on the
condition, financial or otherwise, or the earnings or business affairs of the
Company and its subsidiaries, considered as one enterprise; and neither the
Company nor any of the Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, is reasonably
likely to have a material adverse effect on the condition, financial or
otherwise, or the earnings or business affairs of the Company and its
subsidiaries, considered as one enterprise.
(n) Neither the Company nor any of its affiliates is
presently doing business with the government of Cuba or with any person or
affiliate located in Cuba.
(o) There are no holders of securities of the Company with
currently exercisable registration rights to have any securities registered as
part of the Registration Statement or included in the offering contemplated by
this Agreement.
(p) Assuming due authorization, execution and delivery of
the Deposit Agreement by the Depositary, each Depositary Share will
represent an interest in the portion specified in the Underwriting
Agreement of a share of a validly issued, outstanding, fully paid and
nonassessable share of Preferred Stock; assuming due execution and delivery
of the Depositary Receipts by the Depositary pursuant to the Deposit
Agreement, the Depositary Receipts will entitle the holders thereof to the
benefits provided therein and in the Deposit Agreement.
(q) The Deposit Agreement has been duly authorized and, as of
the Closing Date, will have been duly executed and delivered by the Company.
(r) The Offered Securities, the Preferred Stock and the Common
Stock issuable upon conversion or redemption of the Preferred Stock conform in
all material respects to the respective statements relating thereto contained
in the Prospectus and the Registration Statement.
(s) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(t) The shares of Common Stock, par value $1 per share (the
"Common Stock"), initially reserved for issuance upon conversion of the
Preferred Stock (the "Underlying Securities") have been duly authorized and
have been or, in the case of any shares of Common Stock issuable at the
Company's option upon redemption of the Preferred Stock, such shares will be,
prior to their issuance, validly reserved for issuance.
(u) When the Underlying Securities are issued upon conversion
of the Preferred Stock in accordance with the terms of the Articles
Supplementary governing the Preferred Stock (the "Articles Supplementary"),
such Underlying Securities will be validly issued, fully paid and
non-assessable and will not be subject to any preemptive or other right to
subscribe for or purchase such Underlying Securities.
2. Public Offering. The Company is advised by the Manager
that the Underwriters propose to make a public offering of their respective
portions of the Underwriters' Securities as soon after this Agreement has been
entered into as in the Manager's judgment is advisable. The terms of the
public offering of the Underwriters' Securities are set forth in the
Prospectus.
3. Purchase and Delivery. Payment for the Offered Securities
to be purchased by the Underwriters on the Closing Date or the Option Closing
Date, as the case may be, shall be made by certified or official bank check or
checks payable to the order of the Company in New York Clearing House or
similar next-day funds at the time and place set forth in the Underwriting
Agreement, upon delivery to the Manager for the respective accounts of the
several Underwriters of the Offered Securities in certificated form,
registered in such names and in such denominations as the Manager shall
request in writing not less than one full business day prior to the date of
delivery, with any transfer taxes payable in connection with the transfer of
the Offered Securities to the Underwriters duly paid.
4. Conditions to Closing. The several obligations of the
Underwriters hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such
purpose are pending before or threatened by the Commission.
(b) Subsequent to the execution and delivery of the
Underwriting Agreement and prior to the Closing Date, there shall not
have occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations,
of the Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus.
(c) The Manager shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive
officer of the Company, to the effect set forth in clauses (a) and
(b) above and to the effect that the representations and
warranties of the Company contained in this Agreement are true and
correct as of the Closing Date and that the Company has complied
with all of the agreements and satisfied all of the obligations on
its part to be performed or satisfied on or before the Closing
Date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date
opinions of Piper & Marbury L.L.P., Maryland counsel to the Company,
Susan L. Harris, Esq., Vice President and General Counsel--Corporate
Affairs for the Company, and Davis Polk & Wardwell, 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, Ms.
Harris 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 Davis Polk & Wardwell and
Piper & Marbury L.L.P., and Davis Polk & Wardwell may rely, as to
matters governed by laws other than the laws of the State of New York
and the federal law of the United States of America, on an opinion of
Piper & Marbury L.L.P., in each case so long as such opinion shall be
dated the Closing Date and in form and substance satisfactory to the
Manager, and shall expressly permit the Underwriters to rely thereon
as if such opinion were addressed to Underwriters.
(e) The Manager shall have received on the Closing Date an
opinion of special counsel for the Underwriters (the selection of
whom shall be approved by the Company), dated the Closing Date, to
the effect set forth in paragraphs (i), (ii), (iii) and (iv) in
Exhibit A and paragraphs (i), (ii), (iv)(2) and (3), (v) and (vi) in
Exhibit C. In giving such opinion, such counsel may rely, as to
matters governed by laws other than the federal law of the United
States of America, on an opinion or opinions of local counsel
satisfactory to the Manager, so long as each such opinion shall be
dated the Closing Date and in form and substance satisfactory to the
Manager, and shall expressly permit the Underwriters to rely thereon
as if such opinion were addressed to Underwriters.
(f) The Manager shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance satisfactory to
the Manager, from the Company's independent public accountants,
containing statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters in accordance with
AICPA standards, with respect to the financial statements and certain
financial information contained in or incorporated by reference into
the Prospectus.
(g) The Offered Securities and the Underlying Securities
shall have been approved for listing on the New York Stock Exchange
upon notice of issuance.
(h) On the Closing Date, (i) the Preferred Stock shall have a
rating of at least "Baa2" from Moody's Investors Service, Inc. and at
least "A-" from Standard & Poor's Corporation as evidenced in a
letter from such rating agencies or by other evidence satisfactory to
the Manager and (ii) no securities of the Company shall have been
downgraded or placed on any "watch list" for possible downgrading by
any nationally recognized statistical rating organization and the
Company shall have delivered to the Manager a letter from such rating
agency (or other evidence satisfactory to the Manager), confirming
that the Preferred Stock has such ratings.
(i) The Manager shall have received a letter from Mr. Eli
Broad, substantially as set forth in the Prospectus in the last
sentence of the fourth paragraph under the caption "Underwriting,"
and such letter shall remain in effect and no terms thereof shall
have been violated.
The several obligations of the Underwriters to purchase
Additional Securities hereunder are subject to delivery to the Manager on the
Option Closing Date of such opinions, certificates and documents contemplated
by this Section 5 as such Manager shall reasonably request relating to the
issuance of the Additional Securities.
5. Covenants of the Company. In further consideration of the
agreements of the Underwriters contained herein, the Company covenants as
follows:
(a) To furnish the Manager, without charge, a signed copy of
the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the
Registration Statement (without exhibits thereto) and, during the
period mentioned in paragraph (c) below, as many copies of the
Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto or to the Registration Statement
as the Manager may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Offered Securities,
to furnish to the Manager a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement
to which the Manager reasonably objects.
(c) If, during such period after the first date of the public
offering of the Offered Securities as the Prospectus is required by
law to be delivered in connection with sales by an Underwriter or
dealer, any event shall occur or condition exist as a result of which
it is necessary to amend or supplement the Prospectus in order to
make the statements therein, in the light of the circumstances when
the Prospectus is delivered to a purchaser, not misleading, forthwith
to prepare, file with the Commission and furnish, at its own expense,
to the Underwriters, and to the dealers (whose names and addresses
the Manager will furnish to the Company) to which Offered Securities
may have been sold by the Manager on behalf of the Underwriters and
to any other dealer upon request, either amendments or supplements to
the Prospectus so that the statements in the Prospectus as so amended
or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as so amended or supplemented, will comply with law.
(d) To endeavor to qualify the Offered Securities for offer
and sale under the securities or Blue Sky laws or insurance
securities laws of such jurisdictions as the Manager shall reasonably
request and to pay all expenses (including fees and disbursements of
counsel) in connection with such qualification and in connection with
any review of the offering of the Offered Securities by the National
Association of Securities Dealers, Inc.
(e) To make generally available to the Company's security
holders and to the Manager as soon as practicable an earning
statement covering a twelve month period beginning on the first day
of the first full fiscal quarter after the date of this Agreement,
which earning statement shall satisfy the provisions of Section 11(a)
of the Securities Act and the rules and regulations of the Commission
thereunder.
(f) During the period mentioned in paragraph (c) above, to
advise the Underwriters promptly of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or the initiation or threatening of any proceeding for that
purpose.
6. Indemnification and Contribution. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities, joint or several (including, without
limitation, any legal or other expenses reasonably incurred by any Underwriter
or any such controlling person in connection with defending or investigating
any such action or claim), caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
amendment thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with information furnished to the Company by any Underwriter in writing
through the Manager expressly for use therein; provided, however, that the
foregoing indemnity agreement with respect to any preliminary prospectus shall
not inure to the benefit of any Underwriter from whom the person asserting
such losses, claims, damages or liabilities purchased Offered Securities, or
any person controlling such Underwriter, if a copy of the Prospectus (as then
amended or supplemented, if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such Underwriter
to such person, if required by law so to have been delivered, at or prior to
such purchase, and if the Prospectus (as so amended or supplemented) would
have cured the defect giving rise to such losses, claims, damages or
liabilities. This indemnity will be in addition to any liability which the
Company may otherwise have.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the
Company to such Underwriter, but only to the extent that any untrue statement
or omission or alleged untrue statement or omission was made in reliance upon
and in conformity with information furnished to the Company by any Underwriter
in writing through the Manager expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto. This indemnity will be in addition to any liability
which the Underwriters may otherwise have.
In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the two preceding paragraphs,
such person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing and
the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the Manager,
in the case of parties indemnified pursuant to the second preceding paragraph,
and by the Company, in the case of parties indemnified pursuant to the first
preceding paragraph. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first or second
paragraph in this Section 6 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Offered Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Offered Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of such Offered Securities (before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus Supplement, bear to the aggregate public offering
price of the Offered Securities. The relative fault of the Company on the one
hand and of the Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this
Section 6 are several in proportion to the respective principal amounts of
Offered Securities purchased by each of such Underwriters and not joint.
The Company and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 6 were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 6, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Offered Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
remedies provided for in this Section 6 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution provisions contained in this
Section 6 and the representations and warranties of the Company contained
herein shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on
behalf of the Company, its directors or officers or any person controlling the
Company and (iii) acceptance of and payment for any of the Offered Securities.
7. Termination. This Agreement shall be subject to
termination, by notice given by the Manager to the Company, if (a) after the
execution and delivery of the Underwriting Agreement and prior to the Closing
Date (i) trading generally shall have been suspended or materially limited on
or by, as the case may be, the New York Stock Exchange or the American Stock
Exchange, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the
Manager, is material and adverse, or (iv) a general moratorium on commercial
banking activities in New York shall have been declared by either federal or
New York State authorities, and (b) in the case of any of the events specified
in clauses (a)(i) through (iii), such event, singly or together with any other
such event, makes it, in the judgment of the Manager, impracticable to market
the Offered Securities on the terms and in the manner contemplated in the
Prospectus.
8. Defaulting Underwriters. If, on the Closing Date or the
Option Closing Date, as the case may be, any one or more of the Underwriters
shall fail or refuse to purchase Offered Securities that it has or they have
agreed to purchase hereunder on such date, and the aggregate number of Offered
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate number of
the Offered Securities to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the number of Offered
Securities set forth opposite their respective names above bears to the
aggregate number of Offered Securities set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as the Manager
may specify, to purchase the Offered Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the number of Offered Securities that
any Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 8 by a number in excess of one-ninth of such number
of Offered Securities without the written consent of such Underwriter. If, on
the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Offered Securities to be purchased on such date and the aggregate
number of Offered Securities with respect to which such default occurs is more
than one-tenth of the aggregate number of Offered Securities to be purchased
on such date, and arrangements satisfactory to the Manager and the Company for
the purchase of such Offered Securities are not made within 36 hours after
such default, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter or the Company. In any such case either the
Manager or the Company shall have the right to postpone the Closing Date but
in no event for longer then seven days, in order that the required changes, if
any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. If, on the Option Closing Date,
any Underwriter or Underwriters shall fail or refuse to purchase Offered
Securities to be purchased on such date and the aggregate number of Offered
Securities with respect to which such default occurs is more than one-tenth of
the aggregate number of Offered Securities to be purchased on such date, the
non-defaulting Underwriters shall have the option to (i) terminate their
obligation hereunder to purchase Offered Securities to be purchased on such
date or (ii) purchase not less than the number of Offered Securities that such
non-defaulting Underwriters would have been obligated to purchase on such date
in the absence of such default. Any action taken under this paragraph shall
not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement,
or if for any reason the Company shall be unable to perform its obligations
under this Agreement, the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering of the Offered Securities.
Nothing in the foregoing sentence shall limit the Company's obligations to pay
expenses as provided in Section 5.
9. Miscellaneous. The Underwriting Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York.
10. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
11. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same agreement.
Exhibit A
Opinion of Maryland Counsel for the Company
The opinion of Piper & Marbury L.L.P., Maryland counsel for the
Company, to be delivered pursuant to Section 4(d) of the Underwriting
Agreement, shall be limited to the laws of the State of Maryland and shall be
to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws under the
State of Maryland; and the Company has the corporate power under the
laws of the State of Maryland and under its charter to own, lease and
operate its properties and to conduct its business as described in
the Registration Statement and the Prospectus.
(ii) each of the Deposit Agreement and the Underwriting
Agreement have been duly authorized and executed by the Company;
(iii) the Preferred Stock, the Offered Securities and the deposit
of the Preferred Stock in accordance with the Deposit Agreement have
been duly authorized, and when issued and delivered by the Company
pursuant to this Agreement, the Preferred Stock will be validly
issued, and fully paid and non-assessable;
(iv) the statements in the Prospectus under the captions
"Description of the Series E Shares and the Depository Shares --
Series E Shares" and "Description of Capital Stock," in each case
insofar as such statements constitute summaries of the legal matters
or documents or proceedings referred to therein, fairly present the
matters referred to therein;
(v) the execution and delivery of each of the Deposit
Agreement and the Underwriting Agreement and the consummation of the
transactions contemplated therein, will not result in any violation
of the provisions of the articles of incorporation or by-laws of the
Company or, any material applicable law, administrative regulations
or administrative or court decree applicable to the Company (except
that no opinion need be expressed with respect to Maryland securities
or Blue Sky laws);
(vi) the shares of Common Stock issuable upon conversion of the
Preferred Stock have been duly authorized and reserved for issuance
upon such conversion, and such shares, when issued and delivered upon
such conversion in the manner provided in the Articles Supplementary
will be validly issued, fully paid and non-assessable and the
issuance of such shares upon such conversion in the manner provided
in the Articles Supplementary will not be subject to any preemptive
or other similar rights arising by law;
(vii) The forms of certificates used to evidence the Offered
Securities, the Preferred Stock and the Common Stock comply with all
applicable statutory requirements; and
(viii) The Company's Restated Articles of Incorporation filed
with the Maryland State Department of Assessments and Taxation on
October 3, 1991 represented on such date the true, correct and
complete articles of incorporation, as amended, governing the
Company;
Exhibit B
Opinion of Counsel for the Company
The opinion of Susan L. Harris, Vice President and General
Counsel--Corporate Affairs of the Company, to be delivered pursuant to Section
5(d) of the Underwriting Agreement shall be to the effect that:
(i) to the best of such counsel's knowledge and information,
the Company is duly qualified as a foreign corporation to transact
business and in good standing in each jurisdiction in which such
qualification is required, except where the failure to so qualify or
be in good standing would not have a material adverse effect on the
condition, financial or otherwise, on the earnings or business
affairs of the Company and its subsidiaries, taken as a whole;
(ii) The authorized, issued and outstanding capital stock of
the Company is correctly set forth in the Prospectus under
"Description of the Series E Shares and Depositary Shares--Series E
Shares" and "Description of Capital Stock" as of its date;
(iii) Each Subsidiary has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own, lease and operate its properties and to conduct its
business as presently conducted and as described in the Registration
Statement and Prospectus, it being understood that as to each
Subsidiary other than Anchor National Life Insurance Company, the
foregoing opinion is based solely on a certificate dated as of a
recent date of an appropriate official of the jurisdiction of
incorporation of such subsidiaries and, as applicable, a letter from
CT Corporation System dated as of a recent date as to the good
standing of such Subsidiary in such jurisdiction, copies of which
will be delivered to the Manager on the date of such opinion; nothing
has come to the attention of such counsel to lead such counsel to
believe that any of SunAmerica Life Insurance Company, Anchor
National Life Insurance Company or SunAMerica Asset Management Corp.
is not duly qualified as a foreign corporation to transact business
or is not in good standing in each jurisdiction in which such
qualification is required, except where the failure to so qualify or
be in good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings or business
affairs of the Company and its subsidiaries, considered as one
enterprise; to the best of such counsel's knowledge and information,
all of the issued and outstanding capital stock of each Subsidiary is
owned (except for directors qualifying shares) directly or through
subsidiaries, by the Company, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity;
(iv) the issuance and delivery of the Preferred Stock and
the Common Stock issuable upon conversion of the Preferred Stock,
the execution and delivery of this Agreement and the Deposit
Agreement and the consummation of the transactions contemplated
herein and therein, will not conflict with or constitute a breach
of, or default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property of assets of the
Company or any of the Subsidiaries pursuant to, any material
contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Company or any of the Subsidiaries
is a party or by which it or any of them may be bound, or to which
any of the property or assets of the Company or any of the
Subsidiaries is subject, except for a conflict, breach, default,
lien, charge or encumbrance which would not have a material
adverse effect on the condition, financial or otherwise, or the
earnings or business affairs of the Company and its subsidiaries
considered as one enterprise, nor will such action result in any
violation of the provisions of the articles of incorporation or
by-laws of the Company and the Subsidiaries or any material
applicable law, administrative regulation or administrative or
court decree and, to the best of such counsel's knowledge and
information, no consent, approval, authorization or order of or
qualification with any court or administrative or governmental
authority or agency is required for the performance by the Company
of its obligations under the Underwriting Agreement or the
issuance and sale of the Offered Securities or the Preferred
Stock, except such as may be required by the Securities Act or the
rules and regulations thereunder, the securities or Blue Sky laws
or insurance securities laws of the various states or except such
as have been obtained;
(v) to the best of such counsel's knowledge and information,
there are no statutes or regulations that are required to be
described in the Registration Statement or the Prospectus that are
not described as required and there are no legal or governmental
proceedings pending or threatened which are required to be described
in the Registration Statement, other than these disclosed therein;
(vi) To the best of such counsel's knowledge and information
there are no contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments required to be described or
referred to in the Registration Statement or to be filed as exhibits
thereto, other than those described or referred to therein or filed
as exhibits thereto, the descriptions thereof or references thereto
are correct in all material respects and, to the best of such
counsel's knowledge and information, no default exists in the due
performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage
loan agreement, note, lease or other instrument so described,
referred to or filed, which default could have a material adverse
effect on the Company and its subsidiaries considered as one
enterprise;
(vii) such counsel (1) is of the opinion that each document,
if any, filed pursuant to the Exchange Act and incorporated by
reference in the Prospectus at the time it was filed or last amended
(except for financial statements, supporting schedules and other
financial data included or incorporated by reference therein, as to
which such counsel need not express any opinion) appeared on its face
to be appropriately responsive in all material respects to the
requirements of the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (2) believes that (except
for financial statements, supporting schedules and other financial
data included or incorporated by reference therein, as to which such
counsel need not express any belief) each part of the Registration
Statement, when such part became effective and as of the date of the
Underwriting Agreement did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
(3) is of the opinion that the Registration Statement, as of its
effective date, and the Prospectus, as of the date hereof, (except in
each case for financial statements, supporting schedules and other
financial data included or incorporated by reference therein, as to
which such counsel need not express any opinion) appeared on their
face to be appropriately responsive in all material respects to the
requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder and (4) believes that
(except for financial statements, supporting schedules and other
financial data included or incorporated by reference therein, as to
which such counsel need not express any belief) the Prospectus as of
the date such opinion is delivered does not contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; and
(viii) the Registration Statement is effective under the
Securities Act of 1933, as amended, and to the best of such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement is in effect under the Securities Act, and no
proceedings for such purpose are pending before or threatened by the
Commission.
With respect to the foregoing paragraph, such counsel may
state that her opinion and belief are based upon her participation in the
preparation of the Registration Statement and Prospectus and any amendments,
supplements thereto and documents incorporated therein by reference and review
and discussion of the contents thereof, but are without independent check or
verification, except as specified.
Exhibit C
Opinion of Special Counsel for the Company
The opinion of Davis Polk & Wardwell, special counsel to the
Company, to be delivered pursuant to Section 4(d) of the Underwriting
Agreement shall be to the effect that:
(i) assuming due authorization, execution and delivery by the
Company, the Deposit Agreement is a valid and binding agreement of
the Company, enforceable in accordance with its terms except as (a)
the enforceability thereof may be limited by bankruptcy, insolvency
or similar laws affecting creditors' rights generally and (b) the
availability of equitable remedies may be limited by equitable
principles of general applicability;
(ii) When the Depositary Shares evidenced by the Depositary
Receipts are issued and delivered in accordance with the terms of the
Deposit Agreement against the deposit of duly authorized and issued,
fully paid and nonassessable shares of Preferred Stock, the
Depositary Receipts will entitle the holders thereof to the benefits
provided therein and in the Deposit Agreement;
(iii) the statements in the Prospectus under the captions
"Description of the Series E Shares and the Depositary Shares --
Depositary Shares" and "Federal Income Tax Considerations," insofar
as such statements constitute summaries of the legal matters or
documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters, documents
or proceedings and fairly summarize the matters referred to therein;
(iv) such counsel (1) believes that (except for financial
statements, supporting schedules and other financial data included or
incorporated by reference therein and any of the documents
incorporated by reference therein, as to which such counsel need not
express any belief) each part of the Registration Statement, when
such part became effective and as of the date of the Underwriting
Agreement did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (2) is of
the opinion that the Registration Statement as of its effective date
and the Prospectus as of the date of such opinion (except for
financial statements, supporting schedules and other financial data
included or incorporated by reference therein and any of the
documents incorporated or deemed to be incorporated by reference
therein, as to which such counsel need not express any opinion)
appeared on their face to be appropriately responsive in all material
respects to the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder and (3) believes
that (except for financial statements, supporting schedules and other
financial data included or incorporated by reference therein and any
of the documents incorporated or deemed to be incorporated by
reference therein, as to which such counsel need not express any
belief) the Prospectus as of the date such opinion is delivered does
not contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading; and
(v) the Registration Statement is effective under the
Securities Act and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement is
in effect under the Securities Act, and no proceedings for such
purpose are pending before or threatened by the Commission.
(vi) the Company is not an "investment company" or a Company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(vii) to the best of such counsel's knowledge and information,
no consent, approval, authorization or order of or qualification with
any New York State or federal court or New York State or federal
administrative or governmental authority or agency is required for
the issuance and sale of the Offered Securities, except such as may
be required under the Securities Act, the Exchange Act or by the
securities or Blue Sky laws or insurance securities laws of the
various states or except such as have been allowed.
With respect to the opinion set forth in paragraph (iv), such
counsel may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and the
Prospectus and any amendments or supplements thereto (other than the documents
incorporated by reference) and upon review and discussion of the contents
thereof (including documents incorporated by reference) but are without
independent check or verification, except as specified.
EXHIBIT 4.9
SunAmerica Inc.
ARTICLES SUPPLEMENTARY
SunAmerica Inc., a Maryland corporation, having its
principal office in Baltimore City, Maryland (hereinafter called the
"Corporation"), hereby certifies to the State Department of Assessment and
Taxation of Maryland that:
FIRST: Pursuant to authority expressly vested in the Board of
Directors of the Corporation by Article Fifth of the Charter of the
Corporation, the Board of Directors has duly divided and classified 92,000
shares of the Preferred Stock of the Corporation into a class designated
Series E Mandatory Conversion Premium Dividend Preferred Stock and provided
for the issuance of such Preferred Stock.
SECOND: The terms of the Series E Mandatory Conversion Premium
Dividend Preferred Stock established by the Board of Directors, in addition to
those set forth in Article Fifth of the Charter of the Corporation applicable
to all classes of Preferred Stock, are as follows:
Section 1. Designation and Amount. The class of Preferred
Stock shall be designated "Series E Mandatory Conversion Premium Dividend
Preferred Stock" and the authorized number of shares constituting such class
shall be 92,000.
Section 2. Dividends. (a) In respect of the period
beginning on the date of issuance of the Series E Mandatory Conversion
Premium Dividend Preferred Stock and ending on and including November 1,
1998 (the "Preferred Period"), the holders of outstanding shares of the
Series E Mandatory Conversion Premium Dividend Preferred Stock will be
entitled to receive, subject to the rights of holders of any class of
Preferred Stock or other class of stock which the Corporation may in the
future issue which ranks senior to, or on a parity with, the Series E
Mandatory Conversion Premium Dividend Preferred Stock in respect of
dividends, and when, as and if declared by the Board of Directors out of
funds legally available therefor, cumulative preferential cash dividends at
the per share rate of $38.75 per quarter for each of the quarters ending on
March 14, June 14, September 14 and December 14 of each year and no more,
payable in arrears on the fifteenth day of March, June, September and
December, respectively (each such date being hereinafter referred to as a
"Preferred Dividend Payment Date"), commencing December 15, 1995. If any
Preferred Dividend Payment Date shall not be a business day (as defined in
clause (i) of paragraph (h) of Section 3), then the Preferred Dividend
Payment Date shall be on the next succeeding business day. Each such
dividend will be payable to holders of record as they appear on the books
of the Corporation or any transfer agent for the Series E Mandatory
Conversion Premium Dividend Preferred Stock on such record dates, not less
than 10 nor more than 50 days preceding the payment dates thereof, as shall
be fixed by the Board of Directors. Dividends on the Series E Mandatory
Conversion Premium Dividend Preferred Stock in respect of the Preferred
Period shall accrue on a daily basis commencing on the date of issuance of
the Series E Mandatory Conversion Premium Dividend Preferred Stock and
accrued dividends for each quarterly dividend period shall accumulate, to
the extent not paid, on the Preferred Dividend Payment Date first following
the quarter for which they accrue. Accumulated unpaid dividends shall not
bear interest. Dividends on the Series E Mandatory Conversion Premium
Dividend Preferred Stock shall accrue whether or not the Corporation has
earnings, whether or not there are funds legally available for the payment
of such dividends and whether or not such dividends are declared.
Dividends (or cash amounts equal to accrued and unpaid dividends) payable
on the Series E Mandatory Conversion Premium Dividend Preferred Stock for
any period shorter than a quarterly dividend period shall be computed on
the basis of a 360-day year of twelve 30-day months.
(b) Holders of the shares of Series E Mandatory Conversion
Premium Dividend Preferred Stock shall not be entitled to any dividends,
whether payable in cash, property or stock, in excess of full cumulative
dividends, as herein provided.
Section 3. Redemptions or Conversions.
(a) Automatic Conversion on Mandatory Conversion Date.
Unless earlier called for redemption in accordance with the provisions hereof,
on November 1, 1998 (the "Mandatory Conversion Date"), each outstanding share
of Series E Mandatory Conversion Premium Dividend Preferred Stock shall
automatically convert into:
(i) fully paid and non-assessable shares of Common Stock at
the Common Equivalent Rate (determined as provided in paragraph (d)
of this Section 3) in effect on the Mandatory Conversion Date; and
(ii) the right to receive an amount in cash equal to all
accrued and unpaid dividends on such share of Series E Mandatory
Conversion Premium Dividend Preferred Stock to and including the
Mandatory Conversion Date, whether or not earned or declared, out
of funds legally available therefor (and dividends shall cease to
accrue as of the Mandatory Conversion Date).
At the option of the Corporation and provided that the
Corporation has sufficient authorized and reserved shares of Common Stock,
it may deliver on the Mandatory Conversion Date in lieu of some or all of
the cash consideration described in clause (ii) above, fully paid and non-
assessable shares of Common Stock. The number of shares of Common Stock to
be delivered in lieu of any cash consideration described in such clause
(ii) shall be determined by dividing the amount of cash consideration that
the Corporation has elected to deliver in Common Stock by the Current
Market Price (as defined in clause (v) of paragraph (d) of this Section 3)
of the Common Stock determined on the second Trading Date (as defined in
clause (vi) of paragraph (h) of this Section 3) immediately preceding the
Mandatory Conversion Date.
(b) Automatic Conversion Upon the Occurrence of Certain
Events. Immediately prior to the effectiveness of a merger or consolidation
of, or a statutory share exchange involving, the Corporation that results in
the conversion or exchange of the Common Stock into, or the right to receive,
other securities or other property (whether of the Corporation or any other
entity) (any such merger, consolidation or share exchange being referred to
herein as a "Merger or Consolidation"), each outstanding share of Series E
Mandatory Conversion Premium Dividend Preferred Stock shall automatically
convert into:
(i) fully paid and non-assessable shares of Common Stock at
the Common Equivalent Rate in effect on the Effective Date (as
defined in clause (v) of paragraph (h) of this Section 3); plus
(ii) the right to receive an amount in cash equal to all
accrued and unpaid dividends on such share of Series E Mandatory
Conversion Premium Dividend Preferred Stock to but excluding the
Effective Date, whether or not earned or declared, out of funds
legally available therefor (and dividends shall cease to accrue as
of the Effective Date); plus
(iii) the right to receive an amount in cash initially equal to
$330.00, declining by $.305550 on each day following November 1, 1995
(computed on the basis of a 360-day year of twelve 30-day months) to
$18.35 on September 1, 1998 and equal to zero thereafter, in each
case determined with reference to the Effective Date,
unless sooner redeemed.
At the option of the Corporation and provided that the
Corporation has sufficient authorized and reserved shares of Common Stock,
it may deliver on the Effective Date in lieu of some or all of the cash
consideration described in clauses (ii) and (iii) above, fully paid and
non-assessable shares of Common Stock. The number of shares of Common
Stock to be delivered in lieu of any cash consideration described in such
clauses (ii) and (iii) shall be determined by dividing the amount of cash
consideration that the Corporation has elected to deliver in Common Stock
by the Current Market Price (as defined in clause (v) of paragraph (d) of
this Section 3) of the Common Stock determined as of the second Trading
Date (as defined in clause (vi) of paragraph (h) of this Section 3)
immediately preceding the Notice Date (as defined in clause (iv) of
paragraph (h) of this Section 3).
(c) Right to Call for Redemption. At any time and from time
to time prior to the Mandatory Conversion Date and provided that the
Corporation has sufficient authorized and reserved shares of Common Stock, the
Corporation shall have the right to call, in whole or in part, the outstanding
shares of Series E Mandatory Conversion Premium Dividend Preferred Stock for
redemption (subject to the notice provisions set forth in paragraph (i) of
this Section 3). Upon such call, the Corporation shall deliver to the holders
thereof in exchange for each such share called for redemption:
(i) a number of fully paid and non-assessable shares of
Common Stock determined by dividing the Call Price (as defined in clause (ii)
of paragraph (h) of this Section 3) in effect on the date established for
redemption by the Current Market Price of the Common Stock determined as of
the second Trading Date immediately preceding the Notice Date; and
(ii) an amount in cash equal to all accrued and unpaid
dividends on such share to but excluding such redemption date out of funds
legally available therefor (and dividends shall cease to accrue on each
share called for redemption as of such date).
At the option of the Corporation and provided that the
Corporation has sufficient authorized and reserved shares of Common Stock, it
may deliver on the redemption date in lieu of some or all of the cash
consideration described in clause (ii) above, fully paid and non-assessable
shares of Common Stock. The number of shares of Common Stock to be delivered
in lieu of any cash consideration described in such clause (ii) shall be
determined by dividing the amount of cash consideration that the Corporation
has elected to deliver in Common Stock by the Current Market Price (as defined
in clause (v) of paragraph (d) of this Section 3) of the Common Stock
determined on the second Trading Date (as defined in clause (vi) of paragraph
(h) of this Section 3) immediately preceding the redemption date.
(d) Common Equivalent Rate; Adjustments. The Common
Equivalent Rate to be used to determine the number of shares of Common
Stock to be delivered on the conversion of the Series E Mandatory
Conversion Premium Dividend Preferred Stock into shares of Common Stock
pursuant to paragraphs (a) and (b) of this Section 3 shall be initially 50
shares of Common Stock for each share of Series E Mandatory Conversion
Premium Dividend Preferred Stock; provided, however, that such Common
Equivalent Rate shall be subject to adjustment from time to time as
provided below in this paragraph (d). All adjustments to the Common
Equivalent Rate shall be calculated to the nearest 1/100th of a share of
Common Stock (with 5/1000th of a share being rounded to the next lower
1/100th of a share). Such rate in effect at any time is herein called the
"Common Equivalent Rate."
(i) If the Corporation shall either:
(1) pay a dividend or make a distribution with
respect to Common Stock in shares of Common Stock,
(2) subdivide or split its outstanding shares of
Common Stock,
(3) combine its outstanding shares of Common
Stock into a smaller number of shares, or
(4) issue by reclassification of its shares of
Common Stock any shares of Common Stock of the
Corporation
then, in any such event, the Common Equivalent Rate in effect
immediately prior thereto shall be adjusted so that the holder
of a share of Series E Mandatory Conversion Premium Dividend
Preferred Stock shall be entitled to receive on the conversion
of such share of Series E Mandatory Conversion Premium Dividend
Preferred Stock, the number of shares of Common Stock of the
Corporation which such holder would have owned or been entitled
to receive after the happening of any of the events described
above had such share of Series E Mandatory Conversion Premium
Dividend Preferred Stock been surrendered for conversion at the
Common Equivalent Rate in effect immediately prior to such
time. Such adjustment shall become effective at the opening of
business on the business day next following the record date for
determination of stockholders entitled to receive such dividend
or distribution in the case of a dividend or distribution and
shall become effective immediately after the effective time in
case of a subdivision, split, combination or reclassification.
Any shares of Common Stock issuable in payment of a dividend or
distribution shall be deemed to have been issued immediately
prior to the close of business on the record date for such
dividend or distribution for purposes of calculating the number
of outstanding shares of Common Stock under clauses (ii) and
(iii) below.
(ii) If the Corporation shall issue rights or warrants
to all holders of its Common Stock entitling them (for a period
not exceeding 45 days from the date of such issuance) to
subscribe for or purchase shares of Common Stock at a price per
share less than the Current Market Price per share of the
Common Stock on the record date for the determination of
stockholders entitled to receive such rights or warrants, then
in each case the Common Equivalent Rate shall be adjusted by
multiplying the Common Equivalent Rate in effect immediately
prior thereto by a fraction, of which the numerator shall be
the number of shares of Common Stock outstanding on the date of
issuance of such rights or warrants, immediately prior to such
issuance, plus the number of additional shares of Common Stock
offered for subscription or purchase, and of which the
denominator shall be the number of shares of Common Stock
outstanding on the date of issuance of such rights or warrants,
immediately prior to such issuance, plus the number of shares
which the aggregate offering price of the total number of
shares so offered for subscription or purchase would purchase
at the Current Market Price per share of the Common Stock on
the record date for determining stockholders entitled to
receive such right or warrants (determined by multiplying such
total number of shares by the exercise price of such rights or
warrants and dividing the product so obtained by such Current
Market Price). Shares of Common Stock owned by or held for the
account of the Corporation or another company of which a
majority of the shares entitled to vote in the election of
directors are held, directly or indirectly, by the Corporation
shall not be deemed to be outstanding for purposes of such
computation. Such adjustment shall become effective at the
opening of business on the business day next following the
record date for the determination of stockholders entitled to
receive such rights or warrants. To the extent that shares of
Common Stock are not delivered after the expiration of such
rights or warrants, the Common Equivalent Rate shall be
readjusted to the Common Equivalent Rate which would then be in
effect had the adjustments made upon the issuance of such
rights or warrants been made upon the basis of delivery of only
the number of shares of Common Stock actually delivered.
(iii) If the Corporation shall pay a dividend or make a
distribution to all holders of its Common Stock of evidences of
its indebtedness or other assets (including shares of capital
stock of the Corporation but excluding any cash dividends or
any distributions and dividends referred to in clause (i)
above), or shall distribute to all holders of its Common Stock
rights or warrants to subscribe for or purchase securities of
the Corporation or any of its subsidiaries (other than those
referred to in clause (ii) above), then in each such case the
Common Equivalent Rate shall be adjusted by multiplying the
Common Equivalent Rate in effect immediately prior to the date
of such dividend or distribution by a fraction, of which the
numerator shall be the Current Market Price per share of Common
Stock on the record date for the determination of stockholders
entitled to receive such dividend or distribution, and of which
the denominator shall be such Current Market Price per share of
Common Stock less the fair market value (as determined by the
Board of Directors of the Corporation, whose determination
shall be conclusive) as of such record date of the portion of
the assets or evidences of indebtedness so distributed, or of
such subscription rights or warrants, applicable to one share
of Common Stock. Such adjustment shall become effective on the
opening of business on the business day next following the
record date for the determination of stockholders entitled to
receive such dividend or distribution.
(iv) Anything in this Section 3 notwithstanding, the
Corporation shall be entitled to make such upward adjustments
in the Common Equivalent Rate, in addition to those required by
this Section 3, as the Corporation in its discretion shall
determine to be advisable, in order that any stock dividends,
subdivision of shares, distribution of rights to purchase stock
or securities, or a distribution of securities convertible into
or exchangeable for stock (or any transactions which could be
treated as any of the foregoing transactions pursuant to
Section 305 of the Internal Revenue Code of 1986, as amended)
hereafter made by the Corporation to its stockholders shall not
be taxable.
(v) As used in this Section 3, the Current Market Price
per share of Common Stock on any date of determination shall be
the average of the daily Closing Prices for the five
consecutive Trading Dates ending on and including the date of
determination of the Current Market Price (appropriately
adjusted to take into account the occurrence during such
five-day period of any event that results in an adjustment of
the Common Equivalent Rate); provided, however, that if the
Closing Price for the Trading Date next following such five-day
period (the "next-day closing price") is less than 95% of such
average, then the Current Market Price per share of Common
Stock on such date of determination shall be the next-day
closing price; and provided, further, that, for the purposes of
calculating the Current Market Price in connection with any
redemption or conversion of Series E Mandatory Conversion
Premium Dividend Preferred Stock or any determination of an
amount in cash payable in lieu of a fraction of a share of
Common Stock, if any adjustment of the Common Equivalent Rate
pursuant to this paragraph (d) is effective as of any date
during the period beginning on the day after the date of
determination of the Current Market Price and ending on the
date on which shares of Series E Mandatory Conversion Premium
Dividend Preferred Stock are to be redeemed or converted into
Common Stock, then the Current Market Price as determined
pursuant to the foregoing will be appropriately adjusted to
reflect such adjustment. If the Current Market Price is
adjusted pursuant to the immediately preceding proviso as a
result of the effectiveness of an adjustment to the Common
Equivalent Rate but the event requiring an adjustment of the
Common Equivalent Rate does not occur prior to the redemption
or conversion of Series E Mandatory Conversion Premium Dividend
Preferred Stock, then the Corporation may in its sole
discretion elect to defer the following until after the
occurrence of such event:
(1) issuing to the holder of any shares of Series
E Mandatory Conversion Premium Dividend Preferred Stock
surrendered for conversion or redemption the additional
shares of Common Stock issuable upon such conversion or
redemption over and above the shares of Common Stock
issuable upon such conversion or redemption on the basis
of the Current Market Price prior to adjustment; and
(2) paying to such holder any amount in cash in
lieu of a fractional share of Common Stock pursuant to
paragraph (f) of this Section 3.
(vi) In any case in which paragraph (d) of this Section
3 shall require that an adjustment in the Common Equivalent
Rate as a result of any event become effective at the opening
of business on the business day next following a record date
and the date fixed for conversion pursuant to paragraph (a) or
(b) of this Section 3 occurs after such record date, but before
the occurrence of such event, the Corporation may in its sole
discretion elect to defer the following until after the
occurrence of such event:
(1) issuing to the holder of any shares of
Series E Mandatory Conversion Premium Dividend
Preferred Stock surrendered for conversion the
additional shares of Common Stock issuable upon such
conversion over and above the shares of Common Stock
issuable upon such conversion on the basis of the
Common Equivalent Rate prior to adjustment; and
(2) paying to such holder any amount in cash in
lieu of a fractional share of Common Stock pursuant to
paragraph (f) of this Section 3.
(e) Notice of Adjustments. Whenever the Common Equivalent
Rate is adjusted as herein provided, the Corporation shall:
(i) forthwith compute the adjusted Common Equivalent
Rate in accordance with this Section 3 and prepare a
certificate signed by the Chief Executive Officer, the
Chairman, the President, any Vice President or the Treasurer of
the Corporation setting forth the adjusted Common Equivalent
Rate, the method of calculation thereof in reasonable detail
and the facts requiring such adjustment and upon which such
adjustment is based, and file such certificate forthwith with
the transfer agent or agents for the Series E Mandatory
Conversion Premium Dividend Preferred Stock and the Common
Stock; and
(ii) mail a notice stating that the Common Equivalent
Rate has been adjusted, the facts requiring such adjustment and
upon which such adjustment is based and setting forth the
adjusted Common Equivalent Rate to the holders of record of the
outstanding shares of the Series E Mandatory Conversion Premium
Dividend Preferred Stock at or prior to the time the
Corporation mails an interim statement to its stockholders
covering the quarter-yearly period during which the facts
requiring such adjustment occurred, but in any event within 45
days of the end of such quarter-yearly period.
(f) No Fractional Shares. No fractional shares of Common
Stock shall be issued upon redemption or conversion of shares of Series E
Mandatory Conversion Premium Dividend Preferred Stock but, in lieu of any
fraction of a share of Common Stock which would otherwise be issuable in
respect of the aggregate number of shares of Series E Mandatory Conversion
Premium Dividend Preferred Stock surrendered by the same holder for redemption
or conversion on any redemption or conversion date, the holders shall have the
right to receive an amount in cash, out of funds of the Corporation legally
available therefor, equal to the same fraction of the Current Market Price of
the Common Stock determined as of the second Trading Date immediately
preceding the relevant Notice Date.
(g) Cancellation. All shares of Series E Mandatory
Conversion Premium Dividend Preferred Stock which shall have been issued and
reacquired in any manner by the Corporation (including shares redeemed, shares
purchased and retired and shares converted into shares of Common Stock or
exchanged for shares of any other class of stock) shall have the status of
authorized but unissued shares of Preferred Stock and may be reissued as part
of the class of which they were originally a part or may be reclassified and
reissued as part of a new class of Preferred Stock to be created by resolution
or resolutions of the Board of Directors or as part of any other class of
Preferred Stock.
(h) Definitions. As used herein,
(i) the term "business day" shall mean any day other
than a Saturday, Sunday, or a day on which banking institutions
in the State of New York or State of California are authorized
or obligated by law or executive order to close or a day which
is or is declared a national or New York or California state
holiday;
(ii) the term "Call Price" shall mean the per share
price (payable in shares of Common Stock) at which the
Corporation may redeem shares of Series E Mandatory
Conversion Premium Dividend Preferred Stock, which Call
Price is equal to fifty (50) times the sum of (i) an amount
initially equal to $81.00, declining by $.006111 on each day
following November 1, 1995 (computed on the basis of a 360-
day year of twelve 30-day months) to $74.767 on September 1,
1998 and equal to $74.40 thereafter, if not sooner redeemed,
and (ii) 50% of the excess, if any, of (a) the Current
Market Price (as defined in clause (v) of paragraph (d) of
this Section 3) of the Common Stock on the second Trading
Date (as defined in clause (vi) of paragraph (h) of this
Section 3) preceding the Notice Date (as defined in clause
(iv) of paragraph (h) of this Section 3) relating to such
redemption multiplied by one-fiftieth (1/50th) of the Common
Equivalent Rate then in effect for Common Stock, over (b)
$74.40;
(iii) the term "Closing Price" on any day shall mean the
closing sales price regular way on such day or, in case no
such sale takes place on such day, the average of the
reported closing bid and asked prices regular way, in each
case on the New York Stock Exchange, or, if the Common Stock
is not listed or admitted to trading on such Exchange, on
the principal national securities exchange on which the
Common Stock is listed or admitted to trading, or, if not
listed or admitted to trading on any national securities
exchange, the average of the closing bid and asked prices of
the Common Stock on the over-the-counter market on the day
in question as reported by the National Quotation Bureau
Incorporated, or a similarly generally accepted reporting
service, or if not so available in such manner as furnished
by any New York Stock Exchange member firm selected from
time to time by the Board of Directors of the Corporation
for that purpose;
(iv) the term "Notice Date" with respect to any notice
given by the Corporation in connection with a redemption or
conversion of any of the Series E Mandatory Conversion Premium
Dividend Preferred Stock shall be the earlier of the
commencement of the mailing of such notice to the holders of
Series E Mandatory Conversion Premium Dividend Preferred Stock
or the date such notice is first published in accordance with
paragraph (i) of this Section 3;
(v) the term "Effective Date" shall mean the effective
time on the date of any Merger or Consolidation; and
(vi) the term "Trading Date" shall mean a date on which
the New York Stock Exchange (or any successor to such Exchange)
is open for the transaction of business.
(i) Notice of Redemption or Conversion. The Corporation will
provide notice of any redemption or conversion (including any conversion upon
the effectiveness of a Merger or Consolidation, but excluding the Mandatory
Conversion Date, unless the Corporation elects to pay any accrued and unpaid
dividends in Common Stock, in which case such notice shall be required) of
shares of Series E Mandatory Conversion Premium Dividend Preferred Stock to
holders of record of the Series E Mandatory Conversion Premium Dividend
Preferred Stock to be redeemed or converted not less than 30 nor more than 60
days prior to the date fixed for such redemption or conversion, as the case
may be; provided, however, that if the effectiveness of a Merger or
Consolidation makes it impracticable to provide at least 30 days' notice, the
Corporation shall provide such notice as soon as practicable prior to such
effectiveness. Such notice shall be provided by mailing notice of such
redemption or conversion first class postage prepaid, to each holder of record
of the Series E Mandatory Conversion Premium Dividend Preferred Stock to be
redeemed or converted, at such holder's address as it appears on the stock
register of the Corporation, and by publishing notice thereof in The Wall
Street Journal or The New York Times or, if neither such newspaper is then
being published, any other daily newspaper of national circulation (each, an
"Authorized Newspaper"). Each such mailed or published notice shall state, as
appropriate, the following:
(i) the redemption or conversion date;
(ii) the number of shares of Series E Mandatory
Conversion Premium Dividend Preferred Stock to be redeemed or
converted and, if less than all the shares held by any holder
are to be redeemed, the number of such shares to be redeemed;
(iii) the Call Price (in the case of a call for
redemption pursuant to paragraph (c) of this Section 3) and the
Current Market Price to be used to calculate the number of
shares of Common Stock deliverable upon redemption;
(iv) whether the Corporation is exercising any option to
deliver shares of Common Stock in lieu of any cash and the
Current Market Price to be used to calculate the number of such
shares of Common Stock;
(v) the place or places where certificates for such
shares are to be surrendered for redemption or conversion;
(vi) whether the Corporation is depositing with a bank
or trust company on or before the redemption or conversion
date, the shares of Common Stock, and cash, if any, payable by
the Corporation pursuant to this Section 3 and the proposed
date of such deposit; and
(vii) the amount of accrued and unpaid dividends payable
per share of Series E Mandatory Conversion Premium Dividend
Preferred Stock to be redeemed or converted to and including
such redemption or conversion date, as the case may be, and
that dividends on shares of Series E Mandatory Conversion
Premium Dividend Preferred Stock to be redeemed or converted
will cease to accrue on such redemption or conversion date
unless the Corporation shall default in delivering the shares
of Common Stock and cash, if any, payable by the Corporation
pursuant to this Section 3, at the time and place specified in
such notice.
The Corporation's obligation to deliver shares of Common
Stock and provide funds in accordance with this Section 3 shall be deemed
fulfilled if, on or before a redemption or conversion date, the Corporation
shall deposit, with a bank or trust company having an office or agency and
doing business in the Borough of Manhattan in New York City and having a
capital and surplus of at least $50,000,000, such number of shares of
Common Stock and funds as are required to be delivered by the Corporation
pursuant to this Section upon the occurrence of the related redemption or
conversion (including the payment of fractional share amounts), together
with funds sufficient to pay all accrued and unpaid dividends on the shares
to be redeemed or converted as required by this Section 3, in trust for the
account of the holders of the shares to be redeemed or converted (and so as
to be and continue to be available therefor), with irrevocable instructions
and authority to such bank or trust company that such shares and funds be
delivered upon redemption or conversion of the shares of Series E Mandatory
Conversion Premium Dividend Preferred Stock so called for redemption or
subject to conversion. Any shares of Common Stock and funds so deposited
and unclaimed by the holders of shares of Series E Mandatory Conversion
Premium Dividend Preferred Stock at the end of six years after such
redemption or conversion date (together with any interest thereon which
shall be allowed by the bank or trust company with which such deposit was
made) shall be paid by such bank or trust company to the Corporation, after
which the holder or holders of such shares of Series E Mandatory Conversion
Premium Dividend Preferred Stock so called for redemption or subject to
conversion shall look only to the Corporation for delivery of such shares
of Common Stock or funds. Each holder of shares of Series E Mandatory
Conversion Premium Dividend Preferred Stock to be redeemed or converted
shall surrender the certificates evidencing such shares to the Corporation
at the place designated in the notice of such redemption or conversion and
shall thereupon be entitled to receive certificates evidencing shares of
Common Stock, and cash, if any, payable pursuant to this Section 3,
following such surrender and following the date of such redemption or
conversion. In case fewer than all the shares represented by any such
surrendered certificate are called for redemption, a new certificate shall
be issued at the expense of the Corporation representing the unredeemed
shares. If such notice of call for redemption or conversion shall have
been duly given, and if on the date fixed for redemption or conversion
shares of Common Stock and funds, if any, necessary for the redemption or
conversion shall have been either set aside by the Corporation separate and
apart from its other funds or assets in trust for the account of the
holders of the shares so to be redeemed or converted (and so as to be and
continue to be available therefor) or deposited with a bank or trust
company as provided above, then, notwithstanding that the certificates
evidencing any shares of Series E Mandatory Conversion Premium Dividend
Preferred Stock so called for redemption or subject to conversion shall not
have been surrendered, the shares represented thereby so called for
redemption or subject to conversion shall be deemed no longer outstanding,
dividends with respect to the shares so called for redemption or subject to
conversion shall cease to accrue after the date fixed for redemption or
conversion and all rights with respect to the shares so called for
redemption or subject to conversion shall forthwith after such date cease
and terminate, except for the right of the holders to receive the shares of
Common Stock and cash, if any, payable pursuant to this Section 3, without
interest upon surrender of their certificates therefor.
(j) Reservation of Shares. The Corporation shall at all
times reserve and keep available out of authorized but unissued shares of
Common Stock, the maximum number of shares of Common Stock into which all
shares of Series E Mandatory Conversion Premium Dividend Preferred Stock from
time to time outstanding are convertible.
(k) Issuance of Common Stock. The shares of Common Stock
issuable upon redemption or conversion of the shares of Series E Mandatory
Conversion Premium Dividend Preferred Stock, when the same shall be issued in
accordance with the terms hereof, are hereby declared to be and shall be fully
paid and non-assessable shares of Common Stock in the hands of the holders
thereof.
Section 4. Voting Rights. (a) Except as otherwise provided
by paragraph (b) of this Section 4 or as required by law, the holders of
shares of Series E Mandatory Conversion Premium Dividend Preferred Stock shall
not be entitled to vote on any matter on which the holders of any voting
securities of the Corporation shall be entitled to vote.
(b) In the event that dividends payable on the Series E
Mandatory Conversion Premium Dividend Preferred Stock shall be in arrears in
an aggregate amount equivalent to six full quarterly dividends (a "Preferred
Dividend Default"), the holders of Series E Mandatory Conversion Premium
Dividend Preferred Stock shall have the exclusive right, voting separately as
a class with holders of shares of any one or more other classes of preferred
stock ranking on a parity with Series E Mandatory Conversion Premium Dividend
Preferred Stock either as to dividends or on the distribution of assets upon
liquidation, dissolution or winding up of the affairs of the Corporation (any
such class of preferred stock being herein referred to as a "Parity Stock")
and upon which like voting rights have been conferred and are exercisable, to
elect two directors of the Corporation until such right is terminated as
provided herein. Upon the occurrence of a Preferred Dividend Default, the
Board of Directors of the Company shall within a reasonable period call a
special meeting of the holders of shares of Series E Mandatory Conversion
Premium Dividend Preferred Stock and all other holders of shares of Parity
Stock who are then entitled to participate in the election of such directors
for the purpose of electing the additional directors provided by the foregoing
provisions; provided that, in lieu of holding such meeting, the holders of
record of Series E Mandatory Conversion Premium Dividend Preferred Stock and
such Parity Stock may, by action taken by written consent as permitted by law
and the Charter and By-laws of the Corporation elect such additional
directors. At elections for such directors, each holder of Series E Mandatory
Conversion Premium Dividend Preferred Stock shall be entitled to one vote for
each share held (the holders of shares of any Parity Stock being entitled to
such number of votes, if any, for each share of stock held as may be
applicable to them). Upon the vesting of such voting right in the holders of
Series E Mandatory Conversion Premium Dividend Preferred Stock, the maximum
authorized number of members of the Board of Directors shall automatically be
increased by two. The two vacancies so created shall be filled by vote of the
holders of Series E Mandatory Conversion Premium Dividend Preferred Stock
(with the holders of shares of Parity Stock who are then entitled to
participate in the election of such directors). The right of the holders of
Series E Mandatory Conversion Premium Dividend Preferred Stock, voting
separately as a class with the holders of shares of Parity Stock, to elect
members of the Board of Directors of the Corporation as aforesaid shall
continue until such time as all dividends accumulated on Series E Mandatory
Conversion Premium Dividend Preferred Stock shall have been paid in full, at
which time such right shall terminate, except as required by law, subject to
vesting in the event of each and every subsequent Preferred Dividend Default.
Upon any termination of the right of the holders of Series E
Mandatory Conversion Premium Dividend Preferred Stock and any Parity Stock to
vote as a class for directors as herein provided, the term of office of all
directors then in office elected by holders of Series E Mandatory Conversion
Premium Dividend Preferred Stock and any Parity Stock voting as a class
(hereinafter referred to as a "Preferred Stock Director") shall terminate
immediately. Any Preferred Stock Director may be removed by, and shall not be
removed otherwise than by, the vote of the holders of record of Series E
Mandatory Conversion Premium Dividend Preferred Stock and any Parity Stock the
holders of which were entitled to participate in such Preferred Stock
Director's election, voting as a separate class, at a meeting called for such
purpose or by written consent as permitted by law and the Charter and By-laws
of the Corporation. If the office of any Preferred Stock Director becomes
vacant by reason of death, resignation, retirement, disqualification, removal
from office, or otherwise, the remaining Preferred Stock Director may choose a
successor who shall hold office for the unexpired term in respect of which
such vacancy occurred or, if none remains in office, such successor may be
chosen by vote of the holders of record of Series E Mandatory Conversion
Premium Dividend Preferred Stock and any Parity Stock who are then entitled
to participate in the election of Preferred Stock Directors as provided above.
As long as a Preferred Dividend Default shall continue, holders of Series E
Mandatory Conversion Premium Dividend Preferred Stock shall not, as such
stockholders, be entitled to vote on the election or removal of directors
other than Preferred Stock Directors. Whenever the special voting powers
vested in the holders of Series E Mandatory Conversion Premium Dividend
Preferred Stock as provided herein shall have expired, the number of directors
shall become such number as may be provided for in the By-Laws, irrespective
of any increase made pursuant to the provisions hereof.
So long as any shares of the Series E Mandatory Conversion
Premium Dividend Preferred Stock remain outstanding, the consent of the
holders of at least two-thirds thereof (voting separately as a class) given
in person or by proxy, at any special or annual meeting called for such
purpose, or by written consent as permitted by law and the Charter and By-
laws of the Corporation, shall be necessary to amend, alter or repeal any
of the provisions of the Charter of the Corporation which would materially
and adversely affect any right, preference, privilege or voting power of
Series E Mandatory Conversion Premium Dividend Preferred Stock or of the
holders thereof, provided, however, that any such amendment, alteration or
repeal, that would authorize, create or issue any additional shares of
Preferred Stock or any other shares of stock (whether or not already
authorized) ranking senior to, on a parity with or junior to the Series E
Mandatory Conversion Premium Dividend Preferred Stock as to dividends or on
the distribution of assets upon liquidation, dissolution or winding up of
the affairs of the Corporation, shall be deemed not to materially and
adversely affect such rights, preferences, privileges or voting powers.
The foregoing voting provisions shall not apply if, at or prior
to the time when the act with respect to which such vote would otherwise be
required shall be effected, all outstanding shares of the Series E Mandatory
Conversion Premium Dividend Preferred Stock shall have been redeemed or
converted or Common Stock and funds, if any, necessary for such redemption or
conversion shall have been deposited in trust to effect such redemption or
conversion.
Section 5. Liquidation Rights. (a) Subject to the rights
of holders of any class of Preferred Stock or other class of stock which
the Corporation may in the future issue which ranks senior to, or on a
parity with, the Series E Mandatory Conversion Premium Dividend Preferred
Stock, upon any dissolution, liquidation or winding up of the affairs of
the Corporation, whether voluntary or involuntary (any such event, a
"Liquidation"), the holders of shares of Series E Mandatory Conversion
Premium Dividend Preferred Stock shall be entitled to receive out of the
assets of the Corporation available for distribution to stockholders,
whether from capital, surplus or earnings, before any distribution or
payment is made to holders of Common Stock or Class B Stock of the
Corporation or on any other class of stock of the Corporation ranking
junior as to dividends or assets distributable upon Liquidation to the
shares of Series E Mandatory Conversion Premium Dividend Preferred Stock,
liquidating distributions in the amount of $3,100 per share, plus an amount
equal to all dividends accrued and unpaid thereon (including dividends
accumulated and unpaid) to the date of Liquidation, and no more.
(b) Written notice of any Liquidation, stating the payment
date or dates when and the place or places where the amounts distributable in
such circumstances shall be payable, shall be given by first class mail,
postage prepaid, not less than 30 days prior to any payment date stated
therein, to the holders of record of the Series E Mandatory Conversion Premium
Dividend Preferred Stock at their respective addresses as the same shall
appear on the books of the Corporation or any transfer agent for the Series E
Mandatory Conversion Premium Dividend Preferred Stock.
Section 6. Defined Terms. Terms used but not otherwise
defined herein shall have the meanings set forth in the Charter of the
Corporation.
IN WITNESS WHEREOF, SunAmerica Inc. has caused these presents
to be signed in its name and on its behalf by its President and witnessed by
its Secretary on October 30, 1995.
SunAmerica Inc.
WITNESS:
_______________________ By_________________________
Susan Harris, Secretary Eli Broad, President
THE UNDERSIGNED, President of SunAmerica Inc., who executed on
behalf of the Corporation Articles Supplementary of which this Certificate is
made a part, hereby acknowledges in the name and on behalf of said Corporation
the foregoing Articles Supplementary to be the corporate act of said
Corporation and hereby certifies that the matters and facts set forth herein
with respect to the authorization and approval thereof are true in all
material respects under the penalties of perjury.
By:_________________________
Eli Broad, President
EXHIBIT 4.10
_____________________________________________________________________________
SUNAMERICA INC.,
and
THE BANK OF NEW YORK,
As Depositary
and
HOLDERS OF DEPOSITARY RECEIPTS
DEPOSIT AGREEMENT
Dated as of _____ __, 1995
_____________________________________________________________________________
TABLE OF CONTENTS
Page
Parties................................................................. 1
Recitals................................................................ 1
ARTICLE I
DEFINITIONS
"Articles of Incorporation"............................................. 1
"Articles Supplementary"................................................ 1
"Common Stock".......................................................... 1
"Company"............................................................... 1
"Corporate Office"...................................................... 2
"Deposit Agreement"..................................................... 2
"Depositary"............................................................ 2
"Depositary Share"...................................................... 2
"Depositary's Agent".................................................... 2
"Receipt"............................................................... 2
"record holder"......................................................... 2
"Registrar" or "holder"................................................. 3
"Securities Act"........................................................ 3
"Stock"................................................................. 3
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER,
REDEMPTION AND CONVERSION OF RECEIPTS
SECTION 2.01. Form and Transfer of Receipts...................... 3
SECTION 2.02. Deposit of Stock; Execution and
Delivery of Receipts in
Respect Thereof................................... 4
SECTION 2.03. Redemption and Conversion
of Stock.......................................... 5
SECTION 2.04. Register of Transfer of Receipts................... 8
SECTION 2.05. Combination and Split-ups
of Receipts....................................... 8
SECTION 2.06. Surrender of Receipts and Withdrawal
of Stock.......................................... 9
SECTION 2.07. Limitations on Execution and Delivery,
Transfer, Split-up, Combination,
Surrender and Exchange of Receipts
and Withdrawal or Deposit of Stock................ 10
SECTION 2.08. Lost Receipts, etc................................. 11
SECTION 2.09. Cancellation and Destruction of
Surrendered Receipts.............................. 11
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and
Other Information................................. 11
SECTION 3.02. Payment of Taxes or Other
Governmental Charges.............................. 12
SECTION 3.03. Withholding........................................ 12
SECTION 3.04. Representations and Warranties
as to Stock....................................... 12
ARTICLE IV
THE STOCK, NOTICES
SECTION 4.01. Cash Distributions................................. 13
SECTION 4.02. Distributions Other Than Cash...................... 13
SECTION 4.03. Subscription Rights, Preferences
or Privileges..................................... 14
SECTION 4.04. Notice of Dividends, Fixing of Record
Date for Holders of Receipts...................... 15
SECTION 4.05. Voting Rights............................................ 15
SECTION 4.06. Changes Affecting Stock and
Reclassifications,
Recapitalizations, etc............................ 16
SECTION 4.07. Reports............................................ 16
SECTION 4.08. Lists of Receipt Holders........................... 16
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01. Maintenance of Office, Agencies,
Transfer Books by the Depositary;
the Registrar..................................... 17
SECTION 5.02. Prevention or Delay in Performance
by the Depositary, the Depositary's
Agents, the Registrar or the
Company........................................... 18
SECTION 5.03. Obligations of the Depositary, the
Depositary's Agents, the Registrar
and the Company................................... 18
SECTION 5.04. Resignation and Removal of the
Depositary, Appointment of
Successor Depositary.............................. 20
SECTION 5.05. Corporate Notices and Reports...................... 21
SECTION 5.06. Deposit of Stock by the Company.................... 22
SECTION 5.07. Indemnification by the Company..................... 22
SECTION 5.08. Fees, Charges and Expenses......................... 22
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment.......................................... 22
SECTION 6.02. Termination........................................ 23
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts....................................... 24
SECTION 7.02. Exclusive Benefits of Parties...................... 24
SECTION 7.03. Invalidity of Provisions........................... 24
SECTION 7.04. Notices............................................ 24
SECTION 7.05. Depositary's Agents................................ 25
SECTION 7.06. Holders of Receipts Are Parties.................... 25
SECTION 7.07. Governing Law...................................... 26
SECTION 7.08. Headings........................................... 26
TESTIMONIUM............................................................. 26
SIGNATURE............................................................... 26
EXHIBIT A.............................................................. A-1
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of ________, 1995, among SunAmerica
Inc., a Maryland corporation, The Bank of New York, a New York banking
corporation, as Depositary, and all holders from time to time of Receipts
issued hereunder.
W I T N E S S E T H:
WHEREAS, the Company desires to provide as hereinafter set
forth in this Deposit Agreement, for the deposit of shares of the Stock with
the Depositary, as agent for the beneficial owners of the Stock, for the
purposes set forth in this Deposit Agreement and for the issuance hereunder of
the Receipts evidencing Depositary Shares representing an interest in the
Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form
annexed as Exhibit A to this Deposit Agreement, with appropriate
insertions, modifications and omissions, as hereinafter provided in this
Deposit Agreement.
NOW, THEREFORE, in consideration of the premises contained
herein, it is agreed by and among the parties hereto as follows:
ARTICLE I
DEFINITIONS
The following definitions shall apply to the respective terms
(in the singular and plural forms of such terms) used in this Deposit
Agreement and the Receipts:
"Articles of Incorporation" shall mean the Articles of
Incorporation, as amended and restated from time to time, of the Company.
"Articles Supplementary" shall mean the Articles Supplementary
establishing and setting forth the rights, preferences, privileges and
limitations of the Stock.
"Common Stock" shall mean the Company's Common Stock, par value
$1.00 per share.
"Company" shall mean SunAmerica Inc., a Maryland corporation,
and its successors.
"Corporate Office,, shall mean the office of the Depositary in
New York, New York at which at any particular time its business in respect of
matters governed by this Deposit Agreement shall be administered, which at the
date of this Deposit Agreement is located at 101 Barclay Street.
"Deposit Agreement" shall mean this agreement, as the same may
be amended, modified or supplemented from time to time.
"Depositary" shall mean The Bank of New York, as Depositary
hereunder, and any successor as Depositary hereunder.
"Depositary Share" shall mean the rights evidenced by the
Receipts executed and delivered hereunder, including the interests in Stock
granted to holders of Receipts pursuant to the terms and conditions of the
Deposit Agreement. Each Depositary Share shall represent an interest in
one-fiftieth of a share of Stock deposited with the Depositary hereunder and
the same proportionate interest in any and all other property received by the
Depositary in respect of such share of Stock and held under this Deposit
Agreement. Subject to the terms of this Deposit Agreement, each record holder
of a Receipt evidencing a Depositary Share or Shares is entitled,
proportionately, to all the rights, preferences and privileges of the Stock
represented by such Depositary Share or Shares, including the dividend, voting
and liquidation rights contained in the Articles Supplementary, and to the
benefits of all obligations and duties of the Company in respect of the Stock
under the Articles Supplementary and the Articles of Incorporation.
"Depositary's Agent" shall mean an agent appointed by the
Depositary as provided, and for the purposes specified, in Section 7.05.
"Receipt" shall mean a Depositary Receipt executed and
delivered hereunder, in substantially the form of Exhibit A hereto, evidencing
Depositary Share or Shares, as the same may be amended from time to time in
accordance with the provisions hereof.
"record holder" or "holder" as applied to a Receipt shall mean
the person in whose name a Receipt is registered on the books maintained by or
on behalf of the Depositary for such purpose.
"Registrar" shall mean any bank or trust company appointed to
register ownership and transfers of Receipts as herein provided.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Stock" shall mean shares of the Company's Series E Mandatory
Conversion Premium Dividend Preferred Stock, no par value.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER,
REDEMPTION AND CONVERSION OF RECEIPTS
SECTION 2.01. Form and Transfer of Receipts. Receipts shall
be engraved or printed or lithographed on steel-engraved borders and shall be
substantially in the form set forth in Exhibit A annexed to this Deposit
Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Receipts shall be executed by the Depositary by the
manual signature of a duly authorized signatory of the Depositary; provided,
however, that such signature may be a facsimile if a Registrar (other than
the Depositary) shall have countersigned the Receipts by manual signature of a
duly authorized signatory of the Registrar. No Receipt shall be entitled to
any benefits under this Deposit Agreement or be valid or obligatory for any
purpose unless it shall have been executed as provided in the preceding
sentence. The Depositary shall record on its books each Receipt executed as
provided above and delivered as hereinafter provided. Receipts bearing the
facsimile signature of anyone who was at any time a duly authorized officer of
the Depositary shall bind the Depositary, notwithstanding that such officer
has ceased to hold such office prior to the delivery of such Receipts.
Receipts may be issued in denominations of any number of whole
Depositary Shares. All Receipts shall be dated the date of their execution.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the
provisions of this Deposit Agreement as may be required by the Depositary or
required to comply with any applicable law or regulation or with the rules and
regulations of any securities exchange upon which the Stock or the Depositary
Shares may be listed or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any particular
Receipts are subject by reason of the date of issuance of the Stock or
otherwise.
Title to any Receipt (and to the Depositary Shares evidenced by
such Receipt) that is properly endorsed or accompanied by a properly executed
instrument of transfer shall be transferable by delivery with the same effect
as in the case of a negotiable instrument; provided, however, that the
Depositary may, notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
SECTION 2.02. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof. Subject to the terms and conditions of this
Deposit Agreement, the Company or any holder of Stock may deposit such
Stock under this Deposit Agreement by delivery to the Depositary of a
certificate or certificates for the Stock to be deposited, properly
endorsed or accompanied, if required by the Depositary, by a properly
executed instrument of transfer in form satisfactory to the Depositary,
together with (i) all such certifications as may be required by the
Depositary in accordance with the provisions of this Deposit Agreement and
(ii) a written order of the Company or such holder, as the case may be,
directing the Depositary to execute and deliver to or upon the written
order of the person or persons stated in such order a Receipt or Receipts
for the number of Depositary Shares representing such deposited Stock.
Upon receipt by the Depositary of a certificate or certificates
for Stock to be deposited hereunder, together with the other documents
specified above, the Depositary shall, as soon as transfer and registration
can be accomplished, present such certificate or certificates to the registrar
and transfer agent of the Stock for transfer and registration in the name of
the Depositary or its nominee of the Stock being deposited. Deposited Stock
shall be held by the Depositary in an account to be established by the
Depositary at the Corporate Office.
Upon receipt by the Depositary of a certificate or certificates
for Stock to be deposited hereunder, together with the other documents
specified above, the Depositary, subject to the terms and conditions of this
Deposit Agreement, shall execute and deliver, to or upon the order of the
person or persons named in the written order delivered to the Depositary
referred to in the first paragraph of this Section 2.02, a Receipt or Receipts
for the number of whole Depositary Shares representing the Stock so deposited
and registered in such name or names as may be requested by such person or
persons. The Depositary shall execute and deliver such Receipt or Receipts at
the Corporate Office, except that, at the request, risk and expense of any
person requesting such delivery and for the account of such person, such
delivery may be made at such other place as may be designated by such person.
In each case, delivery will be made only upon payment by such person to the
Depositary of all taxes and other governmental charges and any fees payable in
connection with such deposit and the transfer of the deposited Stock.
The Company shall deliver to the Depositary from time to time
such quantities of Receipts as the Depositary may request to enable the
Depositary to perform its obligations under this Deposit Agreement.
SECTION 2.03. Redemption and Conversion of Stock. Whenever
the Company shall elect to redeem or be required to convert shares of Stock
into shares of Common Stock in accordance with the Articles Supplementary,
it shall (unless otherwise agreed in writing with the Depositary) give the
Depositary in its capacity as Depositary not less than 5 business days'
prior notice of the proposed date of the mailing of a notice of redemption
or conversion of Stock and the simultaneous redemption or conversion of the
Depositary Shares representing the Stock to be redeemed or converted and of
the number of such shares of Stock held by the Depositary to be redeemed or
converted. The Depositary shall, as directed by the Company in writing,
mail, first class postage prepaid, notice of the redemption or conversion
of Stock and the proposed simultaneous redemption or conversion of the
Depositary Shares representing the Stock to be redeemed or converted, not
less than 30 and not more than 60 days prior to the date fixed for
redemption or conversion of such Stock and Depositary Shares, to the record
holders of the Receipts evidencing the Depositary Shares to be so redeemed
or converted, at the addresses of such holders as the same appear on the
records of the Depositary; provided, that if the effectiveness of a Merger
or Consolidation (as defined in the Articles Supplementary) makes it
impracticable to provide at least 30 days' notice, the Depositary shall
provide such notice as soon as practicable prior to such effectiveness.
Any such notice shall also be published in the same manner as notices of
redemption or conversion of Stock are required to be published pursuant to
Section 3(i) of the Articles Supplementary. Notwithstanding the foregoing,
neither failure to mail or publish any such notice to one or more such
holders nor any defect in any notice shall affect the sufficiency of the
proceedings for redemption or conversion. The Company shall provide the
Depositary with such notice, and each such notice shall state: the
redemption or conversion date; the number of Depositary Shares to be
redeemed or converted; if fewer than all the Depositary Shares held by any
holder are to be redeemed, the number of such Depositary Shares held by
such holder to be so redeemed; in the case of a call for redemption, the
call price payable upon redemption and the Current Market Price (as defined
in the Articles Supplementary to be used to calculate the number of shares
of Common Stock deliverable upon redemption); whether the Company is
exercising any option to deliver shares of Common Stock in lieu of any cash
consideration pursuant to Sections 3(a), (b), or (c) of the Articles
Supplementary and the Current Market Price to be used to calculate the
number of such shares; the place or places where Receipts evidencing
Depositary Shares to be redeemed or converted are to be surrendered for
redemption or conversion; whether the Company is depositing with a bank or
trust company on or before the redemption or conversion date, the shares of
Common Stock and cash, if any, payable by the Company and the proposed date
of such deposit; the amount of accrued and unpaid dividends payable per
share of Stock to be redeemed or converted to and including or to and
excluding (in accordance with the Articles Supplementary) such redemption
or conversion date, as the case may be, and that dividends in respect of
the Stock represented by the Depositary Shares to be redeemed or converted
will cease to accrue thereafter (unless the Company shall default in
delivering shares of Common Stock and cash, if any, at the time and place
specified in such notice). On the date of any such redemption or
conversion, the Depositary shall surrender the certificate or certificates
held by the Depositary evidencing the number of shares of Stock to be
redeemed or converted in the manner specified in the notice of redemption
or conversion of Stock provided by the Company pursuant to Section 3(i) of
the Articles Supplementary. The Depositary shall, thereafter, redeem or
convert the number of Depositary Shares representing such redeemed or
converted Stock upon the surrender of Receipts evidencing such Depositary
Shares in the manner provided in the notice sent to record holders of
Receipts; provided, that the Depositary shall have received, upon
surrendering such certificate or certificates as aforesaid, a sufficient
number of shares of Common Stock to convert or redeem such number of
Depositary Shares (including, in the event that the Company elects pursuant
to Sections 3(a), (b) or (c) of the Articles Supplementary to exercise any
option to deliver shares of Common Stock in lieu of any cash consideration
payable on the conversion date, the Effective Date (as defined in the
Articles Supplementary) of any Merger or Consolidation or the redemption
date, a number of shares of Common Stock equal to such cash consideration
(as determined in the manner set forth in the Articles Supplementary)),
plus any accrued and unpaid dividends payable with respect thereto to and
including or to and excluding (in accordance with the Articles
Supplementary) the date of any such redemption or conversion and any other
cash consideration payable on the Effective Date of a Merger or
Consolidation (other than any dividends or other cash consideration payable
on the conversion date, the Effective Date of a Merger or Consolidation or
the redemption date that the Company has elected to pay in shares of Common
Stock pursuant to Sections 3(a), (b) or (c) of the Articles Supplementary)
as instructed and calculated by the Company. In case fewer than all the
outstanding Depositary Shares are to be redeemed, the Depositary Shares to
be redeemed shall be selected by the Depositary by lot or on a pro rata
basis.
Notice having been mailed by the Depositary as aforesaid, from
and after the redemption or conversion date (unless the Company shall have
failed to redeem or convert the shares of Stock to be redeemed or converted by
it upon the surrender of the certificate or certificates therefor by the
Depositary as described in the preceding paragraph), the Depositary Shares
called for redemption or subject to conversion shall be deemed no longer to be
outstanding and all rights of the holders of Receipts evidencing such
Depositary Shares (except the right to receive the shares of Common Stock and
cash, if any, payable upon redemption or conversion upon surrender of such
Receipts) shall, to the extent of such Depositary Shares, cease and terminate.
Upon surrender in accordance with said notice of the Receipts evidencing such
Depositary Shares (properly endorsed or assigned for transfer, if the
Depositary shall so require), such Depositary Shares shall be converted into
or redeemed for shares of Common Stock at a rate equal to one-fiftieth of the
number of shares of Common Stock delivered, and the holders thereof shall be
entitled to one-fiftieth of the cash, if any, payable, in respect of the
shares of Stock pursuant to the Articles Supplementary. The foregoing shall
be subject further to the terms and conditions of the Articles Supplementary.
If fewer than all of the Depositary Shares evidenced by a
Receipt are called for redemption, the Depositary will deliver to the holder
of such Receipt upon its surrender to the Depositary, together with the shares
of Common Stock and all accrued and unpaid dividends to and including the date
fixed for redemption payable in respect of the Depositary Shares called for
redemption, a new Receipt evidencing the Depositary Shares evidenced by such
prior Receipt and not called for redemption.
To the extent that Depositary Shares are converted into or
redeemed for shares of Common Stock and all of such shares of Common Stock
cannot be distributed to the recordholders of Receipts converted or called for
redemption without creating fractional interests in such shares, the
Depositary may, with the consent of the Company, adopt such method as it deems
equitable and practicable for the purpose of effecting such distribution,
including the sale (at public or private sale) of such shares of Common Stock
at such place or places and upon such terms as it may deem proper, and the net
proceeds of any such sale shall, subject to Section 3.02, be distributed or
made available for distribution to such record holders that would otherwise
receive fractional interests in such shares of Common Stock.
The Depositary shall not be required (a) to issue, transfer or
exchange any Receipts for a period beginning at the opening of business 15
days next preceding any selection of Depositary Shares and Stock to be
redeemed and ending at the close of business on the day of the mailing of
notice of redemption of Depositary Shares or (b) to transfer or exchange for
another Receipt any Receipt evidencing Depositary Shares called or being
called for redemption, in whole or in part, or subject to conversion except as
provided in the second preceding paragraph of this Section 2.03.
SECTION 2.04. Register of Transfer of Receipts. Subject to
the terms and conditions of this Deposit Agreement, the Depositary shall
register on its books from time to time transfers of Receipts upon any
surrender thereof at the Corporate Office or such other office as the
Depositary may designate for such purpose, by the record holder in person or
by a duly authorized attorney, properly endorsed or accompanied by a properly
executed instrument of transfer, together with evidence of the payment of any
transfer taxes as may be required by law. Upon such surrender, the Depositary
shall execute a new Receipt or Receipts and deliver the same to or upon the
order of the person entitled thereto evidencing the same aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered.
SECTION 2.05. Combination and Split-ups of Receipts. Upon
surrender of a Receipt or Receipts at the Corporate Office or such other
office as the Depositary may designate for the purpose of effecting a split-up
or combination of Receipts, subject to the terms and conditions of this
Deposit Agreement, the Depositary shall execute and deliver a new Receipt or
Receipts in the authorized denominations requested evidencing the same
aggregate number of Depositary Shares evidenced by the Receipt or Receipts
surrendered; provided, however, that the Depositary shall not issue any
Receipt evidencing a fractional Depositary Share.
SECTION 2.06. Surrender of Receipts and Withdrawal of Stock.
Any holder of a Receipt or Receipts may withdraw any or all of the Stock (but
only in whole shares of Stock) represented by the Depositary Shares evidenced
by such Receipts and all money and other property, if any, represented by such
Depositary Shares by surrendering such Receipt or Receipts at the Corporate
Office or at such other office as the Depositary may designate for such
withdrawals. After such surrender, without unreasonable delay, the Depositary
shall deliver to such holder, or to the person or persons designated by such
holder as hereinafter provided, the whole number of shares of Stock and all
such money and other property, if any, represented by the Depositary Shares
evidenced by the Receipt or Receipts so surrendered for withdrawal. If the
Receipt or Receipts delivered by the holder to the Depositary in connection
with such withdrawal shall evidence a number of Depositary Shares in excess of
the number of whole Depositary Shares representing the whole number of shares
of Stock to be withdrawn, the Depositary shall at the same time, in addition
to such whole number of shares of Stock and such money and other property, if
any, to be withdrawn, deliver to such holder, or (subject to Section 2.04)
upon his order, a new Receipt or Receipts evidencing such excess number of
whole Depositary Shares. Delivery of the Stock and such money and other
property being withdrawn may be made by the delivery of such certificates,
documents of title and other instruments as the Depositary may deem
appropriate, which, if required by the Depositary, shall be properly endorsed
or accompanied by proper instruments of transfer.
If the Stock and the money and other property being withdrawn
are to be delivered to a person or persons other than the record holder of the
Receipt or Receipts being surrendered for withdrawal of Stock, such holder
shall execute and deliver to the Depositary a written order so directing the
Depositary and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of Stock be properly
endorsed in blank or accompanied by a properly executed instrument of transfer
in blank and that the signature on such instrument of transfer be guaranteed
by an eligible guarantor institution (banks, stockbrokers, savings and loan
associations and credit unions with membership in an approved signature
guarantee medallion program) pursuant to Rule 17Ad-15 of the Securities
Exchange Act of 1934, as amended.
The Depositary shall deliver the Stock and the money and other
property, if any, represented by the Depositary Shares evidenced by Receipts
surrendered for withdrawal, without unreasonable delay, at the office at which
such Receipts were surrendered, except that, at the request, risk and expense
of the holder surrendering such Receipt or Receipts and for the account of the
holder thereof, such delivery may be made, without unreasonable delay, at such
other place as may be designated by such holder.
SECTION 2.07. Limitations on Execution and Delivery, Transfer,
Split-up, Combination, Surrender and Exchange of Receipts and Withdrawal or
Deposit of Stock. As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination, surrender or exchange of any
Receipt, the delivery of any distribution thereon or the withdrawal or deposit
of Stock, the Depositary, any of the Depositary's Agents or the Company may
require any or all of the following: (i) payment to it of a sum sufficient for
the payment (or, in the event that the Depositary or the Company shall have
made such payment, the reimbursement to it) of any tax or other governmental
charge with respect thereto (including any such tax or charge with respect to
the Stock being deposited or withdrawn or with respect to the Common Stock or
other securities or property of the Company being issued upon conversion or
redemption); (ii) production of proof satisfactory to it as to the identity
and genuineness of any signature; and (iii) compliance with such reasonable
regulations, if any, as the Depositary or the Company may establish not
inconsistent with the provisions of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts
against Stock or the registration of transfer, split-up, combination,
surrender or exchange of outstanding Receipts and the withdrawal of deposited
Stock may be suspended (i) during any period when the register of stockholders
of the Company is closed, (ii) if any such action is deemed necessary or
advisable by the Depositary, any of the Depositary's Agents or the Company at
any time or from time to time because of any requirement of law or of any
government or governmental body or commission, or under any provision of this
Deposit Agreement, or (iii) with the approval of the Company, for any other
reason. Without limitation of the foregoing, the Depositary shall not
knowingly accept for deposit under this Deposit Agreement any shares of Stock
that are required to be registered under the Securities Act unless a
registration statement under the Securities Act is in effect as to such shares
of Stock.
SECTION 2.08. Lost Receipts, etc. In case any Receipt shall
be mutilated or destroyed or lost or stolen, the Depositary shall execute and
deliver a Receipt of like form and tenor in exchange and substitution for such
mutilated Receipt or in lieu of and in substitution for such destroyed, lost
or stolen Receipt unless the Depositary has notice that such Receipt has been
acquired by a bona fide purchaser; provided, however, that the holder thereof
provides the Depositary with (i) evidence satisfactory to the Depositary of
such destruction, loss or theft of such Receipt, of the authenticity thereof
and of his ownership thereof, (ii) reasonable indemnification satisfactory to
the Depositary or the payment of any charges incurred by the Depositary in
obtaining insurance in lieu of such indemnification and (iii) payment of any
expense (including fees, charges and expenses of the Depositary) in connection
with such execution and delivery.
SECTION 2.09. Cancellation and Destruction of Surrendered
Receipts. All Receipts surrendered to the Depositary or any Depositary's
Agent shall be cancelled by the Depositary. Except as prohibited by
applicable law or regulation, the Depositary is authorized to destroy such
Receipts so cancelled.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other
Information. Any person presenting Stock for deposit or any holder of a
Receipt may be required from time to time to file such proof of residence
or other information, to execute such certificates and to make such
representations and warranties as the Depositary or the Company may
reasonably deem necessary or proper. The Depositary or the Company may
withhold or delay the delivery of any Receipt, the registration of
transfer, redemption, conversion or exchange of any Receipt, the withdrawal
of the Stock represented by the Depositary Shares evidenced by any Receipt
or the distribution of any dividend or other distribution until such proof
or other information is filed, such certificates are executed or such
representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental Charges.
If any tax or other governmental charge shall become payable by or on behalf
of the Depositary with respect to (i) any Receipt, (ii) the Depositary Shares
evidenced by such Receipt, (iii) the Stock (or fractional interest therein) or
other property represented by such Depositary Shares, or (iv) any transaction
referred to in Section 4.06, such tax (including transfer, issuance or
acquisition taxes, if any) or governmental charge shall be payable by the
holder of such Receipt, who shall pay the amount thereof to the Depositary.
Until such payment is made, registration of transfer of any Receipt or any
split-up or combination thereof or any withdrawal of the Stock or money or
other property, if any, represented by the Depositary Shares evidenced by such
Receipt may be refused, any dividend or other distribution may be withheld and
any part or all of the Stock or other property (including Common Stock
received in connection with a conversion or redemption of Stock) represented
by the Depositary Shares evidenced by such Receipt may be sold for the account
of the holder thereof (after attempting by reasonable means to notify such
holder prior to such sale). Any dividend or other distribution so withheld
and the proceeds of any such sale may be applied to any payment of such tax or
other governmental charge, the holder of such Receipt remaining liable for any
deficiency.
SECTION 3.03. Withholding. The Depositary shall act as the
tax withholding agent for any payments, distributions and exchanges made with
respect to the Depositary Shares and Receipts, and the Stock, Common Stock or
other securities or assets represented thereby (collectively, the
"Securities"). The Depositary shall be responsible with respect to the
Securities for the timely (i) collection and deposit of any required
withholding or backup withholding tax, and (ii) filing of any information
returns or other documents with federal (and other applicable) taxing
authorities.
SECTION 3.04. Representations and Warranties as to Stock. In
the case of the initial deposit of the Stock, the Company and, in the case of
subsequent deposits thereof, each person so depositing Stock under this
Deposit Agreement shall be deemed thereby to represent and warrant that such
Stock and each certificate therefor are valid and that the person making such
deposit is duly authorized to do so. Such representations and warranties
shall survive the deposit of the Stock and the issuance of Receipts therefor.
ARTICLE IV
THE STOCK, NOTICES
SECTION 4.01. Cash Distributions. Whenever the Depositary
shall receive any cash dividend or other cash distribution on the Stock, the
Depositary shall, subject to Section 3.02, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.04 such amounts of
such sum as are, as nearly as practicable, in proportion to the respective
numbers of Depositary Shares evidenced by the Receipts held by such holders;
provided, however, that in case the Company or the Depositary shall be
required by law to withhold and does withhold from any cash dividend or other
cash distribution in respect of the Stock an amount on account of taxes, the
amount made available for distribution or distributed in respect of Depositary
Shares shall be reduced accordingly. The Depositary shall distribute or make
available for distribution, as the case may be, only such amount, however, as
can be distributed without attributing to any owner of Depositary Shares a
fraction of one cent and any balance not so distributable shall be held by the
Depositary (without liability for interest thereon) and shall be added to and
be treated as part of the next sum received by the Depositary for distribution
to record holders of Receipts then outstanding.
SECTION 4.02. Distributions Other Than Cash. Whenever the
Depositary shall receive any distribution other than cash, rights, preferences
or privileges upon the Stock, the Depositary shall, subject to Section 3.02,
distribute to record holders of Receipts on the record date fixed pursuant to
Section 4.04 such amounts of the securities or property received by it as are,
as nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such holders, in any
manner that the Depositary and the Company may deem equitable and practicable
for accomplishing such distribution. If, in the opinion of the Company after
consultation with the Depositary, such distribution cannot be made
proportionately among such record holders, or if for any other reason
(including any tax withholding or securities law requirement), the Depositary
deems, after consultation with the Company, such distribution not to be
feasible, the Depositary may, with the approval of the Company which approval
shall not be unreasonably withheld, adopt such method as it deems equitable
and practicable for the purpose of effecting such distribution, including the
sale (at public or private sale) of the securities or property thus received,
or any part thereof, at such place or places and upon such terms as it may
deem proper. The net proceeds of any such sale shall, subject to Section
3.02, be distributed or made available for distribution, as the case may be,
by the Depositary to record holders of Receipts as provided by Section 4.01 in
the case of a distribution received in cash.
SECTION 4.03. Subscription Rights, Preferences or Privileges.
If the Company shall at any time offer or cause to be offered to the persons
in whose names Stock is registered on the books of the Company any rights,
preferences or privileges to subscribe for or to purchase any securities or
any rights, preferences or privileges of any other nature, such rights,
preferences or privileges shall in each such instance be made available by the
Depositary to the record holders of Receipts in such manner as the Company
shall instruct (including by the issue to such record holders of warrants
representing such rights, preferences or privileges); provided, however, that
(a) if at the time of issue or offer of any such rights, preferences or
privileges the Company determines and instructs the Depositary that it is not
lawful or feasible to make such rights, preferences or privileges available to
some or all holders of Receipts (by the issue of warrants or otherwise) or (b)
if and to the extent instructed by holders of Receipts who do not desire to
exercise such rights, preferences or privileges, the Depositary shall then, in
each case, and if applicable laws or the terms of such rights, preferences or
privileges so permit, sell such rights, preferences or privileges of such
holders at public or private sale, at such place or places and upon such terms
as it may deem proper. The net proceeds of any such sale shall be distributed
by the Depositary to the record holders of Receipts entitled thereto as
provided by Section 4.01 in the case of a distribution received in cash.
If registration under the Securities Act of the securities
to which any rights, preferences or privileges relate is required in order
for holders of Receipts to be offered or sold such securities, the Company
shall promptly file a registration statement pursuant to the Securities Act
with respect to such rights, preferences or privileges and securities and
use its best efforts and take all steps available to it to cause such
registration statement to become effective sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such holders
to exercise such rights, preferences or privileges. In no event shall the
Depositary make available to the holders of Receipts any right, preference
or privilege to subscribe for or to purchase any securities unless and
until such registration statement shall have become effective or unless the
offering and sale of such securities to such holders are exempt from
registration under the provisions of the Securities Act.
If any other action under the law of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to
holders of Receipts, the Company agrees with the Depositary that the Company
will use its reasonable best efforts to take such action or obtain such
authorization, consent or permit sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges.
SECTION 4.04. Notice of Dividends, Fixing Of Record Date
for Holders of Receipts. Whenever (i) any cash dividend or other cash
distribution shall become payable, or any distribution other than cash
shall be made, or any rights, preferences or privileges shall at any time
be offered, with respect to the Stock, or (ii) the Depositary shall receive
notice of any meeting at which holders of Stock are entitled to vote or of
which holders of Stock are entitled to notice or of the mandatory
conversion of, or any election on the part of the Company to call for the
redemption of, any shares of Stock, the Depositary shall in each such
instance fix a record date (which shall be the same date as the record date
fixed by the Company with respect to the Stock) for the determination of
the holders of Receipts (x) who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds of the
sale thereof, or (y) who shall be entitled to give instructions for the
exercise of voting rights at any such meeting or to receive notice of such
meeting or of such conversion or redemption.
SECTION 4.05. Voting Rights. Upon receipt of notice of any
meeting at which the holders of Stock are entitled to vote, the Depositary
shall, as soon as practicable thereafter, mail to the record holders of
Receipts a notice, which shall be provided by the Company and which shall
contain (i) such information as is contained in such notice of meeting,
(ii) a statement that the holders of Receipts at the close of business on a
specified record date fixed pursuant to Section 4.04 will be entitled,
subject to any applicable provision of law, the Articles of Incorporation
or the Articles Supplementary, to instruct the Depositary as to the
exercise of the voting rights pertaining to the Stock represented by their
respective Depositary Shares and (iii) a brief statement as to the manner
in which such instructions may be given. Upon the written request of a
holder of a Receipt on such record date, the Depositary shall endeavor
insofar as practicable to vote or cause to be voted the Stock represented
by the Depositary Shares evidenced by such Receipt in accordance with the
instructions set forth in such request. The Company hereby agrees to take
all reasonable action that may be deemed necessary by the Depositary in
order to enable the Depositary to vote such Stock or cause such Stock to be
voted. In the absence of specific instructions from the holder of a
Receipt, the Depositary will abstain from voting to the extent of the Stock
represented by the Depositary Shares evidenced by such Receipt.
SECTION 4.06. Changes Affecting Stock and Reclassifications,
Recapitalizations, etc. Upon any split-up, consolidation or any other
reclassification of Stock, or upon any recapitalization, reorganization,
merger, amalgamation or consolidation affecting the Company or to which it
is a party (other than a Merger or Consolidation) or sale of all or
substantially all of the Company's assets, the Depositary shall treat any
shares of stock or other securities or property (including cash) that shall
be received by the Depositary in exchange for or upon conversion of or in
respect of the Stock as new deposited property under this Deposit
Agreement, and Receipts then outstanding shall thenceforth represent the
proportionate interests of holders thereof in the new deposited property so
received in exchange for or upon conversion or in respect of such Stock.
In any such case the Depositary may, in its discretion, with the approval
of the Company, execute and deliver additional Receipts, or may call for
the surrender of all outstanding Receipts to be exchanged for new Receipts
specifically describing such new deposited property.
SECTION 4.07. Reports. The Depositary shall make available
for inspection by holders of Receipts at the Corporate Office and at such
other places as it may from time to time deem advisable during normal business
hours any reports and communications received from the Company that are
received by the Depositary as the holder of Stock.
SECTION 4.08. Lists of Receipt Holders. Promptly upon request
from time to time by the Company, the Depositary shall furnish to it a list,
as of a recent date, of the names, addresses and holdings of Depositary Shares
of all persons in whose names Receipts are registered on the books of the
Depositary. At the expense of the Company, the Company shall have the right
to inspect transfer and registration records of the Depositary, any
Depositary's Agent or the Registrar, take copies thereof and require the
Depositary, any Depositary's Agent or the Registrar to supply copies of such
portions of such records as the Company may request.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01. Maintenance of Office, Agencies, Transfer Books
by the Depositary; the Registrar. Upon execution of this Deposit Agreement in
accordance with its terms, the Depositary shall maintain at the Corporate
Office and at the offices of the Depositary's Agents, if any, facilities for
the execution and delivery, registration, registration of transfer, surrender
and exchange, split-up, combination, conversion and redemption of Receipts and
deposit and withdrawal of Stock, all in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books at the Corporate Office for the
registration and transfer of Receipts, which books at all reasonable times
shall be open for inspection by the record holders of Receipts; provided that
any such holder requesting to exercise such right shall certify to the
Depositary that such inspection shall be for a proper purpose reasonably
related to such person's interest as an owner of Depositary Shares. The
Depositary shall consult with the Company upon receipt of any request for
inspection. The Depositary may close such books, at any time or from time to
time, when deemed expedient by it in connection with the performance of its
duties hereunder.
If the Receipts or the Depositary Shares evidenced thereby or
the Stock represented by such Depositary Shares shall be listed on one or more
stock exchanges, the Depositary shall, with the approval of the Company,
appoint a Registrar for registry of such Receipts or Depositary Shares in
accordance with the requirements of such exchange or exchanges. Such
Registrar (which may be the Depositary if so permitted by the requirements of
such exchange or exchanges) may be removed and a substitute registrar
appointed by the Depositary upon the request or with the approval of the
Company. In addition, if the Receipts, such Depositary Shares or such Stock
are listed on one or more stock exchanges, the Depositary will, at the request
of the Company, arrange such facilities for the delivery, registration,
registration of transfer, surrender and exchange, split-up, combination,
redemption or conversion of such Receipts, such Depositary Shares or such
Stock as may be required by law or applicable stock exchange regulations.
SECTION 5.02. Prevention or Delay in Performance by the
Depositary, the Depositary's Agents, the Registrar or the Company. Neither
the Depositary nor any Depositary's Agent nor the Registrar nor the Company
shall incur any liability to any holder of any Receipt, if by reason of any
provision of any present or future law or regulation thereunder of the United
States of America or of any other governmental authority or, in the case of
the Depositary, the Registrar or any Depositary's Agent, by reason of any
provision, present or future, of the Articles of Incorporation or the Articles
Supplementary or, in the case of the Company, the Depositary, the Registrar or
any Depositary's Agent, by reason of any act of God or war or other
circumstances beyond the control of the relevant party, the Depositary, any
Depositary's Agent, the Registrar or the Company shall be prevented or
forbidden from doing or performing any act or thing that the terms of this
Deposit Agreement provide shall be done or performed; nor shall the
Depositary, any Depositary's Agent, the Registrar or the Company incur any
liability to any holder of a Receipt (i) by reason of any nonperformance or
delay, caused as aforesaid, in the performance of any act or thing that the
terms of this Deposit Agreement provide shall or may be done or performed, or
(ii) by reason of any exercise of, or failure to exercise, any discretion
provided for in this Deposit Agreement except, in the case of the Depositary,
any Depositary's Agent or the Registrar, if any such exercise or failure to
exercise discretion is caused by its negligence or bad faith.
SECTION 5.03. Obligations of the Depositary, the Depositary's
Agents, the Registrar and the Company. The Company assumes no obligation and
shall be subject to no liability under this Deposit Agreement or the Receipts
to holders or other persons, except to perform in good faith such obligations
as are specifically set forth and undertaken by it to perform in this Deposit
Agreement. Each of the Depositary, the Depositary's Agents and the Registrar
assumes no obligation and shall be subject to no liability under this Deposit
Agreement or the Receipts to holders or other persons, except to perform such
obligations as are specifically set forth and undertaken by it to perform in
this Deposit Agreement without negligence or bad faith.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company shall be under any obligation to appear in,
prosecute or defend any action, suit or other proceeding with respect to
Stock, Depositary Shares, Receipts or Common Stock that in its opinion may
involve it in expense or liability, unless indemnity satisfactory to it
against all expense and liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company shall be liable for any action or any failure to act
by it in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Stock for deposit, any holder of a Receipt
or any other person believed by it in good faith to be competent to give such
advice or information. The Depositary, any Depositary's Agent, the Registrar
and the Company may each rely and shall each be protected in acting upon any
written notice, request, direction or other document believed by it to be
genuine and to have been signed or presented by the proper party or parties.
The Depositary, the Registrar and any Depositary's Agent may
own and deal in any class of securities of the Company and its affiliates and
in Receipts or Depositary Shares. The Depositary may also act as transfer
agent or registrar of any of the securities of the Company and its affiliates.
It is intended that neither the Depositary nor any Depositary's
Agent shall be deemed to be an "issuer" of the Stock, the Depositary Shares,
the Receipts or the Common Stock issued upon conversion or redemption of the
Stock under the federal securities laws or applicable state securities laws,
it being expressly understood and agreed that the Depositary and any
Depositary's Agent are acting only in a ministerial capacity as Depositary for
the Stock; provided, however, that the Depositary agrees to comply with all
information, reporting and withholding requirements applicable to it under law
or this Deposit Agreement in its capacity as Depositary.
Neither the Depositary (or its officers, directors, employees
or agents) nor any Depositary's Agent makes any representation or has any
responsibility as to the validity of the Registration Statement pursuant to
which the Depositary Shares are registered under the Securities Act, the
Stock, the Depositary Shares or any instruments referred to therein or herein,
or as to the correctness of any statement made therein or herein; provided,
however, that the Depositary is responsible for its representations in this
Deposit Agreement.
The Depositary assumes no responsibility for the correctness of
the description that appears in the Receipts, which can be taken as a
statement of the Company summarizing certain provisions of this Deposit
Agreement. Notwithstanding any other provision herein or in the Receipts, the
Depositary makes no warranties or representations as to the validity,
genuineness or sufficiency of any Stock at any time deposited with the
Depositary hereunder or of the Depositary Shares, as to the validity or
sufficiency of this Deposit Agreement, as to the value of the Depositary
Shares or as to any right, title or interest of the record holders of Receipts
in and to the Depositary Shares except that the Depositary hereby represents
and warrants as follows: (i) the Depositary has been duly organized and is
validly existing and in good standing under the laws of the State of New York,
with full power, authority and legal right under such law to execute, deliver
and carry out the terms of this Deposit Agreement; (ii) this Deposit Agreement
has been duly authorized, executed and delivered by the Depositary; and (iii)
this Deposit Agreement constitutes a valid and binding obligation of the
Depositary, enforceable against the Depositary in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law). The Depositary shall not be accountable for
the use or application by the Company of the Depositary Shares or the Receipts
or the proceeds thereof.
SECTION 5.04. Resignation and Removal of the Depositary,
Appointment of Successor Depositary. The Depositary may at any time resign
as Depositary hereunder by written notice via registered mail of its
election to do so delivered to the Company, such resignation to take effect
upon the appointment of a successor depositary and its acceptance of such
appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by
written notice of such removal delivered to the Depositary, such removal to
take effect upon the appointment of a successor depositary and its acceptance
of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall, within 45 days after the delivery
of the notice of resignation or removal, as the case may be, appoint a
successor depositary, which shall be a bank or trust company, or an
affiliate of a bank or trust company, having its principal office in the
United States of America and having a combined capital and surplus of at
least $50,000,000. If a successor depositary shall not have been appointed
in 45 days, the resigning or removed Depositary may petition a court of
competent jurisdiction to appoint a successor depositary. Every successor
depositary shall execute and deliver to its predecessor and to the Company
an instrument in writing accepting its appointment hereunder, and thereupon
such successor depositary, without any further act or deed, shall become
fully vested with all the rights, powers, duties and obligations of its
predecessor and for all purposes shall be the Depositary under this Deposit
Agreement, and such predecessor, upon payment of all sums due it and on the
written request of the Company, shall promptly execute and deliver an
instrument transferring to such successor all rights and powers of such
predecessor hereunder, shall duly assign, transfer and deliver all rights,
title and interest in the Stock and any moneys or property held hereunder
to such successor and shall deliver to such successor a list of the record
holders of all outstanding Receipts. Any successor depositary shall
promptly mail notice of its appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may be
merged, consolidated or converted shall be the successor of such Depositary
without the execution or filing of any document or any further act. Such
successor depositary may execute the Receipts either in the name of the
predecessor depositary or in the name of the successor depositary.
SECTION 5.05. Corporate Notices and Reports. The Company
agrees that it will deliver to the Depositary, and the Depositary will,
promptly after receipt thereof, transmit to the record holders of Receipts, in
each case at the address recorded in the Depositary's books, copies of all
notices and reports (including financial statements) required by law, by the
rules of any national securities exchange upon which the Stock, the Depositary
Shares or the Receipts are listed or by the Articles of Incorporation and the
Articles Supplementary to be furnished by the Company to holders of Stock.
Such transmission will be at the Company's expense and the Company will
provide the Depositary with such number of copies of such documents as the
Depositary may reasonably request. In addition, the Depositary will transmit
to the record holders of Receipts at the Company's expense such other
documents as may be requested by the Company.
SECTION 5.06. Deposit of Stock by the Company. The Company
agrees with the Depositary that neither the Company nor any company controlled
by the Company will at any time deposit any Stock if such Stock is required to
be registered under the provisions of the Securities Act and no registration
statement is at such time in effect as to such Stock.
SECTION 5.07. Indemnification by the Company. The Company
agrees to indemnify the Depositary, any Depositary's Agent and any
Registrar against, and hold each of them harmless from, any liability,
costs and expenses (including reasonable fees and expenses of counsel) that
may arise out of or in connection with its acting as Depositary,
Depositary's Agent or Registrar, respectively, under this Deposit Agreement
and the Receipts, except for any liability arising out of negligence, bad
faith or willful misconduct on the part of any such person or persons.
SECTION 5.08. Fees, Charges, and Expenses. No fees,
charges and expenses of the Depositary or any Depositary's Agent hereunder
or of any Registrar shall be payable by any person other than the Company,
except for any taxes and other governmental charges and except as provided
in this Deposit Agreement. If, at the request of a holder of a Receipt,
the Depositary incurs fees, charges or expenses for which it is not
otherwise liable hereunder, such holder or other person will be liable for
such fees, charges and expenses. All other fees, charges and expenses of
the Depositary and any Depositary's Agent hereunder and of any Registrar
(including, in each case, reasonable fees and expenses of counsel) incident
to the performance of their respective obligations hereunder will be paid
from time to time upon consultation and agreement between the Depositary
and the Company as to the amount and nature of such fees, charges and
expenses.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and any
provision of this Deposit Agreement may at any time and from time to time
be amended by agreement between the Company and the Depositary in any
respect that they may deem necessary or desirable. Any amendment that
shall impose or increase any fees, taxes or charges payable by holders of
Receipts (other than taxes and other governmental charges, fees and other
expenses payable by holders pursuant to the terms hereof or of the
Receipts), or that shall otherwise prejudice any substantial existing right
of holders of Receipts, shall not become effective as to outstanding
Receipts until the expiration of 90 days after notice of such amendment
shall have been given to the record holders of outstanding Receipts. Every
holder of an outstanding Receipt at the time any such amendment becomes
effective shall be deemed, by continuing to hold such Receipt, to consent
and agree to such amendment and to be bound by this Deposit Agreement as
amended thereby. In no event shall any amendment impair the right, subject
to the provisions of Sections 2.03, 2.06 and 2.07 and Article III, of any
owner of any Depositary Shares to surrender the Receipt evidencing such
Depositary Shares with instructions to the Depositary to deliver to the
holder the Stock and all money and other property, if any, represented
thereby, except in order to comply with mandatory provisions of applicable
law.
SECTION 6.02. Termination. Whenever so directed by the
Company, the Depositary will terminate this Deposit Agreement by mailing
notice of such termination to the record holders of all Receipts then
outstanding at least 30 days prior to the date fixed in such notice for such
termination. The Depositary may likewise terminate this Deposit Agreement if
at any time 45 days shall have expired after the Depositary shall have
delivered to the Company a written notice of its election to resign and a
successor depositary shall not have been appointed and accepted its
appointment as provided in Section 5.04.
If any Receipts shall remain outstanding after the date of
termination of this Deposit Agreement, the Depositary thereafter shall
discontinue the transfer of Receipts, shall suspend the distribution of
dividends to the holders thereof and shall not give any further notices
(other than notice of such termination) or perform any further acts under
this Deposit Agreement, except as provided below and that the Depositary
shall continue to collect dividends and other distributions pertaining to
Stock, shall sell rights, preferences or privileges as provided in this
Deposit Agreement and shall continue to deliver the Stock and any money and
other property represented by Receipts, without liability for interest
thereon, upon surrender thereof by the holders thereof. At any time after
the expiration of two years from the date of termination, the Depositary
may sell Stock then held hereunder at public or private sale, at such
places and upon such terms as it deems proper and may thereafter hold in a
segregated account the net proceeds of any such sale, together with any
money and other property held by it hereunder, without liability for
interest, for the benefit, pro rata in accordance with their holdings, of
the holders of Receipts that have not heretofore been surrendered. After
making such sale, the Depositary shall be discharged from all obligations
under this Deposit Agreement except to account for such net proceeds and
money and other property. Upon the termination of this Deposit Agreement,
the Company shall be discharged from all obligations under this Deposit
Agreement except for its obligations to the Depositary, any Depositary's
Agent and any Registrar under Sections 5.07 and 5.08. In the event this
Deposit Agreement is terminated, the Company hereby agrees to use its best
efforts to list the underlying Stock on the New York Stock Exchange, Inc.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. This Deposit Agreement may be
executed by the Company and the Depositary in separate counterparts, each of
which counterparts, when so executed and delivered, shall be deemed an
original, but all such counterparts taken together shall constitute one and
the same instrument. Delivery of an executed counterpart of a signature page
to this Deposit Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Deposit Agreement. Copies of this
Deposit Agreement shall be filed with the Depositary and the Depositary's
Agents and shall be open to inspection during business hours at the Corporate
Office and the respective offices of the Depositary's Agents, if any, by any
holder of a Receipt.
SECTION 7.02. Exclusive Benefits of Parties. This Deposit
Agreement is for the exclusive benefit of the parties hereto, and their
respective successors hereunder, and shall not be deemed to give any legal or
equitable right, remedy or claim to any other person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or
more of the provisions contained in this Deposit Agreement or in the
Receipts should be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining
provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
SECTION 7.04. Notices. Any notices to be given to the
Company hereunder or under the Receipts shall be in writing and shall be
deemed to have been duly given if personally delivered or sent by mail, or
by telegram or telex or telecopier confirmed by letter, addressed to the
Company at 1 SunAmerica Center, Los Angeles, California 90067-6022,
Attention: Treasurer, or at any other place to which the Company may have
transferred its principal executive office.
Any notices to be given to the Depositary hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given
if personally delivered or sent by mail, or by telegram or telex or telecopier
confirmed by letter, addressed to the Depositary at the Corporate Office.
Any notices given to any record holder of a Receipt hereunder
or under the Receipts shall be in writing and shall be deemed to have been
duly given if personally delivered or sent by mail, or by telegram or telex or
telecopier confirmed by letter, addressed to such record holder at the address
of such record holder as it appears on the books of the Depositary or, if such
holder shall have filed with the Depositary a written request that notices
intended for such holder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail, or by telegram or telex or
telecopier shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a duly addressed letter confirming an earlier
notice in the case of a telegram or telex or telecopier message) is deposited,
postage prepaid, in a post office letter box. The Depositary or the Company
may, however, act upon any telegram or telex or telecopier message received by
it from the other or from any holder of a Receipt, notwithstanding that such
telegram or telex or telecopier message shall not subsequently be confirmed by
letter as aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may, with
the approval of the Company which approval shall not be unreasonably withheld,
from time to time appoint one or more Depositary's Agents to act in any
respect for the Depositary for the purposes of this Deposit Agreement and may
vary or terminate the appointment of such Depositary's Agents.
SECTION 7.06. Holders of Receipts Are Parties.
Notwithstanding that holders of Receipts have not executed and delivered this
Deposit Agreement or any counterpart thereof, the holders of Receipts from
time to time shall be deemed to be parties to this Deposit Agreement and shall
be bound by all of the terms and conditions, and be entitled to all of the
benefits, hereof and of the Receipts by acceptance of delivery of Receipts.
SECTION 7.07. Governing Law. This Deposit Agreement and the
Receipts and all rights hereunder and thereunder and provisions hereof and
thereof shall be governed by, and construed in accordance with, the law of the
State of New York without giving effect to principles of conflict of laws.
SECTION 7.08. Headings. The headings of articles and sections
in this Deposit Agreement and in the form of the Receipt set forth in Exhibit
A hereto have been inserted for convenience only and are not to be regarded as
a part of this Deposit Agreement or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts.
IN WITNESS WHEREOF, SunAmerica Inc. and First Interstate have
duly executed this Deposit Agreement as of the day and year first above set
forth and all holders of Receipts shall become parties hereto by and upon
acceptance by them of delivery of Receipts issued in accordance with the terms
hereof.
SUNAMERICA INC.
Attest:
By: ________________________ By: ____________________________
Authorized Officer
THE BANK OF NEW YORK
Attest:
By: ________________________ By: ____________________________
Authorized Signatory
EXHIBIT A
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES
EACH REPRESENTING ONE-FIFTIETH OF A SHARE OF
SERIES E MANDATORY CONVERSION PREMIUM DIVIDEND PREFERRED STOCK
(Subject to Mandatory Conversion into Shares of Common Stock)
OF
SUNAMERICA INC.
(Incorporated under the Laws of the State of Maryland)
No.
The Bank of New York (the "Depositary") hereby certifies that
is the registered owner of Depositary Shares (the
"Depositary Shares"), each Depositary Share representing one-fiftieth of a
share of Series E Mandatory Conversion Premium Dividend Preferred Stock, no
par value (the "Stock"), of Sun-America Inc., a corporation duly organized and
existing under the laws of the State of Maryland (the "Company"), and the same
proportionate interest in any and all other property received by the
Depositary in respect of such shares of Stock and held by the Depositary under
the Deposit Agreement (as defined below). Subject to the terms of the Deposit
Agreement, each owner of a Depositary Share is entitled, proportionately, to
all the rights, preferences and privileges of the Stock represented thereby,
including the dividend, voting, liquidation and other rights contained in the
Articles Supplementary establishing the rights, preferences, privileges and
limitations of the Stock (the "Articles Supplementary"), copies of which are
on file at the office of the Depositary at which at any particular time its
business in respect of matters governed by the Deposit Agreement shall be
administered, which at the time of the execution of the Deposit Agreement is
located at 101 Barclay Street, New York, New York 10286 (the "Corporate
Office").
This Depositary Receipt ("Receipt") shall not be entitled to
any benefits under the Deposit Agreement or be valid or obligatory for any
purpose unless this Receipt shall have been executed manually or, if a
Registrar for the Receipts (other than the Depositary) shall have been
appointed, by facsimile by the Depositary by the signature of a duly
authorized signatory and, if executed by facsimile signature of the
Depositary, shall have been countersigned manually by such Registrar by the
signature of a duly authorized signatory.
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY DEPOSITED STOCK.
THE DEPOSITARY ASSUMES NO RESPONSIBILITY FOR THE CORRECTNESS OF THE
DESCRIPTION SET FORTH IN THIS RECEIPT, WHICH CAN BE TAKEN AS A STATEMENT OF
THE COMPANY SUMMARIZING CERTAIN PROVISIONS OF THE DEPOSIT AGREEMENT. UNLESS
EXPRESSLY SET FORTH IN THE DEPOSIT AGREEMENT, THE DEPOSITARY MAKES NO
WARRANTIES OR REPRESENTATIONS AS TO THE VALIDITY, GENUINENESS OR SUFFICIENCY
OF ANY STOCK AT ANY TIME DEPOSITED WITH THE DEPOSITARY UNDER THE DEPOSIT
AGREEMENT OR OF THE DEPOSITARY SHARES, AS TO THE VALIDITY OR SUFFICIENCY OF
THE DEPOSIT AGREEMENT, AS TO THE VALUE OF THE DEPOSITARY SHARES OR AS TO ANY
RIGHT, TITLE OR INTEREST OF THE RECORD HOLDERS OF THE DEPOSITARY RECEIPTS IN
AND TO THE DEPOSITARY SHARES.
The Company will furnish to any holder of this Receipt without
charge, upon request addressed to its executive office, a full statement of
the designation, relative rights, preferences and limitations of the shares
of each authorized class, and of each class of preferred stock authorized to
be issued, so far as the same may have been fixed, and a statement of the
authority of the Board of Directors of the Company to designate and fix the
relative rights, preferences and limitations of other classes.
This Receipt is continued on the reverse hereof and the
additional provisions therein set forth for all purposes have the same effect
as if set forth at this place.
Dated:
THE BANK OF NEW YORK,
as Depositary and Registrar
By:_______________________
Authorized Signatory
[FORM OF REVERSE
OF DEPOSITARY RECEIPT]
1. The Deposit Agreement. Depositary Receipts (the
"Receipts"), of which this Receipt is one, are made available upon the
terms and conditions set forth in the Deposit Agreement, dated as of
________, 1995 (the "Deposit Agreement"), among the Company, the Depositary
and all holders from time to time of Receipts. The Deposit Agreement
(copies of which are on file at the Corporate Office) and at the office of
any agent of the Depositary) sets forth the rights of holders of Receipts
and the rights and duties of the Depositary. The statements made on the
face and the reverse of this Receipt are summaries of certain provisions of
the Deposit Agreement and are subject to the detailed provisions thereof,
to which reference is hereby made. In the event of any conflict between
the provisions of this Receipt and the provisions of the Deposit Agreement,
the provisions of the Deposit Agreement will govern.
2. Definitions. Unless otherwise expressly herein provided,
all defined terms used herein shall have the meanings ascribed thereto in the
Deposit Agreement.
3. Redemption and Conversion of Stock. Whenever the
Company shall elect to redeem or be required to convert shares of Stock
into shares of Common Stock in accordance with the Articles Supplementary,
it shall (unless otherwise agreed in writing with the Depositary) give the
Depositary in its capacity as Depositary not less than 5 business days'
prior notice of the proposed date of the mailing of a notice of redemption
or conversion of Stock and the simultaneous redemption or conversion of the
Depositary Shares representing the Stock to be redeemed or converted and of
the number of such shares of Stock held by the Depositary to be redeemed or
converted. The Depositary shall, as directed by the Company in writing,
mail, first class postage prepaid, notice of the redemption or conversion
of Stock and the proposed simultaneous redemption or conversion of
Depositary Shares representing the Stock to be redeemed or converted, not
less than 30 and not more than 60 days prior to the date fixed for
redemption or conversion of such Stock and Depositary Shares, to the record
holders of the Receipts evidencing the Depositary Shares to be so redeemed
or converted, at the addresses of such holders as the same appear on the
records of the Depositary; provided, that if the effectiveness of a Merger
or Consolidation (as defined in the Articles Supplementary) makes it
impracticable to provide at least 30 days, notice, the Depositary shall
provide such notice as soon as practicable prior to such effectiveness.
Any such notice shall also be published in the same manner as notices of
redemption or conversion of the Stock are required to be published pursuant
to Section 3(i) of the Articles Supplementary. On the date of any such
redemption or conversion, the Depositary shall surrender the certificate or
certificates held by the Depositary evidencing the number of shares of
Stock to be redeemed or converted in the manner specified in the notice of
redemption or conversion of Stock provided by the Company pursuant to
Section (i) of the Articles Supplementary. The Depositary shall,
thereafter, redeem or convert the number of Depositary Shares representing
such redeemed or converted Stock upon the surrender of Receipts evidencing
such Depositary Shares in the manner provided in the notice sent to record
holders of Receipts; provided, that the Depositary shall have received,
upon surrendering such certificate or certificates as aforesaid, a
sufficient number of shares of Common Stock to convert or redeem such
number of Depositary Shares (including, in the event that the Company
elects pursuant to Sections 3(a), (b) or (c) of the Articles Supplementary
to exercise any option to deliver shares of Common Stock in lieu of any
cash consideration payable on the conversion date, the Effective Date (as
defined in the Articles Supplementary) of any Merger or Consolidation or
the redemption date, a number of shares of Common Stock equal to such cash
consideration (as determined in the manner set forth in the Articles
Supplementary)), plus any accrued and unpaid dividends payable with respect
thereto to and including or to and excluding (in accordance with the
Articles Supplementary) the date of any such redemption or conversion and
any other cash consideration payable on the conversion date, the Effective
Date of a Merger or Consolidation (other than any dividends or other cash
consideration payable on the conversion date, the Effective Date of a
Merger or Consolidation or the redemption date that the Company has elected
to pay in shares of Common Stock pursuant to Sections 3(a), (b) or (c) of
the Articles Supplementary). In case fewer than all the outstanding
Depositary Shares are to be redeemed, the Depositary Shares to be redeemed
shall be selected by the Depositary by lot or on a pro rata basis. Notice
having been mailed and published as aforesaid, from and after the
redemption or conversion date (unless the Company shall have failed to
redeem or convert the shares of Stock to be redeemed or converted by it
upon the surrender of the certificate or certificates therefor by the
Depositary as described above), the Depositary Shares called for redemption
or subject to conversion shall be deemed no longer to be outstanding and
all rights of the holders of Receipts evidencing such Depositary Shares
(except the right to receive the shares of Common Stock and cash, if any,
payable upon redemption or conversion upon surrender of such Receipts)
shall, to the extent of such Depositary Shares, cease and terminate. Upon
surrender in accordance with said notice of the Receipts evidencing such
Depositary Shares (properly endorsed or assigned for transfer, if the
Depositary shall so require), such Depositary Shares shall be converted
into or redeemed for shares of Common Stock at a rate equal to one-fiftieth
of the number of shares of Common Stock delivered, and the holders thereof
shall be entitled to one-fiftieth of the cash, if any, payable, in respect
of the shares of Stock pursuant to the Articles Supplementary. The
foregoing is subject further to the terms and conditions of the Articles
Supplementary. if fewer than all of the Depositary Shares evidenced by this
Receipt are called for redemption, the Depositary will deliver to the
holder of this Receipt upon its surrender to the Depositary, together with
shares of Common Stock and all accrued and unpaid dividends to and
including the date fixed for redemption payable in respect of the
Depositary Shares called for redemption, a new Receipt evidencing the
Depositary Shares evidenced by such prior Receipt and not called for
redemption.
4. Surrender of Receipts and Withdrawal of Stock. Upon
surrender of this Receipt to the Depositary at the Corporate Office or at such
other offices as the Depositary may designate, and subject to the provisions
of the Deposit Agreement, the holder hereof is entitled to withdraw, and to
obtain delivery, without unreasonable delay, to or upon the order of such
holder, any or all of the Stock (but only in whole shares of Stock) and all
money and other property, if any, at the time represented by the Depositary
Shares evidenced by this Receipt; provided, however, that, in the event this
Receipt shall evidence a number of Depositary Shares in excess of the number
of Depositary Shares representing the whole number of shares of Stock to be
withdrawn, the Depositary shall, in addition to such whole number of shares of
Stock and such money and other property, if any, to be withdrawn, deliver, to
or upon the order of such holder, a new Receipt or Receipts evidencing such
excess number of whole Depositary Shares.
5. Transfers, Split-ups, Combinations. Subject to Paragraphs
6, 7 and 8 below, this Receipt is transferable on the books of the Depositary
upon surrender of this Receipt to the Depositary at the Corporate Office or at
such other offices as the Depositary may designate, properly endorsed or
accompanied by a properly executed instrument of transfer, and upon such
transfer the Depositary shall sign and deliver a Receipt or Receipts to or
upon the order of the person entitled thereto, all as provided in and subject
to the Deposit Agreement. This Receipt may be split into other Receipts or
combined with other Receipts into one Receipt evidencing the same aggregate
number of Depositary Shares evidenced by the Receipt or Receipts surrendered;
provided, however, that the Depositary shall not issue any Receipt evidencing
a fractional Depositary Share.
6. Conditions to Signing and Delivery, Transfer, etc., of
Receipts. Prior to the execution and delivery, registration of transfer,
split-up, combination, surrender or exchange of this Receipt, the delivery of
any distribution hereon or the withdrawal or deposit of Stock, the Depositary,
any of the Depositary's Agents or the Company may require any or all of the
following: (i) payment to it of a sum sufficient for the payment (or, in the
event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any tax or other governmental charge with respect
thereto (including any such tax or charge with respect to Stock being
deposited or withdrawn or with respect to Common Stock or other securities or
property of the Company being issued upon conversion or redemption); (ii)
production of proof satisfactory to it as to the identity and genuineness of
any signature; and (iii) compliance with such reasonable regulations, if any,
as the Depositary or the Company may establish not inconsistent with the
Deposit Agreement. Any person presenting Stock for deposit, or any holder of
this Receipt, may be required to file such proof of information, to execute
such certificates and to make such representations and warranties as the
Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold or delay the delivery of this Receipt,
the registration of transfer, redemption, conversion or exchange of this
Receipt, the withdrawal of the Stock represented by the Depositary Shares
evidenced by this Receipt or the distribution of any dividend or other
distribution until such proof or other information is filed, such certificates
are executed or such representations and warranties are made.
7. Suspension of Delivery, Transfer, etc. The deposit of
Stock may be refused and the delivery of this Receipt against Stock or the
registration of transfer, split-up, combination, surrender or exchange of this
Receipt and the withdrawal of deposited Stock may be suspended (i) during any
period when the register of stockholders of the Company is closed, (ii) if any
such action is deemed necessary or advisable by the Depositary, any of the
Depositary's Agents or the Company at any time or from time to time because of
any requirement of law or of any government or governmental body or
commission, or under any provision of the Deposit Agreement, or (iii) with the
approval of the Company, for any other reason. The Depositary shall not be
required (a) to issue, transfer or exchange any Receipts for a period
beginning at the opening of business 15 days next preceding any selection of
Depositary Shares and Stock to be redeemed and ending at the close of business
on the day of the mailing of notice of redemption of Depositary Shares or (b)
to transfer or exchange for another Receipt any Receipt evidencing Depositary
Shares called or being called for redemption, in whole or in part, or subject
to conversion except as provided in the last sentence of Paragraph 3.
8. Payment of Taxes or Other Governmental Charges. If any tax
or other governmental charge shall become payable by or on behalf of the
Depositary with respect to (i) this Receipt, (ii) the Depositary Shares
evidenced by this Receipt, (iii) the Stock (or fractional interest therein) or
other property represented by such Depositary Shares, or (iv) any transaction
referred to in Section 4.06, of the Deposit Agreement, such tax (including
transfer, issuance or acquisition taxes, if any) or governmental charge shall
be payable by the holder of this Receipt, who shall pay the amount thereof to
the Depositary. Until such payment is made, registration of transfer of this
Receipt or any split-up or combination hereof or any withdrawal of the Stock
or money or other property, if any, represented by the Depositary Shares
evidenced by this Receipt may be refused, any dividend or other distribution
may be withheld and any part or all of the Stock or other property (including
Common Stock received in connection with a conversion or redemption of Stock)
represented by the Depositary Shares evidenced by this Receipt may be sold for
the account of the holder hereof (after attempting by reasonable means to
notify such holder prior to such sale). Any dividend or other distribution so
withheld and the proceeds of any such sale may be applied to any payment of
such tax or other governmental charge, the holder of this Receipt remaining
liable for any deficiency.
9. Amendment. The form of the Receipts and any provision
of the Deposit Agreement may at any time and from time to time be amended
by agreement between the Company and the Depositary in any respect that
they may deem necessary or desirable. Any amendment that shall impose or
increase any fees, taxes or charges payable by holders of Receipts (other
than taxes and other governmental charges, fees and other expenses payable
by holders as provided herein or in the Deposit Agreement), or that shall
otherwise prejudice any substantial existing right of holders of Receipts,
shall not become effective as to outstanding Receipts until the expiration
of 90 days after notice of such amendment shall have been given to the
record holders of outstanding Receipts. The holder of this Receipt at the
time any such amendment becomes effective shall be deemed, by continuing to
hold this Receipt, to consent and agree to such amendment and to be bound
by the Deposit Agreement as amended thereby. In no event shall any
amendment impair the right, subject to the provisions of Paragraphs 3, 4,
6, 7 and 8 hereof and of Sections 2.03, 2.06 and 2.07 and Article III of
the Deposit Agreement, of the owner of the Depositary Shares evidenced by
this Receipt to surrender this Receipt with instructions to the Depositary
to deliver to the holder the Stock and all money and other property, if
any, represented thereby, except in order to comply with mandatory
provisions of applicable law.
10. Fees, Charges and Expenses. The Company will pay all
fees, charges and expenses of the Depositary, except for taxes (including
transfer taxes, if any) and other governmental charges and such charges as are
expressly provided in the Deposit Agreement to be at the expense of persons
depositing Stock, holders of Receipts or other persons.
11. Title to Receipts. It is a condition of this Receipt,
and every successive holder hereof by accepting or holding the same
consents and agrees, that title to this Receipt (and to the Depositary
Shares evidenced hereby), when properly endorsed or accompanied by a
properly executed instrument of transfer, is transferable by delivery with
the same effect as in the case of a negotiable instrument; provided,
however, that the Depositary may, notwithstanding any notice to the
contrary, treat the record holder hereof at such time as the absolute owner
hereof for the purpose of determining the person entitled to distribution
of dividends or other distributions or to any notice provided for in the
Deposit Agreement and for all other purposes.
12. Dividends and Distributions. Whenever the Depositary
shall receive any cash dividend or other cash distribution on the Stock, the
Depositary shall, subject to the provisions of the Deposit Agreement,
distribute to record holders of Receipts such amounts of such sums as are, as
nearly as practicable, in proportion to the respective numbers of Depositary
Shares evidenced by the Receipts held by such holders; provided, however, that
in case the Company or the Depositary shall be required by law to withhold and
does withhold from any cash dividend or other cash distribution in respect of
the Stock an amount on account of taxes, the amount made available for
distribution or distributed in respect of Depositary Shares shall be reduced
accordingly. The Depositary shall distribute or make available for
distribution, as the case may be, only such amount, however, as can be
distributed without attributing to any owner of Depositary Shares a fraction
of one cent and any balance not so distributable shall be held by the
Depositary (without liability for interest thereon) and shall be added to and
be treated as part of the next sum received by the Depositary for distribution
to record holders of Receipts then outstanding.
13. Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
name Stock is registered on the books of the Company any rights, preferences
or privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance, subject to the provisions of the
Deposit Agreement, be made available by the Depositary to the record holders
of Receipts in such manner as the Company shall instruct.
14. Notice of Dividends, Fixing of Record Date. Whenever (i)
any cash dividend or other cash distribution shall become payable, or any
distribution other than cash shall be made, or any rights, preferences or
privileges shall at any time be offered, with respect to the Stock, or (ii)
the Depositary shall receive notice of any meeting at which holders of Stock
are entitled to vote or of which holders of Stock are entitled to notice or of
the mandatory conversion of, or any election on the part of the Company to
call for redemption of, any shares of Stock, the Depositary shall in each such
instance fix a record date (which shall be the same date as the record date
fixed by the Company with respect to the Stock) for the determination of the
holders of Receipts (x) who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds of the
sale thereof, or (y) who shall be entitled to give instructions for the
exercise of voting rights at any such meeting or of such meeting or to receive
notice of such conversion or redemption.
15. Voting Rights. Upon receipt of notice of any meeting at
which the holders of Stock are entitled to vote, the Depositary shall, as soon
as practicable thereafter, mail to the record holders of Receipts a notice,
which shall contain (i) such information as is contained in such notice of
meeting, (ii) a statement that the holders of Receipts at the close of
business on a specified record date determined as provided in Paragraph 14
will be entitled, subject to any applicable provision of law, the Articles of
Incorporation or the Articles Supplementary, to instruct the Depositary as to
the exercise of the voting rights pertaining to the Stock represented by their
respective Depositary Shares, and (iii) a brief statement as to the manner in
which such instructions may be given. Upon the written request of a holder of
this Receipt on such record date the Depositary shall endeavor insofar as
practicable to vote or cause to be voted the Stock represented by the
Depositary Shares evidenced by this Receipt in accordance with the
instructions set forth in such request. The Company hereby agrees to take all
reasonable action that may be deemed necessary by the Depositary in order to
enable the Depositary to vote such Stock or cause such Stock to be voted. In
the absence of specific instructions from the holder of this Receipt, the
Depositary will abstain from voting to the extent of the Stock represented by
the Depositary Shares evidenced by this Receipt.
16. Reports, Inspection of Transfer Books. The Depositary
shall make available for inspection by holders of Receipts at the Corporate
Office and at such other places as it may from time to time deem advisable
during normal business hours any reports and communications received from the
Company that are received by the Depositary as the holder of Stock. The
Depositary shall keep books at the Corporate Office for the registration and
transfer of Receipts, which books at all reasonable times will be open for
inspection by the record holders of Receipts; provided that any such holder
requesting to exercise such right shall certify to the Depositary that such
inspection shall be for a proper purpose reasonably related to such person's
interest as an owner of Depositary Shares.
17. Liability of the Depositary, the Depositary's Agents,
the Registrar and the Company. Neither the Depositary nor any Depositary's
Agent nor the Registrar nor the Company shall incur any liability to any
holder of this Receipt, if by reason of any provision of any present or
future law or regulation thereunder of any governmental authority or, in
the case of the Depositary, the Registrar or any Depositary's Agent, by
reason of any provision present or future, of the Articles of Incorporation
or the Articles Supplementary or, in the case of the Company, the
Depositary, the Registrar or any Depositary's Agent, by reason of any act
of God or war or other circumstances beyond the control of the relevant
party, the Depositary, any Depositary's Agent, the Registrar or the Company
shall be prevented or forbidden from doing or performing any act or thing
that the terms of the Deposit Agreement provide shall be done or performed;
nor shall the Depositary, any Depositary's Agent, the Registrar or the
Company incur any liability to any holder of this Receipt (i) by reason of
any nonperformance or delay, caused as aforesaid, in the performance of any
act or thing that the terms of the Deposit Agreement provide shall or may
be done or performed, or (ii) by reason of any exercise of, or failure to
exercise, any discretion provided for in the Deposit Agreement except, in
the case of the Depositary, any Depositary's Agent or the Registrar, if
such exercise or failure to exercise discretion is caused by its negligence
or bad faith.
18. Obligations of the Depositary, the Depositary's Agents,
the Registrar and the Company. The Company assumes no obligation and shall be
subject to no liability under the Deposit Agreement or this Receipt to the
holder hereof or other persons, except to perform in good faith such
obligations as are specifically set forth and undertaken by it to perform in
the Deposit Agreement. Each of the Depositary, the Depositary's Agents and
the Registrar assumes no obligation and shall be subject to no liability under
the Deposit Agreement or this Receipt to the holder hereof or other persons,
except to perform such obligations as are specifically set forth and
undertaken by it to perform in the Deposit Agreement without negligence or bad
faith.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company shall be under any obligation to appear in,
prosecute or defend any action, suit or other proceeding with respect to
Stock, Depositary Shares or Receipts or Common Stock that in its opinion may
involve it in expense or liability, unless indemnity satisfactory to it
against all expense and liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company will be liable for any action or failure to act by
it in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Stock for deposit, any holder of this
Receipt or any other person believed by it in good faith to be competent to
give such advice or information.
19. Termination of Deposit, Agreement. Whenever so directed
by the Company, the Depositary will terminate the Deposit Agreement by mailing
notice of such termination to the record holders of all Receipts then
outstanding at least 30 days prior to the date fixed in such notice for such
termination. The Depositary may likewise terminate the Deposit Agreement if
at any time 45 days shall have expired after the Depositary shall have
delivered to the Company a written notice of its election to resign and a
successor depositary shall not have been appointed and accepted its
appointment as provided in Section 5.04 of the Deposit Agreement. Upon the
termination of the Deposit Agreement, the Company shall be discharged from all
obligations thereunder except for its obligations to the Depositary, any
Depositary's Agent and any Registrar under Sections 5.07 and 5.08 of the
Deposit Agreement.
If any Receipts remain outstanding after the date of
termination of the Deposit Agreement, the Depositary thereafter shall
discontinue all functions and be discharged from all obligations as provided
in the Deposit Agreement, except as specifically provided therein.
20. Governing Law. The Deposit Agreement and this Receipt and
all rights thereunder and hereunder and provisions thereof and hereof shall be
governed by, and construed in accordance with, the law of the State of New
York without giving effect to principles of conflict of laws.
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto the within Receipt and all rights and
interests represented by the Depositary Shares evidenced thereby, and hereby
irrevocably constitutes and appoints his attorney, to
transfer the same on the books of the within-named Depositary, with full power
of substitution in the premises.
Dated: Signature: ____________________________________________
NOTE: The signature to this assignment must
correspond with the name as written upon the
face of the Receipt in every particular,
without alteration or enlargement, or any
change whatever.
EXHIBIT 5.1
[Form of Piper & Marbury Opinion]
October 30, 1995
SunAmerica Inc.
1 SunAmerica Center
Century City
Los Angeles, California 90067-6022
Re: Registration Statement
Registration No. 33-62405
_________________________
Ladies and Gentlemen:
We have acted as Maryland counsel to SunAmerica Inc. (the
"Corporation") in connection with its Registration Statement on Form S-3
(Registration No. 33-62405) filed with the Securities and Exchange
Commission (the "Commission"), and the prospectus supplement dated October
26, 1995 (the "Prospectus Supplement") relating to the issuance and sale of
up to 4,000,000 $3.10 Depositary Shares (the "Depositary Shares") each
representing one-fiftieth of a share of Series E Mandatory Conversion
Premium Dividend Preferred Stock, no par value (the "Series E Preferred
Stock"). Each share of Series E Preferred Stock is convertible under
certain circumstances into shares of the Corporation's Common Stock, $1.00
par value (the "Common Stock"). The Series E Preferred Stock will be
deposited under a Deposit Agreement dated as of November 1, 1995 (the
"Deposit Agreement") among the Corporation, The Bank of New York, as
depositary, and all holders from time to time of the depositary receipts
issued thereunder.
We have reviewed the Charter and By-Laws of the Corporation,
the Registration Statement and the Prospectus Supplement, and the proceedings
heretofore taken by the Corporation in connection with the authorization,
issuance and sale of the Depositary Share sand Series E Preferred Stock and
Common Stock. In addition, we have examined such other documents, instruments
and matters of law as we have deemed necessary to the rendering of the opinion
expressed below.
Based on the foregoing, we are of the opinion and advise as
follows:
1. The Series E Preferred Stock, and the deposit of the
Series E Preferred Stock by the Corporation in accordance with the Deposit
Agreement, have been duly authorized, and when the Series E Preferred Stock is
issued and delivered in the manner contemplated in the Prospectus Supplement
and payment of the agreed consideration for the Series E Preferred Stock has
been received by the Corporation, the Series E Preferred Stock will be duly
issued, fully paid and nonassessable.
2. The shares of Common Stock initially issuable upon the
conversion of the Series E Stock have been duly authorized and reserved for
issuance upon such conversion, and when issued upon conversion, will be duly
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to
the Registration Statement and to the reference to or firm in the Registration
Statement and the Prospectus Supplement. In giving our consent, we do not
thereby admit that we are in the category of persons whose consent is required
under Section 7 of the Act or the Rules and Regulations of the Commission
thereunder.
Very truly yours,
/s/ Piper & Marbury L.L.P.
EXHIBIT 5.2
[Letterhead of Davis, Polk & Wardwell]
(212) 450-4500
October 30, 1995
SunAmerica Inc.
1 SunAmerica Center
Los Angeles, CA 90067-6022
Dear Sirs:
We have acted as special counsel to SunAmerica Inc., a Maryland
corporation (the "Company") in connection with the issuance of up to
4,000,000 $3.10 Depositary Shares (the "Depositary Shares"), each
representing one-fiftieth of a share of Series E Mandatory Conversion
Premium Dividend Preferred Stock, without par value (the "Preferred
Stock"), of the Company. The Depositary Shares and the Preferred Stock
have been registered under the Securities Act of 1933, as amended (the
"Act") under a shelf Registration Statement on Form S-3 (Registration No.
33-62405), as amended (the "Registration Statement") filed by the Company
with the Securities and Exchange Commission (the "Commission") which
Registration Statement was declared effective by the Commission on
September 29, 1995, and are being offered and sold pursuant to a Prospectus
Supplement dated October 26, 1995 (the "Prospectus Supplement") to the
Prospectus dated September 29, 1995 relating to the Preferred Stock and the
Depositary Shares included in the Registration Statement. Capitalized
terms used herein that are not defined herein shall have the meanings
assigned to them in the Deposit Agreement (the form of which is set forth
as Exhibit 4.10 to the Form 8-K of the Company filed today with the
Commission and incorporated by reference in the Registration Statement).
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments as we have deemed
necessary or advisable for the purposes of rendering this opinion.
Based on the foregoing, we are of the opinion that, when
Depositary Shares evidenced by Depositary Receipts are issued and delivered in
accordance with the terms of the Deposit Agreement against the deposit of duly
authorized, legally issued, fully paid and non-assessable shares of Preferred
Stock, such Depositary Shares will entitle the holders thereof to the rights
specified in the Deposit Agreement and the Depositary Receipts.
We are members of the Bar of the State of New York and our opinion
is limited to the Federal laws of the United States and the laws of the State
of New York.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption
"Legal Matters" in the Prospectus Supplement. The issuance of such consent
does not concede that we are an "expert" for purposes of the Act.
Very truly yours,
/s/ Davis Polk & Wardwell
EXHIBIT 8.1
[Letterhead of Davis Polk & Wardwell]
(212) 450-4000
October 30, 1995
SunAmerica Inc.
1 SunAmerica Center
Los Angeles, CA 90067-6022
Dear Sirs:
We have acted as special counsel to SunAmerica Inc. (the
"Company") in connection with the sale of 4,000,000 $3.10 Depositary Shares
each representing one-fiftieth of a share of its Series E Mandatory
Conversion Premium Dividend Preferred Stock. In that connection we have
prepared the discussion contained under the caption "Federal Income Tax
Considerations" in the Prospectus Supplement dated October 26, 1995 to the
Prospectus dated September 29, 1995 relating to preferred stock and
depositary shares that is part of the Company's Registration Statement on
Form S-3 (Registration Statement No. 33-62405) filed with the Securities
and Exchange Commission under the Securities Act of 1933. In our opinion,
such discussion accurately summarizes the material United States federal
income tax consequences applicable to holders of the Depositary Shares and
the Series E Mandatory Conversion Premium Dividend Preferred Stock
represented thereby.
We consent to the use of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption
"Federal Income Tax Considerations" in the Prospectus Supplement.
Very truly yours,
/s/ Davis Polk & Wardwell
_________________________
