(v) certain resolutions of the Board of Directors of the Company adopted by unanimous written consent on June 9, 2020, as certified by the Secretary of the Company on the date hereof as being true, complete and correct and in full force and effect, relating to, among other things the creation, offer, issuance, sale and distribution of the Underlying Preferred Shares and Depositary Shares and the establishment of a Preferred Stock Financing Committee of the Board of Directors, (vi) certain resolutions of such Preferred Stock Financing Committee adopted by unanimous written consent on June 17, 2020, as certified by the Secretary of the Company on the date hereof as being true, complete and correct and in full force and effect, (vii) the Amended and Restated Certificate of Incorporation of the Company and the Amended and RestatedBy-Laws of the Company, in each case as currently in effect and as certified by Secretary of the Company on the date hereof as being true, complete and correct and in full force and effect, (viii) the Certificate of Designations relating to the Underlying Preferred Shares dated June 22, 2020 (the “Certificate of Designations”) and (ix) the Deposit Agreement. We have also examined originals, or copies of originals certified or otherwise identified to our satisfaction, of such records of the Company and other corporate documents, have examined such questions of law and have satisfied ourselves as to such matters of fact as we have considered relevant and necessary as a basis for the opinions set forth herein. We have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures, the legal capacity of all natural persons and the conformity with the original documents of any copies thereof submitted to us for our examination.
Based on the foregoing, and subject to the qualifications and limitations set forth herein, we are of the opinion that:
1. The Underlying Preferred Shares in respect of the Depositary Shares have been duly authorized and, when issued and delivered as contemplated by the terms of the Underwriting Agreement, will be validly issued, fully paid andnon-assessable.
2. The deposit of the Underlying Preferred Shares in respect of the Depositary Shares by the Company in accordance with the Deposit Agreement has been duly authorized and, assuming due authorization, execution and delivery of the Deposit Agreement by the Depositary, each Depositary Share will represent the interest described in the Prospectus in an Underlying Preferred Share; assuming due execution and delivery of the Depositary Receipts by the Depositary pursuant to such Deposit Agreement, the Depositary Receipts will entitle the holders thereof to the benefits provided therein and in the Deposit Agreement.
Our opinion in paragraph 2 is subject to: (i) the effect of bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other similar laws relating to or affecting the rights and remedies of creditors and (ii) the effect of general principles of equity, whether considered in a proceeding in equity or at law (including the possible unavailability of specific performance or injunctive relief), concepts of materiality, reasonableness, good faith, fair dealing and commercial reasonableness, and the discretion of the court before which a proceeding is brought.
