EXHIBIT 5(B)
[Letterhead of Morris, Nichols, Arsht & Tunnell]
December 4, 2001
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December 4, 2001
DPL Capital Trust II
c/o DPL Inc.
Courthouse Plaza Southwest
Dayton, Ohio 45402
Re: DPL Capital Trust II
Ladies and Gentlemen:
We have acted as special Delaware counsel to DPL Capital Trust II, a
Delaware statutory business trust (the "Trust"), in connection with certain
matters relating to the formation of the Trust and the proposed issuance of
Exchange Capital Securities to beneficial owners pursuant to and as described in
the Registration Statement (and the Prospectus forming a part thereof) on
Form S-4 filed with the Securities and Exchange Commission on October , 2001
(the "Registration Statement"). Capitalized terms used herein and not otherwise
herein defined are used as defined in the Amended and Restated Trust Agreement
of the Trust dated as of August 31, 2001 (the "Governing Instrument").
In rendering this opinion, we have examined and relied upon copies of
the following documents in the forms provided to us: the Certificate of Trust of
the Trust as filed in the Office of the Secretary of State of the State of
Delaware.(the "State Office") on August 23, 2001 (the "Certificate of Trust");
the Trust Agreement of the Trust dated as of August 23, 2001 (the "Original
Governing Instrument"); the Governing Instrument; the Exchange and Registration
Rights Agreement dated as of August 24, 2001 among the Trust, DPL Inc. and
Morgan Stanley & Co. Incorporated (the "Registration Rights Agreement"); the
Registration Statement; and a certification of good standing of the Trust
obtained as of a recent date from the State Office. In such examinations, we
have assumed the genuineness of all signatures, the conformity to original
documents of all documents submitted to us as drafts or copies or forms of
documents to be executed and the legal capacity of natural persons to complete
the execution of documents. We have further assumed for purposes of this
opinion: (i) the due formation or organization, valid existence and good
standing of each entity (other than the Trust) that is a party to any of the
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documents reviewed by us under the laws of the jurisdiction of its respective
formation or organization; (ii) the due authorization, execution and delivery
by, or on behalf of, each of the parties thereto of the above-referenced
documents (including, without limitation, the due authorization, execution and
delivery of the Governing Instrument and the Registration Rights Agreement prior
to the first issuance of Capital Securities); (iii) that no event has occurred
subsequent to the filing of the Certificate of Trust that would cause a
dissolution or liquidation of the Trust under the Original Governing Instrument
or the Governing Instrument, as applicable; (iv) that the activities of the
Trust have been and will be conducted in accordance with the Original Governing
Instrument or the Governing Instrument, as applicable, and the Delaware Business
Trust Act, 12 Del. C. Secs. 3801 et seq. (the "Delaware Act"); (v) that each
Person that will acquire Exchange Capital Securities in the Exchange Offer will
validly tender Private Capital Securities in exchange therefor, that such
Private Capital Securities will be duly accepted, and that such Person will duly
receive Exchange Capital Securities in consideration thereof, all in accordance
with the terms and conditions of the Governing Instrument, the Registration
Statement and the Registration Rights Agreement and that the Exchange Capital
Securities are otherwise issued and sold to the Exchange Capital Securities
Holders in accordance with the terms, conditions, requirements and procedures
set forth in the Governing Instrument, the Registration Statement and the
Registration Rights Agreement; and (vi) that the documents examined by us are in
full force and effect, express the entire understanding of the parties thereto
with respect to the subject matter thereof and have not been amended,
supplemented or otherwise modified, except as herein referenced. We have not
reviewed any documents other than those identified above in connection with this
opinion, and we have assumed that there are no other documents that are contrary
to or inconsistent with the opinions expressed herein. Further, we express no
opinion with respect to, and assume no responsibility for the contents of, the
Registration Statement or any other offering material relating to the Exchange
Capital Securities. No opinion is expressed herein with respect to the
requirements of, or compliance with, federal or state securities or blue sky
laws. As to any fact material to our opinion, other than those assumed, we have
relied without independent investigation on the above-referenced documents and
certificates and on the accuracy, as of the date hereof, of the matters therein
contained.
Based on and subject to the foregoing, and limited in all respects to
matters of Delaware law, it is our opinion that:
1. The Trust is a duly formed and validly existing business trust
in good standing under the laws of the State of Delaware.
2. The Exchange Capital Securities, upon issuance pursuant to the
Exchange Offer, will constitute validly issued, fully paid and nonassessable
beneficial interests in the assets of the Trust. We note that pursuant to the
Governing Instrument, the Exchange Capital Securities Holders may be obligated
to make payments or provide indemnity or security under the circumstances set
forth therein.
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3. Under the Delaware Act and the terms of the Governing
Instrument, each Exchange Capital Securities Holder, in such capacity, will be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General Corporation Law
of the State of Delaware; provided, however, we express no opinion with respect
to the liability of any Exchange Capital Securities Holder who is, was or may
become a named Trustee of the Trust.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name and reference to our opinion
under the heading "LEGAL MATTERS" in the Prospectus forming a part thereof. In
giving this consent, we do not thereby admit that we come within the category of
persons whose consent is required under Section 7 of the Securities Act of 1933,
as amended, or the rules and regulations of the Securities and Exchange
Commission thereunder. This opinion speaks only as of the date hereof and is
based on our understandings and assumptions as to present facts, and on our
review of the above-referenced documents and the application of Delaware law as
the same exist as of the date hereof, and we undertake no obligation to update
or supplement this opinion after the date hereof for the benefit of any person
or entity with respect to any facts or circumstances that may hereafter come to
our attention or any changes in facts or law that may hereafter occur or take
effect. This opinion is intended solely for the benefit of the addressee hereof
in connection with the matters contemplated hereby and may not be relied on by
any other person or entity or for any other purpose without our prior written
consent.
Very truly yours,
MORRIS, NICHOLS, ARSHT & TUNNELL
/s/ Jonathan I. Lessner
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Jonathan I. Lessner