EXHIBIT 5.1
December 20, 2002
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. Incorporated
As representatives of the several Underwriters
c/o Merrill Lynch, Pierce, Fenner & Smith Incorporated
World Financial Center - North Tower
250 Vesey Street
New York, New York 10080
THE PHOENIX COMPANIES, INC.
OFFERING OF 6,000,000 EQUITY UNITS
Ladies and Gentlemen:
We have acted as special counsel to The Phoenix Companies, Inc., a
Delaware corporation (the "Company"), in connection with (a) the issuance and
sale today by the Company of 6,000,000 7.25% Equity Units (the "Equity Units")
of the Company, consisting initially of 6,000,000 Corporate Units (the
"Corporate Units") of the Company, to the several underwriters (the
"Underwriters") named in Schedule I to the Pricing Agreement, dated December 16,
2002 (the "Pricing Agreement"), between the Company and Merrill Lynch, Pierce,
Fenner & Smith Incorporated and Morgan Stanley & Co. Incorporated, as
representatives (the "Representatives") of the Underwriters, which incorporates
by reference the provisions of the Underwriting Agreement General Terms and
Conditions, dated December 16, 2002 (the "Underwriting Agreement"), between the
Company and the Representatives; (b) the issuance today of the 6.6% Notes due
February 16, 2008 (the "Notes") of the Company issued pursuant to the
Subordinated Indenture, dated as of December 20, 2002 (the "Base Indenture"),
between the Company and SunTrust Bank, a Georgia banking corporation, as trustee
(the "Trustee"), as supplemented by Supplemental Indenture No. 1, dated as of
December 20, 2002 (the "Supplemental Indenture"), between the Company and the
Trustee (the Base Indenture, as so supplemented, is referred to herein as the
"Indenture"); (c) the preparation of (i) the Base Indenture, (ii) the
Supplemental Indenture, (iii) the Purchase Contract Agreement, dated as of
December 20, 2002 (the "Purchase Contract Agreement"), between the Company and
SunTrust Bank, as purchase contract agent (in such capacity, the "Purchase
Contract Agent"), (iv) the Pledge Agreement, dated as of December 20, 2002 (the
"Pledge Agreement"), among the Company, SunTrust Bank as collateral agent (in
such capacity, the "Collateral Agent"), custodial agent and securities
intermediary, and the Purchase Contract Agent, and (v) the Remarketing
Agreement, dated as of December 20,
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2002 (the "Remarketing Agreement"), among the Company, the Purchase Contract
Agent and Morgan Stanley & Co. Incorporated, as remarketing agent; and (d) the
preparation and filing with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), of the Company's Registration Statement on Form S-3 (Registration No.
333-101629) and Amendment No. 1 thereto. Such Registration Statement, as so
amended at the time it became effective (including the information deemed a part
thereof pursuant to Rule 430A under the Securities Act but excluding such Forms
T-1 as are attached as exhibits thereto) is hereinafter referred to as the
"Registration Statement." The prospectus relating to the Shelf Securities, dated
December 13, 2002 (the "Base Prospectus"), as supplemented by the prospectus
supplement dated December 16, 2002 (the "Prospectus Supplement"), in the form
first filed with the Commission by the Company pursuant to Rule 424(b) under the
Securities Act, is referred to herein as the "Prospectus." Each Corporate Unit
consists of a (x) a contract (each, a "Purchase Contract" and, collectively, the
"Purchase Contracts") to purchase shares of common stock, par value $0.01 per
share (the "Common Stock"), of the Company and (y), initially, $25 principal
amount of the Notes. We refer herein to the Corporate Units, the Pricing
Agreement, the Underwriting Agreement, the Notes, the Base Indenture, the
Supplemental Indenture, the Purchase Contract Agreement, the Pledge Agreement,
the Remarketing Agreement and the Purchase Contracts collectively as the
"Transaction Documents." Capitalized terms used herein without definition have
the respective meanings assigned to them in the Underwriting Agreement.
In so acting, we have examined and relied upon the originals or
certified, conformed or reproduction copies of such agreements, instruments,
documents, records and certificates of the Company, such certificates of public
officials and such other documents, and have made such investigations of law, as
we have deemed necessary or appropriate for the purposes of the opinions
expressed below. In all such examinations, we have assumed without independent
investigation or inquiry the legal capacity of all natural persons executing
documents, the genuineness of all signatures on original or certified copies,
the authenticity of all original or certified copies and the conformity to
original or certified documents of all copies submitted to us as conformed or
reproduction copies. We have relied as to factual matters upon, and have assumed
the accuracy of, the statements made in the certificates of officers of the
Company delivered to us, the representations and warranties of the parties to
the Underwriting Agreement and the Pricing Agreement that are contained therein,
and certificates and other statements or information of or from public officials
and officers and representatives of the Company and others.
In rendering the opinions expressed below, we have assumed without
independent investigation or inquiry that (a) each of the parties to the
Transaction Documents (other
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than the Company) has the power and authority to execute and deliver, and to
perform its obligations under, each of the Transaction Documents to which it is
a party, (b) each of the Transaction Documents has been duly authorized,
executed and delivered by each of the parties thereto (other than the Company)
and is the valid and binding obligation of such party enforceable against such
party in accordance with its terms, (c) the Corporate Units have been duly
authenticated by the Purchase Contract Agent in the manner provided in the
Purchase Contract Agreement and (d) the Notes have been duly authenticated by
the Trustee in the manner provided in the Indenture.
Based on the foregoing, and subject to the limitations, qualifications
and assumptions set forth herein, we are of the opinion that:
1. The Company is validly existing as a corporation in good
standing under the laws of the State of Delaware and has the corporate
power and authority to own its property and to conduct its business as
described in the Prospectus.
2. Each of the Purchase Contract Agreement, the Pledge
Agreement, the Base Indenture, the Supplemental Indenture, the
Remarketing Agreement, the Equity Units, the Purchase Contracts and
the Notes conform as to legal matters in all material respects to the
descriptions thereof contained in the Prospectus.
3. Each of the Purchase Contract Agreement and the Pledge
Agreement has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except
as the enforceability thereof may be limited by (a) bankruptcy,
insolvency, reorganization, fraudulent conveyance, fraudulent
transfer, moratorium or similar laws now or hereafter in effect
affecting creditors' rights generally and (b) general principles of
equity (regardless of whether such enforcement is considered in a
proceeding at law or in equity); provided, however, that upon the
occurrence of a Termination Event (as defined in the Purchase Contract
Agreement), the Bankruptcy Code (11 U.S.C. ss.ss. 101-1330, as
amended) should not substantively limit the provisions of Sections
3.15 and 5.06 of the Purchase Contract Agreement or Section 5.04 of
the Pledge Agreement that require termination of the Purchase
Contracts and release of the Collateral Agent's security interest in
(1) the Notes, (2) the Treasury Securities (as defined in the Purchase
Contract Agreement) or (3) the applicable ownership interest of the
Treasury Portfolio (as defined in the Purchase Contract Agreement), as
applicable, and the transfer of such securities to the Purchase
Contract Agent, for the benefit of the Holders of the Equity Units;
provided further, however, that no opinion is expressed as to whether
a court exercising bankruptcy jurisdiction might issue a temporary
restraining order or provide other
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interim relief that would delay the exercise of such termination right
for a period of time pending final adjudication of any challenge to
the exercise of such right during a bankruptcy case involving the
Company. In addition, applicable state laws and interpretations may
affect the validity or enforceability of certain remedies provided for
in the Pledge Agreement, but such limitations do not, in our opinion,
make the remedies provided for therein inadequate for the practical
realization of the rights and benefits intended to be provided thereby
(subject to the other qualifications expressed in this letter).
4. The Corporate Units to be issued and sold by the Company to
the Underwriters pursuant to the terms of the Pricing Agreement and
the Underwriting Agreement have been duly authorized by the Company
and, when executed by the Company and authenticated by the Purchase
Contract Agent in accordance with the provisions of the Purchase
Contract Agreement and delivered to and paid for by the Underwriters
in accordance with the terms of the Underwriting Agreement and the
Pricing Agreement, will be entitled to the benefits of the Purchase
Contract Agreement and will be valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms, except as the enforceability thereof may be limited by (a)
bankruptcy, insolvency, reorganization, fraudulent conveyance,
fraudulent transfer, moratorium or similar laws affecting creditors'
rights generally and (b) general principles of equity (regardless of
whether such enforcement is considered in a proceeding at law or in
equity); provided, however, that upon the occurrence of a Termination
Event, the Bankruptcy Code (11 U.S.C. ss.ss. 101-1330, as amended)
should not substantively limit the provisions of Sections 3.15 and
5.06 of the Purchase Contract Agreement or Section 5.04 of the Pledge
Agreement that require termination of the Purchase Contracts and
release of the Collateral Agent's security interest in (1) the Notes,
(2) the Treasury Securities or (3) the applicable ownership interest
of the Treasury Portfolio, as applicable, and the transfer of such
securities to the Purchase Contract Agent, for the benefit of the
Holders of the Equity Units; provided further, however, that no
opinion is expressed as to whether a court exercising bankruptcy
jurisdiction might issue a temporary restraining order or provide
other interim relief that would delay the exercise of such termination
right for a period of time pending final adjudication of any challenge
to the exercise of such right during a bankruptcy case involving the
Company; and the Equity Units conform as to legal matters in all
material respects to the description thereof in the Prospectus.
5. The Underwriting Agreement and the Pricing Agreement have
been duly authorized, executed and delivered by the Company.
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6. The execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Transaction
Documents and the consummation of the transactions therein
contemplated will not result in a violation of any provision of New
York or United States Federal law or of the General Corporation Law of
the State of Delaware or the Amended and Restated Certificate of
Incorporation or bylaws of the Company, and no consent, approval,
authorization or order of, or qualification with, any United States,
Delaware (but only to the extent such would be required by the General
Corporation Law of the State of Delaware), or New York governmental
body or agency is required for the performance by the Company of its
obligations under each of the Transaction Documents to which it is a
party, except such as have been obtained under the Securities Act and
the Securities Exchange Act of 1934, as amended, and such as may be
required by the securities, insurance or Blue Sky laws of the various
States or any foreign jurisdiction in connection with the offer and
sale of the Corporate Units by the Underwriters, and except that we
express no opinion as to the accuracy or completeness of the
statements contained in the Registration Statement or the Prospectus
except to the limited extent stated in paragraph 10 below.
7. The Notes have been duly authorized by the Company and,
when executed by the Company and authenticated by the Trustee in
accordance with the provisions of the Indenture and delivered to and
paid for by the Underwriters as part of the Corporate Units in
accordance with the terms of the Underwriting Agreement and the
Pricing Agreement, will be valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms, except as the enforceability thereof may be limited by (i)
bankruptcy, insolvency, reorganization, fraudulent conveyance,
fraudulent transfer, moratorium or other similar laws now or hereafter
in effect affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity), and will be entitled
to the benefits of the Indenture.
8. The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended. Each of the Base Indenture and the
Supplemental Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
except as the enforceability thereof may be limited by (i) bankruptcy,
insolvency, reorganization, fraudulent conveyance, fraudulent
transfer, moratorium or other similar laws now or hereafter in effect
affecting creditors' rights generally and (ii) general principles of
equity
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(regardless of whether enforceability is considered in a proceeding at
law or in equity).
9. The Remarketing Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except as (i) the enforceability thereof
may be limited by (a) bankruptcy, insolvency, reorganization,
fraudulent conveyance, fraudulent transfer, moratorium or other
similar laws now or hereafter in effect affecting creditors' rights
generally and (b) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity) and
(ii) rights to indemnification and contribution contained therein may
be limited by state and Federal securities laws or the public policy
underlying such laws.
10. The statements in (a) the Prospectus Supplement under the
captions "Description of the Equity Units," "Description of the
Purchase Contracts," "Certain Provisions of the Purchase Contracts,
the Purchase Contract Agreement and the Pledge Agreement,"
"Description of the Notes," "U.S. Federal Income Tax Consequences,"
"ERISA Considerations" and "Underwriting" (with respect solely to the
description of the Underwriting Agreement contained therein), (b) the
Base Prospectus under the captions "Description of Debt Securities,"
"Description of the Capital Stock of The Phoenix Companies, Inc." and
"Description of Stock Purchase Contracts and Stock Purchase Units" and
(c) the Registration Statement in Item 15, in each case insofar as
such statements purport to summarize the legal matters or certain
provisions of the documents and proceedings referred to therein, are
accurate and fair in all material respects.
11. The Company is not and, after giving effect to the
offering and sale of the Corporate Units and the application of the
proceeds thereof as described in the Prospectus, will not be, required
to register as an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
12. The Registration Statement and the Prospectus, excluding
the documents incorporated by reference therein (and except for
financial statements and notes thereto and schedules and other
financial and statistical data and supporting schedules included
therein or omitted therefrom, as to which we express no opinion),
comply as to form in all material respects with the Securities Act and
the applicable rules and regulations of the Commission thereunder.
13. (i) The shares of Common Stock to be issued and sold by
the Company pursuant to the Purchase Contracts have been duly
authorized and
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reserved for issuance and, when issued and delivered in accordance with
the provisions of the Purchase Contract Agreement, will be validly
issued, fully paid and non-assessable and will conform to the
description thereof in the Prospectus and (ii) the Rights, if any,
issuable upon satisfaction of Holders' obligations under the Purchase
Contracts have been duly authorized and, when and if issued in
accordance with the terms of the Purchase Contract Agreement and the
Rights Agreement, will have been validly issued and will conform to the
description thereof in the Prospectus.
* * * *
While we have not ourselves checked the accuracy and
completeness of, or otherwise verified, and are not passing upon and
assume no responsibility for the accuracy or completeness of, the
statements contained in the Registration Statement or the Prospectus,
except to the limited extent stated in paragraph 10 above, in the
course of our review and discussion of the contents of the Registration
Statement and the Prospectus with certain officers and employees of the
Company and its independent accountants, but without independent check
or verification, no facts have come to our attention that cause us to
believe that the Registration Statement (except for the financial
statements and notes thereto, and other financial and statistical data
and supporting schedules included therein or omitted therefrom, as to
which we express no belief), at the time it became effective, contained
an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
contained therein not misleading, or that the Prospectus (except for
the financial statements and notes thereto, and other financial and
statistical data and supporting schedules included therein or omitted
therefrom, as to which we express no belief), as of its date and as of
the date hereof, contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact necessary to
make the statements contained therein, in the light of the
circumstances under which they were made, not misleading.
The opinions set forth above are subject to the following additional
limitations and qualifications:
(a) In rendering our opinion in paragraph 1 above concerning
the valid existence and good standing of the Company, we have relied
exclusively on a good standing certificate of the Secretary of State of
the State of Delaware.
(b) Our opinions are subject to the effects of (1) an implied
covenant of good faith, reasonableness and fair dealing, and standards
of materiality, and (2) limitations with respect to enforceability of
provisions providing for
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indemnification or contribution arising under applicable law (including
court decisions) or public policy.
(c) We express no opinion as to (1) the priority status under
the Bankruptcy Code (11 U.S.C. ss.ss. 101 - 1330, as amended) of the
Notes or (2) the perfection or priority of the security interests
purported to be created by the Pledge Agreement.
(d) We express no opinion as to whether a United States
Federal court would accept jurisdiction in any dispute, action, suit or
proceeding arising out of or relating to any of the Transaction
Documents or the transactions contemplated thereby.
The opinions expressed herein are limited to the Federal laws of the
United States of America, the laws of the State of New York and the General
Corporation Law of the State of Delaware, as currently in effect, and we do not
express any opinion herein concerning any other laws.
The opinions expressed herein are limited solely to the matters set
forth above. No other opinions are intended nor should they be inferred
herefrom. We are delivering this opinion to you pursuant to Section 7(c) of the
Underwriting Agreement and no persons other than the several Underwriters are
entitled to rely on this opinion without our express written permission. We
assume no obligation to supplement this letter if any applicable laws change
after the date hereof or if we become aware of any facts that might change the
opinions expressed herein after the date hereof.
Very truly yours,
/s/ Debevoise & Plimpton