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EXHIBIT 5.1
[Letterhead of Dewey Ballantine]
April 21, 1997
Executive Risk Inc.
82 Hopmeadow Street
Simsbury, Connecticut 06070
Re: Executive Risk Inc./ Executive Risk Capital Trust
Registration Statement on Form S-4 (File No. 333-24737)
Ladies and Gentlemen:
We have acted as counsel to Executive Risk Inc., a Delaware corporation
(the "Corporation") and sponsor of Executive Risk Capital Trust, a Delaware
statutory business trust (the "Trust"), in connection with a Registration
Statement on Form S-4 (the "Registration Statement") relating to: (i) the
proposed issuance by the Trust of up to $125,000,000 aggregate Liquidation
Amount of the Trust's 8.675% Series B Capital Securities (the "New Capital
Securities") registered under the Securities Act of 1933, as amended (the
"Securities Act"), in exchange for a like Liquidation Amount of the Trust's
outstanding 8.675% Series A Capital Securities (the "Old Capital Securities");
(ii) the proposed issuance by the Corporation to the Trust, in an aggregate
principal amount corresponding to the aggregate Liquidation Amount of the New
Capital Securities, of the Corporation's 8.675% Series B Junior Subordinated
Deferrable Interest Debentures due February 1, 2027 (the "New Junior
Subordinated Debentures") registered under the Securities Act in exchange for a
comparable aggregate principal amount of the Company's outstanding 8.675% Series
A Junior Subordinated Deferrable Interest Debentures due February 1, 2027 (the
"Old Junior Subordinated Debentures"); and (iii) the Corporation's guarantee of
the New Capital Securities (the "New Guarantee") registered under the Securities
Act in exchange for the Corporation's guarantee of the Old Capital Securities
(the "Old Guarantee"). The New Capital Securities will be issued under an
Amended and Restated Declaration of Trust for the Trust, dated February 5, 1997
(the "Amended Declaration"), among the Corporation, as sponsor, The Chase
Manhattan Bank, as property trustee, Chase Manhattan Bank Delaware, as Delaware
trustee, and the Administrative Trustees named therein, while the New Junior
Subordinated Debentures will be issued under an Indenture, dated as of February
5, 1997 (the "Indenture"), between the Corporation and The Chase Manhattan Bank,
as debenture trustee.
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We have examined such documents and records as we deemed appropriate,
including the following:
(i) Copy of the Amended and Restated Certificate of Incorporation of
the Corporation, certified as of a recent date by the Secretary of State of the
State of Delaware;
(ii) Copy of the By-Laws of the Corporation, as amended, certified as
of a recent date by the Secretary of the Corporation to be a true and complete
copy;
(iii) Copies, certified by the Secretary of the Corporation to be true
and complete copies, of the resolutions duly adopted by the Board of Directors
of the Corporation on January 20, 1997 and by the Pricing Committee of the Board
of Directors on January 31, 1997 and on February 18, 1997 which, among other
things, authorized the filing of the Registration Statement and the exchange of
the New Capital Securities, the New Junior Subordinated Debentures and the New
Guarantee in the circumstances referred to above;
(iv) Minute book records of the Corporation and its subsidiaries;
(v) Executed counterparts of the Amended Declaration;
(vi) Specimen of the New Capital Security;
(vii) Executed counterparts of the Indenture;
(viii) Specimen of the New Junior Subordinated Debenture;
(ix) Executed counterparts of the New Guarantee; and
(x) Executed counterparts of the Registration Rights Agreement, dated
as of February 5, 1997 (the "Registration Rights Agreement"), among the Trust,
the Corporation and the Initial Purchasers named therein.
In addition, as to questions of fact material to our opinions, we have
relied upon certificates of officers of the Corporation, the Administrative
Trustees of the Trust and public officials.
In the course of our examination, we have assumed the legal capacity of
all natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. In making our
examination of documents executed by parties other than the Corporation or the
Trust, we have assumed that such parties had the power, corporate or other, to
enter into and perform all obligations
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thereunder and have also assumed the due authorization by all requisite action,
corporate or other, and execution and delivery by such parties of such documents
and the validity and binding effect thereof on such parties.
Based upon the foregoing, we are of the opinion that:
(1) The New Junior Subordinated Debentures have been duly authorized by
all requisite corporate action of the Corporation and, when executed and
authenticated in the manner provided for in the Indenture and delivered against
surrender and cancellation of a like aggregate principal amount of Old Junior
Subordinated Debentures as contemplated in the Registration Rights Agreement,
the New Junior Subordinated Debentures will constitute valid and binding
obligations of the Corporation entitled to the benefits of the Indenture and
enforceable against the Corporation in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally or by general equitable principles (regardless of whether considered
in a proceeding in equity or at law).
(2) The New Guarantee has been duly authorized by all requisite
corporate action of the Corporation and, when executed and delivered to The
Chase Manhattan Bank, as guarantee trustee, as contemplated in the Registration
Rights Agreement, the New Guarantee will constitute a valid and binding
agreement of the Corporation, enforceable against the Corporation in accordance
with its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable principles
(regardless of whether considered in a proceeding in equity or at law).
We are members of the Bar of the State of New York and we express no
opinion as to the laws of any jurisdiction other than the laws of the State of
New York and the federal laws of the United States of America and the Delaware
General Corporation Law.
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" contained in the Prospectus included therein. 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 or the Rules and
Regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Dewey Ballantine
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