Exhibit 5.2
[Letterhead of Morris, Nichols, Arsht & Tunnell]
April 19, 2002
Delphi Finance Trust I
c/o Delphi Financial Group, Inc.
1105 North Market Street
Suite 1230
P.O. Box 8985
Wilmington, DE 19899
Re: Delphi Finance Trust I
Ladies and Gentlemen:
We have acted as special Delaware counsel to Delphi Finance Trust I, a
Delaware statutory business trust ("Trust"), and Delphi Financial Group, Inc., a
Delaware corporation ("Delphi Financial Group"), in connection with certain
matters of Delaware law relating to the formation of the Trust and the proposed
issuance of the Preferred Securities thereof to beneficial owners pursuant to
and as described in the Registration Statement (and the prospectus forming a
part thereof) on Form S-3 to be filed with the Securities and Exchange
Commission by Delphi Financial Group and the Trust on or about the date hereof
(the "Registration Statement"). Capitalized terms used herein and not otherwise
herein defined are used as defined in the form of Amended and Restated
Declaration of Trust attached as an exhibit to the Registration Statement (the
"Form Governing Instrument").
In rendering this opinion, we have examined 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 April 19, 2002 (the "Trust Certificate"); the Declaration of
Trust of the Trust dated as of April 19, 2002 (the "Original Governing
Instrument"); the Form Governing Instrument; and the Registration Statement. 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 that is a party to any of the documents
reviewed by us under the laws of the jurisdiction of its respective formation or
organization; (ii) the due
Delphi Finance Trust I
April 19, 2002
Page 2
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 an amended and restated declaration
of trust in the form of the Form Governing Instrument (completed, as necessary,
to be in final form) (the "Governing Instrument")), in each case prior to the
first issuance of Preferred Securities; (iii) that the Preferred Securities will
be offered and sold pursuant to the prospectus forming a part of the
Registration Statement and a prospectus supplement thereto (collectively, the
"Prospectus") that will be consistent with, and accurately describe, the terms
of the Governing Instrument and all other relevant documents; (iv) that no event
has occurred subsequent to the filing of the Trust Certificate, or will occur
prior to the issuance of all Preferred Securities, that would cause a
dissolution or liquidation of the Trust under the Original Governing Instrument
or the Governing Instrument, as applicable; (v) 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. ss.ss. 3801 et seq. (the "Delaware Act"); (vi) that prior
to the first issuance of Preferred Securities, payment of the required
consideration therefor will have been made in accordance with the terms and
conditions of the Governing Instrument and as described in the Prospectus, and
that the Preferred Securities are otherwise issued and sold in accordance with
the terms, conditions, requirements and procedures set forth in the Governing
Instrument and as described in the Prospectus; and (vii) that the documents
examined by us, or contemplated hereby, express the entire understanding of the
parties thereto with respect to the subject matter thereof and have not been,
and, prior to the issuance of all Preferred Securities will not be, amended,
supplemented or otherwise modified, except as herein referenced. No opinion is
expressed with respect to the requirements of, or compliance with, federal or
state securities or blue sky laws. We express no opinion as to, and assume no
responsibility for, the Registration Statement or any other offering materials
relating to the Preferred Securities. As to any fact material to our opinion,
other than those assumed, we have relied without independent investigation on
the above-referenced documents 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 the Preferred Securities, upon
issuance, will constitute validly issued, and subject to the terms of the
Governing Instrument, fully paid and nonassessable beneficial interests in the
assets 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 OPINIONS" 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-
Delphi Finance Trust I
April 19, 2002
Page 3
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,
/s/ MORRIS, NICHOLS, ARSHT & TUNNELL
[Morris, Nichols, Arsht & Tunnell Letterhead]
April 19, 2002
Board of Directors
Delphi Financial Group, Inc.
1105 N. Market Street
Suite 1230
Wilmington, DE 19899
Gentlemen:
You have requested our opinion with respect to certain matters of Delaware
law in connection with the issuance of an indeterminate number of shares (the
"Common Shares") of Class A Common Stock (the "Common Stock"), par value $.01
per share, of Delphi Financial Group, Inc., a Delaware corporation (the
"Company"), and an indeterminate number of shares (the "Preferred Shares") of
one or more series of Preferred Stock (the "Preferred Stock"), par value $.01
per share, of the Company, each pursuant to an agreement or security to be
approved by the Board of Directors of the Company (the "Board"). Capitalized
terms not otherwise defined herein shall have their respective meanings set
forth in the Registration Statement on
Board of Directors
Delphi Financial Group, Inc.
Page 2
April 19, 2002
Form S-3, filed by the Company with the Securities and Exchange Commission on or
about the date hereof, including the Prospectus constituting a part thereof (the
"Registration Statement").
In connection with your request, you have provided to us and we have
reviewed: (1) the Registration Statement; (2) the Restated Certificate of
Incorporation of the Company, as amended to date (the "Certificate of
Incorporation"); and (3) the bylaws of the Company (the "Bylaws"). For purposes
of this opinion, we have assumed: (1) with respect to the issuance of the
Preferred Shares, the due adoption by the Board of resolutions providing for the
issuance of Preferred Shares in series and setting forth the designations,
rights, preferences and powers of the shares of each such series and any
qualifications, limitations or restrictions thereof, consistent with the
description thereof set forth in the Registration Statement and the Certificate
of Incorporation (the "Board Resolutions"); (2) with respect to the issuance of
Preferred Shares, the filing with the Delaware Secretary of State, prior to the
issuance of the Preferred Shares, of a Certificate of Designation in due and
proper form setting forth the Board Resolutions (the "Certificate of
Designation"); (3) with respect to the issuance of Common Shares or Preferred
Shares pursuant to an underwriting agreement or other agreement (an
"Underwriting Agreement"), the due and valid authorization by the Board of the
Underwriting Agreement providing for the issuance and sale of the Common Shares
or the Preferred Shares on terms consistent with Delaware law, including the
Constitution of the State of Delaware, the Certificate of Incorporation and
Bylaws; (4) with respect to the issuance of Common Shares or Preferred Shares
pursuant to an Underwriting Agreement, the due execution and delivery of the
Underwriting Agreement by the parties thereto in the form approved by the Board;
(5) with respect to the issuance of Common Shares upon the exercise of warrants
of the Company ("Warrants"), the due authorization, execution, delivery and
issuance of the Warrants on terms consistent with the requirements of Delaware
law and compliance with the terms, conditions and
Board of Directors
Delphi Financial Group, Inc.
Page 3
April 19, 2002
requirements of the Warrants in connection with the exercise thereof; (6) with
respect to the issuance of Common Shares upon the exercise of conversion rights
under the terms of any Preferred Shares or any debt securities of the Company
("Debt Securities"), the due authorization and issuance of the Preferred Shares
or the due authorization, execution and delivery of the Debt Securities, in each
case on terms consistent with the requirements of Delaware law and the
compliance with the terms, conditions and requirements of the Preferred Shares
or Debt Securities in connection with the exercise of such conversion rights;
(7) with respect to the issuance of Preferred Shares upon the exercise of
conversion rights under any Debt Securities, the due authorization, execution,
delivery and issuance of such Debt Securities on terms consistent with the
requirements of Delaware law and the compliance with the terms, conditions and
requirements of the Debt Securities in connection with the exercise of such
conversion rights; (8) that at the time of issuance or sale of the Common Shares
or the Preferred Shares, the Company will have available for issuance a number
of authorized but unissued shares of Common Stock or Preferred Stock, as the
case may be, equal to the number of Common Shares or the Preferred Shares, as
the case may be, to be issued, that have not been previously issued, subscribed
for or otherwise committed to be issued; (9) that at the time of issuance and
sale of the Common Shares or Preferred Shares, the Company will be validly
existing and in good standing under Delaware law; and (10) the issuance and
delivery by the Company of a duly executed and countersigned certificate
representing the Common Shares or the Preferred Shares, as the case may be, in
proper form, representing the Common Stock or the Preferred Stock, as the case
may be, which will contain the information required by Section 151(f) of the
Delaware General Corporation Law.
Based upon and subject to the foregoing and limited in all respects to
matters of Delaware law, it is our opinion that:
Board of Directors
Delphi Financial Group, Inc.
Page 4
April 19, 2002
(1) With respect to the issuance of Common Shares pursuant to an
Underwriting Agreement, upon payment therefor as provided for in the
Underwriting Agreement, and delivery thereof by delivery of certificates in due
and proper form, the Common Shares so issued will be duly and validly authorized
and issued and will be fully paid and nonassessable.
(2) With respect to the issuance of Preferred Shares pursuant to an
Underwriting Agreement, upon payment therefor as provided for in the
Underwriting Agreement, and delivery thereof by delivery of certificates in due
and proper form, the Preferred Shares so issued will be duly and validly
authorized and issued and will be fully paid and nonassessable.
(3) With respect to the issuance of Common Shares upon the exercise of
Warrants or the exercise of conversion rights under any Preferred Shares or Debt
Securities, when the issuance of such shares has been duly authorized in
accordance with Delaware law, such shares will be duly and validly authorized
and issued and will be fully paid and nonassessable.
(4) With respect to the issuance of Preferred Shares upon the exercise of
conversion rights under any Debt Securities, when the issuance of such shares
has been duly authorized in accordance with Delaware law, such shares will be
duly and validly authorized and issued and will be fully paid and nonassessable.
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 OPINIONS" 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
Board of Directors
Delphi Financial Group, Inc.
Page 5
April 19, 2002
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,
/s/ Morris, Nichols, Arsht & Tunnell