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8-K - FORM 8-K - ENDURANCE SPECIALTY HOLDINGS LTD | c18271e8vk.htm |
Exhibit 5.1
Endurance Specialty Holdings Ltd. Wellesley House 90 Pitts Bay Road Hamilton HM 11 |
e-mail: badderley@applebyglobal.com direct dial: Tel 441 298 3243 Fax 441 298 3340 your ref: appleby ref: BA/127105.0051 |
Dear Sirs | 1 June 2011 |
Endurance Specialty Holdings Ltd. (the Company)
We have acted as special legal counsel in Bermuda to the Company, and this opinion as to Bermuda
law is addressed to you in connection with the filing by the Company with the United States
Securities and Exchange Commission (SEC) under the Securities Act of 1933, as amended (the
Securities Act) of a Registration Statement (as defined in the Schedule to this opinion), in
relation to the Company issuing and selling 7.50% Series B Preferred Shares par value $1.00 per
share, Series B, $25.00 liquidation preference per share (the Preferred Shares), as described in
the Prospectus (as defined in the Schedule to this opinion).
For the purposes of this opinion we have examined and relied upon the documents listed, and in some
cases defined, in the Schedule to this opinion (the Documents).
Unless otherwise defined herein or in the Schedule to this opinion, terms defined in the
Registration Statement have the same meanings when used in this opinion.
Assumptions
In stating our opinion we have assumed:
(a) | the authenticity, accuracy and completeness of all Documents examined by us, submitted to us
as originals and the conformity to authentic original documents of all Documents submitted to
us as certified, conformed, notarised, faxed or photostatic copies; |
|
(b) | that each of the Documents which was received by electronic means is complete, intact and in
conformity with the transmission as sent; |
1 June 2011
(c) | the genuineness of all signatures on the Documents; |
(d) | the authority, capacity and power of each of the persons signing the Documents (other than
the Directors or Officers of the Company); |
(e) | that any representation, warranty or statement of fact or law, other than as to Bermuda law,
made in any of the Documents is true, accurate and complete; |
(f) | that the records which were the subject of the Company Search were complete and accurate at
the time of such search and disclosed all information which is material for the purposes of
this opinion and such information has not since the date of the Company Search been materially
altered; |
(g) | that the records which were the subject of the Litigation Search were complete and accurate
at the time of such search and disclosed all information which is material for the purposes of
this opinion and such information has not since the date of the Litigation Search been
materially altered; |
(h) | that there are no provisions of the laws or regulations of any jurisdiction other than
Bermuda which would be contravened by the issuance of the Preferred Shares or which would have
any implication in relation to the opinion expressed herein and that, in so far as any
obligation to be performed or action to be taken as described in the Prospectus is required to
be performed or taken in any jurisdiction outside Bermuda, the performance of such obligation
or the taking of such action will constitute a valid and binding obligation of each of the
parties thereto under the laws of that jurisdiction and will not be illegal by virtue of the
laws of that jurisdiction; |
(i) | that the Resolutions are in full force and effect, have not been rescinded, either in whole
or in part, and accurately records the resolutions passed by the Board of Directors of the
Company in a meeting which was duly convened and at which a duly constituted quorum was
present and voting throughout and that there is no matter affecting the authority of the
Directors not disclosed by the Constitutional Documents, the Company Search, the Litigation
Search, or the Resolutions, which would have any adverse implication in relation to the opinions expressed
herein; |
1 June 2011
(j) | that, when the Directors of the Company passed the Resolutions, each of the Directors
discharged his fiduciary duties to the Company and acted honestly and in good faith with a
view to the best interests of the Company; and |
(k) | that the Company has filed the Prospectus in good faith for the purpose of carrying on its
business and that, at the time it did so, there were reasonable grounds for believing that the
activities contemplated by the Prospectus would benefit the Company. |
Opinion
Based upon and subject to the foregoing and subject to the reservations set out below and to any
matters not disclosed to us, we are of the opinion that:
(1) | The Company is an exempted company validly organised and existing and in good standing under
the laws of Bermuda. |
(2) | When issued pursuant to the Resolutions and delivered against payment therefore in the
circumstances referred to or summarised in the Prospectus, the Preferred Shares will be
validly issued, fully paid and non-assessable shares in the capital of the Company. |
(3) | All necessary corporate action required to have been taken by the Company in connection with
the issue of the Preferred Shares pursuant to Bermuda law has been taken by or on behalf of
the Company. |
Reservations
We have the following reservations:
(a) | We express no opinion as to any law other than Bermuda law and none of the opinions expressed
herein relates to compliance with or matters governed by the laws of any jurisdiction except
Bermuda. This opinion is limited to Bermuda law as applied by the courts of Bermuda at the
date hereof. |
1 June 2011
(b) | In paragraph (1) above, the term good standing means only that the Company has received a
Certificate of Compliance from the Registrar of Companies in Hamilton Bermuda which confirms
that the Company has neither failed to make any filing with any Bermuda governmental authority
nor to pay any Bermuda government fee or tax, which might make it liable to be struck off the
Registrar of Companies and thereby cease to exist under the laws of Bermuda. |
(c) | Any reference in this opinion to shares being non-assessable shall mean, in relation to
fully paid shares of the Company and subject to any contrary provision in any agreement in
writing between the Company and the holder of the shares, that no shareholder shall be bound
by an alteration to the Memorandum of Association or Bye-laws of the Company after the date on
which he became a shareholder, if and so far as the alteration requires him to take, or
subscribe for additional shares, or in any way increases his liability to contribute to the
share capital of, or otherwise to pay money to, the Company. |
(d) | Searches of the Register of Companies at the office of the Registrar of Companies and of the
Supreme Court Causes Book at the Registry of the Supreme Court are not conclusive and it
should be noted that the Register of Companies and the Supreme Court Causes Book do not
reveal: |
(i) | details of matters which have been lodged for filing or registration which as
a matter of best practice of the Registrar of Companies or the Registry of the Supreme
Court would have or should have been disclosed on the public file, the Causes Book or
the Judgment Book, as the case may be, but for whatever reason have not actually been
filed or registered or are not disclosed or which, notwithstanding filing or
registration, at the date and time the search is concluded are for whatever reason not
disclosed or do not appear on the public file, the Causes Book or Judgment Book; |
(ii) | details of matters which should have been lodged for filing or registration
at the Registrar of Companies or the Registry of the Supreme Court but have not been
lodged for filing or registration at the date the search is concluded; |
1 June 2011
(iii) | whether an application to the Supreme Court for a winding-up petition or for
the appointment of a receiver or manager has been prepared but not yet been presented
or has been presented but does not appear in the Causes Book at the date and time the
search is concluded; |
(iv) | whether any arbitration or administrative proceedings are pending or whether
any proceedings are threatened, or whether any arbitrator has been appointed; or |
(v) | whether a receiver or manager has been appointed privately pursuant to the
provisions of a debenture or other security, unless notice of the fact has been
entered in the Register of Charges in accordance with the provisions of the Companies
Act 1981. |
Furthermore, in the absence of a statutorily defined system for the registration of charges
created by companies incorporated outside Bermuda (overseas companies) over their assets
located in Bermuda, it is not possible to determine definitively from searches of the
Register of Charges maintained by the Registrar of Companies in respect of such overseas
companies what charges have been registered over any of their assets located in Bermuda or
whether any one charge has priority over any other charge over such assets.
(e) | In order to issue this opinion we have carried out the Company Search as referred to in the
Schedule to this opinion and have not enquired as to whether there has been any change since
the date of such search. |
(f) | In order to issue this opinion we have carried out the Litigation Search as referred to in
the Schedule to this opinion and have not enquired as to whether there has been any change
since the date of such search. |
(g) | Where an obligation is to be performed in a jurisdiction other than Bermuda, the courts of
Bermuda may refuse to enforce it to the extent that such performance would be illegal under
the laws of, or contrary to public policy of, such other jurisdiction. |
1 June 2011
Disclosure
This opinion is addressed to you in connection with the filing by the Company of the Registration
Statement with the SEC. We consent to the inclusion of this opinion as Exhibit 5.1 to the
Registration Statement. As Bermuda attorneys, however, we are not qualified to opine on matters of
law of any jurisdiction other than Bermuda, accordingly we do not admit to being an expert within
the meaning of the Securities Act.
Further, this opinion speaks as of its date and is strictly limited to the matters stated herein
and we assume no obligation to review or update this opinion if applicable law or the existing
facts or circumstances should change.
This opinion is governed by and is to be construed in accordance with Bermuda law. It is given on
the basis that it will not give rise to any legal proceedings with respect thereto in any
jurisdiction other than Bermuda. This opinion may be relied upon by Mellon Investor Services LLC
in connection with the issuance of the Preferred Shares.
Yours faithfully
/s/ Appleby
Appleby
1 June 2011
SCHEDULE
1. | The entries and filings shown in respect of the Company on the files maintained in the
Register of Companies at office of the Registrar of Companies in Hamilton, Bermuda, as
revealed by a search on 1 June 2011 (the Company Search). |
2. | The entries and filings shown in respect of the Company in the Supreme Court Causes Book
maintained at the Registry of the Supreme Court in Hamilton, Bermuda, as revealed by a search
on 1 June 2011 (the Litigation Search). |
3. | Certified copies of the Certificate of Incorporation, Memorandum of Association, Certificate
of Deposit of Memorandum of Increase of Share Capital and Amended and Restated Bye-Laws
adopted 15 May 2008 of the Company (collectively referred to as the Companys Constitutional
Documents). |
4. | A certified copy of the Tax Assurance for the Company dated 17 May 2011 issued by the
Registrar of Companies for the Minister of Finance. |
5. | Certified copies of the resolutions passed at a Meeting of the Board of Directors of the
Company held on 11 May 2011 (the Resolutions). |
6. | A copy of the permission of the Bermuda Monetary Authority dated 12 September 2005 in
relation to the Company. |
7. | A Certificate of Compliance dated 30 May 2011 issued by the Registrar of Companies in respect
of the Company. |
8. | Certified copy of the Register of the Directors and Officers of the Company. |
9. | A copy of the prospectus issued by the Company dated 15 December 2008 (the Base
Prospectus), and the prospectus supplement dated 24 May 2011 (the Prospectus Supplement and
together with the Base Prospectus, the Prospectus). |