EXHIBIT 5.2
[Letterhead of Appleby Spurling Hunter]
ASPEN INSURANCE HOLDINGS LIMITED
Victoria Hall
11 Victoria Street
Hamilton HM 11
Bermuda
Dear Sirs 4 February 2005
ASPEN INSURANCE HOLDINGS LIMITED (THE "COMPANY") - REGISTRATION STATEMENT ON
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FORM F-3
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We have acted as Bermuda counsel 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 registering
ordinary shares of par value US 0.15144558 cents (the "Ordinary Shares"),
preference shares (the "Preference Shares"), depository shares (representing
ordinary shares or preference shares (the "Depository Shares"), senior or
subordinated debt securities (the "Debt Securities"), warrants to purchase
ordinary shares, preference shares or debt securities (the "Warrants"), purchase
contracts (the "Purchase Contracts"), Purchase Units (the "Purchase Units") and
issued ordinary shares that may be offered and sold by certain shareholders (the
"Selling Shareholder Shares"). The Ordinary Shares, the Preference Shares, the
Depositary Shares, the Debt Securities, the Warrants, the Purchase Contracts,
the Purchase Units and the Selling Shareholders Shares are collectively referred
to as the "Securities".
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.
4 February 2005
ASSUMPTIONS
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In stating our opinion we have assumed:
(a) the authenticity, accuracy and completeness of all Documents 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;
(c) the genuineness of all signatures on the Documents;
(d) the authority, capacity and power of each of the persons signing the
Documents which we have reviewed (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;
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4 February 2005
(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 Securities 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
Registration Statement 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 record 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;
(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;
(k) that the Company will at the relevant time of issuance or transfer of
any of the Securities hold the necessary permissions of the Bermuda
Monetary Authority for such issuance or transfer;
(l) that the Selling Shareholder Shares are existing issued shares as at
the date of this opinion and that, at the relevant time of sale of any
Selling Shareholder Shares by any holder thereof, such holder is the
registered holder of the Selling
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Shareholder Shares to be sold by such holder (or otherwise entitled to
direct the transfer of those Selling Shareholder Shares) free of any
encumbrance and that such Selling Shareholder Shares are fully paid;
(m) that the Company has filed the Registration Statement 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 Registration Statement would benefit the Company;
(n) that the issuance of the Securities as contemplated by the Registration
Statement will be duly authorised by the Board of Directors of the
Company prior to such issuance; and
(o) that the Company will comply, to the extent applicable, with the
requirements of Part III of the Companies Act 1981, as amended
("Prospectuses and Public Offers").
OPINION
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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 subject to Assumption (n))
and delivered against payment therefore in the circumstances referred
to or summarised in the Registration Statement, the Ordinary Shares,
the Preference Shares and Depositary Shares will be validly issued,
fully paid and non-assessable shares in the capital of the Company.
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(3) The issuance or transfer of the Securities will not violate, conflict
with or constitute a default under (i) any requirement of any law or
any regulation of Bermuda, or (ii) the Constitutional Documents.
(4) All necessary corporate action required to have been taken by the
Company in connection with the original issuance by the Company of the
Selling Shareholder Shares (including shares issued upon exercise of
options) pursuant to Bermuda Law has been taken by or on behalf of the
Company, and all necessary approvals of the Bermuda Monetary Authority
were duly obtained for the original issuance by the Company of the
Selling Shareholders Shares.
(5) The Selling Shareholder Shares, when sold by their current holders and
transferred and paid for as contemplated by the Registration Statement,
will be duly authorised, validly issued, fully paid and non-assessable
common shares of the Company.
RESERVATIONS
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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.
(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
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4 February 2005
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
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the Supreme Court but have not been lodged for filing or
registration at the date the search is concluded;
(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.
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(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.
DISCLOSURE
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This opinion is addressed to you in connection with the filing by the Company of
the Registration Statement with the United States Securities and Exchange
Commission. We consent to the inclusion of this opinion as Exhibit 5.2 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 LeBoeuf Lamb Greene & McRae LLP solely for the
purpose of the delivery of an opinion on behalf of the Company in respect of the
Registration Statement on Form F-3.
Yours faithfully
/s/ Appleby Spurling Hunter
APPLEBY SPURLING HUNTER
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SCHEDULE
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1. The entries and filings shown in respect of the Company on the file of
the Company maintained in the Register of Companies at the office of
the Registrar of Companies in Hamilton, Bermuda, as revealed by a
search on 1 February 2005 (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 February 2005 in
respect of the Company (the "Litigation Search").
3. Certified copies of the Certificate of Incorporation, Memorandum of
Association, Certificate of Deposit of Memorandum of Increase of Share
Capital, Certificate of Registration of Alteration of Denomination of
Capital and Bye-Laws effective 9 December 2003 of the Company
(collectively referred to as the "Constitutional Documents").
5. A certified copy of the "Tax Assurance", dated 20 June 2002, issued by
the Registrar of Companies for the Minister of Finance in relation to
the Company.
6. Certified copies of the Minutes of the Meetings of the Board of
Directors of the Company held on 21 June 2002, 8 July 2002, 10 October
2002, 11 December 2002, 20 November 2002, 11 February 2003, 19 May
2003, 21 July 2003, 6 November 2003 and 10 December 2003, and a draft
copy of the resolutions of the Board of Directors of the Company held
on 31 January 2005 (collectively the "Resolutions").
7. Copy Notices of Appointment of Alternate Directors Letters in respect
of 31 January 2005 Board Meeting.
8. A Certificate of Compliance, dated 1 February 2005 issued by the
Ministry of Finance in respect of the Company.
9. Certified copies of Bermuda Monetary Authority consent letters dated
20 June 2002, 26 September 2002 (as amended 28 November 2002), 27
November 2002, 6 December 2002, 11 February 2003, 28 March 2003, 13
June 2003, 18 June 2003, 14 November 2003, 3 December 2003 and 27 July
2004.
10. A copy of the registration statement on Form F-3 of the Company filed
4 February 2005 (the "Registration Statement").
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