Exhibit 5.5
| | Amcor plc 83 Tower Road North Warmley Bristol BS30 8XP United Kingdom Amcor Finance (USA), Inc. 2801 SW 149th Avenue, Suite 350 Miramar, Florida 33027 United States Amcor UK Finance plc 83 Tower Road North Warmley Bristol BS30 8XP United Kingdom Amcor Pty Ltd Level 11, 60 City Road Southbank Victoria 3006 Australia Amcor Flexibles North America, Inc. 2301 Industrial Drive Neenah, Wisconsin 54956 United States | 17 May 2022 |
| | | |
| | Dear Sir / Madam | |
| | Amcor Flexibles North America, Inc. issue of US$500,000,000 4.000% Senior Notes due 2025 guaranteed by Amcor UK Finance plc, Amcor Finance (USA), Inc., Amcor Pty Limited and Amcor plc (the Issue) |
We have acted as Australian solicitors to Amcor plc in connection with the Relevant Document, upon whose instructions we have provided this Opinion. We have not examined any documents other than those in Schedule 1 and have not taken, and are not obliged to take, any steps to verify the assumptions contained in this Opinion. Schedule 2 contains the definitions used in this Opinion.
Based only upon the Documents referred to in Schedule 1 and subject to the assumptions and qualifications set out in this Opinion, we are of the opinion that:
| (a) | (existence) the Relevant Party is registered and validly existing under the laws of the Relevant Jurisdictions and is capable of suing and being sued in its corporate name; |
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| (b) | (power) the Relevant Party has the corporate power to enter into and perform its obligations under the Indenture; and |
| (c) | (authorisations) the Relevant Party has taken all necessary corporate action to authorise or ratify the execution of, and the performance of its obligations under, the Indenture. |
In this Opinion we have assumed the following matters (none of which limits any other assumption or any qualification):
| (1) | all signatures, seals, dates, duty stamps and markings are authentic; |
| (2) | all Documents are complete and, if copies, conform to originals; and |
| (3) | all statements made in the extracts and certificates referred to in Schedule 1 are correct and not misleading or deceptive; |
| (1) | the Relevant Document constitutes a legal, valid and binding obligation of all Parties and is enforceable against all Parties in accordance with its terms under all applicable laws other than, in the case of the Relevant Party, the Relevant Laws; |
| (2) | each Document expressed to have any legal effect has taken, and is in, effect and is enforceable by and against all Parties in accordance with its terms; |
| (3) | any resolution, instruction, approval or consent evidenced by a Document was duly and properly passed or given, has not been varied or revoked, is properly recorded or described in the Document and is not subject to any right to set it aside or question its validity (whether due to any procedural irregularity, lack of power, breach of duty or otherwise); and |
| (4) | nothing has occurred to vary, terminate or otherwise affect any Document or its legal effect or any resolution, instruction, approval or consent evidenced by it; |
| (c) | (Relevant Party) that: |
| (1) | each assumption specified in section 129 of the Corporations Act is correct in relation to the Relevant Party and all things done in connection with the Relevant Party’s entry into and performance of the Documents and the transactions contemplated by them; |
| (2) | each person appearing from a Company Extract to be a director or company secretary of the Relevant Party was validly appointed on the date indicated in the Company Extract and is validly continuing in office and the information in the Company Extract is otherwise correct and up-to-date; and |
| (3) | no liquidator, administrator, receiver, receiver and manager or like officer has been (or will on the date of this Opinion be) appointed to the Relevant Party or any of its assets and the Relevant Party has not been (or will not on the date of this Opinion be) wound up or obtained protection from its creditors under any applicable laws (and we note that the Company Extract does not reveal, to the extent it would reveal, any such appointment or proceeding); |
| (d) | (other Parties) that each Party other than the Relevant Party: |
| (1) | is validly existing with legal personality, the capacity to sue and be sued in its own name and the capacity to enter into, exercise its rights and perform its obligations under the Relevant Document to which it is expressed to be a party; |
| (2) | has taken all necessary action to authorise the entry into and performance of the Relevant Document to which it is expressed to be a party; and |
| (3) | has validly executed the Relevant Document to which it is expressed to be a party; |
| (e) | (capacity of Parties) that no Party enters into a Document as a partner in a partnership, as agent for any principal or as trustee of any trust; |
| (f) | (choice of law and submission to jurisdiction) that each choice of law contained in the Documents is not made for the purpose of evading the application of any mandatory applicable law and is otherwise made in good faith and is not unconnected with the commercial realities of the transactions contemplated by the Documents; |
| (1) | no Party has contravened or will contravene any applicable law in entering into, issuing or performing or exercising its rights under any Relevant Document or Note or the Registration Statement (including the Prospectus) or the Prospectus Supplement or any transaction connected with a Relevant Document or Note or the Registration Statement (including the Prospectus) or the Prospectus Supplement (other than a contravention by the Relevant Party of a Relevant Law that is evident on the face of a Relevant Document); |
| (2) | without limiting paragraph 2(g)(1), no Relevant Party has contravened or will contravene Chapter 2E or Part 5C.7 or Part 2J.3 of the Corporations Act in entering into or performing any Relevant Document or any transaction connected with a Relevant Document; and |
| (3) | without limiting paragraph 2(g)(2), no Party has engaged or will engage in any misleading or deceptive conduct or other conduct prohibited by Part 7.10 of the Corporations Act in relation to the Relevant Document, the Notes, the Registration Statement (including the Prospectus), the Prospectus Supplement or the transactions contemplated by them; |
| (h) | (interpretation) that any Document governed by laws other than the Relevant Laws has the effect indicated by a plain reading of its words as those words would be understood by solicitors practising in the Relevant Jurisdictions; |
| (i) | (Relevant Laws) that all legislation is constitutionally valid and all subordinate legislation has been validly made in accordance with the enabling legislation; and |
| (j) | (other facts and laws) that there are no facts or circumstances not evident on the face of the Documents or any laws other than the Relevant Laws that would render any part of this Opinion incorrect. |
This Opinion is subject to the following qualifications (none of which limits any other qualification or any assumption):
| (a) | (enforceability) we express no opinion in relation to the enforceability of the Relevant Document; |
| (b) | (proprietary interests) we express no opinion as to whether a Document is effective to confer any right to or interest in any property, whether any steps are necessary under the Relevant Laws to protect or perfect any such right or interest, or whether any such right or provision relating to such a right would be enforceable as against any third party; |
| (c) | (other documents) we express no opinion in relation to any document other than a Relevant Document or on any provision of a Relevant Document or Note which requires compliance with a document other than a Relevant Document; |
| (d) | (exercise of jurisdiction) a court of a Relevant Jurisdiction: |
| (1) | may refuse to exercise jurisdiction in certain circumstances, including where the court determines that there is a more suitable forum or that any order made by the court would not be effective; |
| (2) | may stay actions or proceedings on the grounds of oppression or vexation or if the subject of the proceedings is concurrently before another court; and |
| (3) | may not necessarily refuse to exercise jurisdiction merely because a provision of a Document reserves jurisdiction to another forum or requires a dispute to be resolved by some other means; |
| (e) | (reliance on searches) we have relied upon on-line computer searches of: |
| (1) | records at ASIC made on 17 May 2022 in respect of the Relevant Party; and |
| (2) | the insolvency notices publication website publishednotices.asic.gov.au maintained by the Australian Securities and Investments Commission made on 17 May 2022 in respect of the Relevant Party, |
however, those records are not necessarily complete or up-to-date. We have not made any other searches of any other records (public or otherwise); and
| (f) | (Relevant Laws) we have considered only those Relevant Laws that are applicable to companies generally and assumed no other laws would render any part of this Opinion incorrect. |
| (a) | This Opinion is given for the sole benefit of each addressee personally and only in relation to the Relevant Document and the Notes and, except with our prior written consent, may not be: |
| (1) | transmitted or disclosed to any other person; |
| (2) | used or relied upon by any other person or used or relied upon by you for any other purpose; or |
| (3) | filed with any government agency or other person or quoted or referred to in any public document. |
| (b) | We hereby consent to the filing of this Opinion as an exhibit to the Current Report on Form 8-K to be filed by Amcor plc on the date hereof and the incorporation by reference thereof into the Registration Statement and further consent to the reference to our name under the caption “Legal Matters” in the Prospectus Supplement, which is a part of the Registration Statement. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the U.S. Securities Act of 1933, as amended. |
| (c) | This Opinion is strictly limited to the matters stated in it and does not apply by implication to other matters. Without limitation, this Opinion does not deal with whether the Documents achieve the commercial intention of the parties, whether any statements of fact in the Documents are complete, accurate or relevant, whether there are reasonable grounds for any opinion or statement as to any future matter in the Documents or with the effect, completeness or extent of application of the assumptions and qualifications contained in this Opinion. In providing this Opinion, we have no obligation to advise any person of these matters. |
| (d) | This Opinion is given on the basis of the actual knowledge of the partner who signs it (having made enquiry of those solicitors reporting to that partner who have been directly engaged on the matters dealt with in this opinion). We are not liable if any other partner or solicitor of this firm has any knowledge which would render our assumptions or qualifications incorrect; we have not made any investigation as to whether any such partner or solicitor has any such knowledge. |
| (e) | This Opinion is given in respect of and is limited to the Relevant Laws as applied by the courts of the Relevant Jurisdictions which are in force at 9.00am on the date of this letter. We are under, and assume, no obligation to inform any person of, or of the effect of, any future changes to those or any other laws or any documents, facts or circumstances coming to our attention after the date of this Opinion or to otherwise update this Opinion. |
Yours sincerely
/s/ Herbert Smith Freehills
| Patrick Lowden Partner Herbert Smith Freehills +61 2 9225 5647 +61 405 150 647 patrick.lowden@hsf.com |
| Herbert Smith Freehills LLP and its subsidiaries and Herbert Smith Freehills, an Australian Partnership, are separate member firms of the international legal practice known as Herbert Smith Freehills. |
Schedule 1 – Documents
Relevant Document
| 1 | an electronic scanned copy (sent to us by email) of the Indenture (Indenture) dated as of 19 June 2020 between Bemis Company, Inc as Issuer, Amcor plc as the Parent Guarantor, the Relevant Party and others as the Initial Subsidiary Guarantors (such parties being the Amcor Entities) and Deutsche Bank Trust Company Americas (the Indenture Trustee); |
Other Documents
| 2 | an electronic scanned copy (sent to us by email) of the underwriting agreement between each of the Amcor Entities and BNP Paribas Securities Corp., BofA Securities, Inc., Citigroup Global Markets Inc. and J.P. Morgan Securities LLC as Representatives of the several underwriters named in Schedule 1 thereto, dated 10 May 2022 (Underwriting Agreement); |
| 3 | an officer’s certificate of an Authorised Officer of the Issuer dated 17 May 2022; |
| 4 | an electronic copy (sent to us by email) of the Registration Statement (including the Prospectus) filed by each of the Amcor Entities on 10 June 2020 (Registration Statement); |
| 5 | an electronic copy (sent to us by email) of the Prospectus Supplement filed by each of the Amcor Entities on 11 May 2022 (Prospectus Supplement); |
| 6 | an electronic copy of the Current Report on Form 8-K to be filed by the Issuer with the U.S. Securities and Exchange Commission under the Securities Act of 1933, as amended, in connection with the Notes (Current Report); |
| 7 | a secretary’s certificate of the company secretary of the Relevant Party dated 17 May 2022, certifying copies of: |
| ● | the constitution of the Relevant Party (the Constitution); |
| ● | the circular resolutions of the board of the Relevant Party dated 7 February 2022; |
| ● | the certificate of an approving officer of the Relevant Party relating to the form and terms of the Notes and the Relevant Party’s guarantee; and |
| ● | the power of attorney granted by the Relevant Party and dated 7 February 2022; |
| 8 | a secretary’s certificate of the company secretary of the Relevant Party dated 19 June 2020, certifying copies of: |
| ● | the circular resolutions of the board of the Relevant Party dated 4 June 2020; |
| ● | the certificate of an approving officer of the Relevant Party relating to the form and terms of US$500,000,000 2.630% Guaranteed Senior Notes due 2030 and the Relevant Party’s guarantee; and |
| ● | the power of attorney granted by the Relevant Party and dated 4 June 2020; and |
| 9 | the documents arising from the searches at the Australian Securities and Investments Commission referred to in paragraph 3(e). |
Schedule 2 – Definitions
| | Term | Meaning | |
| | Amcor Entities | 1 the Relevant Party; 2 Amcor plc 3 Amcor UK Finance plc; 4 Amcor Finance (USA), Inc.; and 5 Amcor Flexibles North America, Inc.. | |
| | ASIC | the Australian Securities and Investments Commission. | |
| | Australia | the Commonwealth of Australia. | |
| | Company Extract | the documents referred to in Schedule 1(9). | |
| | Corporations Act | the Corporations Act 2001 (Cth) of Australia. | |
| | Document | a document referred to in Schedule 1. | |
| | Guarantee | The guarantee provided by each Guarantor under the Indenture in support of the Notes. | |
| | Guarantors | 1 the Relevant Party; 2 Amcor UK Finance plc; 3 Amcor Finance (USA), Inc.; and 4 Amcor plc. | |
| | Indenture | the meaning given in Schedule 1(1). | |
| | Indenture Trustee | the meaning given in Schedule 1(1). | |
| | Issuer | Amcor Flexibles North America, Inc. | |
| | Term | Meaning | |
| | Note | a note forming part of the Issue and issued under the and in accordance with the Relevant Document and the Underwriting Agreement. | |
| | Opinion | this letter. | |
| | Party | a party, or entity described as a party, to a Document or who is expressed to have the benefit of a Document, including any principal as agent for whom another party expressly enters into the Document. | |
| | Prospectus Supplement | the document referred to in Schedule 1(5). | |
| | Registration Statement | the document referred to in Schedule 1(4). | |
| | Relevant Document | the Indenture, including the Guarantee. | |
| | Relevant Jurisdiction | as the context requires, New South Wales and Australia. | |
| | Relevant Laws | the laws of the Relevant Jurisdictions. | |
| | Relevant Party | Amcor Pty Limited (ACN 000 017 372). | |
| | Underwriting Agreement | the document referred to in Schedule 1(2). | |
