Exhibit 5.1
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Davis Polk & Wardwell London LLP 5 Aldermanbury Square | 020 7418 1300 tel 020 7418 1400 fax |
2 October 2020
Smith & Nephew plc
Building 5
Croxley Park
Hatters Lane
Watford
Hertfordshire
WD18 8YE
United Kingdom
(the “Company”)
Dear Sirs
Smith & Nephew plc - Registration Statement on Form F-3
We have acted as advisers as to English law to Smith & Nephew plc (the “Company”), a public limited company organised under the laws of England and Wales, in connection with its automatic shelf Registration Statement on Form-3 (the “Registration Statement”) filed with the United States Securities and Exchange Commission (the “SEC”) on 2 October 2020 for the purposes of registering, under the United States Securities Act of 1933, as amended (the “Securities Act”), the Notes to be issued, from time to time, pursuant to the Indenture referred to below (the “Notes” and the registration, offer and issue of such Notes being referred to herein as the “Transaction”).
For the purposes of this opinion, we have examined the documents listed in Schedule 1 to this opinion.
Capitalised terms used in this opinion shall, unless otherwise defined, have the meaning given to them in Schedule 1 to this opinion.
This opinion is confined to matters of English law as at the date of this opinion, and this opinion and any non-contractual obligations arising out of or in relation to it are governed by and shall be construed in accordance with English law. Accordingly, we express no opinion with regard to any system of law other than English law as currently applied by the English courts. In particular, we express no opinion on European Union law as it applies to any jurisdiction other than England
Davis Polk & Wardwell London LLP is a limited liability partnership formed under the laws of the State of New York, USA, and is authorised and regulated by the Solicitors Regulation Authority with registration number 566321.
Davis Polk includes Davis Polk & Wardwell LLP and its associated entities.
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and Wales. To the extent that the laws of the State of New York or of any other jurisdiction may be relevant, we have made no independent investigation thereof and our opinion is subject to the effect of such laws.
By accepting this opinion you irrevocably agree and accept that the courts of England shall have exclusive jurisdiction to hear and determine any dispute or claim arising out of or in connection with this opinion or its formation, including without limitation, (i) the creation, effect or interpretation of, or the legal relationships established by, this opinion and (ii) any noncontractual obligations arising out of or in connection with this opinion.
We assume no obligation to notify you of any future changes in law, including any changes occurring as a result of the United Kingdom withdrawing from the European Union, which may affect the opinions expressed herein, or otherwise to update this opinion in any respect.
Opinions
On the basis of our examination of the documents listed in Schedule 1 to this opinion and the other matters referred to above, and subject to the assumptions set out in Schedule 2 to this opinion, the qualifications set out in Schedule 3 to this opinion and any matters not disclosed to us, we are of the opinion that:
1. | Corporate existence. The Company is a company that has been duly incorporated in Great Britain and registered in England and Wales as a public company limited by shares. |
2. | Corporate power. The Company has the requisite corporate capacity to enter into the Indenture and to issue the Notes, and, in each case, to perform its obligations thereunder. |
3. | Corporate action. When the Indenture has been finalised, approved and executed, and the issuance of any Notes to be offered pursuant thereto has been approved and such Notes have been authorised and executed in accordance with the Indenture, in each case as provided for in the Board Minutes, the Company will have duly authorised and executed such Notes. |
This opinion is addressed to you for your own benefit for the purposes of the Registration Statement to be filed under the Act. It may not be disclosed or furnished to, or used or relied upon by, any other person or used or relied upon by you for any other purpose without, in any such case, our prior written consent. We hereby give such consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not 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 SEC thereunder.
Yours faithfully
/s/ Davis Polk & Wardwell London LLP |
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Schedule 1
DOCUMENTS EXAMINED
For the purposes of this opinion, we have examined the following documents:
1. | a copy of the form of the New York law governed Indenture scheduled to the Registration Statement (the “Indenture”); |
2. | a copy of the Registration Statement; |
3. | a certificate from Susan Swabey, in her capacity as Secretary of the Company, dated 2 October 2020 (the “Secretary’s Certificate”) having attached to it, inter alia: |
(a) | a copy of the certificate of incorporation in respect of the Company, certified to be a true and correct copy; |
(b) | a copy of each certificate of incorporation on change of name in respect of the Company, certified to be a true and correct copy; |
(c) | a copy of the certificate of incorporation on re-registration as a public limited company in respect of the Company, certified to be a true and correct copy; |
(d) | a copy of the articles of association of the Company, certified to be a true and correct copy, as at: (i) the date of the meeting of the Board of Directors of the Company referred to below and (ii) the date hereof; and |
(e) | a copy of the minutes (the “Board Minutes”) of a meeting of the Board of Directors of the Company held on 24 September 2020 (the “Board Meeting”), certified to be a true and correct copy; |
4. | the results of an on-line search of the entries shown on the Companies House Direct online service on 1 October 2020 with respect to the Company (the "Company Search"); and |
5. | the results of a telephone search with the Companies Court in London of the Central Index of Winding Up Petitions on 1 October 2020 with respect to the Company (the "Central Registry Search"), |
and we have relied upon the statements as to factual matters contained in or made pursuant to each of the above-mentioned documents and search results.
Except as stated above we have not examined any contracts, instruments or other documents or any corporate records of any party and have not made any other enquiries.
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Schedule 2
ASSUMPTIONS
For the purposes of this opinion, we have assumed:
1. | all documents submitted to us as originals are authentic and complete; |
2. | all documents submitted to us as copies, whether in physical or electronic form, conform to authentic, complete originals and, where a document has been examined by us in draft or specimen form, it will be or has been executed in the form of that draft or specimen; |
3. | all signatures (whether in physical or electronic form), stamps and seals on all documents that we reviewed are genuine; |
4. | the Indenture, when duly executed, will be valid and binding on each party to it under the laws of the State of New York by which it is expressed to be governed, and that the words and phrases used in the Indenture have the same meaning and effect as they would have if it were governed by English law; |
5. | the Notes of each issue will be duly authorised, executed, authenticated and issued in accordance with the provisions of the Indenture, including, for the avoidance of doubt, the agreement as to the terms of the Notes, and the name of each holder of a Note will be correctly registered in the register maintained for that purpose; |
6. | the Indenture has been or will be duly authorised, executed and delivered by each of the parties thereto in accordance with all applicable laws (other than, in the case of the authorisation of the Indenture by the Company, the laws of England); |
7. | the Indenture, when duly executed, and the Notes, when duly executed, authenticated and issued, will constitute, legal, valid and binding obligations of each of the parties thereto enforceable under all applicable laws; |
8. | the provisions of article 108 of the articles of association of the Company (which limit the director’s authority to borrow) and any other limitation on the Company duly and properly to issue the Notes have been and will be duly observed; |
9. | in relation to the Company: |
(a) | each of the certificate of incorporation in the form referred to in paragraph 4(a) of Schedule 1 to this opinion, the certificates of incorporation on change of name in the form referred to in paragraph 4(b) of Schedule 1 to this opinion and the certificate of incorporation on re-registration as a public limited company in the form referred to in paragraph 4(c) of Schedule 1 are in force on the date hereof; |
(b) | the articles of association of the Company, in the form referred to in paragraph 4(d) of Schedule 1 to this opinion, were in force at the date and time of authorisation of the Indenture, are in force on the date hereof and will be in force at the date and time of execution of the Indenture; |
(c) | the Board Minutes in the form referred to in paragraph 4(e) of Schedule 1 to this opinion are complete and correct, and that no amendment has been made thereto; |
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(d) | the Board Meeting was properly constituted and convened; that all relevant policies and procedures of the Company were complied with; that a quorum of properly appointed directors of the Company (holding the necessary offices and meeting the other requirements for the purposes of forming a quorum) was present throughout and that the resolutions referred to therein were properly passed at such meetings; that all relevant provisions of the Companies Act 2006 and the articles of association of the Company were duly observed and that such resolutions have not been amended, revoked or rescinded and are in full force and effect; and |
(e) | the directors of the Company, or any duly authorised and constituted committee thereof, in approving the issue of any Notes and entry into of any related indenture, will exercise their powers in accordance with their duties under all applicable laws and the articles of association of the Company in force at the relevant time (which shall in all material respects be in the same form as referred to in paragraph 4(d) of Schedule 1) and that all such further meetings of the board of directors of the Company or any duly authorised and constituted committee thereof which may be required in order to validly approve the terms and the issue of any Notes or the entry into of any related indenture will be duly convened and held and the requisite resolutions to give effect thereto will be duly passed; |
10. | each of the statements contained in the Secretary’s Certificate is true and correct as at the date thereof and as at the date hereof; |
11. | the directors of the Company will act in good faith and in accordance with their duties under all applicable laws and the articles of association of the Company in authorising the execution of each of the Indenture and the Notes; |
12. | the execution and delivery of the Indenture and the Notes by the Company and the exercise of its rights and performance of its obligations under the Indenture and the Notes will sufficiently benefit, and are in the interests of, the Company; |
13. | the Indenture will be executed and delivered by each party thereto and not subject to any escrow or other similar arrangement; |
14. | the Indenture, when duly executed, and the Notes, when duly executed, authenticated and issued, will be performed in accordance with its or their terms and none of them will be amended or modified in any way, and there are and will be no other arrangements nor any course of dealings which modify, supersede or otherwise affect any of the terms thereof, and there are no unknown facts or circumstances which are not apparent from the face of any document which may affect the conclusions in this opinion; |
15. | the information revealed by the Company Search (i) is accurate in all respects and has not since the time of such search been altered, and (ii) is complete and included all relevant information which should properly have been submitted to the Registrar of Companies; |
16. | the information revealed by the Central Registry Search with respect to the Company was accurate in all respects and has not since the time of such enquiry been altered; |
17. | the Company is not restricted by contract or any other arrangement binding on it from entering into the Indenture or issuing any Notes nor has the Company entered into any documents other than those referred to in this opinion or any other arrangements which could affect the validity of this opinion; |
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18. | the Notes of a particular issuance will be offered and sold in accordance with the provisions of the Indenture and as described in the Registration Statement and there will be no provision in any supplement relating to the Notes or any other document which would affect the content of this opinion; |
19. | the Indenture will reflect the commercial intentions of the parties thereto and will be entered into in good faith on arm’s length terms, that each party will have made its own independent decision to enter into the Indenture to which it is a party and that, in respect of any party to the Indenture and its respective directors, employees, agents and advisers, there is and will be no bad faith, fraud, coercion, duress or undue influence; |
20. | all statements made as to matters of fact and all representations and warranties given by the respective parties in the Indenture will at all times be true, accurate and complete; |
21. | the Company and each other person who is a party to the Indenture or otherwise involved in the Transaction has complied with and will comply with all applicable provisions of Regulation (EU) No 596/2014 on market abuse (“MAR”), Regulation (EU) 2017/1129 (the “Prospectus Regulation”), the Financial Services and Markets Act 2000 (the “FSMA”) and the Financial Services Act 2012 (the “FSA”) and any regulations made under any of MAR, the Prospectus Regulation, the FSMA and the FSA with respect to anything done or to be done by it in connection with the Indenture or the Transaction in, from, or otherwise involving the United Kingdom including, without limitation, Article 14 (prohibition of insider dealing etc.) and Article 15 (prohibition of market manipulation) of MAR, section 19 (the general prohibition) and section 21 (restrictions on financial promotion) of the FSMA and section 89 (misleading statements), section 90 (misleading impressions) and section 91 (misleading statements etc in relation to benchmarks) of the FSA. |
22. | no Notes will be offered in the European Economic Area or in the United Kingdom to any “retail investor” within the meaning given to that term in Regulation (EU) No 1286/2014 on key information documents for packaged retail and insurance-based investment products (PRIIPS); |
23. | each person who is involved in the Transaction (whether as a party to the Indenture or otherwise) has complied and will continue to comply with all applicable anti-corruption, anti-money laundering, anti-terrorism, sanctions and human rights laws and regulations and that the performance and enforcement of the Indenture is consistent therewith. |
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Schedule 3
QUALIFICATIONS
Our opinion is subject to the following qualifications:
1. | The Company Search is not capable of revealing conclusively whether or not, inter alia, (i) a winding-up order has been made or a resolution passed for the winding up of a company; or (ii) an administration order has been made; or (iii) a receiver, administrative receiver, administrator or liquidator has been appointed; or (iv) a court order has been made under the Cross-Border Insolvency Regulations 2006, since notice of these matters may not be filed with the Registrar of Companies immediately and, when filed, may not be entered on the electronic records of the relevant company immediately. In addition, the Company Search is not capable of revealing, prior to the making of the relevant order or the appointment of an administrator otherwise taking effect, whether or not a winding-up petition or an application for an administration order has been presented or notice of intention to appoint an administrator under paragraphs 14 or 22 of Schedule B1 to the Insolvency Act 1986 has been filed with the court. |
2. | The Central Registry Search relates only to the presentation of (i) a petition for the making of a winding-up order or the making of a winding-up order by the Court; (ii) an application to the High Court of Justice in London for the making of an administration order and the making by such court of an administration order; and (iii) a notice of intention to appoint an administrator or a notice of appointment of an administrator filed at the High Court of Justice in London. It is not capable of revealing conclusively whether or not such a winding-up petition, application for an administration order, notice of intention or notice of appointment has been presented or winding-up or administration order granted. |
3. | This opinion is subject to all applicable laws relating to bankruptcy, insolvency, liquidation, administration, voluntary arrangement, scheme of arrangement, moratorium, reorganisation, rescheduling, fraudulent transfer, preference, transactions at undervalue or other laws of general application relating to or affecting the rights of creditors. |
4. | We express no opinion on whether the Indenture may result in the breach of any restrictions imposed on any of the parties by its constitutional documents or by any instrument to which any such person is a party or by which it may be bound. |
5. | We have not been responsible for investigating or verifying the accuracy of the facts, including the statements of foreign law or the reasonableness of any statement or opinion or intention contained in or relevant to the Registration Statement or any other document referred to therein, or that no material facts have been omitted therefrom. |
6. | We express no opinion as to whether the Registration Statement (or any part of it) contains all the information required to be contained in it or whether the persons responsible for the Registration Statement have discharged their obligations thereunder. |