Exhibit 5.2
[Letterhead of Allen & Overy, Amsterdam]
AEGON N.V.
Mariahoeveplein 50
2591 TV The Hague
The Netherlands
Our Ref: NRV/RMB/AMBA:1367.1
Amsterdam, 11 October 2001
Dear Sirs,
Re AEGON Group registration on Form F-3 under the United States Securities Act
of 1933, as amended
You have requested us, the undersigned, as your legal counsel in respect of
certain matters of Dutch law, to render an opinion in connection with the
proposed issuance, (i) by AEGON N.V. ("AEGON") of its common shares ("Common
Shares") and (ii) by AEGON, AEGON Funding Corp., a Delaware corporation ("AFC"),
and by each of AEGON Funding Corp. II, a Delaware corporation ("AFC II"), (each,
an "Issuer") of its debt securities (the "Debt Securities"), which, if issued by
AFC or AFC II, will be guaranteed by AEGON (with such guarantees hereinafter
referred to as the "Guarantees"). The Common Shares, the Debt Securities and the
Guarantees are being registered under the Securities Act of 1933, as amended
(the "Securities Act"), pursuant to a registration statement on Form F-3 (the
"Registration Statement"). There will be registered under the Registration
Statement such indeterminate number of Common Shares and such indeterminate
number of Debt Securities as shall have an aggregate offering price not to
exceed US $4,000,000,000. The Common Shares and the Debt Securities are
hereafter collectively referred to as the "Securities".
In rendering this opinion, we have examined and relied upon the following
documents:
(1) an excerpt dated 10 October 2001 of the registration of AEGON in the trade
register of the Chamber of Commerce and Industry in The Hague (the "Trade
Register") confirmed by telephone to be correct as of the date hereof (the
"Excerpt");
(2) the deed of incorporation of AEGON (the "Deed of Incorporation") including
the articles of incorporation (statuten) of AEGON as, according to the
Excerpt, deposited with the Trade Register as being in force on the date
hereof (the "Articles of Association");
(3) a copy of an excerpt from the minutes of the meeting of the Executive Board
(raad van bestuur) of AEGON held on 30 August 2001 relating to the
resolution of the Executive Board of AEGON to file a shelf registration with
the United States Securities and Exchange Commission at a maximum total
amount of US $4,000,000,000 (the "Resolution");
(4) a copy of the Registration Statement;
(5) a copy of the indenture (the "Indenture") dated 11 October 2001, between
AEGON, AFC, AFC II and Citibank, N.A. as Trustee, (the "Trustee") filed as
exhibit 4.3 to the Registration Statement;
(6) the form of Guarantee to be endorsed on the Debt Securities as set out in
the Indenture;
and such other documents and such treaties, laws, rules, regulations and the
like as we have deemed necessary as a basis for the opinions hereafter
expressed.
For the purpose of rendering the opinions expressed herein, we have assumed:
(i) the genuineness of all signatures, the authenticity of all documents
submitted to us as originals and the conformity to the originals of all
documents submitted to us as copies;
(ii) that the deed of incorporation of AEGON dated 23rd May, 1969, of which we
received a copy from the Chamber of Commerce of The Hague, the
Netherlands is a valid notarial deed (authentieke akte), that the
contents thereof are correct and complete, and that there were no defects
in the incorporation (not appearing on the
face of incorporation of the deed of incorporation) on the basis of which
a court might dissolve AEGON;
(iii) that the Articles of Association are the articles of association of AEGON
as in force on the date hereof. Although not constituting conclusive
evidence thereof, our assumption is supported by the contents of the
Excerpt;
(iv) that the Resolution correctly reflects the resolution made by the
Executive Board of AEGON in respect of the filing of the shelf
registration with the United States Securities and Exchange Commission,
that such resolution has been made with due observance of the Articles of
Association and has not been and will not be amended, revoked or declared
null and void by a competent court;
(v) that the Registration Statement and the Indenture have been or will be
signed on behalf of AEGON by any member of the Executive Board or by a
person or persons duly authorised to represent AEGON for such purpose
under a valid power of attorney;
(vi) that (a) each party to the Indenture other than AEGON has all requisite
power (corporate and otherwise) to execute and deliver, and to perform
its obligations under, the Indenture, and that (b) the Indenture has been
duly authorised, executed and delivered by or on behalf of the parties
thereto other than AEGON;
(vii) that the Indenture, the Debt Securities and the Guarantees constitute the
legal, valid and binding obligations of the parties thereto, enforceable
against those parties in accordance with their terms, under the law of
the State of New York law by which they are expressed to be governed and
under the laws of any other relevant jurisdiction (other than the
Netherlands);
(viii) that the Indenture has not been amended, supplemented, terminated,
rescinded or declared null and void by a court;
(ix) that the Debt Securities, and if the Debt Securities are convertible or
exchangeable into Common Shares, the Common Shares issuable upon
conversion, and the Common Shares at the time of issuance thereof will
have been duly authorised and validly issued in accordance with the
Articles of Association in effect at the time of authorisation;
(x) that the nominal amount and any share premium agreed upon at any time of
the Common Shares issuable upon conversion of the Debt Securities
convertible or
exchangeable into Common Shares and the Common Shares at the time of
issuance thereof, have or will have been duly paid-up;
(xi) that the Common Shares will be admitted to listing at Euronext Amsterdam
N.V.;
(xii) that the Debt Securities issued by AEGON will be offered in accordance
with the provisions of the Securities Transaction Supervision Act 1995
(Wet toezicht effectenverkeer 1995).
Based upon the foregoing and subject to any factual matters or documents not
disclosed to us in the course of our investigation, and subject to the
qualifications and limitations stated hereafter, we are of the opinion that:
A. Corporate Status
AEGON is validly existing as a naamloze vennootschap met beperkte
aansprakelijkheid (a public company with limited liability) under the laws
of the Netherlands.
B. Corporate Power
AEGON has the corporate power to execute and deliver the Indenture, to
offer, execute and issue the Securities and to perform its obligations under
the Indenture and the Securities.
C. Due Authorisation and Execution
(1) The filing of the shelf registration with the United States Securities and
Exchange Commission has been duly authorised by all requisite corporate
action on the part of, and has been duly executed by AEGON. The Indenture
has been duly executed by Aegon.
(2) When the Securities and Guarantees have been signed on behalf of AEGON by
any member of the Executive Board or by a person duly authorised to
represent AEGON for such purpose under a valid power of attorney issued and
(in the case of the Debt Securities) authenticated, issued and delivered in
accordance with their terms, will have been duly executed by AEGON. When
issued, the Common Shares will be fully paid and non-assessable.
D. Choice of Law
The choice of the law of the State of New York as the law governing the
Indenture and the Debt Securities is valid and binding under the laws of the
Netherlands, except
(i) to the extent that any term of the Indenture or the Debt Securities or
any provision of the laws of the State of New York law applicable thereto is
manifestly incompatible with the public policy (ordre public) of the
Netherlands, and except (ii) that a Dutch court may give effect to mandatory
rules of the laws of another jurisdiction with which the situation has a
close connection, if and insofar as, under the laws of that other
jurisdiction, those rules must be applied, whatever the chosen law.
E. Enforceability of Foreign Judgements
In the absence of an applicable treaty between the United States and the
Netherlands, a judgement rendered by a United States court will not be
enforced by the courts of the Netherlands. In order to obtain a judgement
which is enforceable in the Netherlands the claim must be relitigated before
a competent Dutch court. A judgement rendered by a United States court will,
under current practice, be recognised by a Dutch court if (i) that judgement
results from proceedings compatible with Dutch concepts of due process and
(ii) that judgement does not contravene public policy (ordre public) of the
Netherlands and (iii) the foreign court has found itself competent on
grounds which are internationally accepted. If the judgement is recognised
by a Dutch court, that court will generally grant the same judgement without
relitigation on the merits.
This opinion is subject to the following qualifications:
(a) The opinions expressed herein may be affected or limited by the provisions
of any applicable bankruptcy (faillissement), insolvency, fraudulent
conveyance (actio Pauliana), reorganisation, moratorium (surseance van
betaling) and other or similar laws of general application now or hereafter
in effect, relating to or affecting the enforcement or protection of
creditors' rights.
(b) The enforcement in the Netherlands of the Indenture and the Debt Securities
and foreign judgements will be subject to the rules of civil procedure as
applied by the Dutch courts. Specific performance may not always be
available under Dutch law.
(c) Under the laws of the Netherlands each power of attorney (volmacht) or
mandate (lastgeving), whether or not irrevocable, granted by AEGON will
terminate by force of law, and without notice, upon bankruptcy of AEGON and
will cease to have effect upon AEGON having been granted a suspension of
payments (surseance van betaling). To the extent that the appointment by
AEGON of a process agent would be
deemed to constitute a power of attorney or a mandate, this qualification
would also apply.
(d) It is uncertain under Dutch conflicts of law rules whether the transfer of
title to or ownership of the Securities would be governed by the chosen law,
the law of the country in which a Security is situated or the law governing
the contract between the transferor and the transferee. To the extent that
Dutch law would apply to the transfer of title to or ownership of the
Securities, title shall pass by delivery pursuant to a valid agreement by a
transferor who has power to pass title to such Security.
(e) If a facsimile signature will be used for the Securities, each signatory
should approve such use of his or her signature and evidence of such
approval may be required for the enforcement of the Securities in the
Netherlands. If any of the Securities were executed by attaching thereto the
facsimile signature of any person who no longer holds office at the date of
actual issuance of such Securities, it may be necessary for the enforcement
of such Securities in the Netherlands that the holder thereof presents both
the Securities and evidence of approval by the signatory.
We express no opinion on any law other than the law of the Netherlands
(unpublished case law not included) as it currently stands. We express no
opinion on any laws of the European Union (insofar as not implemented in the
Netherlands in statutes or other regulations of general application) or on any
anti-trust laws. We express no opinion in respect of any matter of taxation.
In this opinion Dutch legal concepts are expressed and described in English
terms and not in their original Dutch terms. These concepts may not be identical
to the concepts described by the same English term as they exist under the laws
of other jurisdictions. This opinion may only be relied upon under the express
condition that any issues of interpretation or liability arising hereunder will
be governed by and construed in accordance with Dutch law and be brought before
a Dutch court.
This opinion is strictly limited to the matters stated herein and should not be
read as extending by implication to any other matters not specifically referred
to herein. Nothing in this opinion should be taken as expressing an opinion in
respect of any representations or warranties or other information contained in
the Indenture or any other document examined in connection with this opinion
except as expressly confirmed herein.
We know that we are referred to under the heading "Validity of Securities" in
the Prospectus forming a part of the Registration Statement, and we hereby
consent to such use of our name in the Registration Statement and any amendments
(includng post-effective amendments) thereto, to the incorporation by reference
of this opinion and consent in any subsequent registration statement filed
pursuant to Rule 462(b) under the Securities Act, and to the filing of this
opinion with the Registration Statement as Exhibit 5.2 thereto. In giving this
consent, we do not thereby admit that we are an "expert" within the meaning of
the Securities Act.
Yours faithfully,
Allen & Overy