Exhibit 5.5
[Mayer, Brown, Rowe & Maw LLP Letterhead]
11 Pilgrim Street
London EC4V 6RW
The addressees set out in the Appendix Telephone +44 (0)20 7248 4282
www.mayerbrownrowe.com
london@eu.mayerbrownrowe.com
DX 93 LDE
Our ref: 445/21258.9
Direct Tel +44 (0)20 7782 8650
Direct Fax +44 (0)20 7782 8774
10 July 2003
Ladies and Gentlemen:
1. BACKGROUND
We have acted as special English counsel to Burns Philp (U.K.) Plc
(company number 2134749), an English public limited company (the
"COMPANY"), in connection with:
(a) the issuance by Burns Philp Finance Pty Limited, a corporation
incorporated under the laws of the Australian Capital Territory (the
"ISSUER"), of US$400,000,000 in aggregate principal amount of 9-3/4%
Senior Subordinated Notes due 2012 (the "NOTES") pursuant to an
indenture dated 21 June, 2002 among the Issuer, the Company and the
other guarantors named therein (the "GUARANTORS") and The Bank of
New York, as trustee (the "INDENTURE");
(b) the guarantee of the Notes by the Company pursuant to Article 11 of
the Indenture (the "GUARANTEE");
(c) the proposed offer (the "REGISTERED EXCHANGE OFFER") to the Initial
Purchasers (defined below), in exchange for the surrender of the
Notes, of a like aggregate principal amount of debt securities of
the Issuer, issued under the Indenture, identical in all material
respects to the Notes and registered under the Securities Act 1933
(as amended) (the "ACT"); and
(d) the filing of a registration statement (the "EXCHANGE OFFER
REGISTRATION STATEMENT") with the Securities Exchange Commission of
the United States (the "COMMISSION") under the Act pursuant to
paragraph 1 of the Registration Rights Agreement (defined at
Paragraph 2(j) below) within 120 days of the purchase of the Notes
by the Initial Purchasers (defined below) pursuant to the Purchase
Agreement (defined at Paragraph 2(i) below).
This is a legal communication, not a financial communication. Neither this nor
any other communication from this firm is intended to be, or should be construed
as, an invitation or inducement (direct or indirect) to any person to engage in
investment activity.
Mayer, Brown, Rowe & Maw LLP is a limited liability partnership registered in
England (registered number OC303359) and is regulated by the Law Society. A list
of members' names and their professional qualifications may be inspected at our
registered office, 11 Pilgrim Street, London EC4V 6RW, England.
We operate in combination with our associated Illinois, USA, limited liability
partnership in the offices listed below.
BRUSSELS - CHARLOTTE - CHICAGO - COLOGNE - FRANKFURT - HOUSTON - LONDON -
LOS ANGELES - MANCHESTER - NEW YORK - PALO ALTO - PARIS - WASHINGTON
Representative Offices: BEIJING AND SHANGHAI
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This opinion is rendered pursuant to Item 601(b)(5) of Regulation S-K of
the Commission. Capitalised terms used but not defined herein shall have
the meanings assigned to them in the Purchase Agreement (defined at
Paragraph 2(i) below).
2. EXAMINATION AND ENQUIRIES
For the purposes of giving this opinion, we have examined copies of the
following:
(a) CONSTITUTIONAL DOCUMENTS: a copy of the certificate of
incorporation, certificate of change of name, memorandum and
articles of association of the Company, certified by the company
secretary as being up-to-date to 12 June 2002;
(b) CORPORATE AUTHORITY: the minutes of a meeting of the board of
directors of the Company held on 11 June 2002 at which these
transactions, and in particular, the execution of the Indenture,
were approved, certified by the chairman of the meeting;
(c) SHAREHOLDER APPROVAL: a written resolution of the shareholders of
the Company passed on 11 June 2002 approving of the Company
executing, among other documents, the Indenture;
(d) OFFICERS CERTIFICATE: an officers certificate signed by a director
of the Company dated 14 January 2003 relating to the meeting
referred to in paragraph 2(b) (Corporate authority) and the
shareholders restriction referred to in paragraph 2(c) (Shareholder
approval) of this opinion and certifying the identity of the
officers and Attorney (as defined in the Power of Attorney referred
to in paragraph 2 (g) (Power of Attorney) of this opinion) of the
Company;
(e) COMPANY SEARCH: a copy of the records of the Company from Companies
House Direct on 2 August 2002 (and up-dated on the date of this
opinion) (the "COMPANY SEARCH");
(f) GOOD STANDING CERTIFICATE: the faxed copy of a certificate of good
standing in respect of the Company issued by the Registrar of
Companies dated 10 July 2003;
(g) POWER OF ATTORNEY: a power of attorney from the Company appointing
the individuals referred to in the power of attorney to be its
attorney dated 11 June 2002 and executed by the Company (the "POWER
OF ATTORNEY");
(h) INDENTURE: the Indenture executed by, amongst others, the Company
and the Issuer;
(i) PURCHASE AGREEMENT: a purchase agreement dated 14 June 2002 (the
"PURCHASE AGREEMENT") among the Issuer, the Guarantors and Credit
Suisse First Boston Corporation on behalf of itself and as the
representative of itself and TD Securities (USA) Inc., as the
initial purchasers (the "INITIAL PURCHASERS");
(j) REGISTRATION RIGHTS AGREEMENT: an agreement relating to, among other
things, the filing by the Issuer of an exchange offer registration
statement with the Securities Exchange Commission within 120 days of
the date of issue of the Notes dated 21 June 2002 among the Issuer,
the Guarantors and the Initial Purchasers (the "REGISTRATION RIGHTS
AGREEMENT"), which exchange offer registration statement was filed
with the Securities Exchange Commission on 9 August 2002 under file
number 333-98141; and
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(k) GLOBAL NOTE: the form of the global note to be issued by the Issuer
pursuant to the Indenture and the Purchase Agreement in the form set
out in Exhibit 1 to the Rule 144A/Regulation S Appendix of the
Indenture.
As to questions of facts which are material to this opinion, we have, when
the relevant facts were not independently established by us, relied upon
statements made in the documents, records and certificates referred to in
this opinion (in particular, but without limitation, we have relied upon
the statements made in the Officers Certificate and have assumed such
statements are true, correct and not misleading in any respect).
In rendering the opinions set forth below, we have examined such other
documents, corporate records, certificates of public officials and
officers and other representatives of the Company, and such other
agreements, instruments and documents, and made such investigations of law
as we have deemed necessary for the purposes of this opinion.
3. OPINION
Based on the examination and enquiries referred to in Paragraph 2
(Examination and enquiries) above and the assumptions set out in Paragraph
4 (Assumptions) below, we are of the opinion that, subject to paragraph 5
(Qualifications) below:
(a) STATUS AND CORPORATE POWER: the Company (i) is duly incorporated and
is an existing corporation in good standing under the laws of
England and Wales and (ii) has all requisite corporate power and
authority to execute, deliver and perform its obligations under the
Indenture;
(b) DUE EXECUTION: the Indenture has been duly authorized, executed and
delivered by the Company;
(c) NO CONTRAVENTION: the execution and delivery by the Company of, and
the performance of its obligations under, the Indenture will not
result in a breach or violation of:
(i) any of the terms and provisions of, or constitute a default
under, any statute, any rule or regulation or, any order of
any governmental agency or body or any court of England having
jurisdiction over the Company or any of its properties; or
(ii) the constitutional documents of the Company; and
(d) NO CONSENT: no consent, approval, authorization or order of, or
filing with, any governmental agency or body or court of England is
required for the consummation by the Company of the transactions
contemplated by the Indenture in connection with the issuance or
sale of the Notes.
For the purpose of this opinion, "DULY INCORPORATED" (as used in Paragraph
3(a) (Status and corporate power) in relation to the Company means that
the requirements of the Companies Act(s) applicable at its date of
incorporation in respect of registration and of matters precedent and
incidental to it have been complied with and that the Company is
authorised to be registered and is duly registered under that or those
Acts.
For the purposes of this opinion, "EXISTING CORPORATION IN GOOD STANDING"
(as used in Paragraph 3(a) (Status) in relation to the Company means that
it is subsisting at the date of
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this opinion and has not been struck off the register maintained by the
Registrar of Companies for England and Wales, dissolved, nor ceased to
exist by reason of any merger or consolidation or limitation on the
duration of its existence.
4. ASSUMPTIONS
In giving this opinion, we have assumed:
(a) GENUINENESS OF ALL SIGNATURES AND DOCUMENTS: the genuineness of all
signatures, the authenticity of documents submitted to us as
originals, the conformity with the original documents of all
documents submitted to us as copies and that the statements in the
Officers Certificate are true, correct and not misleading in any
respect;
(b) OTHER PARTIES: that the Indenture:
(i) is within the capacity and powers of each of the parties to it
(other than the Company);
(ii) has been validly authorised and duly executed and delivered by
each such party; and
(iii) constitutes the valid, binding and enforceable obligations
(under the laws of each applicable jurisdiction) of each such
party;
(c) ACCURATE INFORMATION: that all information supplied to us (orally or
in writing) by the Company (through any of its employees or agents),
by any other lawyers involved in the transaction or otherwise is
true and accurate in all material respects;
(d) NO OTHER FACT: that there is no fact or matter (such as a mistake or
misrepresentation before or at the time the Indenture was entered
into or a subsequent release, waiver or variation of any right or
provision) which would or might affect this opinion and which was
not revealed to us by the steps taken by us in connection with this
opinion; and
(e) INDENTURE: that for the purposes of our opinion in Paragraph 3(c)
(No contravention), the Indenture is and will be construed and
enforced in the same way as it would have been construed and
enforced had it been construed in accordance with and governed by
English law.
5. QUALIFICATIONS
This opinion is given subject to the following qualifications:
(a) ENGLISH LAW: this opinion relates only to the laws of England and
Wales in force at today's date. We express no opinion with regard to
the laws of any other jurisdiction; and
(b) ACCURACY OF SEARCHES: we cannot guarantee that the information
provided to us in, or in response to, the Company Search and the
Good Standing Certificate was when provided, or remains at the date
of this opinion, accurate and complete. In particular (but without
limitation):
(i) the Company Search and Good Standing Certificate might not
have been up-to-date, complete and accurate as at the date
they were furnished to us. For
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example, matters which should have been registered may not
have been registered; information may have been lodged with
the Registrar of Companies for registration but not included
in the Company's file;
(ii) there is no requirement to register with the Registrar of
Companies the presentation of a petition for the receivership
or winding-up of, or for an administration order in respect
of, a company. Notice of a winding-up or administration order
having been made, a winding-up resolution having been passed
or a receiver having been appointed may not be filed with the
Registrar of Companies immediately and may not appear from a
search made of the public file immediately after having been
filed or at all. Hence such a matter might apply to the
Company but not appear on, or in response to, the Company
Search or Good Standing Certificate; and
(iii) in each case, further information might have become available
on the relevant register after the information was provided to
us.
6. LAW AND RELIANCE
(a) This opinion shall be governed by and construed in accordance with
English law.
(b) We hereby consent to the filing of this legal opinion with the
Commission as an exhibit to the Exchange Offer Registration
Statement and to the reference made to this firm therein. In giving
this consent, we do not thereby admit that we are included within
the category of persons whose consent is required under Section 7 of
the Act or the rules and regulations of the Commission promulgated
thereunder.
(c) This opinion is strictly limited to the matters set out above and
does not extend to and is not to be read as extending by implication
to any other matter.
Yours faithfully
/s/ Mayer, Brown, Rowe & Maw LLP
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THE APPENDIX
Burns Philp (U.K.) Plc
Victoria House
15 Gay Street
Bath
Avon BA1 2PH
Burns Philp & Company Limited
Level 23
56 Pitt Street
Sydney
NSW 2000