EXHIBIT 5.2
6 September 2002
Securities & Exchange Commission
450 5th Street, N.W.
Judiciary Plaza
Washington D.C. 20549
Dear Sirs
RE:- COOPER INDUSTRIES LTD (THE "COMPANY")
We have acted as legal counsel in Bermuda to the Company in connection with the
offer to exchange (the Exchange Offer) 5.25% Senior Notes due 2007 (registered
under the Securities Act of 1933) for all outstanding 5.25% Senior Notes due
2007 ($300 million aggregate principal amount outstanding) of Cooper Industries,
Inc. (The Notes) all of which are guaranteed by the Company.
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") together with such other documentation, as we have considered
requisite to this opinion.
ASSUMPTIONS
In stating our opinion we have assumed:
(a) the authenticity, accuracy and completeness of all Documents and other
documentation examined by us submitted to us as originals and the
conformity to authentic original documents of all Documents and other
such documentation submitted to us as certified, conformed, notarised,
faxed or photostatic copies;
(b) that each of the Documents and other such documentation 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 (other than the Company in respect of the Subject
Agreements);
(e) that any representation, warranty or statement of fact or law, other
than as to the laws of Bermuda, made in any of the Documents is true,
accurate and complete;
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(f) that the Transaction Documents constitute the legal, valid and binding
obligations of each of the parties thereto, other than the Company in
respect of the Subject Agreements, under the laws of its jurisdiction
of incorporation or its jurisdiction of formation;
(g) that the Transaction Documents have been validly authorised, executed
and delivered by each of the parties thereto, other than the Company in
respect of the Subject Agreements, and the performance thereof is
within the capacity and powers of each such party thereto, and that
each such party to which the Company purportedly delivered the Subject
Agreements has actually received and accepted delivery of such Subject
Agreements;
(h) that the Transaction Documents will effect, and will constitute legal,
valid and binding obligations of each of the parties thereto,
enforceable in accordance with their terms, under the laws of the State
of New York by which they are expressed to be governed;
(i) that the Transaction Documents are in the proper legal form to be
admissible in evidence and enforced in the courts of the State of New
York and in accordance with the laws of the State of New York, and that
the Subject Agreements do not create a charge or lien over the assets
of the Company under the laws of the State of New York;
(j) that there are no provisions of the laws or regulations of any
jurisdiction other than Bermuda which would be contravened by the
execution or delivery of the Transaction Documents or which would have
any implication in relation to the opinion expressed herein and that,
in so far as any obligation under, or action to be taken under, the
Transaction Documents 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;
(k) that each of the parties other than the Company to the Subject
Agreements is not carrying on investment business in or from within
Bermuda under the provisions of the Investment Business Act 1998 as
amended from time to time (the "IBA");
(l) that the Resolutions are in full force and effect, have not been
rescinded, either in whole or in part, and accurately record the
resolutions adopted by all of the Directors of the Company as unanimous
written resolutions of the Board and that there is no matter affecting
the authority of the Directors to effect entry by the Company into the
Subject Agreements, not disclosed by the Constitutional Documents or
the Resolutions, which would have any adverse implication in relation
to the opinions expressed herein;
(m) that J.P. Morgan Securities Inc. and Banc of America Securities LLC
have no express or constructive knowledge of any circumstance whereby
any Director of
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the Company, when the Board of Directors of the Company adopted the
Resolutions, failed to discharge his fiduciary duty owed to the Company
and to act honestly and in good faith with a view to the best interests
of the Company;
(n) that the Company has entered into its obligations under the Subject
Agreements 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 transactions contemplated by the Subject Agreements
would benefit the Company; and
(o) that each transaction to be entered into pursuant to the Subject
Agreements is entered into in good faith and for full value and will
not have the effect of preferring one creditor over another.
OPINION
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 execution, delivery and performance by the Company of the Subject
Agreements to which it is a party, the transactions contemplated
thereby including the guarantee by the Company of the Exchange Notes
have been duly authorised by all necessary corporate action on the part
of the Company.
(2) The Subject Agreements to which the Company is a party which include
the guarantee of the Exchange Notes have been duly executed by the
Company and each constitutes legal, valid and binding obligations of
the Company, enforceable against the Company in accordance with its
terms.
(3) No consent, licence or authorisation of, filing with, or other act by
or in respect of, any governmental authority or court of Bermuda is
required to be obtained by the Company in connection with the guarantee
by the Company of the Exchange Notes and the execution, delivery or
performance by the Company of the Subject Agreements or to ensure the
legality, validity, admissibility into evidence or enforceability as to
the Company, of the Subject Agreements.
(4) The statements in the Registration Statement under the heading
"Enforcement of Judgements and Service of Process" and under the
heading "certain tax considerations - Bermuda tax considerations"
insofar as they purport to describe the provisions of the laws of
Bermuda referred to therein, are accurate and correct in all material
respects.
(5) A final and conclusive judgment of a competent foreign court against
the Company based upon the Subject Agreements (other than a court of
jurisdiction to which The Judgments (Reciprocal Enforcement) Act, 1958
applies, and it does not apply to the courts of the State of New York)
under which a sum of money is payable (not being a sum payable in
respect of taxes or other charges of a like nature, in respect of a
fine or other penalty, or in respect of multiple
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damages as defined in The Protection of Trading Interests Act 1981) may
be the subject of enforcement proceedings in the Supreme Court of
Bermuda under the common law doctrine of obligation by action on the
debt evidenced by the judgment of such competent foreign court. A final
opinion as to the availability of this remedy should be sought when the
facts surrounding the foreign court's judgment are known, but, on
general principles, we would expect such proceedings to be successful
provided that:
(i) the court which gave the judgment was competent to hear the
action in accordance with private international law principles
as applied in Bermuda; and
(ii) the judgment is not contrary to public policy in Bermuda, has
not been obtained by fraud or in proceedings contrary to
natural justice and is not based on an error in Bermuda law.
Enforcement of such a judgment against assets in Bermuda may involve
the conversion of the judgment debt into Bermuda dollars, but the
Bermuda Monetary Authority has indicated that its present policy is to
give the consents necessary to enable recovery in the currency of the
obligation.
RESERVATIONS
We have the following reservations:
(a) The term "enforceable" as used in this opinion means that there is a
way of ensuring that each party performs an agreement or that there are
remedies available for breach.
(b) We express no opinion as to the availability of equitable remedies such
as specific performance or injunctive relief, or as to any matters
which are within the discretion of the courts of Bermuda in respect of
any obligations of the Company as set out in the Subject Agreements. In
particular, we express no opinion as to the enforceability of any
present or future waiver of any provision of law (whether substantive
or procedural) or of any right or remedy which might otherwise be
available presently or in the future under the Subject Agreements.
(c) Enforcement of the obligations of the Company under the Subject
Agreements may be limited or affected by applicable laws from time to
time in effect relating to bankruptcy, insolvency or liquidation or any
other laws or other legal procedures affecting generally the
enforcement of creditors' rights.
(d) Enforcement of the obligations of the Company may be the subject of a
statutory limitation of the time within which such proceedings may be
brought.
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(e) 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.
(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.
(h) We express no opinion as to the validity, binding effect or
enforceability of any provision incorporated into any of the Subject
Agreements by reference to a law other than that of Bermuda, or as to
the availability in Bermuda of remedies which are available in other
jurisdictions.
(i) Where a person is vested with a discretion or may determine a matter in
his or its opinion, such discretion may have to be exercised reasonably
or such an opinion may have to be based on reasonable grounds.
(j) Any provision in the Transaction Documents that certain calculations or
certificates will be conclusive and binding will not be effective if
such calculations or certificates are fraudulent or erroneous on their
face and will not necessarily prevent juridical enquiries into the
merits of any claim by an aggrieved party.
(k) We express no opinion as to the validity or binding effect of any
provision in the Transaction Documents for the payment of interest at a
higher rate on overdue amounts than on amounts which are current, or
that liquidated damages are or may be payable. Such a provision may not
be enforceable if it could be established that the amount expressed as
being payable was in the nature of a penalty; that is to say a
requirement for a stipulated sum to be paid irrespective of, or
necessarily greater than, the loss likely to be sustained. If it cannot
be demonstrated to the Bermuda court that the higher payment was a
reasonable pre-estimate of the loss suffered, the court will determine
and award what it considers to be reasonable damages. Section 9 of The
Interest and Credit Charges (Regulations) Act 1975 provides that the
Bermuda courts have discretion as to the amount of interest, if any,
payable on the amount of a judgment after date of judgment. If the
Court does not exercise that discretion, then interest will accrue at
the statutory rate which is currently 7% per annum.
(l) We express no opinion as to the validity or binding effect of any
provision of the Subject Agreements which provides for the severance of
illegal, invalid or unenforceable provisions.
(m) A Bermuda court may refuse to give effect to any provisions of the
Subject Agreements in respect of costs of unsuccessful litigation
brought before the Bermuda court or where that court has itself made an
order for costs.
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DISCLOSURE
Except as otherwise provided in this paragraph, this opinion is addressed to you
solely for your benefit and is neither to be transmitted to any other person,
nor relied upon by any other person or for any other purpose nor quoted or
referred to in any public document nor filed with any governmental agency or
person, without our prior written consent, except as may be required by law or
regulatory authority provided that this opinion may be filed as an exhibit to
the Registration Statement. 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. We hereby consent to the use of our name in the Registration
Statement in the context in which it appears.
This opinion is governed by and is to be construed in accordance with Bermuda
law
Yours faithfully
/s/ APPLEBY SPURLING & KEMPE
SCHEDULE
1. Certified copies of the Certificate of Incorporation, Memorandum of
Association and Bye-Laws for the Company (collectively referred to as
the "Constitutional Documents").
2. Certified copy of the written resolutions of the Board of Directors of
the Company adopted on June 14, 2002 (the "Resolutions").
3. A certified copy of the Register of Directors and Officers in respect
of the Company.
4. A copy of the executed Indenture dated as of January 15, 1990 among
Cooper Industries, Inc. and The Chase Manhattan Bank (the "Indenture").
5. A copy of the executed First Supplemental Indenture dated as of 15th
May 2002 between Cooper Industries, Inc., the Company and JPMorgan
Chase Bank (the "Supplemental Indenture").
6. A copy of the executed Second Supplemental Indenture dated 21st June,
2002 between Cooper Industries, Inc., the Company and JPMorgan Chase
Bank (the "Second Supplemental Indenture").
7. A copy of the Form S-4 Registration Statement under the Securities Act
9, 1933 relating to the Exchange Offer and to be filed with the
Securities and Exchange Commission on or about September 6, 2002 (the
REGISTRATION STATEMENT).
Documents 5 and 6, are together referred to as the "Subject
Agreements". The Subject Agreements and documents 4 to 7 inclusive are
together referred to as the "Transaction Documents".