EXHIBIT 5.2
Published on June 4, 2019
Exhibit 5.2
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office address
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18-20, rue Edward Steichen
L-2540 LUXEMBOURG
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telephone
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+352 466 230 208
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fax
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+352 466 234
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internet
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loyensloeff.lu
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| To: the Addressees |
| re | Luxembourg law legal opinion – Becton Dickinson Euro Finance S.à r.l. – Exhibit 5 opinion |
| reference | 70128692 |
Luxembourg, 4 June 2019
Dear Sir, or Madam,
| 1 | INTRODUCTION |
We have acted as special legal counsel on certain matters of Luxembourg law to the Company. We render this opinion regarding the Opinion Documents.
| 2 | DEFINITIONS |
| 2.1 | Capitalised terms which are not otherwise defined herein are used as defined in the Schedules to this opinion letter. |
| 2.2 | In this opinion letter: |
Act means the United States Securities Act of 1933, as amended.
Addressees means the addressees of this opinion letter, listed in Schedule 1 (Addressees).
Company means Becton Dickinson Euro Finance S.à r.l., with registered address at 412F, route d’Esch, L-1471 Luxembourg, Grand Duchy of Luxembourg and registered with the RCS under number B234229.
Companies Law means the Luxembourg law on commercial companies, dated
10 August 1915, as amended.
Debt Securities means the debt securities to be issued by the Company under the Indenture, guaranteed by the Guarantor and described in detail in the Prospectus which forms part of the Registration Statement.
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AMSTERDAM
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BRUSSELS
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LUXEMBOURG
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ROTTERDAM
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HONG
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KONG
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LONDON
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NEW YORK
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PARIS
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SINGAPORE
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TOKYO
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ZURICH
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Guarantor means Becton, Dickinson and Company, a New Jersey corporation.
Insolvency Regulation means the Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast).
Luxembourg means the Grand Duchy of Luxembourg.
Notes means the EUR 600,000,000 0.174% notes due 2021, the EUR 800,000,000 0.632% notes due 2023 and the EUR 600,000,000 1.208% notes due 2026 offered by the Company as further described in the Prospectus and Prospectus Supplement.
Offering Documents means the documents described in paragraph 1 (Offering Documents) and paragraph 2 (Opinion Documents) of Schedule 2 (Reviewed Documents).
Opinion Documents means the documents described in paragraph 2 (Opinion Documents) of Schedule 2 (Reviewed Documents).
Prospectus means the prospectus dated 17 May 2019, with regard to the offering of Debt Securities by Becton, Dickinson and Company, as supplemented from time to time, which forms part of the Registration Statement.
Prospectus Supplement means the prospectus supplement dated 21 May 2019 with regard to the offering of the Notes and supplementing the Prospectus.
Registration Statement means the Post-Effective Amendment No.1 to the Form S-3 shelf registration statement (File No. 333-224464) under the Act, dated 17 May 2019 filed with the SEC by the Company and the Guarantor which includes the Prospectus.
RCS means the Luxembourg Register of Commerce and Companies.
Relevant Date means the date of the Resolutions, the date of the Offering Documents, the date of the Opinion Documents and the date of this opinion letter, as the case may be.
SEC means the United States Securities and Exchange Commission.
| 3 | SCOPE OF INQUIRY |
| 3.1 | For the purpose of rendering this opinion letter, we have only examined and relied upon electronically transmitted copies of the executed Opinion Documents, electronically transmitted copies of the Offering Documents and electronically transmitted copies of the documents listed in paragraph 3 (Organisational Documents) of Schedule 2 (Reviewed Documents). |
| 3.2 | We have not reviewed any documents incorporated by reference or referred to in the Opinion Documents (unless included as an Opinion Document) and therefore our opinions do not extend to such documents. |
| 4 | NATURE OF OPINION |
| 4.1 | We only express an opinion on matters of Luxembourg law in force on the date of this opinion letter, excluding unpublished case law. We undertake no obligation to update it or to advise of any changes in such laws or case law, their construction or application. |
| 4.2 | Except as expressly stated in this opinion letter, we do not express an opinion on public international law or on the rules of, or promulgated under, any treaty or by any treaty organisation or European law (save for rules implemented into Luxembourg law or directly applicable in Luxembourg), on the European Market Infrastructure Regulation EU 648/2012 and any laws and regulations relating thereto, any Luxembourg laws implementing the Directive 2011/61/EU of the European Parliament and of the Council on Alternative Investment Fund Managers, tax, transfer pricing, regulatory, data protection, competition, accounting or administrative law, sanction laws and regulations or as to the consequences thereof. |
| 4.3 | Our opinion is strictly limited to the matters stated herein. We do not express any opinion on matters of fact, on the commercial and other non-legal aspects of the transactions contemplated by the Opinion Documents and on any representations, warranties or other information included in the Opinion Documents and any other document examined in connection with this opinion letter, except as expressly stated in this opinion letter. |
| 4.4 | We express no opinion in respect of the validity and enforceability of the Opinion Documents. |
| 4.5 | We express no opinion with respect to the Offering Documents nor as regards the accuracy, truth or completeness of the information contained therein except as expressly stated in this opinion letter. |
| 4.6 | In this opinion letter Luxembourg legal concepts are sometimes expressed in English terms and not in their original French or German terms. The concepts concerned may not be identical to the concepts described by the same English term as they exist under the laws of other jurisdictions. For the purpose of tax law, a term may have a different meaning than for the purpose of other areas of Luxembourg law. |
| 4.7 | This opinion letter may only be relied upon under the express condition that any issue of interpretation or liability arising hereunder will be governed by Luxembourg law and be brought exclusively before the Courts of the District of Luxembourg-City. |
| 4.8 | This opinion letter is issued by Loyens & Loeff Luxembourg SARL and may only be relied upon under the express condition that any liability of Loyens & Loeff Luxembourg SARL is limited to the amount paid out under its professional liability insurance policies. Only Loyens & Loeff Luxembourg SARL can be held liable in connection with this opinion letter. |
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5
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OPINIONS |
The opinions expressed in this paragraph 5 (Opinions) should be read in conjunction with the assumptions set out in Schedule 3 (Assumptions) and the qualifications set out in Schedule 4 (Qualifications). On the basis of these assumptions and subject to these qualifications and any factual matters or information not disclosed to us in the course of our investigation, we are of the opinion that as at the date of this opinion letter:
| 5.1 | Corporate status |
The Company has been incorporated and is existing as a société à responsabilité limitée (private limited liability company) for an unlimited duration.
| 5.2 | Corporate power |
The Company has the corporate power to execute the Opinion Documents and to issue the Notes.
| 5.3 | Due authorisation |
The execution by the Company of the Opinion Documents has been duly authorised by all requisite corporate action on the part of the Company.
| 5.4 | Due execution |
The Opinion Documents have been duly executed by the Company.
| 6 | ADDRESSEES |
| 6.1 | This opinion letter is addressed to you and may only be relied upon by you in connection with the transactions to which the Opinion Documents relate and may not be disclosed to and relied upon by any other person without our prior written consent. |
| 6.2 | We hereby consent to the filing of this opinion as Exhibit 5 to the Current Report of Form 8-K. 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 Act or the rules and regulations of the SEC thereunder. |
Yours faithfully,
Loyens & Loeff Luxembourg SARL
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/s/ Cédric Raffoul |
/s/ Frederic Franckx |
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| Cédric Raffoul | Frederic Franckx | ||
| Avocat | Avocat à la Cour |
Schedule 1
addressees
| (1) | Becton, Dickinson and Company |
1, Becton Drive
Franklin Lakes,
New Jersey 07417-1880
United States of America
| (2) | Becton Dickinson Euro Finance S.à r.l. |
412F, route d’Esch
L-1471 Luxembourg
Grand Duchy of Luxembourg
Schedule 2
REVIEWED DOCUMENTS
| 1 | Offering Documents |
| 1.1 | The Registration Statement; |
| 1.2 | The Prospectus Supplement. |
| 2 | OPINION DOCUMENTs |
| 2.1 | an indenture, dated 17 May 2019, governed by the laws of the State of New York, entered into by and between, amongst others, the Company as issuer, Becton, Dickinson and Company as guarantor and The Bank of New York Mellon Company N.A. as trustee, (the Indenture) pursuant to which the Notes will be issued; |
| 2.2 | a supplemental indenture, dated 4 June 2019, governed by the laws of the State of New York, entered into by and between, the Company as issuer, Becton, Dickinson and Company as guarantor and The Bank of New York Mellon Company N.A. as trustee, pursuant to which the Notes will be issued (the Supplemental Indenture); |
| 2.3 | an underwriting agreement, dated 21 May 2019, governed by the laws of the State of New York, entered into by and between, amongst others, the Company as issuer, Becton, Dickinson and Company as guarantor and the Underwriters party thereto (the Underwriting Agreement); |
| 2.4 | 3 global notes representing the Notes, governed by the laws of the State of New York, each dated 4 June 2019, issued by the Company (the Global Notes). |
| 3 | ORGANISATIONAL DOCUMENTS |
| 3.1 | RCS Documents |
| 3.1.1 | An excerpt pertaining to the Company delivered by the RCS dated 4 June 2019 (the Excerpt). |
| 3.1.2 | A certificate of absence of a judicial decision pertaining to the Company delivered by the RCS dated 4 June 2019, with respect to the situation of the Company as at 3 June 2019 (the RCS Certificate). |
| 3.2 | Corporate Documents |
The deed of incorporation of the Company, as drawn up by Maître Carlo Wersandt, notary residing in Luxembourg, dated 23 April 2019 (the Deed of Incorporation), containing the originals articles of association of the Company (the Articles).
| 3.3 | Resolutions |
The minutes of the meeting of the board of managers of the Company dated 13 May 2019 in relation to the Offering Documents (the Resolutions).
Schedule 3
ASSUMPTIONS
The opinions in this opinion letter are subject to the following assumptions:
| 1 | DOCUMENTS |
| 1.1 | All signatures are genuine, all original documents are authentic and all copies are complete and conform to the originals. |
| 1.2 | The information contained and the statements made in the Excerpt, the RCS Certificate and the Resolutions are true, accurate and complete at the Relevant Date. |
| 2 | INCORPORATION, EXISTENCE, CORPORATE POWER |
| 2.1 | There were no defects in the incorporation process of the Company (not appearing on the face of the Deed of Incorporation). The Articles are in full force and effect on the Relevant Date. |
| 2.2 | The Company has its central administration (administration centrale) and has its centre of main interest (as described in the Insolvency Regulation) in Luxembourg and does not have an establishment (as described in the Insolvency Regulation) outside Luxembourg. |
| 2.3 | The Company complies with and adheres to all laws and regulations on the domiciliation of companies. |
| 2.4 | The issue of Debt Securities, the execution, entry into and performance by the Company of the Opinion Documents, and the transactions in connection therewith (a) are in its corporate interest, (b) with the intent of pursuing profit (but lucratif) and (c) serving the corporate object of the Company. |
| 3 | AUTHORISATIONS |
| 3.1 | The Resolutions (a) correctly reflect the resolutions adopted by the board of managers of the Company, (b) have been validly adopted, with due observance of the Articles and any applicable by-laws and (c) are in full force and effect. |
| 3.2 | The Company is not under any contractual obligation to obtain the consent, approval, co-operation, permission or otherwise of any third party or person in connection with the execution of, entry into, and performance of its obligations under, the Opinion Documents and the issuance of the Notes. |
| 4 | EXECUTION |
| 4.1 | The Opinion Documents have in fact been signed on behalf of the Company by the persons authorised to that effect. |
| 4.2 | All individuals having signed the Reviewed Documents and the Opinion Documents have legal capacity and power under all relevant laws and regulations to do so. |
| 5 | REGULATORY |
The Company does not carry out any activity in the financial sector or insurance on a professional basis (as referred to in the Luxembourg law dated 5 April 1993 on the financial sector, as amended, and the Luxembourg Law dated 7 December 2015 on the insurance sector, as amended) or any activity requiring the granting of a business licence under the Luxembourg law dated 2 September 2011 governing the access to the professions of skilled craftsman, tradesman, manufacturer, as well as to certain liberal professions, as amended.
| 6 | ISSUE OF DEBT SECURITIES |
| 6.1 | The Notes will only be offered pursuant to an exemption from the requirement to draw up a prospectus in accordance with the Luxembourg law of 10 July 2005 on prospectuses for securities, as amended (the Prospectus Law) or in circumstances which do not constitute an offer of securities to the public within the meaning of the Prospectus Law. |
| 6.2 | The Notes will not be listed on any market operated by the Luxembourg Stock Exchange. |
| 6.3 | The Notes will be issued in registered form only. |
| 6.4 | The Global Notes will be executed, authenticated and delivered, and the Notes will subscribed, paid for, issued and registered in accordance with the terms of the Opinion Documents. |
| 7 | MISCELLANEOUS |
| 7.1 | Each transaction entered into pursuant to, or in connection with, the Opinion Documents and all payments and transfers made by, on behalf of, or in favour of, the Company are made at arm’s length and in accordance with market practice. |
| 7.2 | Each party to the Opinion Documents entered into and will perform its obligations under the Opinion Documents in good faith, for the purpose of carrying out its business and without any intention to defraud or deprive of any legal benefit any other party (including third party creditors) or to circumvent any mandatory law, regulation of any jurisdiction or contractual arrangements. |
| 7.3 | There are no provisions in the laws of any jurisdiction outside Luxembourg or in the documents mentioned in the Opinion Documents, which would adversely affect, or otherwise have any negative impact on this opinion letter. |
Schedule 4
Qualifications
The opinions in this opinion letter are subject to the following qualifications:
| 1 | INSOLVENCY |
This opinion letter is subject to all limitations resulting from the application of Luxembourg public policy rules, overriding statutes and mandatory laws as well as to all limitations by reasons of bankruptcy (faillite), composition with creditors (concordat préventif de la faillite), suspension of payments (sursis de paiements), controlled management (gestion contrôlée), insolvency, liquidation, reorganisation or the appointment of a temporary administrator (administrateur provisoire) and any similar Luxembourg or foreign proceedings, regimes or officers relating to, or affecting, the rights of creditors generally (Insolvency Proceedings).
| 2 | ACCURACY OF INFORMATION |
| 2.1 | Corporate documents of, and court orders affecting, the Company may not be available at the RCS forthwith upon their execution and filing and there may be a delay in the filing and publication of the documents or notices related thereto. We express no opinion as to the consequences of any failure by the Company to comply with its filing, notification, reporting and publication obligations. |
| 2.2 | Documents relating to a Luxembourg company the publication of which is required by law will only be valid towards third parties from the day of their publication with the Electronic Register of Companies and Associations (Recueil Electronique des Sociétés et Associations), unless the company proves that the relevant third parties had prior knowledge thereof. Third parties may however rely upon such documents which have not yet been published. For 15 days following their publication, such documents will not be valid towards third parties who prove the impossibility for them to have knowledge thereof. |
| 2.3 | The Articles, the Excerpt and the RCS Certificate do not constitute conclusive evidence whether or not a winding-up, administration petition or order has been presented or made, a receiver has been appointed, an arrangement with creditors has been proposed or approved or any other Insolvency Proceedings have commenced. |
| 3 | INCORPORATION, EXISTENCE AND CORPORATE POWER |
Our opinion that the Company exists is based on the Corporate Documents, the Excerpt and the RCS Certificate (which confirms, in particular, that no judicial decision in respect of bankruptcy (faillite), composition with creditors (concordat préventif de la faillite), suspension of payments (sursis de paiements), controlled management (gestion contrôlée), judicial liquidation (liquidation judiciaire) or the appointment of a temporary administrator (administrateur provisoire) pertaining to the Company have been registered with the RCS.
| 4 | POWERS OF ATTORNEY |
Under Luxembourg law, each power of attorney, mandate or appointment of agent (including the appointment made for security purposes included in the Opinion Documents), whether or not irrevocable, may terminate by virtue of law without notice upon the occurrence of Insolvency Proceedings and may be revoked despite being expressed to be irrevocable.
| 5 | MISCELLANEOUS |
| 5.1 | We express no opinion on general defences under Luxembourg law, such as duress, deceit (dol) or mistake (erreur). |
| 5.2 | The registration of the Opinion Documents (and/or any documents in connection therewith) with the Registration and Estates Department (Administration de l’enregistrement, des domaines et de la TVA) in Luxembourg is required in case the Opinion Documents (and/or any documents in connection therewith) are (i) enclosed to a deed which is compulsorily registrable (acte obligatoirement enregistrable) or (ii) deposited with the official records of a notary (déposé au rang des minutes d’un notaire). Even if registration is not required by law, the Opinion Documents (and/or any documents in connection therewith) can also be produced for registration (présenté à l’enregistrement). In case of registration, registration duties will apply in the form of a fixed amount or an ad valorem amount depending on the nature of the document. The Luxembourg courts or the official Luxembourg authority may require that the Opinion Documents (and any documents in connection therewith) is translated into French, German or Luxembourgish. |