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EXHIBIT 5.1 and 23.5
Opinion of Appleby Spurling & Kempe
26 July 2000
TyCom Ltd.
The Zurich Centre, Second Floor, Suite 201
90 Pitts Bay Road
Pembroke HM 08, Bermuda
Dear Sirs:
TyCom Ltd. (the "Company")
We have acted as legal counsel in Bermuda to the Company in connection with the
preparation and filing by the Company with the Securities and Exchange
Commission under the Securities Act of 1933 of a registration statement (the
"Abbreviated Registration Statement") on Form S-1 in relation to the
registration of 7,800,000 common shares ("Common Shares") of par value US$0.25
each in the Company (the "Additional Common Shares"). The Additional Common
Shares are to be purchased by certain underwriters and offered for sale to the
public together with the 62,500,000 Common Shares registered pursuant to a
Registration Statement on Form S-1 (File No. 333-32134) of the Company that was
declared effective earlier today (the "Initial Registration Statement").
Unless otherwise defined in this opinion or the Schedule to it, capitalised
terms have the meanings assigned to them in the Initial Registration Statement.
For the purposes of this opinion we have examined and relied upon the documents
listed (which, in some cases, are also defined) in the Schedule to this opinion
(the "Documents").
Assumptions
In stating our opinion we have assumed:
(a) the authenticity, accuracy and completeness of all Documents
(including, without limitation, public records) submitted to us as
originals and the conformity to authentic original Documents of all
Documents submitted to us as certified, electronic or photostatic copies;
(b) the genuineness of all signatures on the Documents;
(c) the authority, capacity and power of each of the persons signing the
Documents (other than directors or officers of the Company);
(d) that any factual statements made in any of the Documents are true,
accurate and complete;
(e) that the records which were the subject of the search made on 26
July 2000 of the Register of Companies at the office of the Registrar of
Companies referred to in paragraph 7 of the Schedule to this opinion were
complete and accurate at the time of such search and disclosed all
information which is material for the purposes of this opinion and such
information has not since such date been materially altered; and
(f) that the price at which the Additional Common Shares are agreed to
be issued pursuant to the underwriting agreement as referred to in the
Registration Statement is equal to or greater than their par value per
share of US$0.25.
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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 Company is an exempted company incorporated with limited
liability and existing under the laws of Bermuda and is in good standing
under the laws of Bermuda.
(2) The Additional Common Shares have been duly created as authorised
but unissued Common Shares and, when duly resolved by the board of
directors of the Company to be issued and allotted, and when paid for, as
contemplated by the underwriting agreement as referred to in the prospectus
included in the Initial Registration Statement (and incorporated by
reference in the Abbreviated Registration Statement), will be duly
authorised, validly issued, fully-paid and non-assessable shares of the
Company.
Reservations
We have the following reservations:
(a) We express no opinions 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.
(b) 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.
(c) Any reference in this opinion to shares being "non-assessable" shall
mean, in relation to fully-paid Additional Common Shares, (subject to any
contrary provision in any agreement between the Company and the holders of
such shares) that no holder of such Additional Common Shares shall be bound
by an alteration of the memorandum of association or bye-laws of the
Company after the date on which he became a shareholder, if and so far as
the alteration requires him to take, or subscribe for additional shares, or
in any way increases his liability to contribute to the share capital of,
or otherwise to pay money to, the Company.
(d) Searches of the Register of Companies at the office of the Registrar
of Companies are not conclusive and it should be noted that the Register of
Companies does not reveal:
(i) details of matters which have been lodged for filing or
registration which as a matter of general practice of the Registrar of
Companies would have or should have been disclosed on the public file
but have not actually been registered or to the extent that they have
been registered have not been disclosed or appear in the public records
at the date and time the search is concluded; or
(ii) details of matters which should have been lodged for
registration but have not been lodged for registration at the date the
search is concluded.
(e) In order to issue this opinion we have carried out the search
referred to in paragraph 7 of the Schedule to this opinion at 9:00 am on 26
July 2000 and have not enquired as to whether there has been any change
since that time and date.
(f) In this opinion, the term "good standing" means only that the
Company has received a certificate of compliance from the Registrar of
Companies in Hamilton, Bermuda.
Disclosure
This opinion is addressed to you in connection with the filing by the Company
of the Abbreviated Registration Statement with the Securities and Exchange
Commission for the purposes of registering the Additional Common Shares under
the Securities Act of 1933. We consent to the filing of this opinion as an
exhibit to the Abbreviated Registration Statement. We also consent to the
reference to our name under the heading "Legal Matters" in the Initial
Registration Statement, which is incorporated in the Abbreviated Registration
Statement, in the form in which it appears.
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This opinion is addressed to the Company solely for the benefit of the Company
and (save as referred to in the preceding paragraph) is neither to be
transmitted to any other person, nor relied upon by any other person or for any
other purpose nor quoted nor 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. Further, 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.
This opinion is governed by and is to be construed in accordance with Bermuda
law. It is given on the basis that it will not give rise to any legal
proceedings with respect thereto in any jurisdiction other than Bermuda.
Yours faithfully,
/s/ Appleby Spurling & Kempe
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THE SCHEDULE
1. An electronic copy of the Abbreviated Registration Statement,
excluding the exhibits thereto and an electronic copy of Amendment No. 6 to
the Initial Registration Statement (which includes a prospectus in relation
to the Company) excluding the exhibits thereto.
2. Certified copies dated 26 July 2000 of:
2.1the written resolutions of the sole shareholder of the Company
passed on 6 July 2000;
2.2 the unanimous written resolutions of the Board of Directors of
the Company adopted on 6 July 2000; and
2.3 the unanimous written resolution of the Board of Directors of
the Company adopted on 24 July 2000.
(together, the "Resolutions").
3. Certified copies dated 6 July 2000 of:
3.1the certificate of incorporation of the Company;
3.2the memorandum of association of the company; and
3.3the bye-laws of the Company,
(together, the "Constitutional Documents").
4. A copy of a letter dated 24 July 2000 evidencing the consent of the
Bermuda Monetary Authority to the issue by the Company of the Common
Shares.
5. A certified copy dated 6 July 2000 of the register of shareholders of
the Company as at 6 July 2000 (the "Share Register").
6. An officer's certificate dated 26 July 2000 and issued by Byron S.
Kalogerou as Secretary of the Company on which we have relied for the
purposes of our statements in opinion paragraph 2.
7. The entries and filings shown in respect of the Company on the file
of the Company maintained in the Register of Companies at the offices of
the Registrar of Companies in Hamilton, Bermuda, as revealed by a search on
26 July 2000.
8. A certificate of compliance dated 4 July 2000 issued by the Registrar
of Companies, Hamilton, Bermuda in respect of the Company.
