EX-5.2 3 a2185470zex-5_2.htm EXHIBIT 5.2

Exhibit 5.2

 

To:    AEGON N.V.
AEGONplein 50
PO Box 85
2501 CB The Hague
The Netherlands

Allen & Overy LLP

Apollolaan 15

1077 AB Amsterdam

Netherlands

 

PO Box 75440

1070 AK Amsterdam

Netherlands

 

Tel       +31 (0)20 674 1000

Fax      +31 (0)20 574 1111

 

Amsterdam

9 May 2008

Our ref

AMBA:1248674.2

 

Dear Sirs,

 

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 registration by AEGON N.V. (AEGON) and AEGON Funding Company LLC., a Delaware limited liability company (AFC) (each, an Issuer) of:

 

(i)

 

common shares, par value 0.12 euro per share, of AEGON N.V (the Common Shares),

(ii)

 

debt securities of AEGON or AFC, which, if issued by AFC, will be guaranteed by AEGON (the Debt Securities),

(iii)

 

guarantees of AEGON or AFC,

(iv)

 

warrants or AEGON or AFC,

(v)

 

purchase contracts of AEGON or AFC and

(vi)

 

units

 

(each, a Security and collectively, the Securities).  The Securities 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 an indeterminate number and amount of Securities at an indeterminate aggregate offering price.

 


 

In rendering this opinion, we have examined and relied upon the following documents:

 

(1)                        an excerpt dated 9 May 2008 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)                        a copy of the deed of incorporation of AEGON dated 23 May 1969 (the Deed of Incorporation) and 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 Incorporation);

 

(3)                        a copy of the resolution of the Executive Board of AEGON adopted on 16 April 2008 to file a shelf registration statement with the United States Securities and Exchange Commission registering an indeterminate number and amount of Securities at an indeterminate aggregate offering price (the Resolution);

 

(4)                        a copy of the Registration Statement;

 

(5)                        a copy of the indenture dated 11 October 2001 (the Indenture) between AEGON, AFC and The Bank of New York Trust Company, a national banking association (as successor trustee to Citibank, N.A. under the Agreement of Resignation, Appointment and Acceptance dated as of 21 August 2007 by and among AEGON, The Bank of New York Trust Company, N.A. and Citibank, N.A.) incorporated by reference into the Registration Statement as Exhibit 4.5; and

 

(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 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;

 

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(iii)       that the Articles of Incorporation are the articles of incorporation 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 Registration Statement with the United States Securities and Exchange Commission, that such resolution has been made with due observance of the Articles of Incorporation and has not been and will not be amended, revoked or declared null and void by a competent court;

 

(v)                       that the Registration Statement has been signed on behalf of AEGON by the persons indicated on the signature pages of the Registration Statement;

 

(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 and the Securities (other than the Common Shares) are or will be expressed to be governed by the laws of the State of New York and constitute or will 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 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 Securities, and if the Securities are convertible, exchangeable or exercisable, into other securities, the other securities issuable upon conversion, exchange or exercise, at the time of issuance thereof will have been duly authorised, where required, and validly issued and delivered in accordance with the Articles of Incorporation in effect at the time of authorisation;

 

(x)        that at any time that Common Shares are issued as Securities or are issuable upon conversion, exchange or exercise of any Securities, the nominal amount and any agreed share premium with regard to such Common Shares have or will have been duly paid-up;

 

(xi)                      that the Common Shares will be admitted to listing at Euronext Amsterdam N.V.;

 

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(xii)      that the Securities issued by AEGON will be offered in accordance with the provisions of the Dutch Act on Financial Supervision (Wet op het financieel toezicht, Wft).

 

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 at the date hereof of the opinion that:

 

A.                         Corporate Status

 

                                      AEGON is validly existing as a naamloze vennootschap (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 Registration Statement 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 (other than the Common Shares), if issued by AEGON, 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 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 Securities (other than the Common Shares) is valid and binding under the laws of the Netherlands, except (i) to the extent that any term of the Indenture or the Securities (other than the Common Shares) 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, (ii) that mandatory rules of Dutch corporate law apply to any issue of Securities if the Securities are convertible, exchangeable or exercisable into Common Shares, and except (iii) 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,

 

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under the laws of that other jurisdiction, those rules must be applied, whatever the chosen law.

 

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 (surséance 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 rights under the Indenture and the Securities (other than the Common Shares) 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 (surséance 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 any Securities in bearer form would be governed by the chosen law, the law of the country in which the relevant Securities are 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 any Securities in bearer form, title shall pass by delivery pursuant to a valid agreement by a transferor who has power to pass title to the relevant Securities.

 

(e)                        If a facsimile signature will be used for the Securities (other than the Common Shares), 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 (other than the Common Shares) were executed by attaching thereto the facsimile signature of any person who no longer holds office at the date of actual issuance of rights under such Securities, it may be necessary for the enforcement of rights under such Securities in the Netherlands that the holder thereof presents both the Securities and evidence of approval by the signatory.

 

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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 “Legal Matters” 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 (including 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,

 

/s/ Allen & Overy LLP

 

Allen & Overy LLP

 

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