Exhibit 5.1
Advocaten
Notarissen
Belastingadviseurs
Tripolis
Burgerweeshuispad 301
P.O. Box 75084
1070 AB Amsterdam
T +31 20 577 1771
F +31 20 577 1775
To Qiagen N.V.
Spoorstraat 50
5911 KJ VENLO
The Netherlands
Date 15 June 2007 | Joost J.J. Schutte | |
Advocaat |
Our ref. 396\Other\Energy\Opinion\l001b-396.DOC\
Dear Sirs,
Qiagen N.V.
SEC Registration
of up to 42,234,783 ordinary shares
in the share capital of Qiagen N.V.
1 | Introduction |
I have acted on behalf of De Brauw Blackstone Westbroek N.V. as Dutch legal adviser (advocaat) to Qiagen N.V., with corporate seat in Venlo, (the "Company") in connection with the registration (the "Registration") by the Company with the United States Securities and Exchange Commission (the "SEC") of up to 42,234,783 ordinary shares (the "Shares"), each having a nominal value of EUR 0.01, in the Company’s share capital, to be newly issued by the Company in connection with the Agreement and Plan of Merger (as defined below). I have taken instructions solely from the Company.
2 | Dutch Law |
This opinion is limited to Dutch law as applied by the Dutch courts and published and in effect on the date of this opinion. It is given on the basis that all matters relating to it will be governed by, and that it (including all terms used in it) will be construed in accordance with, Dutch law.
3 | Scope of Inquiry |
For the purpose of this opinion, I have examined the following documents:
3.1 | A photocopy of a notarial copy of the Company’s deed of incorporation and its articles of association as most recently amended on 14 July 2005 according to the trade register extract referred to in paragraph 3.2, both as filed with the chamber of commerce and industry for Limburg-Noord (the "Chamber of Commerce"). |
3.2 | A faxed copy of a trade register extract regarding the Company provided by the Chamber of Commerce and dated today’s date. |
3.3 | A print of an e-mailed copy received by me on 7 May 2007 of the minutes of the Company’s general meeting of shareholders held on 16 June 2004, including a resolution to extend until 16 June 2009 the authorisation of the Company’s supervisory board (raad van commissarissen) to (i) resolve to issue shares up to a maximum of the authorised capital of the Company and to determine the price and further terms and conditions of such share issues, (ii) limit or exclude any pre-emption rights (voorkeursrechten) to which shareholders may be entitled, and (iii) grant rights to subscribe for shares up to a maximum of the authorised capital of the Company. |
3.4 | A print of an e-mailed copy received by me on today’s date of a draft of a registration statement on Form F-4 relating to the Registration, to be filed with the SEC on today’s date (excluding the documents incorporated in the registration statement by reference and any annexes to it) (the "Registration Statement"). |
3.5 | A print of an e-mailed copy received by me on 14 June 2007 of an executed copy of an agreement and plan of merger among the Company, Qiagen North American Holdings, Inc., Qiagen Merger Sub, Inc. and Digene Corporation, dated 3 June 2007 (the "Agreement and Plan of Merger"). |
In addition, I have obtained the following confirmations given by telephone on the date of this opinion:
3.6 | Confirmation from the office of the bankruptcy division (faillissementsgriffie) of the Roermond district court that the Company is not registered as having been declared bankrupt or granted suspension of payments. |
I have not examined any document, and do not express an opinion on any document or any reference to it, other than the documents listed in this paragraph 3. My examination has been limited to the text of the documents and I have not investigated the meaning and effect of any document governed by a law other than Dutch law under that other law.
4 | Assumptions |
For the purpose of this opinion, I have made the following assumptions:
4.1 | All copy documents conform to the originals and all originals are genuine and complete. |
4.2 | Each signature is the genuine signature of the individual concerned. |
4.3 | Any minutes and extracts from minutes referred to in paragraph 3 are a true record of the proceedings described in them in duly convened, constituted and quorate meetings and the resolutions set out in those minutes and any written resolutions referred to in paragraph 3 (i) were validly passed and remain in full force and effect without modification, and (ii) comply with the requirements of reasonableness and fairness (redelijkheid en billijkheid) under Dutch law. Any confirmations referred to in paragraph 3 are true. |
4.4 | The issue by the Company of the Shares will have been validly authorised in accordance with the Company’s articles of association at the time of authorisation. |
4.5 | Any pre-emption rights in respect of the issue of the Shares will have been observed or validly excluded in accordance with the Company’s articles of association at the time of exclusion. |
4.6 | The nominal amount of the Shares and any agreed share premium will have been validly paid. |
4.7 | The Company’s authorised share capital (maatschappelijk kapitaal) at the time of issue will be sufficient to allow for the issue of the Shares. |
4.8 | The Shares will have been (i) issued in the form and manner prescribed by the Company’s articles of association at the time of issue, and (ii) otherwise offered, issued and accepted by their subscribers in accordance with all applicable laws (including, for the avoidance of doubt, Dutch law and including, without limitation, (a) that the Shares are offered in the Netherlands only in accordance with the Financial Markets Supervision Act (Wet op het financieel toezicht, the "FMSA") and (b) that insider trading (voorwetenschap) rules under the FMSA are complied with)). |
4.9 | The Registration Statement has been or will have been filed with the SEC in the form referred to in paragraph 3. |
5 | Opinion |
Based on the documents and confirmations referred to and the assumptions in paragraphs 3 and 4 and subject to the qualifications in paragraph 6 and to any matters not disclosed to me, I am of the following opinion:
5.1 | When issued, the Shares will have been validly issued in accordance with Dutch law and fully paid. The holders of the Shares will not be liable for the Company’s obligations, except in the case of abuse of the Company’s legal personality and other exceptional circumstances. |
6 | Qualifications |
This opinion is subject to the following qualifications:
6.1 | This opinion is subject to any limitations arising from bankruptcy, insolvency, liquidation, moratorium, reorganisation and other laws of general application relating to or affecting the rights of creditors. |
6.2 | The trade register extract referred to in paragraph 3 does not provide conclusive evidence that the facts set out in it are correct. However, under the 1996 Trade Register Act (Handelsregisterwet 1996), subject to limited exceptions, a company cannot invoke the incorrectness or incompleteness of its trade register registration against third parties who were unaware of it. |
6.3 | The confirmation from the office of the bankruptcy division referred to in paragraph 3 does not provide conclusive evidence that the Company has not been declared bankrupt or granted suspension of payments. |
7 | Reliance |
This opinion is solely for the purpose of the Registration. It is not to be transmitted to anyone nor is it to be relied upon for any other purpose or quoted or referred to in any public document or filed with anyone without my written consent except that (i) it may be filed with the SEC as an exhibit to the Registration Statement and (ii) it may be referred to under the caption "Legal Matters" in the Registration Statement (but I do not admit that I am a person whose consent for that filing and reference is required under Section 7 of the United States Securities Act of 1933, as amended).
Yours faithfully,
/s/ Joost J.J. Schutte
Joost J.J. Schutte
for De Brauw Blackstone Westbroek N.V.