Exhibit 5.1
| Avocats | Linklaters LLP 35 Avenue John F. Kennedy P.O. Box 1107 L-1011 Luxembourg Telephone (352) 26 08 1 Facsimile (352) 26 08 88 88 manfred.muller@linklaters.com |
To:
Arrival
1, rue Peternelchen
L-2370 Howald
Grand Duchy of Luxembourg
(the “Addressee” and “Company”)
| 20 September 2021 |
Form S-8 Registration Statement
| 1 | Introduction |
We have acted as Luxembourg legal advisers to Arrival (formerly named Arrival Group), a company incorporated under the laws of the Grand Duchy of Luxembourg as a société anonyme with its registered office at 1, rue Peternelchen, L-2370 Howald, Grand Duchy of Luxembourg, and registered with the Luxembourg Register of Commerce and Companies under number B 248209 in connection with the preparation and filing of a registration statement on form S-8 to be filed with the U.S. Securities and Exchange Commission (the “Commission”) under the U.S. Securities Act of 1933, as amended (the “Registration Statement”) relating to the registration with the Commission of 14,750,826 ordinary shares with a nominal value of EUR 0.10 each of the Company (each an “Ordinary Share” and collectively the “Ordinary Shares”). In our capacity as special Luxembourg counsel of the Company, we have been requested to render an opinion as to certain Luxembourg legal matters relating to the Ordinary Shares currently issued by the Company for the purpose, among others, of the Plan (as defined below) (each a “Plan Existing Share” and collectively the “Plan Existing Shares”) and the Ordinary Shares that may be issued by the Company pursuant to the Plan (as defined below) in the future (each a “Plan Issuable Share” and collectively the “Plan Issuable Shares”).
Capitalised terms used in this opinion shall, unless defined herein, have the meaning as ascribed to them in the Plan.
This communication is confidential and may be privileged or otherwise protected by work product immunity.
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| 2 | Scope of Inquiry |
For the purpose of this opinion, we have reviewed the following documents:
| 2.1 | a copy of the Arrival Share Option Plan 2020, as assumed by the Company pursuant to an exchange deed dated 23 March 2021, as approved by the Board of Directors of the Company on 23 March 2021 and the shareholders of the Company during the extraordinary general meeting of shareholders of 23 March 2021 (the “Plan”); |
| 2.2 | the Registration Statement dated 20 September 2021; |
| 2.3 | a copy of the articles of association of the Company, as last amended by the notarial deed of acknowledgment of capital increase dated 29 July 2021 (the “Articles”); |
| 2.4 | a draft of the resolutions of the directors of the Company approving inter alia the issuance of the Plan Issuable Shares (the “Resolutions”); |
| 2.5 | a form of confirmation by the special attorney of the board of directors of the Company regarding the issuance, if any, of Plan Issuable Shares (the “Director Confirmation”); |
| 2.6 | a form of notarial acknowledgment deed recording the issuance, if any, of Plan Issuable Shares (the “Notarial Deed”); |
| 2.7 | an excerpt of the Luxembourg Register of Commerce and Companies dated 20 September 2021 obtained from the online services of the Luxembourg Business Registers’ official website pertaining to the Company (the “Excerpt”); and |
| 2.8 | a certificate of non-inscription of judicial decisions dated 20 September 2021 obtained from the online services of the Luxembourg Business Registers’ official website pertaining to the Company (the “Certificate”). |
The Plan and the related award agreements thereunder are hereafter referred to as the “Agreements”.
| 3 | Assumptions |
For the purpose of this opinion, we have assumed, and we have not verified independently, the following:
| 3.1 | that each signature (whether manuscript or electronic) is the genuine signature of the individual concerned and was affixed or inserted by such individual concerned or authorised to be inserted in the relevant document by the individual concerned; |
| 3.2 | that copy documents, drafts or the forms of documents provided to us are true copies of, or in the final form of, the originals; |
| 3.3 | the legal capacity and legal right under all relevant laws and regulations of all individuals signing the Agreements or who give information on which we rely; |
| 3.4 | that each person expressed to be a party to the Agreements (other than the Company) is duly incorporated and organised, validly existing under the laws of its jurisdiction of incorporation and/or the jurisdiction of its principal place of business and/or its central administration, and is fully qualified, licenced and empowered to own its assets and carry on its business in each jurisdiction in which it owns assets and carries on business; |
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| 3.5 | that the Agreements will be within the capacity and powers of, and have been, validly authorised, executed and delivered by or on behalf of all relevant parties (other than the Company) and constitute the legal, valid, binding and enforceable obligations of all relevant parties in accordance with their terms under all applicable laws; |
| 3.6 | that all authorisations and consents of any country (other than the Grand Duchy of Luxembourg) which may be required in connection with the execution, delivery and performance of the Agreements have been or will be obtained; |
| 3.7 | that the general meeting of the Company will, to the extent necessary, have renewed its authorisation to the board of directors of the Company to issue shares under the Company’s authorised capital for the purpose of issuance of the Plan Issuable Shares; |
| 3.8 | that the Articles have not been amended and remain in full force and effect without modification; |
| 3.9 | that the Resolutions will be validly taken by the board of directors of the Company prior to any issuance of Plan Issuable Shares; |
| 3.10 | that Notarial Deed(s) will be passed in front of a notary in Luxembourg in order to reflect the increase (if any) of the share capital of the Company by the issue of Plan Issuable Shares (to the extent such issuance is required) within one month of the relevant Director Confirmation; |
| 3.11 | that the Excerpt and the Certificate are correct, complete and up-to-date; |
| 3.12 | that the Resolutions and the Director Confirmation(s) will be adopted in substantially the same form as the drafts reviewed by us and will be true records of the proceedings described therein, that the resolutions set out in the Resolutions will be validly passed prior to any issuance of Plan Issuable Shares and remain in full force and effect without modification; |
| 3.13 | that the Company derives an economic and commercial benefit (intérêt social) from the entering into the Agreements; |
| 3.14 | that there are no provisions of the laws of any jurisdiction outside Luxembourg which would have a negative impact on the opinions we express in this legal opinion. Specifically, we have made no independent investigation of the laws of the State of Delaware or the State of New York; |
| 3.15 | that none of the parties to the Agreements has acted or will act with a view to defraud third parties’ (including creditors’) rights; |
| 3.16 | that the Agreements have the same meaning under the laws by which they are governed as they would have if they were interpreted under Luxembourg law by a Luxembourg court; and |
| 3.17 | that the Company has its central administration, within the meaning of the Luxembourg law of 10 August 1915 on commercial companies, as amended and the centre of its main interests, within the meaning of Regulation (EU) 2015/848 of 20 May 2015 on insolvency proceedings (recast), in Luxembourg. |
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| 4 | Opinion |
Based on the documents referred to in paragraph 2 above, subject to the assumptions made in paragraph 3 and to the qualifications made in paragraph 5 and to any matters or documents not disclosed to us, we are of the following opinion:
| 4.1 | The Company is a public limited liability company (société anonyme) and has been incorporated for an unlimited duration and is validly existing under the laws of Luxembourg. |
| 4.2 | The Plan Existing Shares have been validly issued and fully paid, and the holder of such Plan Existing Shares is not liable, solely because of his or her or its shareholder status, for additional payments to the Company or the Company’s creditors. |
| 4.3 | The Plan Issuable Shares subscribed and issued in accordance with the Agreements, the Articles and the Registration Statement (if and when issued pursuant to the Plan), will be validly issued and fully paid, and the holder of such Plan Issuable Shares will not be liable, solely because of his or her or its shareholder status, for additional payments to the Company or the Company’s creditors. |
| 5 | Qualifications |
The above opinions are subject to the following qualifications:
| 5.1 | This opinion is subject to any limitations arising from bankruptcy, insolvency, liquidation, moratorium, controlled management, general settlement with creditors, recovery, resolution, reorganisation and other laws of general application relating to or affecting the rights of creditors. |
| 5.2 | Our opinion that the Company exists is based on the Articles, the Excerpt and the Certificate. It should be noted that the analysis of the Excerpt is not capable of revealing conclusively whether or not a winding up petition has been presented because notice of a winding up order or winding up resolution passed may not be filed immediately with the Luxembourg Register of Commerce and Companies (Registre de Commerce et des Sociétés à Luxembourg). It should be also noted that the Certificate is not capable of revealing conclusively whether or not a winding up or administration petition or order has been presented or made, a receiver appointed, an arrangement with creditors proposed or approved or any other insolvency proceeding commenced in relation to the Company, as the case may be. Under Luxembourg law, the clerk’s office of the District Court (Tribunal d’arrondissement), sitting in collective proceedings has a statutory (one-month) period to officially inform the Luxembourg Register of Commerce and Companies (Registre de Commerce et des Sociétés à Luxembourg) of the opening of such proceedings. |
| 5.3 | We express no opinion on any accounting, tax or regulatory matters, and we express no opinion on any documents referred to in the Agreements or the Registration Statement, but not specifically examined by us. |
| 5.4 | We express no opinion as to any warranties and representations given or made by the Company (expressly or impliedly), save and insofar as the matters warranted are the subject matter of specific opinions in this letter. |
| 5.5 | We express no opinion on the validity or enforceability against all relevant parties of the Agreements or the Registration Statement in accordance with their respective terms under all relevant laws, save and insofar as such validity or enforceability are the subject matter of specific opinions in this letter. |
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| 5.6 | The admissibility in evidence of the Agreements or the Registration Statement before a Luxembourg court or another Luxembourg public authority (autorité constituée) may require a complete or partial translation of such Agreements or the Registration Statement into French or German. |
| 5.7 | If any Agreement or the Registration Statement is (i) voluntarily presented to the registration formalities or (ii) appended to a document that requires mandatory registration, a registration fee (droit d’enregistrement) will be due, the amount of which will depend on the nature of the document to be registered. |
| 5.8 | The Notarial Deed(s) shall be filed by the instrumenting notary with the Luxembourg Register of Commerce and Companies (Registre de Commerce et des Sociétés à Luxembourg) and shall be published in the Luxembourg electronic platform for companies and associations (Recueil Electronique des Sociétés et Associations (RESA)) within one month from the date of the relevant Notarial Deed. |
| 5.9 | Any corporate documents relating to the Company and the publication of which is required by law are not effective (opposable) vis-à-vis third parties prior to their publication in the Luxembourg electronic platform for companies and associations (Recueil Electronique des Sociétés et Associations (RESA)), unless it is evidenced that the relevant third party had knowledge of such documents. Third parties may however rely on such documents which have not yet been published. In relation to any transactions which have occurred before the sixteenth day following the date of publication, such documents are not effective (opposable) vis-à-vis third parties who prove that it was impossible for them to have knowledge of the relevant document. |
| 6 | Luxembourg law |
| 6.1 | This opinion is given on the basis that there will be no amendments to or termination or replacement of any of the documents, authorisations and consents referred to above. |
| 6.2 | This opinion is governed by and based upon Luxembourg laws in existence as at the date hereof and as applied by the Luxembourg courts, published and presently in effect. We undertake no responsibility to notify the Addressee of this opinion of any change in the laws of Luxembourg or their construction or application after the date of this opinion. |
| 6.3 | In this opinion, Luxembourg legal concepts are expressed in English terms and not in their original French terms. The concepts concerned may not be identical to the concepts described by the same English terms as they exist under the laws of other jurisdictions. This opinion may, therefore, only be relied upon under the express condition that any issues of interpretation arising above will be governed by Luxembourg law and be brought before a Luxembourg court. |
| 6.4 | We express no opinion as to any laws other than the laws of Luxembourg. |
| 7 | Reliance |
This opinion is issued solely for the purposes of the filing of the Registration Statement. It may not be relied upon for any other purpose without our written consent. We hereby consent to filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the U.S. Securities Act of 1933, as amended. This Opinion is strictly limited to the matters stated in it.
[Signature page follows]
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Yours faithfully,
Linklaters LLP
by
Manfred Müller
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