EXHIBIT 5.1
[LETTERHEAD OF MAPLES and CALDER]
NetEase.com, Inc.
Suite 1901, Tower E3
The Towers, Oriental Plaza
Dong Cheng District
Beijing 100738
PRC
10th October, 2003
Dear Sirs,
NetEase.com, Inc.
We have acted as Cayman Islands legal advisers to NetEase.com, Inc. (the
"Company") in connection with the Company's registration statement on Form F-3,
including all amendments or supplements thereto (the "Registration Statement"),
filed with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act"), and (i) the registration by the
Company of US$100,000,000 aggregate principal amount of its Zero Coupon
Convertible Subordinated Notes due 15th July, 2023 (the "Notes") issued under an
Indenture, dated as of July 14, 2003 (the "Indenture"), between the Company and
The Bank of New York, as trustee (the "Trustee"), and (ii) the registration of
207,684,320 of the Company's Ordinary Shares, of par value US$0.0001 each (the
"Shares", together with the Notes, the "Offered Securities"), initially issuable
upon conversion of the Notes pursuant to the Indenture.
For the purposes of this opinion, we have reviewed only originals, copies or
final drafts of the following documents:
(a) the certificate of incorporation of the Company dated 6 July 1999 and the
restated memorandum and articles of association of the Company as adopted
on 12 May 2000 and amended by special resolution passed on 5 June, 2003,
supplied by the Company;
(b) a certificate of good standing for the Company dated 29 July, 2003
issued by the Registrar of Companies in the Cayman Islands (the
"Certificate of Good Standing");
(c) the minutes of the meeting of the board of directors of the Company held
on 30 June, 2003;
(d) a certificate from a director of the Company addressed to this firm dated
9th October, 2003 (the "Director's Certificate");
(e) the Registration Statement;
(f) an executed copy of the Indenture; and
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(g) the executed global notes representing the Notes authenticated by the
Trustee.
The documents referred to in paragraphs (e) to (g) above are collectively
referred to as the "Agreements."
Save as aforesaid we have not been instructed to undertake and have not
undertaken any further enquiry or due diligence in relation to the transaction
which is the subject of this opinion. The following opinions are given only as
to and based on circumstances and matters of fact existing at the date hereof
and of which we are aware consequent upon the instructions we have received in
relation to the matter the subject of this opinion and as to the laws of the
Cayman Islands as the same are in force at the date hereof. In giving this
opinion, we have relied upon the completeness and accuracy (and assumed the
continuing completeness and accuracy as at the date hereof) of the Director's
Certificate without further verification and have relied upon the following
assumptions, which we have not independently verified:
(i) Copy documents or drafts of documents provided to us are true and complete
copies of, or in the final forms of, the originals.
(ii) The genuineness of all signatures and seals.
(iii) There is no contractual or other prohibition (other than as may arise by
virtue of the laws of the Cayman Islands) binding on the Company or on any
other party prohibiting it from entering into and performing its
obligations.
The following opinions are given only as to matters of Cayman Islands law and we
have assumed that there is nothing under any other law that would affect or vary
the following opinions.
Based upon the foregoing and subject to the qualifications set out below and
having regard to such legal considerations as we deem relevant, we are of the
opinion that:
1. The Company has been duly incorporated as an exempted company with limited
liability for an unlimited duration and is validly existing under the laws
of the Cayman Islands.
2. The Notes have been duly authorized and, assuming that the Notes have been
duly authenticated by the Trustee in the manner set forth in the Indenture
and delivered against due payment therefore, constitute the legal, valid
and binding obligations of the Company enforceable in the Cayman Islands
in accordance with their terms except and in so far as such enforcement
may be limited as hereinafter set forth.
3. The Shares have been duly authorised. When the Shares are issued upon
conversion of the Notes in accordance with the terms of the Notes and the
Indenture and entered as fully paid on the register of members
(shareholders), the Shares will be legally issued and allotted, fully paid
and non-assessable.
This opinion is subject to the following qualifications and limitations:
(1) The term "enforceable" as used above means that the obligations assumed by
the Company under the relevant instrument are of a type which the courts of the
Cayman Islands enforce. It does not mean that those obligations will necessarily
be enforced in all circumstances in accordance with their terms. In particular:
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(a) enforcement may be limited by bankruptcy, insolvency, liquidation,
reorganization, readjustment of debts or moratorium or other laws of
general application relating to or affecting the rights of creditors;
(b) enforcement may be limited by general principles of equity - for example,
equitable remedies such as specific performance may not be available,
inter alia, where damages are considered to be an adequate remedy;
(c) claims may become barred under the statutes of limitation or may be or
become subject to defences of set-off, counterclaim, estoppel and similar
defences;
(d) where obligations are to be performed in a jurisdiction outside the Cayman
Islands, they may not be enforceable in the Cayman Islands to the extent
that performance would be illegal under the laws of that jurisdiction;
(e) the Cayman Islands court has jurisdiction to give judgment in the currency
of the relevant obligation and statutory rates of interest payable upon
judgments will vary according to the currency of the judgment. If the
Company becomes insolvent and is made subject to a liquidation proceeding,
the Cayman Islands court will require all debts to be proved in a common
currency, which is likely to be the "functional currency" of the Company
determined in accordance with applicable accounting principles. Currency
indemnity provisions have not been tested, so far as we are aware, in the
courts of the Cayman Islands;
(f) obligations to make payments that may be regarded as penalties will not be
enforceable;
(g) the courts of the Cayman Islands may decline to exercise jurisdiction in
relation to substantive proceedings brought under or in relation to the
Notes or the Indenture in matters where they determine that such
proceedings may be tried in a more appropriate forum; and
(h) a company cannot, by agreement, or in its articles of association,
restrict the exercise of a statutory power, and there exists doubt as to
enforceability of any provision in the Notes or the Indenture whereby the
Company covenants not to exercise powers specifically given to its
shareholders by the Companies Law (2003 Revision) of the Cayman Islands,
including, without limitation, the power to increase its authorized share
capital, amend its Memorandum and Articles of Association, or present a
petition to a Cayman Islands court for an order to wind up the Company.
(2) Under the Companies Law (2003 Revision) of the Cayman Islands, the
register of members of a Cayman Islands company is by statute regarded as prima
facie evidence of any matters which the Companies Law (2003 Revision) directs or
authorises to be inserted therein. A third party interest in the shares in
question would not appear. An entry in the register of members may yield to a
court order for rectification (for example, in the event of fraud or manifest
error).
(3) The obligations of the Company under the Notes to any person or body
connected with, resident in, incorporated in or constituted under the laws of
any country (an "Affected Country") which is currently the subject of United
Nations sanctions extended to the Cayman Islands by
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Orders in Council, or exercising public functions in any Affected Country or any
person or body controlled by any of the foregoing or any person acting on behalf
of any of the foregoing or any other person or body as prescribed in such Orders
may be subject to restrictions or limitations pursuant to such Orders.
Except as specifically stated herein, we make no comment with respect to any
representations and warranties which may be made by or with respect to the
Company in any of the documents or other instruments cited in this opinion or
otherwise with respect to the commercial terms of the transactions the subject
of this opinion.
We hereby consent to filing of this opinion as an exhibit to the Registration
Statement and to the reference to our firm under the heading "Exhibits" and
"Legal Matters" in the Prospectus included in the Registration Statement. In the
giving of our consent, we do not thereby 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 Commission thereunder.
Yours faithfully,
/s/ Maples and Calder Asia
MAPLES and CALDER Asia
[LOGO]
10 October, 2003
Maples and Calder Asia
1504 One International Finance Centre
1 Harbour View Street
Hong Kong
Dear Sirs,
NetEase.com, Inc. (the "Company")
I, Denny Lee, being a director of the Company, am aware that you are being asked
to provide a legal opinion (the "Opinion") in relation to certain aspects of
Cayman Islands law. Capitalised terms used in this certificate have the meaning
given to them in the Opinion. I hereby certify that:
1 The Memorandum and Articles of Association of the Company as adopted or
registered on 12th May, 2000 remain in full force and effect and are
unamended save for the amendments made by special resolution passed on
5th June, 2003.
2 The minutes of the meeting of the board of directors held on 30th June,
2003 (the "Meeting") at which the Agreements and the Offered Securities
were approved are a true and correct record of the proceedings of the
Meeting which was duly convened and held, at which a quorum was present
throughout and at which each director disclosed his interest (if any),
in the manner prescribed in the Articles of Association of the Company.
3 The authorised share capital of the Company is US$100,030,000 divided
into 1,000,300,000,000 shares of US$0.0001 par value each. The issued
and outstanding share capital of the Company is 3,126,540,189 shares of
US$0.0001 each, which have been issued and are fully paid up.
4 None of the issued and outstanding shares in the capital of the Company
was issued in violation of the preemptive or similar rights of any
securityholder of the Company.
5 The shareholders of the Company have not restricted or limited the
powers of the directors in any way. There is no contractual or other
prohibition (other than as arising under Cayman Islands law) binding on
the Company prohibiting it from entering into and performing its
obligations under the Agreements and the Offered Securities.
6 The resolutions set forth in the minutes of the Meeting were duly
adopted, are in full force and effect at the date hereof and have not
been amended, varied or revoked in any respect.
7 The directors of the Company at the date of the Meeting/Resolutions and
at the date hereof were and are as follows:
2
DING, Lei
SUN, Tak Dee Teddy
TONG, Michael Sui Bau
LEE, Ting Bun Denny
LEE, Ronald Shing Wun
LEUNG, Man Kit Michael
TONG, Tze Kay Joseph
DING, Donghua
8 Prior to, at the time of, and immediately following execution of the
Agreements the Company was able to pay its debts as they fell due and
entered into the Agreements for proper value and not with an intention
to defraud or hinder its creditors or by way of fraudulent preference.
9 Each director considers the transactions contemplated by the Agreements
and the Notes to be of commercial benefit to the Company and has acted
bona fide in the best interests of the Company, and for a proper
purpose of the Company in relation to the transactions the subject of
the Opinion.
10 To the best of my knowledge and belief, having made due inquiry, the
Company is not the subject of any material legal, arbitral,
administrative or other proceedings in any jurisdiction. Nor have the
directors or shareholders taken any steps to have the Company struck
off or placed in liquidation, nor have any steps been taken to wind up
the Company. Nor has any receiver been appointed over any of the
Company's property or assets.
11 The Company is not a central bank, monetary authority or other
sovereign entity of any state.
I confirm that you may continue to rely on this Certificate as being true and
correct on the day that you issue the Opinion unless I shall have previously
notified you personally (for the attention of Mr. Richard Thorp) to the
contrary.
Signature: /s/ Denny Lee
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Director