EX-5.1 2 tm2227672d12_ex5-1.htm EXHIBIT 5.1

 

Exhibit 5.1

 

  CLIFFORD CHANCE LLP 
  ADVOCATEN SOLICITORS NOTARIS 
  BELASTINGADVISEURS
  DROOGBAK 1A 
  1013 GE AMSTERDAM
  PO BOX 251 
  1000 AG AMSTERDAM
  TEL +31 20 7119 000 
  FAX +31 20 7119 999
  www.cliffordchance.com

 

To: Pegasus TopCo B.V.  
       Robert-Bosch-Str. 32-36 Our ref:  41-41045269
       72250 Freudenstadt Direct Dial: +31 20 711 9132
       Germany E-Mail: Han.Teerink@cliffordchance.com

 

5 February 2024

 

Issuance of new ordinary shares in the capital of Pegasus TopCo B.V.

 

We have acted as legal counsel (advocaten) in The Netherlands to Pegasus TopCo B.V. of Robert-Bosch-Str. 32-36, 72250 Freudenstadt, Germany (which will be converted pursuant to a Deed of Conversion (as defined below) and renamed SCHMID Group N.V.) (the "Company") for the purpose of, amongst others things, rendering a legal opinion (this "Opinion Letter") as to certain matters of Dutch corporate law and Dutch tax law in connection with the filing of the Registration Statement (as defined below) with the United States Securities and Exchange Commission ("SEC").

 

1.INTRODUCTION

 

1.1Opinion Documents

 

For the purpose of issuing this Opinion Letter, we have reviewed only the documents and performed only the enquiries referred to in Schedule 1 (Documents and Enquiries).

 

1.2Defined Terms

 

1.2.1Capitalised terms used herein without definition shall, unless the context otherwise requires, have the same meanings ascribed to them in the Registration Document.

 

1.2.2Headings in this Opinion Letter are for ease of reference only and shall not affect its interpretation.

 

CLIFFORD CHANCE LLP IS A LIMITED LIABILITY PARTNERSHIP REGISTERED IN ENGLAND AND WALES UNDER NUMBER 0C323571. THE FIRM'S REGISTERED OFFICE AND PRINCIPAL PLACE OF BUSINESS IS AT 10 UPPER BANK STREET, LONDON, E14 5JJ. THE FIRM USES THE WORD "PARTNER" TO REFER TO A MEMBER OF CLIFFORD CHANCE LLP OR AN EMPLOYEE OR CONSULTANT WITH EQUIVALENT STANDING AND QUALIFICATIONS. CLIFFORD CHANCE LLP IS REGISTERED IN THE NETHERLANDS WITH THE COMMERCIAL REGISTER OF THE CHAMBER OF COMMERCE UNDER NUMBER 34360401.

 

FOR OUR (NOTARIAL) THIRD PARTY ACCOUNT DETAILS, PLEASE SEE WWW.CLIFFORDCHANCE.COM/NLREGULATORY

 

 

 

 

1.2.3All references in this Opinion Letter to paragraphs are to paragraphs in this Opinion Letter.

 

1.2.4"Ordinary Shares" means Ordinary shares in the Company’s capital, with a nominal value of EUR 0.01 each.

 

1.2.5"Private Warrant Shares" means the Ordinary Shares to be issued by the Company upon exercise of the private warrants, the terms of which are as described and defined in the Registration Statement.

 

1.2.6"Public Warrant Shares" means the Ordinary Shares to be issued by the Company upon exercise of the public warrants, the terms of which are as described and defined in the Registration Statement.

 

1.2.7"Registered Shares" means the Ordinary Shares as referred to in the respective Deeds of Issue.

 

1.2.8"Relevant Moment" means each time when Registered Shares are issued.

 

1.2.9"Warrant Shares" means the Private Warrant Shares and the Public Warrant Shares.

 

1.3Legal Review

 

We assume no responsibility for and have not investigated or verified: (i) any statements of fact or the reasonableness of any statements of opinion (including statements as to foreign law) contained in the Deeds of Issue and Registration Document, (ii) the appropriateness or accuracy of any disclosures made in the the Deeds of Issue and Registration Document or (iii) the accuracy of any facts, representations or warranties set out in the the Deeds of Issue and Registration Document (with the exception of those matters on which we have specifically and expressly given our opinion) or otherwise disclosed to us in the course of our review. To the extent that the accuracy of such facts, representations and warranties not so investigated or verified and of any facts stated in any of the other documents listed above (or orally confirmed) is relevant to the contents of this Opinion Letter, we have assumed, with your permission, that such facts, representations and warranties were true and accurate when made and remain true and accurate.

 

1.4Applicable Law

 

1.4.1This Opinion Letter relates only to the laws of The Netherlands in force as at the date hereof as applied and interpreted according to present published case-law of the Dutch courts, administrative rulings and authoritative literature. This Opinion Letter does not extend to the laws of any other jurisdiction and no opinion is expressed with regard to the effect of any systems of law (other than the laws of The Netherlands) even in cases where, under Dutch law, any foreign law should be applied and we assume that any applicable law (other than Dutch law) would not affect or qualify our opinion as set out below.

 

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1.4.2For the purpose of this Opinion Letter, where reference is made to the laws of The Netherlands or to The Netherlands in a geographical sense this should be read as:

 

(a)a reference to the laws as in effect in that part of the Kingdom of The Netherlands that is located in Europe (Europese deel van Nederland); and

 

(b)a reference to the geographical part of the Kingdom of the Netherlands that is located in Europe;

 

excluding, for the avoidance of doubt, any overseas nations forming part of the Kingdom of The Netherlands (such as Aruba, Curacao and St Maarten), any overseas special public bodies of the Kingdom of The Netherlands (such as Saba, St. Eustatius and Bonaire) and their respective laws and regulations.

 

1.5Assumptions, Reservations & Limitations

 

This Opinion Letter is given on the basis of the assumptions set out in Schedule 2 (Assumptions) and is subject to the qualifications and reservations set out in Schedule 3 (Reservations). This Opinion Letter is strictly limited to the matters stated in paragraph 2 (Opinion) and does not extend to any other matters.

 

2.OPINION

 

We are of the opinion that:

 

2.1Corporate Existence

 

The Company is duly incorporated and is validly existing as a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) under the laws of The Netherlands. Upon the execution of the Deed of Conversion, it shall be validly existing as a private company with limited liability (naamloze vennootschap).

 

2.2Registered Shares

 

Subject to receipt by the Company of payment in full for the Registered Shares as provided for in the Deeds of Issue, and when issued and accepted in accordance with the Deeds of Issue and the Revised Articles, the Registered Shares shall be validly issued, fully paid and non-assessable.

 

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2.3Registration Document

 

The summary set out in the Registration Document under the heading "Certain Material Dutch Tax Considerations — TopCo Ordinary Shares and TopCo Public Warrants" is a correct description of the principal Dutch tax consequences of the acquisition, holding and disposal of the Ordinary Shares and the Public Warrant Shares.

 

3.LIMITS OF OPINION

 

3.1We express no opinion:

 

(a)except as explicitly stated above, on international law, including (without limitation) the rules of or promulgated under or by any bi- or multi-lateral treaty or treaty organisation (unless directly applicable in The Netherlands or implemented into the laws of The Netherlands);

 

(b)on any competition, anti-trust, state aid, anti-money laundering, diversity, data protection, market abuse, securitisation, financial assistance, regulatory or public procurement laws or on DAC6 compliance;

 

(c)on the tax laws of The Netherlands other than explicitly stated in paragraph 2.3 above;

 

(d)with regard to the effect of any systems of law (other than the laws of the Netherlands) even in cases where, under Dutch law, any foreign law would be applicable and we assume that any applicable law (other than the laws of the Netherlands) would not affect or qualify our opinion as set out below;

 

(e)on whether the future or continued performance of the Company's obligations or the consummation of the transactions contemplated by the Registration Document will not contravene such laws, application or interpretation if altered in the future;

 

(f)on any commercial, accounting, capital adequacy or other non-legal matter or on the ability of the Company to meet its financial or other obligations under the transactions contemplated by the Registration Document and this Opinion Letter does not discuss or confirm the financial merits or the practical feasibility of the obligations from and the transactions envisaged by the Registration Document; or

 

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4.ADDRESSEES AND PURPOSE

 

This Opinion Letter:

 

(a)expresses and describes Netherlands legal concepts in English and not in their original Dutch terms;

 

(b)is issued and may only be relied upon on the express condition that (a) it shall be governed by and that all words and expressions used herein shall be construed and interpreted in accordance with the laws of The Netherlands and (b)  all non-contractual obligations and any other matters arising out of or in connection with this Opinion Letter shall be governed by Dutch law;

  

(c)is, subject as provided in (d) and (e) below, addressed to you and is solely for your benefit and may not, without our prior written consent, be relied upon by the addressees hereof for any purpose other than in connection with the filing of the Registration Document with the SEC;

 

(d)may not be disclosed to or relied upon by any other person, company, entity, enterprise or institution, save that we consent to the filing of this Opinion Letter as an exhibit to the Registration Document and also consent to the reference to Clifford Chance LLP in the Registration Document under the caption "Legal Matters". In giving this consent we do not admit or imply that we are a person whose consent is required under Section 7 of the United States Securities Act of 1933, as amended, or any rules and regulations promulgated thereunder; and

 

(e)is issued on the basis that we do not assume any obligation to notify or to inform you of any developments subsequent to its date that might render its contents untrue or inaccurate in whole or in part at such time.

 

Any liability arising out of or in connection with this opinion letter shall be limited to the amount which is paid out under Clifford Chance LLP’s insurance policy in the matter concerned. No person other than Clifford Chance LLP may be held liable in connection with this opinion letter.

 

/s/ Han Teerink 

Han Teerink 

(advocaat) 

Clifford Chance LLP

 

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SCHEDULE 1

 

DOCUMENTS AND ENQUIRIES

 

1.DOCUMENTS

 

In arriving at the opinions expressed above, we have examined and relied upon the originals, photostatic, facsimile or electronically scanned copies of the following documents:

 

CORPORATE DOCUMENTS & EXTRACTS

 

1.1the deed of incorporation (oprichtingsakte) of the Issuer dated 7 February 2023 (the "Deed of Incorporation") which are the currently effective articles of association according to the extract referred to in 1.3 below (the "Current Articles");

 

1.2a draft of the revised articles of association (statuten) as will be prepared by us of the Company as they will read upon the execution of the duly completed Deed of Conversion (the "Revised Articles");

 

1.3an official extract (uittreksel) dated 22 January 2024 from the Commercial Register of the Dutch Chamber of Commerce (the "Chamber") relating to the registration of the Company under number 89188276 and confirmed to us by the Chamber by telephone on the time and date hereof to have remained unaltered since such date;

 

DEEDS

 

1.4The form of a draft deed of conversion and amendment to the articles of association of the Company as will be prepared by us ("Deed of Conversion");

 

1.5a form of a private deed of issue of Ordinary Shares as will be prepared by us pursuant to which, once duly completed and executed following the execution of the Deed of Conversion, Ordinary Shares (including Warrant Shares) are intended to be issued (each, an "N.V. Deed of Issue"), whereby duly completed and executed N.V. Deeds of Issue are together referred to as the "Deeds of Issue".

 

REGISTRATION DOCUMENT

 

1.6the Company’s draft registration statement on Form F-4 filed in connection with the registration of the Registered Shares in the form reviewed by us (the "Registration Document") dated 5 February 2024;

 

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2.SEARCHES AND ENQUIRIES

 

2.1We have undertaken only the following searches and enquiries in The Netherlands for the purposes of this Opinion Letter:

 

2.1.1an enquiry by telephone was made at the Chamber on 2 February 2024 on or around 15:30 C.E.T. with respect to the Company;

 

2.1.2an online search was performed with the Central Insolvency Register (Centraal Insolventieregister) and the EU Insolvency Register (EU Insolventieregister) referred to in articles 19a, 19b, 222b and 370 paragraph 4 of the Dutch Bankruptcy Act (Faillissementswet) on 2 February 2024 on or around 15:30 C.E.T. with respect to the Company.

 

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SCHEDULE 2

 

ASSUMPTIONS

 

1.ORIGINAL AND GENUINE DOCUMENTATION

 

1.1All signatures (including any electronic signatures) are genuine, all original documents are authentic, and all copy documents supplied to us as photocopies, faxed documents or in portable document format (PDF) or other electronic form are genuine, accurate, complete and conform to the originals.

 

1.2Drafts of documents reviewed by us will be signed in the form of those drafts.

 

1.3The person whose name and electronic signature appear or will appear in the signature block of any document is the person who signed such document.

 

1.4At a Relevant Moment, the relevant Deed of Issue shall have been validly signed and executed on behalf of the Company.

 

For the purposes of paragraphs 1.1 up to and including 1.4 of this Schedule 2:

 

1.3.1   "sign" or "signed" means in relation to a document executed with an electronic signature, the process by which the signatory has applied (or arranged for the application of) such electronic signature to any such document; and

 

1.3.2   "electronic signature" means a signature in electronic form applied to any document that is intended by the signatory to take effect as their signature including without limitation an image of the signatory's handwritten signature, the typed name of the signatory, a signature generated by the signatory with a stylus on a touch pad or screen and any signature created by the signatory in accordance with the processes of an electronic signing platform.

 

2.CORPORATE AUTHORITY OF THE COMPANY

 

2.1At each time of signing of a Deed of Issue, all parties are duly incorporated and validly existing and have the capacity to enter into and to exercise its rights and to perform its obligations under such Deed of Issue and there is nothing under applicable laws that would prevent this.

 

2.2All corporate action required to authorise the entering into, execution and/or performance of the Deeds of Issuance shall have been duly taken prior to each Relevant Moment.

 

2.3(i) the Current Articles are the articles of association currently in force, and (iii) the Revised Articles shall be the articles of association as they will be valid and in full force and effect at each Relevant Moment.

 

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2.4The Company has not been dissolved (ontbonden), granted a suspension of payments (surseance van betaling verleend), declared bankrupt (failliet verklaard), ceased to exist pursuant to a merger (fusie) or a division (splitsing) and has not registered a declaration pursuant to article 370 Dutch Bankruptcy Act (Faillissementswet) and there is no court order imposing a stay period (afkoelingsperiode) pursuant to article 376 Dutch Bankruptcy Act (Faillissementswet) or ratifying a public scheme of arrangement (homologatie van een onderhands openbaar akkoord) pursuant to the Dutch Bankruptcy Act (Faillissementswet). In respect of the Company no insolvency procedures ("EU Insolvency Procedures") listed in Annex A to Council Regulation (EC) No. 2015/848 on insolvency proceedings (as amended) (the "EU Insolvency Regulation") have been declared applicable to the Company by a court in one of the member states of the EU (with the exception of Denmark), other than The Netherlands. There is no registration of an order by the Court of first instance (Rechtbank) of Amsterdam, The Netherlands for the dissolution (ontbinding en vereffening) of the Company. Although not constituting conclusive evidence at 2 February 2024, this assumption is partly supported by the searches and enquiries undertaken by us as listed in Schedule 1 (Documents and Enquiries).

 

REGULATORY COMPLIANCE

 

2.5At each Relevant Moment, Ordinary Shares shall have been admitted for trading on a regulated market, a multilateral trading facility or a comparable trading system outside the European Economic Area as referred to in Article 2:86c (1) Dutch Civil Code.

 

2.6The issuance of Registered Shares, to the extent made in the Netherlands, has been, is and will be made in accordance with Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, as well as any rules promulgated thereunder (the "Prospectus Regulation").

 

2.7The Registration Statement has been or will be declared effective by the SEC in the form reviewed by us.

 

2.8At each Relevant Moment, the authorised share capital (maatschappelijk kapitaal) of the Company shall allow for the issuance of the Registered Shares.

 

2.9(i) any contribution in kind (inbreng anders dan in geld) on the Registered Shares consisting of assets not governed by Dutch law have been validly contributed and transferred to, and have been validly accepted by, the Company in satisfaction of the obligation to pay up such Registered Shares in full in accordance with applicable law (other than Dutch law), (ii) any formalities stipulated by applicable law (other than Dutch law) in respect of any such contribution has been complied with, and (iii) the value of any contribution in kind on the Registered Shares is sufficient to pay up such Registered Shares in full.

 

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3.ARM'S LENGTH COMMERCIAL TERMS

 

The Deeds of Issue are and/or will be for bona fide commercial reasons and any terms are bona fide arm's length commercial terms.

 

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SCHEDULE 3

 

RESERVATIONS

 

1.LIMITATIONS ARISING FROM INSOLVENCY LAW

 

Our opinion is subject to and limited by the provisions of (i) any applicable bankruptcy, insolvency, liquidation, reorganisation, moratorium and other similar laws of general application) relating to or affecting the rights and remedies of creditors (including the doctrine of voidable preference within the meaning of Section 42 et.seq. of the Dutch Bankruptcy Act (Faillissementswet), (ii) any reconstruction, arrangement, compromise, private restructuring plan or any court ordered stay period (afkoelingsperiode) which may come into force before or after the date of this Opinion Letter and (iii) any emergency or resolution measures that may be taken by the Dutch government, any of its agencies or any financial regulator under the Dutch Financial Relations Emergency Act (Noodwet Financieel Verkeer) or under the Dutch Financial Markets Supervision Act (Wet op het financieel toezicht; hereinafter, together with its subordinate and implementing decrees and regulations, the "FMSA");

 

2.ENFORCEABILITY

 

2.1The terms "enforceable", "legal", "valid", "binding" (or any combination thereof) where used above, mean that the obligations assumed by the relevant party under the relevant document are of a type which Netherlands law generally recognises and enforces; they do not mean that these obligations will necessarily be enforced in all circumstances in accordance with their terms; in particular, enforcement before the courts of The Netherlands will in any event be subject to:

 

2.1.1the availability under Netherlands law of defences such as, without limitation, set-off (unless validly waived), fraud, duress, misrepresentation, undue influence, unforeseen circumstances, force majeure, error, abatement and counter-claim;

 

2.1.2the nature of the remedies available in the Dutch courts (and nothing in this Opinion Letter must be taken as indicating that specific performance or injunctive relief would be available as remedies for the enforcement of such obligations);

 

2.1.3the effect of Netherlands provisions imposing prescription or limitation periods (within which suits, actions or proceedings may be brought); and

 

2.1.4the acceptance by the Dutch courts of jurisdiction.

 

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2.2Furthermore, as a matter of the laws of The Netherlands, the reliance on or the enforcement of contractual terms and conditions may under certain circumstances be contrary to the overriding principle of "fairness and reasonableness" (redelijkheid en billijkheid) which governs the relationship between the parties to an agreement and which may affect, inter alia, the reliance on and/or enforcement of contractual provisions such as the following (without any limitation):

 

2.2.1any provision in a contract or document (governed or determined to be governed by the laws of The Netherlands) providing that certain calculations or certifications are to be conclusive and binding; such a provision will not be effective if such calculations or certificates are reached on an arbitrary or unreasonable basis or are fraudulent or manifestly inaccurate and will not necessarily prevent judicial enquiry into the merits of any claim by any party thereto;

 

2.2.2any provision of any such contract or document vesting any party with a discretion or a power to determine a matter in its opinion with binding effect for the other party or parties; Dutch law may require that such discretion or power is exercised reasonably or that such opinion is based on reasonable grounds;

 

2.2.3any provision of any such contract or document stating that no failure or delay in exercising any rights or remedies shall operate as a waiver of such rights or remedies (to the effect that under the proper circumstances a delay or failure to exercise a right within the contractual period of time may operate as a bar to the exercise of such rights or remedies thereafter);

 

2.2.4provisions providing that agreements may only be amended or varied or any provision thereof waived by an instrument in writing may not be effective insofar as they suggest that modifications, amendments or waivers made orally or otherwise could not be effectively agreed upon or granted between or by the parties;

 

2.2.5provisions in an agreement stating that such agreement is the only agreement between the parties may not be effective if one of the parties proves that other agreements validly exist between the parties;

 

furthermore, such principle of fairness and reasonableness may in the proper circumstances impose certain additional duties upon the parties concerned, notwithstanding any provision to the contrary.

 

2.3Insofar as the laws of The Netherlands are concerned:

 

2.3.1provisions in documents relating to the transfer or assignment of rights and obligations may require the execution of further documentation in order to be fully effective;

 

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2.3.2the transfer of rights pursuant to an agreement to a third party does not as such entail transfer of obligations as well; under Netherlands law obligations pursuant to an agreement can in principle only be transferred to a third party with the cooperation of the parties to the agreement; and

 

2.3.3an agreement is only binding upon the parties to such an agreement; consequently, in principle rights can only be granted by parties to the agreement and rights pursuant to an agreement can only be enforced against the parties to the agreement; this will affect indemnities in documents in favour of a party's directors, employees and others.

 

2.4The validity and enforceability of the Company's obligations set out in the Registration Document, may be:

 

(i)affected by sanctions implemented or effective in The Netherlands under the Sanctions Act 1977 (Sanctiewet 1977), the General Customs Act (Algemene Douanewet) or the Economic Offences Act (Wet op de Economische Delicten); and

 

(ii)successfully co2.2 Furthermore, as a matter of the laws of The Netherlands, the reliance on or the enforcement of contractual terms and conditions may under certain circumstances be contrary to the overriding principle of "fairness and reasonableness" (redelijkheid en billijkheid) which governs the relationship between the parties to an agreement and which may affect, inter alia, the reliance on and/or enforcement of contractual provisions such as the following (without any limitation):  ntested by its creditors if such obligations are prejudicial to the interests of such creditors (and the other requirements for voidable preference (Pauliana) within the meaning of Section 3:45 of the Dutch Civil Code are met).

 

2.5The term “non-assessable” has no equivalent in the Dutch language and for purposes of this opinion letter such term should be interpreted to mean that a holder of an Ordinary Share shall not by reason of merely being such a holder be subject to assessment or calls by the Company or its creditors for further payment on such Ordinary Share.

 

3.EFFECT OF INSOLVENCY ON POWERS OF ATTORNEY

 

All powers of attorney (volmachten) or mandates (lastgevingen) (including, but not limited to, powers of attorney or mandates expressed to be irrevocable) granted and all appointments of agents made by the Company, explicitly or by implication, will terminate by law and without notice upon the Company's bankruptcy (faillissement), will become ineffective upon a moratorium of payments (surseance van betaling) being imposed upon the company and, if the laws of The Netherlands are applicable, may be capable of being revoked by the Issuer.

 

4.TAX

 

No opinion is given (or may be inferred or implied) in this Opinion Letter on any real estate transfer tax (overdrachtsbelasting) that may become due by the Company or any holder of an Ordinary Share or a Public Warrant Shares in respect of or in connection with the execution or enforcement of the Deed Of Issue.

 

**

 

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