Exhibit 5.1
Our ref | RDS/688087-000008/15657654v3 |
Direct tel | +852 2971 3046 |
richard.spooner@maples.com |
JD.com, Inc.
20th Floor, Building A, No. 18 Kechuang 11 Street
Yizhuang Economic and Technological Development Zone
Daxing District, Beijing 101111
People’s Republic of China
3 December 2019
Dear Sirs
JD.com, Inc.
We have acted as Cayman Islands legal advisers to JD.com, Inc. (the “Company”) in connection with the Company’s registration statement onForm F-3, including all amendments or supplements thereto (the “Registration Statement”), filed with the Securities and Exchange Commission (the “Commission”) under the U.S. Securities Act of 1933, as amended to date relating to the Company’s proposed offering of debt securities to be issued by the Company under the Indenture (as defined below) (the “Notes”).
We are furnishing this opinion as Exhibit 5.1 to the Registration Statement.
1 | Documents Reviewed |
For the purposes of this opinion, we have reviewed originals, copies or final drafts of the following documents:
1.1 | The certificate of registration by way of continuation dated 16 January 2014 issued by the Registrar of Companies in the Cayman Islands and the certificate of incorporation on change of name dated 16 January 2014 issued by the Registrar of Companies in the Cayman Islands. |
1.2 | The amended and restated memorandum and articles of association of the Company as adopted by a special resolution passed on 6 March 2014 and effective immediately prior to completion of the Company’s initial public offering of its Class A Ordinary Shares represented by American Depositary Shares (the “Memorandum and Articles”). |
1.3 | The written resolutions of the board of directors of the Company dated 5 November 2019 (the “Resolutions”) and the corporate records of the Company maintained at its registered office in the Cayman Islands. |
1.4 | A certificate from a director of the Company a copy of which is attached to this opinion letter (the “Director’s Certificate”). |
1.5 | A certificate of good standing with respect to the Company issued by the Registrar of Companies dated 24 October 2019 (the “Certificate of Good Standing”). |
1.6 | The Registration Statement. |
1.7 | The indenture governing the Notes, dated as of 29 April 2016 (the “Original Indenture”), as amended by the Second Supplemental Indenture to be dated on or about 13 December 2019 (the “Second Supplemental Indenture”, together with the Original Indenture, the “Indenture”) to be entered into by and between the Company and The Bank of New York Mellon, as trustee (the “Trustee”). |
2 | Assumptions |
The following opinions are given only as to, and based on, circumstances and matters of fact existing and known to us on the date of this opinion letter. These opinions only relate to the laws of the Cayman Islands which are in force on the date of this opinion letter. In giving these opinions we have relied (without further verification) upon the completeness and accuracy of the Director’s Certificate and the Certificate of Good Standing. We have also relied upon the following assumptions, which we have not independently verified:
2.1 | Copy documents or drafts of documents provided to us are true and complete copies of, or in the final forms of, the originals. |
2.2 | The genuineness of all signatures and seals. |
2.3 | The Notes are, or will be, legal, valid, binding and enforceable against all relevant parties in accordance with their terms under the laws of the State of New York (the “Relevant Law”) and all other relevant laws (other than, with respect to the Company, the laws of the Cayman Islands). |
2.4 | The capacity, power, authority and legal right of all parties under all relevant laws and regulations (other than, with respect to the Company, the laws of the Cayman Islands) to enter into, execute, unconditionally deliver and perform their respective obligations under the Notes. |
2.5 | There is nothing under any law (other than the law of the Cayman Islands) which would or might affect the opinions set out below. Specifically, we have made no independent investigation of the Relevant Law. |
3 | Opinion |
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:
3.1 | The Company has been duly registered by way of continuation as an exempted company with limited liability and is validly existing and in good standing with the Registrar of Companies under the laws of the Cayman Islands. |
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3.2 | The execution, issuance, delivery and performance of the Notes have been duly authorised by and on behalf of the Company, and upon the execution, issuance and unconditional delivery of the Notes by a Principal Officer (as defined in the Resolutions) for and on behalf of the Company, the Notes will have been duly executed, issued and delivered on behalf of the Company and will constitute the legal, valid and binding obligations of the Company enforceable in accordance with their terms. |
3.3 | The statements under the caption “Taxation” in the prospectus forming part of the Registration Statement are accurate in so far as such statements are summaries of or relate to Cayman Islands law, and such statements constitute our opinion. |
4 | Qualifications |
The opinions expressed above are subject to the following qualifications:
4.1 | The obligations assumed by the Company under the Notes will not necessarily be enforceable in all circumstances in accordance with their terms. In particular: |
(a) | enforcement may be limited by bankruptcy, insolvency, liquidation, reorganisation, 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) | some claims may become barred under relevant 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 courts of the Cayman Islands have 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 courts of the Cayman Islands 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) | arrangements that constitute penalties will not be enforceable; |
(g) | enforcement may be prevented by reason of fraud, coercion, duress, undue influence, misrepresentation, public policy or mistake or limited by the doctrine of frustration of contracts; |
(h) | provisions imposing confidentiality obligations may be overridden by compulsion of applicable law or the requirements of legal and/or regulatory process; |
(i) | the courts of the Cayman Islands may decline to exercise jurisdiction in relation to substantive proceedings brought under or in relation to the Notes in matters where they determine that such proceedings may be tried in a more appropriate forum; |
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(j) | we reserve our opinion as to the enforceability of the relevant provisions of the Notes to the extent that they purport to grant exclusive jurisdiction as there may be circumstances in which the courts of the Cayman Islands would accept jurisdiction notwithstanding such provisions; |
(k) | a company cannot, by agreement or in its articles of association, restrict the exercise of a statutory power and there is doubt as to the enforceability of any provision in the Notes whereby the Company covenants to restrict the exercise of powers specifically given to it under the Companies Law (2018 Revision) of the Cayman Islands, including, without limitation, the power to increase its authorised 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; and |
(l) | if the Company becomes subject to Part XVIIA of the Companies Law, enforcement or performance of any provision in the Transaction Documents which relates, directly or indirectly, to an interest in the Company constituting shares, voting rights or director appointment rights in the Company may be prohibited or restricted if any such relevant interest is or becomes subject to a restrictions notice issued under the Companies Law. |
4.2 | To maintain the Company in good standing with the Registrar of Companies under the laws of the Cayman Islands, annual filing fees must be paid and returns made to the Registrar of Companies within the time frame prescribed by law. |
4.3 | The obligations of the Company may be subject to restrictions pursuant to United Nations sanctions as implemented under the laws of the Cayman Islands and/or restrictive measures adopted by the European Union Council for Common Foreign and Security Policy extended to the Cayman Islands by the Order of Her Majesty in Council. |
4.4 | A certificate, determination, calculation or designation of any party to the Notes as to any matter provided therein might be held by a Cayman Islands court not to be conclusive final and binding if, for example, it could be shown to have an unreasonable or arbitrary basis, or in the event of manifest error. |
4.5 | We reserve our opinion as to the extent to which the courts of the Cayman Islands would, in the event of any relevant illegality or invalidity, sever the relevant provisions of the Notes and enforce the remainder of the Notes or the transaction of which such provisions form a part, notwithstanding any express provisions in the Notes in this regard. |
4.6 | We express no opinion as to the meaning, validity or effect of any references to foreign (i.e.non-Cayman Islands) statutes, rules, regulations, codes, judicial authority or any other promulgations and any references to them in the Notes. |
We express no view as to the commercial terms of the Notes or whether such terms represent the intentions of the parties and make no comment with regard to warranties or representations that may be made by the Company.
We express no opinion with respect to any direct or indirect acquisition, disposal or exercise of rights by the Company of or in respect of any interest in any property governed by the laws of or situated in the Cayman Islands.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our name under the headings “Enforceability of Civil Liabilities” and “Legal Matters” and elsewhere in the prospectus included in the Registration Statement. In giving such consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the U.S. Securities Act of 1933, as amended, or the Rules and Regulations of the Commission thereunder.
Yours faithfully
Maples and Calder (Hong Kong) LLP
Encl
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