Exhibit 5.1
Your ref | CN ENERGY GROUP. INC. | 10 September 2021 |
Our ref | AJM/SMCK/MY/1069462/0001/S345072v3 |
CN ENERGY GROUP. INC.
2/F, Palm Grove House
P.O. Box 3340
Road Town
Tortola
VIRGIN ISLANDS, BRITISH
Dear Sir / Madam
Re: CN ENERGY GROUP. INC. 中北能源集团有限公司 (the "Company")
We are lawyers licensed and qualified to practice law in the British Virgin Islands. We have acted as British Virgin Islands legal counsel to the Company. We have been asked to issue this legal opinion ("Opinion") to you with regard to the laws of the British Virgin Islands in connection with the Company’s registration statement on Form F-1 (the "Registration Statement"), provided to us as filed with the United States Securities and Exchange Commission under the United States Securities Act 1933, as amended (the "Securities Act") on or around 10 September 2021 in relation to the resale of up to 4,000,000 ordinary shares with no par value in the Company (together, the "Resale Shares") by those shareholders named in the section of the Registration Statement entitled 'Principal and Selling Shareholders' (the "Selling Shareholders").
Capitalised terms used in this Opinion shall have the meanings ascribed to them in this Opinion and/or the Schedules.
1. | SCOPE OF OPINION |
This Opinion is given only on the laws of the British Virgin Islands in force at the date hereof and is based solely on matters of fact known to us at the date hereof. We have not investigated the laws or regulations of any jurisdiction other than the British Virgin Islands (collectively, "Foreign Laws"). We express no opinion as to matters of fact or, unless expressly stated otherwise, the veracity of any representations or warranties given in or in connection the document set out in Schedule 1.
2. | documentS reviewed and ENQUIRIES made |
In giving this Opinion we have undertaken the Searches and reviewed the documents set out in Schedule 1.
3. | ASSUMPTIONS AND QUALIFICATIONS |
This Opinion is given on the basis that the assumptions set out in Schedule 2 (which we have not independently investigated or verified) are true, complete and accurate in all respects. In addition, this Opinion is subject to the qualifications set out in Schedule 3.
4. | Opinions |
Having regard to such legal considerations as we deem relevant, we are of the opinion that:
4.1 | Due incorporation, existence and status |
The Company has been duly incorporated as a BVI business company, limited by shares, under the BVI Business Companies Act 2004 (as amended) (the "Act"), is validly existing and was, at the date of our Searches in good standing with the Registrar of Corporate Affairs in the British Virgin Islands (the "Registrar").
4.2 | Authorised and Issued Shares |
(a) | The Company is authorised to issue an unlimited number of no par value shares, divided into two classes as follows: |
(a) | Ordinary Shares of no par value; and |
(b) | Convertible Preferred Shares of no par value. |
(b) | Based solely on our review of the Register of Members, the Selling Shareholders as recorded in the register of members are deemed to have legal title to the Ordinary Shares in the Company set against their respective name, which have been legally issued and allotted, and are fully paid and non-assessable. |
4.3 | Statements in the Registration Statement |
The statements under the caption "TAXATION—British Virgin Islands Taxation" in the Registration Statement, to the extent that they constitute statements of British Virgin Islands law, are accurate in all material respects and that such statements constitute our opinion.
5. | RELIANCE |
Except as specifically referred to in this Opinion we have not examined, and give no opinion on, any contracts, instruments or other documents (whether or not referred to in, or contemplated by, the document set out Schedule 1). We do not give any opinion on the commercial merits of any transaction contemplated or entered into under or pursuant to the documents set out in Schedule 1.
This Opinion (and any obligations arising out of or in connection with it) is given on the basis that it shall be governed by and construed in accordance with the current law and practice in the British Virgin Islands. By relying on the opinions set out in this Opinion the addressee(s) hereby irrevocably agree(s) that the courts of the British Virgin Islands are to have exclusive jurisdiction to settle any disputes which may arise in connection with this Opinion.
We assume no responsibility to advise any person entitled to rely on this Opinion, or to undertake any investigations, as to any change in British Virgin Islands law (or its application) or factual matters arising after the date of this Opinion, which might affect the opinions set out herein.
This Opinion is issued solely for the purposes of the filing of the Registration Statement and the offering of the Resale Shares by the Selling Shareholders and not in respect of or in connection with any other matter.
We are furnishing this Opinion as exhibit 5.1 to the Registration Statement. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of our name therein. In giving this consent, we do not hereby admit that we are experts within the meaning of Section 11 of the Securities Act or that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the United States Securities and Exchange Commission promulgated thereunder.
Yours faithfully
/s/ Carey Olsen Singapore LLP
Carey Olsen Singapore LLP
Schedule 1
Document Reviewed and ENQUIRIES made
For the purpose of this Opinion, we have reviewed originals, copies, drafts or conformed copies of the following document:
A. | DOCUMENTS |
1. | A copy of the Registration Statement (which term does not include any other document or agreement whether or not specifically referred to therein or attached as an exhibit or schedule thereto). |
2. | The certificate of incorporation of the Company obtained by us pursuant to the Company Search. |
3. | The second amended and restated memorandum and articles of association of the Company, dated 20 April 2020 (the "Memorandum and Articles"). |
4. | A certificate of incumbency relating to the Company issued by Tricor Services (BVI) Limited, dated 1 September 2021. |
5. | A certificate of good standing relating to the Company issued by the Registrar, dated 24 August 2021 (the "Certificate of Good Standing"). |
6. | A copy of the following: |
a. | signed written resolutions of the directors of the Company (the "Directors") dated 15 April 2020 and the signed written resolutions of the members of the Company (the "Members") dated 15 April 2020; |
b. | signed written resolutions of the Directors dated 1 May 2020 and the signed written resolutions of the Members dated 1 May 2020; |
c. | signed written resolutions of the Directors dated 4 September 2020, and |
d. | signed written resolutions of the Directors dated 20 May 2021. |
(together, the "Resolutions").
7. | The Register of Members and the Register of Directors as provided to us by the Company or its advisers on 27 August 2021 and 27 July 2021 respectively. |
8. | A template written transfer form to be executed by each respective Selling Shareholder for the Resale Shares offered by that Selling Shareholder. |
B. | SEARCHES AND ENQUIRIES |
1. | The information revealed by our search of the Company's public records on file and available for public inspection from the Registrar at the time of our search on 10 September 2021 (the "Company Search"), including all relevant forms and charges (if any) created by the Company and filed with the Registrar pursuant to section 163 of the BVI Business Companies Act (the "Act"). |
2. | The public information revealed by our search of the Company on the electronic records of the Civil Division and the Commercial Division of the Registry of the High Court and the Court of Appeal (Virgin Islands) Register, each from 1 January 2000, as maintained on the Judicial Enforcement Management System by the Registry of the High Court of the Virgin Islands, conducted on 10 September 2021 (the "High Court Search" and together with the Company Search, the "Searches"). |
C. | SCOPE |
The documents listed in this Schedule are the only documents and/or records we have examined and the only searches and enquiries we have carried out for the purposes of this Opinion.
SCHEDULE 2
Assumptions
1. | The conformity to the original documents of all copy documents supplied to us (whether in hard or soft copy format). |
2. | The authenticity, accuracy and completeness of all documents supplied to us, whether as originals or copies and of all factual representations expressed in or implied by the documents we have examined. |
3. | The genuineness of all signatures, stamps, initials, seals, dates and markings on documents submitted to us. The signatures, initials and seals on all documents supplied to us are genuine. |
4. | There is no document or other information or matter that has not been provided or disclosed to us, which could affect the accuracy of this Opinion. |
5. | Words and phrases used in any documents that we have reviewed that are not governed by British Virgin Islands law have the same meanings and effect as they would have if those documents were governed by British Virgin Islands law. |
6. | The applicable definitive sale, purchase, transfer or similar agreements or instruments in respect of the sale and purchase of the Resale Shares (the "Resale Documents") will be duly executed and delivered by or on behalf of all parties thereto, and the full power (including both capacity and authority), legal right and good standing of each of the parties to the Resale Documents to execute, date, unconditionally deliver and perform their obligations under the Resale Documents. |
7. | The applicable Resale Documents relating to any Resale Shares to be offered and sold will constitute legal, valid and binding obligations, enforceable in accordance with their terms of each of the parties, and the sale and purchase of the Resale Shares will be in accordance with any applicable Resale Documents and any applicable exchange rules or requirements of the Nasdaq Capital Market. |
8. | The validity and binding effect under the laws of the United States of America of the Registration Statement and that the Registration Statement will be duly filed with and declared effective by the United States Securities and Exchange Commission; and, when published, will be in substantially the same form as that examined by us for purposes of this Opinion. |
SCHEDULE 3
QUALIFICATIONS
1. | To maintain the Company in good standing under the laws of the British Virgin Islands, the Company must inter alias pay annual filing fees to the Registrar, comply with its economic substance requirements and obligations under the Virgin Islands Economic Substance (Companies and Limited Partnerships) Act, 2018 and file a copy of its register of directors with the Registrar. |
2. | The register of members of a British Virgin Island company provides prima facie evidence of the legal ownership of registered shares in a company. No purported creation or transfer of legal title to Resale Shares is effective until the register of members is updated accordingly. However, the register of members may be subject to rectification (for example, in the case of fraud or manifest error). |
3. | The obligations of the Company may be subject to restrictions pursuant to United Nations or other applicable international sanctions as implemented under the laws of the British Virgin Islands. |
4. | We offer no opinion as to any laws other than the laws of the British Virgin Islands, and we have not, for the purposes of this opinion, made any investigation of the laws of any other jurisdiction, and we express no opinion as to the meaning, validity, or effect of references in any document to statutes, rules (including the exchange rules of Nasdaq Capital Market), regulations, codes or judicial authority of any jurisdiction other than the British Virgin Islands. |
5. | The term "non-assessable" means that the holders of fully paid shares in the Company have no liability to the Company, as shareholder, except for any liability expressly provided for in the Memorandum or Articles of Association and any liability to repay a distribution under the Act. |