Attached files
| file | filename |
|---|---|
| EX-1.1 - SULPHCO INC | v209910_ex1-1.htm |
| EX-4.1 - SULPHCO INC | v209910_ex4-1.htm |
| EX-99.1 - SULPHCO INC | v209910_ex99-1.htm |
| EX-10.1 - SULPHCO INC | v209910_ex10-1.htm |
| 8-K - SULPHCO INC | v209910_8k.htm |
Exhibit
5.1
Reply
to: Reno
February
4, 2011
To the
Purchasers identified on
the
signature pages to the Purchase
Agreement
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Re:
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Securities
Purchase Agreement (the "Purchase
Agreement") by and between SulphCo, Inc., a Nevada corporation (the
"Company"), and
the purchasers identified on the signature pages thereto (“Purchasers”),
dated February 1, 2011.
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Ladies
and Gentlemen:
We have acted as special Nevada counsel
to the Company in connection with the execution and delivery of the Purchase
Agreement. Unless otherwise indicated, capitalized terms used herein
shall have the meanings ascribed to them in the Purchase Agreement.
In connection with the preparation of
this opinion letter, and as the basis for the opinions hereinafter set forth, we
have made such investigations of the laws of the State of Nevada as we have
deemed relevant and necessary, and we have examined such documents as we have
deemed relevant and necessary, including copies of the following documents and
records:
(a) An
email copy of the Purchase Agreement (except that we have not reviewed any other
documents or instruments that may be referenced or referred to in the Purchase
Agreement and not attached thereto);
(b) An
email copy of that certain form of Common Stock Purchase Warrant with an
Original Issue Date of February 4, 2011 (the “Warrant”) (except
that we have not reviewed any other documents or instruments that may be
referenced or referred to in the Warrant and not attached thereto);
(c) An
email copy of the Restated Articles of Incorporation of the Company filed with
the Secretary of State of the State of Nevada on December 30, 2003, as amended
by that certain Certificate of Amendment filed with the Secretary of State of
the State of Nevada on March 10, 2008, as further amended by that certain
Certificate of Amendment filed with the Secretary of State of the State of
Nevada on June 20, 2008, and as further amended by that certain Certificate of
Amendment filed with the Secretary of State of the State of Nevada on June 18,
2009 (collectively, the "Articles");
To the
Purchasers listed on the signature
pages to
the Purchase Agreement
February
4, 2011
Page
2
(d) An
email copy of the Amended and Restated Bylaws of the Company duly adopted by the
Board of Directors of the Company on April 18, 2003, as amended by that certain
Amendment to Bylaws duly adopted by the Board of Directors of the Company on
January 17, 2007, as further amended by that certain Amendment to Bylaws duly
adopted by the Board of Directors of the Company on May 29, 2007, as further
amended by that certain Amendment to Bylaws duly adopted by the Board of
Directors of the Company on April 9, 2008, and as further amended by that
certain Amendment to Bylaws duly adopted by the Board of Directors of the
Company on March 27, 2009 (collectively, the "Bylaws");
(e) A
email copy of the Certificate of Existence with Status in Good Standing of the
Company issued by the Secretary of State of the State of Nevada as of January
25, 2011 (the "Good
Standing Certificate”);
(f) An
email copy of the Resolutions of the Board of Directors duly adopted by a
majority of the Board of Directors of the Company during a special meeting of
the Board of Directors held on January 31, 2011, as certified by an officer of
the Company in the Officer’s Certificate attached hereto (the "Resolutions");
and
(g) A
photocopy of the Officer’s Certificate of Stanley W. Farmer, President, Chief
Financial Officer, Treasurer and Secretary of the Company, dated of even date
herewith (the "Officer’s
Certificate"), attached hereto as Exhibit "A" and made a part hereof by
reference.
For purposes of this statement of
opinions, the Purchase Agreement and Warrant are collectively referred to herein
as the “Transaction
Documents.”
As to matters of fact relevant to our
opinion, we have relied upon representations made by the Company in the
Transaction Documents and Officer’s Certificate, and upon certificates of public
officials as to matters stated therein. We have assumed (i) the
genuineness of all signatures; (ii) the legal capacity of natural persons; (iii)
the authenticity and accuracy of all documents submitted to us as originals and
the conformity to originals of all documents submitted to us as copies; (iv)
that the Warrant and all of the shares of the Company’s Common Stock and Warrant
Shares to be issued under the Transaction Documents, as applicable, have been or
will be, as the case may be, issued in accordance with the registration or
qualification provisions of the Securities Act of 1933, as amended, and any
relevant state securities laws, or pursuant to valid exemptions therefrom; and
(v) the adequacy of consideration received by the Company for the issuance and
sale of the Warrant and any of the shares of the Company’s Common Stock and
Warrant Shares.
To the
Purchasers listed on the signature
pages to
the Purchase Agreement
February
4, 2011
Page
3
This opinion letter deals only with the
specific and express legal issues addressed, and does not and is not intended to
address any other legal issues. No opinions may be implied from the
specific and express opinions set forth below, nor may the taking of any actions
on our part be inferred or implied unless specifically and expressly
stated. Based upon the foregoing, and subject to the qualifications,
limitations and exceptions set forth herein, as of the date hereof and under
current interpretations of the laws of the State of Nevada, we are of the
opinion that:
1. The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Nevada.
2. The
Company has all requisite corporate power and authority to (i) execute, deliver
and perform the Transaction Documents, (ii) to issue, sell and deliver the
Shares, the Warrant, and, upon exercise of the Warrant and the payment therefor,
the Warrant Shares pursuant to the Transaction Documents, and (iii) to carry out
and perform its obligations under, and to consummate the transactions
contemplated by, the Transaction Documents.
3. All
corporate action on the part of the Company, its directors and stockholders,
necessary for the authorization, execution and delivery by the Company of the
Transaction Documents, the authorization, issuance, sale and delivery of the
Warrant pursuant to the Purchase Agreement, the issuance and delivery of the
Warrant Shares and the consummation by the Company of the transactions
contemplated by the Transaction Documents has been duly taken. The
Transaction Documents have been duly and validly executed and delivered by the
Company.
4. The
Warrant has been duly authorized and, when issued and paid for in accordance
with the Transaction Documents, will be validly issued, fully paid and
nonassessable. The Warrant Shares have been duly authorized and reserved for
issuance and, when issued and paid for in accordance with the Transaction
Documents, will be validly issued, fully paid and nonassessable.
5. The
execution, delivery and performance by the Company of, and the compliance by the
Company with the terms of, the Transaction Documents and the issuance, sale and
delivery of the Shares, the Warrant and the Warrant Shares pursuant to the
Purchase Agreement do not conflict with or result in a violation of the
Company’s Articles or Bylaws.
6. In
connection with the valid execution, delivery and performance by the Company of
the Transaction Documents, no consent, license, permit, waiver, approval or
authorization of, or designation, declaration, registration or filing with any
Nevada court, governmental or regulatory authority is required.
To the
Purchasers listed on the signature
pages to
the Purchase Agreement
February
4, 2011
Page
4
The foregoing opinions are subject to
the following qualifications, exceptions, assumptions, and
limitations:
A. In
rendering the opinion in Paragraph 1 above, we have relied solely upon the
Articles, Bylaws, Good Standing Certificate and the Officer’s
Certificate.
B. Please
be advised that we are licensed to practice law only in the State of Nevada and
our opinions are therefore limited only to matters of Nevada law and should not
be construed as expressions of opinions as to the laws of any other
jurisdiction.
C. In
rendering the opinions set forth above, please be advised that we are not giving
an opinion as to the Company’s compliance with any state or federal securities
laws, rules or regulations, including Nevada Blue Sky laws and any related
securities registration or filing requirements, in connection with the
Transaction Documents and the offer, sale, issuance or delivery of the Shares,
Warrant or Warrant Shares.
D. In
rending the opinions set forth above, we are not opining on the law of any
county, municipality or other political subdivision or local governmental agency
or authority.
All of the opinions rendered herein are
as of the date hereof. We assume no obligation to update such
opinions to reflect any facts or circumstances that hereafter may come to our
attention or any changes in the law that hereafter may occur. This
opinion is rendered only with regard to the matters set out in the numbered
paragraphs above.
This opinion is limited to the laws of
the State of Nevada. This opinion is given to the addressees solely
for their benefit in connection with the transactions described in the
Transaction Documents and, except for you, may not be relied upon in any respect
by any other person or for any other purpose.
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Very
truly yours,
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/s/ McDonald Carano Wilson
LLP
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McDonald
Carano Wilson LLP
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