Attached files
| file | filename |
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| 8-K/A - CURRENT REPORT - TENAX THERAPEUTICS, INC. | oxbt_8ka.htm |
Exhibit 5.1
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OFFICES
2500 Wachovia Capitol Center
Raleigh, North Carolina 27601
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December 12, 2011
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MAILING ADDRESS
P.O. Box 2611
Raleigh, North Carolina
27602-2611
TELEPHONE: (919) 821-1220
FACSIMILE: (919) 821-6800
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Oxygen Biotherapeutics, Inc.
ONE Copley Parkway
Suite 490
Morrisville, NC 27560
Ladies and Gentlemen:
We have acted as counsel for Oxygen Biotherapeutics, Inc., a Delaware corporation (the “Company”), in connection with the preparation of a Registration Statement on Form S-3 (333-165733) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”) on March 26, 2010 and amended by Amendment No. 1 to Registration Statement on Form S-3 on April 7, 2010 (as amended and as may be further amended or supplemented, the “Registration Statement”), which Registration Statement was declared effective by the Commission on April 14, 2010. Pursuant to the Registration Statement, the Company is registering for issuance (i) 7,500 shares of its Series A Convertible Preferred Stock, par value $0.0001 per share (the “Preferred Shares”), which Preferred Shares are convertible into shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), (ii) Common Stock issuable upon conversion of or payment of dividends on the Preferred Shares (the “Conversion Shares”), (iii) warrants to purchase 1,689,192 shares of Common Stock (the “Warrants”), and (iv) Common Stock issuable upon exercise of the Warrants (the “Warrant Shares”).
This opinion is furnished in accordance with the requirements of Item 601(b)(5)(i) of Regulation S-K under the Act.
We have examined (i) the Registration Statement, (ii) the prospectus supplement dated December 8, 2011 (together with the base prospectus contained in the Registration Statement, the “Prospectus”), (iii) that certain placement agency agreement, dated December 8, 2011, by and between the Company and William Blair & Company, L.L.C., as placement agent (the “Placement Agreement”), (iv) the securities purchase agreement dated December 8, 2011 between the Company and each of the purchasers signatory thereto (the “Securities Purchase Agreement”) and (v) originals or copies, certified or otherwise identified to our satisfaction, of such corporate documents, records and proceedings, minutes, consents, actions and resolutions, and matters of law as we have deemed necessary for the purposes of this opinion. In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conforming to originals of all documents submitted to us as certified copies or photocopies, and the authenticity of originals of such latter documents. As to certain factual matters, and without investigation or analysis of any underlying data contained therein, we have also relied on oral or written statements of officers and other representatives of the Company, whom we believe to be responsible, in rendering the opinion set forth below.
Based upon and subject to the foregoing and in reliance thereon, it is our opinion that (i) the Preferred Shares have been duly authorized, and when issued and delivered against payment of the purchase price therefore in accordance with the terms of the Placement Agreement and the Securities Purchase Agreement and upon either (a) the countersigning of the certificates representing the Preferred Shares by a duly authorized signatory of the registrar for the Preferred Shares, or (b) the book entry of the Preferred Shares by the transfer agent for the Preferred Shares, such Preferred Shares will be validly issued, fully paid and nonassessable, (ii) the Conversion Shares have been duly authorized, and when issued and delivered against payment of the purchase price therefore in accordance with the terms of the Placement Agreement and the Securities Purchase Agreement and upon either (a) the countersigning of the certificates representing the Conversion Shares by a duly authorized signatory of the registrar for the Common Stock, or (b) the book entry of the Conversion Shares by the transfer agent for the Common Stock, such Conversion Shares will be validly issued, fully paid and nonassessable, (iii) the Warrants have been duly authorized and when executed and delivered by the Company in accordance with the terms of the Placement Agreement and the Securities Purchase Agreement, such Warrants will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, except as may be limited by the effect of applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and similar laws affecting creditors’ rights generally and the effect of general principles of equity (regardless of whether considered in a proceeding in equity or at law), which may, among other things, deny rights of specific performance, and (iv) the Warrant Shares have been duly authorized, and when issued and delivered against payment of the exercise price therefore in accordance with the Warrants and upon either (a) the countersigning of the certificates representing the Warrant Shares by a duly authorized signatory of the registrar for the Common Stock, or (b) the book entry of the Warrant Shares by the transfer agent for the Common Stock, will be validly issued, fully paid and nonassessable.
We express no opinion as to any matter other than as expressly set forth above, and no opinion, other than the opinion given herein, may be inferred or implied herefrom. This opinion is limited to Delaware General Corporation Law (including the applicable provisions of the Delaware Constitution and reported judicial decisions interpreting these laws), and we express no opinion as to the laws of any other jurisdiction. The opinion expressed herein does not extend to compliance with federal securities laws or state blue sky securities law matters relating to the sale of the Preferred Shares, the Common Stock, the Conversion Shares, the Warrants or the Warrant Shares.
We consent to the filing of this opinion as an exhibit to a Current Report on Form 8-K of the Company filed with the Commission and thereby incorporated by reference in the Registration Statement and to all references to us in the Registration Statement and the Prospectus and any amendments thereto. Such consent shall not be deemed to be an admission that our firm is within the category of persons whose consent is required under Section 7 of the Act or the regulations promulgated pursuant to the Act.
Sincerely yours,
/s/ Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P.
SMITH, ANDERSON, BLOUNT, DORSETT,
MITCHELL & JERNIGAN, L.L.P.