Exhibit 5.1
| Re: |
|
Digital Angel Corporation.
Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as counsel to Digital Angel Corporation, a Delaware corporation (the
“Company”),
in connection with the filing of the above-referenced registration statement (the
“Registration
Statement”) with the Securities and Exchange Commission (the
“Commission”), under the Securities
Act of 1933, as amended (the
“Securities Act”). The Registration Statement relates to the issuance
and sale, from time to time, on an immediate, continuous or delayed basis pursuant to the
Commission’s Rule 415, of up to $4,000,000 of an indeterminate number or aggregate principal amount
of
the Company’s (i) common stock, par value $.01 per share (
“Common Stock”), (ii) preferred stock,
par value $10.00 per share (
“Preferred Stock”), (iii) warrants to purchase shares of Common Stock
or Preferred Stock (
“Warrants”), and (iv) units consisting of Common Stock, Preferred Stock and
Warrants in any combination (
“Units” and (i) through (iv) collectively, the
“Securities”).
This opinion letter is rendered pursuant to Item 601(b)(5) of the Commission’s Regulation S-K
and no opinion is expressed herein as to any matter pertaining to the contents of the Registration
Statement, other than as to the validity of the Securities.
In our capacity as such counsel, we have examined the
Certificate of Incorporation of the
Company, as amended, the
Bylaws of
the Company, as amended, records of proceedings of the Board of
Directors, or committees thereof, and of the stockholders of
the Company deemed by us to be
relevant to this opinion letter, and the Registration Statement. We have also examined such other
documents, including certificates of officers of
the Company, certificates of public officials, and
such other records and documents as we have deemed appropriate for the purpose of expressing the
opinions set forth herein. We have also made such further legal and factual examinations and
investigations as we deemed necessary for purposes of expressing the opinions set forth herein.
As to certain factual matters relevant to this opinion letter, we have relied conclusively on
originals or copies, certified or otherwise identified to our satisfaction, of such records,
agreements, documents and instruments, including certificates or comparable documents of officers
of
the Company and of public officials, as we have deemed appropriate as a basis for the opinions
hereinafter set forth. Except to the extent expressly set forth herein, we have made no independent
investigations with regard to matters of fact, and, accordingly, we do not express any opinion as
to matters that might have been disclosed by independent verification.
In our examination of the relevant documents, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity, accuracy and completeness of
all documents submitted to us, the authenticity of all original documents and the conformity to
authentic original documents of all documents submitted to us as copies (including email and
telecopy versions).
In connection with each of the opinions set forth below, we have also assumed that, at or
prior to the time of issuance of any of the Securities, (i) the Board of Directors of
the Company
has taken all necessary corporate action to authorize the issuance and sale of such Security,
including the adoption of a Certificate of Amendment for any series of Preferred Stock in
accordance with the applicable provisions of the Delaware General Corporation Law, and such
authorization has not been modified or rescinded, (ii) the Commission has declared the Registration
Statement effective and such effectiveness has not been terminated or rescinded, (iii) an
appropriate prospectus supplement with respect to such Security has been prepared, delivered, and
filed in compliance with the Securities Act and the applicable rules and regulations thereunder,
and (iv) any legally required consents, approvals, authorizations and other orders of any
governmental authority or lender have been obtained. We have further assumed that the terms of the
Securities have been established in conformity with
the Company’s
Certificate of Incorporation, as
amended and
Bylaws, as amended and that none of the terms of any Security, the issuance and
delivery of such Security, nor the compliance by
the Company with the terms of such Security will
violate any applicable law, rule or regulation, any instrument or agreement then binding on the
Company, or any judicial or regulatory order or decree of any court or governmental body having
jurisdiction over
the Company; provided, however, that issuance of any preferred stock may require
prior lender consent.
Our opinions set forth below are limited to the Delaware General Corporation Law, applicable
provisions of the Constitution of the State of Delaware, and reported judicial decisions
interpreting such Corporation Law and Constitution, and federal laws of the United States to the
extent referred to specifically herein, and we do not express any opinion herein concerning any
other laws. We are not engaged in practice in the state of Delaware; however, we have made such
inquiries as we consider necessary to render the opinions contained herein.
Based on the foregoing and subject to the limitations, qualifications, exceptions and
assumptions set forth herein, it is our opinion that:
1. With respect to any shares of Common Stock offered by
the Company under the Registration
Statement (the
“Offered Common Stock”), when (i) if issued in certificated form, certificates
representing the shares of Offered Common Stock in the form required by Delaware law have been duly
executed, countersigned, registered and delivered to the purchasers of such shares or (ii) in the
case of shares issued in uncertificated form, the shares of Offered Common Stock have been
registered on the books of
the Company, the shares of Offered Common Stock (including any shares of
Common Stock duly issued upon conversion, exchange or exercise of any Offered Preferred Stock or
Offered Warrants), when issued and sold upon payment of the agreed upon consideration for such
shares in accordance with any duly authorized, executed and delivered underwriting, purchase, or
similar agreement, will be duly authorized, validly issued, fully paid and nonassessable, provided
that the consideration for such shares is not less than $.01 per share of Common Stock.
2. With respect to the shares of any series of Preferred Stock offered by
the Company under
the Registration Statement (the
“Offered Preferred Stock”), when (i) a Certificate of Amendment has
been duly filed with the Secretary of State of the State of Delaware, and (ii) (A) if issued in
certificated form, certificates representing the shares of Offered Preferred Stock in the form
required by Delaware law have been duly executed, countersigned, registered and delivered to the
purchasers of such shares or (B) in the case of shares issued in uncertificated form, the shares of
Offered Preferred Stock have been registered on the books of
the Company, the shares of Offered
Preferred Stock (including any shares of Preferred Stock duly issued upon conversion, exchange or
exercise of any Offered Preferred Stock or Offered Warrants), when issued and sold upon payment of
the agreed upon consideration for such shares in accordance with any duly authorized, executed and
delivered underwriting, purchase, or similar agreement, will be duly
authorized, validly issued,
fully paid and nonassessable, provided that the consideration for such shares is not less than
$10.00 per share of Preferred Stock.
3. With respect to any Warrants offered by
the Company under the Registration Statement
(the
“Offered Warrants”), when (i) the Common Stock or Preferred Stock relating to such Offered
Warrants have been duly authorized for issuance, (ii) a Warrant Agreement relating to the Offered
Warrants has
been duly authorized, executed, and delivered by
the Company and the other parties thereto,
and (iii) certificates representing the Offered Warrants have been duly executed, registered and
delivered to the purchasers of such Warrants in accordance with the terms of the applicable Warrant
Agreement, the Offered Warrants, when issued and sold upon payment of the agreed upon consideration
for such Warrants in accordance with the applicable Warrant Agreement and any duly authorized,
executed and delivered underwriting, purchase, or similar agreement, will be duly authorized and
validly issued and will be legally valid and binding obligations of
the Company, enforceable
against
the Company in accordance with their terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or affecting creditors’ rights
generally and by general principles of equity.
4. With respect to any Units offered by
the Company under the Registration Statement (the
“Offered Units”), when (i) the Common Stock, Preferred Stock or Warrants relating to such Offered
Units have been duly authorized for issuance, (ii) a Unit Agreement relating to the Offered Units
has been duly authorized, executed, and delivered by
the Company and the other parties thereto, and
(iii) certificates representing the Offered Units have been duly executed, registered and delivered
to the purchasers of such Units in accordance with the terms of the applicable Unit Agreement, the
Offered Units, when issued and sold upon payment of the agreed upon consideration for such Units in
accordance with the applicable Unit Agreement and any duly authorized, executed and delivered
underwriting, purchase, or similar agreement, will be duly authorized and validly issued and will
be legally valid and binding obligations of
the Company, enforceable against
the Company in
accordance with their terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting creditors’ rights generally and by general
principles of equity.
This opinion letter is provided to
the Company for its use solely in connection with the
transactions contemplated by the Registration Statement and may not be used, circulated, quoted or
otherwise relied upon by any other person or for any other purpose without our express written
consent, except that
the Company may file a copy of this opinion letter with the Commission as an
exhibit to the Registration Statement. The only opinions rendered by us consist of those matters
set forth in those paragraphs numbered 1 through 4 above, and no opinion may be implied or inferred
beyond the opinions expressly stated. Our opinions expressed herein are each made as of the date
hereof, and we undertake no obligation to advise you of any changes in applicable law or any other
matters that may come to our attention after the date hereof that may affect our opinions expressed
herein.
We consent to the filing of this opinion letter as an exhibit to the Registration Statement
and to the use of our name under the heading “Legal Matters” in the Prospectus constituting a part
thereof. In giving such consent, we do not thereby admit 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
Commission thereunder.
