Attached files
| file | filename |
|---|---|
| 8-K - CALADRIUS BIOSCIENCES, INC. | v202889_8k.htm |
| EX-3.1 - CALADRIUS BIOSCIENCES, INC. | v202889_ex3-1.htm |
| EX-1.2 - CALADRIUS BIOSCIENCES, INC. | v202889_ex1-2.htm |
| EX-4.1 - CALADRIUS BIOSCIENCES, INC. | v202889_ex4-1.htm |
| EX-1.1 - CALADRIUS BIOSCIENCES, INC. | v202889_ex1-1.htm |
| EX-4.2 - CALADRIUS BIOSCIENCES, INC. | v202889_ex4-2.htm |
| EX-10.2 - CALADRIUS BIOSCIENCES, INC. | v202889_ex10-2.htm |
| EX-10.1 - CALADRIUS BIOSCIENCES, INC. | v202889_ex10-1.htm |
| EX-99.1 - CALADRIUS BIOSCIENCES, INC. | v202889_ex99-1.htm |
Exhibit
5.1
[Lowenstein
Sandler PC Letterhead]
November
16, 2010
NeoStem,
Inc.
420
Lexington Avenue, Suite 450
New York,
New York 10170
|
Re:
|
Shelf Registration
Statement on Form S-3
|
Ladies
and Gentlemen:
We have
acted as special counsel for NeoStem, Inc., a Delaware corporation (the “Company”), in
connection with the preparation and filing of a Registration Statement on Form
S-3 (File No. 333-166169) (the “Registration
Statement”) with the Securities and Exchange Commission (the “Commission”) under
the Securities Act of 1933, as amended (the “Securities Act”), and
the rules and regulations promulgated thereunder, and declared effective by the
Commission on May 11, 2010, the prospectus, dated May 19, 2010 (the “Prospectus”) and two
prospectus supplements described below, each filed with the Commission pursuant
to Rule 424(b) of the rules and regulations of the Securities Act on November
16, 2010 (each, a “Prospectus
Supplement”).
The first
Prospectus Supplement pertains to an underwritten offering (the
“Underwritten Offering
Prospectus Supplement”) pursuant to the Underwriting Agreement dated the
date hereof between the Company and the underwriters named therein (the "Underwriting
Agreement") and relates to the issuance and sale by the Company of
6,337,980 units (the “Underwritten Units”),
with each Underwritten Unit consisting of one share of the common stock (each,
an “Underwritten
Share”), par value $0.001 per share, of the Company (“Common Stock”) and a
warrant (collectively, the “Underwritten
Warrants”) to purchase 0.50 of a share of Common Stock. The
Underwritten Offering Prospectus Supplement also covers the 3,168,990 shares of
Common Stock issuable from time to time upon exercise of the Underwritten
Warrants (collectively, the “Underwritten Offering
Warrant Shares”).
We
understand that the Underwritten Units are to be sold, as described in the
Registration Statement, the Prospectus and the Underwritten Offering Prospectus
Supplement, pursuant to the Underwriting Agreement filed as Exhibit 1.1 to the
Current Report on Form 8-K to which this opinion is attached as Exhibit
5.1. We further understand that the Underwritten Units will not be
issued or certificated; the Underwritten Shares and the Underwritten Warrants
are immediately separable and will be issued separately, but will be purchased
together in the Underwritten Offering.
The
second Prospectus Supplement (the “Preferred Offering
Prospectus Supplement”) relates to the issuance and sale by the Company
of 10,582,011 units (the “Preferred Offering
Units”), with each Preferred Offering Unit consisting of (i) one share of
Series E 7% Senior convertible Preferred Stock, par value $0.01 per share, of
the Company (the “Preferred Shares”),
(ii) a warrant (collectively, the “Preferred Offering
Warrants”) to purchase 0.25 of a share of Common Stock, and (iii) 0.0155
of a share of Common Stock (collectively, the “Preferred Offering Common
Shares”). The Preferred Offering Prospectus Supplement also
covers the 1,322,486 shares of Common Stock issuable from time to time upon
exercise of the Preferred Offering Warrants (collectively, the “Preferred Offering Warrant
Shares”), and the shares of Common Stock issuable from time to time upon
conversion of redemption of the Preferred Shares (collectively, the “Conversion / Redemption
Shares”).
We
understand that the Preferred Offering Units are to be sold, as described in the
Registration Statement, the Prospectus and the Preferred Offering Prospectus
Supplement, to investors (each, a “Purchaser”) pursuant
to definitive securities purchase agreements entered into among the Company, JGB
Management Inc. and each of the Purchasers, dated as of November 16, 2010 (the
“Securities Purchase
Agreements”), substantially in the form filed as Exhibit 10.1 to the
Current Report on Form 8-K to which this opinion is attached as Exhibit
5.1. We further understand that the Preferred Offering Units will not
be issued or certificated; the Preferred Shares, the Preferred Offering Warrants
and the Preferred Offering Common Shares are immediately separable and will be
issued separately, but will be purchased together in the Preferred
Offering.
In
connection with this opinion, we have examined the Registration Statement, the
Prospectus, the Underwritten Offering Prospectus Supplement and the Preferred
Offering Prospectus Supplement. We also have examined such corporate
records, certificates and other documents and such questions of law as we have
considered necessary or appropriate for the purpose of this
opinion. We have assumed: (A) the genuineness and
authenticity of all documents submitted to us as originals and (B) the
conformity to originals of all documents submitted to us as copies
thereof. As to certain factual matters, we have relied upon
certificates of officers of the Company and have not sought independently to
verify such matters.
Based on
the foregoing, and subject to the assumptions, limitations and qualifications
set forth herein, we are of the opinion that:
1. the
issuance and sale of the Underwritten Units, and the Underwritten Shares and the
Underwritten Warrants included therein, has been duly authorized and, when
issued and sold in the manner described in the Registration Statement, the
Prospectus and the Underwritten Offering Prospectus Supplement and in accordance
with the Underwriting Agreement, the Underwritten Units, and the Underwritten
Shares and the Underwritten Warrants included therein, will be validly issued,
fully paid and non-assessable;
-2-
2. the
Underwritten Offering Warrant Shares have been duly authorized and, when issued
in the manner described in the Registration Statement, the Prospectus and the
Underwritten Offering Prospectus Supplement and in accordance with the terms and
conditions of the Underwritten Warrants (including the due payment of any
exercise price therefor specified in the Underwritten Warrants), the
Underwritten Offering Warrant Shares will be validly issued, fully paid and
non-assessable;
3. the
issuance and sale of the Preferred Offering Units, and the Preferred Shares, the
Preferred Offering Warrants and the Preferred Offering Common Shares included
therein, has been duly authorized and, when issued and sold in the manner
described in the Registration Statement, the Prospectus and the Preferred
Offering Prospectus Supplement and in accordance with the Securities Purchase
Agreements, the Preferred Offering Units, and the Preferred Shares, the
Preferred Offering Warrants and the Preferred Offering Common Shares included
therein, will be validly issued, fully paid and non-assessable;
4. the
Preferred Offering Warrant Shares have been duly authorized and, when issued in
the manner described in the Registration Statement, the Prospectus and the
Preferred Offering Prospectus Supplement in accordance with the terms and
conditions of the Preferred Offering Warrants (including the due payment of any
exercise price therefor specified in the Preferred Offering Warrants), the
Preferred Offering Warrant Shares will be validly issued, fully paid and
non-assessable; and
5. the
Conversion / Redemption Shares have been duly authorized and, when issued in
accordance with the terms and conditions of the Certificate of Designations
applicable to the Preferred Shares, the Conversion / Redemption Shares will be
validly issued, fully paid and non-assessable.
Our
opinion is limited to the federal laws of the United States and to the Delaware
General Corporation Law. We express no opinion as to the effect of
the law of any other jurisdiction. Our opinion is rendered as of the
date hereof, and we assume no obligation to advise you of changes in law or fact
(or the effect thereof on the opinions expressed herein) that hereafter may come
to our attention.
We hereby
consent to the inclusion of this opinion as an exhibit to the Registration
Statement and to the references to our firm therein and in the Prospectus, the
Underwritten Offering Prospectus Supplement and the Preferred Offering
Prospectus Supplement under the caption “Legal Matters.” In giving
our consent, we do not admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act or the rules and
regulations thereunder.
|
Very
truly yours,
|
|
| /s/ | |
|
Lowenstein
Sandler PC
|
-3-