As filed with the Securities and Exchange Commission on July 27, 2012
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Natural Grocers by Vitamin Cottage, Inc.
(Exact name of registrant as specified in its charter)
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Delaware
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45-5034161
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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12612 W. Alameda Pkwy.
Lakewood, CO 80228
(303) 986-4600
(Address, including zip code, and telephone number, including area code, of
registrant’s principal executive offices)
NATURAL GROCERS BY VITAMIN COTTAGE, INC. 2012 OMNIBUS INCENTIVE PLAN
(Full title of Plan)
Kemper Isely
Natural Grocers by Vitamin Cottage, Inc.
12612 W. Alameda Pkwy.
Lakewood, CO 80228
(303) 986-4600
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Holland & Hart LLP
555 17th Street, Suite 3200
Denver, Colorado 80202
(303) 295-8000
Attn: Lucy Schlauch Stark
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. (Check one):
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Large accelerated filer
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o
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Accelerated filer
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o
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Non-accelerated filer
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x
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(Do not check if a smaller reporting company)
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Smaller reporting company
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o
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CALCULATION OF REGISTRATION FEE
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Title of Securities to be Registered
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Amount to be
Registered (1)
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Proposed Maximum
Offering
Price Per Share(3)
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Proposed Maximum
Aggregate Offering
Price
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Amount of
Registration
Fee
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Common Stock, $0.001 par value per share, to be issued under the Natural Grocers by Vitamin Cottage, Inc. 2012 Omnibus Incentive Plan
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1,090,151
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(2)
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$
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15
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$
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16,352,265
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$
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1,874
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(1)
Pursuant to Rule 416 of the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall be deemed to cover an indeterminate number of additional shares of common stock of the registrant as may be offered or issued or become issuable to prevent dilution as a result of any stock splits, stock dividends or similar transactions which result in an increase in the number of the registrant’s shares of outstanding common stock.
(2)
Represents the authorized number of shares of common stock as to which equity-based compensation may be granted under the Natural Grocers by Vitamin Cottage, Inc. 2012 Omnibus Incentive Plan.
(3)
Estimated solely for the purpose of determining the registration fee in accordance with Rule 457(h) under the Securities Act based on the high end of the range of estimated initial public offering prices of the registrant’s common stock as set forth in the registrant’s prospectus filed with the Securities and Exchange Commission (the “Commission”) on July 20, 2012.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
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Item 2. Registrant Information and Employee Plan Annual Information
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* The documents containing the information specified in Part I of this registration statement on Form S-8 will be sent or given to participants in Natural Grocers by Vitamin Cottage, Inc. 2012 Omnibus Incentive Plan as specified by Rule 428(b)(1) under the Securities Act. Such documents will not be filed with the Commission, either as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. These documents and the documents incorporated by reference in this registration statement pursuant to Item 3 of Part II of Form S-8, taken together, constitute the prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents, which have been filed with the Commission by Natural Grocers by Vitamin Cottage, Inc. pursuant to the Securities Act or the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as applicable, are hereby incorporated by reference herein, and shall be deemed to be a part of, this registration statement:
(a) the registrant’s latest prospectus filed with the Commission pursuant to Rule 424(b) under the Securities Act on July 25, in connection with the registrant’s registration statement on Form S-1 (File No. 333-182186) originally filed on June 18, 2012, as amended (the “Form S-1 Registration Statement”), which contains audited financial statements for the registrant’s most recently completed fiscal year ended September 30, 2011; and
(b) the description of the registrant’s Common Stock contained in its registration statement on Form 8-A filed with the Commission on July 23, 2012, pursuant to the Exchange Act, which description is incorporated by reference in the Form 8-A registration statement to the registrant’s Form S-1 Registration Statement, and any amendment or report filed for the purpose of further updating such description.
All documents subsequently filed by the registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of this registration statement and prior to the filing of a post-effective amendment that indicates that all securities offered hereby have been sold or that deregisters all securities then remaining unsold shall be deemed to be incorporated by reference herein and to be a part of this registration statement from the date of the filing of such documents. The registrant is not, however, incorporating by reference any documents or portions thereof, whether specifically listed above or furnished to the Commission in the future, that are not deemed “filed” with the Commission or any information furnished pursuant to Items 2.02 or 7.01 of Form 8-K or any exhibits furnished pursuant to Item 9.01 of Form 8-K.
Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained in this registration statement, or in any other subsequently filed document which also is or is deemed to be incorporated by reference in this registration statement, modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
Item 4. Description of Securities.
Not applicable. (The Common Stock is registered under Section 12 of the Exchange Act.)
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The registrant has entered into indemnification agreements with each of its current directors and executive officers that require the registrant to indemnify these individuals to the fullest extent permitted under Delaware law against liabilities that may arise by reason of their service to the registrant, and to advance expenses incurred as a result of any proceeding against them as to which
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they could be indemnified. The registrant also intends to enter into indemnification agreements with its future directors and executive officers.
Section 145 of the Delaware General Corporation Law provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any threatened, pending or completed actions, suits or proceedings in which such person is made a party by reason of such person being or having been a director, officer, employee or agent to the registrant. The Delaware General Corporation Law provides that Section 145 is not exclusive of other rights to which those seeking indemnification may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise. The registrant’s bylaws, as in effect on the date hereof, provide for indemnification by the registrant of its directors, officers and employees to the fullest extent permitted by the Delaware General Corporation Law.
Section 102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for unlawful payments of dividends or unlawful stock repurchases, redemptions or other distributions, or (iv) for any transaction from which the director derived an improper personal benefit. The registrant’s certificate of incorporation, as in effect on the date hereof, provides for such limitation of liability.
The registrant maintains standard policies of insurance under which coverage is provided (a) to its directors and officers against loss arising from claims made by reason of breach of duty or other wrongful act, and (b) to the registrant with respect to payments which may be made by the registrant to such officers and directors pursuant to the above indemnification provisions or otherwise as a matter of law.
The underwriting agreement filed as Exhibit 1.1 to the Form S-1 Registration Statement provides for indemnification of directors and officers of the registrant by the underwriters against certain liabilities.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
A list of exhibits filed with this registration statement is set forth in the Exhibit Index hereto and is incorporated herein by reference.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided
,
however
, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or 15(d) of the Exchange Act that are incorporated by reference in the registration statement;
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof;
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(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Denver, State of Colorado, on July 27, 2012.
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Natural Grocers by Vitamin Cottage, Inc.
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By:
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/s/ Kemper Isely
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Kemper Isely,
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Its Co-President
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Mr. Kemper Isely and Ms. Heather Isely, and each of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto each said attorney-in-fact and agents full power and authority to do and perform each and every act in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or either of them or their or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
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Name
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Title
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Date
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/s/ Kemper Isely
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(Principal Executive Officer, Co-President, Director)
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July 27, 2012
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Kemper Isely
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/s/ Sandra Buffa
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(Principal Financial and Accounting Officer)
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July 27, 2012
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Sandra Buffa
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/s/ Zephyr Isely
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Director
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July 27, 2012
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Zephyr Isely
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/s/ Heather Isely
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Director
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July 27, 2012
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Heather Isely
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/s/ Elizabeth Isely
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Director
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July 27, 2012
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Elizabeth Isely
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/s/ Michael T. Campbell
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Director
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July 27, 2012
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Michael T. Campbell
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5
EXHIBIT INDEX
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Exhibit
No.
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Exhibit Description
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4.1
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Natural Grocers by Vitamin Cottage, Inc. 2012 Omnibus Incentive Plan (incorporated by reference to Exhibit 10.16 to Amendment No. 2 to the registrant’s Registration Statement on Form S-1 (File No. 333-182186) filed on July 5, 2012).
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4.2
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Form of Notice of Grant of Stock Unit Award.
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5.1
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Opinion of Holland & Hart LLP as to the legality of the securities being registered hereby.
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23.1
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Consent of KPMG LLP.
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23.2
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Consent of Holland & Hart LLP (contained in its opinion filed herewith as Exhibit 5.1).
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24.1
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Power of Attorney (included on the signature page to this registration statement).
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EXHIBIT 4.2
FORM OF NOTICE OF GRANT OF STOCK UNIT AWARD
VITAMIN COTTAGE, INC.
2012 OMNIBUS INCENTIVE PLAN
FOR GOOD AND VALUABLE CONSIDERATION, Natural Grocers by Vitamin Cottage, Inc. (the “Company”) hereby grants, pursuant to the provisions of the Company’s Omnibus Incentive Plan, as may be amended from time to time (the “Plan”), to the Participant designated in this Notice of Grant of Stock Unit Award (the “Notice”) the number of Stock Units set forth in the Notice representing the right to receive shares of the common stock of the Company (or cash equivalent) in the future subject to the terms, conditions and restrictions as outlined below in this Notice and the additional provisions set forth in the attached Terms and Conditions of Stock Unit Award (the Notice and the Terms and Conditions referred to collectively as the “Agreement”).
Participant: [ ]
Grant Date: [ ]
# of Stock Units: [ ]
Vesting Schedule:
Settlement:
Vested Stock Units shall be settled
[ ]
% in cash and
[ ]
% in stock, with each vested Stock Unit being equivalent to one Share.
Dividend Equivalents:
The Stock Units shall not carry any right to dividend equivalents.
By signing below, the Participant agrees that this Stock Unit Award is granted under and governed by the terms and conditions of the Agreement and the Plan.
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PARTICIPANT
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NATURAL GROCERS
by VITAMIN COTTAGE, INC.
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By:
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Date:
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Title:
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Date:
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TERMS AND CONDITIONS OF STOCK UNIT AWARD
These Terms and Conditions of Stock Unit Award relate to the Notice of Grant of Stock Unit Award attached hereto (the “Notice”, and collectively with these Terms and Conditions, the “Agreement”), by and between Natural Grocers by Vitamin Cottage, Inc. (the “Company”) and the Participant designated in the Notice.
The Committee has approved an award to the Participant under the Company’s Omnibus Incentive Plan, as amended from time to time (the “Plan”) of the number of Stock Units set forth in the Notice representing the right to receive a corresponding number of shares of the Company’s common stock (“Shares”) in the future subject to the terms, conditions and restrictions set forth in the Agreement, and conditioned upon the Participant’s acceptance of the provisions set forth in the Agreement within 60 days after the Agreement is presented to the Participant for review. For purposes of the Agreement, any reference to the Company shall include a reference to any Subsidiary or Affiliate.
1.
Grant of Stock Units.
(a)
As of the Grant Date set forth in the Notice, the Company grants to the Participant the number of Stock Units set forth in the Notice. The Stock Units are subject to the restrictions set forth in Section 2 of this Agreement and the applicable provisions of the Plan.
(b)
The Stock Units granted under this Agreement shall be reflected in a bookkeeping account maintained by the Company during the Restricted Period. If and when the Stock Units become vested and the restrictions set forth in Section 2 expire in accordance with the terms of this Agreement, and upon the satisfaction of all other applicable conditions as to the Stock Units, such Stock Units not forfeited pursuant to Section 4 hereof shall be settled as provided in the Notice and otherwise in accordance with the Plan.
(c)
The Company’s obligations under this Agreement shall be unfunded and unsecured, and no special or separate fund shall be established and no other segregation of assets shall be made. The rights of the Participant under this Agreement shall be no greater than those of a general unsecured creditor of the Company. In addition, the Stock Units shall be subject to such restrictions as the Company may deem advisable under the rules, regulations and other requirements of the Securities and Exchange Commission, any stock exchange upon which Shares are then listed, any Company policy and any applicable federal or state securities law.
(d)
Except as otherwise provided in this Agreement or the Plan, settlement of the Stock Units shall occur as soon as practicable after the end of the Restricted Period (as defined below), and upon the satisfaction of all other applicable conditions as to the Stock Units (including the payment by the Participant of all applicable withholding taxes), but in no event later than March 15 of the calendar year following the calendar year in which the Stock Unit vests.
2.
Restrictions.
(a)
The Participant shall have no rights as a stockholder of the Company by virtue of any Stock Unit unless and until such Stock Unit vests and resulting Shares are issued to the Participant:
(b)
None of the Stock Units may be sold, transferred, assigned, pledged or otherwise encumbered or disposed of during the Restricted Period, except as may be permitted by the Plan or as otherwise permitted by the Committee in its sole discretion or pursuant to rules adopted by the Committee in accordance with the Plan.
(c)
Any attempt to dispose of the Stock Units or any interest in the Stock Units in a manner contrary to the restrictions set forth in this Agreement shall be void and of no effect.
3.
Restricted Period and Vesting.
The “Restricted Period” is the period beginning on the Grant Date and ending on the date the Stock
Units, or such applicable portion of the Stock
Units, become vested under the schedule set forth in the Notice or otherwise in accordance with this Agreement. The Stock Units shall become vested and no longer subject to forfeiture under Section 4 upon expiration of the Restricted Period.
4.
Forfeiture.
If during the Restricted Period (i) the Participant incurs a Termination of Service with the Company for any reason, (ii) there occurs a material breach of these Terms and Conditions by the Participant, or (iii) the Participant fails to meet the tax withholding obligations described in Section 5(a) hereof, all rights of the Participant to the Stock Units that have not vested in accordance with the schedule set forth in the Notice or otherwise in accordance with this Agreement as of the date of such event shall terminate immediately and be forfeited in their entirety.
5.
Withholding.
(a)
The Committee shall determine the amount of any withholding or other tax required by law to be withheld or paid by the Company with respect to any income recognized by the Participant with respect to the Stock Units. The Participant shall be required to meet any applicable tax withholding obligation in accordance with the provisions of the Plan and this Agreement.
(b)
Subject to any rules prescribed by the Committee, the Participant shall have the right to elect to meet any withholding requirement (i) by having withheld from this Award at the appropriate time that number of whole Shares whose Fair Market Value is equal to the amount of any taxes required to be withheld with respect to such Award, (ii) by direct payment to the Company in cash of the amount of any taxes required to be withheld with respect to such Award or (iii) by a combination of shares and cash.
6.
Defined Terms.
Capitalized terms used but not defined in this Agreement shall have the meanings set forth in the Plan.
7.
Nonassignability.
The Stock
Units may not be sold, assigned, transferred (other than by will or the laws of descent and distribution, or to an inter vivos trust with respect to which the
Participant is treated as the owner under Sections 671 through 677 of the Code), pledged, hypothecated, or otherwise encumbered or disposed of until the restrictions on such Stock
Units, as set forth in this Agreement, have lapsed or been removed.
8.
Participant Representations.
The Participant hereby represents to the Company that the Participant has read and fully understands the provisions of the Notice, these Terms and Conditions and the Plan and the Participant’s decision to participate in the Plan is completely voluntary. Further, the Participant acknowledges that the Participant is relying solely on his or her own advisors with respect to the tax consequences of this award.
9.
Regulatory Restrictions on the Units.
Notwithstanding any other provision of the Plan, the obligation of the Company to issue Shares in connection with this Award under the Plan shall be subject to all applicable laws, rules and regulations and such approval by any regulatory body as may be required. The Company reserves the right to restrict, in whole or in part, the delivery of Shares pursuant to this Agreement prior to the satisfaction of all legal requirements relating to the issuance of such shares, to their registration, qualification or listing or to an exemption from registration, qualification or listing.
10.
Miscellaneous.
(a)
Notices. All notices, requests, deliveries, payments, demands and other communications which are required or permitted to be given under these Terms and Conditions shall be in writing and shall be either delivered personally or sent by registered or certified mail, or by private courier, return receipt requested, postage prepaid to the parties at their respective addresses set forth herein, or to such other address as either shall have specified by notice in writing to the other. Notice shall be deemed duly given hereunder when delivered or mailed as provided herein.
(b)
Waiver. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any other or subsequent breach.
(c)
Entire Agreement. These Terms and Conditions, the Notice and the Plan constitute the entire agreement between the parties with respect to the subject matter hereof.
(d)
Binding Effect; Successors. This Agreement shall inure to the benefit of and be binding upon the parties hereto and to the extent not prohibited herein, their respective heirs, successors, assigns and representatives. Nothing in this Agreement, express or implied, is intended to confer on any person other than the parties hereto and as provided above, their respective heirs, successors, assigns and representatives any rights, remedies, obligations or liabilities.
(e)
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado.
(f)
Headings. The headings contained herein are for the sole purpose of convenience of reference, and shall not in any way limit or affect the meaning or interpretation of any of the terms or provisions of these Terms and Conditions.
(g)
Conflicts; Amendment. The provisions of the Plan are incorporated in this Agreement in their entirety. In the event of any conflict between the provisions of this Agreement and the Plan, the provisions of the Plan shall control. The Agreement may be amended at any time by written agreement of the parties hereto.
(h)
No Right to Continued Employment. Nothing in this Agreement shall confer upon the Participant any right to continue in the employ or service of the Company or affect the right of the Company to terminate the Participant’s employment or service at any time.
(i)
Further Assurances. The Participant agrees, upon demand of the Company or the Committee, to do all acts and execute, deliver and perform all additional documents, instruments and agreements which may be reasonably required by the Company or the Committee, as the case may be, to implement the provisions and purposes of the Notice and these Terms and Conditions and the Plan.
Exhibit 5.1
July 27, 2012
Board of Directors
Natural Grocers by Vitamin Cottage, Inc.
12612 West Alameda Parkway
Lakewood, Colorado 80228
Re:
Natural Grocers by Vitamin Cottage, Inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as special counsel to Natural Grocers by Vitamin Cottage, Inc., a Delaware corporation (the “
Company
”). We are furnishing this opinion at your request in connection with the filing by the Company of a Registration Statement on Form S-8 (the “
Registration Statement
”) with the United States Securities and Exchange Commission under the Securities Act of 1933, as amended (the “
Securities Act
”), covering the registration of 1,090,151 shares of the Company’s common stock, $0.001 par value per share (the “
Shares
”), for issuance under the Natural Grocers by Vitamin Cottage, Inc. 2012 Omnibus Incentive Plan (the “
Plan
”). This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act, and no opinion is expressed or may be implied herein as to any matter pertaining to the contents of the Registration Statement other than as to the valid issuance of the Shares.
As the basis for the opinion hereinafter expressed, we have examined (i) such matters of fact and questions of law as we have considered appropriate for purposes of this opinion, and (ii) such statutes, including the Delaware General Corporation Law, as amended (the “
DGCL
”), Company corporate records and documents, certificates of officers of the Company and public officials, and other instruments and documents as we deemed relevant or necessary for the purposes of the opinion set forth below, including: an executed copy of the Registration Statement; the Company’s Amended and Restated Articles of Incorporation, as amended to date; the Company’s Amended and Restated Bylaws, as amended to date; the Plan; and resolutions of the Company’s Board of Directors and stockholders relating to the adoption of the Plan and approval of the Registration Statement. We have relied upon the foregoing and upon certificates and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters.
In making our examination of the aforesaid documents and in rendering this opinion, we have assumed: (i) information contained in documents reviewed by us is true, complete and correct; (ii) the genuineness and authenticity of all signatures; (iii) the accuracy and completeness of all documents submitted to us; (iv) the legal capacity of all natural persons; (v) the authenticity of all documents submitted to us as originals; (vi) the conformity to authentic original documents of all documents submitted to us as copies; and (vii) the accuracy, completeness and authenticity of certificates of public officials.
This opinion letter is based as to matters of law solely on the DGCL. We express no opinion herein as to any other laws, statutes, ordinances, rules or regulations.
Based upon, subject to and limited by the foregoing, we are of the opinion that, as of the date hereof, the Shares have been duly authorized by all necessary corporate action on the part of the Company and, following (i) effectiveness of the Registration Statement, (ii) issuance and delivery of the Shares in the manner contemplated by the Plan, and (iii) receipt by the Company of the consideration for the Shares specified in the resolutions adopted by the Board of Directors of the Company, the Shares will be validly issued, fully paid and nonassessable.
This opinion letter has been prepared solely for your use in connection with the Registration Statement and speaks as of the date hereof. We assume no obligation to advise you of any changes in the foregoing subsequent to the delivery of this opinion letter.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement. In giving this consent, we do not thereby admit that we are an “expert” within the meaning of the Securities Act.
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Very truly yours,
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/s/ Holland & Hart LLP
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