Exhibit 5.1
H. MAURICE MITCHELL (1925-2011) WILLIAM H.L. WOODYARD, III (1945-2014)
MICHELE ALLGOOD JOHN K. BAKER SHERRY P. BARTLEY TRAV BAXTER R. T. BEARD, III MICHELLE L. BROWNING C. DOUGLAS BUFORD, JR. BURNIE BURNER1 FREDERICK K. CAMPBELL2 CHARLES B. CLIETT, JR.3 KEN COOK COURTNEY C. CROUCH, III ELISABETH S. DELARGY4 JILL GRIMSLEY DREWYOR5 DOAK FOSTER2 BYRON FREELAND KAREN P. FREEMAN6 ALLAN GATES2 KATHLYN GRAVES HAROLD W. HAMLIN L. KYLE HEFFLEY7 BEN D. JACKSON
| ANTON L. JANIK, JR.8 M. SAMUEL JONES III TONY JUNEAU JOHN ALAN LEWIS D. NICOLE LOVELL WALTER E. MAY BRUCE MCCANDLESS III9 LANCE R. MILLER STUART P. MILLER T. ARK MONROE, III2 JENNIFER R. PIERCE CHRISTOPHER D. PLUMLEE JULIE M. POMERANTZ10 LYN P. PRUITT CHRISTOPHER T. ROGERS J. SCOTT SCHALLHORN BARRY G. SKOLNICK11 DERRICK W. SMITH2 STAN D. SMITH JEFFREY L. SPILLYARDS ZACHARY T. STEADMAN CLAYBORNE S. STONE JEFFREY THOMAS2 MARY CATHERINE WAY WALTER G. WRIGHT, JR. TOD YESLOW6 | 425 WEST CAPITOL AVENUE, SUITE 1800 LITTLE ROCK, ARKANSAS 72201-3525 TELEPHONE 501-688-8800 FAX 501-688-8807 | MELISSA BANDY CRAIG R. COCKRELL 7BRYCE G. CRAWFORD ¹LANA L. FREEMAN ALEX T. GRAY MEGAN HARGRAVES DAVID F. KOEHLER CHRISTOPHER A. MCNULTY KATIE M. PAPASAN BRITTANY H. PETTINGILL BRIAN A. PIPKIN KENDRA PRUITT 6KATHY SHARP MANDY L. STANTON GRAHAM C. TALLEY | COUNSEL 12BENJAMIN D. BRENNER JASON T. BROWNING JOHN S. BRYANT 6ADRIA W. CONKLIN JANE W. DUKE 13GEORGE R. ERNST MORRIL H. HARRIMAN, JR 6MARTHA MCKENZIE HILL 14GINGER HYNEMAN WENDY L. JOHNSON MARGARET A. JOHNSTON 1AMANDA L. MACLENNAN KELLY MARCHAND SCOTT PROVENCHER KAREN WHATLEY
OF COUNSEL W. CHRISTOPHER BARRIER JOSEPH W. GELZINE DONALD H. HENRY 15HERMANN IVESTER ANNE S. PARKER 1LARRY PARKS JOHN S. SELIG MARCELLA J. TAYLOR RICHARD A. WILLIAMS | ||||
WRITER’S DIRECT DIAL 501-688-8800 December 2, 2015 | ||||||||
1 ONLY ADMITTED IN TEXAS 2 ADMITTED IN DISTRICT OF COLUMBIA AND ARKANSAS 3 ADMITTED IN ARIZONA, TEXAS AND ARKANSAS 4 ADMITTED IN TENNESSEE AND TEXAS 5 ADMITTED IN OKLAHOMA, MISSOURI AND ARKANSAS 6 ADMITTED IN TEXAS AND ARKANSAS 7 ADMITTED IN MISSOURI AND ARKANSAS 8 ADMITTED IN COLORADO AND ARKANSAS 9 ADMITTED IN DISTRICT OF COLUMBIA, NEW YORK, AND TEXAS | 10 ADMITTED IN GEORGIA AND TEXAS 11 ADMITTED IN NEW YORK AND PENNSYLVANIA 12 ADMITTED IN CALIFORNIA AND ARKANSAS 13 ADMITTED IN PENNSYLVANIA AND ARKANSAS 14 ADMITTED IN TENNESSEE AND ARKANSAS 15 ADMITTED IN THE U.S. PATENT AND TRADEMARK OFFICE AND ARKANSAS ALL OTHERS ADMITTED ONLY IN ARKANSAS |
Board of Directors
Home BancShares, Inc.
719 Harkrider, Suite 100
Conway, Arkansas 72032
Re: Registration Statement on Form S-3
Gentlemen:
We have acted as counsel to Home BancShares, Inc., an Arkansas corporation (the “Company”), in connection with the preparation and filing with the Securities and Exchange Commission (“SEC”) under the Securities Act of 1933, as amended (the “Securities Act”), of a shelf Registration Statement on Form S-3 (the “Registration Statement”). The Registration Statement is being filed on the date hereof for the registration under the Securities Act of the following securities (the “Securities”), to be offered and sold from time to time in one or more offerings by the Company, as more fully described in the Registration Statement:
(i) | common stock, par value $0.01 per share, of the Company; |
(ii) | preferred stock, par value $0.01 per share, of the Company; |
(iii) | rights of the Company; and |
(iv) | warrants of the Company. |
This opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. § 229.601(b)(5), in connection with the Registration Statement.
Board of Directors
Home BancShares, Inc.
December 2, 2015
Page 2
In so acting we have examined originals, or copies certified or otherwise identified to our satisfaction, of (a) an executed copy of the Registration Statement, including the prospectus filed therewith constituting a part of the Registration Statement and the exhibits to the Registration Statement; (b) those exhibits that have been incorporated by reference to the Registration Statement; (c) the Restated Articles of Incorporation of the Company, as amended; (d) the Restated Bylaws of the Company; (e) certain minutes of and resolutions adopted by the Company’s Board of Directors with respect to the registration of the Securities, and (f) such other documents, records, certificates and other instruments as in our judgment are necessary or appropriate for purposes of this opinion.
In our examination of the aforesaid documents, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the 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. This opinion letter is given, and all statements herein are made, in the context of the foregoing.
This opinion letter is based as to matters of law solely on the laws of the State of Arkansas and the federal laws of the United States. We express no opinion herein as to any other laws, statutes, ordinances, rules or regulations.
We have assumed that (i) the Securities to be offered by the Company will have been specifically authorized for issuance by the Company’s Board of Directors; (ii) any Securities issuable upon conversion, exchange, or exercise of any Securities being offered will have been duly authorized, created, and, if appropriate, reserved for issuance upon such conversion, exchange, or exercise; (iii) the Registration Statement will have been deemed effective upon filing of the Registration Statement with the SEC or will have been otherwise declared effective by an appropriate order entered by the SEC; (iv) a prospectus supplement will have been filed with the SEC describing the Securities offered thereby; (v) all Securities will be issued and sold in compliance with applicable federal and state securities laws and solely in the manner stated in the Registration Statement and the applicable prospectus supplement; (vi) a definitive purchase, underwriting, guarantee, or similar agreement with respect to the Securities will have been duly authorized and validly executed and delivered by the Company and the other parties thereto; and (vii) the terms of the Securities will not violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company, and will comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company.
With respect to the issuance and sale of any capital stock, we have assumed that, at the time of issuance and sale, a sufficient number of shares of common and/or preferred stock are authorized and reserved or available for issuance and that the consideration for the issuance and sale of the capital stock will consist of money paid, labor done or property actually received, as approved by the Board of Directors of the Company or a committee thereof, and that such consideration will be no less than the par value of the capital stock. We have also assumed that
Board of Directors
Home BancShares, Inc.
December 2, 2015
Page 3
(i) with respect to Securities being issued upon conversion of any convertible preferred stock, the applicable convertible preferred stock will be duly authorized, validly issued, fully paid and nonassessable; and (ii) with respect to any Securities being issued upon exercise of any warrants, the applicable warrants will be valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, rehabilitation, moratorium, fraudulent conveyance, marshalling, or other laws relating to or affecting creditors’ rights and remedies generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).
Based upon, subject to and limited by the foregoing, we are of the opinion that:
1. When issued upon the terms and conditions set forth in the Registration Statement and upon approval of the issuance and sale of the Securities consisting of capital stock by the Board of Directors of the Company, such Securities will be validly issued, fully paid and nonassessable.
2. With respect to any rights, when the terms of the rights and of their issuance and sale have been duly authorized by the Company, the applicable rights agreement has been duly authorized, executed and delivered by the parties thereto, and such rights have been duly executed and delivered in accordance with the applicable rights agreement and issued and sold as contemplated in the Registration Statement and any applicable prospectus supplement thereto, such rights will constitute valid and binding obligations of the Company.
3. With respect to any warrants, when (i) the Board of Directors of the Company has taken all necessary corporate action to approve the issuance and terms of such warrants, the terms, execution and delivery of any warrant agreement relating to the warrants, the terms of the offering thereof and related matters; (ii) the warrant agreement has been duly authorized and validly executed and delivered; and (iii) such warrants have been duly executed, attested, issued and delivered by duly authorized officers of the Company in accordance with the provisions of the applicable warrant agreement and the applicable definitive purchase, underwriting or similar agreement approved by the Board of Directors of the Company, upon payment of the consideration provided for therein, such warrants will constitute valid and binding obligations of the Company.
Our opinion represents the reasoned judgment of Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., as to certain matters of law based upon facts presented to us or assumed by us and should not be considered or construed as a guaranty. Our opinion is subject to future changes in law or fact, and we disclaim any obligation to advise you of or update this opinion for any changes of applicable law or facts that may affect matters or opinions set forth herein.
Board of Directors
Home BancShares, Inc.
December 2, 2015
Page 4
This opinion letter has been prepared solely for your use in connection with the filing of 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 and to the reference to us under the caption “Legal Matters” in the prospectus constituting part of the Registration Statement. In giving such consent, we do not thereby 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 of the SEC promulgated thereunder.
Very truly yours,
/s/ Mitchell, Williams, Selig,
Gates & Woodyard, P.L.L.C.
MITCHELL, WILLIAMS, SELIG,
GATES & WOODYARD, P.L.L.C.