applicable requirements of the West Virginia Business Corporation Act (the “WVBCA”), have been duly executed, authenticated (if required), issued and delivered as contemplated by the Registration Statement and any supplement to the Prospectus (a “Prospectus Supplement”) relating to such offering or a report filed by the Company with the Securities and Exchange Commission (“SEC”) under the Securities Exchange Act of 1934, as amended (an “Exchange Act Report”), and relating to such offering and in accordance with any agreement or instrument binding upon the Company, the shares of Common Stock will be validly issued, fully paid and nonassessable. The Common Stock covered by the opinion in this paragraph include any Common Stock that may be issued (A) as part of the units or (B) upon exercise, conversion, exchange or otherwise pursuant to the terms of any other Securities.
(3) Preferred Stock. When (i) either Articles of Amendment to the Articles of Incorporation or a Certificate of Designation, in either case fixing and determining the terms of any Preferred Stock to be offered pursuant to the Registration Statement, has been duly filed with the Secretary of State of the State of West Virginia and payment in full of any filing fees attendant thereto has been made; and (ii) one or more certificates representing the shares of such Preferred Stock, each complying with all applicable requirements of the WVBCA, have been duly executed, authenticated (if required), issued and delivered as contemplated by the Registration Statement and any Prospectus Supplement or Exchange Act Report and in accordance with any agreement or instrument binding upon the Company, the shares of Preferred Stock will be validly issued, fully paid and nonassessable. The Preferred Stock covered in the opinion in this paragraph includes any preferred stock that may be represented by depositary shares or may be issued (A) as part of the units or (B) upon exercise, conversion, exchange or otherwise pursuant to the terms of any other Securities.
Our opinion is subject to the effect of (i) bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer, reorganization, moratorium, or other similar laws relating to or affecting the rights or remedies of creditors generally, (ii) the application of general principles of equity (including, without limitation, concepts of materiality, reasonableness, good faith, and fair dealing, regardless of whether enforcement is considered in proceedings at law or in equity), and (iii) applicable law and public policy with respect to rights to indemnity and contribution. In addition, the manner in which any particular issue relating to the opinions would be treated in any actual court case would depend in part on facts and circumstances particular to the case and would also depend on how the court involved chose to exercise the wide discretionary authority generally available to it.
The opinions expressed above are limited to the laws of the State of West Virginia.
K&L Gates LLP, special counsel to the Company, may rely upon this opinion in rendering its opinion of even date herewith.
This opinion letter is limited to the matters stated herein, and no opinion is implied or may be inferred beyond the matters expressly stated. We hereby consent to the filing of this opinion with the SEC as an exhibit to the Registration Statement, and to the references therein to our firm and this opinion in the Registration Statement. In giving this consent, we do not hereby admit that we come within the
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