EXHIBIT 5.1
Law Office of
STEVEN P. OMAN, P.C.
8664 E. Chama Road
Telephone: (480) 348-1470 Scottsdale, Arizona 85255
Facsimile: (480) 348-1471
e-mail: soman@omanlaw.net
December 21, 2009
Alanco Technologies, Inc.
15575 N. 83rd Way, Suite 3
Scottsdale, Arizona 85260
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as legal counsel to Alanco Technologies, Inc., an
Arizona corporation (the "Company"), in connection with the registration
statement on Form S-3 (the "Registration Statement") being filed by the Company
with the U.S. Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act"), on the date hereof.
You have provided us with a draft of the Registration Statement in
the form in which it will be filed with the Commission. The Registration
Statement includes a base prospectus (the "Prospectus"), which provides that it
will be supplemented in the future by one or more supplements to the Prospectus
(each, a "Prospectus Supplement"). The Prospectus provides for the offering
of the following securities: (i) shares of the Company's Class A common stock
("Common Stock"), (ii) warrants to purchase Common Stock ("Warrants"), and (iii)
units comprised of the foregoing ("Units"). The Common Stock, Warrants and
Units are collectively referred to as the "Securities." The Securities may be
offered and sold from time to time pursuant to Rule 415 promulgated under the
Act, in amounts, at prices and on terms to be determined at the time of the
offering thereof, at an aggregate initial offering price not to exceed
$5,000,000.
We have made such legal and factual examinations and inquiries,
including an examination of originals or copies certified or otherwise
identified to our satisfaction of such documents, corporate records and
instruments, as we have deemed necessary or appropriate for purposes of this
opinion. In our examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, and the
conformity to authentic original documents of all documents submitted to us as
copies. As to facts material to the opinions, statements and assumptions
expressed herein, we have relied upon oral or written statements and
representations of officers and other representatives of the Company and others.
We have not independently verified such factual matters.
In expressing our opinions below, we have assumed that:
(a) the Registration Statement (including any and all
required post-effective amendments thereto) will have become effective under the
Act and will comply with all applicable laws;
(b) the Registration Statement (including any and all
required post-effective amendments thereto) will be effective under the Act and
will comply with all applicable laws at the time the Securities are offered or
sold as contemplated by the Registration Statement (including any and all
required post-effective amendments thereto), the Prospectus and the applicable
Prospectus Supplement(s);
(c) no stop order suspending the effectiveness of the
Registration Statement (including any and all required post-effective amendments
thereto) will have been issued and remain in effect;
(d) a Prospectus Supplement describing the Securities
offered thereby and the offering thereof and complying with all applicable laws
will have been prepared and filed with the Commission;
(e) the Securities will be offered and sold in the form and
with the terms set forth in the Registration Statement (including any and all
required post-effective amendments thereto), the Prospectus and the applicable
Prospectus Supplement(s) and the organizational documents of the Company;
(f) the Securities will be offered and sold in compliance
with all applicable federal and state securities laws and in the manner stated
in the Registration Statement (including any and all required post-effective
amendments thereto), the Prospectus and the applicable Prospectus Supplement(s);
(g) the Company will have obtained any and all legally
required consents, approvals, authorizations and other orders of the Commission
and any and all other regulatory authorities and other third parties necessary
to offer and sell the Securities being offered;
(h) the Securities offered and sold comply with all
requirements and restrictions, if any, applicable to the Company, whether
imposed by any court or governmental or regulatory body having jurisdiction over
the Company;
(i) a definitive purchase, underwriting or similar
agreement (each a "Purchase Agreement") with respect to any Securities offered
and sold will have been duly authorized and validly executed and delivered by
the Company and the other parties thereto; and
(j) any Securities or other securities issuable upon
conversion, exchange or exercise of any Security being offered and sold will be
duly authorized, created and, if appropriate, reserved for issuance upon such
conversion, exchange or exercise.
Our opinions expressed below are subject to the qualifications that
we express no opinion as to the applicability of, compliance with or effect of:
(i) any bankruptcy, insolvency, reorganization, preference, fraudulent
conveyance, fraudulent transfer, moratorium or other similar laws relating to or
affecting the rights and remedies of creditors generally; (ii) general
principles of equity, whether considered in a proceeding in equity or at law
(including the possible unavailability of specific performance or injunctive
relief), concepts of materiality, reasonableness, good faith and fair dealing,
and the discretion of the court before which a proceeding is brought; or (iii)
public policy considerations that may limit the rights of parties to obtain
certain remedies.
We express no opinion as to (i) any provision to the extent it
requires any party to indemnify any other person against loss in obtaining the
currency due following a court judgment rendered in another currency, (ii) any
provision providing for the indemnification of or contribution to a party with
respect to a liability where such indemnification or contribution is contrary to
public policy, (iii) any provision for liquidated damages, default interest,
late charges, monetary penalties, prepayment or make-whole premiums or other
economic remedies to the extent such provisions are deemed to constitute a
penalty, (iv) consents to, or restrictions upon, governing law, jurisdiction,
venue, arbitration, remedies or judicial relief, (v) any provision requiring the
payment of attorneys' fees, where such payment is contrary to law or public
policy, (vi) any provision requiring the payment of interest on interest, (vii)
the creation, validity, attachment, perfection, or priority of any lien or
security interest, (viii) advance waivers of claims, defenses, rights granted by
law, or notice, opportunity for hearing, evidentiary requirements, statutes of
limitation, trial by jury or at law, or other procedural rights, (ix) waivers of
broadly or vaguely stated rights, (x) provisions for exclusivity, election or
cumulation of rights or remedies, (xi) provisions authorizing or validating
conclusive or discretionary determinations, (xii) grants of setoff rights,
(xiii) proxies, powers and trusts, (xiv) provisions prohibiting, restricting, or
requiring consent to assignment or transfer of any right or property, (xv)
provisions purporting to make a guarantor primarily liable rather than as a
surety, (xvi) provisions purporting to waive modifications of any guaranteed
obligation to the extent such modification constitutes a novation, (xvii) any
provision to the extent it requires that a claim with respect to a security
denominated in other than U.S. dollars (or a judgment in respect of such a
claim) be converted into U.S. dollars at a rate of exchange at a particular
date, to the extent applicable law otherwise provides, (xviii) compliance with
any usury laws, (xix) the severability, if invalid, of provisions to the
foregoing effect, (xx) the securities or "blue sky" laws of any state to the
offer or sale of the Securities, and (xxi) the antifraud provisions of the
securities or other laws of any jurisdiction.
We have also assumed that: (i) the Warrants and any related warrant
agreement and the Units and any related unit agreement (collectively, the
"Documents") will be governed by the internal laws of the State of Arizona; (ii)
each of the Documents will be duly authorized, executed and delivered by the
parties thereto; (iii) each of the Documents will constitute legally valid and
binding obligations of the parties thereto other than the Company, enforceable
against each of them in accordance with their respective terms; and (iv) the
status of each of the Documents as legally valid and binding obligations of the
parties thereto will not be affected by any (a) breaches of, or defaults under,
any agreements or instruments, (b) violations of any statutes, rules,
regulations or court or governmental orders, or (c) failures to obtain required
consents, approvals or authorizations from, or to make required registrations,
declarations or filings with, any governmental authorities or other third
parties.
We are opining herein only as to the federal laws of the United
States, the internal laws of the State of Arizona, in each case as in effect on
the date of this opinion, and we express no opinion with respect to the laws of
any other jurisdiction or as to any matters of municipal law or the laws of any
other local agencies within any state.
Subject to the foregoing and the other matters set forth herein, it
is our opinion that, as of the date hereof:
1. Upon adoption by the board of directors of the Company
of a resolution in form and content as required by applicable law duly
authorizing the issuance of shares of Common Stock (with such shares, together
with all shares of Common Stock previously issued or reserved for issuance and
not duly and lawfully retired, not exceeding the then authorized shares of
Common Stock), and upon issuance and delivery of and payment of legal in
accordance with the applicable Purchase Agreement and all applicable law, such
shares of Common Stock will be validly issued, fully paid and nonassessable, and
the Rights associated therewith, if and when issued under the Shareholders
Rights Agreement of the Company will be legally binding obligations of the
Company under Arizona law governing said Shareholders Rights Agreement .
2. When (a) a warrant agreement, if any, has been duly
authorized by all necessary corporate action of the Company (including, without
limitation, the adoption by the board of directors of the Company of a
resolution in form and content as required by applicable law duly authorizing
the execution and delivery of such warrant agreement) and duly executed and
delivered by the Company, (b) the specific terms of a particular issuance of
Warrants have been duly established in accordance with such warrant agreement,
if any, and all applicable law and authorized by all necessary corporate action
of the Company (including, without limitation, the adoption by the board of
directors of the Company of a resolution in form and content as required by
applicable law duly authorizing the issuance and delivery of the Warrants), and
(c) the Warrants have been duly executed, issued and delivered against payment
therefor in accordance with such warrant agreement, if any, the applicable
Purchase Agreement and all applicable law (and assuming the satisfaction of the
conditions described in the applicable numbered paragraphs of this opinion
letter with respect to our opinion regarding any Securities issuable upon
exercise of the Warrants), such Warrants will be legally valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms.
3. When (a) a unit agreement has been duly authorized by
all necessary corporate action of the Company (including, without limitation,
the adoption by the board of directors of the Company of a resolution duly
authorizing the execution and delivery of such unit agreement) and duly executed
and delivered by the Company, (b) the specific terms of a particular issuance
of the related Units have been duly established in accordance with such unit
agreement and all applicable law and authorized by all necessary corporate
action of the Company (including, without limitation, the adoption by the board
of directors of the Company of a resolution in form and content as required by
applicable law duly authorizing the issuance and delivery of the Units), and (c)
such Units have been duly executed, issued and delivered against payment
therefor in accordance with such unit agreement, the applicable Purchase
Agreement and all applicable law (and assuming the satisfaction of the
conditions described in the applicable numbered paragraphs of this opinion
letter with respect to our opinion regarding the Securities underlying the
Units), such Units will be legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms.
This opinion is to be used only in connection with the offer and sale
of the Securities while the Registration Statement and any and all required
post-effective amendments thereto are effective.
This opinion is being delivered solely for the benefit of the Company
and such other persons as are entitled to rely upon it pursuant to applicable
provisions of the Securities Act. This opinion may not be used, quoted, relied
upon or referred to for any other purpose nor may this opinion be used, quoted,
relied upon or referred to by any other person, for any purpose, without our
prior written consent.
We consent to your filing this opinion as an exhibit to the
Registration Statement and to the reference to our firm in the Prospectus under
the heading "Legal Matters." 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 Act or the rules and regulations of the Commission thereunder.
Very truly yours,
LAW OFFICE OF STEVEN P. OMAN, P.C.
By: /s/ Steven P. Oman
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Steven P. Oman