EXHIBIT 5
ROBINSON & COLE LLP DAVID A. GARBUS
One Boston Place
Boston, MA 02108-4404
Main (617) 557-5900
Fax (617) 557-5999
dgarbus@rc.com
Direct (617) 557-5955
November 13, 2003
Vaso Active Pharmaceuticals, Inc.
99 Rosewood Drive, Suite 260
Danvers, MA 01923
Re: Vaso Active Pharmaceuticals, Inc.
Registration Statement on Form SB-2 for 1,495,000 Shares of Class A
Common Stock
File No. 333-106785
Ladies and Gentlemen:
We have acted as legal counsel to Vaso Active Pharmaceuticals, Inc., a
Delaware corporation (the "Company"), in connection with the proposed issuance
and sale of up to 1,495,000 shares (the "Shares") of the Company's Class A
common stock (the "Class A Common Stock"), $.0001 par value per share, pursuant
to the Company's Registration Statement on Form SB-2 (No. 333-106785) (the
"Registration Statement") filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended (the "Securities Act"). In
accordance with the Registration Statement, the Company is registering under the
Securities Act the following securities (collectively, the "Securities"):
1. The Shares (including 195,000 shares of Class A Common Stock which the
several underwriters (the "Underwriters") represented by Kashner Davidson
Securities Corp. (the "Representative") have the option to purchase to cover
over-allotments, if any);
2. 130,000 warrants granted to the Representative (the "Representative's
Warrants") to purchase up to 130,000 shares of Class A Common Stock; and
3. 130,000 shares of Class A Common Stock issuable upon exercise of the
Representative's Warrants (the "Representative's Shares").
This opinion letter (the "Opinion Letter") is being rendered in accordance
with the requirements of Item 27 of Form SB-2 and Item 601(a)(5)(i) of
Regulation S-B in connection with the filing of the Registration Statement.
Unless otherwise indicated, capitalized terms used herein shall have the
meanings ascribed thereto in the Registration Statement.
In connection with the opinions expressed herein, we have examined
originals or copies, certified or otherwise identified to our satisfaction as
true, correct and complete, of
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ROBINSON & COLE LLP
Vaso Active Pharmaceuticals, Inc.
November 13, 2003
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such agreements, instruments, documents and records in each case as we have
deemed necessary or appropriate for the purposes of expressing the opinions set
forth in this Opinion Letter. We have examined the following (collectively, the
"Documents"):
(a) The Company's Amended and Restated Certificate of Incorporation, filed
as Exhibit 3.1 to the Registration Statement;
(b) The Company's Amended and Restated By-Laws, filed as Exhibit 3.2 to the
Registration Statement;
(c) The Company's corporate minutes books or other records pertaining to
the proceedings of the stockholders and directors of the Company;
(d) The Company's stock transfer ledger and record;
(e) The Company's Specimen Certificate for the Class A Common Stock, filed
as Exhibit 4.1 to the Registration Statement;
(f) The form of the Underwriting Agreement between the Company and the
Representative, for itself and the other underwriters, filed as Exhibit 1.1 to
the Registration Statement (the "Underwriting Agreement");
(g) The form of the Representative's Warrant Agreement between the Company
and the Representative, filed as Exhibit 4.3 to the Registration Statement (the
"Representative's Warrant Agreement")); and
(h) The Certificate dated October 7, 2003 of the Secretary of State of the
State of Delaware as to the good standing of the Company.
The opinions expressed herein are based upon (i) our review of the
Documents, (ii) discussions with John J. Masiz, President, Chief Executive
Officer and Chairman of the Board of the Company, and Joseph Frattaroli, Chief
Financial Officer of the Company, respectively, with respect to the Documents,
(iii) the representations and warranties of the Company contained in the
Underwriting Agreement and the Representative's Warrant Agreement, (iv)
discussions with those of our attorneys who have devoted substantive attention
to the matters contained herein, and (v) such review of public sources of law as
we have deemed necessary.
The opinions expressed herein are limited to the laws of the Commonwealth
of Massachusetts, the Delaware General Corporation Law, including all provisions
of the
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Vaso Active Pharmaceuticals, Inc.
November 13, 2003
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Delaware Constitution applicable thereto and reported judicial decisions
interpreting the Delaware General Corporation Law, and to Federal law of the
United States of America.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Securities have been duly authorized, and upon the sale thereof as
described in the Registration Statement and as contemplated by the Underwriting
Agreement and the Representative's Warrant Agreement, as the case may be, the
Securities will be legally issued.
2. The Shares, upon the sale thereof as described in the Registration
Statement and as contemplated by the Underwriting Agreement, will be fully paid
and non-assessable.
3. The Representative's Warrants, upon the sale thereof as described in the
Registration Statement and as contemplated by the Underwriting Agreement, will
constitute valid and binding obligations of the Company to issue and sell, upon
exercise thereof and payment therefor, the number and type of securities of the
Company called for thereby, enforceable against the Company in accordance with
the terms thereof (except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of general
application relating to or affecting the enforcement of creditors' rights and
the application of equitable principles in any action, legal or equitable).
4. The Representative's Shares, when issued upon the exercise of the
Representative's Warrants, will be fully paid and non-assessable.
We consent to the filing of this Opinion Letter as Exhibit 5.1 to the
Registration Statement and to the reference to this firm under the heading
"Legal Matters" in the prospectus which is part of the Registration Statement.
In giving this consent, we do not thereby admit that we are within the category
of persons whose consent is required under Section 7 of the Securities Act, the
rules and regulations of the Securities and Exchange Commission promulgated
thereunder, or Item 509 of Regulation S-B.
The opinions expressed herein are rendered as of the date hereof, and we
disclaim any undertaking to advise you hereafter of developments hereafter
occurring or coming to our attention, whether or not the same would (if now
existing or known to us) require any change or modification herein.
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Vaso Active Pharmaceuticals, Inc.
November 13, 2003
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The opinions expressed in this Opinion Letter are limited solely to the
matters expressly set forth above. No other opinions are intended, nor should
any other opinion be inferred herefrom.
Very truly yours,
ROBINSON & COLE LLP
By: /s/ David A. Garbus
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David A. Garbus, a Partner
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