Form S-1/A Can B Corp

 

Exhibit 5.1

 

 

 

June 30, 2022

Can B. Corp.

960 South Broadway

Suite 120

Hicksville, NY 11801

 

Re:	Registration Statement on Form S-1/A No. 4

 

Ladies and Gentlemen:

 

We have acted as special counsel to Can B Corp., a Florida corporation (the “Company”), in connection with the proposed issuance of up to an aggregate of $24,606,406 of (A) Class A Units (the “Class A Units”), each consisting of (i) one share (collectively, the “Shares”) of common stock, Nil par value per share (the “Common Stock”) of the Company and (ii) one Series X Common Stock Purchase Warrant (collectively, the “Series X Warrants”) to purchase one share of Common Stock (collectively, the “Series X Warrant Shares”); (B) Class B Units (the “Class B Units” and together with the Class A Units, the “Units”), each consisting of (i) one Series Y Prefunded Common Stock Purchase Warrant (collectively, the “Pre-Funded Warrants,” and together with the Series X Warrants, the “Warrants”) to purchase one share of Common Stock (the “Pre-Funded Warrant Shares,” and together with the Series X Warrant Shares, the “Warrant Shares”); and (C) Series X Warrants. The Units, the Shares, the Warrants and the Warrant Shares are included in a registration statement on Form S-1/A under the Securities Act of 1933, as amended (the “Act”), filed with the Securities and Exchange Commission (the “Commission”) on June 30, 2022 (Registration No. 333-260882) (as amended, the “Registration Statement”). The terms “Shares,” “Warrants” and “Warrant Shares” shall include any additional securities registered by the Company pursuant to Rule 462(b) under the Act in connection with the offering contemplated by the Registration Statement. This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or related prospectus (the “Prospectus”), other than as expressly stated herein with respect to the issue of the Shares and the Warrants.

 

As such counsel, we have examined such matters of fact and questions of law as we have considered appropriate for purposes of this letter. With your consent, we have relied upon certificates and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters. We are opining herein as to the internal laws of the State of Florida and Florida Business Corporation Act (the “FBCA”), and we express no opinion with respect to any other laws.

 

Subject to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof:

 

1.

When the Shares shall have been duly registered on the books of the transfer agent and registrar therefor in the name or on behalf of the purchasers and have been issued by the Company against payment therefor in the circumstances contemplated by the form of underwriting agreement most recently filed as an exhibit to the Registration Statement, the issue and sale of the Shares will have been duly authorized by all necessary corporate action of the Company, and the Shares will be validly issued, fully paid and nonassessable. In rendering the foregoing opinion, we have assumed that the Company will comply with all applicable notice requirements regarding uncertificated shares provided in the FBCA.

 

 

	2.	When the Warrants shall have been duly registered on the records maintained by the Company for that purpose in the name or on behalf of the purchasers, and have been issued by the Company against payment therefor in the circumstances contemplated by the form of underwriting agreement most recently filed as an exhibit to the Registration Statement, the issue and sale of the Warrants will have been duly authorized by all necessary corporate action of the Company, and the Warrants will constitute the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
	3.	When the Series X Warrant Shares initially issuable upon exercise of the Series X Warrants shall have been duly registered on the books of the transfer agent and registrar therefor in the name of or on behalf of the Series X Warrant holders, and have been issued by the Company against payment therefor (not less than par value) in the circumstances contemplated by the Series X Warrants, the Series X Warrant Shares will have been duly authorized by all necessary corporate action of the Company, and will be validly issued, fully paid and nonassessable.
	4.	When the Pre-Funded Warrant Shares initially issuable upon exercise of the Pre-Funded Warrants shall have been duly registered on the books of the transfer agent and registrar therefor in the name of or on behalf of the Pre-Funded Warrant holders, and have been issued by the Company against payment therefor (not less than par value) in the circumstances contemplated by the Pre-Funded Warrants, the Pre-Funded Warrant Shares will have been duly authorized by all necessary corporate action of the Company, and will be validly issued, fully paid and nonassessable.

 

In rendering the opinions in paragraphs (3) and (4) above, we have assumed that the Company will comply with all applicable notice requirements regarding uncertificated shares provided in the FBCA.

 

Our opinions set forth in numbered paragraph 2 are subject to: (i) the effect of bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other similar laws relating to or affecting the rights and remedies of creditors; (ii) the effect of 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; (iii) we express no opinion as to (a) any provision for liquidated damages, monetary penalties or other economic remedies to the extent such provisions are deemed to constitute a penalty, (b) consents to, or restrictions upon, governing law, jurisdiction, venue, arbitration, remedies, or judicial relief, (c) waivers of rights or defenses, (d) any provision requiring the payment of attorneys’ fees, where such payment is contrary to law or public policy, (e) 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, (f) waivers of broadly or vaguely stated rights, (g) provisions for exclusivity, election or cumulation of rights or remedies, (h) provisions authorizing or validating conclusive or discretionary determinations, (i) proxies, powers and trusts, (j) provisions prohibiting, restricting, or requiring consent to assignment or transfer of any right or property, and (k) the severability, if invalid, of provisions to the foregoing effect.

 

We have assumed (a) that the Warrants have been or will be duly authorized, executed and delivered by the parties thereto other than the Company, (b) that such securities constitute or 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 (c) that the status of the Warrants as legally valid and binding obligations of the parties will not be affected by any (i) breaches of, or defaults under, agreements or instruments, (ii) violations of statutes, rules, regulations or court or governmental orders, or (iii) failures to obtain required consents, approvals or authorizations from, or to make required registrations, declarations or filings with, governmental authorities.

 

This opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Act. 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.” We further consent to the incorporation by reference of this letter and consent into any registration statement filed pursuant to Rule 462(b) with respect to the Shares and the Warrants. 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.

 

	Respectfully Submitted,
	/s/ Dodson Robinette PLLC

 

 

 

Exhibit 10.47

 

EXCHANGE AGREEMENT

 

THIS EXCHANGE AGREEMENT (the “Agreement”), dated as of June 14, 2022, between Can B Corp., a Florida corporation (the “Company”), and Arena Special Opportunities Partners I, LP, a Delaware limited partnership (the “ASOP”) and Arena Special Opportunities Fund, LP, a Delaware limited partnership (“ASOF” and, collectively with ASOP, the “Holders”). The Company and the Holders are sometimes referred to herein individually as a “party” and collectively as the “parties.”.

 

W I T N E S S E T H:

 

WHEREAS, the Company and Holders entered into that certain Securities Purchase Agreement (the “2021 SPA”) and various other documents and agreements contemplated thereby, including but not limited to Original Issue Discount Senior Secured Convertible Promissory Notes with aggregate principal amounts equal to $1,500,000 (the “2021 Notes”), an Addendum Security Agreement (the “2021 Security Agreement”), an Addendum to Intellectual Property Security Agreement (the “2021 IP Security Agreement”), and an Addendum to Guaranty Agreement (the “2021 Guaranty”), all dated May 17, 2021 (the foregoing, collectively, the “Transaction Documents”); and

 

WHEREAS, the Company and Holders desire to exchange all principal, interests and fees due pursuant to the 2021 Notes and 2021 SPA (collectively, the “Debt”) as of the Closing Date (below defined) for shares of common stock in the Company (the “Shares”), pursuant to the terms set forth below;

 

NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

 

1. Exchange of Debt.

 

a. Issuance of Shares. Upon the following terms and conditions, on the Closing Date, the Company shall issue to Holders, and Holders shall acquire from the Company, Shares in exchange for the surrender and cancellation of the Debt. The number of Shares to be issued shall equal the total amount of the Debt on the Closing Date divided by $4.00. No fractional Shares will be issued but instead will be rounded up to the next whole Share number. Upon the Closing Date, the Debt shall be automatically cancelled and all liens and security securing the Debt released, and Holders shall surrender to the Company any and all promissory notes or other instruments evidencing the Debt. The parties agree that each party’s promise to exchange Shares for the Debt shall be irrevocable and that such exchange shall be automatic without need for further action by Holders.

 

b. The parties agree that the Shares will be issued pursuant to 3(a)(9) under the Securities Act (below defined).

 

c. The “Closing Date,” shall occur on the date that (i) the Company’s registration statement filed with the Securities Exchange Commission (“SEC”) on form S-1 (File No. 333-260882), as amended or supplemented from time to time (the “Registration Statement”), is declared effective by the SEC, and (ii) the Company has filed a prospectus supplement to the Registration Statement in order to price the securities offered pursuant to the Registration Statement.

 

 

d. The issuance of Shares to Holders will be settled within two days from the Closing Date. Shares will be issued to the Holders and held in book entry form without restrictive legend; provided that, Holders have provided an opinion of counsel that the Shares are eligible to be sold without restrictive legend pursuant to rule 144. Holders will be issued Shares in proportion to the amount of Debt held by Holders.

 

2. Company Representations and Warranties. The Company hereby makes to Holders the following representations and warranties:

 

a. Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of this Agreement and the Shares by the Company and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary action on the part of the Company and no further action is required by the Company, its Board of Directors or its stockholders in connection therewith. This Agreement has been duly executed by the Company and, when delivered in accordance with the terms hereof will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.

 

b. No Conflicts. The execution, delivery and performance of this Agreement and the Shares by the Company and the consummation by the Company of the transactions contemplated hereby do not and will not: (i) conflict with or violate any provision of the Company’s or any of its subsidiary’s certificate or Articles of Incorporation, Bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any lien or encumbrance upon any of the properties or assets of the Company or any subsidiary, or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any material agreement, credit facility, debt or other material instrument (evidencing a Company or subsidiary debt or otherwise) or other material understanding to which the Company or any subsidiary is a party or by which any property or asset of the Company or any subsidiary thereof is bound or affected, or (iii) conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or a subsidiary is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company or a subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii) of this paragraph, such as could not have or reasonably be expected to result in a material adverse effect on the Company or its business of financial condition.

 

c. Consents and Approvals. The Company is not required to obtain any approval, consent, waiver, authorization or order of, any court or other federal, state, local, foreign or other governmental authority or other person or entity in connection with the execution, delivery and performance by the Company of this Agreement. No further approval or authorization of any stockholder, the Board of Directors or others is required for exchange for and the issuance of the Shares.

 

 

3. Holders Representations and Warranties. Holders hereby make to the Company the following representations and warranties, which shall be true and correct as of the Closing Date:

 

a. Authorization; Binding Effect. Holders have all requisite power and authority to (i) execute and deliver this Agreement, and (ii) to carry out and perform their respective obligations under the terms of this Agreement. This Agreement has been duly authorized, executed and delivered and constitutes the legal, valid and binding obligation of Holders, enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or other laws relating to or affecting the enforcement of creditors’ rights generally in effect from time to time and by general principles of equity.

 

b. No Conflicts with Agreements, Etc. Neither the execution and delivery of this Agreement nor the fulfillment of or compliance with the terms and provisions hereof, will conflict with, or result in a breach or violation of any of the terms, conditions or provisions of, or constitute a default under, any contract, agreement, mortgage, indenture, lease, instrument, order, judgment, statute, law, rule or regulation to which Holders is subject.

 

c. Consents and Approvals. Holders are not required to obtain any approval, consent, waiver, authorization or order of, any court or other federal, state, local, foreign or other governmental authority or other person or entity in connection with the execution, delivery and performance by the Holders of this Agreement

 

d. Restricted Securities. Holders acknowledge and agree that the Shares are characterized as “restricted securities” under applicable U.S. federal and state securities laws, including Rule 144 promulgated by the SEC under the Securities Act of 1933, as amended (“Securities Act”), and that pursuant to these laws, Holders must hold the Shares indefinitely unless subsequently registered with the SEC and qualified by state authorities, or an exemption from such registration and qualification requirements is available. Holders understands that no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Shares.

 

e. Own Account. Holders are acquiring the shares of common stock issuable hereunder for their own accounts for investment only and not with a view towards the public sale or distribution thereof and not with a view to or for sale in connection with any distribution thereof.

 

f. Accredited Investors. Holders represents and warrant that each holder is an “accredited investor” as defined in Rule 501 under Regulation D promulgated under the Securities Act.

 

g. Assignment. Holders have not assigned, pledged, gifted, conveyed, sold or transferred any portion of the Debt and own the same free and clear of any and all liens or encumbrances.

 

 

4. Discharge and Release. Upon issuance of the Shares, Holders release and forever discharge the Company, and its agents, employees, family members, principals, shareholders, successors, affiliates and assigns (collectively, “Company Released Parties”), from all action or actions, cause or causes of action, suits, claims or demands of whatsoever kind or character, at law or in equity, whether the asserted liability be joint or several, known or unknown, which exists or may exist on the Closing Date or which may exist in the future, for, upon, or by reason of any transaction, matter, statements, act, omission, cause or thing related, directly or indirectly, to the Debt and Transaction Documents. The parties agree that this release of claims should be interpreted and construed broadly to accomplish its intent and purpose to release all claims of any nature between the parties.

 

5. Miscellaneous.

 

a. Entire Agreement. This Agreement constitutes and contains the entire agreement between the parties hereto, and supersedes all prior oral or written agreements and understandings between Holders, the Company, their affiliates, and persons acting on their behalf with respect to the matters discussed herein, and this Agreement and the instruments referenced herein contain the entire understanding of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company nor Holders make any representation, warranty, covenant or undertaking with respect to such matters.

 

b. Execution. This Agreement may be executed in two or more counterparts and by facsimile signature, delivery of PDF images of executed signature pages by email or otherwise, and each of such counterparts shall be deemed an original and all of such counterparts together shall constitute one and the same agreement. This Agreement may be signed and delivered by electronic means.

 

c. Governing Law. This Agreement shall be governed by and interpreted in accordance with laws of the State of New York, excluding its choice of law rules. The parties hereto hereby waive the right to a jury trial in any litigation resulting from or related to this Agreement. The parties hereto consent to exclusive jurisdiction and venue in the New York state courts. Each party waives all defenses of lack of personal jurisdiction and forum non conveniens.

 

d. Enforceability. If any provision of this Agreement is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent jurisdiction, the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to the broadest extent that it would be valid and enforceable, and the invalidity or unenforceability of such provision shall not affect the validity of the remaining provisions of this Agreement so long as this Agreement as so modified continues to express, without material change, the original intentions of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s) in question does not substantially impair the respective expectations or reciprocal obligations of the parties or the practical realization of the benefits that would otherwise be conferred upon the parties. The parties will endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s)

 

e. No Shorting. Holders agree that Holders shall not enter into or effect “short sales” of the Shares or hedging transaction which establishes a net short position with respect to the common stock of the Company.

 

 

f. Assignability. The parties may not assign this Agreement without the other party’s prior written consent. Holders shall not assign or transfer any portion of the Debt without the Company’s consent.

 

g. Further Assurances. Holders and the Company each hereby agree and provide further assurances that it will, in the future, execute and deliver any and all further agreements, certificates, instruments and documents and do and perform or cause to be done and performed, all acts and things as may be necessary or appropriate to carry out the intent and accomplish the purposes of this Agreement.

 

h. Equitable Remedies. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with the specific terms hereof or were otherwise breached. It is accordingly agreed that, in addition to the other rights of the parties under this Agreement, the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in any federal or state court located in the State of New York, this being in addition to any other remedy to which the Parties are entitled under this Agreement.

 

i. Headings. The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation of, this Agreement.

 

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above set forth.

 

THE COMPANY:			THE HOLDERS:
Can B Corp.			Arena Special Opportunities Partners I, LP
By:			By:
Name:	Marco Alfonsi		Name:	Lawrence Cutler
Title:	Chief Executive Officer		Title:	Authorized Signatory
			Arena Special Opportunities Fund, LP
			By:
			Name:	Lawrence Cutler
			Title:	Authorized Signatory

 

 

 

Exhibit 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We hereby consent to the incorporation in this Registration Statement on Form S-1-A4 of our report dated April 15, 2022, relating to the consolidated financial statements of Can B Corp. as of December 31, 2021 and 2020, and to all references to our firm included in this Registration Statement.

 

 

Certified Public Accountants

Lakewood, CO

June 30, 2022

 

 

---

Serious News for Serious Traders! Try StreetInsider.com Premium Free!

---

You May Also Be Interested In

• Jefferies Starts Nuvalent (NUVL) at Buy, 'Precisely Targeted Oncology Aiming for Firstline Treatment'
• SOPHiA GENETICS (SOPH) Reports Unilabs is using its AI Technology to Detect Homologous Recombination Deficiency
• VBI Vaccines Reports Full Year 2023 Financial Results