As filed
with the Securities and Exchange Commission on October 24, 2014
Registration
No. 333-199440
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Amendment
No. 1 to
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NUVILEX, INC.
(Exact name of registrant as specified in
its charter)
|
Nevada
(State or other jurisdiction of incorporation
or organization) |
12510 Prosperity Drive, Suite 310
Silver Spring, Maryland 20904
(917) 595-2850
(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices) |
62-1772151
(I.R.S. Employer Identification Number) |
Kenneth L. Waggoner
Chief Executive Officer
Nuvilex, Inc.
12510 Prosperity Drive, Suite 310
Silver Spring, Maryland 20904
(917) 595-2850
(Name,
address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Mitchell
S. Nussbaum
Norwood P. Beveridge, Jr.
Loeb & Loeb LLP
345 Park Avenue
New York, New York 10154
(212) 407-4000
Approximate date of commencement of proposed sale to the public:
From time to time after this Registration Statement becomes effective.
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this form are to
be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended (“Securities
Act”), other than securities offered only in connection with dividend or interest reinvestment plans, check the following
box. ☒
If this form is filed to register additional securities for
an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act Registration
Statement number of the earlier effective Registration Statement for the same offering. ☐
If this form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and list the Securities Act Registration Statement number of
the earlier effective Registration Statement for the same offering. ☐
If this Form is a Registration Statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to
Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the Registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated
filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check
one):
| Large accelerated filer ☐ |
Accelerated filer ☐ |
Non-accelerated filer ☐
(Do not check if a smaller reporting company) |
Smaller reporting company ☒ |
The Registrant hereby
amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance
with section 8(a) of the Securities Act or until this Registration Statement shall become effective on such date as the Commission
acting pursuant to said section 8(a), may determine.
EXPLANATORY NOTE
This Amendment
No. 1 to the Registration Statement on Form S-3 is being filed for the sole purpose of filing certain exhibits to the
registration statement. No other changes have been made to the registration statement. Accordingly, this amendment consists of
only the facing page, this explanatory note and Part II of the registration statement.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth our costs and expenses in connection
with the registration for resale of our common stock as described in this registration statement. None of such costs were borne
by the Selling Stockholder. All of the amounts shown are estimates except the Commission Registration Fee and the FINRA filing
fee.
| |
AMOUNT |
| Commission Registration Fee |
$5,810 |
| Legal Fees and Expenses |
* |
| Accounting Fees and Expenses |
* |
| Trustees’ Fees and Expenses |
* |
| Warrant Agent Fees and Expenses |
* |
| Miscellaneous Expenses |
* |
| Total |
|
* Estimated expenses not presently known.
Item 15. Indemnification of Directors and Officers.
Our directors and officers
are indemnified as provided by our articles of incorporation, bylaws and the Nevada Revised Statutes, or NRS. We believe that the
indemnity and limitation of liability provisions contained in our articles of incorporation and bylaws are necessary to attract
and retain qualified persons for those positions. No pending material litigation or proceeding involving our directors, executive
officers, employees or other agents as to which indemnification is being sought exists, and we are not aware of any pending or
threatened material litigation that may result in claims for indemnification by any of our directors or executive officers.
The following is a summary
of the relevant provisions in our articles of incorporation, bylaws, and Nevada law with regard to limitation of liability and
indemnification of our directors and officers. The full provisions are contained in the NRS and such documents.
Limitation of Liability. Our
articles of incorporation limit the liability of our directors and officers under certain circumstances. Our articles of incorporation
provide that the liability of directors or officers for monetary damages are eliminated to the fullest extent permitted by Nevada
law. The NRS provide that an officer or director of a Nevada corporation will not be liable for acts or omissions unless it is
proven that the officer's or director's acts or omissions constituted a breach of fiduciary duties and such breach involved intentional
misconduct, fraud, or a knowing violation of law.
Indemnification. Our articles
of incorporation provide for the indemnification of our directors and officers to the fullest extent permitted by Nevada law. Our
bylaws and the NRS provide that we may indemnify our directors and officers who were or are a party or are threatened to be made
a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative,
including an action by or in the right of the corporation, by reason of the fact that such person is or was a director or officer
of the corporation, or is or was serving at the request of the corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise, against expenses, including attorneys’ fees, judgments,
fines, and amounts paid in settlement actually and reasonably incurred by such person in connection with the action, suit, or proceeding
unless such person: (i) has failed to exercise his powers as an a director or officer of the corporation in good faith and with
a view to the interests of the corporation and such act or failure to act involved intentional misconduct, fraud, or a knowing
violation of law; and (ii) has failed to act in good faith and in a manner that such person reasonably believed to be in or not
opposed to the best interest of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to
believe his conduct was unlawful.
Any indemnification, unless
ordered by a court or such director or officer has made an undertaking as discussed below, shall be made on a case by case basis
upon determination by our stockholders, directors not a party to the action, suit or proceeding, or legal counsel by written opinion
that such indemnification is proper in the circumstances. We are required to indemnify any director or officer against expenses,
including attorneys’ fees, actually and reasonably incurred by such person who has been successful on the merits or otherwise
in defense of any action, suit, or proceeding.
We will advance expenses of
any director or officer incurred in defending any civil or criminal action, suit, or proceeding upon receipt of an undertaking
by or on behalf of the director or officer to repay the amount advanced if it is ultimately determined by a court of competent
jurisdiction that the director or officer is not entitled to be indemnified by the corporation.
Indemnification will not be
made for any claim, issue, or matter as to which such person has been adjudged by a court of competent jurisdiction, after exhaustion
of all appeals therefrom, to be liable to the corporation or for amount paid in settlement to the corporation, unless and only
to the extent that the court in which the action or suit was brought or other court of competent jurisdiction determines upon application
that, in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such expenses
as the court deems proper.
We have been advised that,
in the opinion of the SEC, indemnification for liabilities arising under federal securities laws is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against these types of liabilities,
other than the payment by us of expenses incurred or paid by a director, officer or controlling person in the successful defense
of any action, suit or proceeding, is asserted by a director, officer or controlling person in connection with the securities being
registered, we will (unless in the opinion of our counsel, the matter has been settled by controlling precedent) submit to a court
of appropriate jurisdiction, the question whether indemnification by us is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue. The legal process relating to this matter if it were to occur
is likely to be very costly and may result in us receiving negative publicity, both of which are likely to materially reduce the
market and price for our shares.
Item 16. Exhibits.
See Index of Exhibits immediately following the signature page
of this registration statement and is incorporated herein by reference.
Item 17. Undertakings.
| a. | The undersigned Registrant hereby undertakes: |
| | | |
| 1. | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
| | | |
| i. | To include any prospectus required by Section 10(a)(3) of the Securities Act; |
| | | |
| ii. | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information
set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective registration statement. |
| | | |
| iii. | To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement
or any material change to such information in the registration statement; |
Provided however, that paragraphs (a)(1)(i), (a)(1)(ii)
and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the SEC by the Registrant pursuant to section 13 or section 15(d)
of the Exchange Act that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed
pursuant to Rule 424(b) that is part of the registration statement.
| 2. | That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof. |
| | | |
| 3. | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold
at the termination of the offering. |
| | | |
| 4. | That, for the purpose of determining liability under the Securities Act to any purchaser: |
| | | |
| i. | Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement
as of the date the filed prospectus was deemed part of and included in the registration statement; and |
| | | |
| ii. | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of
the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof; provided, however, that no statement made in
a registration statement or prospectus that is part of the Registration Statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus that is part of the Registration Statement will, as to
a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration statement or made in any such document immediately prior
to such effective date. |
| | | |
| 5. | That, for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution
of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant
pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if
the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant
will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
| | | |
| i. | Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant
to Rule 424; |
| | | |
| ii. | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred
to by the undersigned Registrant; |
| | | |
| iii. | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned
Registrant or its securities provided by or on behalf of the undersigned Registrant; and |
| | | |
| iv. | Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser. |
| | | |
| b. | The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each
filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Exchange Act) that is incorporated
by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| | | |
| c. | Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion
of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue. |
SIGNATURES
Pursuant to the requirements of the Securities
Act, the Registrant certifies that it has duly caused this Registration Statement to be signed on its behalf by the undersigned,
and certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly
caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the city of Silver
Spring, Maryland on October 24, 2014.
| |
NUVILEX, INC.,
a Nevada corporation |
| |
|
|
| |
By: |
/s/ Kenneth L. Waggoner |
| |
|
Kenneth L. Waggoner |
| |
|
Chief Executive Officer, President and Interim Chief Financial Officer |
| /s/ Kenneth L. Waggoner |
|
|
| Kenneth L. Waggoner |
|
October 24, 2014 |
|
Chief Executive Officer, President and Interim Chief Financial
Officer
(Principal Executive and Financial Officer) |
|
|
| * |
|
|
| Gerald Crabtree |
|
October 24, 2014 |
| Director |
|
|
| * |
|
|
| Richard Goldfarb |
|
October 24, 2014 |
| Director |
|
|
| |
|
|
| * By: /s/ Kenneth L. Waggoner |
|
October 24, 2014 |
| Kenneth L. Waggoner |
|
|
| Attorney-in-fact |
|
|
INDEX OF EXHIBITS
The following documents are filed as exhibits
to this registration statement:
| Exhibit No. |
|
Description |
Location |
| 2.1 |
|
Asset Purchase Agreement, dated August 24, 2005, between the Company and Mark Taggatz. |
Incorporated by reference from the Company’s Current Report on Form 8-K filed with the SEC on August 30, 2005. |
| 2.2 |
|
Share Purchase Agreement, dated August 31, 2005, between the Company and Dr. Richard Goldfarb. |
Incorporated by reference from the Company’s Current Report on Form 8-K filed with the SEC on September 7, 2005. |
| 2.3 |
|
Addendum to Share Purchase Agreement, dated August 31, 2005, between the Company and Dr. Richard Goldfarb. |
Incorporated by reference from the Company’s Current Report on Form 8-K filed with the SEC on September 7, 2005. |
| 2.4 |
|
Share Exchange Agreement, dated January 12, 2009, between the Company and Freedom2 Holdings, Inc. |
Incorporated by reference from the Company’s Annual Report on Form 10-K filed with the SEC on August 13, 2009. |
| 2.5 |
|
Share Exchange Agreement, dated May 26, 2011 between the Company and SG Austria Private Limited. |
Incorporated by reference from the Company’s Quarterly Report on Form 10-Q filed with the SEC on September 14, 2011. |
| 2.6 |
|
Third Addendum, dated June 25, 2013 between the Company and SG Austria Private Limited. |
Incorporated by reference from the Company’s Current Report on Form 8-K filed with the SEC on July 17, 2013. |
| 2.7 |
|
Licensing Agreement, dated June 25, 2013 between the Company and Austrianova Singapore Private Limited. |
Incorporated by reference from the Company’s Current Report on Form 8-K filed with the SEC on July 17, 2013. |
| 3.1 |
|
Articles of Incorporation of DJH International, Inc. dated October 25, 1996. |
Incorporated by reference from the Company’s Registration Statement on Form SB-2 (File No. 333-68008) filed with the SEC on August 20, 2001. |
| 3.2 |
|
Certificate of Amendment of Articles of Incorporation of DJH International, Inc. dated October 20, 2000. |
Incorporated by reference from the Company’s Registration Statement on Form SB-2 (File No. 333-68008) filed with the SEC on August 20, 2001. |
| 3.3 |
|
Certificate of Amendment of Articles of Incorporation dated November 14, 2003. |
Incorporated by reference from the Company’s Registration Statement on Form SB-2 (File No. 333-68008) filed with the SEC on August 20, 2001. |
| 3.4 |
|
Certificate of Amendment of Articles of Incorporation dated June 30, 2008. |
Incorporated by reference from the Company’s Registration Statement on Form SB-2 (File No. 333-68008) filed with the SEC on August 20, 2001. |
| |
|
|
|
| 3.5 |
|
Certificate of Amendment of Articles of Incorporation dated January 22, 2009. |
Incorporated by reference from the Company’s Current Report on Form 8-K filed with the SEC on March 26, 2009. |
| 3.6 |
|
Corporate Bylaws. |
Incorporated by reference from the Company’s Registration Statement on Form SB-2 (File No. 333-68008) filed with the SEC on August 20, 2001. |
| 3.7 |
|
Certificate of Designations, Preferences and Rights of Series E Convertible Preferred Stock dated December 20, 2007. |
Incorporated by reference from the Company’s Annual Report on Form 10-K filed with the SEC on August 13, 2009. |
| 3.8 |
|
Certificate of Designations, Preferences and Rights of Series E Convertible Preferred Stock, dated April 29, 2008. |
Incorporated by reference from the Company’s Annual Report on Form 10-K filed with the SEC on August 13, 2009. |
| 3.9 |
|
Amendment No. One to the Bylaws of Nuvilex, Inc. |
Incorporated by reference from the Company’s Current Report on Form 8-K filed with the SEC on September 25, 2014. |
| 3.10 |
|
Amendment No. Two to the Bylaws of Nuvilex, Inc. |
Incorporated by reference from the Company’s Current Report on Form 8-K filed with the SEC on October 3, 2014. |
| 4.1 |
|
Reference is made to Exhibits 3.1, 3.2 and 3.3. |
|
| 4.2 |
|
Form of Common Stock Certificate. |
Incorporated by reference from the Company’s Registration Statement on Form SB-2 (File No. 333-68008) filed with the SEC on August 20, 2001. |
| 4.3 |
|
Form of indenture with respect to senior debt securities, to be entered into between registrant and a trustee acceptable to the registrant, if any. |
Previously filed. |
| 4.4 |
|
Form of indenture with respect to subordinated debt securities, to be entered into between registrant and a trustee acceptable to the registrant, if any. |
Previously filed. |
| 4.5 |
|
Form of debt securities, if any. |
To the extent applicable, to be filed by a post-effective amendment or as an exhibit to a document filed under the Securities Exchange Act, as amended, and incorporated by reference herein. |
| 4.6 |
|
Form of warrant agreement and warrant certificate, if any. |
To the extent applicable, to be filed by a post-effective amendment or as an exhibit to a document filed under the Securities Exchange Act, as amended, and incorporated by reference herein. |
| 4.7 |
|
Form of unit agreement and unit certificate, if any. |
To the extent applicable, to be filed by a post-effective amendment or as an exhibit to a document filed under the Securities Exchange Act, as amended, and incorporated by reference herein. |
| |
|
|
|
| 5.1 |
|
Opinion of Loeb & Loeb LLP regarding Nevada law. |
Filed herewith. |
| 5.2 |
|
Opinion of Loeb & Loeb LLP regarding NY law. |
Filed herewith. |
| 23.1 |
|
Consent of Robison, Hill & Co., an independent registered public accounting firm. |
Previously filed. |
| 23.2 |
|
Consent of Loeb & Loeb LLP |
Included in Exhibits 5.1 and 5.2. |
| 24.1 |
|
Powers of Attorney. |
Previously filed. |
| 25.1 |
|
Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of a trustee acceptable to the registrant, as trustee under the Indenture. |
To the extent applicable, to be filed under Form 305B2. |
Exhibit 5.1
October 24, 2014
|
Nuvilex, Inc.
12510 Prosperity Drive, Suite 310
Silver Spring, Maryland 20904 |
Ladies and Gentlemen:
We have acted as U.S. securities
counsel to Nuvilex, Inc., a Nevada corporation (the “Company”), in connection with the Registration Statement
on Form S-3 (File No. 333-199440) (the “Registration Statement”) filed by the Company with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the “Act”), for the issuance and sale from
time to time, on a delayed basis, by the Company of (i) common stock, par value $0.0001 per share (the “Common Stock”),
(ii) preferred stock, par value $0.0001 per share (the “Preferred Stock”), (iii) debt securities of the Company
(the “Debt Securities”), in one or more series, (iv) warrants to purchase Common Stock, Preferred Stock or Debt
Securities (the “Warrants”), and/or (v) units consisting of one or more of the foregoing (the “Units”),
in each case as contemplated by the Registration Statement (including the prospectus constituting part thereof (the “Prospectus”))
to which this opinion letter has been filed as an exhibit.
The Common Stock, Preferred
Stock, Debt Securities, Warrants and Units are collectively referred to herein as the “Securities.” The Securities
being registered are for a maximum aggregate offering price of $50,000,000.00. The Securities may be offered and sold from time
to time pursuant to Rule 415 under the Act, at which time it is contemplated that the Prospectus will be supplemented in the future
by one or more supplements to the Prospectus (each, a “Prospectus Supplement”).
We have examined originals
or copies, certified or otherwise identified to our satisfaction, of such corporate records of the Company and other certificates
and documents of officials of the Company, public officials and others as we have deemed appropriate for purposes of this letter.
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 copies submitted to us as conformed and certified or reproduced copies.
Based upon the foregoing
and subject to the additional qualifications set forth below, we are of the opinion that:
1. With respect to the Common
Stock, when (a) the issuance and terms of sale of the shares of Common Stock have been duly authorized by the board of directors
of the Company in conformity with its Articles of Incorporation, (b) such shares have been issued and delivered against payment
of the purchase price therefor in an amount in excess of the par value thereof, in accordance with the applicable definitive purchase,
underwriting or similar agreement, and as contemplated by the Registration Statement, the Prospectus and the related Prospectus
Supplement, and, (c) if issued upon the conversion, exchange or exercise of Debt Securities or Warrants, such shares have been
duly issued and delivered as contemplated by the terms of the applicable indenture or Warrant, such shares of Common Stock will
be validly issued, fully paid and nonassessable.
2. With respect to the Preferred Stock,
when (a) the issuance and terms of sale of the shares of Preferred Stock have been duly authorized by the board of directors of
the Company in conformity with its Articles of Incorporation, (b) an appropriate certificate or certificates of designation relating
to a class or series of the Preferred Stock to be sold under the Registration Statement has or have been duly authorized and adopted
and filed with the Secretary of State of Nevada, (c) the terms of issuance and sale of shares of such class or series of Preferred
Stock have been duly established in conformity with the Company’s Articles of Incorporation and Bylaws so as to not violate
any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company and comply with
any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company or any of its property,
(d) such shares have been issued and delivered against payment of the purchase price therefor in an amount in excess of the par
value thereof, in accordance with the applicable definitive purchase, underwriting or similar agreement, and as contemplated by
the Registration Statement, the Prospectus and the related Prospectus Supplement, and, (e) if issued upon the conversion, exchange
or exercise of any Debt Securities or Warrants, when such shares have been duly issued and delivered as contemplated by the terms
of the applicable indenture or Warrant, the shares of Preferred Stock will be validly issued, fully paid and nonassessable.
Our opinion is limited
to the applicable statutory provisions of the Nevada Private Corporations Chapter of the Nevada Revised Statutes, Nev. Rev. Stat. 78,
including interpretations thereof in published decisions of the Nevada courts, and applicable provisions of the Nevada Constitution.
We express no opinion with respect to any other laws.
We hereby consent to the
filing of this opinion as an exhibit to the Registration Statement and to the reference made to us under the caption “Legal
Matters” in the Prospectus. 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 Act, the rules and regulations of the Securities and Exchange Commission promulgated
thereunder or Item 509 of Regulation S-K promulgated under the Act.
| |
Very truly yours,
/s/ Loeb & Loeb LLP
Loeb & Loeb LLP
|
Exhibit 5.2
October 24, 2014
Nuvilex, Inc.
12510 Prosperity Drive, Suite 310
Silver Spring, Maryland 20904
| Re: | Registration Statement on Form S-3
(File No. 333-199440) |
Ladies and Gentlemen:
We have acted as U.S. securities counsel for
Nuvilex, Inc., a Nevada corporation (the “Company”), in connection with the registration for issuance and sale
from time to time, on a delayed basis, by the Company of (i) common stock, par value $0.0001 per share (the
“Common Stock”), (ii) preferred stock, par value $0.0001 per share (the “Preferred Stock”), (iii)
debt securities of the Company (the “Debt Securities”), in one or more series, (iv) warrants to purchase
Common Stock or debt securities (the “Warrants”), and/or (v) units consisting of one or more of the
foregoing (the “Units”), in each case as contemplated by the Form S-3 Registration Statement referred to above
(including the prospectus constituting part thereof (the “Prospectus”)) and to which this opinion letter has been
filed as an exhibit (the “Registration Statement”). The Common Stock, Preferred Stock, Warrants, Debt Securities
and Units are collectively referred to herein as the “Securities.” The Securities being registered are for a
maximum aggregate offering price of $50,000,000.00. The Securities may be offered and sold from time to time pursuant to Rule
415 under the Securities Act of 1933, as amended (the “Securities Act”), at which time it is contemplated that
the Prospectus will be supplemented in the future by one or more supplements to the Prospectus (each, a
“Prospectus Supplement”).
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such corporate records of the Company and other certificates and documents of officials of the
Company, public officials and others as we have deemed appropriate for purposes of this letter. 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 copies submitted to us as conformed and certified or reproduced copies.
Based upon the foregoing and subject to the assumptions, exceptions,
qualifications and limitations set forth hereinafter, we are of the opinion that the Warrants, the Debt Securities and the Units,
insofar as the Units include Warrants or Debt Securities, upon issuance and delivery of certificates (or book-entry notation if
uncertificated) for such Securities against payment therefor as set forth in the Registration Statement, Prospectus or a Prospectus
Supplement, will constitute valid and legally binding obligations of the Company.
In rendering the foregoing opinions, we have assumed that:
(i) the Registration Statement, and any amendments thereto, shall have become effective under the Securities Act and will
remain effective at the time of issuance of any Securities thereunder; (ii) a Prospectus Supplement describing each class
or series of Securities offered pursuant to the Registration Statement, to the extent required by applicable law and relevant
rules and regulations of the Securities and Exchange Commission (the “Commission”), will be timely filed with the
Commission; (iii) the Company will issue and deliver the Securities in the manner contemplated by the Registration Statement,
the Prospectus, the applicable Prospectus Supplement and any applicable underwriting agreement; and (iv) all Securities will be
issued in compliance with applicable federal and state securities laws.
With respect to any Securities consisting of Warrants, we have
further assumed that (i) such Warrants shall have been issued pursuant to a warrant agreement approved by us (individually, and
as supplemented from time to time, a “Warrant Agreement”) between the Company and a warrant agent to be identified
in the applicable Prospectus Supplement (the “Warrant Agent”); (ii) such Warrant Agreement shall have been duly authorized,
executed and delivered on behalf of the Company; (iii) such Warrant Agreement shall be governed by the laws of the State of New
York; (iv) all terms of such Warrants shall have been established in accordance with the provisions of such Warrant Agreement(s);
(v) such Warrants shall have been duly executed, issued and delivered in accordance with the provisions of such Warrant Agreement(s);
(vi) such Warrants and the related Warrant Agreement(s), as executed and delivered, do not violate any law applicable to the Company
or result in a default under or breach of any agreement or instrument binding upon the Company; and (vii) such Warrants and the
related Warrant Agreement(s), as executed and delivered, comply with all requirements and restrictions, if any, applicable to the
Company, in any case whether imposed by any court or governmental or regulatory body having jurisdiction over the Company.
To the extent that the obligations of the Company under any
Warrant or Warrant Agreement may be dependent on such matters, we further have assumed for purposes of this opinion that the Warrant
Agent under each Warrant Agreement (i) is duly organized, validly existing and in good standing under the laws of its jurisdiction
of organization; (ii) is duly qualified to engage in the activities contemplated by such Warrant Agreement; (iii) has duly authorized,
executed and delivered such Warrant Agreement, and such Warrant Agreement constitutes the legally valid and binding obligation
of such Warrant Agent, enforceable against such Warrant Agent in accordance with its terms; (iv) is in compliance, with respect
to acting as a Warrant Agent under such Warrant Agreement, with all applicable laws and regulations; and (v) has the requisite
organizational and legal power and authority to perform its obligations under such Warrant Agreement.
With respect to any Securities consisting of Debt Securities,
we have further assumed that: (i) such Debt Securities shall have been issued pursuant to an indenture approved by us (individually,
and as supplemented from time to time, an “Indenture”) between the Company and a trustee to be identified in the applicable
Prospectus Supplement (the “Trustee”); (ii) such Indenture shall have been duly authorized, executed and delivered
on behalf of the Company; (iii) such Indenture shall be governed by the laws of the State of New York; (iv) all terms
of such Debt Securities not provided for in such Indenture shall have been established in accordance with the provisions of the
Indenture and reflected in appropriate documentation approved by us and, if applicable, executed and delivered by the Company and
the Trustee; (v) such Debt Securities shall have been duly executed, authenticated, issued and delivered in accordance with
the provisions of such Indenture; (vi) such Debt Securities, as executed and delivered, do not violate any law applicable
to the Company or result in a default under or breach of any agreement or instrument binding upon the Company; and (vii) such
Debt Securities, as executed and delivered, 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.
To the extent that the obligations of the Company under an Indenture
may be dependent on such matters, we further have assumed for purposes of this opinion that the Trustee under each Indenture (i) is
duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; (ii) is duly qualified
to engage in activities contemplated by such Indenture; (iii) has duly authorized, executed and delivered such Indenture,
and such Indenture constitutes the legally valid and binding obligation of such Trustee, enforceable against such Trustee in accordance
with its terms; (iv) is in compliance, with respect to acting as a trustee under such Indenture, with all applicable laws
and regulations; and (v) has the requisite organizational and legal power and authority to perform its obligations under such
Indenture.
The opinions set forth above are subject to the following exceptions,
limitations and qualifications: (i) the effect of bankruptcy, insolvency, reorganization, arrangement, moratorium, fraudulent
conveyance, fraudulent transfer and other similar laws relating to or affecting the rights of creditors; (ii) the effect of
general principles of equity (including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing
and the possible unavailability of specific performance, injunctive relief and other equitable remedies), regardless of whether
considered in a proceeding at law or in equity; and (iii) the effect of public policy considerations that may limit the rights
of the parties to obtain further remedies.
We express no opinion with respect to the enforceability of:
(i) provisions relating to choice of law, choice of venue, jurisdiction or waivers of jury trial or (ii) any waiver of
any usury defense. This opinion letter is rendered as of the date hereof, and we disclaim any undertaking to advise you of any
subsequent changes in the facts stated or assumed herein or any subsequent changes in applicable law that may come to our attention,
and we have assumed that no change in the facts stated or assumed herein or in applicable law after the date hereof will affect
adversely our ability to render an opinion letter after the date hereof (i) containing the same legal conclusions set forth
herein and (ii) subject only to such (or fewer) assumptions, limitations and qualifications as are contained herein.
While certain members of this firm are admitted to practice
in certain jurisdictions other than New York, in rendering the foregoing opinions we have not examined the laws of any jurisdiction
other than New York. Accordingly, the opinions we express herein are limited to matters involving New York law.
We hereby consent to the filing of this opinion letter with
the Commission as Exhibit 5.2 to the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation
S-K under the Securities Act and to the reference to our firm therein and in the Prospectus and any Prospectus Supplement under
the caption “Legal Matters.” In giving such consent, we do not thereby admit that this firm is within the category
of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission
under such Section.
| |
Very truly yours,
/s/ Loeb & Loeb LLP
Loeb & Loeb LLP
|