December 2, 2020
Cancer Genetics, Inc.
201 Route 17 North
Rutherford, New Jersey 07070
Ladies and Gentlemen:
We have acted as counsel to Cancer Genetics, Inc., a Delaware corporation (the “Company”), in connection with the issuance and sale by the Company from time to time of common stock, par value $0.0001 per share, of the Company (“Common Stock”), having an aggregate offering price of up to $2,400,000 (the “Shares”) pursuant to that certain At The Market Offering Agreement dated December 2, 2020 (the “ATM Agreement”) between the Company and H.C. Wainwright & Co., LLC. The Shares have been registered on a Registration Statement on Form S-3 (File No. 333-239497) (such registration statement, including documents incorporated by reference therein, the “Registration Statement”), initially filed by the Company with the Securities and Exchange Commission (the “Commission”) on June 26, 2020.
This opinion letter is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the “Securities Act”).
The Company has requested our opinion as to the matters set forth below in connection with the Registration Statement. For the purposes of rendering that opinion, we have examined: (i) the Registration Statement, including the exhibits filed therewith; (ii) the ATM Agreement; (iii) the Company’s prospectus supplement, dated December 2, 2020, filed with the Commission pursuant to Rule 424(b) under the Securities Act (including the documents incorporated or deemed incorporated by reference therein) (the “Prospectus Supplement”); (iv) the Company’s Fourth Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”); (v) the Company’s Amended and Restated Bylaws; and (vi) the corporate action of the Company that provides for the issuance of the Shares (the “Authorizing Resolutions”). We have also made such other investigation as we have deemed appropriate. We have examined and relied upon certificates of public officials and such other documents and instruments, and, as to certain matters of fact that are material to our opinion, we have also relied upon a certificate of an officer of the Company. We have considered such matters of law as we have deemed necessary to render the opinion contained herein.
For the purposes of this opinion letter, we have made assumptions that are customary in opinion letters of this kind, including the assumptions that each document submitted to us is accurate and complete, that each such document that is an original is authentic, that each such document that is a copy conforms to an authentic original, the conformity to the original or final versions of the documents submitted to us as copies or drafts and that all signatures on each such document are genuine. We have further assumed the legal capacity of natural persons. We have not verified any of those assumptions.
In rendering our opinion below, we also have assumed that: (i) the Company will have sufficient authorized and unissued shares of Common Stock at the time of each issuance of Shares pursuant to the ATM Agreement to provide for such issuance, (ii) the issuance of all Shares will be duly noted in the Company’s stock ledger upon issuance, (iii) the ATM Agreement constitutes the valid and binding agreement of the parties thereto, enforceable against the parties thereto in accordance with its terms, and (iv) prior to the issuance of any of the Shares, the Pricing Committee established by the Authorizing Resolutions will determine the price and certain other terms of issuance of such Shares in accordance with the Authorizing Resolutions. We have not verified any of those assumptions.
Our opinion set forth below is limited to the Delaware General Corporation Law (the “DGCL”) and reported judicial decisions interpreting the DGCL.
Based upon and subject to the foregoing, it is our opinion that the Shares have been duly and validly authorized for issuance by the Company and, when issued and delivered by the Company and paid for pursuant to the ATM Agreement, will be validly issued, fully paid and nonassessable.
The opinion set forth above is subject to the following additional assumptions: (i) the effectiveness of the Registration Statement and any amendment thereto (including any post-effective amendment) under the Securities Act shall not have been terminated, suspended or rescinded, and (ii) all Shares offered pursuant to the Registration Statement will be issued and sold (a) in compliance with all applicable federal and state securities laws, rules and regulations and solely in the manner provided in the Registration Statement and the Prospectus and (b) only upon payment of the consideration fixed therefor in accordance with the ATM Agreement and there will not have occurred any change in law or fact affecting the validity of any of the opinions rendered herein with respect thereto. We assume no obligation to update or supplement our opinion to reflect any changes of law or fact that may occur.
We hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to the Company’s Current Report on Form 8-K filed on December 2, 2020 and to the incorporation by reference of this opinion in the Registration Statement, and to the reference to our firm under the caption “Experts” in the Prospectus Supplement. In giving our consent we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules or regulations thereunder. This opinion is expressed as of the date hereof, and we disclaim any undertaking to advise of any subsequent changes in the facts stated or assumed herein or any subsequent changes in law.
|/s/ Lowenstein Sandler LLP|
|Lowenstein Sandler LLP|