December 20, 2000
23855-0001
Neurobiological Technologies, Inc.
3260 Blume Drive, Suite 500
Richmond, California 94806
Re: Registration Statement on Form S-8
Dear Ladies and Gentlemen:
We have acted as counsel to Neurobiological Technologies, Inc., a Delaware
corporation (the "Company"), in connection with the Registration Statement on
Form S-8 (the "Registration Statement") which the Company proposes to file with
the Securities and Exchange Commission on December 20, 2000 for the purpose of
registering under the Securities Act of 1933, as amended, an additional 150,000
shares of its Common Stock, par value $.001 (the "Shares") under the Company's
Amended and Restated Employee Stock Purchase Plan (the "ESPP").
We have assumed the authenticity of all records, documents and instruments
submitted to us as originals, the genuineness of all signatures, the legal
capacity of natural persons and the conformity to the originals of all records,
documents and instruments submitted to us as copies.
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In rendering our opinion, we have examined the following records, documents
and instruments:
(a) The Restated Certificate of Incorporation of the Company, certified by
the Delaware Secretary of State as of December 8, 2000, and certified
to us by an officer of the Company as being complete and in full force
as of the date of this opinion;
(b) The Bylaws of the Company certified to us by an officer of the Company
as being complete and in full force and effect as of the date of this
opinion;
(c) A Certificate of an officer of the Company (i) attaching records
certified to us as constituting all records of proceedings and actions
of the Board of Directors, including any committee thereof, and
stockholders of the Company relating to the Shares, the ESPP and the
Registration Statement, and (ii) certifying as to certain factual
matters;
(d) The Registration Statement;
(e) The ESPP; and
(f) A letter from ChaseMellon Shareholder Services, LLC, the Company's
transfer agent, dated December 15, 2000, as to the number of shares of
the Company's common stock that were outstanding on December 14, 2000.
This opinion is limited to the federal laws of the United States of
America, the laws of the State of California, and the General Corporation Law of
the State of Delaware (which includes applicable provisions of the Delaware
Constitution and reported judicial decisions interpreting the Delaware General
Corporation Law and the Delaware Constitution) as to corporate formalities, and
we disclaim any opinion as to the laws of any other jurisdiction. We further
disclaim any opinion as to any other statute, rule, regulation, ordinance, order
or other promulgation of any other jurisdiction or any regional or local
governmental body or as to any related judicial or administrative opinion.
Based upon the foregoing and our examination of such questions of law as we
have deemed necessary or appropriate for the purpose of this opinion, and
assuming that (i) the Registration Statement becomes and remains effective
during the period when the Shares are offered and issued, (ii) the full
consideration stated in the ESPP is paid for each Share and that such
consideration in respect of each Share includes payment of cash or other lawful
consideration at least equal to the par value thereof, and (iii) all applicable
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securities laws are complied with, it is our opinion that when issued and sold
by the Company, after payment therefor in the manner provided in the ESPP and
the Registration Statement, the Shares will be legally issued, fully paid and
nonassessable.
This opinion is rendered to you in connection with the Registration
Statement and we disclaim any obligation to advise you of any change of law that
occurs, or any facts of which we may become aware, after the date of this
opinion.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Heller Ehrman White & McAuliffe LLP
