-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, IIW+V1g0o/297k7NsSB9XQFb7Z7tXoOMzTQ3n2qxL925l9d5WQAnLJ+8RifEVjTU w+xToVoD7K5AIhjwP+i2oA== 0000922907-05-000386.txt : 20050611 0000922907-05-000386.hdr.sgml : 20050611 20050602094242 ACCESSION NUMBER: 0000922907-05-000386 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20050526 ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20050602 DATE AS OF CHANGE: 20050602 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NOVASTAR FINANCIAL INC CENTRAL INDEX KEY: 0001025953 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 742830661 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-13533 FILM NUMBER: 05872276 BUSINESS ADDRESS: STREET 1: 8140 WARD PARKWAY STREET 2: STE 300 CITY: KANSAS CITY STATE: MO ZIP: 64114 BUSINESS PHONE: 8162377000 MAIL ADDRESS: STREET 1: 8140 WARD PARKWAY STREET 2: STE 300 CITY: KANSAS CITY STATE: MO ZIP: 64114 8-K 1 form8k_060105.htm Form 8-K

                                  UNITED STATES
                       SECURITIES AND EXCHANGE COMMISSION
                             Washington, D.C. 20549

                                    FORM 8-K

                                 CURRENT REPORT
                     PURSUANT TO SECTION 13 OR 15(d) OF THE
                         SECURITIES EXCHANGE ACT OF 1934

                                  May 26, 2005
                Date of report (Date of earliest event reported)

                            NOVASTAR FINANCIAL, INC.
             (Exact name of registrant as specified in its charter)

        Maryland                   001-13533               74-2830661
(State or other jurisdiction  (Commission File Number)   (IRS Employer
       of incorporation)                                Identification No.)

               8140 Ward Parkway, Suite 300, Kansas City, MO 64114
             (Address of principal executive offices and zip code)

                                 (816) 237-7000
              (Registrant's telephone number, including area code)

                                 Not Applicable
          (Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):

 Written  communications  pursuant to Rule 425 under the  Securities  Act (17 CFR
230.425)

 Soliciting  material  pursuant  to Rule 14a- 12 under the  Exchange  Act (17 CFR
240.14a-12)

 Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act
(17 CFR 240.14d-2(b))

 Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act
(17 CFR 240.13e-4(c))




Item 9.01 - Financial Statements and Exhibits

         The following documents are filed with reference to and are hereby
incorporated by reference into the Registration Statement on Form S-3 (File No.
333-110574), of NovaStar Financial, Inc., filed with the Securities and Exchange
Commission on November 18, 2003.

          (c) Exhibits.

          5.1  Opinion of Venable LLP, as to legality (including consent of such
               firm)

          8.1  Opinion of Irvine  Law Group,  P.C.  as to  certain  tax  matters
               (including consent of such firm).

          23.1 Consent of Venable LLP (included in Exhibit 5.1).

          23.2 Consent of Irvine Law Group, P.C. (included in Exhibit 8.1).





                                   SIGNATURES

         Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.

                                          NOVASTAR FINANCIAL, INC.



Date:  June 1, 2005                       By:      /s/ Gregory S. Metz
                                               ---------------------------------
                                                   Gregory S. Metz
                                                   Chief Financial Officer





                                  Exhibit Index


Exhibit
Number
- -------

          5.1  Opinion of Venable LLP, as to legality (including consent of such
               firm)

          8.1  Opinion of Irvine  Law Group,  P.C.  as to  certain  tax  matters
               (including consent of such firm).

          23.1 Consent of Venable LLP (included in Exhibit 5.1).

          23.2 Consent of Irvine Law Group, P.C. (included in Exhibit 8.1).



EX-5 2 form8k_060105exh51.htm EXHIBIT 5.1 Exhibit 5.1


VENABLE® LLP   Two Hopkins Plaza, Suite 1800    Telephone 410-244-7400  www.venable.com
               Baltimore, Maryland 21201-2978   Facsimile 410-244-7742





                                  June 1, 2005

NovaStar Financial, Inc.
Suite 300
8140 Ward Parkway
Kansas City, Missouri 64114

          Re:  Registration Statement on Form S-3 (File No. 333-110574)

Ladies and Gentlemen:

     We have served as Maryland counsel to NovaStar Financial, Inc., a Maryland
corporation (the "Company"), in connection with certain matters of Maryland law
arising out of the issuance of up to 1,725,000 shares (the "Shares") of common
stock, $.01 par value per share (the "Common Stock"), of the Company (including
up to 225,000 Shares which the underwriters in the Offering (as defined herein)
have the option to purchase solely to cover over-allotments), covered by the
above-referenced Registration Statement, and all amendments thereto (the
"Registration Statement"), filed by the Company with the United States
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "1933 Act"). The Shares are to be issued in an
underwritten public offering (the "Offering") pursuant to a Prospectus
Supplement, dated May 26, 2005 (the "Prospectus Supplement"). Unless otherwise
defined herein, capitalized terms used herein shall have the meanings assigned
to them in the Registration Statement.

     In connection with our representation of the Company, and as a basis for
the opinion hereinafter set forth, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of the following
documents (hereinafter collectively referred to as the "Documents"):

          1. The Registration Statement and the related form of prospectus
included therein, substantially in the form filed by the Company with the
Commission;

          2. The Prospectus Supplement, substantially in the form filed by the
Company with the Commission;

          3. The charter of the Company (the "Charter"), certified as of a
recent date by the State Department of Assessments and Taxation of Maryland (the
"SDAT");

          4. The Bylaws of the Company, certified as of the date hereof by an
officer of the Company;



VENABLE® LLP

NovaStar Financial, Inc.
June 1, 2005
Page 2

          5. A certificate of the SDAT as to the good standing of the Company,
dated as of a recent date;

          6. Resolutions adopted by the Board of Directors of the Company
relating to the authorization of the issuance of the Shares (the "Resolutions"),
certified as of the date hereof by an officer of the Company;

          7. A certificate executed by an officer of the Company, dated as of
the date hereof; and

          8. Such other documents and matters as we have deemed necessary or
appropriate to express the opinion set forth below, subject to the assumptions,
limitations and qualifications stated herein.

          In expressing the opinion set forth below, we have assumed the
following:

          1. Each individual executing any of the Documents, whether on behalf
of such individual or any other person, is legally competent to do so.

          2. Each individual executing any of the Documents on behalf of a party
(other than the Company) is duly authorized to do so.

          3. Each of the parties (other than the Company) executing any of the
Documents has duly and validly executed and delivered each of the Documents to
which such party is a signatory, and such party's obligations set forth therein
are legal, valid and binding and are enforceable in accordance with all stated
terms.

          4. All Documents submitted to us as originals are authentic. The form
and content of all Documents submitted to us as unexecuted drafts do not differ
in any respect relevant to this opinion from the form and content of such
Documents as executed and delivered. All Documents submitted to us as certified
or photostatic copies conform to the original documents. All signatures on all
such Documents are genuine. All public records reviewed or relied upon by us or
on our behalf are true and complete. All representations, warranties, statements
and information contained in the Documents are true and complete. There has been
no oral or written modification of or amendment to any of the Documents, and
there has been no waiver of any provision of any of the Documents, by action or
omission of the parties or otherwise.



VENABLE® LLP

NovaStar Financial Inc.
June 1, 2005
Page 3


          5. The Shares will not be issued in violation of any restriction or
limitation contained in the Charter.

          Based upon the foregoing, and subject to the assumptions, limitations
and qualifications stated herein, it is our opinion that:

          1. The Company is a corporation duly incorporated and existing under
and by virtue of the laws of the State of Maryland and is in good standing with
the SDAT.

          2. The issuance of the Shares has been duly authorized and, when
issued and delivered by the Company pursuant to the Resolutions and the
Registration Statement against payment of the consideration set forth therein,
the Shares will be validly issued, fully paid and nonassessable.

          The foregoing opinion is limited to the substantive laws of the State
of Maryland, and we do not express any opinion herein concerning any other law.
We express no opinion as to the applicability or effect of any federal or state
securities laws, including the securities laws of the State of Maryland, or as
to federal or state laws regarding fraudulent transfers. To the extent that any
matter as to which our opinion is expressed herein would be governed by the laws
of any jurisdiction other than the State of Maryland, we do not express any
opinion on such matter.

          The opinion expressed herein is limited to the matters specifically
set forth herein and no other opinion shall be inferred beyond the matters
expressly stated. We assume no obligation to supplement this opinion if any
applicable law changes after the date hereof or if we become aware of any fact
that might change the opinion expressed herein after the date hereof.

          This opinion is being furnished to you solely for submission to the
Commission as an exhibit to the Company's Current Report on Form 8-K, filed on
our about the date hereof (the "Current Report"), which is incorporated by
reference in the Registration Statement, and, accordingly, may not be relied
upon by, quoted in any manner to, or delivered to any other person or entity
without, in each instance, our prior written consent. We hereby consent to the
filing of this opinion as an exhibit to the Current Report and the said
incorporation by reference and to the use of the name of our firm therein. In
giving this consent, we do not admit that we are within the category of persons
whose consent is required by Section 7 of the 1933 Act.

                                          Very truly yours,


                                          /s/ Venable LLP



EX-8 3 form8k_060105exh81.htm EXHIBIT 8.1 TO FORM 8-K - IRVINE LAW GROUP, P.C. Exhibit 8.1 to Form 8-K

                             IRVINE LAW GROUP, P.C.
                               ATTORNEYS AT LAW
                            1300 BRISTOL STREET NORTH
                                    SUITE 100
                         NEWPORT BEACH, CALIFORNIA 92660
                            Telephone (949) 265-2620
                            Facsimile (949) 265-2640

                                  June 1, 2005

NovaStar Financial, Inc.
8140 Ward Parkway, Suite 300
Kansas City, MO  64114

          Re: Registration Statement on Form S-3

Ladies and Gentlemen:

     This is an  opinion  (the  "Opinion")  which you have  requested  as to the
discussion  entitled  "Federal  Income Tax  Considerations"  as set forth in the
Prospectus and the Prospectus Supplement (together, the "Prospectus"), contained
in the Registration  Statement on Form S-3 of the NovaStar Financial,  Inc. (the
"Company"),  filed  by  the  Company,  in  connection  with  the  issuance  (the
"Offering") of 1,725,000 shares of Common Stock.

     The Company is a Maryland corporation that is intended to qualify as a real
estate  investment  trust ("REIT") under the Internal Revenue Code (the "Code").
Capitalized  terms used in this Opinion and not otherwise defined are as defined
in the  Prospectus.  Our Opinion is based on existing  law,  including the Code,
existing  Treasury  Regulations,   Revenue  Rulings,  Revenue  Procedures,  U.S.
Department of Labor  regulations and  administrative  interpretations,  proposed
regulations   and  case  law,  all  of  which  are  subject  to  change   either
prospectively or retroactively. No assurance can be given that such existing law
may not change in a manner that would modify the  conclusions  expressed in this
Opinion.  Moreover,  relevant laws could change in a manner that could adversely
affect the Company or its  stockholders.  We have no obligation to inform you of
any such change in the law. We have not been requested to opine, and we have not
opined,  as to any issues  other than those  expressly  set forth  herein.  This
Opinion  extends  only to questions  under the Code.  We express no opinion with
respect to any other law or the laws of any other jurisdiction.

     Our  Opinion  is  based  upon  certain   statements,   representations  and
warranties  made by the Company as to factual  matters  regarding  the Company's
assets,  business  and  securities  as set forth in the  Prospectus,  and in the
Company's  letter of even date, to us, and we have assumed that such statements,
representations and warranties are true and accurate. As to such factual matters
material  to  our  Opinion,   we  have  relied  solely  upon  such   statements,
representations  and warranties of the Company. We have assumed the authenticity
of all documents  submitted to us, the genuineness of all signatures,  the legal
capacity  of  all  natural  persons,  the  conformity  to the  originals  of all
documents  submitted to us as copies and the due  execution  and delivery of all
documents   where  due   execution  and  delivery  are   prerequisites   to  the
effectiveness thereof. Without any independent




NovaStar Financial, Inc.
June 1, 2005
Page 2


investigation, no facts have come to our attention, however, that would cause us
to  question  the  accuracy  in  a  material  way  of  any  documents,  letters,
statements, representations or warranties of the Company.

     We are admitted to practice law in the State of California  and our Opinion
is limited to federal  law. Our Opinion is solely for the benefit of the Company
in connection with the Offering.

     Opinion: We have acted as tax counsel to the Company in connection with the
Offering.  In that  connection,  we have reviewed the section of the  Prospectus
entitled  "Federal  Income Tax  Considerations"  and in our opinion such section
identifies and fairly summarizes the federal income tax considerations  that are
likely to be  material to a holder of the  Company's  Common  Stock,  and to the
extent that such  summaries  involve  matters of law, we are of the opinion that
such statements of law are correct under the Code. We expressly confirm that all
of the  opinions  attributed  to tax  counsel in the  section of the  Prospectus
entitled "Federal Income Tax  Considerations"  accurately reflect our opinion on
the outcome of each such issue if  challenged  by the Internal  Revenue  Service
(the "Service").

     The Company's  qualification  as a REIT under the Code will depend upon the
Company's  ability  to meet,  through  actual  operating  results,  distribution
levels,   diversity  of  stock  ownership  and  the  various  income  and  asset
qualification  tests imposed under the Code.  Such operating  results may not be
reviewed by us as tax counsel,  and accordingly,  no assurance can be given that
the actual  results of the  Company's  operations  for any one taxable year will
satisfy  the  requirements  under  the Code for  REIT  qualification.  Moreover,
certain  aspects of the  Company's  operations  have not been  considered by the
courts or the Service.  There can be no assurance that the courts or the Service
will agree with this Opinion.  In addition,  qualification  as a REIT depends on
future transactions and events that cannot be known at this time.

     Consent:  We hereby  consent to the filing of this opinion as an exhibit to
the Registration  Statement and to the references to this firm in the Prospectus
under the captions  "Federal Income Tax  Considerations"  and "Legal Matters" in
connection with this opinion.

                                     Very truly yours,

                                     IRVINE LAW GROUP, P.C.

                                     /s/ Michael B. Shaff

                                     Michael E. Shaff



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