EXHIBIT 5.1
Published on July 30, 2008
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July
29, 2008
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Rexahn
Pharmaceuticals, Inc.
9620
Medical Center Drive
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Re:
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Form
S-3 Registration Statement
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Ladies
and Gentlemen:
We are
acting as counsel to Rexahn Pharmaceuticals, Inc., a Delaware
corporation (the “Company”), in connection with
its registration statement on Form S-3 (the “Registration Statement”),
filed with the Securities and Exchange Commission relating to the proposed
public offering of up to $[60,000,000] in aggregate amount (the “Amount”) of (i) shares of
the Company’s preferred stock, par value $0.0001 per share (the “Preferred Stock”),
(ii) shares of the Company’s common stock, par value $0.0001 per share (the
“Common Stock”),
(iii) one or more series of senior or subordinated debt securities (the
“Debt Securities”) or
(iv) warrants (the “Warrants”) to purchase
Preferred Stock, Common Stock or Debt Securities, or any combination of
Preferred Stock, Common Stock, Debt Securities and Warrants up to the
Amount.
The
Preferred Stock, Common Stock, Warrants and Debt Securities are herein referred
to as “Securities.” The
Securities may be offered and sold by the Company from time to time on a delayed
or continuous basis as set forth in the prospectus that forms a part of the
Registration Statement (the “Prospectus”) and as set forth
in one or more supplements to the Prospectus (each, a “Prospectus
Supplement”). This opinion letter is furnished to you at your
request to enable you to fulfill the requirements of Item 601(b)(5) of
Regulation S-K, 17 C.F.R. § 229.601(b)(5), in connection with the
Registration Statement.
For
purposes of this opinion letter, we have examined copies of the following
documents (the “Documents”):
1. An
executed copy of the Registration Statement.
2. The
Restated Certificate of Incorporation of the Company (the “Charter”), as certified by the
Secretary of State of the State of Delaware on July 24, 2008 and by the
Secretary of the Company on the date hereof as being complete, accurate and in
effect.
3. The
Amended and Restated Bylaws of the Company (the “Bylaws”), as certified by the
Secretary of the Company on the date hereof as being complete, accurate and in
effect.
4. The
Form of Senior Indenture and the Subordinated Indenture filed as Exhibits 4.2
and 4.3, respectively, to the Registration Statement.
5. Resolutions
of the Board of Directors of the Company adopted by unanimous written
consent without a meeting held effective as of July 29, 2008, as
certified by the Secretary of the Company on the date hereof as being complete,
accurate and in effect, relating to the filing by the Company of the
Registration Statement and other related matters (the “Securities
Resolutions”).
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Board of
Directors
Rexahn
Pharmaceuticals, Inc.
Page 2 of
4
July 29,
2008
In our
examination of the aforesaid Documents, we have assumed the genuineness of all
signatures, the legal capacity of all natural persons, the accuracy and
completeness of all documents submitted to us, the authenticity of all original
documents and the conformity to authentic original documents of all documents
submitted to us as copies (including telecopies). In rendering this
opinion, we have relied as to certain factual matters on information obtained
from public officials, officers of the Company and other sources believed by us
to be responsible. This opinion letter is given, and all statements
herein are made, in the context of the foregoing.
For
purposes of this opinion letter, we have assumed that (i) the issuance,
sale, amount and terms of the Securities, to be offered from time to time, will
be duly authorized and established by proper action of the Board of Directors of
the Company or a duly authorized committee of the Board of Directors consistent
with the procedures and terms described in the Registration Statement and in
accordance with the Securities Resolutions, Charter, Bylaws and applicable
Delaware law (each, a “Board
Action”) in a manner that does not violate any law, government or
court-imposed order or restriction or agreement or instrument then binding on
the Company or otherwise impair the legal or binding nature of the obligations
represented by the applicable Securities; (ii) at the time of offer,
issuance and sale of any Securities, the Registration Statement will have been
declared effective under the Securities Act of 1933, as amended (the “Act”), and no stop order
suspending its effectiveness will have been issued and remain in effect;
(iii) any Debt Securities will be issued under an indenture in the form set
forth as Exhibit 4.2 or 4.3 to the Registration Statement, as applicable;
(iv) any Warrants will be issued under one or more warrant agreements,
which will state that New York law governs; (v) prior to any issuance of
Preferred Stock, appropriate certificates of designation will have been duly
authorized and adopted by appropriate Board Action and filed with the Secretary
of State of the State of Delaware; (vi) the Securities will be delivered
against payment of valid consideration therefor and in accordance with the terms
of the applicable Board Action authorizing such sale and any applicable
underwriting agreement or purchase agreement and as contemplated by the
Registration Statement and/or the applicable Prospectus Supplement; and
(vii) the Company will remain a Delaware corporation.
To the
extent that the obligations of the Company with respect to the Securities may be
dependent upon such matters, we assume for purposes of this opinion that the
other party under the indenture for any Debt Securities and under the warrant
agreement for any Warrants, namely, the trustee or the warrant agent,
respectively, is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization; that such other party is duly
qualified to engage in the activities contemplated by such indenture or warrant
agreement, as applicable; that such indenture or warrant agreement, as
applicable, has been duly authorized, executed and delivered by the other party
and constitutes the legal, valid and binding obligation of the other party
enforceable against the other party in accordance with its terms; that such
other party is in compliance with respect to performance of its obligations
under such indenture or warrant agreement, as applicable, with all applicable
laws and regulations; and that such other party has the requisite organizational
and legal power and authority to perform its obligations under such indenture or
warrant agreement, as applicable.
This
opinion letter is based as to matters of law solely on the applicable provisions
of the following, as currently in effect: (i) as to the opinions given in
paragraphs (b) and (c), the Delaware General Corporation Law, as amended,
and (ii) as to the opinions given in paragraphs (a) and (d), the laws of
the State of New York. We express no opinion herein as to any other
laws, statutes, ordinances, rules, or regulations. As used herein,
the terms “Delaware General Corporation Law, as amended” and “the laws of the
State of New York” include the statutory provisions contained therein, all
applicable provisions of the Delaware Constitution or New York Constitution, as
applicable, and reported judicial decisions interpreting these
laws.
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Board of
Directors
Rexahn
Pharmaceuticals, Inc.
Page 3
of 4
July 29,
2008
Based
upon, subject to and limited by the foregoing, we are of the opinion
that:
(a) With
respect to any Debt Securities (including any Debt Securities issued upon the
exercise of Warrants), upon (i) due execution and delivery of an indenture
in the form set forth as Exhibit 4.2 or 4.3 to the Registration Statement,
as applicable, on behalf of the Company and a trustee qualified to act as such
under applicable law, (ii) final Board Action authorizing the issuance of a
series of Debt Securities, the terms of which have been duly established in
accordance with the provisions of the applicable indenture, (iii) due
authentication by the trustee, (iv) due execution, issuance and delivery of
such Debt Securities against payment of the consideration therefor specified in
any applicable underwriting agreement or purchase agreement approved by the
Board of Directors and otherwise in accordance with the applicable indenture and
any applicable supplemental indenture and such agreement, and (v) in the
case of any Debt Securities to be issued under any Warrants, due exercise of and
payment of the exercise price specified in such Warrants, the Debt Securities
will constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms.
(b) With
respect to any Preferred Stock (including any Preferred Stock that is issued
upon the exercise of any Warrants), upon (i) final Board Action authorizing
and establishing a series of the Preferred Stock in accordance with the terms of
the Charter, the Bylaws and applicable law, (ii) filing of an appropriate
certificate of designation with respect to such Preferred Stock, (iii) final
Board Action authorizing issuance of such shares of Preferred Stock,
(iv) receipt by the Company of the consideration therefor specified in any
applicable underwriting agreement or purchase agreement approved by the Board of
Directors, and (v) in the case of any Preferred Stock to be issued under
any Warrants, upon due exercise of and payment of the exercise price specified
in such Warrants, the Preferred Stock will be validly issued, fully paid and
nonassessable.
(c) With
respect to any Common Stock (including any Common Stock issued upon the exchange
or conversion of Debt Securities or Preferred Stock that are exchangeable for or
convertible into Common Stock or upon the exercise of Warrants) upon
(i) final Board Action authorizing issuance of such shares of Common Stock,
(ii) receipt by the Company of the consideration therefor specified in any
applicable underwriting agreement or purchase agreement approved by the Board of
Directors, (iii) in the case of any Common Stock to be issued under any
Warrants, due exercise of and payment of the exercise price specified in such
Warrants, and (iv) in the case of any Common Stock to be issued upon the
exchange or conversion of Debt Securities or Preferred Stock that are
exchangeable for or convertible into Common Stock, due exercise of such exchange
or conversion rights in accordance with the terms of the applicable instruments,
the Common Stock will be validly issued and the Common Stock will be fully paid
and nonassessable.
(d) With
respect to any Warrants, upon (i) final Board Action authorizing execution
and delivery of a warrant agreement, (ii) due execution and delivery of a
warrant agreement on behalf of the Company and the parties named therein,
(iii) due execution, countersignature, issuance and delivery of the
Warrants against payment of the consideration therefor specified in any
applicable underwriting agreement or purchase agreement approved by the Board of
Directors and otherwise in accordance with the warrant agreement and such
agreement, the Warrants will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms.
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Board of
Directors
Rexahn
Pharmaceuticals, Inc.
Page 4
of 4
July 29,
2008
In
addition to the qualifications, exceptions and limitations elsewhere set forth
in this opinion letter, our opinions expressed above are also subject to the
effect of: (i) bankruptcy, insolvency, reorganization, receivership,
moratorium or other laws affecting creditors’ rights (including, without
limitation, the effect of statutory and other laws regarding fraudulent
conveyances, fraudulent transfers and preferential transfers); and (ii) the
exercise of judicial discretion and the application of principles of equity
including, without limitation, requirements of good faith, fair dealing,
reasonableness, conscionability and materiality (regardless of whether the
applicable agreements are considered in a proceeding in equity or at
law).
This
opinion letter has been prepared for your use in connection with the
Registration Statement and speaks as of the date hereof. We assume no
obligation to advise you of any changes in the foregoing subsequent to the
delivery of this opinion letter.
We hereby
consent to the filing of this opinion letter as Exhibit 5.1 to the
Registration Statement and to the reference to this firm under the caption
“Legal Matters” in the Prospectus. In giving this consent, we do not thereby
admit that we are an “expert” within the meaning of the Act, as
amended.
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Very
truly yours,
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| /s/ CHADBOURNE & PARKE LLP | |
| Chadbourne & Parke LLP |