EXHIBIT 5.1
Published on October 20, 2009
Exhibit 5.1
[Letterhead
of Chadbourne & Parke LLP]
October
20, 2009
Board of
Directors
Rexahn
Pharmaceuticals, Inc.
9620
Medical Center Drive
Rockville,
Maryland 20850
Ladies
and Gentlemen:
This
opinion is furnished to Rexahn Pharmaceuticals, Inc., a Delaware corporation
(the “Company”), in
connection with the proposed public offering (the “Offering”) by the Company of
up to 6,072,383 shares (the “Shares”) of the Company’s
common stock, par value $0.0001 per share (the “Common Stock”), common stock
purchase warrants (the “Warrants”) to purchase up to
2,125,334 shares of Common Stock, and the shares of Common Stock issuable upon
the exercise of the Warrants (the “Warrant Shares”) pursuant to
the Registration Statement on Form S-3 (file no. 333-152640), which
was declared effective by the Securities and Exchange Commission (the “Commission”) on August 8,
2008 (the “Registration
Statement”) under the Securities Act of 1933, as amended (the “Securities Act”), the base
Prospectus dated August 8, 2008 and the related Prospectus Supplement to
be filed with the Commission (together with the base Prospectus the
“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 such agreements,
instruments and documents as we have deemed an appropriate basis on which to
render the opinions hereinafter expressed, including the form of Securities
Purchase Agreement for the Offering in the form filed by the Company as
Exhibit 10.1 to its Current Report on Form 8-K on October 20, 2009 (the
“Securities Purchase
Agreement”). 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). As to all matters of fact, we have relied on the
representations and statements of fact made in the documents so reviewed, and we
have not independently established the facts so relied on. This
opinion letter is given, and all statements herein are made, in the context of
the foregoing.
This
opinion letter is based as to matters of law solely on the laws of the State of
New York and on the Delaware General Corporation Law, as
amended. We express no opinion herein as to any other laws, statutes,
ordinances, rules or regulations. As used herein, the term “Delaware
General Corporation Law, as amended” includes the statutory provisions contained
therein, all applicable provisions of the Delaware Constitution and reported
judicial decisions interpreting these laws.
Based
upon, subject to and limited by the foregoing, we are of the opinion that, as of
the date hereof:
(a) following
(i) due execution and delivery of the Securities Purchase Agreement,
(ii) issuance and delivery of the Shares in the manner contemplated by the
Securities Purchase Agreement and the Prospectus Supplement and
(ii) receipt by the Company of the consideration for the Shares specified
in the resolutions of the Board of Directors, the Shares will be validly issued
and the Shares will be fully paid and nonassessable;
(b) following
(i) due execution and delivery of the Securities Purchase Agreement,
(ii) due execution and delivery of the Warrants in the manner contemplated
by the Securities Purchase Agreement and the Prospectus Supplement and
(ii) receipt by the Company of the consideration for the Warrants specified
in the resolutions of the Board of Directors, the Warrants will be valid and
legally binding obligations of the Company; and
(c) following
(i) due execution and delivery of the Securities Purchase Agreement,
(ii) due execution and delivery of the Warrants in the manner contemplated
by the Securities Purchase Agreement and the Prospectus Supplement,
(iii) receipt by the Company of the consideration for the Warrants
specified in the resolutions of the Board of Directors and (iv) exercise of
the Warrants pursuant to their terms, receipt by the Company of the exercise
price for the Warrant Shares as specified in the Warrants and issuance of the
Warrant Shares thereunder, the Warrant Shares will be validly issued and the
Warrant Shares will be fully paid and nonassessable.
The
opinions expressed in Paragraph (b) above with respect to the valid and
legally binding nature of the Warrants may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws affecting creditors’
rights (including, without limitation, the effect of statutory and other law
regarding fraudulent conveyances, fraudulent transfers and preferential
transfers) and by the exercise of judicial discretion and the application of
principles of equity, good faith, fair dealing, reasonableness, conscionability
and materiality (regardless of whether the Warrants are considered in a
proceeding in equity or at law).
This
opinion letter has been prepared for use in connection with the Registration
Statement. We assume no obligation to advise you of any changes in
the foregoing subsequent to the effective date of the Registration
Statement.
We hereby
consent to the filing of this opinion letter as Exhibit 5.01 to the
Company’s Current Report on Form 8-K filed on October 20, 2008, and to the
reference to this firm under the caption “Legal Matters” in the Prospectus
Supplement. In giving this consent, we do not thereby admit that we
are an “expert” within the meaning of the Securities Act of 1933, as
amended.
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Very
truly yours,
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/s/
Chadbourne & Parke LLP
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CHADBOURNE
& PARKE LLP
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