Attached files
| file | filename |
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| 8-K - WINDTREE THERAPEUTICS INC /DE/ | v182496_8k.htm |
| EX-4.1 - WINDTREE THERAPEUTICS INC /DE/ | v182496_ex4-1.htm |
| EX-1.1 - WINDTREE THERAPEUTICS INC /DE/ | v182496_ex1-1.htm |
| EX-1.3 - WINDTREE THERAPEUTICS INC /DE/ | v182496_ex1-3.htm |
| EX-1.2 - WINDTREE THERAPEUTICS INC /DE/ | v182496_ex1-2.htm |
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Two
World Financial Center
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New
York, NY 10281-1008
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212.768.6700
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212.768.6800
fax
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www.sonnenschein.com
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April 28,
2010
EXHIBIT
5.1
Board of
Directors
Discovery
Laboratories, Inc.
2600
Kelly Road, Suite 100
Warrington,
Pennsylvania 18976-3622
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Re:
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Sale
of Common Stock and Warrants registered pursuant
to
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Registration
Statement on Form S-3 (File No. 333-151654)
Ladies
and Gentlemen:
In our
capacity as counsel to Discovery Laboratories, Inc., a Delaware corporation (the
“Company”), we have been
asked to render this opinion in connection with a registration statement on Form
S-3 (the “Registration
Statement”), heretofore filed by the Company with the Securities and
Exchange Commission (the “Commission”) under the
Securities Act of 1933, as amended (the “Act”), the prospectus
supplement filed pursuant to Rule 424(b) under the Act, dated as of April 28,
2010 (the “Prospectus
Supplement”), under which the following securities being sold by the
Company have been registered: (i) 4,052,312 shares (the “Shares”) of common stock, par
value $0.001 per share, of the Company (the “Common Stock”), (ii) warrants
to purchase 2,026,156 shares of Common Stock at an exercise price of $0.7058 per
share (each a “Warrant”
and collectively, the “Warrants”) and (iii)
2,026,156 shares (the “Warrant Shares”) of Common
Stock that are issuable upon exercise of the Warrants. The securities
are being sold as units (the “Units”) with each Unit being
comprised of (i) one Share and (ii) one-half of a Warrant.
We are
delivering this opinion to you at your request in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Act.
In
connection with rendering this opinion, we have examined and are familiar with
(i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the
Company’s By-Laws, (iii) the Registration Statement, including the prospectus
contained therein, (iv) the Prospectus Supplement, (such prospectus and
Prospectus Supplement are collectively referred to herein as the “Prospectus”), (vi) corporate
proceedings of the Company relating to the Shares, the Warrants and the Warrant
Shares, and (v) such other instruments and documents as we have deemed relevant
under the circumstances.
Brussels Chicago Dallas Kansas
City Los
Angeles New
York Phoenix St.
Louis
San
Francisco Short
Hills,
N.J. Silicon
Valley Washington,
D.C. Zurich
April 28,
2010
Page
2
In making
the aforesaid examinations, we have assumed the genuineness of all signatures
and the conformity to original documents of all copies furnished to us as
original or photostatic copies. We have also assumed that the corporate records
furnished to us by the Company include all corporate proceedings taken by the
Company to date.
Based
upon the foregoing and subject to the assumptions and qualifications set forth
herein, we are of the opinion that:
1.
The Shares have been duly authorized by the Company
and, when issued in accordance with the terms set forth in the Registration
Statement and the Prospectus, will be validly issued, fully paid and
non-assessable.
2.
The Warrant Shares have been duly authorized by the Company and, when
issued in accordance with the terms set forth in the Registration Statement and
the Prospectus, and, when issued and paid for in accordance with the terms of
the Warrants, will be validly issued, fully paid and
non-assessable.
3. The
Warrants have been duly authorized by the Company and, when issued in accordance
with the terms set forth in the Registration Statement and the Prospectus, will
be validly issued.
The
foregoing opinion is limited to the laws of the United States of America and
Delaware corporate law (which includes the Delaware General Corporation Law and
applicable provisions of the Delaware constitution, as well as reported judicial
opinions interpreting same), and we do not purport to express any opinion on the
laws of any other jurisdiction.
We hereby
consent to the use of our opinion as an exhibit to the Registration Statement
and to the reference to this firm and this opinion under the heading “Legal
Matters” in the prospectus comprising a part of the Registration Statement and
any amendment thereto. In giving such consent, we do not hereby admit
that we come within the category of persons whose consent is required under
Section 7 of the Act, or the rules and regulations of the Commission
thereunder.
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Very
truly yours,
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SONNENSCHEIN
NATH & ROSENTHAL LLP
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/s/
SONNENSCHEIN NATH & ROSENTHAL
LLP
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