Attached files
| file | filename |
|---|---|
| 8-K - WINDTREE THERAPEUTICS INC /DE/ | v211719_8k.htm |
| EX-1.1 - WINDTREE THERAPEUTICS INC /DE/ | v211719_ex1-1.htm |
| EX-4.2 - WINDTREE THERAPEUTICS INC /DE/ | v211719_ex4-2.htm |
| EX-4.1 - WINDTREE THERAPEUTICS INC /DE/ | v211719_ex4-1.htm |
| EX-99.1 - WINDTREE THERAPEUTICS INC /DE/ | v211719_ex99-1.htm |
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SNR
Denton US LLP
Two
World Financial Center
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T
F
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+1
212 768 6800
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New
York, NY 10281-1008
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snrdenton.com
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February
16, 2011
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 preliminary
prospectus supplement filed pursuant to Rule 424(b) under the Act, dated as of
February 15, 2011 (the “Preliminary Prospectus
Supplement”), and the prospectus supplement to be filed pursuant to Rule
424(b) under the Act, dated as of February 16, 2011 (the “Prospectus Supplement”), under
which the following securities being sold by the Company have been registered:
(i) 10,000,000 shares (the “Shares”) of common stock, par
value $0.001 per share, of the Company (the “Common Stock”), (ii) five-year
warrants to purchase 5,000,000 shares of Common Stock at an exercise price of
$3.20 per share (the “Five-Year Warrants”), (iii) fifteen-month warrants to
purchase 5,000,000 shares of Common Stock at an exercise price of $2.94 per
share (the “Fifteen-Month
Warrants” and together with the Five-Year Warrants, the “Warrants”) and (iv)10,000,000
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, (ii) one Five-Year Warrant and (iii) one
Fifteen-Month 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 Preliminary Prospectus Supplement, (v) the
Prospectus Supplement (such prospectus and the Preliminary Prospectus Supplement
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.
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:
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Discovery
Laboratories, Inc.
February
16, 2011
Page
2
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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,
SNR
DENTON US LLP
/s/
SNR DENTON US LLP
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