Attached files

file filename
8-K - FORM 8-K - BIODELIVERY SCIENCES INTERNATIONAL INCd445010d8k.htm
EX-1.1 - PLACEMENT AGENCY AGREEMENT - BIODELIVERY SCIENCES INTERNATIONAL INCd445010dex11.htm
EX-4.1 - FORM OF CERTIFICATE OF DESIGNATION - BIODELIVERY SCIENCES INTERNATIONAL INCd445010dex41.htm
EX-99.1 - PRESS RELEASE - BIODELIVERY SCIENCES INTERNATIONAL INCd445010dex991.htm
EX-10.1 - FORM OF SUBSCRIPTION AGREEMENT - BIODELIVERY SCIENCES INTERNATIONAL INCd445010dex101.htm

Exhibit 5.1

ELLENOFF GROSSMAN & SCHOLE LLP

150 EAST 42ND STREET

NEW YORK, NEW YORK 10017

TELEPHONE: (212) 370-1300

FACSIMILE: (212) 370-7889

www.egsllp.com

November 28, 2012

BioDelivery Sciences International, Inc.

801 Corporate Center Drive, Suite #210

Raleigh, North Carolina 27607

Re: Prospectus Supplement to Registration Statement on Form S-3

Ladies and Gentlemen:

This opinion is furnished to you in connection with (i) the Registration Statement on Form S-3 (File No. 333-179257) (the “Registration Statement”) filed by BioDelivery Sciences International, Inc., a Delaware corporation (the “Company”), with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), for the purpose of registering with the Commission, among other things, shares of the Company’s common stock, $.001 par value per share (the “Common Stock”), and shares of the Company’s preferred stock, $.001 par value per share (the “Preferred Stock”), all of which may be issued and sold by the Company from time to time on a delayed or continuous basis pursuant to Rule 415 under the Securities Act at an aggregate initial offering price not to exceed $40,000,000, as set forth in the Registration Statement and the prospectus contained therein and (ii) the prospectus supplement, dated November 28, 2012 (the “Prospectus Supplement”), relating to the issue and sale pursuant to the Registration Statement of (a) 6,791,887 shares (the “Common Shares”) of Common Stock, (b) 2,709,300 shares (the “Preferred Shares” and together with the Common Shares, the “Shares”) of Preferred Stock that the Company has designated as Series A Non-Voting Convertible Preferred Stock, par value $.001 per share (the “Series A Preferred Stock”) and (c) the shares of Common Stock issuable upon conversion of the Preferred Shares (the “Conversion Shares”). The Shares and the Conversion Shares are referred to herein, collectively, as the “Securities.”

The Securities are to be issued and sold by the Company to selected investors pursuant to (i) subscription agreements dated as of November 27, 2012 (the “Subscription Agreements”), between the Company and such investors and (ii) a placement agency agreement, dated as of November 27, 2012, among the Company and the placement agents named therein (the “Placement Agency Agreement”). The Placement Agency Agreement will be filed with the Commission as Exhibit 1.1 to the Company’s Current Report on Form 8-K, dated November 28, 2012; the form of certificate of designation of the Series A Preferred Stock (the “Certificate of Designation”) will be filed with the Commission as Exhibit 4.1 to such Current Report; and the form of Subscription Agreement will be filed with the Commission as Exhibit 10.1 to such Current Report.

We are acting as counsel for the Company in connection with the issue and sale by the Company of the Securities. We have examined a signed copy of the Registration Statement, as filed with the Commission, including the exhibits thereto, and the form of Prospectus Supplement to be filed with the Commission. We have also examined and relied upon: (i) the Placement Agency Agreement, (ii) the Subscription Agreements, (iii) minutes of meetings of the Board of Directors, including committees

 

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thereof, of the Company as provided to us by the Company, (iv) the Certificate of Incorporation and Amended and Restated Bylaws of the Company, each as restated and/or amended to date, (v) the form of Certificate of Designation and (vi) such other documents as we have deemed necessary for purposes of rendering the opinions hereinafter set forth.

In our examination of the foregoing documents, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as copies, the authenticity of the originals of such latter documents and the legal competence of all signatories to such documents. We have assumed that the Certificate of Designation shall be filed with the Secretary of State of Delaware in the form reviewed by us.

We express no opinion herein as to the laws of any state or jurisdiction other than the state laws of the General Corporation Law of the State of Delaware and the federal securities laws of the United States of America.

Based upon and subject to the foregoing, we are of the opinion that:

1.        The Common Shares have been duly authorized for issuance and, when issued and paid for in accordance with the terms and conditions of the Subscription Agreements, the Common Shares will be validly issued, fully paid and nonassessable.

2.        Upon the filing of the Certificate of Designation with the Secretary of State of the State of Delaware, the Preferred Shares and the Conversion Shares will be duly authorized for issuance. The Preferred Shares, when issued and paid for in accordance with the terms and conditions of the Subscription Agreements, and the Conversion Shares, when issued upon the conversion of the Preferred Shares in accordance with the terms of the Certificate of Designation, will be validly issued, fully paid and nonassessable.

It is understood that this opinion is to be used only in connection with the offer and sale of the Securities while the Registration Statement is in effect.

Please note that we are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters. This opinion is based upon currently existing statutes, rules, regulations and judicial decisions, and we disclaim any obligation to advise you of any change in any of these sources of law or subsequent legal or factual developments which might affect any matters or opinions set forth herein.

We hereby consent to the filing of this opinion with the Commission in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act as an exhibit to the Current Report on Form 8-K to be filed by the Company in connection with the issue and sale of the Securities. In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.

Very truly yours

/s/ Ellenoff Grossman & Schole LLP

ELLENOFF GROSSMAN & SCHOLE LLP

 

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