Attached files
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K&L GATES llp
4350 LASSITER AT NORTH HILLS AVENUE
SUITE 300
RALEIGH, NC 27609
T 919.743.7326 F 919.743.7358
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EXEEE
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Exhibit
5.1
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July 8,
2020
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ONE
Copely Parkway
Suite
490
Morrisville,
North Carolina 27560
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Re:
Tenax Therapeutics, Inc. Offering of Common Stock and
Warrants
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Ladies
and Gentlemen:
We have
acted as counsel to Tenax Therapeutics, Inc., a Delaware
corporation (the “Company”), in connection with the
issuance and sale by the Company of 2,523,611 shares (the “Shares”) of its common
stock, par value
$0.0001 per share (“Common Stock”), and
pre-funded warrants (the “Pre-Funded Warrants”) to
purchase up to 652,313 shares
of Common Stock (the “Pre-Funded Warrant
Shares” and, collectively with the Shares and the
Pre-Funded Warrants, the “Securities”) pursuant to
the Securities Purchase Agreement for Class C Units and Class D
Units, dated July 6, 2020 (the “Purchase Agreement”), by
and among the Company and the purchaser named therein (the
“Purchaser”).
In
connection with the offering and sale of the Securities, the
Company has prepared and filed (a) the registration statement on
Form S-3 (File No. 333-224951) (the “Registration Statement”)
filed by the Company with the Securities and Exchange Commission
(the “Commission”) pursuant to
the Securities Act of 1933 (the “1933 Act”) and effective
as of May 23, 2018, (b) the prospectus dated May 23, 2018,
contained in the Registration Statement (the “Base Prospectus”) and (c)
the prospectus supplement dated July 6, 2020, filed by the Company
with the Commission pursuant to Rule 424(b)(5) of the 1933 Act (the
“Prospectus
Supplement” and together with the Base Prospectus the
“Prospectus”).
You
have requested our opinion as to the matters set forth below in
connection with the Prospectus Supplement. For purposes of
rendering that opinion, we have examined: (i) the Prospectus
Supplement; (ii) the Registration Statement; (iii) the
Company’s Certificate of Incorporation, as amended; (iv) the
Company’s Third Amended and Restated Bylaws; (v) the
corporate actions of the Company’s Board of Directors
relating to the approval of the Securities and the issuance of the
shares of Common Stock thereunder; and (vi) a certificate of an
officer of the Company, dated as of the date hereof. Other than our
review of the documents listed in (i) through (vi) above, we have
not reviewed any other documents or made any independent
investigation for the purpose of rendering this
opinion.
Tenax
Therapeutics, Inc.
July 8,
2020
Page
2
For the
purpose of rendering this opinion, we assumed, without
investigation, the genuineness of all signatures, the correctness
of all certificates, the authenticity of all documents submitted to
us as originals, the conformity to original documents of all
documents submitted as certified or photostatic copies, and the
authenticity of the originals of such copies, and the accuracy and
completeness of all records made available to us by the Company. In
addition, in rendering this opinion, we assumed that (1) the
Securities will be offered in the manner and on the terms
identified or referred to in the Registration Statement, the Base
Prospectus and the Prospectus Supplement, including all supplements
and amendments thereto, (2) the Company will have sufficient
authorized and unissued shares of its Common Stock available for
the issuance of the Pre-Funded Warrant Shares upon the valid
exercise of the Pre-Funded Warrants in accordance with their terms,
(3) the issuance of the Shares and the Pre-Funded Warrant Shares
will be noted in the Company’s stock ledger, and (4) the
Purchase Agreement constitutes the valid and binding agreement of
the parties thereto, enforceable against the parties thereto in
accordance with its terms.
Our
opinion set forth below is limited to the Delaware General
Corporation Law (the “DGCL”) and reported
judicial decisions interpreting the DGCL, and, as to the Pre-Funded
Warrants constituting valid and binding obligations of the Company,
the laws of the State of New York.
Based
upon and subject to the foregoing, we are of the opinion
that:
(1)
the Shares, when
issued and sold in accordance with the Purchase Agreement and in
the manner contemplated by the Registration Statement and the
Prospectus Supplement, will be validly issued, fully paid and
non-assessable;
(2)
the Pre-Funded
Warrants, when issued and sold in accordance with the Purchase
Agreement and in the manner contemplated by the Registration
Statement and the Prospectus Supplement, will constitute valid and
binding obligations of the Company, enforceable against the Company
in accordance with their terms; and
(3)
the Pre-Funded
Warrant Shares, upon the valid exercise in accordance with the
terms of the Pre-Funded Warrants and payment of the consideration
required in connection therewith, will be validly issued, fully
paid and non-assessable.
We
hereby consent to the filing of this opinion letter with the
Commission as Exhibit 5.1 to the Company’s Current Report on
Form 8-K dated July 8, 2020 and its incorporation by reference in
the Registration Statement. We also consent to the reference to our
Firm in the Prospectus Supplement under the caption “Legal
Matters.” In giving this consent, we do not thereby admit
that we are within the category of persons whose consent is
required under Section 7 of the Securities Act or the rules and
regulations promulgated thereunder.
Very
truly yours,
/s/
K&L Gates LLP
K&L
Gates LLP