Attached files
EXHIBIT 5.1
January
15, 2010
Access
Pharmaceuticals, Inc.
2600
Stemmons Freeway, Suite 176
Dallas,
TX 75207
Re: Registration Statement on
Form S-1
Ladies
and Gentlemen:
We have acted as counsel to Access
Pharmaceuticals, Inc., a Delaware corporation (the “Company”), in
connection with the Company’s Registration Statement on Form S-1 (File No.
333-162687), as amended (the “Registration
Statement”), filed by the Company with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the “Securities
Act”).
The Registration Statement covers the
registration of (i) up to $25,000,000 in units (the “Units”) issuable to
the public, each Unit consisting of (a) a set number of shares of the Company’s
common stock, par value $0.01 per share (the “Common Stock”) and
(b) a warrant to purchase a set number of shares of Common Stock, (ii) warrants
to purchase a set number of shares of Common Stock (the “Placement Agent
Warrants”, and together with the Public Warrants, the “Warrants”), (iii) all
shares of Common Stock and all Public Warrants issued as part of the Units, and
(iv) all shares of Common Stock issuable upon exercise of the
Warrants.
In connection with this opinion, we
have examined originals or copies of the following documents (the “Transaction
Documents”):
(a) the Registration
Statement;
(b) the Warrants;
and
(c) such other documents as we
have deemed necessary or appropriate to enable us to render the opinion
expressed below.
This opinion is based entirely on our
review of the documents listed in the preceding paragraph, and we have made no
other documentary review or investigation of any kind whatsoever for purposes of
this opinion. In our examination, we have assumed the genuineness of all
signatures, the conformity to the originals of all documents reviewed by us as
copies, the authenticity and completeness of all original documents reviewed by
us in original or copy form, and the legal competence of each individual
executing any document. As to all matters of fact (including factual conclusions
and characterizations and descriptions of purpose, intention or other state of
mind) we have relied entirely upon the certificates of officers of the Company
and have assumed, without independent inquiry, the accuracy of those
certificates.
Subject to the limitations set forth
below, we have made such examination of law as we have deemed necessary for the
purpose of this opinion. This opinion is limited solely to the
federal laws of the United States, the Delaware General Corporation Law, the
applicable provisions of the Delaware Constitution and the reported judicial
decisions interpreting those laws and, as to the Warrants constituting valid and
legally binding obligations of the Company, solely to the laws of the State of
New York. Our opinion is based on these laws as in effect on the date
hereof.
We note that the Warrants contain
provisions stating that they are to be governed by the laws of the State of New
York (each contractual choice of law clause being referred to as a “Chosen-Law
Provision”). Except to the extent that such a Chosen Law provision is
made enforceable by New York General Obligations Law Section 5-1401, as applied
by a New York state court, or a federal court sitting in New York and applying
New York choice of law principles, no opinion is given herein as to any
Chosen-Law Provision or otherwise as to the choice of law or internal
substantive rules of law that any court or other tribunal may apply to the
transactions contemplated by the Transaction Documents.
Based
upon and subject to the foregoing, we are of the opinion that
1.
|
The
Common Stock included in the Units, when issued and sold in accordance
with and in the manner described in the Registration Statement, will be
duly authorized, validly issued, fully paid and
non-assessable.
|
2.
|
Each
Warrant included in the Units and each Placement Agent Warrant, when
issued and sold in accordance with and in the manner described in the
Registration Statement, will constitute a valid and binding agreement of
the Company enforceable against the Company in accordance with its terms,
except as enforcement may be limited by applicable bankruptcy, insolvency,
reorganization, arrangement, moratorium, or other similar laws affecting
creditors’ rights, and subject to general equity principles and to
limitations on availability of equitable relief, including specific
performance.
|
3.
|
Assuming
that the Company has an adequate number of authorized shares of Common
Stock, the Common Stock, when issued and paid for upon exercise of the
Warrants as contemplated by the Warrants, will be duly authorized, validly
issued, fully paid and
nonassessable.
|
This opinion letter is given as of the
date hereof, and we express no opinion as to the effect of subsequent events or
changes in law occurring or becoming effective after the date hereof. We assume
no obligation to update this opinion letter or otherwise advise you with respect
to any facts or circumstances or changes in law that may hereafter occur or come
to our attention.
We hereby consent to the filing of this
opinion as an exhibit to the Registration Statement and to the reference to this
firm under the heading “Legal Matters” in the prospectus included in the
Registration Statement. In rendering this opinion and giving this
consent, we do not admit that we are an “expert” within the meaning of the
Securities Act.
Very truly yours,
/s/ Bingham McCutchen
LLP
BINGHAM McCUTCHEN LLP