Attached files
| file | filename |
|---|---|
| EX-4.5 - FORM OF WARRANT AGENCY AGREEMENT - TENAX THERAPEUTICS, INC. | tenx_ex45.htm |
| EX-4.2 - SERIES A PREFERRED STOCK CERTIFICATE - TENAX THERAPEUTICS, INC. | tenx_ex42.htm |
| EX-1.1 - UNDERWRITING AGREEMENT - TENAX THERAPEUTICS, INC. | tenx_ex11.htm |
| S-1/A - REGISTRATION STATEMENT - TENAX THERAPEUTICS, INC. | tenx_s1a.htm |
Exhibit
5.1
Smith,
Anderson, Blount, Dorsett,
Mitchell & Jernigan,
L.L.P.
|
OFFICES
Wells Fargo Capitol Center
150 Fayetteville Street, Suite 2300
Raleigh, North Carolina 27601
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December
6, 2018
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|
MAILING ADDRESS
P.O. Box 2611
Raleigh, North Carolina
27602-2611
TELEPHONE: (919) 821-1220
FACSIMILE: (919) 821-6800
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Tenax
Therapeutics, Inc.
One
Copley Parkway
Suite
490
Morrisville,
North Carolina 27560
Re:
Tenax Therapeutics,
Inc. Registration Statement on Form S-1
Ladies
and Gentlemen:
We have
acted as counsel for Tenax Therapeutics, Inc., a Delaware
corporation (the “Company”), in connection
with the preparation of a Registration Statement on Form S-1
(333-228212) initially filed with the Securities and Exchange
Commission (the “Commission”) under the
Securities Act of 1933, as amended (the “Act”), on November 6,
2018 (as amended and as may be further amended or supplemented, the
“Registration
Statement”), including the related prospectus included
in the Registration Statement (the “Prospectus”). The
Registration Statement relates to the offer and sale of up to
$30,000,000 in (i) units (the “Units”), with each Unit
consisting of (a) one share of the Company’s Series A
Convertible Preferred Stock, par value $0.0001 per share (the
“Preferred
Shares”), (b) a two-year warrant (each a
“Series 1
Warrant” and collectively, the “Series 1 Warrants”) to
purchase one share of the Company’s common stock, par value
$0.0001 (“Common
Stock”), and (c) a five-year warrant (each a
“Series 2
Warrant” and collectively, the “Series 2 Warrants,”
together with the Series 1 Warrants, the “Warrants”) to purchase
one share of Common Stock, (ii) shares of Common Stock issuable
upon conversion of the Preferred Shares (the “Conversion Shares”), and
(iii) shares of Common Stock issuable upon exercise of the Warrants
(the “Warrant
Shares”). The Units are to be sold by the Company
pursuant to an underwriting agreement (the “Underwriting Agreement”)
to be entered into by and between the Company and Ladenburg
Thalmann & Co. Inc., a form of which is being filed as Exhibit
1.1 to the Registration Statement. The Units, Preferred Shares,
Conversion Shares, Warrants and Warrants Shares are collectively
referred to herein as the “Securities”). The
Securities are to be offered and sold in the manner described in
the Registration Statement and the Prospectus.
This
opinion is being furnished in accordance with the requirements of
Item 601(b)(5)(i) of Regulation S-K.
1
Tenax
Therapeutics, Inc.
December
6, 2018
We have
examined the (i) Registration Statement, (ii) the Prospectus, (iii)
the form of Underwriting Agreement filed as an exhibit to the
Registration Statement, (iv) the form of Warrant filed as an
exhibit to the Registration Statement, (v) the Certificate of
Incorporation of the Company, as amended, (vi) the Third Amended
and Restated Bylaws of the Company, (vii) the form of Certificate
of Designation of Preferences, Rights and Limitations of Series A
Convertible Preferred Stock, filed as an exhibit to the
Registration Statement (the “Certificate of
Designation”), and (viii) such other documents and
matters of law and fact as we, in our professional judgment, have
deemed appropriate to render the opinions contained herein. In our
examination, we have assumed the legal capacity of natural persons,
the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conforming to originals
of all documents submitted to us as certified copies or
photocopies, and the authenticity of originals of such latter
documents. With respect to certain facts, we have considered it
appropriate to rely upon certificates or other comparable documents
of public officials and officers or other appropriate
representatives of the Company, without investigation or analysis
of any underlying data contained therein.
In
rendering the opinions set forth below, (i) we have assumed the
following: (a) the Registration Statement becomes effective under
the Act, (b) the Underwriting Agreement is executed and delivered
by the parties thereto, (c) the Certificate of Designation has been
filed with the Delaware Secretary of State as required by
applicable law, and (d) the exercise price of the Warrants at the
time of exercise is equal to or greater than the par value of the
Common Stock, and (ii) we express no opinion as to the extent that,
notwithstanding the Company’s current reservation of shares
of Common Stock, future issuances of securities of the Company
and/or antidilution adjustments to outstanding securities of the
Company, may cause the Preferred Shares and the Warrants to be
exercisable for more shares of Common Stock than then remain
authorized but unissued.
Based
upon and subject to the foregoing and the further assumptions,
limitations and qualifications hereinafter expressed, it is our
opinion that:
1. Upon payment to the
Company of the consideration described in the Registration
Statement, and upon either (i) the countersigning of the
certificates representing the Preferred Shares by a duly authorized
signatory of the Company’s registrar for Preferred Shares or
(ii) the book entry of such shares by the transfer agent for the
Preferred Shares, the Preferred Shares will be validly issued,
fully paid and nonassessable.
2. When issued and
paid for in accordance with the terms of the Certificate of
Designation and upon either (i) the countersigning of the
certificates representing the Conversion Shares by a duly
authorized signatory of the registrar for the Common Stock or (ii)
the book entry of the Conversion Shares by the transfer agent for
the Common Stock, the Conversion Shares will be validly issued,
fully paid, and nonassessable.
3. When (i) the
Warrants have been duly executed and delivered by the Company, (ii)
the Warrants have been issued in accordance with and in the manner
described in the Registration Statement, and (iii) the Company
receives payment of the consideration specified in the Registration
Statement, the Warrants will constitute valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms.
2
Tenax
Therapeutics, Inc.
December
6, 2018
4. When issued and
paid for in accordance with and in the manner described in the
Registration Statement and the Warrants, and upon either (i) the
countersigning of certificates representing Warrant Shares by a
duly authorized signatory of the Company’s registrar for
Common Stock or (ii) the book entry of the Warrant Shares by the
transfer agent for the Common Stock, the Warrant Shares will be
validly issued, fully paid and nonassessable.
We
express no opinion as to any matter other than as expressly set
forth above, and no opinion, other than the opinions given herein,
may be inferred or implied herefrom. Our opinions expressed herein
are subject to (i) the effect of applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium and similar laws
affecting the enforcement of creditors’ rights generally,
(ii) the effect of general principles of equity (regardless of
whether considered in a proceeding in equity or at law), which may,
among other things, deny rights of specific performance, and (iii)
public policy considerations that may limit the rights of parties
to obtain certain remedies. We express no opinion with respect to
(a) any provision for economic remedies to the extent deemed to
constitute a penalty, (b) any provision of the Warrants
requiring or relating to an adjustment of the exercise price
thereof in an amount that a court would determine in the
circumstance and under applicable law to be commercially
unreasonable or to the extent deemed a penalty or forfeiture, (c)
any provision for exclusivity, election or cumulation of rights or
remedies, (d) any provision purporting to authorize a party to
act in its sole discretion, (e) any waiver of claims,
defenses, rights granted by law, notice, opportunity for hearing or
other procedural rights, (f) any provision requiring payment of
attorneys’ fees, (g) any provision requiring waivers or
amendments to be made only in writing, (h) any consent to, or
restriction upon, governing law, jurisdiction of courts or means of
service of process, and (i) any provision regarding
severability.
The
opinions expressed herein are limited to matters governed by the
Delaware General Corporation Law and, with respect to paragraph 3
above, the laws of the State of New York, and no opinion is
expressed herein as to the laws of any other jurisdiction. Opinions
involving matters arising under the laws of the State of New York
are given by lawyers in our firm who are licensed to practice in
that jurisdiction. The opinions expressed herein do not extend to
compliance with federal or state securities laws relating to the
offer or sale of the Securities, and we express no opinion with
respect to any law, rule
or regulation that is applicable to any party to the
Warrants or to the
transactions contemplated thereby, solely because such law, rule or
regulation is part of a regulatory regime applicable as a result of
the specific assets or business operations of any such
party.
We
hereby consent to the reference to our firm under the caption
“Legal Matters” in the Prospectus, and to the filing of
this opinion letter as an exhibit to the Registration Statement.
Such consent shall not be deemed to be an admission that our firm
is within the category of persons whose consent is required under
Section 7 of the Act or the regulations promulgated pursuant to the
Act.
3
Tenax
Therapeutics, Inc.
December
6, 2018
Our
opinions herein are expressed as of the date hereof, and we
undertake no obligation to advise you of any changes in applicable
law or any other matters that may come to our attention after the
date hereof that may affect our opinions expressed
herein.
Sincerely
yours,
SMITH,
ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN,
L.L.P.
/s/
Smith, Anderson, Blount, Dorsett, Mitchell &
Jernigan, L.L.P.
4