Exhibit 5.1
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269.337.7700
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February 11, 2021
Ocuphire Pharma, Inc.
37000 Grand River Avenue, Suite 120
Farmington Hills, Michigan 48335
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to Ocuphire Pharma, Inc., a Delaware corporation (the “Company”), in connection with a Registration Statement on Form S-3 (the
“Registration Statement”) filed by the Company with the Securities and Exchange Commission (the “Commission”), for the registration of the Securities (defined below) under the Securities Act of 1933, as amended (the “Securities Act”).
The Registration Statement includes a form of prospectus (the “Prospectus”), which provides that it will be supplemented in the future by one or more
supplements to the Prospectus (each, a “Prospectus Supplement”). The Prospectus, as supplemented by one or more Prospectus Supplements, may cover the offer, issue and sale of (A) (i) shares of common stock, $0.0001 par value per share, of the
Company (the “Common Stock”); (ii) one or more series of shares of preferred stock, $0.0001 par value per share, of the Company (the “Preferred Stock”); (iii) warrants to purchase Preferred Stock, Common Stock or Debt Securities (as defined below)
(the “Warrants”); and (iv) one or more series of debt securities of the Company (the “Debt Securities”); and (B) the resale of up to 6,987,400 shares (the “Resale Shares”) of Common Stock issuable upon exercise of certain outstanding Series A
Warrants and Series B Warrants to purchase shares of Common Stock (the “Series A/Series B Warrants”) currently held by certain selling stockholders.
Any Debt Securities will be issued under one or more indentures in the form to be filed as an exhibit to the Registration Statement (the “Indenture”)
relating to the issuance of Debt Securities by the Company. The Warrants may be issued under one or more warrant agreements (each, a “Warrant Agreement”) between the Company and a third party to be identified therein as warrant agent (each, a
“Warrant Agent”). The Indenture and the Warrant Agreements are herein collectively referred to as the “Agreements.” The shares of Common Stock, shares of Preferred Stock, Debt Securities, Warrants and the Resale Shares are herein collectively
referred to as the “Securities.”
In connection with this opinion letter, we have examined and relied upon originals or copies of such records, instruments, certificates, opinions,
memoranda and other documents as in our judgment are necessary or appropriate to enable us to render the opinions expressed below. As to certain factual matters, we have relied upon a certificate of officers of the Company and have not independently
sought to verify such matters. In rendering the opinions in this opinion letter, we have assumed the genuineness and authenticity of all signatures on original documents; the authenticity of all documents submitted to us as originals; the conformity
to originals of all documents submitted to us as copies; the accuracy, completeness and authenticity of certificates of public officials; and the due authorization, execution and delivery of all documents where authorization, execution and delivery
are prerequisites to the legal effectiveness of such documents.
February 11, 2021
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With respect to our opinions as to the Common Stock to be offered and sold by the Company and the Resale Shares to be offered and sold by the selling stockholders after
exercise of the Series A/Series B Warrants, we have assumed that, at the time of issuance and sale, a sufficient number of shares of Common Stock will be authorized and available for issuance and, except for the Resale Shares, that the consideration
for the issuance and sale of the Common Stock (or the conversion price for Preferred Stock or Debt Securities convertible into Common Stock or the exercise price for Warrants exercisable for Common Stock) is in an amount that is not less than the par
value of the Common Stock. With respect to our opinion as to the Preferred Stock, we have assumed that, at the time of issuance and sale, a sufficient number of shares of Preferred Stock will be authorized, designated and available for issuance and
that the consideration for the issuance and sale of the Preferred Stock (or the conversion price for Debt Securities convertible into Preferred Stock or the exercise price for Warrants exercisable for Preferred Stock) is in an amount that is not less
than the par value of the Preferred Stock. We have also assumed that any Warrants offered under the Registration Statement, and any related Warrant Agreement, will be executed in the forms filed as exhibits to the Registration Statement or any
required post-effective amendment thereto or incorporated by reference therein. We have also assumed that any Debt Securities offered under the Registration Statement will be issued pursuant to the form of Indenture filed as an exhibit to the
Registration Statement or any required post-effective amendment thereto or incorporated by reference therein. We have also assumed that (i) with respect to Securities being issued upon conversion of any convertible Preferred Stock, the applicable
convertible Preferred Stock will be duly authorized, validly issued, fully paid and non-assessable; and (ii) with respect to any Securities being issued upon conversion of any convertible Debt Securities or upon exercise of any Warrants, the
applicable convertible Debt Securities or Warrants will be valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms.
With your consent, we have also assumed (i) that each of the Agreements, the Debt Securities and the Warrants (collectively, the “Documents”) will be
governed by the internal laws of the State of New York, (ii) that each of the Documents has been or will be duly authorized, executed and delivered by the parties thereto, (iii) that each of the Documents constitutes or will constitute legally valid
and binding obligations of the parties thereto other than the Company, enforceable against each of them in accordance with their respective terms and (iv) that the status of each of the Documents as legally valid and binding obligations of the
parties will not be affected by any (a) breaches of, or defaults under, agreements or instruments, (b) violations of statutes, rules, regulations or court or governmental orders, or (c) failures to obtain required consents, approvals or
authorizations from, or to make required registrations, declarations or filings with, governmental authorities.
February 11, 2021
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Our opinions herein are expressed solely with respect to (i) the internal laws of the State of New York; (ii) the Delaware General Corporation Law, as
amended; and (iii) the federal laws of the United States, and we express no opinion with respect to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction or, in the case of Delaware, any other laws, or as to any
matters of municipal law or the laws of any local agencies within any state. Our opinions are based on these laws as in effect on the date hereof. We express no opinion as to whether the laws of any jurisdiction are applicable to the subject matter
hereof. We are not rendering any opinion as to compliance with any federal or state antifraud law, rule or regulation relating to securities, or to the sale or issuance thereof. It is understood that this opinion letter is to be used only in
connection with the offer and sale of the Securities while the Registration Statement is in effect and only speaks as of the date of this opinion letter.
On the basis of the foregoing and in reliance thereon, and subject to the qualifications herein stated, it is our opinion that:
| 1. |
With respect to the Common Stock offered by the Company under the Registration Statement, provided that (i) the Registration Statement and any required post-effective amendment thereto
have become effective under the Securities Act and the Prospectus and any and all Prospectus Supplement(s) required by applicable laws have been delivered and filed as required by such laws; (ii) the issuance of the Common Stock has been duly
authorized by all necessary corporate action on the part of the Company; (iii) the issuance and sale of the Common Stock do not violate any applicable law, are in conformity with the Company’s then operative certificate of incorporation (the
“Certificate of Incorporation”) and bylaws (the “Bylaws”), do not result in a default under or breach of any agreement or instrument binding upon the Company and comply with any applicable requirement or restriction imposed by any court or
governmental body having jurisdiction over the Company; and (iv) the certificates, if any, for the Common Stock have been duly executed by the Company, countersigned by the transfer agent therefor and duly delivered to the purchasers thereof
against payment therefor, then the Common Stock, when issued and sold as contemplated in the Registration Statement, the Prospectus and the related Prospectus Supplement(s), and in accordance with any applicable duly authorized, executed and
delivered purchase, underwriting or similar agreement, or upon conversion of any convertible Preferred Stock or convertible Debt Securities in accordance with their terms, or upon exercise of any Warrants in accordance with their terms, will
be validly issued, fully paid and non-assessable.
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February 11, 2021
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| 2. |
With respect to the Preferred Stock offered by the Company under the Registration Statement, provided that (i) the Registration Statement and any required post-effective amendment
thereto have become effective under the Securities Act and the Prospectus and any and all Prospectus Supplement(s) required by applicable laws have been delivered and filed as required by such laws; (ii) the terms and issuance of the
Preferred Stock have been duly authorized by all necessary corporate action on the part of the Company and any applicable amendment to the Company’s Certificate of Incorporation, including any certificate of designation, fixing the terms of
such Preferred Stock has been filed with the State of Delaware; (iii) the terms of the shares of the Preferred Stock and their issuance and sale do not violate any applicable law, are in conformity with the Certificate of Incorporation and
the Bylaws, do not result in a default under or breach of any agreement or instrument binding upon the Company and comply with any applicable requirement or restriction imposed by any court or governmental body having jurisdiction over the
Company; and (iv) the certificates, if any, for the Preferred Stock have been duly executed by the Company, countersigned by the transfer agent therefor and duly delivered to the purchasers thereof against payment therefor, then the Preferred
Stock, when issued and sold as contemplated in the Registration Statement, the Prospectus and the related Prospectus Supplement(s) and in accordance with any applicable duly authorized, executed and delivered purchase, underwriting or similar
agreement, or upon conversion of any convertible Debt Securities in accordance with their terms, or upon exercise of any Warrants in accordance with their terms, will be validly issued, fully paid and non-assessable.
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| 3. |
When (i) the Registration Statement and any required post-effective amendment thereto have become effective under the Securities Act and the Prospectus and any and all Prospectus
Supplement(s) required by applicable laws have been delivered and filed as required by such laws, (ii) all necessary corporate action has been taken by the Company to approve the creation, the terms and the issuance of the Warrants and the
underlying securities, the terms of the offering of the Warrants and related matters, including the consideration to be received therefor, if any, and for the underlying securities, and, if applicable, to authorize the form, terms, execution
and delivery of a Warrant Agreement or Warrant Agreements (including a form of certificate evidencing the Warrants, if applicable) relating to the Warrants, (iii) the Warrant Agreement or Warrant Agreements, if applicable, relating to the
Warrants have been duly authorized and validly executed and delivered by the Company and the Warrant Agent, if any, appointed by the Company, (iv) the Warrants have been issued under a valid and legally binding Warrant Agreement, or
agreements, if applicable, relating to the Warrants that conforms to the description thereof provided in a Prospectus Supplement and any related offering material and do not violate any applicable law, do not result in a default under or
breach of any agreement or instrument binding upon the Company, are in conformity with the Certificate of Incorporation and Bylaws of the Company, and comply with any requirement or restriction imposed by any court or governmental body having
jurisdiction over the Company and (vi) the Warrants or certificates representing the Warrants have been duly executed, countersigned and registered, if applicable, issued and delivered in accordance with the Prospectus and applicable
Prospectus Supplement relating to the Registration Statement and in accordance with the appropriate Warrant Agreement, if any, and any applicable duly authorized, executed and delivered purchase, underwriting or similar agreement, as
applicable, and such corporate action, in exchange for payment of the consideration for such Warrants, if any, provided for in such agreement, such Warrants will be binding obligations of the Company.
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February 11, 2021
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| 4. |
When (i) the Registration Statement and any required post-effective amendment thereto have become effective under the Securities Act and the Prospectus and any and all Prospectus
Supplement(s) required by applicable laws have been delivered and filed as required by such laws, (ii) all necessary corporate action has been taken by the Company to approve the creation, the terms and the issuance of such Debt Securities
and the consideration to be received therefor in accordance with the Indenture and the Indenture has been duly authorized by the Company and the trustee by all necessary corporate action and has been executed and delivered by the Company and
the trustee, (iii) the Indenture is qualified under the United States Trust Indenture Act of 1939, as amended, (iv) the terms of the Debt Securities and of their issuance and sale have been duly established in conformity with the Indenture
and as described in the Registration Statement and any required post-effective amendment thereto, the related Prospectus and the applicable Prospectus Supplement(s), and by such corporate action, do not violate any applicable law, do not
result in a default under or breach of any agreement or instrument binding upon the Company, are in conformity with the Certificate of Incorporation and Bylaws of the Company, and comply with any requirement or restriction imposed by any
court or governmental body having jurisdiction over the Company; and (v) notes, certificates or other evidence of the Debt Securities have been duly executed, issued and delivered by the Company and authenticated by the Trustee pursuant to
the Indenture and delivered to the purchasers thereof against payment therefor in accordance with such corporate action and the Prospectus and applicable Prospectus Supplement relating to the Registration Statement, and in accordance with any
applicable duly authorized, executed and delivered purchase, underwriting or similar agreement, the Indenture or upon exercise of any Warrant under any Warrant Agreement in accordance with their terms, as applicable, such Debt Securities will
be binding obligations of the Company. For purposes of rendering the opinions set forth in this paragraph 4, we have assumed that immediately prior to the issuance of any Debt Securities, the Indenture and any applicable supplemental
indenture will be in full force and effect, with no unwaived Events of Default or breaches thereunder and will constitute the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.
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February 11, 2021
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| 5. |
Upon the valid exercise of the Series A/Series B Warrants in accordance with their terms, including proper execution and delivery to the persons exercising the Series A/Series B
Warrants of certificates for the underlying the Resale Shares (in the form approved by the Company’s Board of Directors), the Resale Shares issued will be validly issued, fully paid and non-assessable.
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In giving the opinions set forth above, with respect to each Security opined on in this opinion letter we have assumed that (i) at or prior to the time
of the delivery of such Security, the authorization of such Security will not have been modified or rescinded, and there will not have occurred any change in law affecting such Security, including its validity or enforceability and (ii) none of the
terms of any such Security to be established subsequent to the date hereof, nor the issuance and delivery of such Security nor the compliance by the Company, with the terms of such Security, will violate any applicable law or will result in a
violation of any provision of any instrument or agreement then binding upon the Company or any restriction imposed by any court or governmental body having jurisdiction over the Company.
Our opinions set forth above are subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors’ rights generally (including, without limitation, fraudulent conveyance, fraudulent transfer and voidable transaction laws), general principles of equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law and limitations regarding the availability of
indemnification and contribution where such indemnification or contribution may be limited by applicable law or the application of principles of public policy.
We express no opinion as to the validity, binding effect or enforceability of (i) provisions that relate to choice of law, forum selection or submission
to jurisdiction (including, without limitation, any express or implied waiver of any objection to venue in any court or of any objection that a court is an inconvenient forum), (ii) waivers by the Company of any statutory or constitutional rights,
defenses or remedies, (iii) terms which excuse any person or entity from liability for, or require the Company to indemnify such person or entity against, such person’s or entity’s negligence or willful misconduct, (iv) obligations to pay any
prepayment premium, default interest rate, early termination fee, late charges, monetary penalties, make-whole premiums or other form of liquidated damages, if the payment of such premium, interest rate, fee, late charge, monetary penalty, make-whole
premium or damages may be construed as unreasonable in relation to actual damages or disproportionate to actual damages suffered as a result of such prepayment, default or termination, usury and other interest-related restrictions, (v) provisions
providing that the terms of agreement may not be waived or modified except in writing, (vi) the creation, validity, attachment, perfection, or priority of any lien or security interest, (vii) advance waivers of claims, defenses, rights granted by
law, or notice, opportunity for hearing, evidentiary requirements, statutes of limitation, trial by jury or at law, or other procedural rights, (viii) provisions for exclusivity, election or cumulation of rights or remedies, (ix) provisions
authorizing or validating conclusive or discretionary determinations, (x) proxies, powers and trusts, (x) provisions prohibiting, restricting, or requiring consent to assignment or transfer of any right or property, or (xi) the severability, if
invalid, of provisions to the foregoing effect.
February 11, 2021
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We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. We also hereby consent to the use of our name under the
heading “Legal Matters” in the Prospectus included in the Registration Statement. In giving such consents, 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 of the Commission under the Securities Act.
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Very truly yours,
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/s/ Honigman LLP
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Honigman LLP
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PDT/EBJY/RZK/MSB/JHC/GSWA