Exhibit 5.1
May 4, 2009
RXi Pharmaceuticals Corporation
60 Prescott Street
Worcester, MA 01605
Re: Registration of Securities by RXi Pharmaceuticals Corporation
Ladies and Gentlemen:
This opinion is being furnished to you in connection with the Registration Statement on Form
S-3 (the “Registration Statement”), including the prospectus that is part of the Registration
Statement (the “Prospectus”), filed by RXi Pharmaceuticals Corporation, a Delaware corporation (the
“Company”), with the Securities and Exchange Commission (the “SEC”) under the Securities Act of
1933, as amended (the “Securities Act”) on or about the date hereof. The Prospectus provides that
it will be supplemented in the future by one or more prospectus supplements (each, a “Prospectus
Supplement”). The Prospectus, as supplemented by the various Prospectus Supplements, will provide
for the issuance and sale by the Company from time to time of (i) shares of common stock, $0.0001
par value per share (the “Common Stock”); (ii) shares of preferred stock (the “Preferred Stock”);
(iii) one or more series of the debt securities of the Company, which may be either senior
securities or subordinated securities and which may be convertible into or exchangeable for shares
of Common Stock or Preferred Stock (the “Debt Securities”); or (iv) warrants to purchase shares of
Common Stock, shares of Preferred Stock and/or Debt Securities (the “Warrants”).
The Common Stock, the Preferred Stock, the Debt Securities and the Warrants are collectively
referred to herein as the “Primary Securities.” The Primary Securities are being registered for offering and sale
from time to time pursuant to Rule 415 under the Securities Act. The maximum aggregate public
offering price of the Primary Securities being registered is $30 million.
The Debt Securities will be issued pursuant to one or more indentures in the form filed as an
exhibit to the Registration Statement, as amended or supplemented from time to time (each, an
“Indenture”), between the Company, as obligor, and a trustee chosen by the Company and qualified to
act as such under the Trust Indenture Act of 1939, as amended (the “Trustee”).
We have examined and relied upon the information set forth in the Registration Statement and
such other records, agreements, certificates and documents, and have made legal and factual
inquiries, as we have deemed necessary as a basis for the opinions expressed herein. As to
questions of fact not independently verified by us, we have relied upon certificates of public
officials and officers of the Company.
The opinions expressed herein are limited to matters governed by the Delaware General
Corporation Law, including the applicable provisions of the Delaware constitution and the reported
cases interpreting those laws.
Based upon the foregoing and subject to the additional qualifications set forth below, we are
of the opinion that:
1. When the issuance and the terms of the sale of the shares of Common Stock have been duly
authorized by the board of directors of the Company in conformity with its certificate of
incorporation, and such shares have been issued and delivered against payment of the purchase price
therefor in an amount in excess of the
par value thereof, in accordance with the applicable definitive purchase, underwriting or similar
agreement, and as contemplated by the Registration Statement, the Prospectus and the related
Prospectus Supplement, and, if issued upon the conversion, exchange or exercise of Debt Securities
or Warrants, when such shares have been duly issued
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May 4, 2009 |
and delivered as contemplated by the terms of the applicable Indenture or Warrant, the shares of
Common Stock will be validly issued, fully paid and nonassessable.
2. When the issuance and the terms of the sale of the shares of Preferred Stock have been duly
authorized by the board of directors of the Company in conformity with its certificate of
incorporation; an appropriate certificate of designation relating to a series of the Preferred
Stock to be sold under the Registration Statement has been duly authorized and adopted and filed
with the Secretary of State of The State of Delaware; the terms of issuance and sale of shares of
such series of Preferred Stock have been duly established in conformity with the Company’s
certificate of incorporation and by-laws so as to not violate any applicable law or result in a
default under, or breach of, any agreement or instrument binding upon the Company and so as to
comply with any requirement or restriction imposed by any court or governmental or regulatory body
having jurisdiction over the Company or any of its property; and such shares have been issued and
delivered against payment of the purchase price therefor in an amount in excess of the par value
thereof, in accordance with the applicable definitive purchase, underwriting or similar agreement,
and as contemplated by the Registration Statement, the Prospectus and the related Prospectus
Supplement, and, if issued upon the conversion, exchange or exercise of any Debt Securities or
Warrants, when such shares have been duly issued and delivered as contemplated by the terms of the
applicable Indenture or Warrant, the shares of Preferred Stock will be validly issued, fully paid
and nonassessable.
3. When the issuance and the terms of the sale of the Debt Securities have been duly
authorized by the board of directors of the Company and duly established in conformity with the
applicable Indenture so as not to violate any applicable law or result in a default under, or
breach of, any agreement or instrument binding upon the Company and so as to comply with any
requirement or restriction imposed by any court or governmental or regulatory body having
jurisdiction over the Company or any of its property, and the Debt Securities have been duly
executed, authenticated, issued, delivered and sold in accordance with the applicable definitive
purchase, underwriting or similar agreement, as contemplated by the Registration Statement, the
Prospectus and the related Prospectus Supplement, and in the manner provided for in the applicable
Indenture against payment of the purchase price therefor, the Debt Securities will constitute valid
and binding obligations of the Company enforceable against the Company in accordance with their
respective terms.
4. When the issuance and the terms of the sale of the Warrants have been duly authorized by
the board of directors of the Company; the terms of the Warrants and of their issuance and sale
have been duly established so as to not violate any applicable law or result in a default under, or
breach of, any agreement or instrument binding upon the Company and so as to comply with any
requirement or restriction imposed by any court or governmental or regulatory body having
jurisdiction over the Company or any of its property; and the Warrants have been duly executed and
issued and sold in accordance with the applicable definitive purchase, underwriting or similar
agreement, as contemplated by the Registration Statement, the Prospectus and the related Prospectus
Supplement, the Warrants will constitute valid and binding obligations of the Company enforceable
against the Company in accordance with their terms.
In rendering the opinions set forth above, we have assumed that: (i) the Registration
Statement will have become effective under the Securities Act, a Prospectus Supplement will have
been prepared and filed with the SEC describing the Primary Securities
offered thereby and such Primary Securities
will have been issued and sold in accordance with the terms of such Prospectus Supplement; (ii) a
definitive purchase, underwriting or similar agreement with respect
to such Primary Securities (if
applicable) will have been duly authorized, executed and delivered by the Company and the other
parties thereto; (iii) the Securities will be duly authorized by all necessary corporate action by
the Company and any Indenture, any applicable supplemental indenture thereto and any other
agreement pursuant to which such Primary Securities may be issued will be duly authorized, executed and
delivered by the Company and the other parties thereto; (iv) the Company is, and will remain, duly
organized, validly existing and in good standing under applicable state law; and (v) the Company
will have reserved a sufficient number of shares of its duly authorized, but unissued, Common
Stock and Preferred Stock as is necessary to provide for the issuance of the shares of Common Stock
and Preferred Stock pursuant to the Registration Statement.
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The opinions set forth above are subject to the following exceptions, limitations and
qualifications: (i) the effect of bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect relating to or affecting the rights and
remedies of creditors; (ii) the effect of 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 enforcement is
considered in a proceeding in equity or at law, and the discretion of the court before which any
proceeding therefor may be brought; and (iii) the unenforceability under certain circumstances
under law or court decisions of provision providing for the indemnification of, or contribution to,
a party with respect to a liability where such indemnification or contribution is contrary to
public policy. We express no opinion (i) concerning the enforceability of any waiver of rights or
defenses with respect to stay, extension or usury laws or (ii) with respect to whether acceleration
of Debt Securities may affect the collectibility of any portion of the stated principal amount
thereof which might be determined to constitute unearned interest thereon. Our opinions expressed
herein are also subject to the qualification that no term or provision shall be included in any
Indenture, any Warrant or any other agreement or instrument pursuant
to which any of the Primary Securities
are to be issued that would affect the validity of such opinions.
We hereby consent to the filing of this letter as an exhibit to the Registration Statement and
to the reference to this firm under the caption “Legal Matters” in the Prospectus included therein.
Our consent shall not be deemed an admission that we are experts whose consent is required under
Section 7 of the Securities Act. This opinion may be used only in connection with the offer and
sale of the Primary Securities while the Registration Statement is effective.
Very truly yours,
/s/ Ropes & Gray LLP
Ropes & Gray LLP
