Exhibit 5.1
April 30, 2015
OncoGenex Pharmaceuticals, Inc.
1522 217th Place SE, Suite 100
Bothell, Washington 98021
Ladies and Gentlemen:
At your request, we have examined the prospectus supplement, dated April 30, 2015 (the Prospectus Supplement), to a Registration Statement on Form S-3, Registration No. 333-184829 (the Registration Statement) filed by OncoGenex Pharmaceuticals, Inc., a Delaware corporation (the Company), with the Securities and Exchange Commission (the Commission) under the Securities Act of 1933, as amended, on November 8, 2012 in connection with the registration under the Securities Act of the proposed issuance and sale, from time to time pursuant to the Purchase Agreement (the Purchase Agreement), dated April 30, 2015, by and between the Company and Lincoln Park Capital Fund, LLC, an Illinois limited liability company (LPC), of (i) 956,938 of the Companys Series A-1 Units, with each Series A-1 Unit containing one share (each a Unit Share and collectively the Unit Shares) of the Companys common stock, par value $0.001, including the preferred stock purchase rights (the Rights) attached thereto (the Common Stock) and one warrant to purchase one-quarter of one share of Common Stock (each a Warrant and collectively the Warrants), (ii) up to $16,000,000 in aggregate purchase price of shares of Common Stock to be sold by the Company in its sole discretion from time to time (the Purchase Shares) and (iii) 126,582 shares of Common Stock to be issued to LPC as consideration under the Purchase Agreement (the Commitment Shares, together with the Purchase Shares and the Unit Shares, the Shares). The shares of Common Stock issuable upon exercise of the Warrants are collectively referred to herein as the Warrant Shares. The Shares, the Warrants and the Warrant Shares are collectively referred to herein as the Securities. The Securities are to be sold pursuant to the Prospectus Supplement and the base prospectus included in the Registration Statement, dated November 30, 2012 (together with the Prospectus Supplement, the Prospectus).
In rendering this opinion, we have examined such matters of fact as we have deemed necessary in order to render the opinion set forth herein, which included examination of the following:
OncoGenex Pharmaceuticals, Inc.
April 30, 2015
Page 2
(1) the Companys Second Amended and Restated Certificate of Incorporation, as amended, certified by the Secretary of State of the State of Delaware on May 28, 2013 (the Restated Certificate);
(2) the Companys Fifth Amended and Restated Bylaws, certified by the Companys Secretary on April 30, 2015 (the Bylaws);
(3) the Registration Statement, together with the Exhibits filed as a part thereof or incorporated therein by reference, and the Prospectus;
(4) the following minutes of meetings of the Companys Board of Directors (the Board) and the Companys stockholders at which the Restated Certificate and the Bylaws were approved: minutes of the meetings of the Board held on July 31, 2012 and March 19, 2013 and minutes of the meeting of the Companys stockholders held on May 24, 2013;
(5) the following minutes of meetings of the Board at which the offering of the Securities and the entry into the Purchase Agreement was adopted and approved: minutes of meetings of the Board held on November 1, 2012, March 3, 2015 and April 29, 2015;
(6) a certificate from the Companys transfer agent dated April 29, 2015 verifying the number of the Companys issued and outstanding shares of capital stock as of April 29, 2015;
(7) a certificate of good standing of the Company issued by the Secretary of State of the State of Delaware, dated April 29, 2015, stating that the Company is qualified to do business and in good standing under the laws of the State of Delaware (the Certificate of Good Standing);
(8) a Management Certificate addressed to us and dated of even date herewith executed by the Company containing certain factual representations (the Management Certificate);
(9) the Companys Certificate of Designation of Rights, Preferences and Privileges of Series A Junior Participating Preferred Stock dated August 23, 1996;
(10) the Amended and Restated Rights Agreement dated July 24, 2002, by and between the Company and U.S. Stock Transfer Corporation (as amended by items 11 through 13 below, the Rights Agreement);
(11) the First Amendment to the Amended and Restated Rights Agreement dated October 17, 2005, by and between the Company and U.S. Stock Transfer Corporation;
OncoGenex Pharmaceuticals, Inc.
April 30, 2015
Page 3
(12) the Second Amendment to the Amended and Restated Rights Agreement dated August 10, 2006, by and between the Company and U.S. Stock Transfer Corporation;
(13) the Third Amendment to the Amended and Restated Rights Agreement dated May 27, 2008, by and between the Company and Computershare Trust Company, N.A.;
(14) that certain registration statement on Form 8-A/A filed by the Company with the Commission in accordance with the Securities Exchange Act of 1934, as amended, on July 25, 2002, as amended by Amendment No. 1 filed on October 18, 2005, Amendment No. 2 filed on August 14, 2006 and Amendment No. 3 filed on May 30, 2008;
(15) the Current Report on Form 8-K with which this opinion is filed as an exhibit (the Form 8-K);
(16) the Purchase Agreement; and
(17) the Form of Warrant.
In our examination of documents for purposes of this opinion, we have assumed, and express no opinion as to, the genuineness of all signatures on original documents, the authenticity and completeness of all documents submitted to us as originals, the conformity to originals and completeness of all documents submitted to us as copies, the legal capacity of all persons or entities executing the same, the lack of any undisclosed termination, modification, waiver or amendment to any document reviewed by us and the due authorization, execution and delivery of all documents where due authorization, execution and delivery are prerequisites to the effectiveness thereof.
As to matters of fact relevant to this opinion, we have relied solely upon our examination of the documents referred to above and have assumed the current accuracy and completeness of the information obtained from the documents referred to above and the representations and warranties made by representatives of the Company to us, including but not limited to those set forth in the Management Certificate. We have made no independent investigation or other attempt to verify the accuracy of any of such information or to determine the existence or non-existence of any other factual matters.
In connection with our opinion expressed below, we have assumed that, at or prior to the time of the delivery of any of the Securities, there will not have occurred any change in the law or the facts affecting the validity of the Securities.
We render this opinion only with respect to, and express no opinion herein concerning the application or effect of the laws of any jurisdiction other than (i) the existing federal laws of the United States of America, (ii) the existing laws of the State of Washington and (iii) the Delaware General Corporation Law, the Delaware Constitution and reported judicial decisions relating thereto as in effect on the date hereof.
OncoGenex Pharmaceuticals, Inc.
April 30, 2015
Page 4
With respect to the Rights, (i) this opinion does not address the determination of a court of competent jurisdiction may make regarding whether the Board would be required to redeem or terminate, or take action with respect to, the Rights at some future time based on the facts and circumstances existing at that time, (ii) we have assumed that the Board acted in a manner consistent with its fiduciary duties as required under applicable law in adopting the Rights Agreement, and (iii) this opinion addresses the validity of the Rights and the Rights Agreement in their entirety, and we render no opinion as to the validity of any particular provision of the Rights Agreement or of Rights issued thereunder or as to the effect of the exercise by the Company of its rights under each such provision on the validity of the Rights agreement and the Rights in their entirety.
With respect to the Warrants and Purchase Shares we have assumed that, as of each and every time any of the Warrants are exercised or the Purchase Shares are issued, the Company will have a sufficient number of authorized and unissued shares of the Common Stock available for issuance under its Restated Certificate to permit full exercise of each of the Warrants or issuance of the Purchase Shares, as the case may be, in accordance with their terms without the breach or violation of any other agreement, commitment or obligation of the Company.
In accordance with Section 95 of the American Law Institutes Restatement (Third) of the Law Governing Lawyers (2000), this opinion letter is to be interpreted in accordance with customary practices of lawyers rendering opinions in connection with the filing of a registration statement of the type described herein.
Based upon the foregoing, we are of the following opinion:
(1) The Company is a corporation validly existing and in good standing under the laws of the State of Delaware.
(2) With respect to the Shares and the Rights attached to the Shares, when the Shares are issued, sold and delivered in the manner and for the consideration stated in the Registration Statement and the Prospectus and the resolutions adopted by the Board of Directors, then (x) such Shares will be validly issued, nonassessable and, to our knowledge, fully paid and (y) the Rights attached to the Shares will constitute valid and binding obligations of the Company.
(3) With respect to the Warrant Shares and the Rights attached to the Warrant Shares, when the Warrant Shares are issued and delivered by the Company upon exercise of the Warrants in accordance with the terms thereof and the resolutions adopted by the Board, then (y) such Warrant Shares will be validly issued, nonassessable and, to our knowledge, fully paid and (y) the Rights attached to the Warrant Shares will constitute valid and binding obligations of the Company.
(4) The Warrants, when issued, sold and delivered in the manner and for the consideration stated in the Registration Statement and the Prospectus and the resolutions adopted by the Board of Directors, will be validly issued and will be legal, valid and binding obligations of the Company.
OncoGenex Pharmaceuticals, Inc.
April 30, 2015
Page 5
We consent to the use of this opinion as an exhibit to the Form 8-K and further consent to all references to us, if any, in the Registration Statement, the Prospectus constituting a part thereof and any amendments thereto. This opinion is intended solely for use in connection with the issuance and sale of the Securities subject to the Registration Statement and is not to be relied upon for any other purpose. This opinion is rendered as of the date first written above and based solely on our understanding of facts in existence as of such date after the aforementioned examination. We assume no obligation to advise you of any fact, circumstance, event or change in the law or the facts that may hereafter be brought to our attention whether or not such occurrence would affect or modify the opinions expressed herein.
Sincerely, |
/s/ Fenwick & West LLP |
FENWICK & WEST LLP |