Brent B. Siler
+1 202 728 7040
bsiler@cooley.com
Exhibit 5.1
February 18, 2020
KemPharm, Inc.
1180 Celebration Boulevard, Suite 103
Celebration, Florida 34747
Ladies and Gentlemen:
You have requested our opinion, as counsel to KemPharm, Inc., a Delaware corporation (the “Company”), with respect to certain matters in connection with the issuance and sale by the Company of 308,637 shares (the “Commitment Shares”) of the Company’s common stock, par value $0.0001 per share (“Common Stock”), and additional shares of Common Stock having aggregate sales proceeds of up to $4,020,521 (together with the Commitment Shares, the “Shares”), pursuant to a Registration Statement on FormS-3 (No.333-213926) (the“Registration Statement”), filed with the Securities and Exchange Commission (the“Commission”) under the Securities Act of 1933, as amended (the “Act”), the prospectus included within the Registration Statement (the “Base Prospectus”), and the prospectus supplement dated February 18, 2020, filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations of the Act (together with the Base Prospectus, the “Prospectus.”). The Shares are to be sold by the Company in accordance with a Purchase Agreement, dated February 17, 2020, between the Company and Lincoln Park Capital Fund, LLC (the “Agreement”), as described in the Prospectus.
In connection with this opinion, we have examined and relied upon the Registration Statement and the Prospectus, the Agreement, the Company’s Amended and Restated Certificate of Incorporation, as amended, its Amended and Restated Bylaws, and originals or copies certified to our satisfaction of such records, documents, certificates, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. We have assumed the genuineness and authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies thereof, the accuracy, completeness and authenticity of certificates of public officials, and the due authorization, execution and delivery of all documents by all persons other than the Company where authorization, execution and delivery are prerequisites to the effectiveness thereof. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not sought independently to verify such matters.
We have assumed (i) that each sale of Shares will be duly authorized by the Board of Directors of the Company, a duly authorized committee thereof or a person or body pursuant to an authorization granted in accordance with Section 152 of the General Corporation Law of the State of Delaware (the “DGCL”), (ii) that no more than an aggregate of 9,268,182 Shares will be sold under the Agreement and (iii) that the price at which the Shares are sold will equal or exceed the par value of the Shares. We express no opinion to the extent that future issuances of securities of the Company and/or anti-dilution adjustments to outstanding securities of the Company cause the number of shares of Common Stock outstanding or issuable upon conversion or exercise of outstanding securities of the Company to exceed the number of Shares then issuable under the Agreement.
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