April 5, 2019
Page 2
Schedule 1 thereto, for whom Cowen and Company, LLC and Piper Jaffray & Co. are acting as representatives, which is filed as Exhibit 1.1 to the Company’s Current Report on Form8-K, filed on the date hereof. The Series A Preferred Shares and Preferred Offering Warrants are to be issued and sold by the Company pursuant to an underwriting agreement, dated as of April 5, 2019 (the “Preferred Underwriting Agreement”), by and among the Company and the several underwriters named on Schedule 1 thereto, for whom Cowen and Company, LLC and Piper Jaffray & Co. are acting as representatives, which is filed as Exhibit 1.2 to the Company’s Current Report on Form8-K, filed on the date hereof.
We are acting as counsel for the Company in connection with the issue and sale by the Company of the Securities. We have examined and relied upon copies of the Registration Statement, the Common Stock Prospectus and the Series A Preferred Stock Prospectus, each as filed with the Commission. We have also examined and relied upon the Common Underwriting Agreement and Preferred Underwriting Agreement, minutes of meetings of the stockholders and the Board of Directors of the Company, including the committees thereof, as provided to us by the Company, the Certificate of Incorporation andBy-Laws of the Company, each as restated and/or amended to date, the Certificate of Designation of Preferences, Rights and Limitations of Series A Convertible Preferred Stock as filed by the Company with the Secretary of State of the State of Delaware on April 5, 2019 (the “Certificate of Designation”) and such other documents as we have deemed necessary for purposes of rendering the opinion hereinafter set forth.
In our examination of the foregoing documents, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as copies, the authenticity of the originals of such latter documents and the legal competence of all signatories to such documents.
We express no opinion herein as to the laws of any state or jurisdiction other than the General Corporation Law of the State of Delaware.
Based upon and subject to the foregoing, we are of the opinion that the Securities, and the shares of Common Stock issuable upon conversion of the Series A Preferred Shares and the Warrants, have been duly authorized or reserved for issuance and (i) when the Common Shares and Series A Preferred Shares are issued and paid for in accordance with the terms and conditions of the Common Underwriting Agreement or Preferred Underwriting Agreement, as applicable, such shares will be validly issued, fully paid and nonassessable, (ii) when the Warrants are issued and paid for in accordance with the terms and conditions of the Common Underwriting Agreement or Preferred Underwriting Agreement, as applicable, the Warrants will have been duly executed and delivered by the Company and will constitute valid and legally binding obligations of the Company, (iii) the shares of Common Stock issuable upon conversion of the Series A Preferred Shares, when issued upon conversion in accordance with the terms of the Certificate of Designation, will in each case be validly issued, fully paid andnon-assessable, and (iv) the shares of Common Stock issuable upon exercise of the Warrants, when issued and paid for in accordance with the provisions of the Warrants, including the payment of the exercise price therefor, will be validly issued, fully paid andnon-assessable.
