Exhibit 5.1
October 21, 2009
A.P. Pharma, Inc.
123 Saginaw Drive
Redwood City, CA 94063
| Re: | Registration of 200,000 shares of common stock, par value $0.01 per share, of A.P. Pharma, Inc., pursuant to a Registration Statement on Form S-8 |
Ladies and Gentlemen:
We have acted as special counsel to A.P. Pharma, Inc., a Delaware corporation (the “Company”), in connection with the proposed issuance of up to an aggregate of 200,000 shares of common stock (the “Shares”), $0.01 par value per share, issuable under the Company’s 1997 Employee Stock Purchase Plan (as amended, the “Plan”). The Shares are included in a registration statement on Form S–8 under the Securities Act of 1933, as amended (the “Act”), filed with the Securities and Exchange Commission (the “Commission”) on October 21, 2009 (the “Registration Statement”). This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or related Prospectus, other than as expressly stated herein with respect to the issue of the Shares.
As such counsel, we have examined such matters of fact and questions of law as we have considered appropriate for purposes of this letter. With your consent, we have relied upon certificates and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters. We are opining herein as to General Corporation Law of the State of Delaware, and we express no opinion with respect to any other laws.
Subject to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof, when the terms (including the terms of the offering) are determined by resolution of the Company’s Board of Directors, or a duly authorized committee thereof, in accordance with the Plan, and upon execution, issuance and delivery of certificates representing the Shares (and notation of such issuance in the stock transfer records of the Company) and receipt of payment for such Shares in the manner contemplated by the Plan in an amount in cash or other legal consideration of not less than the aggregate par value for such Shares, and assuming the Company completes all other actions and proceedings required on its part to be taken prior to the issuance and delivery of the Shares pursuant to the terms of the Plan, the issuance and sale of the Shares will have been duly authorized by all necessary corporate action of the Company, and the Shares will be validly issued, fully paid and nonassessable.
This opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Act. We consent to your filing this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
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Very truly yours, |
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/s/ Latham & Watkins LLP |
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Latham & Watkins LLP |
