Exhibit 5.1
[Letterhead of Heller Ehrman White & McAuliffe LLP]
May 25, 2004
Main (650) 324-7000
Fax (650) 324-0638
10008-0006
A.P. Pharma, Inc.
123 Saginaw Drive
Redwood City, California 94063
Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
We have acted as counsel to A.P. Pharma, Inc., a Delaware corporation (the
"Company"), in connection with the Amendment No. 1 to the Registration
Statement on Form S-3 (the "Registration Statement") which the Company
proposes to file with the Securities and Exchange Commission on or about May
25, 2004 for the purpose of registering under the Securities Act of 1933, as
amended, shares of its Common Stock, par value $.01, (the "Shares"), with an
aggregate offering price of up to $15,000,000. The Shares are to be sold from
time to time as set forth in the Registration Statement, the prospectus
contained therein (the "Prospectus") and the supplements to the Prospectus
(the "Prospectus Supplements"). The Shares may be sold pursuant to a
definitive underwriting, purchase or similar agreement (the "Underwriting
Agreement") to be filed under a Current Report on Form 8-K or an amendment to
the Registration Statement.
We have assumed the authenticity of all records, documents and instruments
submitted to us as originals, the genuineness of all signatures, the legal
capacity of natural persons and the conformity to the originals of all
records, documents and instruments submitted to us as copies.
In rendering our opinion, we have examined the following records, documents
and instruments:
(a) The Certificate of Incorporation of the Company, certified by the
Delaware Secretary of State as of April 30, 2004, and certified to us by an
officer of the Company as being complete and in full force as of the date of
this opinion;
(b) The Bylaws of the Company certified to us by an officer of the Company
as being complete and in full force and effect as of the date of this opinion;
(c) A Certificate of an officer of the Company (i) attaching records
certified to us as constituting all records of proceedings and actions of the
Board of Directors, including any committee thereof, and stockholders of the
Company relating to the Shares, and the Registration Statement, and (ii)
certifying as to certain factual matters;
(d) The Registration Statement;
(e) A Certificate of Status - Foreign Corporation relating to the Company
issued by the Secretary of State of the State of California dated April 30,
2004;
(f) A letter from the Franchise Tax Board of the State of California dated
April 30, 2004 stating that the Company is in good standing with that agency;
(g) A Certificate of Good Standing relating to the Company issues by the
Secretary of State of the State of Delaware, dated April 30, 2004; and
(h) A letter from the Company's transfer agent, dated May 25, 2004, as to
the number of shares of the Company's Common Stock that were outstanding on
May 25, 2004.
This opinion is limited to the federal law of the United States of America and
the General Corporation Law of the State of Delaware, and we disclaim any
opinion as to the laws of any other jurisdiction. We further disclaim any
opinion as to any other statute, rule, regulation, ordinance, order or other
promulgation of any other jurisdiction or any regional or local governmental
body or as to any related judicial or administrative opinion.
Based upon the foregoing and our examination of such questions of law as we
have deemed necessary or appropriate for the purpose of this opinion, and
assuming that (i) the Registration Statement, as finally amended (including
all post-effective amendments), has become effective and remains effective
during the period when the Shares are offered and sold; (ii) an appropriate
Prospectus Supplement with respect to the Shares has been prepared, filed and
delivered in compliance with the Securities Act and the applicable rules and
regulations thereunder; (iii) if the Shares are to be sold pursuant to an
Underwriting Agreement, such Underwriting Agreement with respect to the Shares
has been duly authorized, executed and delivered by the Company and the other
parties thereto; (iv) the Board, including any appropriate committee appointed
thereby, and appropriate officers of the Company have taken all necessary
corporate action to approve the issuance of the Shares and all matters related
thereto; (v) the Shares have been offered, issued and sold in accordance with
the terms of the Registration Statement, or any post-effective amendment
thereto, and any Prospectus and Prospectus Supplement relating thereto; (vi)
there are a sufficient number of authorized but unissued shares of Common
Stock reserved for issuance when the Shares are offered and sold; (vii)
appropriate certificates evidencing the Shares have been executed and
delivered by the Company; (viii) the full consideration stated in the
Underwriting Agreement, or as otherwise contemplated by the Registration
Statement, or any post-effective amendment thereto, and any Prospectus and
Prospectus Supplement relating thereto, has been paid for the Shares; and (ix)
all applicable securities laws have been complied with, it is our opinion
that, when issued and sold by the Company, the Shares will be validly issued,
fully paid and nonassessable.
This opinion is rendered to you in connection with the Registration Statement
and is solely for your benefit. This opinion may not be relied upon by you
for any other purpose, or relied upon by any other person, firm, corporation
or other entity for any purpose, without our prior written consent. We
disclaim any obligation to advise you of any change of law that occurs, or any
facts of which we may become aware, after the date of this opinion.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the caption
"Legal Matters" in the Registration Statement, the Prospectus, any Prospectus
Supplement, and in any amendment or supplement thereto.
Very truly yours,
/s/ Heller Ehrman White & McAuliffe LLP
---------------------------------------
Heller Ehrman White & McAuliffe LLP