Exhibit 5.1
[Dickstein Shapiro Morin & Oshinsky LLP]
August 26, 2004
Board of Directors
Discovery Laboratories, Inc.
350 South Main Street, Suite 307
Doylestown, PA 18901
Discovery Laboratories, Inc.--
Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel for Discovery Laboratories, Inc., a
Delaware corporation (the "Company"), in connection with the preparation of the
registration statement on Form S-3, and any amendments or supplements thereto
(the "Registration Statement"), as filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933 (the "Act"), on
August 26, 2004, for the registration under the Act of up to 15,375,000 shares
of the Company's common stock, par value $0.001 per share (the "Common Stock"),
of which there are (i) 15,000,000 shares of Common Stock (the "Shares")to be
issued and sold at the discretion of the Company to Kingsbridge Capital Limited
under a Common Stock Purchase Agreement dated as of July 7, 2004 (the " Purchase
Agreement"), and (ii) 375,000 shares of Common Stock (the "Warrant Shares")
which are issuable upon the exercise of certain warrants issued by the Company
(the "Warrants"). The Shares and the Warrant Shares are to be offered for resale
on a delayed or continuous basis pursuant to Rule 415 promulgated under the
Securities Act by the selling stockholders of the Company named in the
Registration Statement.
In rendering this opinion, we have relied upon, among other
things, our examination of certain records of the Company, including without
limitation, the Company's Restated Certificate of Incorporation, as amended, the
Company's Bylaws and resolutions of the Board of Directors. We have also
examined certificates of the Company's officers and of public officials, and
have reviewed such questions of law and made such other inquiries, as we have
deemed necessary or appropriate for the purpose of rendering this opinion. As to
various questions of fact material to this opinion, we have also relied upon
representations and warranties of the Company and upon such certificates and
other instruments of officers of the Company and public officials furnished to
us by the Company, in each case without independent investigation or
verification.
In addition, without any independent investigation or
verification, we have assumed (i) the genuineness of all signatures, (ii) the
authenticity of all documents submitted to us as originals and the conformity
with the original documents of all documents submitted to us as certified,
conformed or photostatic copies, (iii) the authority of all persons signing any
document other than the officers of the Company, where applicable, signing in
their capacity as such, (iv) the enforceability of all the documents we have
reviewed in accordance with their respective terms against the parties thereto
and (v) the truth and accuracy of all matters of fact set forth in all
certificates and other instruments furnished to us.
Based on and subject to the assumptions, qualifications and
limitations set forth herein, we are of the opinion that:
1. The Shares have been duly authorized by all necessary
corporate action of the Company, and upon issuance, delivery and payment
therefor in the manner contemplated by the Purchase Agreement, will be validly
issued, fully paid and nonassessable.
2. The Warrant Shares have been duly authorized for issuance
pursuant to the Warrant, and when issued and delivered in the manner described
in the Warrant against full payment of the consideration set forth therein, will
be validly issued, fully paid and nonassessable.
We do not express any opinion as to the laws of any states or
jurisdictions other than the laws of the State of New York and the General
Corporation Law of the State of Delaware. No opinion is expressed as to the
effect that the law of any other jurisdiction may have upon the subject matter
of the opinion expressed herein under conflicts of law principles, rules and
regulations or otherwise.
This opinion is limited to the specific issues addressed
herein, and no opinion may be inferred or implied beyond that expressly stated
herein. We assume no obligation to revise or supplement this opinion should the
present laws of the State of New York or the state Constitution or the General
Corporation Law of the State of Delaware be changed by legislative action,
judicial decision or otherwise.
We hereby consent to the filing of this opinion with the
Commission as Exhibit 5.1 to the Registration Statement and the reference to us
under the heading "Legal Matters" in the prospectus included in Part I of the
Registration Statement. In giving this consent, we do not admit that we are
within the category of persons whose consent is required by Section 7 of the
Securities Act or the rules and regulations promulgated thereunder by the
Commission.
This opinion is furnished to you in connection with the filing
of the Registration Statement and is not to be used, circulated, quoted or
otherwise relied upon for any other purposes.
We wish to call your attention to the fact that the fair
market value of all securities of the Company that are beneficially owned by
attorneys of this Firm exceeds $50,000.
Very truly yours,
/s/ Dickstein Shapiro Morin & Oshinsky LLP