Exhibit 5.1
__________ __, 2006
Gentlemen/Ladies:
At your request, we have examined the Registration Statement on Form S-1 (File Number
333-___) (the “
Registration Statement”) filed by Asthmatx, Inc., a Delaware corporation (the
"
Company”), with the Securities and Exchange
Commission (the “
Commission”) on or about
July 24,
2006, as subsequently amended, in connection with the registration under the Securities Act of
1933, as amended, of an aggregate of shares of
the Company’s Common Stock (the
"
Stock”) (which number of shares includes the shares subject to an underwriters’ over-allotment
option).
In rendering this opinion, we have examined such matters of fact as we have deemed necessary
in order to render the opinion set forth herein, which included examination of the following:
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(1) |
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the Company’s Restated Certificate of Incorporation, as certified by the
Delaware Secretary of State on ___, 2006; |
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(2) |
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the Company’s Bylaws, certified by the Company’s Secretary on ___,
2006; |
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(3) |
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the Registration Statement, together with the Exhibits filed as a part thereof
or incorporated therein by reference; |
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(4) |
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the prospectus prepared in connection with the Registration Statement (the
“Prospectus”); |
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(5) |
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the minutes of meetings and actions by written consent of the stockholders and
Board of Directors that are contained in the Company’s minute books that are in our
possession; |
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(6) |
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the stock records for the Company that the Company has provided to us
(consisting of a list of stockholders and a list of option and warrant holders
respecting the Company’s capital and of any rights to purchase capital stock as of
___, 2006 that was prepared by the Company, verifying the number of such
issued and outstanding securities); and |
________ __, 2006
Page 2
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(7) |
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a Management Certificate addressed to us and dated of even date herewith
executed by the Company containing certain factual representations (the “Management
Certificate”). |
In our examination of documents for purposes of this opinion, we have assumed, and express no
opinion as to, the authenticity and completeness of all documents submitted to us as originals, the
conformity to originals and completeness of all documents submitted to us as copies, the legal
capacity of all persons or entities executing the same and the lack of any undisclosed termination,
modification, waiver or amendment to any document reviewed by us. We have also assumed that the
certificates representing the Stock have been, or will be when issued, properly signed by
authorized officers of
the Company or their agents.
We are admitted to practice law in the State of California, and we render this opinion only
with respect to, and express no opinion herein concerning the application or effect of the laws of
any jurisdiction other than, the existing laws of the United States of America, of the State of
California and of the Delaware General Corporation Law, the Delaware Constitution and reported
judicial decisions relating thereto.
In connection with our opinion expressed below, we have assumed that, at or prior to the time
of the delivery of any shares of Stock, the Registration Statement will have been declared
effective under the Securities Act of 1933, as amended, that the registration will apply to such
shares of Stock and will not have been modified or rescinded and that there will not have occurred
any change in law affecting the validity of the issuance of such
shares of Stock after the effective date of the Registration Statement.
Based upon the foregoing, it is our opinion that the up to shares of Stock to be
issued and sold by
the Company, when issued, sold and delivered in the manner and for the
consideration stated in the Registration Statement and the Prospectus and in accordance with the
resolutions adopted by
the Company’s Board of Directors and to be adopted by the Pricing Committee
of
the Company’s Board of Directors, will be validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration Statement and further
consent to all references to us, if any, in the Registration Statement, the Prospectus constituting
a part thereof and any amendments thereto. This opinion is intended solely for use in connection
with issuance and sale of shares subject to the Registration Statement and is not to be relied upon
for any other purpose. We assume no obligation to advise you of any fact, circumstance, event or
change in the law or the facts that may hereafter be brought to our
attention after the effective date of the Registration Statement, whether or not such
occurrence would affect or modify the opinions expressed herein.
