November
26, 2008
Board of
Directors
Access
Pharmaceuticals, Inc.
2600
Stemmons Freeway, Suite 176
Dallas,
TX 75207
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Re:
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Registration
Statement on Form S-4
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of
Access Pharmaceuticals, Inc. (file no.
_______)
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Ladies
and Gentlemen:
In
connection with the above-captioned Registration Statement on Form S-4 (the
“Registration Statement”), filed by Access Pharmaceuticals, Inc., a Delaware
corporation (the “Company”) with the Securities and Exchange Commission under
the Securities Act of 1933 (the “Securities Act”), and the rules and regulations
promulgated under the Securities Act, you have requested that we furnish our
opinion as to the legality of the shares of the Company’s common stock, par
value $0.01 per share (the “Common Stock”) being registered pursuant to the
Registration Statement (the “Shares”). The Shares are being issued pursuant to
the Agreement and Plan of Merger, dated as of July 9, 2008 (the “Merger
Agreement”), among the Company, MACM Acquisition Corporation (“Merger Sub”) and
MacroChem Corporation (“MacroChem”), providing for the merger of Merger Sub with
and into MacroChem (the “Merger”) and the exchange of common shares of Access
for shares of Common Stock and in-the-money warrants of MacroChem pursuant to
the Merger Agreement.
In
connection with the furnishing of this opinion, we reviewed the Registration
Statement (including exhibits thereto), the Merger Agreement (including exhibits
thereto), and records of certain corporate proceedings of the Company. We
examined and relied upon representations as to factual matters contained in the
Merger Agreement. We also made such other investigations of fact and law and
examined and relied upon the originals, or copies certified or otherwise
identified to our satisfaction, of such documents, records, certificates or
other instruments, and upon such factual information otherwise supplied to us,
as in our judgment are necessary or appropriate to render the opinion expressed
below.
In our
examination of the documents referred to above, we assumed, without independent
investigation, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals and the conformity of original documents
to all documents submitted to us as certified, photostatic, reproduced or
conformed copies, the authenticity of all such latter documents and the legal
capacity of all individuals who executed any of the documents. We also assumed
that the Merger Agreement is a legal, valid and binding obligation of each party
to it, enforceable against each such party in accordance with its
terms.
In
furnishing this opinion, we further assumed that, before the issuance of the
Shares (1) the Registration Statement will have become effective under the
Securities Act, (2) the shares of MacroChem common stock and in-the-money
warrants will be converted into the right to receive Common Stock in the Merger,
and the shares to be exchanged for Common Stock in the Merger, were legally
issued, fully paid and non-assessable under applicable law and (3) the
other conditions to consummating the transactions contemplated by the Merger
Agreement will have been satisfied.
Based
upon the foregoing, we are of the opinion that, when issued in accordance with
the Merger Agreement, the Common Stock will be duly authorized, validly issued,
fully paid and nonassessable.
This
opinion is limited solely to the Delaware General Corporation Law, as applied by
courts located in Delaware, the applicable provisions of the Delaware
Constitution and the reported judicial decisions interpreting those
laws.
We hereby
consent to the use of this opinion as an exhibit to the Registration Statement
and to the use of our name under the heading “Legal Matters” contained in the
Prospectus included in the Registration Statement. In giving this consent, we do
not thereby admit that we come within the category of persons whose consent is
required by the Act or the Rules.
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/s/
Bingham McCutchen
LLP
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