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EXHIBIT 5.1
[LETTERHEAD OF MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.]
October 17, 2000
CuraGen Corporation
555 Long Wharf Drive
New Haven, CT 06511
Ladies and Gentlemen:
We have acted as counsel to CuraGen Corporation, a Delaware corporation
(the "Company"), in connection with the preparation and filing with the
Securities and Exchange Commission of a Registration Statement on Form S-3 (the
"Registration Statement"), pursuant to which the Company is registering under
the Securities Act of 1933, as amended, the following:
(i) common stock, $0.001 par value per share (the "Common Stock");
(ii) preferred stock, $0.001 par value per share (the "Preferred Stock");
(iii) senior debt securities (the "Senior Debt Securities");
(iv) subordinated debt securities (the "Subordinated Debt Securities"
and, together with the Senior Debt Securities, the "Debt Securities"); and
(v) warrants to purchase Common Stock, Preferred Stock, Senior Debt
Securities and/or Subordinated Debt Securities (the "Warrants");
all of which may be issued from time to time on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act at an aggregate initial offering
price not to exceed $500,000,000.
The Senior Debt Securities may be issued pursuant to an Indenture between
the Company and a trustee to be named in such Indenture; and the Subordinated
Debt Securities may be issued pursuant to an Indenture between the Company and a
trustee to be named in such Indenture (collectively, the "Indentures").
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October 17, 2000
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Warrants will be issued pursuant to a Warrant Agreement between the Company
and a bank or trust company as Warrant Agent.
In connection with this opinion, we have examined the Company's Amended and
Restated Certificate of Incorporation and Amended and Restated By-Laws, both as
currently in effect, such other records of the corporate proceedings of the
Company and certificates of the Company's officers as we have deemed relevant,
and the Registration Statement and the exhibits thereto.
In our examination, we have assumed the genuineness of all signatures, the
legal capacity of natural persons, the authenticity of all documents submitted
to us as originals, the conformity to original documents of all documents
submitted to us as certified, photostatic or facsimile copies and the
authenticity of the originals of such copies.
Based upon the foregoing, we are of the opinion:
1. With respect to the Common Stock, when (i) specifically authorized for
issuance by the Company's Board of Directors or an authorized committee
thereof (the "Authorizing Resolutions"), (ii) the Registration Statement
has become effective under the Securities Act, (iii) the terms of the sale
of the Common Stock have been duly established in conformity with the
Company's Certificate of Incorporation and By-laws and do not violate any
applicable law or result in a default under or breach of any agreement or
instrument binding on the Company and comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction
over the Company, (iv) the Common Stock has been issued and sold as
contemplated by the Registration Statement, and (v) the Company has
received the consideration provided for in the Authorizing Resolutions, the
Common Stock will be validly issued, fully paid and nonassessable.
2. With respect to the Preferred Stock, when (i) specifically authorized
for issuance by the Authorizing Resolutions, (ii) the Registration
Statement has become effective under the Securities Act, (iii) appropriate
Certificate or Certificates of Designation relating to a class or series of
the Preferred Stock to be sold under the Registration Statement have been
duly authorized and adopted and filed with the Secretary of State of the
State of Delaware, (iv) the terms of issuance and sale of shares of such
class or series of Preferred Stock have been duly established in conformity
with the Company's Certificate of Incorporation and By-laws and do not
violate any applicable law or result in a default under or breach of any
agreement or instrument binding upon the Company and comply with any
requirement or restriction imposed by any court or governmental body having
jurisdiction over the Company, (iv) shares of such class or series of
Preferred
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October 17, 2000
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Stock have been duly issued and sold as contemplated by the Registration
Statement, and (v) the Company has received the consideration provided for
in the Authorizing Resolutions, such Preferred Stock will be validly
issued, fully paid, and nonassessable.
3. With respect to the Debt Securities, when (i) specifically authorized
for issuance by the Authorizing Resolutions, (ii) the Registration
Statement has become effective under the Securities Act, (iii) the terms of
the Debt Securities and of their issue and sale have been duly established
in conformity with the applicable Indenture and do not violate any
applicable law or result in a default under or breach of any agreement or
instrument binding upon the Company and comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction
over the Company, (iv) such Debt Securities have been duly executed and
authenticated in accordance with the applicable Indenture and issued and
sold as contemplated in the Registration Statement, and (v) the Company has
received the consideration provided for in the Authorizing Resolutions,
such Debt Securities will constitute valid and legally binding obligations
of the Company, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
4. With respect to the Warrants, when (i) specifically authorized for
issuance by the Authorizing Resolutions, (ii) the Registration Statement
has become effective under the Securities Act, (iii) the Warrant Agreement
relating to the Warrants has been duly authorized, executed, and delivered,
(iv) the terms of the Warrants and of their issuance and sale have been
duly established in conformity with the Warrant Agreement and do not
violate any applicable law or result in a default under or breach of any
agreement or instrument binding upon the Company and comply with any
requirement or restriction imposed by any court or governmental body having
jurisdiction over the Company, (v) the Warrants have been duly executed and
countersigned in accordance with the Warrant Agreement and issued and sold
as contemplated by the Registration Statement, and (vi) the Company has
received the consideration provided for in the Authorizing Resolutions, the
Warrants will constitute valid and legally binding obligations of the
Company, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
Our opinion is limited to the General Corporation Laws of the State of
Delaware and the United States Federal Laws, and we express no opinion with
respect to the laws of any other jurisdiction. To the extent that any
applicable document is stated to be governed by the laws of another
jurisdiction, we have assumed for purposes of this opinion that the laws of such
jurisdiction are identical to the state laws of the State of Delaware.
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October 17, 2000
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We have relied as to certain matters on information obtained from public
officials, officers of the Company, and other sources believed by us to be
responsible and we have assumed that the Indentures will be duly authorized,
executed, and delivered by the respective trustees thereunder and the Warrant
Agreement will be duly authorized, executed, and delivered by the Warrant Agent
thereunder, assumptions which we have not independently verified.
It is understood that this opinion is to be used only in connection with
the offer and sale of Common Stock, Preferred Stock, Debt Securities and
Warrants while the Registration Statement is in effect.
Please note that we are opining only as to the matters expressly set forth
herein, and no opinion should be inferred as to any other matters. This opinion
is based upon currently existing statutes, rules, regulations and judicial
decisions, and we disclaim any obligation to advise you of any change in any of
these sources of law or subsequent legal or factual developments which might
affect any matters or opinions set forth herein.
We understand that you wish to file this opinion as an exhibit to the
Registration Statement, and we hereby consent thereto.
Very truly yours,
/s/ Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
