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Exhibit 5.1
OPINION OF HELLER EHRMAN WHITE & MCAULIFFE LLP
[Letterhead of Heller Ehrman White & McAuliffe LLP]
December 15, 2000
22800-0001
Maxygen, Inc.
515 Galveston Drive
Redwood City, CA 94063
Registration Statement on Form S-3
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Ladies and Gentlemen:
We have acted as counsel to Maxygen, Inc., a Delaware corporation (the
"Company"), in connection with the Registration Statement on Form S-3 (the
"Registration Statement") which the Company proposes to file with the Securities
and Exchange Commission on December 15, 2000 for the purpose of registering for
resale under the Securities Act of 1933, as amended, 199,500 shares of its
Common Stock, par value $0.0001 (the "Shares"). The Shares were issued pursuant
to either (i) an Exchange Agreement dated as of April 12, 2000, as amended (the
"Exchange Agreement"), by and among Profound Pharma A/S, a Danish corporation
("ProFound"), the Company, Maxygen Holdings Ltd., a Cayman Islands corporation
and the stockholders of ProFound, (ii) an Agreement and Plan of Reorganization
dated as of April 28, 2000, as amended (the "Merger Agreement"), by and among
the Company, Tellus Genetic Resources, Inc., a California corporation
("Tellus"), Tellus Acquisition Corp., a Delaware corporation and the
shareholders of Tellus or (iii) a License Agreement dated as of August 4, 2000
(the "License Agreement"), by and between the Company and GGMJ Technologies,
L.L.C .
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 Amended and Restated Certificate of Incorporation of the Company,
certified by the Delaware Secretary of State as of December 12, 2000, 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 Amended and Restated 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;
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(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) The Exchange Agreement;
(f) The Merger Agreement;
(g) The License Agreement; and
(h) A letter from ChaseMellon Shareholder Services, the Company's transfer
agent, dated December 13, 2000, as to the number of shares of the Company's
Common Stock that were outstanding on December 12, 2000.
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 becomes and remains effective
during the period when the Shares are offered and sold; (ii) the full
consideration stated in, as applicable, the Exchange Agreement, the Merger
Agreement and the License Agreement pursuant to which the Shares were purchased
and issued was paid for each Share and that such consideration in respect of
each Share includes payment of cash or other lawful consideration at least equal
to the par value thereof, (iii) appropriate certificates evidencing the Shares
were executed and delivered by the Company and (iv) all applicable securities
laws are complied with, it is our opinion that the Shares will be legally
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 reference to our firm under the caption "Legal
Matters" in the Prospectus included in the Registration Statement and the filing
of this opinion as an exhibit to the Registration Statement.
Very truly yours,
/s/ Heller Ehrman White & McAuliffe LLP
