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EXHIBIT 5.1
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[Heller Ehrman White & McAuliffe Letterhead]
August 30, 2000
Maxygen, Inc.
515 Galveston Drive
Redwood City, California 94063
Registration Statement on Form S-8
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Dear 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-8 (the
"Registration Statement") which the Company proposes to file with the Securities
and Exchange Commission on or about August 30, 2000, for the purpose of
registering under the Securities Act of 1933, as amended, 1,000,000 shares of
its Common Stock, $.0001 par value per share (the "Shares"). The Shares are
issuable under the Company's 2000 International Stock Option Plan (the "Plan").
In connection with this opinion, 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. We have based our opinion upon our review of the following records,
documents and instruments:
(a) The Certificate of Incorporation of the Company, as amended to date,
certified by the Secretary of State of the State of Delaware as of
August 28, 2000 and 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;
(b) The Bylaws of the Company, as amended to date, 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;
(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 and stockholders of the Company relating to
the adoption and approval of the Plans, and (ii) certifying as to
certain factual matters;
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(d) A Certificate of ChaseMellon Shareholder Services, L.L.C., the
transfer agent of the Company, as to the number of shares of common
stock of the Company outstanding as of August 29, 2000;
(e) The Registration Statement; and
(f) The Plan.
This opinion is limited to the federal laws of the United States of America
and the General Corporation Law of the State of Delaware. We 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, issued and sold, (ii) the Shares
to be sold are issued in accordance with the terms of the Plan, (iii) the
Company receives the full consideration for the Shares as stated in the Plan,
(iv) the per share consideration for each Share includes payment of cash or
other lawful consideration at least equal to the par value of the Company's
Common Stock, and (v) all applicable securities laws are complied with, it is
our opinion that the Shares covered by the Registration Statement, when issued
and sold by the Company, after payment therefore in the manner provided in the
Plan and the Registration Statement, 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 filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Heller Ehrman White & McAuliffe
