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Exhibit 5.1
OPINION OF HELLER EHRMAN WHITE & MCAULIFFE LLP
[Letterhead of Heller Ehrman White & McAuliffe LLP]
January 19, 2001
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 Amendment No. 1 to the Registration Statement on
Form S-3 (the "Registration Statement") which the Company proposes to file with
the Securities and Exchange Commission on January 19, 2001 for the purpose of
registering for resale under the Securities Act of 1933, as amended, 209,500
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, (iii) a License Agreement dated as
of August 4, 2000 (the "License Agreement"), by and between the Company and GGMJ
Technologies, L.L.C. or (iv) a stock option (the "Option Grant") granted by the
Company to Alison Ross as of November 1, 1999.
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 January 16, 2001, 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;
(h) The Option Grant; and
(i) A letter from ChaseMellon Shareholder Services, the Company's transfer
agent, dated January 18, 2001, as to the number of shares of the Company's
Common Stock that were outstanding on January 17, 2001.
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, the License Agreement and the Option Grant 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
