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EXHIBIT 5.1
[Hogan & Hartson L.L.P. Letterhead]
[Date]
Board of Directors
Array BioPharma Inc.
1885 33rd Street
Boulder, CO 80301
Ladies and Gentlemen:
We are acting as counsel to Array BioPharma Inc., a Delaware
corporation (the "COMPANY"), in connection with its registration statement on
Form S-1, as amended (the "REGISTRATION STATEMENT"), filed with the Securities
and Exchange Commission relating to the proposed public offering of up to
6,900,000 shares of the Company's common stock, par value $.001 per share, up to
6,800,000 of which are to be sold by the Company (the "COMPANY SHARES") and up
to 100,000 of which are to be sold by two stockholders (the "SELLING
STOCKHOLDERS") of the Company identified in the Registration Statement (the
"SELLING STOCKHOLDERS' SHARES"). This opinion letter is furnished to you at your
request to enable you to fulfill the requirements of Item 601(b)(5) of
Regulation S-K, 17 C.F.R. Section 229.601(b)(5), in connection with the
Registration Statement.
For purposes of this opinion letter, we have examined copies
of the following documents:
1. An executed copy of the Registration Statement.
2. A form of the Amended and Restated Certificate of
Incorporation of the Company, as certified by the
Secretary of the Company on the date hereof as having
been approved by the Board of Directors and the
stockholders of the Company for filing with the
Secretary of State of the State of Delaware prior to
the closing of the Company's proposed initial public
offering and as being complete and accurate (the
"CERTIFICATE OF INCORPORATION").
3. A form of the Amended and Restated Bylaws of the
Company, as certified by the Secretary of the Company
on the date hereof as having been approved by the
Board of Directors of the Company
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to be effective upon the closing of the Company's
proposed initial public offering and as being
complete and accurate (the "BYLAWS").
4. The proposed form of Underwriting Agreement among the
Company and the several Underwriters to be named
therein, for whom Lehman Brothers, Inc., Deutsche
Banc Alex. Brown and Legg Mason Wood Walker,
Incorporated will act as representatives, filed as
Exhibit 1.1 to the Registration Statement (the
"UNDERWRITING AGREEMENT").
5. Resolutions of the Board of Directors of the Company
adopted by unanimous written consent on September 8,
2000, as certified by the Secretary of the Company on
the date hereof as being complete, accurate, and in
effect, relating to the issuance and sale of the
Company Shares and arrangements in connection
therewith, the adoption of the Certificate of
Incorporation and the adoption of the Bylaws.
6. The action of the stockholders of the Company by
written consent dated September 8, 2000, as certified
by the Secretary of the Company on the date hereof as
being complete, accurate, and in effect, relating to
the approval of the Certificate of Incorporation and
the Bylaws.
7. The stock records of the Company and certain
resolutions of the Board of Directors adopted by
unanimous written consent on May 16, 1998, August 7,
1998 and November 16, 1999, as certified by the
Secretary of the Company on the date hereof as being
complete, accurate and in effect, relating to the
issuance and sale by the Company of the Selling
Stockholders' Shares and to the transfer to the
Selling Stockholders of certain of the Selling
Stockholders' Shares by the initial purchaser
thereof.
8. The Company's Certificate of Incorporation as filed
with the Secretary of State of the State of Delaware
on February 6, 1998, Certificate of Amendment to
Certificate of Incorporation as filed with the
Secretary of State of the State of Delaware on May
18, 1998, Certificate of Amendment to Certificate of
Incorporation as filed with the Secretary of State of
the State of Delaware on August 7, 1998, Amended and
Restated Certificate of Incorporation as filed with
the Secretary of State of the State of Delaware on
November 16, 1999, Certificate of Amendment to
Certificate of Incorporation as filed with the
Secretary of State of the State of Delaware on May
16, 2000 and the Amended and
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Restated Certificate of Incorporation as filed with
the Secretary of State of the State of Delaware on
August 31, 2000, as certified by the Secretary of the
Company on the date hereof as having been approved by
the Board of Directors and the stockholders of the
Company and as being complete and accurate.
9. The Company's Bylaws dated February 6, 1998 and
Amended and Restated Bylaws dated December 1, 1999,
as certified by the Secretary of the Company on the
date hereof as having been approved by the Board of
Directors and as being complete and accurate.
In our examination of the aforesaid documents, we have assumed
the genuineness of all signatures, the legal capacity of all natural persons,
the accuracy and completeness of all documents submitted to us, the authenticity
of all original documents, and the conformity to authentic original documents of
all documents submitted to us as copies (including telecopies). This opinion
letter is given, and all statements herein are made, in the context of the
foregoing.
This opinion letter is based as to matters of law solely on the
Delaware General Corporation Law, as amended. We express no opinion herein as to
any other laws, statutes, ordinances, rules, or regulations. As used herein, the
term "Delaware General Corporation Law, as amended" includes the statutory
provisions contained therein, all applicable provisions of the Delaware
Constitution and reported judicial decisions interpreting these laws.
Based upon, subject to and limited by the foregoing, we are of
the opinion that (A) following (i) execution, acknowledgement and filing of the
Certificate of Incorporation with the Secretary of State of the State of
Delaware, (ii) execution and delivery by the Company of the Underwriting
Agreement, (iii) effectiveness of the Registration Statement, (iv) issuance of
the Company Shares pursuant to the terms of the Underwriting Agreement, and (v)
receipt by the Company of the consideration for the Company Shares specified in
resolutions of the Board of Directors and the Pricing Committee of the Board of
Directors, the Company Shares will be validly issued, fully paid, and
nonassessable; and (B) assuming that, at the time the Selling Stockholders'
Shares were issued and sold by the Company, the Company received the
consideration specified in the resolutions referred to in paragraph 7 above, the
Selling Stockholders' Shares are validly issued, fully paid, and nonassessable.
This opinion letter has been prepared for your use in
connection with the Registration Statement and speaks as of the date hereof. We
assume no obligation to advise you of any changes in the foregoing subsequent to
the delivery of this opinion letter.
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We hereby consent to the filing of this opinion letter as
Exhibit 5.1 to the Registration Statement and to the reference to this firm
under the caption "Legal Matters" in the prospectus constituting a part of the
Registration Statement. In giving this consent, we do not thereby admit that we
are an "expert" within the meaning of the Securities Act of 1933, as amended.
Very truly yours,
HOGAN & HARTSON L.L.P.
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