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Gemini Genomics plc
162 Science Park
Milton Road
Cambridge CB4 OGH
14 July 2000
Dear Sirs
INITIAL PUBLIC OFFERING OF AMERICAN DEPOSITARY SHARES ("ADSS") REPRESENTING
ORDINARY SHARES OF 5 PENCE EACH (THE "ORDINARY SHARES") IN THE CAPITAL OF
GEMINI GENOMICS PLC (THE "COMPANY")
1. We have acted as legal advisers in England and Wales to the Company (a
public limited company incorporated under the laws of England and Wales)
since at least December 1997 in connection with certain corporate matters.
2. We have assisted in the preparation of a Registration Statement on Form
F-1, (the "Registration Statement") to be filed with the United States
Securities and Exchange Commission ("the Commission"), relating to an
initial public offering of ADSs representing Ordinary Shares of the
Company.
3. Our opinion is limited to the laws of England and Wales in force at the
date of this opinion. We express no opinion as to any other law and we
have assumed that there is nothing in any other law which would affect our
opinion as stated herein. In particular, we have made no investigation as
to the laws of the State of New York or the federal laws of the United
States of America as a basis for this opinion and do not express or imply
any opinion thereon. This opinion is governed by and shall be construed
in accordance with the laws of England and Wales.
4. For the purposes of giving this opinion, we have examined and relied upon
the following documents:
(i) a copy of the latest proof of the Registration Statement dated 23 June
2000;
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(ii) a copy of the Memorandum of Association of the Company, as certified
by the Company Secretary of the Company on 8 June 2000 and a copy of
the Articles of Association of the Company, as certified by the
Company Secretary of the Company on 24 May 2000;
(iii) copies of the following certificates issued by the Registrar of
Companies:-
(a) the Certificate of Incorporation of the Company under the name
"Expand Venture plc";
(b) the Certificate of Incorporation on change of name to "Phenomix
plc";
(c) the Certificate of Incorporation on change of name to "Gemini
Holdings plc"; and
(d) the Certificate of Incorporation on change of name to "Gemini
Genomics plc",
each such copy having been certified by the Company Secretary of the
Company on 24 May 2000;
(iv) a copy of the Certificate of Continued Existence in respect of the
Company issued by the Registrar of Companies on 20 June 2000;
(v) a copy of the resolution of the shareholders of the Company passed
at an extraordinary general meeting of the Company held on 17 March
2000, as certified by the Company Secretary of the Company on 24 May
2000;
(vi) copies of all relevant minutes of the meetings of directors and
shareholders of the Company as in our judgment are necessary or
appropriate to enable us to render the opinions expressed below, as
certified by the Company Secretary of the Company on 24 May 2000 and
21 June 2000;
(vii) the letter dated 19 June 2000 from the Company Secretary of the
Company addressed to us in respect of factual and other matters
contained in this opinion; and
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(viii) the microfiche file in respect of the Company delivered to us by the
Registrar of Companies on 14 July 2000.
5. In rendering this opinion, we have assumed, without search or enquiry:
(i) the genuineness of all signatures and seals on all documents, the
completeness and authenticity of all documents submitted to us as
originals and the conformity to, and completeness and authenticity
of, the originals of all documents submitted to us as copies or
filed with the Registrar of Companies;
(ii) that the information disclosed by the microfiche files obtained from
the Registrar of Companies as referred to in paragraph 4(viii)
above, and by telephone by the Central Registry of winding-up
petitions on 14 July 2000, in relation to the Company was then
complete, up to date and has not since then been altered, amended or
added to and that no petition for a winding-up order or for an
administration order in respect of the Company has been presented in
any court in England and Wales and that no receiver, administrative
receiver, administrator or liquidator has been appointed in respect
of the Company; and
(iii) that the Company was or will be at the time of entering into the
Agreement able to pay its debts (within the meaning of Section 123
Insolvency Act 1986) and did or will not by incurring liabilities
thereunder become unable so to do.
6. On the basis of the above assumptions and subject to the qualifications
set out below, we are of the opinion that:
(i) the Company is duly organised and is a validly existing company
under the laws of England and Wales, with corporate powers adequate
for the conduct of its business as described in the Registration
Statement;
(ii) the Ordinary Shares represented by ADSs to be issued by the Company
have been duly and validly authorised for issuance and, when such
Ordinary Shares are allotted and payment is duly made in accordance
with the terms of the underwriting agreement to be made between the
Company, SG Cowen Securities Corporation and Chase Securities Inc,
(the "Underwriting Agreement") will be validly authorised and
legally
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issued, fully paid and not subject to call for the payment of
further capital; and
(iii) the statements set forth in the Registration Statement under the
caption "Taxation" on pages 71 to 78 of the Registration Statement
(insofar as they relate to the UK tax consequences of the purchase,
ownership and disposition of Ordinary Shares or ADSs) are accurate
in all material respects and nothing has been omitted from such
statements which would make the same misleading in any material
respect.
7. The qualifications to which this opinion is subject are as follows:-
(a) the search of the microfiche files obtained from the Registrar of
Companies referred to in paragraph 4(viii) above is not conclusively
capable of revealing whether or not:
(i) a winding-up order has been made or a resolution passed for the
winding-up of the Company; or
(ii) an administration order has been made in respect of the
Company; or
(iii) a receiver, administrative receiver, administrator or
liquidator has been appointed in respect of the Company,
since notice of these matters may not be filed with the Registrar
of Companies immediately and, when filed, may not be entered on the
public microfiche files of the Company immediately. In addition,
these searches are not capable of revealing, prior to the making of
the relevant order, whether or not a winding-up petition or a
petition for an administration order has been presented;
(b) the enquiry at the Central Registry of winding-up petitions
referred to in paragraph 5(ii) above relates only to a compulsory
winding-up and is not conclusively capable of revealing whether or
not a winding-up petition in respect of a compulsory winding-up has
been presented since there is a delay between the presentation of a
petition and the date when details of the petition are entered on
the records of the Central Registry of winding-up petitions and the
response to an enquiry only relates to the period of six months
prior to the date when the enquiry was made.
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8. This opinion is given as of the date set forth above and we assume no
obligation to update or supplement this opinion to reflect any facts or
circumstances which may hereafter come to our attention of any changes in
law which may hereafter occur.
9. This opinion is addressed to you personally. It may not be relied upon
by, nor may it be disclosed (in whole or in part) to, any other party
without our express written consent.
10. This opinion is strictly limited to the matters stated herein and is not
to be read as extending by implication to any other matter in connection
with the Underwriting Agreement or otherwise.
11. Any proceedings arising out of or in connection with this opinion against
this firm shall be brought in the courts of England and Wales.
12. We hereby consent to the filing with the Commission of this letter as an
exhibit to the Registration Statement, the inclusion of our opinion in the
Registration Statement and the reference to us in the Registration
Statement under the captions "Taxation", "Legal Matters" and "Service of
Process and Enforcement of Foreign Judgments".
Yours faithfully
/s/ Michael Draper
for and on behalf of
CMS CAMERON MCKENNA
