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EXHIBIT 5.1
OPINION OF BROWN, RUDNICK, FREED & GESMER
January 17, 2001
American Science and Engineering, Inc.
829 Middlesex Turnpike
Billerica, MA 01821
Re: American Science and Engineering, Inc.
Registration Statement on Form S-8
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Ladies and Gentlemen:
We have acted as legal counsel to American Science and Engineering,
Inc., a Massachusetts corporation (the "Company"), in connection with the
preparation and filing of a Registration Statement on Form S-8 (the
"Registration Statement") with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Act"), relating to 440,000 shares of
the Company's Common Stock (the "Common Stock"), $.66 2/3 par value (the
"Shares") and 440,000 Rights (as defined below).
The Shares are issuable upon exercise of options granted pursuant to the
American Science and Engineering, Inc. 2000 Combination Stock Option Plan (the
"Plan"). The Rights are issuable pursuant to that certain Shareholder Rights
Agreement, dated as of April 17, 1998, between the Company and American Stock
Transfer and Trust Co., Inc. (the "Rights Agreement") providing, in effect, for
the delivery of a right (a "Right") to purchase one-thousandth of a share of
Series A Junior Participating Preferred Stock, no par value, of the Company,
along with each share of Common Stock issued by the Company pursuant to, among
other things, the Plan.
In connection with this Opinion Letter, we have examined the documents
listed on Schedule A attached hereto (collectively, the "Documents").
We have, without independent investigation, relied upon the
representations and warranties of the various parties as to matters of objective
fact contained in the Documents.
We have not made any independent review or investigation of orders,
judgments, rules or other regulations or decrees by which the Company or any of
its property may be bound, nor have we made any independent investigation as to
the existence of actions, suits, investigations or proceedings, if any, pending
or threatened against the Company.
With your concurrence, the opinions hereafter expressed, whether or not
qualified by language such as "to our knowledge," is based solely upon: (i) our
review of the Documents; (ii) discussions with those of our attorneys who have
given substantive legal representation to the
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Company in connection with the Registration Statement; and (iii) such review of
published sources of law as we have deemed necessary.
This firm, in rendering legal opinions, customarily makes certain
assumptions which are described in Schedule B hereto. In the course of our
representation of the Company in connection with the Registration Statement,
nothing has come to our attention which causes us to believe reliance upon any
of those assumptions is inappropriate, and, with your concurrence, the opinions
hereafter expressed is based upon those assumptions. For purposes of those
assumptions, the Enumerated Party referred to in Schedule B is the Company.
Our opinions hereafter expressed is limited to the laws of the
Commonwealth of Massachusetts and Federal law. We express no legal opinions upon
any matter other than as explicitly addressed in numbered paragraphs 1 and 2
below, and our express opinions therein contained shall not be interpreted to be
implied opinions upon any other matter.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Shares have been duly authorized for issuance and, when issued
and paid for in accordance with the terms of the Plan, will be validly issued,
fully paid and nonassessable.
2. The Rights have been duly authorized for issuance and, when issued
in accordance with the Rights Agreement, will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the reference to this firm wherever it appears in
the Registration Statement.
Very truly yours,
BROWN, RUDNICK, FREED & GESMER
By: Brown, Rudnick, Freed & Gesmer, P.C.
a partner
By: /s/ Steven R. London
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Steven R. London, duly authorized
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SCHEDULE A
LIST OF DOCUMENTS
In connection with the Opinion Letter to which this Schedule A is
attached, we have reviewed the following Documents. However, except as otherwise
expressly indicated, we have not reviewed any documents, instruments or
agreements referred to in or listed upon any of the following Documents:
(i) a copy of the Restated Articles of Organization of the Company, as
amended, and a certificate of the Clerk of the Company that there
have been no further amendments thereto;
(ii) a copy of the By-Laws of the Company, as amended, certified by the
Clerk of the Company as presently being in effect;
(iii) the proceedings of the stockholders and directors of the Company
pertaining to the Plan and the Rights Agreement and a certificate of
the Clerk of the Company as to certain resolutions of the directors
of the Company;
(iv) a certificate dated as of December 5, 2000 of the Secretary of State
of the Commonwealth of Massachusetts as to the good standing of the
Company;
(v) the Plan;
(vi) the Rights Agreement; and
(vii) the Registration Statement.
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SCHEDULE B
BROWN, RUDNICK, FREED & GESMER
STANDARD ASSUMPTIONS
In rendering legal opinions in third party transactions, Brown,
Rudnick, Freed & Gesmer makes certain customary assumptions described below:
1. Each natural person executing any of the Documents has sufficient
legal capacity to enter into such Documents.
2. Each person, other than the Enumerated party, has all requisite
power and authority and has taken all necessary corporate or
other action to enter into the Documents to which it is a party,
or by which it is bound, to the extent necessary to make the
Documents enforceable against it.
3. Each person other than the Enumerated Party has complied with all
legal requirements pertaining to its status as such status
relates to its rights to enforce the Documents against the
Enumerated Party.
4. Each Document is accurate, complete and authentic, each original
is authentic, each copy conforms to an authentic original and all
signatures are genuine.
5. All official public records are accurate, complete and properly
indexed and filed.
6. There has not been any mutual mistake of fact or
misunderstanding, fraud, duress, or undue influence by or among
any of the parties to the Documents.
7. The conduct of the parties to the Documents has complied in the
past and will comply in the future with any requirement of good
faith, fair dealing and conscionability.
8. The Enumerated Party will obtain all permits and governmental
approvals required in the future and take all actions similarly
required relevant to its performance of its obligations under the
Documents.
9. All parties to or bound by the Documents will act in accordance
with, and will refrain from taking any action that is forbidden
by, the terms and conditions of the Documents.
10. There are no agreements or understandings among the parties to or
bound by the Documents not reflected in the Documents, and there
is no usage of trade or course of prior dealing among such
parties, that would define, modify, waive, or qualify the terms
of any of the Documents.
