EXHIBIT 5.1
[Letterhead]
January 18, 2001
SCIOS INC.
820 West Maude Avenue
Sunnyvale, California 94085
Re: $120,000,000 Aggregate Offering
Price of Securities of Scios Inc.
Ladies and Gentlemen:
In connection with the registration statement on Form S-3 filed with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Securities Act") on January 18, 2001 (the
"Registration Statement"), you have requested our opinion with respect to the
matters set forth below.
You have provided us with a draft prospectus (the "Prospectus") which
is a part of the Registration Statement. The Prospectus provides that it will be
supplemented in the future by one or more supplements to the Prospectus (each, a
"Prospectus Supplement"). The Prospectus as supplemented by various Prospectus
Supplements will provide for the issuance and sale by Scios Inc., a Delaware
corporation (the "Company") of up to $120,000,000 aggregate offering price of
shares of common stock, par value $0.001 per share (the "Common Stock"). The
Common Stock is referred to herein as the "Securities."
In our capacity as counsel to the Company in connection with the
Registration Statement, we are generally familiar with the proceedings taken and
proposed to be taken by the Company in connection with the authorization and
issuance of the Securities. For purposes of this opinion, we have assumed that
such proceedings will be timely and properly completed, in accordance with all
requirements of applicable federal and Delaware laws, in the manner presently
proposed.
We have made such legal and factual examinations and inquiries,
including an examination of originals and copies certified or otherwise
identified to our satisfaction, of all such documents, corporate records and
instruments of the Company as we have deemed necessary or appropriate for
purposes of this opinion. In our examination, we have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us as originals,
and the conformity to authentic original documents of all documents submitted to
us as copies.
We have been furnished with, and with your consent have exclusively
relied upon, certificates of officers of the Company with respect to certain
factual matters. In addition, we have obtained and relied upon such certificates
and assurances from public officials as we have deemed necessary.
We are opining herein as to the effect on the subject transaction only
of the federal securities laws of the United States and the General Corporation
Law of the State of Delaware (the "DGCL"), and we express no opinion with
respect to the applicability thereto, or the effect thereon, of the laws of any
other jurisdiction or, in the case of Delaware, any other laws, or as to any
matters of municipal law or the laws of any local agencies within any state.
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Subject to the foregoing and the other qualifications set forth herein,
it is our opinion that, as of the date hereof:
1. The Company has the authority pursuant to its Certificate of
Incorporation (the "Certificate"), to issue up to 150,000,000 shares of Common
Stock. Upon adoption by the Board of Directors of the Company of a resolution in
form and content as required by the DGCL and upon issuance and delivery of and
payment for such shares in the manner contemplated by the Registration
Statement, the Prospectus and the related Prospectus Supplement(s) and by such
resolution, and when the Registration Statement and any required post-effective
amendment thereto and any and all Prospectus Supplement(s) required by
applicable laws have all become effective under the Securities Act, and assuming
that (i) the terms of such shares as executed and delivered are as described in
the Registration Statement, the Prospectus and the related Prospectus
Supplement(s), (ii) the Company has a sufficient number of authorized but
unissued shares under the Certificate at the time of issuance, (iii) such shares
as executed and delivered do not violate any law applicable to the Company or
result in a default under or breach of any agreement or instrument binding upon
the Company, (iv) such shares as executed and delivered comply with all
requirements and restrictions, if any, applicable to the Company, whether
imposed by any court or governmental or regulatory body having jurisdiction over
the Company and (v) such shares are then issued and sold as contemplated in the
Registration Statement, such shares of Common Stock will be validly issued,
fully paid and nonassessable.
The opinion set forth above is subject to the following exceptions,
limitations and qualifications: (i) the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting the rights and remedies of creditors; (ii) the effect
of general principles of equity, including without limitation, concepts of
materiality, reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief, regardless of
whether enforcement is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor may be brought;
(iii) the unenforceability under certain circumstances under law or court
decisions of provisions providing for the indemnification of, or contribution
to, a party with respect to a liability where such indemnification or
contribution is contrary to public policy; and (iv) the unenforceability of any
provision regarding the payment of attorney's fees, except to the extent that a
court determines such fees to be reasonable.
We consent to your filing this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the Prospectus included therein.
Very truly yours,
/s/ Latham & Watkins
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