November 21, 2000
MacroChem Corporation
110 Hartwell Avenue
Lexington, Massachusetts 02421-3134
Re: REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
This opinion is furnished to you in connection with a registration
statement on Form S-3 (the "Registration Statement"), filed today with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
for the registration of shares of Common Stock, $.01 par value (the "Common
Stock"), of MacroChem Corporation, a Delaware corporation (the "Company"),
comprising (i) 1,816,658 shares of the Company's Common Stock (the "Issued
Shares"), $.01 par value; and (ii) up to 1,516,675 shares of Common Stock
issuable upon the exercise of Warrant No. 1 originally issued to Bay Harbor
Investments, Inc. to purchase shares of Common Stock, shares of Common Stock
issuable upon the exercise of Warrant No. 3 originally issued to Bay Harbor
Investments, Inc. to purchase 181,666 shares of Common Stock, up to 1,516,675
shares of Common Stock issuable upon the exercise of Warrant No. 2 originally
issued to Strong Harbor Investments, Inc. to purchase shares of Common Stock,
and 181,666 shares of Common Stock issuable upon the exercise of Warrant No. 4
originally issued to Strong River Investments, Inc. to purchase shares of Common
Stock (collectively, the "Purchaser Warrants") and 108,999 shares of Common
Stock issuable upon the exercise of Warrant No. 5 originally issued to Leerink
Swann & Company to purchase shares of Common Stock (the "Leerink Warrant"), plus
an indeterminate number of additional shares of Common Stock issuable upon
exercise of the Purchaser Warrants and the Leerink Warrant as a result of
antidilution provisions.
The Purchaser Warrants and the Leerink Warrant are referred to collectively
herein as the "Warrants." The shares of Common Stock issuable upon exercise of
the Purchaser Warrants are referred to herein as the "Purchaser Warrant Shares"
and the shares of Common Stock issuable upon exercise of the Leerink Warrant are
referred to herein as the "Leerink Warrant Shares." The Leerink Warrant Shares
and the Purchaser Warrant Shares are referred to collectively as the "Warrant
Shares." The Warrant Shares, together with the Issued Shares, are referred to
collectively as the "Registrable Shares."
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MacroChem Corporation -2- November 21, 2000
The Company originally sold the Issued Shares and the Purchaser Warrants
pursuant to the Securities Purchase Agreement dated October 23, 2000 (the
"Securities Purchase Agreement"), among the Company, Bay Harbor Investments,
Inc., and Strong River Investments, Inc., and originally issued the Leerink
Warrant pursuant to the Engagement Letter dated September 26, 2000 (the
"Engagement Letter"), between the Company and Leerink Swann & Company. We
understand the Registrable Shares are being registered to permit the resale of
such Common Stock by the holders thereof from time to time after the effective
date of the Registration Statement.
We have acted as counsel for the Company in connection with its issuance
and sale of the Issued Shares and Warrants. For purposes of this opinion, we
have examined and relied upon such documents, records, certificates, and other
instruments as we have deemed necessary. We have assumed that no issuance of the
shares issuable upon exercise of the Warrants will result in the issuance by the
Company of shares in excess of its authorized Common Stock and that the price
received by the Company for such shares will not be less than the par value
thereof.
We express no opinion as to the applicability of, compliance with, or
effect of federal law or the law of any jurisdiction other than the General
Corporation Law of the State of Delaware.
Based on the foregoing, we are of the opinion that:
1. The Issued Shares are duly authorized, validly issued, fully paid, and
non-assessable.
2. The Purchaser Warrant Shares have been duly authorized, and when issued
out of the Company's duly authorized Common Stock upon exercise of, and pursuant
to the provisions of, the Purchaser Warrants and the Company has received the
consideration therefor in accordance with the terms of the Purchaser Warrants,
the Purchaser Warrant Shares will be validly issued, fully paid, and
non-assessable.
3. The Leerink Warrant Shares have been duly authorized, and when issued
out of the Company's duly authorized Common Stock upon exercise of, and pursuant
to the provisions of, the Leerink Warrant and the Company has received the
consideration therefor in accordance with the terms of the Leerink Warrant, the
Leerink Warrant Shares will be validly issued, fully paid, and non-assessable.
We hereby consent to your filing this opinion as an exhibit to the
Registration Statement and to the use of our name therein and in the related
prospectus under the caption "Legal Opinions."
It is understood that this opinion is to be used only in connection with
the offer and sale of the Registrable Shares while the Registration Statement is
in effect.
Very truly yours,
/s/Ropes & Gray
Ropes & Gray
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