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Exhibit 5.1
June 9, 2000
Boston Biomedica, Inc.
375 West Street
West Bridgewater, MA 02379
Attn: Richard T. Schumacher, Chief Executive Officer
RE: Registration Statement on Form S-3 filed on June 9, 2000
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Ladies and Gentlemen:
We have acted as counsel to Boston Biomedica, Inc., a Massachusetts
corporation (the "Company"), in connection with the preparation and filing with
the Securities and Exchange Commission of Amendment No. 1 to the Registration
Statement on Form S-3 (Registration No. 333-94379) (the "Registration
Statement") pursuant to which the Company is registering under the Securities
Act of 1933, as amended (the "Act"), a total of 633,306 shares of common stock,
$.01 par value (the "Shares"), issuable upon exercise of outstanding warrants of
the Company (the "Warrants"). This opinion is being rendered in connection with
the filing of the Registration Statement.
In connection with this opinion, we have examined the following
documents (collectively, the "Documents"):
(i) the Amended and Restated Articles of Incorporation of the Company;
(ii) the Amended and Restated By-laws of the Company;
(iii) the corporate minute books and other records of the Company;
(iv) the Warrant Purchase Agreement dated August 18, 1999, by and
between the Company and Paradigm Group, L.L.C. (the "Warrant
Purchase Agreement");
(v) a form of Warrant, the terms of which we assume to be
substantially similar to the terms of all the Warrants; and
(vi) the Registration Statement.
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.
The opinions expressed herein are based solely upon (i) our review of
the Documents, (ii) discussions with Richard T. Schumacher, the Chairman of the
Board and Chief Executive Officer of the Company, (iii) discussions with those
of our attorneys who have devoted substantive attention to the
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Boston Biomedica, Inc.
June 9, 2000
Page 2
matters contained herein, and (iv) 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 A hereto. In the course of our
representation of the Company in connection with the preparation of 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 are based upon those assumptions.
We express no legal opinion upon any matter other than that explicitly
addressed below, and our express opinion therein contained shall not be
interpreted to be an implied opinion upon any other matter.
Our opinion contained herein is limited to the laws of the Commonwealth
of Massachusetts and the Federal law of the United States of America.
Based upon and subject to the foregoing, we are of the opinion thatthe
Shares have been duly authorized and, when issued and delivered in accordance
with the terms of the Warrants and the Warrant Purchase Agreement, will be
validly issued, fully paid and non-assessable.
We understand that this opinion is to be used in connection with the
Registration Statement. We consent to the filing of this opinion as an Exhibit
to said Registration Statement and to the reference to our firm wherever it
appears in the Registration Statement, including the prospectus constituting a
part thereof and any amendments thereto. This opinion may be used in connection
with the offering of the Shares only while the Registration Statement, as it may
be amended from time to time, remains effective under the Act.
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, A Member
Duly Authorized
SRL/DHM/MRF
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Boston Biomedica, Inc.
June 9, 2000
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SCHEDULE A
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 and
perform the transactions contemplated thereby.
2. The Company holds requisite title and rights to any property
involved in the transactions described in the Documents and
purported to be owned by it.
3. Each person other than the Company has all requisite power
and authority and has taken all necessary corporate or other
action to enter into those Documents to which it is a party
or by which it is bound, to the extent necessary to make the
Documents enforceable against it.
4. Each person other than the Company has complied with all
legal requirements pertaining to its status as such status
relates to its rights to enforce the Documents against the
Company.
5. Each Document is accurate, complete and authentic, each
original is authentic, each copy conforms to an authentic
original and all signatures are genuine.
6. All official public records are accurate, complete and
properly indexed and filed.
7. 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.
8. The conduct of the parties to the transactions described in
the Documents has complied in the past and will comply in
the future with any requirement of good faith, fair dealing
and conscionability.
9. Each person other than the Company has acted in good faith
and without notice of any defense against the enforcement of
any rights created by, or adverse claim
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Boston Biomedica, Inc.
June 9, 2000
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to any property or security interest transferred or created
as part of, the transactions described in the Documents.
10. There are no agreements or understandings among the parties
to or bound by 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.
11. The Company will not in the future take any discretionary
action (including a decision not to act) permitted under any
Document that would result in a violation of law or
constitute a breach or default under that or any other
Document or court or administrative orders, writs, judgments
and decrees that name the Company and are specifically
directed to it or its property.
12. The Company will obtain all permits and governmental
approvals not required at the time of the closing of the
transactions contemplated by the Documents but which are
subsequently required, and will take all actions similarly
required, relevant to subsequent consummation of the
transactions contemplated by the Documents or performance of
the Documents.
13. 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.
