EXHIBIT 5.1
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FOLEY, HOAG & ELIOT LLP
ONE POST OFFICE SQUARE
BOSTON, MASSACHUSETTS 02109-2170
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TELEPHONE 617-832-1000
FACSIMILE 617-832-7000
www.fhe.com
1747 PENNSYLVANIA AVENUE, N.W.
SUITE 1200
WASHINGTON, D.C. 20006
TEL: 202-223-1200
FAX: 202-785-6687
October 13, 2000
DynaGen, Inc.
1000 Winter Street, Suite 2700
Waltham, MA 02154
Gentlemen:
We are familiar with the Amendment No. 1 to the Registration Statement on
Form S-3 (the "Registration Statement") to which this opinion is an exhibit, to
be filed by DynaGen, Inc., a Delaware corporation (the "Company"), with the
Securities and Exchange Commission under the Securities Act of 1933, as amended.
The Registration Statement relates to the proposed public offering by security
holders of the Company of a total of 17,477,846 shares (the "Shares") of the
Company's common stock, $0.01 par value per share ("Common Stock"), including
Shares issuable upon conversion of shares of Series J Preferred Stock, $0.01 par
value per share ("Series J Stock"), Series K Preferred Stock, $0.01 par value
per share ("Series K Stock"), Series L Preferred Stock, $0.01 par value per
share ("Series L Stock") and Series M Preferred Stock, $0.01 par value per share
("Series M Stock") and Shares issuable upon exercise of warrants to purchase
Common Stock of the Company (the "Warrants").
In arriving at the opinion expressed below, we have examined and relied on
the following documents:
(1) the Certificate of Incorporation and By-laws of the Company, each as
amended as of the date hereof; and
(2) records of meetings and consents of the Board of Directors of the
Company relating to the issuance of the Shares provided to us by the
Company.
In addition, we have examined and relied on the originals or copies
certified or otherwise identified to our satisfaction of all such corporate
records of the Company and such other instruments and other certificates of
public officials, officers and representatives of the Company and such other
persons, and we have made such investigations of law, as we have deemed
appropriate as a basis for the opinion expressed below. In such examination, we
have assumed, without independent verification, the genuineness of all
signatures (whether original or
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DynaGen, Inc.
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photostatic), the authenticity of all documents submitted to us as originals and
the conformity to authentic original documents of all documents submitted to us
as certified or photostatic copies. We have further assumed that a sufficient
number of duly authorized and unissued shares of Common Stock will be available
for issuance at the time the shares of Series J Stock, Series K Stock, Series L
Stock and Series M Stock are presented for conversion in accordance with the
terms thereof and at the time the Warrants are exercised; and that the
consideration received by the Company in respect of each Share will be no less
than its par value.
Based upon and subject to the foregoing, it is our opinion that the Company
has taken all necessary corporate action required to authorize the issuance of
the Shares, and the Shares, when issued upon receipt of consideration therefor,
and when certificates for the same have been duly executed and countersigned and
delivered, will be legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
FOLEY, HOAG & ELIOT LLP
By: /s/ David A. Broadwin
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A Partner
