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Exhibit 5.1
www.haledorr.com
60 STATE STREET - BOSTON, MA 02109
617-526-6000 - FAX 617-526-5000
December 13, 2000
Transkaryotic Therapies, Inc.
195 Albany Street
Cambridge, MA 02139
Ladies and Gentlemen:
This opinion is furnished to you in connection with the Registration
Statement on Form S-3 (the "Registration Statement") being filed by
Transkaryotic Therapies, Inc., a Delaware corporation (the "Company"), with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Securities Act"), with respect to the Company's:
1. common stock, $0.01 par value per share (the "Common Stock");
2. preferred stock, $0.01 par value per share (the "Preferred
Stock");
3. senior debt securities (the "Senior Debt Securities");
4. subordinated debt securities (the "Subordinated Debt
Securities" and, together with the Senior Debt Securities, the
"Debt Securities"); and
5. warrants to purchase Common Stock, Preferred Stock, Senior Debt
Securities or Subordinated Debt Securities (the "Warrants");
all of which may be issued from time to time on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act at an aggregate initial offering
price not to exceed $500,000,000.
The Senior Debt Securities may be issued pursuant to an Indenture
between the Company and a trustee to be named in such Indenture; and the
Subordinated Debt Securities may be issued pursuant to an Indenture between the
Company and a trustee to be named in such Indenture (collectively, the
"Indentures").
Warrants will be issued pursuant to a Warrant Agreement between the
Company and a bank or trust company as Warrant Agent.
We have examined the Registration Statement, including the exhibits
thereto, and such other documents, corporate records and instruments, and have
examined such laws and regulations as we have deemed necessary for purposes of
rendering the opinions set forth herein.
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Transkaryotic Therapies, Inc.
December 13, 2000
Page 2
In our examination of such legal documents, we have assumed the
genuineness of all signatures, the legal capacity of all signatories who are
natural persons, the authenticity of all documents submitted to us as originals,
the conformity to original documents of all documents submitted to us as copies
and the authenticity of the originals of such latter documents. Insofar as this
opinion relates to factual matters, we have assumed with your permission and
without independent investigation that the statements of the Company contained
in the Registration Statement are true and correct as to all factual matters
stated therein.
We have relied as to certain matters on information obtained from
public officials, officers of the Company, and other sources believed by us to
be reliable and we have assumed that the Indentures will be duly authorized,
executed and delivered by all parties thereto other than the Company and the
Warrant Agreement will be duly authorized, executed and delivered by all parties
thereto other than the Company, assumptions which we have not independently
verified. We are expressing no opinion herein as to the application of or
compliance with any federal or state law or regulation to the power, authority
or competence of any party to an Indenture or Warrant Agreement other than the
Company. We have assumed that such agreements are the valid and binding
obligations of each party thereto other than the Company, and enforceable
against each such other party in accordance with their respective terms.
We are opining herein solely with respect to the federal laws of the
United States and the state laws of the Commonwealth of Massachusetts and the
Delaware General Corporation Law. To the extent that the laws of any other
jurisdiction govern any of the matters as to which we are opining herein, we
have assumed that such laws are identical to the state laws of the
Commonwealth of Massachusetts, and we are expressing no opinion herein as to
whether such assumptions are reasonable or correct.
Our opinions below are qualified to the extent that they may be subject
or affected by (i) applicable bankruptcy, insolvency, reorganization,
moratorium, usury, fraudulent conveyance or similar laws affecting the rights of
creditors generally, and general equity principles (including limitations on the
enforceability of a penalty), (ii) statutory or decisional law concerning
recourse by creditors to security in the absence of notice or hearing, and (iii)
duties and standards imposed on creditors and parties to contracts, including,
without limitation, requirements of good faith, reasonableness and fair dealing.
Furthermore, we express no opinion as to the availability of any equitable or
specific remedy, or as to the successful assertion of any equitable defense,
upon any breach of any agreements or documents or obligations referred to
therein, or any other matters, inasmuch as the availability of such remedies or
defenses may be subject to the discretion of a court. We express no opinion as
to the enforceability of any indemnity provision that indemnifies any person
against damages arising from its own negligence or misconduct.
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Transkaryotic Therapies, Inc.
December 13, 2000
Page 3
Based upon and subject to the foregoing, we are of the opinion that:
1. With respect to the Common Stock, when (i) specifically authorized
for issuance by the Company's Board of Directors or an authorized committee
thereof (the "Authorizing Votes"), (ii) the Registration Statement has become
effective under the Securities Act, (iii) the terms of the sale of the Common
Stock have been duly established in conformity with the Company's Certificate of
Incorporation and By-laws and assuming such terms and sale do not violate any
applicable law or result in a default under or breach of any agreement or
instrument binding on the Company and comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over the Company,
(iv) the Common Stock has been issued and sold as contemplated by the
Registration Statement, and (v) the Company has received the consideration
provided for in the Authorizing Votes and such consideration per share is not
less than the par value per share of the Common Stock, the Common Stock will be
validly issued, fully paid and non-assessable.
2. With respect to the Preferred Stock, when (i) specifically
authorized for issuance by the Authorizing Votes, (ii) the Registration
Statement has become effective under the Securities Act, (iii) appropriate
Certificate or Certificates of Designation relating to a class or series of the
Preferred Stock to be sold under the Registration Statement have been duly
authorized and adopted and filed with the Secretary of State of the State of
Delaware, (iv) the terms of issuance and sale of shares of such class or series
of Preferred Stock have been duly established in conformity with the Company's
Certificate of Incorporation and By-laws and assuming such terms and sale do not
violate any applicable law or result in a default under or breach of any
agreement or instrument binding upon the Company and comply with any requirement
or restriction imposed by any court or governmental body having jurisdiction
over the Company, (iv) shares of such class or series of Preferred Stock have
been duly issued and sold as contemplated by the Registration Statement, and (v)
the Company has received the consideration provided for in the Authorizing Votes
and such consideration per share is not less that the par value per share of the
Preferred Stock, such Preferred Stock will be validly issued, fully paid, and
non-assessable.
3. With respect to the Debt Securities, when (i) specifically
authorized for issuance by the Authorizing Votes, (ii) the Registration
Statement has become effective under the Securities Act, (iii) the terms of
the Debt Securities and of their issue and sale have been duly established in
conformity with the applicable Indenture and assuming such terms and sale do
not violate any applicable law or result in a default under or breach of any
agreement or instrument binding upon the Company and comply with any
requirement or restriction imposed by any court or governmental body having
jurisdiction over the Company, (iv) such Debt Securities have been duly
executed and authenticated in accordance with the applicable Indenture and
issued and sold as contemplated in the Registration Statement, and (v) the
Company has received the consideration provided for in the Authorizing Votes,
such Debt Securities will constitute valid and binding obligations of the
Company against the Company in accordance with their respective terms.
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Transkaryotic Therapies, Inc.
December 13, 2000
Page 4
4. With respect to the Warrants, when (i) specifically authorized for
issuance by the Authorizing Votes, (ii) the Registration Statement has become
effective under the Securities Act, (iii) the Warrant Agreement relating to the
Warrants has been duly authorized, executed and delivered, (iv) the terms of the
Warrants and of their issuance and sale have been duly established in conformity
with the Warrant Agreement and assuming such terms and sale do not violate any
applicable law or result in a default under or breach of any agreement or
instrument binding upon the Company and comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction over
the Company, (v) the Warrants have been duly executed and countersigned in
accordance with the Warrant Agreement and issued and sold as contemplated by the
Registration Statement, and (vi) the Company has received the consideration
provided for in the Authorizing Votes, the Warrants will constitute valid and
binding obligations of the Company against the Company in accordance with their
respective terms.
It is understood that this opinion is to be used only in connection
with the offer and sale of the Common Stock, Preferred Stock, Debt Securities
and Warrants while the Registration Statement is in effect and may not be used,
quoted or relied upon for any other purpose nor may this opinion be furnished
to, quoted to or relied upon by any other person or entity, for any purpose,
without our prior written consent.
Please note that we are opining only as to the matters expressly set
forth herein, and no opinion should be inferred as to any other matters. This
opinion is based upon currently existing statutes, rules, regulations and
judicial decisions, and we disclaim any obligation to advise you of any change
in any of these sources of law or subsequent legal or factual developments which
might affect any matters or opinions set forth herein.
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act and to the use of this
Firm's name therein and in the related Prospectus under the caption "Validity of
Securities." In giving such consent, we do not hereby admit that we are in the
category of persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations of the Commission.
Very truly yours,
/s/ Hale and Dorr LLP
HALE AND DORR LLP
