EXHIBIT 5.01
January 4, 2001
Cellegy Pharmaceuticals, Inc.
349 Oyster Point Boulevard, Suite 200
South San Francisco, CA 94080
Gentlemen/Ladies:
At your request, we have examined the Registration Statement on Form
S-3 (the "Registration Statement") filed by Cellegy Pharmaceuticals, Inc., a
California corporation (the "Company"), with the Securities and Exchange
Commission (the "Commission") on or about November 7, 2000 in connection with
the registration under the Securities Act of 1933, as amended, of the resale of
up to an aggregate of 2,143,870 shares of the Company's Common Stock (the
"Stock"), including 1,669,224 shares that are presently issued and outstanding
(the "Outstanding Shares") and 474,646 shares (the "Warrant Shares") that are
issuable upon the exercise of certain warrants (the "Warrants") held by certain
of the Selling Shareholders (the "Selling Shareholders") named in the
Registration Statement.
In rendering this opinion, we have examined the following documents:
(1) a copy of the Company's Amended and Restated Articles of
Incorporation filed with the California Secretary of State on
August 16, 1995, the Certificate of Determination of Series A
Preferred Stock filed with the California Secretary of State
on April 15, 1996, and the Certificate of Amendment to the
Certificate of Determination of Series A Preferred Stock filed
with the California Secretary of State on April 17, 1996
(together, the "Restated Articles"), certified by the
Company's Secretary on October 2, 2000;
(2) a copy of the Company's Bylaws, certified by the Company's
Secretary on October 2, 2000;
(3) the Registration Statement (including the Prospectus included
therein), together with the Exhibits filed as a part thereof;
(4) Common Stock Purchase Agreement dated October 2, 2000, between
the Company and SMALLCAP World Fund, Framlington Health Fund,
Munder Framlington Healthcare Fund, and Four Partners;
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January 4, 2001
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(5) Common Stock Purchase Agreement dated April 14, 2000 between
the Company and Quay Pharmaceuticals Pty Ltd, Richcone Pty
Ltd, and Cellegy Australia Pty Ltd (The purchase agreements
referred to in clauses (4) through (5) are collectively
referred to in this letter as the "Purchase Agreements.");
(6) two Common Stock Purchase Warrants dated March 21, 2000
between the Company and Gruntal & Co., L.L.C.;
(7) Common Stock Purchase Warrant dated June 13, 2000 between the
Company and Richcone Pty Ltd;
(8) Common Stock Purchase Warrant dated February 25, 2000 between
the Company and Marc Parham, Ph.D. (The warrant agreements
referred to in clauses (6) through (8) above are collectively
referred to in this letter as the "Warrant Agreements.");
(10) copies of the minutes of meetings and actions by written
consent of the Company's Board of Directors that are contained
in the Company's minute books that have been furnished to us
by the Company in connection with the rendering of this
opinion (the "Minute Book Contents"); and
(11) the stock records that the Company has provided to us
(consisting of a certificate from the Company's transfer agent
verifying the number of the Company's issued and outstanding
shares of capital stock as of the date hereof and a list of
option and warrant holders respecting the Company's capital
and of any rights to purchase capital stock that was prepared
by the Company and dated November 2, 2000 verifying the number
of such issued and outstanding securities).
(12) a Management Certificate addressed to us and dated of even
date herewith executed by the Company (the "Management
Certificate") containing certain factual and other
representations.
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the genuineness of all signatures on
original documents, the authenticity and completeness of all documents submitted
to us as originals, the conformity to originals and completeness of all
documents submitted to us as copies, the legal competence or capacity of all
persons or entities executing the same, the lack of any undisclosed termination,
modification, waiver or amendment to any document reviewed by us and the due
authorization, execution and delivery of all documents where due authorization,
execution and delivery are prerequisites to the effectiveness thereof. We have
also assumed that the certificates representing the Stock have been, or will be
when issued, properly signed by authorized officers of the Company or their
agents.
As to matters of fact relevant to this opinion, we have relied solely
upon our examination of the documents referred to above and have assumed the
current accuracy and completeness of the information obtained from the documents
referred to above, and the representations and
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January 4, 2001
Page 3
warranties made by representatives of the Company to us, including without
limitation, those set forth in the Management Certificate. We have made no
independent investigation or other attempt to verify the accuracy of any of such
information or to determine the existence or non-existence of any other factual
matters; however, we are not aware of any facts that would cause us to believe
that the opinion expressed herein is not accurate.
We are admitted to practice law in the State of California, and we
render this opinion only with respect to, and express no opinion herein
concerning the application or effect of the laws of any jurisdiction other than,
the existing federal laws of the United States of America and the existing laws
of the State of California.
In connection with our opinion expressed below, we have assumed that,
at or before the time of any resale of shares of Stock, the Registration
Statement will have been declared effective under the Securities Act of 1933, as
amended, that the registration will apply to such resale of shares of Stock and
will not have been modified or rescinded and that there will not have occurred
any change in law affecting the validity or enforceability of such shares of
Stock.
The Company has informed us that the Selling Shareholders may resell
the stock on a delayed or continuous basis. This opinion is limited to the laws,
including the rules and regulations, as in effect on the date hereof. We are
basing this opinion on our understanding that, prior to any Selling
Shareholder's resale of Stock, the Company will advise us in writing of the
terms thereof and other information material thereto and will afford us an
opportunity to review the operative documents pursuant to which such Stock is to
be resold (including the Registration Statement, the Prospectus and applicable
Prospectus Summary, as then in effect) and will file such supplement or
amendment to this opinion, if any as we may reasonably consider necessary or
appropriate with respect to such resale. However, we undertake no responsibility
to monitor the Company's or Selling Shareholders' future compliance with
applicable laws, rules or regulations of the Commission or other governmental
body. We also assume the Company will timely file any and all supplements to the
Registration Statement and Prospectus as are necessary to comply with applicable
laws in effect from time to time.
In rendering any opinion that the shares of Stock are, or will when
issued be, "fully paid," we have assumed that such shares were or will be issued
in accordance with the terms of the Purchase Agreements or the Warrant
Agreements, and that the Company has received full consideration for the
issuance of such shares provided for in the Purchase Agreements or Warrant
Agreements (as the case may be), and we have relied solely, without independent
investigation, upon the representation of the Company to that effect in the
Management Certificate referred to above.
Based upon the foregoing, it is our opinion that the Outstanding Shares
to be sold by the Selling Shareholders pursuant to the Registration Statement
are validly issued, fully paid and nonassessable, and that the Warrant Shares,
when and if issued upon exercise of the Warrants and fully paid for as provided
in the Warrants and Warrant Agreements, will be (assuming no change in such
documents or applicable law), validly issued, fully paid and nonassessable.
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January 4, 2001
Page 4
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us, if any, in the
Registration Statement, the Prospectus constituting a part thereof and any
amendments thereto. This opinion speaks only as of its date and we assume no
obligation to update this opinion should circumstances change after the date
hereof. This opinion is intended solely for use in connection with issuance and
sale of shares subject to the Registration Statement and is not to be relied
upon for any other purpose.
Very truly yours,
FENWICK & WEST LLP
By: C. Kevin Kelso, a Partner
