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Exhibit 5.1
November 13, 2000
Board of Directors
Martek Biosciences Corporation
6480 Dobbin Road
Columbia, Maryland 21045
Ladies and Gentlemen:
We are acting as counsel to Martek Biosciences Corporation, a Delaware
corporation (the "Company"), in connection with its registration statement on
Form S-3 (the "Registration Statement") filed with the Securities and Exchange
Commission relating to the resale of (i) warrants (the "Warrants") to purchase
up to 7,858 shares of the Company's common stock, par value $.10 per share
("Common Stock"), and (ii) up to 34,058 shares of Common Stock, 26,200 of which
have been issued (the "Common Shares") and 7,858 of which are issuable upon the
exercise of the Warrants (the "Warrant Shares") and are to be sold by the
holders thereof (the "Selling Stockholders"). This opinion letter is furnished
to you at your request to enable you to fulfill the requirements of Item
601(b)(5) of Regulation S-K, 17 C.F.R. Section 229.601(b)(5), in connection with
the Registration Statement.
For purposes of this opinion letter, we have examined copies of the
following documents:
1. An executed copy of the Registration Statement.
2. The Certificate of Incorporation of the Company, as certified by the
Secretary of the State of the State of Delaware on July 9, 1999 and by
the Chief Financial Officer and Treasurer of the Company on the date
hereof as being complete, accurate, and in effect.
3. The Bylaws of the Company, as certified by the Chief Financial Officer
and Treasurer of the Company on the date hereof as being complete,
accurate, and in effect.
4. Resolutions of the Board of Directors of the Company dated April 6 and
June 4, 1998 and May 26, 1999, as certified by the Chief Financial
Officer and Treasurer of the Company on the date hereof as being
complete, accurate, and in effect, relating to the issuance and sale of
the Warrants, the Warrant Shares and the Common Shares and arrangements
in connection therewith.
5. Executed copies of the Warrants.
In our examination of the aforesaid documents, we have assumed the
genuineness of all signatures, the legal capacity of all natural persons, the
accuracy and completeness of all documents submitted to us, the authenticity of
all original documents, and the conformity to authentic original documents of
all documents submitted to us as copies (including telecopies). This opinion
letter is given, and all statements herein are made, in the context of the
foregoing.
This opinion letter is based as to matters of law solely on the Delaware
General Corporation Law, as amended. We express no opinion herein as to any
other laws, statutes, ordinances, rules, or regulations. As used herein, the
term "Delaware General Corporation Law, as amended" includes the statutory
provisions contained therein, all applicable provisions of the Delaware
Constitution and reported judicial decisions interpreting these laws.
Based upon, subject to and limited by the foregoing, we are of the opinion
that (i) the Common Shares are validly issued, fully paid and nonassessable,
(ii) the Warrants are validly issued and constitute binding obligations of the
Company, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights (including, without
limitation, the effect of statutory and other law regarding fraudulent
conveyances, fraudulent transfers and preferential transfers) and as may be
limited by the exercise of judicial discretion and the application of principles
of equity including, without limitation, requirements of good faith, fair
dealing, conscionability and materiality (regardless of whether such agreement
is considered in a proceeding in equity or at law), and (iii) following issuance
of the Warrant Shares pursuant to the terms of the Warrants and receipt by the
Company of the consideration for the Warrant Shares
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Board of Directors
November 13, 2000
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specified in the resolutions of the Board of Directors referred to above and the
Warrants, the Warrant Shares will be validly issued, fully paid and
nonassessable.
The opinion expressed above in clause (ii) shall be understood to mean only
that if there is a default in performance of an obligation, (a) if a failure to
pay or other damage can be shown and (b) if the defaulting party can be brought
into a court which will hear the case and apply the governing law, then, subject
to the availability of defenses, and to the exceptions set forth above, the
court will provide a money damage (or perhaps injunctive or specific
performance) remedy.
This opinion letter has been prepared for your use in connection with the
Registration Statement and speaks as of the date hereof. We assume no obligation
to advise you of any changes in the foregoing subsequent to the delivery of this
opinion letter.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to
the Registration Statement and to the reference to this firm under the caption
"Legal Matters" in the prospectus constituting a part of the Registration
Statement. In giving this consent, we do not thereby admit that we are an
"expert" within the meaning of the Securities Act of 1933, as amended.
Very truly yours,
/s/ HOGAN & HARTSON L.L.P.
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HOGAN & HARTSON L.L.P.
