Attached files
file | filename |
---|---|
8-K - FORM 8-K - ALBIREO PHARMA, INC. | y86384e8vk.htm |
EX-1.1 - EX-1.1 - ALBIREO PHARMA, INC. | y86384exv1w1.htm |
EX-10.1 - EX-10.1 - ALBIREO PHARMA, INC. | y86384exv10w1.htm |
EX-10.2 - EX-10.2 - ALBIREO PHARMA, INC. | y86384exv10w2.htm |
EX-99.1 - EX-99.1 - ALBIREO PHARMA, INC. | y86384exv99w1.htm |
Exhibit 5.1
August 24, 2010 | +1 212 230 8800 (t) +1 212 230 8888 (f) wilmerhale.com |
Biodel Inc.
100 Saw Mill Road
Danbury, Connecticut 06810
100 Saw Mill Road
Danbury, Connecticut 06810
Re: Prospectus Supplement to Registration Statement on Form S-3
Ladies and Gentlemen:
This opinion is furnished to you in connection with (i) the Registration Statement on Form S-3
(File No. 333-153167) (the Registration Statement) filed by Biodel 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), for the purpose of registering with the
Commission, among other things, shares of the Companys common stock, $0.01 par value per share
(the Common Stock), and warrants to purchase shares of Common Stock, all of which may be issued
and sold by the Company 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 $100,000,000, as set
forth in the Registration Statement and the prospectus contained therein and (ii) the prospectus
supplement, dated August 25, 2010 (the Prospectus Supplement), relating to the issue and sale
pursuant to the Registration Statement of (a) 2,398,200 shares (the Shares) of Common Stock, (b)
warrants to purchase 2,398,200 shares of Common Stock (the Warrants) and (c) the shares of Common
Stock issuable upon exercise of the Warrants (the Warrant Shares and, together with the Shares
and the Warrants, the Securities).
The Securities are to be issued and sold by the Company to selected investors pursuant to (i)
subscription agreements dated as of August 24, 2010 (the Subscription Agreements), between the
Company and such investors and (ii) the placement agency agreement, dated as of August 24, 2010,
among the Company and the several placement agents named therein (the Placement Agency
Agreement). The Placement Agency Agreement will be filed with the Commission as Exhibit 1.1 to
the Companys Current Report on Form 8-K, dated August 24, 2010, the form of Subscription Agreement
will be filed with the Commission as Exhibit 10.1 to such Current Report, and the form of Warrant
will be filed as Exhibit 10.2 to such Current Report.
We are acting as counsel for the Company in connection with the issue and sale by the Company of
the Securities. We have examined a signed copy of the Registration Statement, as filed with the
Commission, including the exhibits thereto, and the form of Prospectus Supplement to be filed with
the Commission. We have also examined and relied upon the Placement Agency Agreement and the
Subscription Agreements, minutes of meetings of the stockholders and the Board of Directors,
including committees thereof, of the Company as provided to us by the Company, the Certificate of
Incorporation and Bylaws of the Company, each as restated and/or
Wilmer
Cutler Pickering Hale and Dorr llp, 399 Park Avenue, New York, New
York 10022
Beijing Berlin Boston Brussels Frankfurt London Los Angeles New York Oxford Palo Alto Waltham Washington
Beijing Berlin Boston Brussels Frankfurt London Los Angeles New York Oxford Palo Alto Waltham Washington
Biodel Inc.
August 24, 2010
Page 2
August 24, 2010
Page 2
amended to date, and such other
documents as we have deemed necessary for purposes of rendering the opinions hereinafter set forth.
In our examination of the foregoing documents, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as copies, the authenticity of the originals of such
latter documents and the legal competence of all signatories to such documents.
We express no opinion herein as to the laws of any state or jurisdiction other than the state laws
of the State of New York, the General Corporation Law of the State of Delaware and the federal laws
of the United States of America.
Based upon and subject to the foregoing, we are of the opinion that
1. | The Shares have been duly authorized for issuance and, when issued and paid for in accordance with the terms and conditions of the Subscription Agreements, the Shares will be validly issued, fully paid and nonassessable. | ||
2. | The Warrants have been duly authorized by the Company and, when executed by the Company and delivered by the Company against payment therefor as provided by the Subscription Agreements, the Warrants will constitute valid and binding obligations of the Company enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors rights and to general equity principles. | ||
3. | The Warrant Shares have been duly authorized for issuance and, when issued and paid for in accordance with the provisions of the Warrants, the Warrant Shares will be validly issued, fully paid and nonassessable. |
It is understood that this opinion is to be used only in connection with the offer and sale of the
Securities while the Registration Statement is in effect.
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 in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Securities Act as an exhibit to the
Current Report on Form 8-K to be filed by the Company in connection with the issue and sale of
Biodel Inc.
August 24, 2010
Page 3
August 24, 2010
Page 3
the Securities and to the use of our name in the Prospectus Supplement under the caption Legal
Matters. 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,
WILMER CUTLER PICKERING
HALE AND DORR LLP
HALE AND DORR LLP
By: |
/s/ Stuart R. Nayman | |||