Applied Genetic Technologies Corporation
July 14, 2022
Page 2
execution and delivery of all documents by all persons other than the Company where authorization, execution and delivery are prerequisites to the effectiveness of such documents.
With regard to our opinion regarding the Warrant Shares, we have assumed that the Company will have sufficient authorized, unissued and otherwise unreserved shares of Common Stock available for issuance at the time of each issuance of Warrant Shares upon exercise of the Warrants. Further, we have assumed the Exercise Price (as defined in the Warrants) will not be adjusted to an amount below the par value per share of the Common Stock.
Our opinion concerning the Warrants constituting valid and binding obligations of the Company is subject to the qualification that we express no opinion regarding the applicability of, compliance with or effect of (i) any bankruptcy, insolvency, reorganization, preference, fraudulent conveyance, fraudulent transfer, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or (ii) general principles of equity, whether considered in a proceeding in equity or at law (including the possible unavailability of specific performance or injunctive relief), concepts of materiality, reasonableness, good faith and fair dealing, and the discretion of the court before which a proceeding is brought. We express no opinion as to any provisions of the Warrants: (a) that provide for liquidated damages, default interest, late charges, monetary penalties, make-whole premiums or other economic remedies to the extent such provisions are deemed to constitute a penalty, (b) requiring the payment of attorneys’ fees, where such payment is contrary to law or public policy, (c) that provide for advance waivers of claims, defenses, rights granted by law, or notice, opportunity for hearing, evidentiary requirements, statutes of limitation, trial by jury or at law, or other procedural rights, (d) that provide for exclusivity, election or cumulation of rights or remedies, (e) authorizing or validating conclusive or discretionary determinations, or (f) that provide for the severability, if invalid, of provisions to the foregoing effect. We express no opinion as to whether a state court outside of the State of New York or a federal court of the United States would give effect to the choice of New York law or jurisdiction provided for in the Warrants.
The opinion expressed below is limited to the General Corporation Law of the State of Delaware.
On the basis of the foregoing, it is our opinion that, as of the date hereof, (i) the Shares have been duly authorized and, when issued and delivered by the Company against payment therefor as set forth in the Prospectus, will be validly issued, fully paid and non-assessable, (ii) the Warrants, when duly executed and delivered against payment therefor as set forth in the Prospectus, will be valid and legally binding obligations of the Company and (iii) the Warrant Shares, when issued and paid for in accordance with the terms of the Warrants, will be validly issued, fully paid and nonassessable.
