Exhibit 5.1
ALSTON&BIRD LLP
90 Park Avenue
New York, New York 10016
212-210-9400
Fax: 212-210-9444
www.alston.com
MARK F. MCELREATH DIRECT DIAL: 212-210-9595 E-MAIL: MMCELREATH@ALSTON.COM
July 20, 2005
Keryx Biopharmaceuticals, Inc.
750 Lexington Avenue
New York, New York 10022
Re: Registration Statement on Form S-3 (File No. 333-119376) and
Registration Statement on Form S-3 (File No. 333-126494)
Gentlemen:
We have acted as counsel to Keryx Biopharmaceuticals, Inc., a Delaware
corporation (the "Company"), in connection with the registration statement (the
"Registration Statement") on Form S-3, filed on September 29, 2004, by the
Company with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act"), and declared
effective by the Commission on October 13, 2004, covering 5,000,000 shares of
the Company's common stock, $0.001 par value per share (the "Common Stock"), and
the registration statement (the "Rule 462 Registration Statement") on Form S-3,
filed on July 11, 2005, by the Company with the Commission pursuant to Rule 462
of the Securities Act covering 780,000 shares of Common Stock. Pursuant to an
underwriting agreement dated July 14, 2005, the Company issued 5,030,000 shares
of Common Stock to the underwriters on July 20, 2005, and an additional 750,000
shares of Common Stock to the underwriters on July 20, 2005, which constituted
the underwriters' entire overallotment option. This opinion letter is rendered
pursuant to Item 16 of Form S-3 and Item 601(b)(5) of Regulation S-K.
We have examined the Amended and Restated Certificate of Incorporation of
the Company, the Amended and Restated Bylaws of the Company, records of
proceedings of the Board of Directors, or committees thereof, and records of
proceedings of the stockholders, deemed by us to be relevant to this opinion
letter, the Registration Statement and the Rule 462 Registration Statement. We
also have made such further legal and factual examinations and investigations as
we deemed necessary for purposes of expressing the opinion set forth herein.
As to certain factual matters relevant to this opinion letter, we have
relied conclusively upon originals or copies, certified or otherwise identified
to our satisfaction, of such records, agreements, documents and instruments,
including certificates or
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Keryx Biopharmaceuticals, Inc.
July 20, 2005
Page 2
comparable documents of officers of the Company and of public officials, as we
have deemed appropriate as a basis for the opinion hereinafter set forth. Except
to the extent expressly set forth herein, we have made no independent
investigations with regard to matters of fact, and, accordingly, we do not
express any opinion as to matters that might have been disclosed by independent
verification.
Based upon the foregoing, it is our opinion that the shares of Common
Stock covered by the Registration Statement and the Rule 462 Registration
Statement are legally issued, fully paid and nonassessable.
The opinion set forth herein is limited to the General Corporation Law of
the State of Delaware, applicable provisions of the Constitution of the State of
Delaware and reported judicial decisions interpreting the foregoing, and we do
not express any opinion herein concerning any other laws.
This opinion letter is provided to the Company for its use solely in
connection with the transactions contemplated by the Registration Statement and
the Rule 462 Registration Statement, and may not be used, circulated, quoted or
otherwise relied upon by any other person or for any other purpose without our
express written consent, except that the Company may file a copy of this opinion
letter with the Commission as an exhibit to a Form 8-K, as required by law. The
only opinion rendered by us consists of those matters set forth in the fourth
paragraph hereof, and no opinion may be implied or inferred beyond the opinion
expressly stated.
Sincerely,
ALSTON & BIRD LLP
By: /s/ Mark F. McElreath
Mark F. McElreath,
A Partner