Exhibit 5.1
PORTER & HEDGES, L.L.P.
ATTORNEYS AND COUNSELORS AT LAW
700 LOUISIANA, 35TH FLOOR
HOUSTON, TEXAS 77002-2764
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TELECOPIER (713) 228-1331 MAILING ADDRESS:
TELEPHONE (713) 226-0600 P.O. BOX 4744
HOUSTON, TX 77210-4744
June 4, 2004
Encysive Pharmaceuticals Inc.
6700 West Loop South, 4th Floor
Bellaire, Texas 77401
Ladies and Gentlemen:
We have acted as counsel for Encysive Pharmaceuticals Inc., a Delaware
corporation (the "Company"), and the Subsidiary Guarantors (as defined below) in
connection with the registration under the Securities Act of 1933, as amended
(the "Securities Act"), on a Registration Statement on Form S-3 (the
"Registration Statement") of the offer and sale from time to time pursuant to
Rule 415 under the Securities Act of up to $150,000,000 of (i) debt securities
of the Company ("Debt Securities"); (ii) shares of common stock, par value $.005
per share, of the Company ("Common Stock"); (iii) shares of preferred stock, par
value $.005 per share, of the Company ("Preferred Stock"); (iv) depositary
shares representing fractional interests in Preferred Stock ("Depositary
Shares"); (v) purchase contracts (the "Purchase Contracts") requiring the
holders thereof to purchase Securities (as defined below); (vi) units (the
"Units") consisting of Debt Securities, Common Stock, Preferred Stock, Warrants
(as defined below), Purchase Contracts or any combination of the foregoing;
(vii) warrants to purchase Debt Securities, Preferred Stock, Common Stock,
Purchase Contracts or Units (the "Warrants"); and (viii) guarantees of Debt
Securities, Warrants, Purchase Contracts and Units (the "Guarantees" and
together with the Debt Securities, Common Stock, Preferred Stock, Depositary
Shares, Purchase Contracts, Units and Warrants, each a "Security" and
collectively the "Securities") that may be issued from time to time by
ImmunoPharmaceutics, Inc., EP-ET, LLC and Encysive L.P. (collectively, the
"Subsidiary Guarantors").
We have examined those records and documents as we have deemed necessary,
including but not limited to (i) the Certificate of Incorporation, as amended
(the "Certificate of Incorporation"), and the Bylaws of the Company, (ii) the
corporate proceedings of the Company and the Subsidiary Guarantors, and (iii)
the forms of indentures filed as Exhibits 4.11 and 4.12 to the Registration
Statement (the "Indentures").
As to certain questions of fact material to our opinions that we have not
independently established we have relied upon representations of public
officials.
In rendering the following opinions, we have assumed (i) all information
contained in all documents reviewed by us is true and correct, (ii) the
genuineness of all signatures on all documents reviewed by us, (iii) the
authenticity and completeness of all documents submitted to us as originals,
(iv) the conformity to authentic originals of all documents submitted to us as
Encysive Pharmaceuticals Inc.
June 4, 2004
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certified or photostatic copies, and (v) each natural person signing any
document reviewed by us had the legal capacity to do so.
Based on the foregoing, and subject to the assumptions, exceptions and
qualifications stated below, we are of the opinion that:
1. With respect to Debt Securities to be issued under the Indentures,
when (a) the applicable Indenture and any supplemental Indentures
have been duly authorized and validly executed and delivered by the
trustee, the Company and the Subsidiary Guarantors, if any, (b) the
Company's Board of Directors or, to the extent permitted by the
General Corporation Law of the State of Delaware (the "DGCL"), a
duly constituted and acting committee thereof (such Board of
Directors or committee being hereinafter referred to as the "Board")
has taken all necessary corporate action to authorize the issuance
and terms of such Debt Securities, the terms of the offering thereof
and related matters, and (c) such Debt Securities have been duly
executed, authenticated, issued and delivered in accordance with the
provisions of the applicable Indenture and any applicable
supplemental Indenture and upon payment of the consideration
therefor such Debt Securities will be legally issued and will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms.
2. With respect to Guarantees of Debt Securities issued by a Subsidiary
Guarantor (a "Debt Guarantee"), when (a) the Indentures and any
applicable supplemental Indentures have been duly authorized,
executed and delivered by the trustee, the Company and the
Subsidiary Guarantors, (b) all necessary corporate or other action
has been taken to authorize the issuance and the specific terms of
such Debt Guarantees, the terms of the offering thereof and related
matters, and (c) such Debt Guarantees have been duly authorized,
executed, authenticated, issued and delivered in accordance with the
applicable Indenture and the applicable underwriting or other
agreement and upon payment of the consideration therefor, such Debt
Guarantees will constitute valid and binding obligations of the
Subsidiary Guarantors, enforceable against the Subsidiary Guarantors
in accordance with their terms.
3. With respect to shares of Common Stock, when both (a) the Board has
taken all necessary corporate action to authorize the issuance of
and the terms of the offering of the shares of Common Stock and
related matters and (b) certificates representing the shares of
Common Stock have been duly executed, countersigned, registered and
delivered either (i) in accordance with the applicable definitive
purchase, underwriting or similar agreement approved by the
Company's Board upon payment of the
PORTER & HEDGES, L.L.P.
Encysive Pharmaceuticals Inc.
June 4, 2004
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consideration therefor (not less than the par value of the Common
Stock) provided for therein or (ii) upon conversion or exercise of
any other Security, in accordance with the terms of such Security or
the instrument governing such Security providing for such conversion
or exercise as approved by the Board, for the consideration approved
by the Board (not less than the par value of the Common Stock), then
the shares of Common Stock will be validly issued, fully paid and
nonassessable.
4. With respect to shares of Preferred Stock, when both (a) the Board
has taken all necessary corporate action to authorize the issuance
and terms of the shares of Preferred Stock, the terms of the
offering thereof, and related matters, including the adoption of a
statement of resolution relating to such Preferred Stock as required
by the DGCL (a "Statement of Resolution") and the filing of the
Statement of Resolution with the Secretary of State of the State of
Delaware, and (b) certificates representing the shares of Preferred
Stock have been duly executed, countersigned, registered and
delivered either (i) in accordance with the applicable definitive
purchase, underwriting or similar agreement approved by the Board
upon payment of the consideration therefor (not less than the par
value of the Preferred Stock) provided for therein or (ii) upon
conversion or exercise of any other Security, in accordance with the
terms of such Security or the instrument governing such Security
providing for such conversion or exercise as approved by the Board,
for the consideration approved by the Board (not less than the par
value of the Preferred Stock), then the shares of Preferred Stock
will be validly issued, fully paid and non-assessable.
5. With respect to Depositary Shares, when (a) the Board has taken all
necessary corporate action to authorize the issuance and terms of
the Depositary Shares, the terms of the offering thereof, and
related matters, including the adoption of a Statement of Resolution
relating to the Preferred Stock underlying such Depositary Shares
and the filing of the Statement of Resolution with the Secretary of
State of the State of Delaware, (b) the Depositary Agreement or
Agreements relating to the Depositary Shares and the related
Depositary Receipts have been duly authorized and validly executed
and delivered by the Company and the Depositary appointed by the
Company, (c) the shares of Preferred Stock underlying such
Depositary Shares have been deposited with a bank or trust company
(which meets the requirements for the Depositary set forth in the
Registration Statement) under the applicable Depositary Agreements,
and (d) the Depositary Receipts representing the Depositary Shares
have been duly executed, countersigned, registered and delivered in
accordance with the appropriate Depositary Agreement and the
applicable definitive purchase, underwriting or similar agreements
PORTER & HEDGES, L.L.P.
Encysive Pharmaceuticals Inc.
June 4, 2004
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approved by the Board upon payment of the consideration therefor
provided for therein, the Depositary Shares will be validly issued.
6. With respect to the Warrants, when (a) the Board has taken all
necessary corporate action to authorize the creation of and the
issuance and terms of the Warrants, the terms of the offering
thereof, and related matters (b) the warrant agreement or agreements
relating to the Warrants have been duly authorized and validly
executed and delivered by the Company and the warrant agent
appointed by the Company, and (c) the Warrants and certificates
representing the Warrants have been duly executed, countersigned,
registered and the applicable definitive purchase, underwriting or
similar agreement approved by the Company's Board upon payment of
the consideration therefor provided for therein, the Warrants will
be legally issued and will constitute valid and binding obligations
of the Company.
7. With respect to Purchase Contracts, when (a) the Board has taken all
necessary corporate action to authorize the issuance and the
specific terms of such Purchase Contracts, the terms of the offering
thereof and related matters, and (b) such Purchase Contracts and
agreements relating to the Purchase Contracts have been duly
executed and delivered and duly issued and sold in the manner
contemplated in the Registration Statement or any prospectus
supplement thereto, such Purchase Contracts will be valid and
binding obligations of the Company.
8. With respect to Units, when (a) the Board has taken all necessary
corporate action to authorize the issuance and the specific terms of
such Units, the terms of the offering thereof and related matters,
and (b) such Units and agreements relating to the Units have been
duly executed and delivered and duly issued and sold in the manner
contemplated in the Registration Statement or any prospectus
supplement, such Units will be valid and binding obligations of the
Company.
9. With respect to Guarantees of Warrants, Purchase Contracts or Units
(the "Additional Guarantees"), when (a) all necessary corporate or
other action has been taken to authorize the issuance and the
specific terms of such Additional Guarantees, the terms of the
offering thereof and related matters and (b) the applicable
guarantee agreement has been duly executed and delivered and the
applicable Warrants, Purchase Contracts and/or Units, as the case
may be, have been duly issued and delivered by the Company, such
Additional Guarantees will constitute valid and binding obligations
of the Subsidiary Guarantors.
PORTER & HEDGES, L.L.P.
Encysive Pharmaceuticals Inc.
June 4, 2004
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The opinions expressed above are subject in all respects to the following
assumptions, exceptions and qualifications:
a. We have assumed that: (i) the Registration Statement and any
amendments thereto (including post-effective amendments) will have
become effective and will comply with all applicable provisions of
the Securities Act and such state securities rules, regulations and
laws as may be applicable, and the Indenture has been qualified
under the Trust Indenture Act of 1939, as amended (the "TIA"), (ii)
the Registration Statement will remain effective and comply with all
applicable provisions of the Securities Act and such state
securities rules, regulations and laws as may be applicable at the
time the Securities are offered or issued as contemplated by the
Registration Statement; (iii) a prospectus supplement will have been
prepared and filed with the Securities and Exchange Commission (the
"Commission") describing the Securities offered thereby and will
comply with the Securities Act and all applicable state securities
rules, regulations and laws; (iv) all Securities will be issued and
sold in compliance with the Securities Act, the Securities Exchange
Act of 1934, as amended, and all applicable state securities rules,
regulations and laws and in the manner stated in the Registration
Statement and the appropriate prospectus supplement; (v) a
definitive purchase, underwriting or similar agreement with respect
to any Securities offered or issued will have been duly authorized
and validly executed and delivered by the Company and the other
parties thereto; (vi) any Securities issuable upon conversion,
exchange or exercise of any Security being offered or issued will be
duly authorized, created and, if appropriate, reserved for issuance
upon such conversion, exchange or exercise; (vii) there shall not
have occurred any change in law affecting the validity or
enforceability of any such Security; and (viii) none of the terms of
any Security to be established subsequent to the date hereof, nor
the issuance and delivery of any such Security nor the compliance by
the Company and the Subsidiary Guarantors with the terms of such
Security will violate any applicable law or will result in violation
of any provision of any instrument or agreement then binding on the
Company or any of the Subsidiary Guarantors, or will violate any
restriction imposed by a court or governmental body having
jurisdiction over the Company or any Subsidiary Guarantor.
b. In rendering the opinions in paragraphs 1 and 2, we have assumed
that the trustee is or, at the time the applicable Indenture is
signed, will be qualified to act as trustee under the Indenture and
the TIA and that the trustee has or will have duly executed and
delivered the Indenture.
c. The enforceability of the Securities and provisions thereof may be
limited by bankruptcy, insolvency, reorganization, fraudulent
transfer,
PORTER & HEDGES, L.L.P.
Encysive Pharmaceuticals Inc.
June 4, 2004
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moratorium or other similar laws now or hereinafter in effect
relating to or affecting enforcement of creditors rights generally
and by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law). Such
principles of equity include, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, and also
the possible unavailability of specific performance or injunctive
relief.
d. We express no opinion with respect to (i) the enforceability of the
provisions in the Indentures, or any other agreement or instrument
with respect to delay or omission of enforcement of rights or
remedies, or waivers of notices or defenses, or waivers of benefits
of or other rights that cannot be effectively waived under,
applicable laws, (ii) the enforceability of indemnification
provisions to the extent they purport to relate to liabilities
resulting from enforceability of indemnification provisions to the
extent they purport to relate to liabilities resulting from or based
upon negligence or any violation of federal or state securities laws
or blue sky laws or (iii) the enforceability of Section 110 of the
Indentures.
e. The opinions expressed in this letter are limited to the laws of the
States of Texas and New York, the General Corporation Law of the
State of Delaware and the federal securities laws of the United
States of America.
We consent to the use of this opinion as Exhibit 5.1 to the Registration
Statement and to the reference to our firm under the caption "Legal Matters" in
the prospectus included as a part of the Registration Statement. In giving this
consent, we do not admit that this firm is in the category of persons whose
consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission promulgated thereunder.
This opinion is rendered on the date hereof and we disclaim any duty to
advise you regarding any changes in the matters addressed herein.
Very truly yours,
/s/ Porter & Hedges, L.L.P.
PORTER & HEDGES, L.L.P.
PORTER & HEDGES, L.L.P.