Exhibit 5.1
Morrison & Foerster LLP
5200 Republic Plaza
370 Seventeenth Street
Denver, Colorado 80202-5638
January 16, 2004
Atrix Laboratories, Inc.
2579 Midpoint Drive
Fort Collins, Colorado 80525
RE: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to Atrix Laboratories, Inc., a Delaware
corporation (the "Company"), in connection with the Registration Statement on
Form S-3 (the "Registration Statement") being filed by the Company with the
Securities and Exchange Commission (the "Commission") relating to the
registration under the Securities Act of 1933 and the Commission's rules and
regulations thereunder (collectively, the "Act") of up to $150,000,000 aggregate
amount of debt securities of the Company (the "Debt Securities"), shares of the
Company's preferred stock, $0.001 par value per share (the "Preferred Stock"),
and shares of the Company's common stock, $0.001 par value per share (the
"Common Stock"), which may be issued and sold by the Company from time to time.
The Debt Securities, Preferred Stock and Common Stock are referred to herein
collectively as the "Securities."
In connection with this opinion, we have examined the Registration
Statement, the forms of Senior Debt Indenture and Subordinated Debt Indenture
filed as exhibits to the Registration Statement (each an "Indenture"), and
certain other corporate records, documents, instruments and certificates of
public officials and of the Company, and have made such inquiries of officers of
the Company and public officials and considered such questions of law as we have
deemed necessary for purposes of rendering the opinions set forth herein.
In connection therewith, we have assumed the genuineness of all
signatures and the authenticity of all items submitted to us as originals and
the conformity with originals of all items submitted to us as copies. In making
our examination of documents executed by parties other than the Company, we have
assumed that each other party has the power and authority to execute and
deliver, and to perform and observe the provisions of, such documents and has
duly authorized, executed and delivered such documents, and that
such documents constitute the legal, valid and binding obligations of each such
party. We also have assumed the integrity and completeness of the minute books
of the Company presented to us for examination. With respect to certain factual
matters we have relied upon certificates of officers of the Company.
We have assumed that the issuance and sale of the Securities by the
Company will not violate or constitute a default under (i) any agreement or
instrument to which the Company or its properties is subject, (ii) any law, rule
or regulation to which the Company is subject, (iii) any judicial or regulatory
order or decree of any governmental authority, or (iv) any consent, approval,
license, authorization or validation of, or filing, recording or registration
with any governmental authority.
We have further assumed that (i) the Registration Statement and any
amendments thereto have become effective under the Act and comply with all
applicable laws at the time the Securities are offered or issued as contemplated
by the Registration Statement; (ii) an appropriate prospectus supplement or term
sheet relating to the Securities offered thereby has been prepared and filed
with the Commission in compliance with the Act and complies with all applicable
laws at the time the Securities are offered or issued as contemplated by the
Registration Statement; (iii) any Indenture, purchase, underwriting or similar
agreement relating to Securities being offered has been duly authorized,
executed and delivered by the Company and the other parties thereto; and (iv)
the number of shares of Common Stock offered pursuant to the Registration
Statement does not exceed, at the time of issuance, the authorized but unissued
shares of Common Stock of the Company.
Based upon and subject to the foregoing, we are of the opinion that:
1. With respect to the Debt Securities, when both (A) the Board of
Directors of the Company or a duly constituted and acting committee thereof
(such Board of Directors or committee thereof being hereinafter collectively
referred to as the "Board") has taken all necessary corporate action in
conformity with the certificate of incorporation and bylaws of the Company to
approve the issuance and terms of a particular series of such Debt Securities
and the related Indenture, the terms of the offering thereof and related
matters, and (B) such Debt Securities and the related Indenture have been duly
executed, authenticated, issued and delivered in accordance with the provisions
of the applicable Indenture and the applicable definitive purchase, underwriting
or similar agreement approved by the Board against payment of the consideration
therefor as provided therein, such Debt Securities will be validly issued and
will constitute valid and binding obligations of the Company.
2. With respect to shares of the Preferred Stock, when both (A) the
Board has taken all necessary corporate action in conformity with the
certificate of incorporation and bylaws of the Company to approve the issuance
and terms of a particular series of shares of Preferred Stock, the terms of the
offering thereof and related matters, including the adoption of an amendment to
the Company's certificate of incorporation in conformance with applicable law
relating to such shares of Preferred Stock and the filing of such amendment with
the Secretary of State of the State of Delaware, and
(B) certificates representing such shares of Preferred Stock have been duly
executed, registered and delivered in accordance with the applicable definitive
purchase, underwriting or similar agreement approved by the Board against
payment of the consideration therefor as provided therein, such shares of the
Preferred Stock will be validly issued, fully paid and nonassessable.
3. With respect to shares of the Common Stock, when both (A) the Board
has taken all necessary corporate action in conformity with the certificate of
incorporation and bylaws of the Company to approve the issuance of the Common
Stock, the terms of the offering thereof and related matters, and (B)
certificates representing shares of the Common Stock have been duly executed,
registered and delivered in accordance with the applicable definitive purchase,
underwriting or similar agreement approved by the Board against payment of the
consideration therefor (which consideration is not less than the par value of
the Common Stock) as provided therein, such shares of Common Stock will be
validly issued, fully paid and nonassessable.
We express no opinion as to matters governed by laws of any
jurisdiction other than the laws of the State of Delaware and the federal laws
of the United States of America, as in effect on the date hereof.
This opinion is solely for your benefit and may not be relied upon by,
nor may copies be delivered to, any other person without our prior written
consent. Our opinion speaks only as of the date hereof and we assume no
obligation to inform you of any facts, circumstances, events or changes in the
law that may hereafter be brought to our attention that may alter, affect or
modify the opinions expressed herein.
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement referred to above and the use of our
name under the heading "Legal Matters" in the prospectus and any part of the
Registration Statement.
Very truly yours,
/s/ Morrison & Foerster LLP
Morrison & Foerster LLP