EX-5.1 4 y30600exv5w1.htm EX-5.1: OPINION OF KRISTIN A. KOLESAR, ESQ. EX-5.1
 

Exhibit 5.1
[MYLAN LABORATORIES INC. LETTERHEAD]
February 20, 2007
Mylan Laboratories Inc.
1500 Corporate Drive
Canonsburg, Pennsylvania 15317
Re: Mylan Laboratories Inc. Registration Statement on Form S-3
Ladies and Gentlemen:
     I am Senior Corporate and Compliance Counsel of Mylan Laboratories Inc., a Pennsylvania corporation (the “Company”), and as such have acted as counsel for the Company and the subsidiaries listed in Schedule I hereto (the “Subsidiaries”) in connection with the Registration Statement on Form S-3 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Act”), to be filed on the date hereof by the Company with the Securities and Exchange Commission (the “Commission”). The Registration Statement relates to the issuance and sale from time to time by the Company, pursuant to Rule 415 of the General Rules and Regulations promulgated under the Act (“Rule 415”), of the following securities: (a) senior or subordinated debt securities (“Debt Securities”), which may be issued in one or more series under one or more indentures (the “Indentures”) proposed to be entered into between the Company and The Bank of New York, as trustee (the “Trustee”); (b) guarantees by one or more of the Subsidiaries (the “Guarantees”) of Debt Securities issued from time to time by the Company, (c) shares of preferred stock, par value $0.50 per share, of the Company (“Preferred Stock”), in one or more series; (d) shares of common stock, par value $0.50 per share, of the Company (“Common Stock”); (e) the sale from time to time pursuant to Rule 415, by certain shareholders of the Company of shares of Common Stock (the “Secondary Shares”); and (f) such indeterminate amount of Debt Securities and number of shares of Common Stock or Preferred Stock as may be issued upon conversion, exchange or exercise of any Debt Securities or Preferred Stock, including such shares of Common Stock or Preferred Stock as may be issued pursuant to anti-dilution adjustments, in amounts, at prices and on terms to be determined at the time of offering. The Debt Securities, the Preferred Stock, the Common Stock and the Secondary Shares are collectively referred to herein as the “Securities.”
     This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act.
     In rendering the opinions set forth herein, I, or attorneys under my supervision, have examined and relied on originals or copies, certified or otherwise identified to our satisfaction, of the following:
  (a)   the Registration Statement relating to the Securities;
 
  (b)   a specimen certificate representing the Common Stock;
 
  (c)   the Amended and Restated Articles of Incorporation of the Company, as amended to date (the “Articles of Incorporation”);
 
  (d)   the Second Amended and Restated By-Laws of the Company, as currently in effect (the “By-Laws”);
 
  (e)   the certificate of formation, certificate of incorporation, limited liability company agreement and the by-laws, as the case may be, as amended or restated to the date hereof, of each of the Subsidiaries;

 

 

  (f)   certain resolutions (the “Resolutions”) adopted by the Board of Directors of the Company (the “Board of Directors”) relating to the original issuance and sale of the Secondary Shares, the registration of the Securities and related matters;
 
  (g)   certain corporate and limited liability company records, as the case may be, of each of the Subsidiaries;
 
  (h)   the forms of Indentures; and
 
  (i)   the Form T-1 of the Trustee filed as an exhibit to the Registration Statement.
     I, or attorneys under my supervision, have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and such agreements, certificates and receipts of public officials, certificates of officers or other representatives of the Company and others, and such other documents as we have deemed necessary or appropriate as a basis for the opinions set forth herein.
     In our examination, I, or attorneys under my supervision, have assumed the legal capacity of all natural persons, 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 facsimile, electronic, certified or photostatic copies, and the authenticity of the originals of such copies. In making our examination of executed documents, we have assumed that the parties thereto, other than the Company, had the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and the execution and delivery by such parties of such documents and the validity and binding effect thereof on such parties. We have assumed that any Debt Securities that may be issued will be issued in a form that complies with the Indentures and the Indentures and any supplemental indenture to be entered into in connection with the issuance of such Debt Securities will be manually signed or countersigned, as the case may be, by duly authorized officers of the Trustee. We have assumed that the terms of the Securities and the Guarantees will have been established so as not to, and that the execution and delivery by the Company and the Subsidiaries of, and the performance of its obligations under, the Securities and the Guarantees, will not, violate, conflict with or constitute a default under (i) any agreement or instrument to which the Company or any of the Subsidiaries is subject, (ii) any law, rule or regulation to which the Company or any of the Subsidiaries 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 also assumed that the Indentures will be executed and delivered in substantially the form reviewed by us. As to any facts material to the opinions expressed herein that we did not independently establish or verify, we have relied upon statements and representations of officers and other representatives of the Company and others.
     I am admitted to the bar in the Commonwealth of Pennsylvania, and I do not express any opinion as to any laws other than those laws of the Commonwealth of Pennsylvania that, in my experience, are normally applicable to transactions of the type contemplated by the Registration Statement and to the extent that judicial or regulatory orders or decrees or consents, approvals, licenses, authorizations, validations, filings, recordings or registrations with governmental authorities are relevant, to those required under such laws (all of the foregoing being referred to as “Opined on Law”). I do not express any opinion with respect to the laws of any jurisdiction other than Opined on Law or as to the effect of any such non-Opined on Law on the opinions stated herein. Insofar as the opinions expressed herein relate to matters governed by laws other than Opined on Law, I have assumed, without having made any independent investigation, that such laws do not affect any of the opinions set forth herein. The Securities may be issued from time to time on a delayed or continuous basis, and this opinion is limited to the laws, including the rules and regulations, as in effect on the date hereof, which laws are subject to change with possible retroactive effect.
     Based upon the foregoing and subject to the limitations, qualifications, exceptions and assumptions set forth herein, I am of the opinion that:

 

 

     1. With respect to any series of Debt Securities to be offered by the Company pursuant to the Registration Statement (the “Offered Debt Securities”), when (i) the Registration Statement, as finally amended (including all necessary post-effective amendments), has become effective under the Act and the Indentures have been qualified under the Trust Indenture Act of 1939, as amended, (ii) an appropriate prospectus supplement or term sheet with respect to the Offered Debt Securities has been prepared, delivered and filed in compliance with the Act and the applicable rules and regulations thereunder, (iii) if the Offered Debt Securities are to be sold pursuant to a firm commitment underwritten offering, the underwriting agreement with respect to the Offered Debt Securities has been duly authorized, executed and delivered by the Company and the other parties thereto, (iv) the Board of Directors, including any appropriate committee appointed thereby, and appropriate officers of the Company have taken all necessary corporate action to approve the issuance and terms of the Offered Debt Securities and related matters, (v) the Indentures and any supplemental indenture in respect of such Offered Debt Securities have been duly executed and delivered by each party thereto, (vi) the terms of the Offered Debt Securities and of their issuance and sale have been duly established in conformity with the Indentures and any supplemental indenture to be entered into in connection with the issuance of such Offered Debt Securities, so as not to violate any applicable law, the Articles of Incorporation or the By-Laws or result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, and (vii) the Offered Debt Securities have been issued in a form that complies with the Indentures and have been duly executed and authenticated in accordance with the provisions of the Indentures and any supplemental indenture to be entered into in connection with the issuance of such Offered Debt Securities and duly delivered to the purchasers thereof upon payment of the agreed-upon consideration therefor, the Offered Debt Securities (including any Debt Securities duly issued upon conversion, exchange or exercise of any Debt Securities or Preferred Stock), when issued and sold in accordance with the Indentures, any supplemental indenture to be entered into in connection with the issuance of such Offered Debt Securities and the applicable underwriting agreement, if any, or any other duly authorized, executed and delivered valid and binding purchase or agency agreement, will be valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except to the extent that enforcement thereof may be limited by (a) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally, (b) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity), (c) public policy considerations which may limit the rights of parties to obtain remedies and (d) the waivers of any usury defense contained in the Indentures or Offered Debt Securities that may be unenforceable.
     2. With respect to Guarantees of any series of Debt Securities issued by any Subsidiary (the “Offered Guarantees”), when (i) the Registration Statement, as finally amended (including all necessary post-effective amendments), has become effective under the Act and the Indentures have been qualified under the Trust Indenture Act of 1939, as amended, (ii) an appropriate prospectus supplement or term sheet with respect to the Offered Guarantees has been prepared, delivered and filed in compliance with the Act and the applicable rules and regulations thereunder, (iii) if the Offered Guarantees are to be sold pursuant to a firm commitment underwritten offering, the underwriting agreement with respect to the Offered Guarantees has been duly authorized, executed and delivered by the Company and the Subsidiaries and the other parties thereto, (iv) the each of the Subsidiaries has taken all necessary corporate or other action to approve the issuance and terms of the Offered Guarantees and related matters, (v) the Indentures and any supplemental indenture in respect of such Offered Guarantees have been duly executed and delivered by each party thereto, (vi) the terms of the Offered Guarantees and of their issuance and sale have been duly established in conformity with the Indentures and any supplemental indenture to be entered into in connection with the issuance of such Offered Guarantees, so as not to violate any applicable law, or any operative document of any of the Subsidiaries or result in a default under or breach of any agreement or instrument binding upon any of the Subsidiaries and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over any of the Subsidiaries, and (vii) the Offered Guarantees have been issued in a form that complies with the Indentures and have been duly executed and authenticated in accordance with the provisions of the Indentures and any supplemental indenture to be entered into in connection with the issuance of such Offered Guarantees and duly delivered to the purchasers thereof upon payment of the agreed-upon consideration therefor, the Offered Guarantees,

 

 

when issued and sold in accordance with the Indentures, any supplemental indenture to be entered into in connection with the issuance of such Offered Guarantees and the applicable underwriting agreement, if any, or any other duly authorized, executed and delivered valid and binding purchase or agency agreement, will be valid and binding obligations of each of the Subsidiaries, enforceable against each of the Subsidiaries in accordance with their respective terms, except to the extent that enforcement thereof may be limited by (a) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally, (b) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity), (c) public policy considerations which may limit the rights of parties to obtain remedies and (d) the waivers of any usury defense contained in the Indentures or Offered Guarantees that may be unenforceable.
     3. With respect to the shares of any series of Preferred Stock to be offered by the Company pursuant to the Registration Statement (the “Offered Preferred Shares”), when (i) the Registration Statement, as finally amended (including all necessary post-effective amendments), has become effective under the Act, (ii) an appropriate prospectus supplement or term sheet with respect to the Offered Preferred Shares has been prepared, delivered and filed in compliance with the Act and the applicable rules and regulations thereunder, (iii) if the Offered Preferred Shares are to be sold pursuant to a firm commitment underwritten offering, the underwriting agreement with respect to the Offered Preferred Shares has been duly authorized, executed and delivered by the Company and the other parties thereto, (iv) the Board of Directors, including any appropriate committee appointed thereby, and appropriate officers of the Company have taken all necessary corporate action to approve the issuance and terms of the Offered Preferred Shares, the consideration to be received therefor and related matters, including the adoption of a Certificate of Designations to the Articles of Incorporation for the Offered Preferred Shares (the “Certificate of Designation”) in accordance with the applicable provisions of the laws of the Commonwealth of Pennsylvania, (v) the filing of the Certificate of Designation with the Secretary of the Commonwealth of Pennsylvania has duly occurred, (vi) the terms of the Offered Preferred Shares and of their issuance and sale have been duly established in conformity with the Articles of Incorporation, including the Certificate of Designation relating to the Offered Preferred Shares, and the By-Laws, so as not to violate any applicable law, the Articles of Incorporation or the By-Laws or result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, and (vii) certificates in the form required under the laws of the Commonwealth of Pennsylvania representing the Offered Preferred Shares are duly executed, countersigned, registered and delivered upon payment of the agreed-upon consideration therefor, the Offered Preferred Shares (including any shares of Preferred Stock duly issued upon conversion, exchange or exercise of any Debt Securities or Preferred Stock), when issued or sold in accordance with the applicable underwriting agreement or any other duly authorized, executed and delivered valid and binding purchase or agency agreement, will be duly authorized, validly issued, fully paid and nonassessable, provided that the consideration therefor is not less than $0.50 per share of Preferred Stock.
     4. With respect to any shares of Common Stock to be offered by the Company pursuant to the Registration Statement (the “Offered Common Shares”), when (i) the Registration Statement, as finally amended (including all necessary post-effective amendments), has become effective under the Act, (ii) an appropriate prospectus supplement or term sheet with respect to the Offered Common Shares has been prepared, delivered and filed in compliance with the Act and the applicable rules and regulations thereunder, (iii) if the Offered Common Shares are to be sold pursuant to a firm commitment underwritten offering, the underwriting agreement with respect to the Offered Common Shares has been duly authorized, executed and delivered by the Company and the other parties thereto, (iv) the Board of Directors, including any appropriate committee appointed thereby, and appropriate officers of the Company have taken all necessary corporate action to approve the issuance of the Offered Common Shares, the consideration to be received therefor and related matters, (v) the terms of the issuance and sale of the Offered Common Shares have been duly established in conformity with the Articles of Incorporation and the By-Laws so as not to violate any applicable law, the Articles of Incorporation or the By-Laws or result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company and (vi) certificates in the form required under the laws of the Commonwealth of Pennsylvania

 

 

representing the Offered Common Shares are duly executed, countersigned, registered and delivered upon payment of the agreed upon consideration therefor, the Offered Common Shares (including any shares of Common Stock duly issued upon conversion, exchange or exercise of any Debt Securities or Preferred Stock registered on the Registration Statement), when issued and sold in accordance with the applicable underwriting agreement with respect to the Offered Common Shares or any other duly authorized, executed and delivered valid and binding purchase or agency agreement, will be duly authorized, validly issued, fully paid and nonassessable, provided that the consideration therefor is not less than $0.50 per share of Common Stock.
     5. With respect to any Secondary Shares to be offered by certain selling shareholders pursuant to the Registration Statement, such Secondary Shares have been validly issued and are fully paid and nonassessable.
     I hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement and to the reference to me under the heading “Legal Matters” in the Registration Statement. In giving this consent, I do not thereby admit that I am included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder. This opinion is expressed as of the date hereof unless otherwise expressly stated, and I disclaim any undertaking to advise you of any subsequent changes of the facts stated or assumed herein or any subsequent changes in applicable law.
         
  Very truly yours,
 		  
  /s/ Kristin A. Kolesar    
 
Kristin A. Kolesar 		  
     
 

 

 

Schedule I
Subsidiaries
Bertek International, Inc.
Milan Holding Inc.
MLRE LLC
MP Air, Inc.
Mylan Bertek Pharmaceuticals Inc.
Mylan Caribe, Inc.
Mylan Inc.
Mylan International Holdings Inc.
Mylan Pharmaceuticals Inc.
Mylan Technologies Inc.
UDL Laboratories, Inc.