EX-5.01 5 p15702_ex5-01.txt EXHIBIT 5.01 EXHIBIT 5.01 June 28, 2002 Cellegy Pharmaceuticals, Inc. 349 Oyster Point Blvd., Suite 200 South San Francisco, CA 94080 Gentlemen/Ladies: At your request, we have examined the Registration Statement on Form S-8 (the "Registration Statement") to be filed by Cellegy Pharmaceuticals, Inc., a California corporation (the "Company"), with the Securities and Exchange Commission (the "Commission") on or about June 28, 2002 in connection with the registration under the Securities Act of 1933, as amended, of an additional 1,400,000 shares of the Company's Common Stock subject to issuance by the Company upon the exercise of stock options granted or to be granted under the Company's 1995 Equity Incentive Plan (the "Incentive Plan"), and an additional 100,000 shares of Common Stock subject to issuance by the Company upon the exercise of stock options granted or to be granted under the Company's 1995 Directors' Stock Option Plan (the "Directors Plan") (collectively, the "Stock"). In rendering this opinion, we have examined the following: (1) A copy of the Company's Amended and Restated Articles of Incorporation filed with the California Secretary of State on August 16, 1995, the Certificate of Determination of Series A Preferred Stock filed with the California Secretary of State on April 15, 1996, the Certificate of Amendement to Amended and Restated Articleas of Incorporation filed with the California Secretary of State on June 1, 2001 certified by the Company's Secretary on the date of this opinion (the "Restated Articles"). (2) The Company's Bylaws, certified by the Company's Secretary on June 28, 2002. (3) The Registration Statement, together with the Exhibits filed as a part thereof or incorporated therein by reference. (4) The Prospectus prepared in connection with the Registration Statement. (5) The minutes of meetings and actions by written consent of the shareholders and Board of Directors that are contained in the Company's minute books that are in our possession. (6) The stock records that the Company has provided to us (consisting of certificate from the Company's transfer agent dated as of June 24, 2002 verifying the number of the Company's issued and outstanding shares of capital stock as of the date hereof and the number of shares reserved for issuance upon exercise of options and warrants). (7) A Management Certificate addressed to us and dated of even date herewith executed by the Company (the "Management Certificate"). In our examination of documents for purposes of this opinion, we have assumed, and express no opinion as to, the genuineness of all signatures on original documents, the authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies, the legal capacity of all persons or entities executing the same, the lack of any undisclosed termination, modification, waiver or amendment to any document reviewed by us and the due authorization, execution and delivery of all documents where due authorization, execution and delivery are prerequisites to the effectiveness thereof. We have also assumed that the certificates representing the Stock have been or will be when issued, properly signed by authorized officers of the Company or their agents. As to matters of fact relevant to this opinion, we have relied solely upon our examination of the documents referred to above and have assumed the current accuracy and completeness of the information obtained from the documents referred to above and the representations and warranties made by representatives of the Company to us, including but not limited to those set forth in the Management Certificate. We have made no independent investigation or other attempt to verify the accuracy of any of such information or to determine the existence or non-existence of any other factual matters; however, we are not aware of any facts that would cause us to believe that the opinion expressed herein is not accurate. We are admitted to practice law in the State of California, and we render this opinion only with respect to, and express no opinion herein with concerning the application or effect of the laws of any jurisdiction other than, the existing laws of the Untied States of America and, of the State of California. Based on the foregoing, it is our opinion that the additional 1,400,000 shares of Stock that may be issued and sold by the Company upon the exercise of stock options granted or to be granted under the Incentive Plan, and the additional 100,000 shares of Stock that may be issued and sold by the Company upon the exercise of stock options granted or to be granted under the Directors Plan, when issued, sold and delivered in accordance with the Incentive Plan or Directors Plan (as applicable) and stock option and purchase agreements to be entered into thereunder and in the manner and for the consideration stated in the Registration Statement and the relevant prospectus, will be validly issued, fully paid and nonassessable. We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to all references to us, if any, in the Registration Statement, the Prospectus constituting a part thereof and any amendments thereto. This opinion is intended solely for your use in connection with issuance and sale of shares subject to the Registration Statement and is not to be relied upon for any other purpose. We assume no obligation to advise you of any fact, circumstance, event or change in the law or the facts that may hereafter be brought to our attention whether or not such occurrences would affect or modify the opinions expressed herein. Very truly yours, FENWICK & WEST LLP By: /s/ C. Kevin Kelso ------------------