Attached files
| file | filename |
|---|---|
| 8-K - GENVEC INC | v172431_8k.htm |
| EX-1.1 - GENVEC INC | v172431_ex1-1.htm |
| EX-4.1 - GENVEC INC | v172431_ex4-1.htm |
| EX-99.1 - GENVEC INC | v172431_ex99-1.htm |
| EX-10.1 - GENVEC INC | v172431_ex10-1.htm |
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January
27, 2010
Board of
Directors
GenVec,
Inc.
65 West
Watkins Mill Road,
Gaithersburg,
Maryland 20878
Ladies
and Gentlemen:
We are
acting as counsel to GenVec, Inc., a Delaware corporation (the “Company”) , in connection with
its registration statement on Form S-3 (file no. 333-140373) (the “Registration Statement”),
filed with the Securities and Exchange Commission under the Securities Act of
1933, as amended (the “Act”) relating to the proposed
public offering (the “Offering”) of (i) up to
14,000,000 shares of the common stock, par value $0.001 per share (the “Common Stock”) of the Company
(the “Shares”), all of
which Shares are to be sold by the Company, and associated stock purchase rights
(the “Rights”), all of
which stock purchase rights are to be issued pursuant to the Rights Agreement,
dated September 7, 2001 (the “Rights Agreement”), between
the Company and American Stock Transfer & Trust Company, as Rights Agent
(the “Rights Agent”),
(ii) warrants to purchase up to 4,200,000 shares of Common Stock evidenced
by Warrant Purchase Agreements in the form filed by the Company as Exhibit
4.1 to its Current Report on Form 8-K on January 27, 2010 (“Warrant Purchase Agreements”)
and (iii) up to 4,2000,000 shares of Common Stock issuable upon exercise of
the Warrant Purchase Agreements (the “Warrant Shares”) and the
associated Rights, as described in the Prospectus dated February 12, 2007, which
forms a part of the Registration Statement, as supplemented by a Prospectus
Supplement dated January 27, 2010 (together with the Prospectus, the “Prospectus
Supplement”). This opinion letter is furnished to you at your
request to enable you to fulfill the requirements of Item 601(b)(5) of
Regulation S-K, 17 C.F.R. § 229.601(b)(5), in connection with the
Registration Statement.
For
purposes of this opinion letter, we have examined copies of such agreements,
instruments and documents as we have deemed an appropriate basis on which to
render the opinions hereinafter expressed, including the form of investor
purchase agreement for the Offering filed by the Company as Exhibit 10.1 to its
Current Report on Form 8-K on January 27, 2010 (the “Investor Purchase
Agreements”). In our examination of the aforesaid
documents, we have assumed the genuineness of all signatures, the legal capacity
of all natural persons, the accuracy and completeness of all documents submitted
to us, the authenticity of all original documents, and the conformity to
authentic original documents of all documents submitted to us as copies
(including telecopies). We also have assumed that the Rights
Agreement has been duly authorized, executed, and delivered by the Rights Agent
and that the members of the Board of Directors of the Company have acted in a
manner consistent with their fiduciary duties as required under applicable law
in adopting the Rights Agreement. As to all matters of fact, we
have relied on the representations and statements of fact made in the documents
so reviewed, and we have not independently established the facts so relied
on. This opinion letter is given, and all statements herein are made,
in the context of the foregoing.
January
27, 2010
Page
2
This
opinion letter is based as to matters of law solely on the applicable provisions
of the following, as currently in effect: (i) as to the opinions given in
paragraphs (a), (b) and (d), the Delaware General Corporation Law, as
amended, and (ii) as to the opinion given in paragraph (c), the laws of the
State of New York (but not including any laws, statutes, ordinances,
administrative decisions, rules or regulations of any political subdivision
below the state level). We express no opinion herein as to any other
laws, statutes, ordinances, rules, or regulations. As used herein,
the term “Delaware General Corporation Law, as amended” includes the statutory
provisions contained therein, all applicable provisions of the Delaware
Constitution and reported judicial decisions interpreting these
laws.
Based
upon, subject to and limited by the foregoing, we are of the opinion that, as of
the date hereof:
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(a)
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the
Shares, the Warrant Shares and the respective associated Rights have been
duly authorized by all necessary corporate action on the part of the
Company;
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(b)
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following
(i) execution and delivery of each of the Investor Purchase Agreements,
(ii) issuance and delivery of the Shares in the manner contemplated by the
Investor Purchase Agreements and the Prospectus Supplement, and
(ii) receipt by the Company of the consideration for the Shares
specified in the resolutions of the Pricing Committee of the Board of
Directors, the Shares and the associated Rights will be validly issued and
the Shares will be fully paid and
nonassessable;
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(c)
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following
(i) execution and delivery of the Investor Purchase Agreements,
(ii) execution and delivery of the Warrant Purchase Agreements in
the manner contemplated by the Investor Purchase Agreements, the Warrant
Purchase Agreements and the Prospectus Supplement, and (ii) receipt
by the Company of the consideration for the Warrant Purchase Agreements
specified in the resolutions of the Pricing Committee of the Board of
Directors, the Warrant Purchase Agreements will be valid and binding
obligations of the Company; and
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(d)
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following
(i) execution and delivery of the Investor Purchase Agreements,
(ii) execution and delivery of the Warrant Purchase Agreements in the
manner contemplated by the Investor Purchase Agreements, the Warrant
Purchase Agreements and the Prospectus Supplement, (iii) receipt by
the Company of the consideration for the Warrant Purchase Agreements
specified in the resolutions of the Pricing Committee of the Board of
Directors, and (iv) exercise of the Warrant Purchase Agreements
pursuant to their terms, receipt by the Company of the exercise price for
the Warrant Shares as specified in the Warrant Purchase Agreements and
issuance of the Warrant Shares thereunder, the Warrant Shares and the
associated Rights will be validly issued and the Warrant Shares will be
fully paid and nonassessable.
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January
27, 2010
Page
3
The
opinions expressed in Paragraph (c) above with respect to the valid and binding
nature of the Warrant Purchase Agreements may be limited by bankruptcy,
insolvency, reorganization, receivership, moratorium or other laws affecting
creditors’ rights (including, without limitation, the effect of statutory and
other law regarding fraudulent conveyances, fraudulent transfers and
preferential transfers) and by the exercise of judicial discretion and the
application of principles of equity, good faith, fair dealing, reasonableness,
conscionability and materiality (regardless of whether the Warrant Purchase
Agreements are considered in a proceeding in equity or at law).
It should
be understood that the opinion above concerning the Rights does not address the
determination a court of competent jurisdiction may make regarding whether the
Board of Directors of the Company would be required to redeem or terminate, or
take other action with respect to, the Rights at some future time based on the
facts and circumstances existing at that time and that our opinion above
addresses the Rights and the Rights Agreement in their entirety and not any
particular provision of the Rights or the Rights Agreement and that it is not
settled whether the invalidity of any particular provision of a rights agreement
or of rights issued thereunder would result in invalidating in their entirety
such rights.
This
opinion letter has been prepared for use in connection with the Registration
Statement. We assume no obligation to advise you of any changes in
the foregoing subsequent to the effective date of the Registration
Statement.
We hereby
consent to the filing of this opinion letter as Exhibit 5.1 to the Company’s
Current Report on Form 8-K filed on January 27, 2010, and to the reference to
this firm under the caption “Legal Matters” in the Prospectus
Supplement. In giving this consent, we do not thereby admit that we
are an “expert” within the meaning of the Securities Act of 1933, as
amended.
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Very
truly yours,
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/s/
HOGAN & HARTSON LLP
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HOGAN
& HARTSON LLP
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