EXHIBIT 4.5
May 14, 2001
To the Investors
On the Attached
Distribution List
c/o Wells Fargo Van ▇▇▇▇▇▇
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RE: GENUS, INC. SECURITIES PURCHASE AGREEMENT
Ladies and Gentlemen:
Reference is made to the Securities Purchase Agreement dated as of May 14,
2001 (the "AGREEMENT"), together with the Registration Rights Agreement dated
May 14, 2001, by and among Genus, Inc., a California corporation (the
"COMPANY"), and the investors whose names are set forth on the execution pages
to the Agreement (the "INVESTORS"), which provides for the issuance and sale by
the Company to the Investors of 2,541,785 shares of Common Stock (the "SHARES")
and stock purchase warrants (the "WARRANTS") to purchase 1,461,525 shares of
Common Stock issuable upon the exercise of the Warrants (the "WARRANT SHARES").
This opinion is rendered to you pursuant to Section 7(f) of the Agreement. The
Agreement and the Registration Rights Agreement are sometimes collectively
referred to hereinafter as the "DOCUMENTS". All capitalized terms used herein
have the meanings defined for them in the Documents unless otherwise defined
herein.
We have acted as counsel for the Company in connection with the negotiation
of the Documents and the issuance of the Shares and Warrant Shares. As such
counsel, we have made such legal and factual examinations and inquiries as we
have deemed advisable or necessary for the purpose of rendering this opinion.
In addition, we have examined originals or copies of such corporate records of
the Company, certificates of public officials and such other documents which we
consider necessary or advisable for the purpose of rendering this opinion. In
such examination we have assumed the genuineness of all signatures on original
documents, the authenticity and completeness of all documents submitted to us as
originals, the conformity to original documents of all copies submitted to us
and the due execution and delivery of all documents where due execution and
delivery are a prerequisite to the effectiveness thereof.
As used in this opinion, the expression "to our knowledge," "known to us"
or similar language with reference to matters of fact means that, after an
examination of documents made available to us by the Company, and after
inquiries of officers of the Company, but without any further independent
factual investigation, we find no reason to believe that the opinions expressed
herein are factually incorrect. Further, the expression "to our knowledge",
"known to us" or similar language with reference to matters of fact refers to
the current actual knowledge of the attorneys of this firm who have worked for
the Company on the transactions contemplated by the Documents. Except to the
extent expressly set forth herein or as we otherwise believe to be necessary to
our opinion, we have not undertaken any independent investigation to determine
the existence or absence of any fact, and no inference as to our knowledge of
the existence or absence of any fact should be drawn from our representation of
the Company or the rendering of the opinion set forth below.
For purposes of this opinion, we are assuming that the Investors have all
requisite power and authority, and have taken any and all necessary corporate
action, to execute and deliver the Documents, and we are assuming that the
representations and warranties made by the Investors in the Documents and the
Investor Questionnaires and pursuant thereto are true and correct. We are also
assuming that the Investors purchased the Shares and Warrant Shares for value,
in good faith and without notice of any adverse claims within the meaning of the
California Uniform Commercial Code. We are also assuming that the
representations and warranties made by the Company in the Documents are true and
correct as to matters of fact and we are relying on such representations and
warranties as to matters of fact in rendering this opinion.
The opinions hereinafter expressed are subject to the following
qualifications:
(a) We express no opinion as to the effect of applicable
bankruptcy, insolvency, reorganization, moratorium or other similar federal or
state laws affecting the rights of creditors;
(b) We express no opinion as to the effect of rules of law
governing specific performance, injunctive relief or other equitable remedies
(regardless of whether any such remedy is considered in a proceeding at law or
in equity);
(c) We express no opinion as to compliance with the anti-fraud provisions of
applicable securities laws;
(d) We express no opinion regarding patent, copyright or trademark laws;
(e) We express no opinion regarding antitrust laws;
(f) We express no opinion as to the enforceability of the
indemnification provisions contained in the Documents to the extent the
provisions thereof may be subject to limitations of public policy and the effect
of applicable statutes and judicial decisions;
(g) We are members of the Bar of the State of California and we
express no opinion as to any matter relating to the laws of any jurisdiction
other than the federal laws of the United States of America and the laws of the
State of California. For purposes of this opinion letter, we are assuming the
laws of the State of California are the same as those of the State of New York
to the extent that the parties have agreed that New York law governs the
Documents and the Warrants.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Company and each of its subsidiaries is a corporation duly
organized and validly existing under, and by virtue of, the laws of its
jurisdiction of incorporation. Each of the Company and its subsidiaries is duly
qualified as a foreign corporation to do business in each jurisdiction in which
the Company or such subsidiary owns or leases property, other than those in
which the failure to do so would not result in any material adverse change in
the business or financial condition of the Company.
2. The Shares and Warrant Shares have been duly authorized and reserved
for issuance by all necessary corporate action on the part of the Company; and
the Shares, the Warrants and Warrant Shares, when issued, sold and delivered
against payment therefor in accordance with the provisions of the Agreement and
the Warrants, will be duly and validly issued, fully paid and non-assessable.
3. The Company has all requisite corporate power and corporate
authority to own its properties and carry on the business described in its SEC
documents and to enter into and perform its obligations under the Documents.
All corporate action on the part of the Company necessary for the authorization,
execution and delivery of the Documents by the Company and the authorization,
sale, issuance and delivery of the Shares, the Warrants and Warrant Shares has
been taken. The Documents and the Warrants have been duly and validly executed
and delivered by the Company and constitute valid and binding obligations of the
Company enforceable in accordance with their terms.
4. The execution, delivery and performance of the Documents and the
issuance of the Shares and Warrants (and the Warrant Shares issuable upon the
exercise of the Warrants) do not violate the Articles of Incorporation or Bylaws
of the Company, or any law, rule or regulation applicable to the Company, or, to
our knowledge, any order, writ, judgment, injunction or decree to which the
Company is subject. To our knowledge, the execution, delivery and performance
of the Documents and the issuance of the Shares and Warrants (and the Warrant
Shares issuable upon exercise of the Warrants) do not breach or constitute a
default (or give rise to any right of termination, cancellation or acceleration)
under (due to the passage of time or the giving of notice or both), or result in
the creation of any lien, security interest, or encumbrance on the assets or
properties of the Company pursuant to, any contract, agreement, instrument,
judgment or decree to which the Company is a party or by which it is bound,
except for such breaches, defaults, conflicts, terminations, cancellations and
accelerations as would not, individually or in the aggregate result in a
material adverse change in the business or financial condition of the Company.
5. No consent, approval or authorization of or designation, declaration
or filing with any governmental authority on the part of the Company is required
in connection with the valid execution and delivery of the Documents, or the
offer, sale or issuance of the Shares and Warrant Shares, except taking such
action as may be necessary to secure an exemption from qualification under
applicable blue sky laws of the offer and sale of the Shares and Warrant Shares
and a filing under Regulation D of the Securities Act of 1933. All filings
referred to above that must be filed or received prior to the Closing have been
so made or received. Our opinion herein is otherwise subject to the timely and
proper completion of all filings and other actions contemplated above where such
filings and actions are to be undertaken on or after the date hereof.
6. Except as disclosed in the SEC Documents and Schedule 4(h) to the
Agreement, to our knowledge, there are no actions, suits, proceedings inquiries
or investigations before or by any court, public board or body or governmental
agency or self-regulatory agency pending or threatened against or affecting the
Company, or, to our knowledge, its officers and directors in their capacities as
such which may result in any material adverse change in the business or
financial condition of the Company or any of its properties, or in any material
impairment of the right or ability of the Company to carry on its business as
now conducted, or which questions the validity of the Documents or any action
taken or to be taken by the Company in connection therewith.
7. Subject to the accuracy of the Investors' representations in Section
3 of the Agreement, the offer, sale and issuance of the Shares and the Warrants
(and the Warrant Shares issuable upon exercise of the Warrants) in conformity
with the terms of the Documents constitute transactions exempt from the
registration requirements of Section 5 of the Securities Act of 1933, as
amended.
This opinion is furnished to the Investors solely for the Investors'
benefit, and may not be relied upon by any other person or for any other purpose
without our prior written consent.
Very truly yours,
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Professional Corporation
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇