EXHIBIT 5.1
Claire Keast-Butler
+44 (0) 20 7556 4211
ckeastbutler@cooley.com
Silence Therapeutics plc
72 Hammersmith Road
London W14 8TH
United Kingdom
9 September 2020
Ladies and Gentlemen:
Re: | Silence Therapeutics plc – Registration Statement on Form S-8 – Exhibit 5.1 |
1. | INTRODUCTION |
1.1 | We have acted as English legal advisers to Silence Therapeutics plc, a public limited company incorporated in England and Wales (the “Company”), in relation to the preparation and filing of the registration statement on Form S-8 to which this opinion letter is attached as an exhibit (such registration statement, as amended, including the documents incorporated by reference therein, the “Registration Statement”) filed with the United States Securities and Exchange Commission (the “SEC”) pursuant to the United States Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations promulgated thereunder. |
1.2 | As set out in the Registration Statement, it is proposed that up to: |
| (a) | 4,103,058 ordinary shares of nominal value £0.05 each in the capital of the Company (“Ordinary Shares”) will be allotted and issued upon the exercise and/or settlement of outstanding awards granted under the Silence Therapeutics plc 2018 Employee Long Term Incentive Plan with U.S. Employee Sub-Plan (the “2018 Employee LTIP”) approved and adopted by the Remuneration Committee (the “Remuneration Committee”) of the board of directors of the Company (the “Board” or the “Directors”) on 1 February 2018. Amendments to the 2018 Employee LTIP were most recently approved by the Board on 22 June 2020 and the 2018 Employee LTIP was amended and the U.S. Employee Sub-Plan was approved by the Company’s shareholders on 23 July 2020; |
| (b) | 510,000 Ordinary Shares will be allotted and issued upon the exercise and/or settlement of outstanding awards granted under the Silence Therapeutics plc 2018 Non-Employee Long Term Incentive Plan with U.S. Non-Employee Sub-Plan (the “2018 Non-Employee LTIP” and, together with the 2018 Employee LTIP, the “Equity Plans”) approved and adopted by the Remuneration Committee on 1 February 2018. Amendments to the 2018 Non-Employee LTIP were most recently approved by the Board on 22 June 2020 and the 2018 Non-Employee LTIP was amended by the Company’s shareholders on 23 July 2020; |
| (c) | 4,086,942 Ordinary Shares will be reserved for future issuance under the Equity Plans; and |
| (d) | 758,715 Ordinary Shares will be allotted and issued upon the exercise of options outstanding under individual share option contracts (the “Individual Option Contracts”). The Ordinary Shares set out in paragraphs (a) to (d) are referred to in this opinion letter as the “Shares”. |
1.3 | We are rendering this letter at the request of the Company in connection with the Registration Statement. We have taken instructions solely from the Company. |
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1.5 | All references to legislation in this letter are to the legislation of England unless the contrary is indicated, and any reference to any provision of any legislation shall include any amendment, modification, re-enactment or extension thereof, as in force on the date of this letter. |
For the purpose of issuing this letter, we have reviewed the following documents only:
2.1 | a draft PDF copy of the Registration Statement as at 9 September 2020 to be filed with the SEC on 9 September 2020; |
2.2 | a PDF copy of the 2018 Employee LTIP; |
2.3 | a PDF copy of the 2018 Non-Employee LTIP; |
2.4 | a PDF copy of the minutes of the meeting of the Board held on 24 January 2018, at which it was resolved, inter alia, to delegate authority to the Remuneration Committee to approve the Equity Plans (the “2018 Board Minutes”); a PDF executed copy of the minutes of the meeting of the Board held on 22 June 2020, at which it was resolved, inter alia, to make certain amendments to the Equity Plans (including the adoption of a US employee sub-plan to the 2018 Employee LTIP and a US non-employee sub-plan to the 2018 Non-Employee LTIP) (the “June 2020 Board Minutes”); and a PDF executed copy of the minutes of the meeting of the Board held on 19 August 2020, at which it was resolved, inter alia, to approve the filing of the Registration Statement (the “August 2020 Board Minutes” and, together with the 2018 Board Minutes and the June 2020 Board Minutes, the “Board Minutes”); |
2.5 | a PDF copy of the minutes of the meeting of the Remuneration Committee held on 1 February 2018 resolving to, inter alia (i) approve the Equity Plans and (ii) delegate authority to the Chair of the Remuneration Committee to grant certain awards under the Equity Plans (the “Remuneration Committee Minutes”); |
2.6 | PDF executed copies of (i) the minutes of the annual general meeting of the Company held on 25 June 2019 at which it was resolved, inter alia, to authorise the Board to allot shares in the Company and to grant rights to subscribe for or to convert any security into shares in the Company pursuant to section 551 of the Companies Act 2006 (the “Companies Act”) in the amounts specified therein and to allot equity securities pursuant to such authority as if section 561(1) of the Companies Act did not apply to such allotment subject to the limitations specified therein (the “June 2019 Shareholder Resolutions”) (ii) the minutes of the annual general meeting of the Company held on 9 June 2020, at which it was resolved, inter alia, to authorise the Board to allot shares in the Company and to grant rights to subscribe for or to convert any security into shares in the Company pursuant to section 551 of the Companies Act in the amounts specified therein and to allot equity securities pursuant to such authority as if section 561(1) of the Companies Act did not apply to such allotment subject to the limitations specified therein (the “June 2020 Shareholder Resolutions”) and (iii) the minutes of the general meeting of the Company held on 23 July 2020, at which it was resolved, inter alia, to amend the Equity Plans and adopt the U.S. Employee Sub-Plan to the 2018 Employee LTIP (the “July 2020 Shareholder Resolutions” and, together with the June 2019 Shareholder Resolutions and the June 2020 Shareholder Resolutions, the “Shareholder Resolutions”); |
2.7 | a PDF copy of the certificate of incorporation of the Company dated 18 November 1994, a PDF copy of the certificate of incorporation on change of name of the Company dated 21 June 1999 and a PDF copy of the certificate of incorporation on change of name of the Company dated 26 April 2007; and |
2.8 | a PDF copy of the current articles of association of the Company adopted on 23 July 2020 (the “Articles”). |
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In addition to examining the documents referred to in paragraph 2 (Documents), we have carried out the following searches only:
3.1 | an online search at Companies House in England and Wales (“Companies House”) with respect to the Company, carried out at 9:39 a.m. (London time) on 9 September 2020 (the “Online Search”); and |
Subject to the assumptions set out in paragraph 5 (Assumptions), the scope of the opinion set out in paragraph 6 (Scope of Opinion) and the reservations set out in paragraph 7 (Reservations), and subject further to the following:
| 4.1 | the Registration Statement, as finally amended, having become effective under the Securities Act; |
| 4.2 | the delegations of authority to the Remuneration Committee having been validly effected (among other things, in accordance with article 120 of the Company’s Articles, the 2018 Employee LTIP, the 2018 Non-Employee LTIP and applicable laws); |
| 4.3 | the Directors or the Remuneration Committee (including the Chair of the Remuneration Committee, as applicable) having validly granted the awards in respect of the Shares under the Equity Plans and the Individual Option Contracts; |
| 4.4 | the Directors or the Remuneration Committee having validly resolved to allot and issue the Shares, or grant rights to subscribe for the Shares, at duly convened and quorate meetings of the Board or the Remuneration Committee, or by way of duly passed written resolutions of the Board or the Remuneration Committee in compliance with all applicable laws and regulations and with such resolutions being in full force and effect and not having been rescinded or amended; |
4.5 | the receipt in full of payment for the Shares in an amount of “cash consideration” (as defined in section 583(3) of the Companies Act, as amended) equal to the subscription price for such Shares, assuming in each case that the individual grants or awards under the Equity Plans and the Individual Option Contracts are duly authorised by all necessary corporate action and duly granted or awarded and exercised in accordance with the requirements of applicable law, the Articles and the applicable Equity Plan (and the agreements and awards duly adopted thereunder and in accordance therewith) or Individual Option Contract; and |
4.6 | valid entries having been made in relation to the allotment and issue of the Shares in the books and registers of the Company, |
it is our opinion that, as at today’s date, the Shares, if and when allotted and issued, registered in the name of the recipient in the register of members of the Company and delivered in accordance with the terms and conditions referred to in the applicable Equity Plan or Individual Option Contract, and as described in the Registration Statement, will be duly and validly authorised and issued, fully paid or credited as fully paid (subject to the receipt of valid consideration by the Company for the issue thereof) and will not be subject to any call for payment of further capital.
In giving the opinion in this letter, we have assumed (without making enquiry or investigation) that:
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5.2 | where a document has been examined by us in draft or specimen form, it will be or has been duly executed in the form of that draft or specimen; |
5.3 | the Articles referred to in paragraph 2.8 (Documents) of this letter remain in full force and effect, and no alteration has been made or will be made to the Articles, in each case prior to the relevant date of the granting of rights to subscribe for the Shares and/or the allotment and issue of the Shares (each such date, an “Allotment Date”); |
5.4 | at the time of each allotment and issue of any Shares the Company shall have received in full “cash consideration” (as such term is defined in section 583(3) of the Companies Act) equal to the subscription price payable for such Shares and shall have entered the holder or holders thereof in the register of members of the Company showing that all such Shares shall have been fully paid up as to their nominal value and any premium thereon as at each Allotment Date; |
5.5 | each Equity Plan or Individual Option Contract has been validly adopted and remains in full force and effect, and no alteration has been made or will be made to the applicable Equity Plan or Individual Option Contract prior to any Allotment Date; |
5.6 | the 2018 Employee LTIP qualifies as an “employees’ share scheme” as defined in section 1166 of the Companies Act; |
5.7 | the Individual Share Option Contracts qualify as an “employees’ share scheme” as defined in section 1166 of the Companies Act; |
5.8 | in relation to any allotment and issue of any Shares by the Company pursuant to the Equity Plans or the Individual Option Contracts, the recipient shall have become entitled to such Shares under the terms of the applicable Equity Plan or Individual Option Contract and such Shares will or rights over Shares, where applicable, will be fully vested each in accordance with the terms of the applicable Equity Plan or Individual Option Contract and such recipient has or will have complied with all other requirements of the applicable Equity Plan or Individual Option Contract in connection with the allotment and issue of such Shares; |
5.9 | all awards have been made under the terms of the applicable Equity Plan or Individual Option Contract, that the terms of all awards have not materially deviated from the terms set out in the applicable Equity Plan or Individual Option Contract and that any Shares will be allotted and issued in accordance with the terms set out in the applicable Equity Plan or Individual Option Contract, in accordance with the Articles and applicable laws; |
5.10 | immediately prior to each Allotment Date, the Directors had or shall have sufficient authority and powers conferred upon them to allot and issue such Shares and grant such rights (as applicable) under section 551 of the Companies Act (unless such allotment and issue or grant was or is exempt under section 549(2) of the Companies Act) and under section 570 or section 571 of the Companies Act as if section 561 of the Companies Act did not apply to such allotment and issue or grant (unless such allotment and issue or grant was or is exempt from section 561 of the Companies Act pursuant to section 566 of the Companies Act), and the Directors have not and shall not allot or issue (or purport to allot or issue) Shares and have not and shall not grant rights (or purport to grant rights) to acquire Shares in excess of such powers or in breach of any other limitation on their power to allot and issue Shares or grant rights to acquire Shares; |
5.11 | no Shares shall be allotted or issued, or are or shall be committed to be allotted or issued, at a discount to their nominal value (whether in dollars or equivalent in any other currency); |
5.12 | all documents, forms and notices which should have been delivered to Companies House in respect of the Company have been so delivered; |
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5.14 | in relation to the allotment and issue of the Shares, the Directors have acted and will act in the manner required by section 172 of the Companies Act and the Shares will be allotted and issued in good faith and on bona fide commercial terms and on arms’ length terms and for the purpose of carrying on the business of the Company and that there are reasonable grounds for believing that the allotment and issue of the Shares will promote the success of the Company for the benefit of its members as a whole; |
5.15 | there has not been and will not be any bad faith, breach of trust, fraud, coercion, duress or undue influence on the part of any of the Directors in relation to any allotment and issue of Shares; |
5.16 | the Board Minutes referred to in paragraph 2.4 (Documents), provided to us in connection with the giving of this opinion, are a true record of the proceedings described therein, and that the meetings recorded in such minutes was and each meeting of the Directors referred to in paragraph 4.4 of this letter were and/or will be duly conducted as described therein, duly constituted and convened and all constitutional, statutory and other formalities were and/or will be duly observed (including, if applicable, those relating to the declaration of Directors’ interests or the power of interested Directors to vote), a quorum was and/or will be present throughout, the requisite majority of Directors voted and/or will vote in favour of approving the resolutions and the resolutions passed at each such meeting of the Board were and/or will be duly adopted, have not been and will not be revoked or varied and remain in full force and effect and will remain so as at each relevant Allotment Date; |
5.17 | the Remuneration Committee Minutes referred to in paragraph 2.5 (Documents) provided to us in connection with the giving of this opinion are a true record of the proceedings described therein, that the Remuneration Committee was duly constituted, that all provisions of the Companies Act and the articles of association of the Company then in force were duly observed and that the resolutions passed at the meeting of the Remuneration Committee were duly adopted, have not been revoked or varied and remain in full force and effect and will remain so as at each relevant Allotment Date; |
5.18 | the Shareholder Resolutions were duly passed at the annual general meeting held on 25 June 2019, the annual general meeting held on 9 June 2020 and the general meeting held on 23 July 2020 at which all constitutional, statutory and other filings were duly observed, a quorum of shareholders was present throughout and the Shareholder Resolutions referred to in paragraph 2.6 (Documents) were duly passed and have not been revoked or varied and remain in full force and effect and will remain so as at each Allotment Date and all filings required to be made with Companies House in connection therewith have been made within the relevant time limits; |
5.19 | as at each Allotment Date, the authorities granted pursuant to the June 2019 Shareholder Resolutions and the June 2020 Shareholder Resolutions, as applicable, remained or will remain unutilised to the extent necessary to permit such allotment and issue, or if at any Allotment Date such authorities have expired or been fully utilised, the Company in general meeting having duly and validly resolved (i) as an ordinary resolution to authorise the Directors pursuant to section 551 of the Companies Act to allot the Shares, or grant rights to subscribe for the Shares, pursuant to the Equity Plans and the Individual Option Contracts, as applicable, and (ii) as a special resolution to empower the Directors pursuant to section 570 or 571 of the Companies Act to allot such Shares and grant such rights (as applicable), free of the restrictions in section 561 of the Companies Act; |
5.20 | the resolutions of the shareholders of the Company referred to in paragraph 5.19 will be duly passed as resolutions of the Company, all constitutional, statutory and other formalities will be observed and such resolutions will not have expired and will not be revoked or varied prior to each Allotment Date and will remain in full force and effect as at each Allotment Date; |
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5.22 | no Shares or rights to subscribe for Shares have been or shall be offered to the public in the United Kingdom in breach of the Financial Services and Markets Act 2000 (“FSMA”), the EU Prospectus Regulation (Regulation (EU) 2017/1129) or of any other United Kingdom laws or regulations concerning offers of securities to the public, and no communication has been or shall be made in relation to the Shares in breach of section 21 (Restrictions on financial promotion) of FSMA or any other United Kingdom laws or regulations relating to offers or invitations to subscribe for, or to acquire rights to subscribe for or otherwise acquire, shares or other securities; |
5.23 | in issuing and allotting and granting rights to acquire Shares and administering the Equity Plans and the Individual Option Contracts, the Company is not carrying on a regulated activity (within the meaning of section 19 (The general prohibition) of FSMA); and |
5.24 | the Company has not taken any corporate or other action nor have any steps been taken or legal proceedings been started against the Company for the liquidation, winding-up, dissolution or reorganisation of, or for the appointment of a liquidator, receiver, trustee, administrator, administrative receiver or similar officer of the Company or all or any of its assets (or any analogous proceedings in any jurisdiction) and no such steps or proceedings will have been taken as at each Allotment Date, and the Company is not unable to pay its debts as they fall due within the meaning of section 123 of the Insolvency Act 1986, as amended (the “Insolvency Act”) and will not become unable to pay its debts within the meaning of that section as a result of any of the transactions contemplated herein, is not insolvent and has not been dissolved (although the Searches gave no indication that any winding-up, dissolution or administration order or appointment of a receiver, administrator, administrative receiver or similar officer has been made with respect to the Company) and such actions and steps will not have been taken as at any Allotment Date. |
6.1 | The opinion given in this letter is limited to English law as it would be applied by English courts (including the laws of the European Union to the extent having the force of law in England by virtue of section 1A of the European Union (Withdrawal) Act 2018 (as introduced by section 1 of the European Union (Withdrawal Agreement) Act 2020)) on the date of this letter. |
6.3 | We express no opinion as to any agreement, instrument or other document other than as specified in this letter. For the purposes of giving the opinion in paragraph 4 (Opinion), we have only examined and relied on those documents set out in paragraph 2 (Documents) and made those searches and enquiries set out in paragraph 3 (Searches), respectively. We have made no further enquiries concerning the Company or any other matter in connection with the giving of the opinion in paragraph 4 (Opinion). |
6.4 | No opinion is expressed with respect to taxation in the United Kingdom or otherwise in this letter. |
6.5 | We have not been responsible for investigating or verifying the accuracy of the facts or the reasonableness of any statement of opinion or intention, contained in or relevant to any document referred to in this letter, or that no material facts have been omitted therefrom. |
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6.7 | This letter only applies to those facts and circumstances which exist as at today’s date and we assume no obligation or responsibility to update or supplement this letter to reflect any facts or circumstances which may subsequently come to our attention, any changes in laws which may occur after today, or to inform the addressee of any change in circumstances happening after the date of this letter which would alter the opinion given in this letter. |
6.8 | We have not been responsible for investigation or verification of statements of fact (including statements as to foreign law) or to the reasonableness of any statements of opinion in the Registration Statement, or that no material facts have been omitted therefrom. |
6.9 | This letter is given by Cooley (UK) LLP and no partner or employee assumes any personal responsibility for it nor shall owe any duty of care in respect of it. |
6.10 | This letter, the opinion given in it, and any non-contractual obligations arising out of or in connection with this letter and/or the opinion given in it, are governed by and shall be construed in accordance with English law as at the date of this letter. |
7.1 | The Online Search described at paragraph 3.1 (Searches) is not capable of revealing conclusively whether or not: |
| (a) | a winding-up order has been made or a resolution passed for the winding-up of a company; |
| (b) | an administration order has been made; or |
| (c) | a receiver, administrative receiver, administrator or liquidator has been appointed, |
since notice of these matters may not be filed with the Registrar of Companies in England and Wales immediately and, when filed, may not be entered on the public database or recorded on the public microfiches of the relevant company immediately.
In addition, such a company search is not capable of revealing, prior to the making of the relevant order, whether or not a winding-up petition or a petition for an administration order has been presented.
7.2 | The Telephone Enquiry described at paragraph 3.2 (Searches) relates only to a compulsory winding-up and is not capable of revealing conclusively whether or not a winding-up petition in respect of a compulsory winding-up has been presented, since details of the petition may not have been entered on the records of the Central Registry of Winding-up Petitions in England and Wales immediately or, in the case of a petition presented to a County Court in England and Wales, may not have been notified to the Central Registry of Winding-up Petitions in England and Wales and entered on such records at all, and the response to an enquiry only relates to the period of approximately four years prior to the date when the enquiry was made. We have not made enquiries of any District Registry or County Court in England and Wales. |
7.3 | The opinion set out in this letter is subject to: (i) any limitations arising from applicable laws relating to insolvency, bankruptcy, administration, reorganisation, liquidation, moratoria, schemes or analogous circumstances; and (ii) an English court exercising its discretion under section 426 of the Insolvency Act (co-operation between courts exercising jurisdiction in relation to insolvency) to assist the courts having the corresponding jurisdiction in any part of the United Kingdom or any relevant country or territory. |
7.4 | We express no opinion as to matters of fact. |
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7.7 | A certificate, documentation, notification, opinion or the like might be held by the English courts not to be conclusive if it can be shown to have an unreasonable or arbitrary basis or in the event of a manifest error. |
7.8 | We express no opinion in relation to the legality, enforceability or validity of the Equity Plans or Individual Option Contracts or any award agreement entered into pursuant to such Equity Plans or Individual Option Contracts. In particular, but without prejudice to the generality of the foregoing, we have assumed that the Shares to be allotted under the Equity Plans or Individual Option Contracts or any such award agreement will be paid up in full (as to their nominal value and any premium) in cash (within the meaning of section 583(1) of the Companies Act) and we express no opinion as to whether any consideration other than “cash consideration” (as such term is defined in section 583(3) of the Companies Act) which might be paid, or purport to be paid, for the Shares would result in such Shares being validly issued, fully paid and not subject to any call for payment of further capital. |
8. | DISCLOSURE AND RELIANCE |
8.1 | This letter is addressed to you solely for your benefit in connection with the Registration Statement. We consent to the filing of this letter as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under section 7 of the Securities Act or the rules and regulations promulgated thereunder. |
8.2 | This letter may not be relied upon by you for any other purpose, or furnished to, assigned to, quoted to, or relied upon by any other person, firm or other entity for any purpose, other than for the purpose set out in above in paragraph 8.1, without our prior written consent, which may be granted or withheld at our sole discretion. |
Yours faithfully
/s/ Cooley (UK) LLP
Cooley (UK) LLP