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Exhibit 5.1
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Hogan Lovells US LLP
Harbor East
100 International Drive
Suite 2000
Baltimore, MD 21202
T +1 410 659 2700
F +1 410 659 2701
www.hoganlovells.com |
November 17, 2010
Board of Directors
NxStage Medical, Inc.
439 S. Union Street, 5th Floor
Lawrence, Massachusetts 01843
Ladies and Gentlemen:
We are acting as counsel to NxStage Medical, Inc., a Delaware corporation (the “Company”), in
connection with its registration statement on Form S-3 (the “Registration Statement”), filed with
the Securities and Exchange Commission relating to the proposed public offering of one or more
series of the following securities of the Company: (i) shares of common stock, $0.001 par value
per share (the “Common Shares”); (ii) senior or subordinated debt securities (the “Debt
Securities”); (iii) shares of preferred stock, $0.001 par value per share (the “Preferred Shares”);
(iv) warrants to purchase Debt Securities (the “Debt Warrants”); (v) warrants to purchase Preferred
Shares (the “Preferred Stock Warrants”); and (vi) warrants to purchase Common Shares (the “Common
Stock Warrants” and, together with the Common Shares, Debt Securities, Preferred Shares, Debt
Warrants and Preferred Stock Warrants, the “Securities”), all of which may be sold from time to
time and on a delayed or continuous basis, as set forth in the prospectus which forms part of the
Registration Statement, and as to be set forth in one or more supplements to the prospectus. 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. 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). 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.
For purposes of this opinion letter, we have assumed that (i) the issuance, sale, amount and terms
of any Securities of the Company to be offered from time to time will have been duly authorized and
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established by proper action of the board of directors of the Company or a duly authorized
committee of such board (“Board Action”) consistent with the procedures and terms described in the
Registration Statement and in accordance with the Company’s charter and bylaws and applicable
Delaware corporate law, in a manner that does not violate any law, government or court-imposed
order or restriction or agreement or instrument then binding on the Company or otherwise impair the
legal or binding nature of the obligations represented by the applicable Securities; (ii) at the
time of offer, issuance and sale of any Securities, the Registration Statement will have been
declared effective under the Securities Act of 1933, as amended (the “Act”), and no stop order
suspending its effectiveness will have been issued and remain in effect; (iii) any senior Debt
Securities will be issued pursuant to a “senior indenture” and any subordinated Debt Securities
will be issued pursuant to a “subordinated indenture,” substantially in the forms of such
indentures filed as Exhibits 4.3 and 4.4, respectively, to the Registration Statement, with items
shown in such exhibits as subject to completion completed in a satisfactory manner; (iv) the
indenture under which any Debt Securities are issued will be qualified under the Trust Indenture
Act of 1939, as amended; (v) any Debt Warrants will be issued under one or more debt warrant
agreements, each to be between the Company and a financial institution identified therein as a
warrant agent; (vi) any Preferred Stock Warrants will be issued under one or more equity warrant
agreements, each to be between the Company and a financial institution identified therein as a
warrant agent; (vii) any Common Stock Warrants will be issued under one or more equity warrant
agreements, each to be between the Company and a financial institution identified therein as a
warrant agent; (viii) prior to any issuance of Preferred Shares, appropriate certificates of
designation will be accepted for record by the Secretary of State of the State of Delaware; (ix) if
being sold by the issuer thereof, the Securities will be delivered against payment of valid
consideration therefor and in accordance with the terms of the applicable Board Action authorizing
such sale and any applicable underwriting agreement or purchase agreement and as contemplated by
the Registration Statement and/or the applicable prospectus supplement; and (x) the Company will
remain a Delaware corporation.
To the extent that the obligations of the Company with respect to the Securities may be dependent
upon such matters, we assume for purposes of this opinion that the other party under the indenture
for any Debt Securities, under the warrant agreement for any Debt Warrants, Preferred Stock
Warrants or Common Stock Warrants, namely, the trustee or the warrant agent, respectively, is duly
organized, validly existing and in good standing under the laws of its jurisdiction of
organization; that such other party is duly qualified to engage in the activities contemplated by
such indenture or warrant agreement, as applicable; that such indenture or warrant agreement, as
applicable, has been duly authorized, executed and delivered by the other party and constitutes the
legal, valid and binding obligation of the other party enforceable against the other party in
accordance with its terms; that such other party is in compliance with respect to performance of
its obligations under such indenture or warrant agreement, as applicable, with all applicable laws
and regulations; and that such other party has the requisite organizational and legal power and
authority to perform its obligations under such indenture or warrant agreement, as applicable.
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 (b) and (c), the
Delaware General Corporation Law, as amended, and (ii) as to the opinions given in paragraphs (a),
(d), (e) and (f), 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 (and in particular, we
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express no opinion as to any effect that such other laws, statutes, ordinances, rules, or
regulations may have on the opinions expressed herein). 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:
(a) The Debt Securities (including any Debt Securities duly issued upon the exercise of Debt
Warrants), upon due execution and delivery of an indenture relating thereto on behalf of the
Company and the trustee named therein, and upon authentication by such trustee and due execution
and delivery on behalf of the Company in accordance with the indenture and any supplemental
indenture relating thereto, will constitute valid and binding obligations of the Company.
(b) The Preferred Shares (including any Preferred Shares represented by Depositary Shares or
that are duly issued upon the exercise of Preferred Stock Warrants and receipt by the Company of
any additional consideration payable upon such exercise), upon due execution and delivery on behalf
of the Company of certificates therefor, will be validly issued, fully paid and nonassessable.
(c) The Common Shares (including any Common Shares duly issued upon the exchange or conversion
of Debt Securities or Preferred Shares that are exchangeable for or convertible into Common Shares
or upon the exercise of Common Stock Warrants and receipt by the Company of any additional
consideration payable upon such conversion, exchange or exercise), upon due execution and delivery
on behalf of the Company of certificates therefor, will be validly issued, fully paid and
nonassessable.
(d) The Debt Warrants, upon due execution and delivery of a debt warrant agreement relating
thereto on behalf of the Company and the warrant agent named therein and due authentication of the
Debt Warrants by such warrant agent, and upon due execution and delivery of the Debt Warrants on
behalf of the Company, will constitute valid and binding obligations of the Company.
(e) The Preferred Stock Warrants, upon due execution and delivery of an equity warrant
agreement relating thereto on behalf of the Company and the warrant agent named therein and due
authentication of the Preferred Stock Warrants by such warrant agent, and upon due execution and
delivery of the Preferred Stock Warrants on behalf of the Company, will constitute valid and
binding obligations of the Company.
(f) The Common Stock Warrants, upon due execution and delivery of an equity warrant agreement
relating thereto on behalf of the Company and the warrant agent named therein and due
authentication of the Common Stock Warrants by such warrant agent, and upon due execution and
delivery of the Common Stock Warrants on behalf of the Company, will constitute valid and binding
obligations of the Company.
The opinions expressed in Paragraphs (a), (d), (e), and (f) above with respect to the valid and
binding nature of obligations may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or other laws affecting creditors’ rights (including, without limitation,
the effect of
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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 Securities are considered in a proceeding in equity or at law).
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 Registration Statement
and to the reference to this firm under the caption “Legal Matters” in the prospectus constituting
a part of the Registration Statement. 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.
Very truly yours,
/s/ HOGAN LOVELLS US LLP
HOGAN LOVELLS US LLP
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