[LETTERHEAD OF XXXXXXXX XXXXXXXXX]
PROFESSIONAL CORPORATION
Xxxxxx X. Xxxxx Eleven Penn Center, 14th Floor
000-000-0000 0000 Xxxxxx Xxxxxx
xxxxxxx@xxxx.xxx Philadelphia, PA 19103-2985
Telephone: 000-000-0000
Fax: 000-000-0000
April 28, 2000
Xxxxxx, Limited
C/o Dr. Dr. Xxxxxxxxx & Partner
Xxxxxxxxxxxx 00
XX-0000 Xxxxx-Xxxxxxxxxxxxx
Re: Common Stock Purchase Agreement Between Xxxxxx, Limited and Aquis
Communications Group, Inc.
Ladies and Gentlemen:
This opinion is furnished to you pursuant to the Common Stock Purchase
Agreement by and between Xxxxxx, Limited (the "Purchaser") and Aquis
Communications Group, Inc. (the "Company"), dated as of March 31, 2000 (the
"Purchase Agreement"), which provides for the issuance and sale from time to
time by the Company of shares of Common Stock of the Company with an aggregate
purchase price not to exceed $20,000,000. All terms used herein have the
meanings defined for them in the Purchase Agreement unless otherwise defined
herein.
In rendering this opinion, this firm has relied upon and made such
examination and investigation of legal and factual matters as we have deemed
relevant, including originals or copies, certified or otherwise identified to
our satisfaction, of the Purchase Agreement, the Registration Rights Agreement
between the Purchaser and the Company, dated as of March 31, 2000 (the
"Registration Rights Agreement"), and the Escrow Agreement between the
Purchaser, the Company and Xxxxxxx Xxxxxx & Green, P.C., dated as of March 31,
2000 (the "Escrow Agreement", and together with the Purchase Agreement and the
Registration Rights Agreement, the "Agreements"), certificates of officers of
the Company, resolutions of the Company's Board of Directors, good standing
certificates for the Company, and of corporate records and certificates or
comparable documents of public officials and officers and representatives of the
Company.
In all cases, we have assumed the legal capacity of each natural
person signing any of the Agreements, the genuineness of signatures on and the
authenticity of documents submitted to us as originals, the conformity to
authentic original documents of documents submitted to us as certified or
photostatic copies, the due execution and delivery of documents where due
execution is requisite to the effectiveness thereof and the accuracy and
completeness of all corporate records, certifications and other information made
available to us by the Company. We have
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PROFESSIONAL CORPORATION
Xxxxxx, Limited
April 28, 2000
Page 2
further assumed without verification that the Agreements have been duly
authorized, executed and delivered by, and are the legal, valid and binding
obligations of, all parties thereto other than the Company. We have also relied
on the records of the Company's transfer agent, including the transfer agent's
stock ledger of the issuances of shares of the Company's Common Stock and daily
transaction journals in connection therewith, and have assumed the accuracy and
completeness thereof.
As to questions of fact material to this opinion, we have relied upon
the accuracy of the representations and warranties made by the parties in the
Agreements and of the certificates and other comparable documents of officers
and authorized representatives of the Company, and of public officials.
Statements made herein "to the best of our knowledge" or with respect to matters
"known to us" are based solely on information actually known to those attorneys
currently practicing with this firm and engaged in the representation of the
Company in connection with the transactions contemplated by the Agreements. We
have made no independent examination of factual matters set forth in the
aforesaid certificates, representations or warranties for the purpose of
rendering this opinion.
Based on the foregoing, and subject to the qualifications, limitations
and assumptions stated herein, in our opinion:
1. The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and has
all requisite power and authority (corporate and other) to carry on
its business and to own, lease and operate its properties and assets
as described in the Company's SEC Documents. The Company and each
subsidiary is duly qualified as a foreign corporation to do business
and is in good standing in every jurisdiction in which the Company
owns or leases property, other than those in which the failure so to
qualify would not have a Material Adverse Effect.
2. The Company has the requisite corporate power and authority to
enter into and perform its obligations under the Agreements and to
issue the Shares. The execution and delivery of the Agreements by the
Company and the consummation by it of the transactions contemplated
thereby have been duly authorized by all necessary corporate action
and no further consent or authorization of the Company or its Board of
Directors or stockholders is required (other than the stockholder
approval required to increase the number of authorized shares set
forth in its Certificate of Incorporation (the "Certificate") and
except as may be required pursuant to the corporate governance rules
of the Nasdaq Stock Market with respect to the potential issuance of
shares in excess of 20% of the number of shares of Common Stock issued
and outstanding on the Closing Date). Each of the Agreements has been
duly executed and delivered by the Company and each of the Agreements
constitutes valid and binding
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PROFESSIONAL CORPORATION
Xxxxxx, Limited
April 28, 2000
Page 3
obligations of the Company enforceable against the Company in
accordance with their respective terms.
3. The execution, delivery and performance of the Agreements by
the Company and the consummation by the Company of the transactions
contemplated thereby, including, without limitation, the issuance of
the Shares, do not and will not (i) result in a violation of the
Certificate or the Company's By-Laws (the "By-Laws"); (ii) to our
knowledge, conflict with, or constitute a material default (or an
event that with notice or lapse of time or both would become a
default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any material agreement,
indenture, instrument or any "lock-up" or similar provision of any
underwriting or similar agreement to which the Company is a party; or
(iii) result in a violation of any federal or state law, rule or
regulation applicable to the Company or by which any property or asset
of the Company is bound or affected, except for such violations as
would not, individually or in the aggregate, have a Material Adverse
Effect. To our knowledge, the Company is not in violation of any
terms of the Certificate or the By-Laws.
4. When issued and paid for in accordance with the Purchase
Agreement, the Shares will be duly and validly issued, fully paid and
nonassessable, and free of any liens, encumbrances and preemptive or
similar rights contained in the Certificate or the By-Laws or, to our
knowledge, in any agreement to which the Company is party.
5. To our knowledge, there are no outstanding options, warrants,
calls or commitments of any character whatsoever relating to, or
securities, rights or obligations convertible into or exchangeable
for, or giving any right to subscribe for or acquire any shares of
Common Stock or contracts, commitments, understanding, or arrangements
by which the Company is or may become bound to issue additional shares
of Common Stock, or securities or rights convertible or exchangeable
into shares of Common Stock, except (i) as described in the SEC
Documents or the Agreements; (ii) additional options granted after
the date thereof under the Amended and Restated 1994 Incentive Stock
Plan; and (iii) in connection with the proposed acquisition by the
Company of the assets of Suburban Connect, L.P.
6. Subject to compliance with the Nasdaq Stock Market corporate
governance rules, the issuance of the Shares will not violate the
applicable listing agreement between the Company and any securities
exchange or market on which the Company's securities are listed.
7. The authorized capital stock of the Company consists of
75,000,000 shares of Common Stock, $0.01 value per share, of which
17,291,512 shares are issued and outstanding and 1,000,000 shares of
preferred stock, $0.01 par value per share, of which 100,000 shares
are issued and outstanding.
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PROFESSIONAL CORPORATION
Xxxxxx, Limited
April 28, 2000
Page 4
The opinions set forth above are subject to the following
qualifications and limitations:
(a) We express no opinion as to the effect on the validity,
enforceability or binding effect of any Agreement of the application of
equitable principles (whether considered in a proceeding at law or in equity) or
of bankruptcy, insolvency, reorganization, moratorium and other laws now or
hereafter in effect affecting the enforcement of creditors' rights and remedies
(including those relating to fraudulent conveyances and transfers), or of laws
relating to fraud or of public policy principles.
(b) We express no opinion as to the enforceability of any
provision in any Agreement relating to conflicts of law, choice or law or
consent to jurisdiction and venue, or as to the effect on the Agreements or any
of the opinions set forth above of any documents which we have not reviewed.
(c) We express no opinion as to the availability of self-help or
other non-judicial remedies or equitable remedies, including without limitation
specific performance and injunctive relief.
(d) We express no opinion on the validity, binding effect or
enforceability under certain circumstances of provisions of the Agreements:
(i) that provide that rights or remedies are not exclusive,
that every right or remedy is cumulative and may be exercised in
addition to or with any other right or remedy, or that the
election of some remedy or remedies does not preclude recourse to
one or more other remedies,
(ii) that provide that injunctive relief or specific
performance may be available as a remedy for breach,
(iii) that purport to prevent oral modification or waivers,
or
(iv) the breach of which a court concludes is not material
or does not adversely affect the Purchaser.
(e) We express no opinion on the validity or enforceability of
any of the provisions of the Agreements under which any party thereto waives any
right afforded to such party by applicable law after a default.
(f) We express no opinion on compliance with fiduciary duty
requirements.
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PROFESSIONAL CORPORATION
Xxxxxx, Limited
April 28, 2000
Page 5
Our opinion is subject to judicial decisions which indicate that
public policy many render unenforceable provisions respecting payment of cash
and expenses of enforcement, including, without limitation, attorneys' fees.
Our opinion expressed in Paragraph 1 above, insofar as it relates to
the valid existence and good standing of the Company as a corporation
incorporated in Delaware, is based solely on certificates of good standing of a
recent date from the Secretary of State of the State of Delaware and is limited
accordingly.
We are licensed to practice law in the Commonwealth of Pennsylvania
and are experienced in evaluating matters requiring a general knowledge of the
corporate statutes of the State of Delaware. In giving this opinion, we are not
passing on any matters of the laws of any jurisdiction other than the federal
laws of the United States, the laws of the Commonwealth of Pennsylvania and any
issues that may arise under the Delaware General Corporation Law. To the extent
that the Agreements are governed by laws other than the laws of the Commonwealth
of Pennsylvania, we have assumed, with your permission and without verification,
that the applicable provisions of those laws are identical to the provisions of
Pennsylvania law.
We advise you that, except as disclosed in the SEC Documents, we have
not been engaged to devote substantive attention to any claims, actions, suits,
proceedings or investigations that are pending against the Company or its
properties, or against any officer or director of the Company in his or her
capacity as such, except for such proceedings which, if judgment were rendered
against the Company as would not, individually or in the aggregate, have a
Material Adverse Effect. To our knowledge, the Company is not a party to or
subject to the provisions of any order, writ, injunction, judgment or decree of
any court or government agency or instrumentality.
This opinion is issued as of the date hereof and is necessarily
limited to the laws now in effect and the facts and circumstances known to us on
the date hereof. We are not assuming any obligation to review or update this
opinion should applicable law or the existing facts and circumstances change.
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PROFESSIONAL CORPORATION
Xxxxxx, Limited
April 28, 2000
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The opinions expressed above are solely for your benefit in connection
with the transactions contemplated by the Agreement and may not be relied upon
by you in connection with any other matter or by any other person without our
express prior written consent.
Very truly yours,
XXXXXXXX XXXXXXXXX
PROFESSIONAL CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
