Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1/A Amendment No. 1 to Form S-1 134 714K
2: EX-1.1 Form of Underwriting Agreement 27 122K
3: EX-3.3 2nd Amended & Restated Cert. of Incorporation 15 57K
4: EX-3.5 Amended & Restated Bylaws of Averstar 10 42K
5: EX-5.1 Opinion of Swidler Berlin 3 14K
6: EX-10.1 Business Loan and Security Agreement 81 314K
7: EX-23.2A Consent of Ernst & Young LLP 1 7K
8: EX-23.2B Consent of Ernst & Young LLP 1 6K
9: EX-23.2C Consent of Ernst & Young LLP 1 6K
10: EX-23.3 Consent of Grant Thornton LLP 1 6K
11: EX-23.4 Consent of Aronson, Fetridge, & Weigle 1 7K
12: EX-23.5 Consent of International Date Corp. 1 7K
13: EX-27 Financial Data Schedule 2 7K
EX-5.1 — Opinion of Swidler Berlin
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EXHIBIT 5.1
July __, 1999
AverStar, Inc.
23 Fourth Avenue
Burlington, MA 01803
Ladies and Gentlemen:
On the date hereof, AverStar, Inc., a Delaware corporation (the "Company"),
is transmitting for filing with the Securities and Exchange Commission
Amendment No. 1 to a Registration Statement under the Securities Act of 1933, as
amended, on Form S-1 (the "Registration Statement") relating to the sale of up
to 4,600,000 shares (the "Shares") of the Company's common stock, par value
$.001 per share (the "Common Stock"), (including 4,000,000 shares to be sold
by the Company, and 600,000 shares subject to the underwriters' over-allotment
option. This opinion is an exhibit to the Registration Statement.
We have acted as special counsel to the Company with respect to certain
corporate and securities matters, and in such capacity we have participated in
various corporate and other proceedings taken by or on behalf of the Company in
connection with the proposed offer and sale of the Shares by the Company as
contemplated by the Registration Statement. However, we are not general counsel
to the Company and would not ordinarily be familiar with or aware of matters
relating to the Company unless they are brought to our attention by
representatives of the Company.
We have examined copies (in each case signed, certified or otherwise proven
to our satisfaction to be genuine) of the Company's Certificate of Incorporation
and all amendments thereto, and By-Laws as presently in effect, minutes and
other instruments evidencing actions taken by the Company's directors and
stockholders, the Registration Statement and exhibits thereto, and such other
documents and instruments relating to the Company and the proposed offering as
we have deemed necessary under the circumstances. In our examination of all such
agreements, documents, certificates and instruments, we have assumed the
completeness of the minutes submitted to us by the Company, the genuineness of
all signatures, the legal capacity of all signatures and the authenticity of all
agreements, documents, certificates and instruments submitted to us as originals
and the
AverStar, Inc.
July___, 1999
Page 2
conformity with the originals of all agreements, instruments, documents and
certificates submitted to us as copies.
Except as expressly set forth in the next sentence, we express no opinion
on the laws of any jurisdiction other than the State of New York, the federal
laws of the United States and, to the extent set forth below, the laws of the
State of Delaware. This opinion, insofar as it relates to the law of Delaware,
based solely on our reading of standard published compilations of the Delaware
General Corporation Law. We express no opinion as to the application of the
securities or "blue sky" laws of any state, including the State of Delaware or
the State of New York, to the offer and sale of the Shares.
Our opinion in paragraph 1 below as to the due incorporation of the Company
in its state of incorporation is (i) based solely upon a Certificate of Good
Standing from the Secretary of State of the State of Delaware and (ii) rendered
as of the date of said certificate.
Based on the foregoing, and subject to and in reliance on the accuracy and
completeness of the information relevant thereto provided to us, it is our
opinion that:
1. The Company has been duly incorporated under the laws of the State of
Delaware and, upon proper filing of the Second Amended and Restated Certificate
of Incorporation of the Company in the form filed as Exhibit 3.3 to the
Registration Statement, the Company will have an authorized capital stock
consisting of 25,000,000 shares of Common Stock and 1,000,000 shares of
preferred stock, par value $.001 per share.
2. Upon proper filing of the Second Amended and Restated Certificate of
Incorporation of the Company in the form filed as Exhibit 3.3 to the
Registration Statement, the maximum of 4,600,000 shares of Common Stock to be
sold by the Company will have been duly authorized and, subject to the
effectiveness of the Registration Statement and compliance with applicable
securities or other laws of the states of the United States in which the Shares
will be offered and/or sold in the proposed public offering, when issued and
delivered against payment therefor in accordance with the terms set forth in the
Registration Statement, will be legally and validly issued, fully paid and non-
assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and as an exhibit to any filing made by the Company under
the securities or other laws of any state
AverStar, Inc.
July___, 1999
Page 3
of the United States, which relate to the proposed public offering which is the
subject of this opinion, and to the reference to this firm appearing under the
heading "Legal Matters" in the prospectus which is contained in the Registration
Statement.
This opinion is as of the date hereof and we undertake no obligation to
advise you of any change, any applicable law or in facts or circumstances which
might affect any matters or opinions set forth herein. This opinion is
furnished to you in connection with the filing of the Registration Statement,
and is not to be used, circulated, quoted or otherwise relied upon for any other
purposes, except as expressly provided in the preceding paragraph.
Very truly yours,
/s/ Swidler Berlin Shereff Friedman, LLP
SWIDLER BERLIN SHEREFF FRIEDMAN, LLP
SBSF, LLP:GA:JSH:RMF
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