Exhibit 5.1
OPINION OF JENKENS & GILCHRIST PARKER CHAPIN LLP
January 8, 2001
Xybernaut Corporation
12701 Fair Lakes Circle
Fairfax, Virginia 22033
Gentlemen:
We have acted as counsel to Xybernaut Corporation, a Delaware
corporation (the "Company"), in connection with the Registration Statement on
Form S-3 (the "Registration Statement") being filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, for the
registration for resale by the selling stockholders listed therein of 9,992,367
shares of Common Stock, par value $.01 per share (the "Common Stock"), of the
Company. Of the 9,992,367 shares of Common Stock being registered, 6,767,430
shares are currently issued and outstanding (the "Shares") and 3,224,937 shares
are issuable upon exercise of warrants by the selling stockholders (the
"Warrants").
In connection with the foregoing, we have examined originals or copies,
satisfactory to us, of the Company's (i) Certificate of Incorporation and (ii)
Bylaws. We have also reviewed such other matters of law and examined and relied
upon all such corporate records, agreements, certificates and other documents as
we have deemed relevant and necessary as a basis for the opinion hereinafter
expressed. In such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity with the original documents of all documents submitted to us as
copies or facsimiles. As to any facts material to such opinion, we have, to the
extent that relevant facts were not independently established by us, relied on
certificates of public officials and certificates of officers or other
representatives of the Company.
Based upon and subject to the foregoing and the compliance with
applicable state securities laws, we are of the opinion that (i) the 6,767,430
shares of Common Stock currently outstanding are validly issued, fully paid and
nonassessable and (ii) the remaining 3,224,937 shares of Common Stock being
registered, if and when issued upon surrender of the Warrants and exercise and
the payment of the exercise price as provided in the Warrants, will be validly
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference made to us under the caption "Legal
Matters" in the prospectus constituting part of the Registration Statement.
Very truly yours,
JENKENS & GILCHRIST
PARKER CHAPIN LLP
