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DEWEY BALLANTINE LLP
1301 AVENUE OF THE AMERICAS
NEW YORK 10019-6092
TEL 212 259-8000 FAX 212 259-6333
June 28, 2000
Interliant, Inc.
Two Manhattanville Road
Purchase, NY 10577
Ladies and Gentlemen:
We have acted as counsel to Interliant, Inc., a Delaware corporation (the
"Company"), in connection with the preparation and filing by the Company of a
Registration Statement on Form S-1, File No. 333-38228, (the "Registration
Statement") under the Securities Act of 1933, as amended, relating to the resale
of $10,000,000 aggregate principal amount of the Company's 7% Convertible
Subordinated Note, due 2005 (the "Note"), and of such indeterminate number
shares (the "Conversion Shares") of the Company's common stock, $.01 par value
(the "Common Stock"), as are issuable upon conversion of the Note and of
4,458,394 shares (the "Other Shares") of Common Stock owned by the several
selling stockholders named in the Registration Statement. The Note was issued
pursuant to the terms and conditions of an indenture, dated as of February 16,
2000 (the "Indenture"), by and between the Company and The Chase Manhattan Bank
(the "Trustee"). The Indenture has been filed as an exhibit to the Registration
Statement.
In rendering the opinion expressed herein, we have examined and relied
upon originals or copies, certified or otherwise identified to our satisfaction,
of such corporate records of the Company and such agreements, instruments,
certificates of public officials, certificates of officers of the Company and
such other documents as we have deemed necessary or appropriate for the purpose
of this opinion, including the following:
(a) a copy of the certificate of incorporation, as amended, of the Company;
(b) a copy of the by-laws, as amended, of the Company as in effect on the date
hereof;
(c) a record of corporate proceedings of the Company relating to the
authorization of the execution and delivery of the Indenture, pursuant to
which the Note was issued and the authorization of the issuance
thereunder, sale and delivery of the Note, including the execution and
delivery of the Purchase Agreement, dated March 10, between the Company
and Microsoft Corporation (the "Purchase Agreement"), and the Registration
Rights Agreement, dated March 10, between the Company and Microsoft
Corporation (the "Registration Rights Agreement");
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Interliant, Inc.
June 28. 2000
Page 2
(d) a record of corporate proceedings of the Company relating to the
authorization of the issuance, sale and delivery of the Other Shares;
(e) an executed counterpart of the Indenture (including the form of Note
contained therein);
(f) an executed copy of each of the Purchase Agreement and the Registration
Rights Agreement; and
(g) a specimen certificate representing the Note in global form.
In giving this opinion, we have assumed the authenticity of all instruments
presented to us as originals, the conformity to the originals of all instruments
presented to us as copies, the genuineness of all signatures, the competency of
all individuals signing all instruments presented to us, the truth, accuracy and
completeness of the information, factual matters, representations and warranties
contained in the records, documents, instruments and certificates we have
reviewed as of their stated dates and as of the date hereof and, insofar as any
opinion relates to agreements between the Company and third parties, the due and
valid authorization, execution and delivery of such agreements by such third
parties.
In addition, we have had conferences with officers of the Company and have
ascertained or verified such facts as we have deemed necessary or relevant for
purposes of the opinions expressed herein.
The opinions herein after expressed are subject to the following
qualifications and exceptions:
(a) we express no opinion as to the enforceability of the waiver of rights
under any usury or stay laws contained in the Indenture;
(b) we express no opinion as to the effect on the opinions expressed herein of
(a) the compliance or non-compliance of any party to the Indenture or the
Note (other than the Company) with any laws or regulations applicable to
it, or (b) the legal or regulatory status or the nature of the business of
any such party;
(c) the effect of judicial decisions that may permit the introduction of
extrinsic evidence to supplement the terms of the Indenture or the Note or
to aid in the interpretation of the Indenture or the Note;
(d) we express no opinion as to the enforceability of provisions of the
Indenture and the Note imposing, or which are construed as effectively
imposing, penalties;
(e) the enforceability of provisions of the Indenture or the Note that purport
to establish evidentiary standards or make determinations conclusive; and
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Interliant, Inc.
June 28. 2000
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(f) we express no opinion as to the enforceability of any choice of law
provisions contained in the Indenture or the Note or the enforceability of
any provisions that purport to establish a particular court as the forum
for adjudication of any controversy relating to the Indenture or the Note
or that purport to cause any party to waive or alter any right to a trial
by jury or that waive objection to jurisdiction.
Based upon and subject to the foregoing, we are of the following opinions:
1. The Note has been duly authorized by the Company and, assuming that the
Note has been duly authenticated by the Trustee and paid for, has been duly
executed, issued and delivered by the Company and constitutes a valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law), and will be entitled to the benefits of the
Indenture.
2. The Conversion Shares, when issued upon conversion of the Note, will be,
and the Other Shares are, validly issued and fully paid and nonassessable.
We are members of the bar of the State of New York, and the opinions expressed
herein are limited to the laws of the State of New York, the General Corporation
Law of the State of Delaware and the federal laws of the United States of
America. We do not express any opinion as to the laws, or to make matters
governed by the laws, of any other jurisdiction or, in the case of Delaware, any
other law. The foregoing opinion is rendered as of the date hereof, and we
assume no obligation to update such opinion to reflect any facts or
circumstances which may hereafter come to our attention or any changes in the
law which may hereafter occur.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement. In giving such consent, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ DEWEY BALLANTINE LLP
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DEWEY BALLANTINE LLP
