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Exhibit 5.1
Neumiller & Beardslee, a Professional Corporation
5th Floor, Waterfront Office Towers II
P.O. Box 20
Stockton, California 95201-3020
ROBERT C. MORRISON
December 22, 2000
Pac-West Telecomm, Inc.
4210 Coronado Avenue
Stockton, California 95204
Re: Registration Statement on Form S-8 for Pac-West Telecomm, Inc.
Ladies/Gentlemen:
We have acted as counsel to Pac-West Telecomm, Inc., a California corporation
(the "Company"), from time to time in connection with certain general corporate
matters. As you know, our representation of the Company is limited to specific
matters about which we are consulted. The Company regularly employs other legal
counsel for various matters, including, but not limited to, telecommunications
licensing and regulatory matters; litigation; qualified and non-qualified
employee benefit plans, including the Plans as defined below; and various
securities matters including the registration and sale to the public of its
securities, including the securities to be issued in the transactions which give
rise to this opinion. This firm and the undersigned have not participated in
the preparation of the Registration Statement on Form S-8 referred to below or
in review of the factual and legal matters therein contained or in determining
its legal sufficiency. We disclaim any opinion or responsibility for the
factual accuracy thereof.
This letter is being issued in connection with the registration by the Company
of up to 3,225,500 shares of the Company's Common Stock, par value $.001 per
share (the "Shares"), pursuant to a Registration Statement on Form S-8 filed on
or about the date hereof, with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act") (such
Registration Statement, as amended or supplemented, is hereinafter referred to
as the "Registration Statement"). The Shares are to be issued by the Company
from time to time in connection with the exercise of stock options granted under
(i) the Pac-West Telecomm, Inc. 1999 Stock Incentive Plan, as amended May 2,
2000; (ii) the Company's 2000 Non-Qualified Napa Valley Stock Incentive Plan;
(iii) the Company's 2000 Employee Stock Purchase Plan; (iv) the Company's 1998
Griffin Non-Qualified Stock Incentive Plan; and (v) the Company's 1998 Bryson
Non-Qualified Stock Incentive Plan (the "Plans").
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Pac-West Telecomm, Inc.
December 22, 2000
Page 2
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In that connection, we have examined originals, or copies, certified or
otherwise identified to our satisfaction, of such documents, corporate records
and other instruments as we have deemed necessary for the purposes of this
letter, including (i) the Amended and Restated Articles of Incorporation and
Certificates of Amendment thereto and By-Laws of the Company, (ii) minutes and
records of the corporate proceedings of the Company with respect to the Shares,
(iii) the Registration Statement and exhibits thereto, (iv) the Plan; and (v)
such other documents and instruments as we have deemed necessary for the
expression of the opinions contained herein.
For purposes of this letter, we have assumed the authenticity of all documents
submitted to us as originals, the conformity to the originals of all documents
submitted to us as copies, and the authenticity of the originals of all
documents submitted to us as copies. We have also assumed the genuineness of the
signatures of persons signing all documents in connection with which this letter
is rendered, the authority of such persons signing on behalf of the parties
thereto and the due authorization, execution and delivery of all documents by
the parties thereto other than the Company. In preparing this letter we have
relied without independent verification upon: (i) information contained in
certificates obtained from governmental authorities; (ii) factual information
provided to us by the Company or its representatives including but not limited
to all factual information set forth or incorporated by reference in the
Registration Statement and Exhibits; and (iii) factual information we have
obtained from such other sources as we have deemed reasonable. We have assumed
that there has been no relevant change or development between the dates as of
which the information cited in the preceding sentence was given and the date of
this letter and that the information upon which we have relied is accurate and
does not omit disclosures necessary to prevent such information from being
misleading. We have assumed that the options and other rights under the Plans
pursuant to which any Shares are to be issued are, and at the time of issuance
of any related Shares will be, validly issued and outstanding and we have
assumed that the Company has complied with or will timely comply with all
applicable Blue Sky laws prior to issuance of the Shares.
Our advice on every legal issue addressed in this letter is based exclusively on
the Corporate Law of the State of California and the federal law of the United
States, and represents our opinion as to how that issue would be resolved where
it to be considered by the highest court in the jurisdiction which enacted such
law.
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Pac-West Telecomm, Inc.
December 22, 2000
Page 3
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Based upon and subject to the foregoing qualifications, assumptions and
limitations and the further limitations set forth below, we are of the opinion
that the issuance of the Shares has been duly authorized and that (i) upon
effectiveness under the Act of the Registration Statement, and (ii) when
appropriate certificates representing the Shares are duly countersigned by the
Company's transfer agent/registrar and delivered against payment of the agreed
consideration therefor all in accordance with the terms and conditions of the
Plan and the applicable option agreement entered into in connection therewith,
the Shares will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this letter with the Commission as Exhibit
5.1 to the Registration Statement.
This letter is limited to the specific issues addressed herein, and no opinion
may be inferred or implied beyond that expressly stated herein. This letter
speaks as of the time of its delivery on the date it bears. We do not assume any
obligation to provide you with any subsequent opinion or advice by reason of any
fact about which we did not have knowledge at that time, by reason of any change
subsequent to that time in any law other governmental requirement or
interpretation thereof covered by any of our opinions or advice, or for any
other reason.
This 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 purpose.
Very truly yours,
NEUMILLER & BEARDSLEE
A Professional Corporation
By: /s/ Robert C. Morrison
_________________________________
ROBERT C. MORRISON, Principal
RCM/RCM
