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EXHIBIT 5
June 6, 2000
WAVO Corporation
3131 E. Camelback Road
Suite 320
Phoenix, Arizona 85016
Re: Registration of Common Shares
Gentlemen:
We have acted as special Indiana counsel to WAVO Corporation, an
Indiana corporation (the "Company"), in connection with its Registration
Statement on Form S-3 (the "Registration Statement") filed under the Securities
Act of 1933, as amended (the "1933 Act"), relating to the registration of up to
12,271,425 of the Company's Common Shares, without par value (the "Shares")
issuable (a) upon conversion of its Series D Convertible Preferred Stock (the
"Preferred Stock") issued pursuant to that certain Securities Purchase Agreement
dated September 30, 1999 (the "Purchase Agreement") between certain purchasers
and the Company (the "Conversion Shares") and (b) as dividends on the Preferred
Stock in accordance with the terms of the Company's Articles of Incorporation
(the "Dividend Shares").
In rendering the opinions set forth herein, we have limited our factual
inquiry to (i) reliance on a certificate of the Secretary of the Company, (ii)
reliance on the facts and representations contained in the Registration
Statement, including without limitation those relating to the number of the
Company's Common Shares, without par value, which are authorized, issued or
reserved for issuance upon conversion or exercise of preferred shares, warrants
and options, and (iii) such documents, corporate records and other instruments
as we have deemed necessary or appropriate as a basis for the opinions expressed
below, including without limitation a certificate issued by the Secretary of
State of the State of Indiana dated May 26, 2000, attesting to the corporate
existence of the Company in the State of Indiana, and telephonic verification
with such Secretary of State with respect to the Company's continued valid
existence as of the date hereof.
In our examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, the conformity
to original documents of all documents submitted to us as certified or
photostatic copies, and the authenticity of the originals of such copies. In
rendering the opinion expressed below, we have assumed that (i) the Shares will
conform in all material respects to the description thereof set forth in the
Registration
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WAVO Corporation
June 6, 2000
Page 2
Statement, (ii) the Conversion Shares will be issued and delivered in accordance
with the terms of the Preferred Stock and the Purchase Agreement, (iii) the
Dividend Shares will be issued and delivered upon action of the Board of
Directors of the Company in accordance with the Company's Articles of
Incorporation and By-Laws and applicable Indiana law, and (iv) the Shares will
be issued pursuant to an exemption from the registration requirements of the
1933 Act.
Based upon the foregoing, and subject to the qualifications set forth
herein, we are of the opinion that (i) the Conversion Shares, when issued upon
conversion of the Preferred Shares in accordance with the terms thereof and of
the Purchase Agreement, and (ii) the Dividend Shares, when issued upon action of
the Board of Directors of the Company in accordance with the Company's Articles
of Incorporation and By-Laws and applicable Indiana law will be validly issued,
fully paid and nonassessable.
The foregoing opinion is limited to the current internal laws of the
State of Indiana (without giving effect to any conflict of law principles
thereof), and we have not considered, and express no opinion on, the laws of any
other jurisdiction. This opinion is based on the laws in effect and facts in
existence on the date of this letter, and we assume no obligation to revise or
supplement this letter should the law or facts, or both, change.
This opinion is intended solely for the use of the Company in
connection with the registration of the Shares. It may not be relied upon by any
other person or for any other purpose, or reproduced or filed publicly by any
person, without the written consent of Barnes & Thornburg; provided, however,
that we hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and to the references to Barnes & Thornburg contained in
the Registration Statement.
Very truly yours,
