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EXHIBIT 5.01
October 2, 2000
Keynote Systems, Inc.
2855 Campus Drive
San Mateo, CA 94403
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form S-3
(the "Registration Statement") filed by you with the Securities and Exchange
Commission (the "Commission") on or about October 2, 2000, in connection with
the registration under the Securities Act of 1933, as amended, of an aggregate
of 806,750 shares of your common stock (the "Stock"), all of which are presently
issued and outstanding and will be sold by certain selling stockholders (the
"Selling Stockholders").
In rendering this opinion, we have examined the following:
(1) your Amended and Restated Certificate of Incorporation, certified by
the Delaware Secretary of State on January 12, 2000.
(2) your Bylaws, certified by your Secretary on February 24, 2000.
(3) the Registration Statement, together with the Exhibits filed as a part
thereof or incorporated therein by reference.
(4) the Prospectus prepared in connection with the Registration Statement.
(5) the minutes of meetings and actions by written consent of the
stockholders and Board of Directors that are contained in your minute
books and the minute books of your predecessor, Keynote Systems, Inc.,
a California corporation ("Keynote California"), that are in our
possession.
(6) the stock records for both you and Keynote California that you have
provided to us (consisting of a certificate from your transfer agent
of even date herewith verifying the number of issued and outstanding
shares of your capital stock as of the date hereof and a list of
option and warrant holders respecting your capital stock and of any
rights to purchase capital stock that was prepared by you and dated
October 2, 2000 verifying the number of such issued and outstanding
securities).
(7) a Management Certificate addressed to us and dated of even date
herewith executed by you containing certain factual and other
representations.
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the genuineness of all signatures on
original documents, the authenticity and completeness of all documents submitted
to us as originals, the conformity to originals and completeness of all
documents submitted to us as copies, the legal capacity of all persons or
entities executing the same, the lack of any undisclosed termination,
modification, waiver or amendment to any document reviewed by us and the due
authorization, execution and delivery of all documents where due authorization,
execution and delivery are prerequisites to the effectiveness thereof. We have
also assumed that the certificates representing the Stock have been, or will be
when issued, properly signed by your authorized officers or their agents.
As to matters of fact relevant to this opinion, we have relied solely upon
our examination of the documents referred to above and have assumed the current
accuracy and completeness of the information obtained from the documents
referred to above. We have made no independent investigation or other attempt to
verify the accuracy of any of such information or to determine the existence or
non-existence of any other factual matters; however, we are not aware of any
facts that would cause us to believe that the opinion expressed herein is not
accurate.
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We are admitted to practice law in the State of California, and we render
this opinion only with respect to, and express no opinion herein concerning the
application or effect of the laws of any jurisdiction other than, the existing
laws of the United States of America, of the State of California and, with
respect to the validity of corporate action and the requirements for the
issuance of stock, of the State of Delaware.
In connection with our opinion expressed below, we have assumed that, at or
prior to the time of the delivery of any shares of Stock, the Registration
Statement will have been declared effective under the Securities Act of 1933, as
amended, that the registration will apply to such shares of Stock and will not
have been modified or rescinded and that there will not have occurred any change
in law affecting the validity or enforceability of such shares of Stock.
Based upon the foregoing, it is our opinion that the 806,750 shares of
Stock to be sold by the Selling Stockholders pursuant to the Registration
Statement are validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us, if any, in the
Registration Statement, the Prospectus constituting a part thereof and any
amendments thereto. This opinion speaks only as of its date and we assume no
obligation to update this opinion should circumstances change after the date
hereof. This opinion is intended solely for use in connection with the sale of
shares subject to the Registration Statement and is not to be relied upon for
any other purpose.
Very truly yours,
/s/ Fenwick & West LLP
FENWICK & WEST LLP
