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EXHIBIT 5.01
December 18, 2000
Broadbase Software, Inc.
181 Constitution Drive
Menlo Park, California 94025
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form S-3
(the "REGISTRATION STATEMENT") to be filed by Broadbase Software, Inc., a
Delaware corporation (the "COMPANY"), with the Securities and Exchange
Commission (the "COMMISSION") on or about December 19, 2000 in connection with
the registration under the Securities Act of 1933, as amended, of an aggregate
475,361 shares of the Company's common stock (the "SHARES"), that were issued by
the Company pursuant to the Agreement and Plan of Merger (the "MERGER
AGREEMENT") dated August 15, 2000 between the Company, Decisionism, Inc., a
Delaware corporation ("DECISIONISM"), and two subsidiaries of the Company. The
Shares may be sold on a delayed or continuous basis, as set forth in the
Registration Statement and associated prospectuses and prospectus supplements,
only by certain selling securityholders named in the Registration Statement and
the associated prospectuses and prospectus supplements (the "SELLING
STOCKHOLDERS").
In rendering this opinion, we have examined the following:
(1) the Company's First Amended and Restated Certificate of
Incorporation, as filed with the Delaware Secretary of State on
December 18, 2000;
(2) the Company's Bylaws, as adopted by the Company on July 2, 1999;
(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 (the "PROSPECTUS");
(5) the minutes of the meeting of the Company's Board of Directors
held on July 28, 2000, approving the Merger Agreement, the filing
of the Registration Statement, the issuance of the Shares and the
other transactions contemplated thereby;
(6) a certificate from the Company's transfer agent of even date
herewith verifying the number of the Company's issued and
outstanding shares of capital stock as of the date hereof, and a
summary report, dated of even date herewith, of currently
outstanding options and warrants to purchase the Company's
capital stock and stock reserved for issuance upon the exercise
of options or warrants to be granted in the future;
(7) the Merger Agreement and the Certificate of Merger filed with the
Delaware Secretary of State on December 18, 2000; and
(8) a Management Certificate executed by the Company, addressed to us
and dated of even date herewith, 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 Shares have been properly
signed by authorized officers of the Company or their agents.
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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 and the representations and warranties made by representatives
of the Company to us, including but not limited to those set forth in the
Management Certificate. 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.
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 the Shares, 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 the Shares, the Registration Statement
will have been declared effective under the Securities Act of 1933, as amended,
that the registration will apply to the Shares 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 the Shares.
The Company has informed us that the Company intends to issue the Shares
from time to time on a delayed or continuous basis. This opinion is limited to
the laws, including the rules and regulations, as in effect on the date hereof.
We are basing this opinion on our understanding that, prior to issuing any of
the Shares, the Company will advise us in writing of the terms thereof and other
information material thereto, will afford us an opportunity to review the
operative documents pursuant to which such Shares are to be issued (including
the Registration Statement, the Prospectus and the applicable supplement to the
Prospectus, as then in effect) and will file such supplement or amendment to
this opinion (if any) as we may reasonably consider necessary or appropriate
with respect to such Shares. However, we undertake no responsibility to monitor
the Company's future compliance with applicable laws, rules or regulations of
the Commission or other governmental body. We also assume the Company will
timely file any and all supplements to the Registration Statement and Prospectus
as are necessary to comply with applicable laws in effect from time to time.
Based upon the foregoing, it is our opinion that the 475,361 Shares 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 issuance and
sale of shares subject to the Registration Statement and is not to be relied
upon for any other purpose.
Very truly yours,
FENWICK & WEST LLP
By: /s/ GORDON K. DAVIDSON
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Gordon K. Davidson, a Partner
