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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-8
(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 18, 2000, in connection with
the registration under the Securities Act of 1933, as amended, of an aggregate
of 6,406,823 shares of the Company's common stock (the "SHARES"), of which:
(a) 2,541,317 shares are subject to issuance upon the exercise of stock
options originally granted by Servicesoft, Inc., a Delaware corporation
("SERVICESOFT") under the Servicesoft Technologies, Inc. Amended and Restated
1994 Stock Option Plan (the "SERVICESOFT 1994 OPTION PLAN");
(b) 3,149,885 shares are subject to issuance upon the exercise of stock
options originally granted by Servicesoft under the Servicesoft Technologies,
Inc. 1999 Stock Option and Grant Plan, as amended from time to time (the
"SERVICESOFT 1999 OPTION PLAN");
(c) 622,694 shares are subject to issuance upon the exercise of stock
options originally granted by Servicesoft pursuant to additional stock option
agreements (the "Additional Options"); and
(d) 92,927 shares are reserved for issuance pursuant to purchase
rights granted or to be granted under the Servicesoft, Inc. 2000 Employee Stock
Purchase Plan (the "SERVICESOFT PURCHASE PLAN").
The stock options referred to in clauses (a), (b) and (c) above and the
Servicesoft Purchase Plan were assumed by the Company pursuant to the Agreement
and Plan of Merger dated September 18, 2000, among the Company, Servicesoft and
Soldier Acquisition Corp. (the "MERGER AGREEMENT").
In rendering this opinion, as to questions of fact, 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 September 18, 2000, approving the filing of the
Registration Statement and the issuance of the Shares in
connection therewith;
(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 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;
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(8) the Servicesoft 1994 Option Plan, Servicesoft 1999 Option Plan
and Servicesoft Purchase Plan, together with the related forms
of stock option agreements;
(9) the forms of stock option agreement entered into by Servicesoft
in connection with the grants of the Additional Options; and
(10) 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 of all documents submitted to us as
originals, the conformity to originals 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, when issued, will be properly signed by authorized
officers of the Company 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 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, the state of California and,
with respect to the validity of corporate action and the requirements for the
issuance of stock, the State of Delaware.
Based upon the foregoing, it is our opinion that the 6,406,823 Shares
that may be issued and sold by the Company upon the exercise of (a) stock
options granted under the Servicesoft 1994 Option Plan, (b) stock options
granted under the Servicesoft 1999 Option Plan, (c) the Additional Options and
(d) purchase rights granted or to be granted under the Servicesoft Purchase
Plan, when issued, sold and delivered in accordance with the applicable plan and
stock option or purchase agreements entered into or to be entered into
thereunder and in the manner and for the consideration stated in the
Registration Statement and the Prospectus, will be 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
