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EXHIBIT 5.01
July 20, 2000
Talarian Corporation
333 Distel Circle
Los Altos, CA 94022
Gentlemen/Ladies:
At your request, we have examined the Registration Statement (the
"REGISTRATION STATEMENT") on Form S-1 filed pursuant to Rule 462(b) of the
Securities Act of 1933, as amended, by Talarian Corporation, a Delaware
corporation (the "COMPANY"), with the Securities and Exchange Commission (the
"COMMISSION") on July 21, 2000, in connection with the registration under the
Securities Act of 1933, as amended, of $8,280,000 of the Company's Common Stock
(the "STOCK").
In rendering this opinion, we have examined the following:
(1) the Company's Certificate of Incorporation, certified by the
Delaware Secretary of State on March 27, 2000.
(2) the Company's First Amended and Restated Certificate of
Incorporation, certified by the Delaware Secretary of State on May
26, 2000.
(3) the Company's Certificate of Designation of Preferred Stock,
certified by the Delaware Secretary of State on May 31, 2000.
(4) the Company's Bylaws, certified by the Company's Secretary on July
20, 2000.
(5) the Registration Statement, together with the Exhibits filed as a
part thereof or incorporated therein by reference.
(6) the registration statement on Form S-1 (Registration Number
333-34694) filed by Talarian Corporation with the Commission on
April 13, 2000, as subsequently amended.
(7) the prospectus prepared in connection with the registration
statement referenced in paragraph 6 above.
(8) the minutes of meetings and actions by written consent of the
stockholders and Board of Directors that are contained in the
Company's minute books and the minute books of Talarian Corporation,
a California corporation ("TALARIAN CALIFORNIA"), the Company's
predecessor, that are in our possession.
(9) the stock records for both the Company and Talarian California that
the Company has provided to us (consisting of a list of shareholders
and a list of option and warrant holders respecting the Company's
and Talarian California's capital and of
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July 20, 2000
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any rights to purchase capital stock that was prepared by the
Company and dated July 20, 2000 verifying the number of such issued
and outstanding securities).
(10) a Management Certificate addressed to us and dated of even date
herewith executed by the Company and Talarian California containing
certain factual and other representations.
(11) Talarian California's Amended and Restated Articles of
Incorporation, as amended, certified by the California Secretary of
State on May 23, 2000.
(12) Talarian California's Bylaws, certified by the Secretary of Talarian
California on July 9, 2000.
(13) the Merger Agreement certified by the Secretaries of State of
Delaware and California on July 10, 2000 pursuant to which Talarian
California merged with and into the Company in connection with its
reincorporation in Delaware.
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 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 public officials,
records and 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.
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 with 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
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July 20, 2000
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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 up to $8,280,000 of
Stock to be issued and sold by the Company, when issued, sold and delivered 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 the Stock subject to the Registration Statement and is not to be relied
upon for any other purpose.
Very truly yours,
FENWICK & WEST LLP
By: /s/ BARRY J. KRAMER
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Barry J. Kramer
