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EXHIBIT 5.01
July 21, 2000
Talarian Corporation
333 Distel Circle
Los Altos, CA 94022
Gentlemen/Ladies:
At your request, we have examined the Registration Statement on Form S-8
(the "REGISTRATION STATEMENT") to be filed by Talarian Corporation, a Delaware
corporation (the "COMPANY"), with the Securities and Exchange Commission (the
"COMMISSION") on or about July 21, 2000 in connection with the registration
under the Securities Act of 1933, as amended, of an aggregate of 6,519,536
shares of the Company's Common Stock (the "Stock") subject to issuance by the
Company upon the exercise of (a) options to purchase 57,167 shares of the
Company's Common Stock granted under the Company's 1991 Stock Option Plan, which
plan has been terminated and under which no further options will be granted (the
"1991 PLAN"), (b) options to purchase 1,782,144 shares of the Company's Common
Stock granted under the Company's 1998 Equity Incentive Plan, which plan has
been terminated and under which no further options will be granted (the "1998
PLAN"), (c) options to purchase 20,225 shares of the Company's Common Stock
granted under the WhiteBarn, Inc. 1991 Stock Option Plan, which plan has been
terminated and under which no further options will be granted (the "WHITEBARN
STOCK PLAN"), (d) options to purchase 280,000 shares of the Company's Common
Stock granted under the WhiteBarn, Inc. 2000 Equity Incentive Plan, which plan
has been terminated and under which no further options will be granted (the
"WHITEBARN EQUITY PLAN"), (e) options to purchase 3,000,000 shares of the
Company's Common Stock granted or to be granted under the Company's 2000 Equity
Incentive Plan (the "2000 EQUITY PLAN"), (f) rights to purchase 300,000 shares
of the Company's Common Stock granted or to be granted under the Company's 2000
Employee Stock Purchase Plan (the "2000 STOCK PLAN") or (g) options to purchase
1,080,000 shares of the Company's Common Stock granted outside of any option
plan (the "NON-PLAN OPTIONS"). The plans referred to in clauses (a) through (f)
above are collectively referred to in this letter as the "PLANS." 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.
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Talarian Corporation
July 21, 2000
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(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 prospectuses prepared in connection with the Registration
Statement.
(7) 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 the Company's
predecessor, Talarian Corporation, a California corporation ("Talarian
California"), that are in our possession.
(8) the stock records 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 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).
(9) a Management Certificate addressed to us and dated of even date
herewith executed by the Company containing certain factual and other
representations.
(10) Talarian California's Amended and Restated Articles of Incorporation,
as amended, certified by the California Secretary of State on May 23,
2000.
(11) Talarian California's Bylaws, certified by the Secretary of Talarian
California on July 9, 2000.
(12) 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 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.
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,
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Talarian Corporation
July 21, 2000
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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 stock, of the State of Delaware.
Based upon the foregoing, it is our opinion that the 6,519,536 shares of
Stock that may be issued and sold by the Company upon the exercise of (a) stock
options granted or to be granted under the 2000 Equity Plan, (b) stock options
granted under the 1991 Plan, 1998 Plan, WhiteBarn Stock Plan, WhiteBarn Equity
Plan, or the Non-Plan Options and (c) purchase rights granted or to be granted
under the 2000 Stock Plan, when issued, sold and delivered in accordance with
the applicable plan and purchase agreements to be entered into thereunder and in
the manner and for the consideration stated in the Registration Statement and
the relevant 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 the 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/ Barry J. Kramer
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Barry J. Kramer
