EXHIBIT 5.01
[Form of Exhibit 5.01 Legal Opinion]
__________ ___, 2003
FormFactor, Inc.
2140 Research Drive
Livermore, California 94550
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form
S-1 (Registration Number 333-86738) filed on April 22, 2002, as amended by
Amendment No. 1 filed on April 30, 2002, Amendment No. 2 filed on May 28, 2002,
Amendment No. 3 filed on December 18, 2002, Amendment No. 4 filed on December
20, 2002, Amendment No. 5 filed on May 7, 2003, Amendment No. 6 filed on May 21,
2003, Amendment No. 7 filed on May __, 2003 and Amendment No. 8 filed on
_________ __, 2003, by FormFactor, Inc., a Delaware corporation (the "COMPANY"),
with the Securities and Exchange Commission (the "COMMISSION") (as amended from
time to time, the "REGISTRATION STATEMENT") in connection with the registration
under the Securities Act of 1933, as amended, of an aggregate of up to
_______________ shares of the Company's Common Stock, par value $0.001 per share
(the "STOCK"), ___________ 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 such matters of fact as we
have deemed necessary in order to render the opinion set forth herein, which
included examination of the following:
(1) the Company's Amended and Restated Certificate of Incorporation,
certified by the Delaware Secretary of State on September 30, 2002.
(2) form of the Company's Amended and Restated Certificate of
Incorporation to be filed upon the closing of the offering
contemplated by the Registration Statement.
(3) the Company's Amended and Restated Bylaws, certified by the
Company's Secretary on March 14, 2002.
(4) form of the Company's Amended and Restated Bylaws to be effective
upon the closing of the offering contemplated by the Registration
Statement.
(5) the Registration Statement, together with the exhibits filed as a
part thereof or incorporated therein by reference.
(6) the Prospectus prepared in connection with the Registration
Statement.
(7) the minutes of meetings and actions by written consent of the
stockholders and the Board of Directors of the Company that are
contained in the Company's minute books that are in our possession.
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(8) the stock records for the Company that the Company has provided to
us (consisting of a list of stockholders and a list of option and
warrant holders respecting the Company's capital stock and of any
rights to purchase capital stock that was prepared by the Company
and dated of even date herewith verifying the number of such issued
and outstanding securities).
(9) the stock option or stock purchase agreements under which the
Selling Stockholders acquired the Stock to be sold by them as
described in the Registration Statement.
(10) the Letter of Transmittal and Custody Agreement, the Irrevocable
Power of Attorney, the Underwriting Agreement Affirmation and the
Stock Power signed by each of the Selling Stockholders in connection
with the sale of Stock described in the Registration Statement.
(11) a Management Certificate addressed to us and dated of even date
herewith executed by the Company containing certain factual
representations (the "MANAGEMENT CERTIFICATE").
(12) the form of Underwriting Agreement to be entered into by and among
the Company, the Selling Stockholders and the several underwriters
party thereto, which is attached as Exhibit 1.01 to the Registration
Statement.
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, 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 entered into by
the Selling Stockholders and the due authorization, execution and delivery of
all such documents by the Selling Stockholders where due authorization,
execution and delivery are prerequisites to the effectiveness thereof. We have
also assumed that the certificates representing the Stock to be issued and sold
by the Company will be, when issued, properly signed by authorized officers of
the Company or their agents.
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 the Delaware
General Corporation Law, the Delaware Constitution and reported judicial
decisions relating thereto.
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.
Based upon the foregoing, it is our opinion that (i) the up to
_______________ shares 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 and in accordance with the
resolutions regarding the public offering price, the underwriting discounts and
commissions, and other matters dependent upon the public offering price to be
adopted by the Pricing Committee of the Company's Board of Directors, will be
validly issued, fully paid and nonassessable, and (ii) the ________ shares of
Stock to be sold by the Selling Stockholders 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 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. We assume no obligation to advise you of
any fact,
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circumstance, event or change in the law or the facts that may hereafter be
brought to our attention whether or not such occurrence would affect or modify
the opinions expressed herein.
Very truly yours,
FENWICK & WEST LLP
By:
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Mark A. Leahy, a Partner