Exhibit 5.01
___________ ___, 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-________) filed on October ___, 2003, as amended by
Amendment No. 1 to be filed on or about the date hereof, 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 5,750,000 shares of the Company's
Common Stock, par value $0.001 per share (the "Stock"), 3,500,134 of which will
be sold by certain selling stockholders (the "Selling Stockholders"). Of the
3,500,134 shares of Stock that will be sold by the Selling Stockholders through
the Registration Statement, 3,472,505 shares are presently issued and
outstanding (the "Issued Stock") and 27,629 shares will be issued upon the
exercise by certain Selling Stockholders of their stock option agreements with
the Company (the "Option Stock").
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, filed
with the Delaware Secretary of State on June 17, 2003.
(2) the Company's Amended and Restated Bylaws, certified by the Company's
Secretary on June 20, 2003.
(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.
(5) 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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(6) the stock records for the Company that the Company has provided to us
(consisting of a certificate from the Company's transfer agent
verifying the number of the Company's issued and outstanding shares
of capital stock as of _________ ___, 2003 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 ________ ___, 2003 verifying the number of such issued and
outstanding securities).
(7) the stock purchase or stock option exercise agreements under which
the Selling Stockholders acquired the Issued Stock to be sold by
them, and the stock option agreements and related stock option plans
under which the Selling Stockholders obtained options to purchase the
Option Stock to be sold by them, as described in the Registration
Statement.
(8) the Letter of Transmittal and Custody Agreement, the Irrevocable
Power of Attorney and the Stock Power signed by each of the Selling
Stockholders in connection with the sale of Stock described in the
Registration Statement.
(9) a Management Certificate addressed to us and dated of even date
herewith executed by the Company containing certain factual
representations (the "Management Certificate").
(10) 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, and the certificates representing the Option Stock to be issued
by the Company and to be sold by certain Selling Stockholders, 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
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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 2,249,866 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, (ii) the 27,629 shares of Option Stock to be sold by
certain Selling Stockholders, when issued, sold and delivered by the Company
upon the exercise of stock options, in the manner and for the consideration
stated in the applicable stock option plan of the Company and the stock option
agreements with respect to such shares, will be validly issued, fully paid and
nonassessable, and (iii) the 3,472,505 shares of Issued Stock to be sold by
certain 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, 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:_________________________________________
Mark A. Leahy, a Partner