EXHIBIT 5.1
May 7, 1999
AdForce, Inc.
10590 North Tantau Avenue
Cupertino, California 95014
Gentlemen/Ladies:
At your request, we have examined the Registration Statement on Form S-8
(the "REGISTRATION STATEMENT") to be filed by you with the Securities and
Exchange Commission (the "COMMISSION") on or about May 7, 1999 in connection
with the registration under the Securities Act of 1933, as amended, of an
aggregate of 5,470,110 shares of your Common Stock (the "STOCK") subject to
issuance by you upon the exercise of: (1) options to purchase up to 2,003,989
shares of Stock granted under the Company's 1997 Stock Plan (the "1997 PLAN");
(2) options to purchase 6,598 shares of Stock granted by you under the StarPoint
Software, Inc. 1996 Stock Plan (the "STARPOINT PLAN"); (3) options to purchase
up to 2,249,523 shares of Stock granted or to be granted under the Company's
1999 Equity Incentive Plan (the "1999 OPTION PLAN"); (4) options to purchase up
to 200,000 shares of Stock granted or to be granted under the Company's 1999
Directors Stock Option Plan (the "1999 DIRECTORS PLAN"); (5) purchase rights for
up to 300,000 shares of Stock granted or to be granted under the Company's 1999
Employee Stock Purchase Plan (the "1999 PURCHASE PLAN"); and (6) options to
purchase up to 710,000 shares of Stock granted pursuant to non-plan option
agreements (the "NON-PLAN AGREEMENTS"). The plans referred to in clauses
(1) through (6) above are collectively referred to in this letter as the
"PLANS." In rendering this opinion, we have examined the following:
(1) your registration statement on Form S-1 (File No. 333-73231) filed
with, and declared effective by, the Commission on May 7, 1999,
together with the Exhibits filed as a part thereof, including without
limitation, each of the Plans and related stock option grant or
purchase and exercise agreements;
(2) your registration statement on Form 8-A (File No. 000-25497), filed
with the Commission on May 4, 1999, together with the order of
effectiveness issued by the Commission therefor on May 7, 1999;
(3) the Registration Statement, together with the Exhibits filed as a part
thereof;
(4) the Prospectuses prepared in connection with the Registration
Statement;
(5) the minutes of meetings and actions by written consent of the
stockholders and Board of Directors that are contained in your minute
books and the minute books of your predecessor, Imgis, Inc., a
California corporation ("IMGIS CALIFORNIA"), that are in our
possession;
AdForce, Inc.
May 7, 1999
Page 2
(6) the stock records that you have provided to us (consisting of a list
of stockholders of even date herewith and a list of option and warrant
holders of even date herewith respecting your capital and of any
rights to purchase capital stock, which you have represented to us
are true and complete as of their dates); and
(7) a Management Certificate addressed to us and dated of even date
herewith executed by the Company containing certain factual and other
representations.
We have also confirmed the continued effectiveness of your registration
under the Securities Exchange Act of 1934, as amended, by telephone call to
the offices of the Commission and have confirmed your eligibility to use Form
S-8.
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 natural persons executing the same, the
lack of any undisclosed terminations, modifications, waivers or amendments to
any documents 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 and
records 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 express
no opinion herein with respect to the application or effect of the laws of any
jurisdiction other than the existing laws of the United States of America and
the State of California and (without reference to case law or secondary sources)
the existing Delaware General Corporation Law.
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 become 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 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 5,470,110 shares of
Stock that may be issued and sold by you upon the exercise of: (1) stock options
granted under the 1997 Plan; (2) stock options granted under the StarPoint Plan;
(3) stock options granted or to be granted under the 1999 Option Plan; (4) stock
options granted or to be granted under the 1999 Directors
AdForce, Inc.
May 7, 1999
Page 3
Plan; (5) purchase rights granted or to be granted under the 1999 Purchase
Plan; and (6) stock options granted under Non-Plan Agreements, when issued
and sold in accordance with the applicable plan and stock option grant and
exercise agreements or stock purchase agreements entered into or to be
entered into thereunder, and in the manner referred to in the relevant
Prospectus associated with the Registration Statement, 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 the your use as an exhibit to the Registration
Statement for the purpose of the above sale of the Stock and is not to be relied
upon for any other purpose.
Very truly yours,
/s/ FENWICK & WEST LLP