EXHIBIT 1.1
EXECUTION COPY
HEWLETT-PACKARD COMPANY
Debt Securities
UNDERWRITING AGREEMENT
February 25, 2008
To the Representatives named
in Schedule I hereto
of the Underwriters named in
Schedule II hereto |
Ladies and Gentlemen:
Hewlett-Packard Company, a Delaware corporation (the
“Company”), proposes to sell to the underwriters named
in Schedule II hereto (the “Underwriters”), for
whom you are acting as representatives (the
“Representatives”), the principal amount of each of its
securities identified in Schedule I hereto
(collectively, the “Securities”), each to be issued
under an Indenture dated as of June 1, 2000 (the
“Indenture”), between the Company and The Bank of New
York Trust Company, N.A. (as successor in interest to J.P. Morgan
Trust Company, National Association, which was successor in
interest to Chase Manhattan Bank and Trust Company, National
Association), as trustee (the “Trustee”). If the firm
or firms listed in Schedule II hereto include only the firm
or firms listed in Schedule I hereto, then the terms
“Underwriters” and “Representatives,” as
used herein shall each be deemed to refer to such firm or
firms.
1.
Representations and Warranties . The Company represents and
warrants to, and agrees with each Underwriter that:
(a) The Company meets the
requirements for use of Form S-3 under the Securities Act of 1933,
as amended (the “Act”), and has filed with the
Securities and Exchange Commission (the “Commission”)
an “automatic shelf registration” statement as defined
under Rule 405 of the rules and regulations of the Act (the
“Act Regulations”) (the file number of which is set
forth in Schedule I hereto), including a related base
prospectus, on such Form for the registration under the Act of the
offering and sale of the Securities. Such registration statement,
including any amendments thereto filed prior to the Execution Time,
became effective upon filing. The Company may have filed one or
more preliminary prospectuses, including a Preliminary Prospectus,
in accordance with Rules 415 and 424(b), each of which has
previously been furnished to you. The Company will file with the
Commission a Final Prospectus relating to the Securities in
accordance with Rules 430B and 424(b) of the Act Regulations. As
filed such Final Prospectus shall include all Rule 430B Information
and, except to the extent the Representatives shall agree in
writing to a modification, shall be in all substantive respects in
the form furnished to you
prior to the Execution
Time or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes
(beyond that contained in the Base Prospectus and any Preliminary
Prospectus) as the Company has advised you, prior to the Execution
Time, will be included or made therein. The Registration Statement,
at the Execution Time, meets the requirements set forth in Rule
415(a)(1)(x).
The terms that follow, when used in this Agreement, shall
have the meanings indicated. The term “Effective Date”
shall mean each date that the Registration Statement and any
post-effective amendment or amendments thereto became or become
effective. The term “Applicable Time” shall mean 6:00
p.m. (Eastern time) on February 25, 2008 or such other time as
agreed to by the Company and the Representatives. “Execution
Time” shall mean the date and time that this Agreement is
executed and delivered by the parties hereto. “Base
Prospectus” shall mean the prospectus referred to in the
preceding paragraph included in the Registration Statement at their
most recent Effective Date. “Final Prospectus” shall
mean the prospectus supplement relating to the Securities that is
first filed pursuant to Rule 424(b) after the Execution Time that
includes the 430B Information, together with the Base Prospectus.
“Registration Statement” shall mean the registration
statement referred to in the preceding paragraph, including such
portions of incorporated documents as are specifically incorporated
by reference since the end of the fiscal year covered by the
Company’s most recent Annual Report on Form 10-K, including
exhibits and financial statements, and including any prospectus
supplement relating to the Securities that is filed with the
Commission pursuant to Rule 424(b) and deemed part of the
registration statement pursuant to Rule 430B, in the form in which
it or they has or have or shall become effective and, in the event
any post-effective amendment thereto becomes effective prior to the
Closing Date (as hereinafter defined), shall also mean such
registration statement or statements as so amended.
“Rule 415,” “Rule 424,” “Rule
430B,” “Rule 433” and “Regulation
S-K” refer to such rules under the Act. “Rule 430B
Information” means information with respect to the Securities
and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule
430B. “Disclosure Package” shall mean (i) the Base
Prospectus, as amended and supplemented to the Applicable Time,
(ii) any Preliminary Prospectus, (iii) the Issuer Free Writing
Prospectuses, if any, identified in Schedule III hereto
(including the final term sheet, substantially in the form set
forth in Schedule IV hereto) and (iv) any other Free Writing
Prospectuses that the parties hereto shall hereafter expressly
agree in writing to be treated as part of the Disclosure Package.
“Free Writing Prospectus” shall mean a free writing
prospectus, as defined in Rule 405, used in connection with the
offering of the Securities. “Issuer Free Writing
Prospectus” shall mean an issuer free writing prospectus, as
defined in Rule 433, used in connection with the offering of the
Securities. “Preliminary Prospectus” shall mean any
preliminary prospectus supplement to the Base Prospectus which
describes the Securities and the related offering and is used prior
to filing of the Final Prospectus, together with the Base
Prospectus. “Well-Known Seasoned Issuer” shall mean a
well-known seasoned issuer, as defined in Rule 405. Any reference
herein to the Registration Statement, a Preliminary Prospectus or
the Final Prospectus shall be deemed to refer to and include such
portions of documents as are specifically incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”), on or
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before the Effective Date
of the Registration Statement or the date of such Preliminary
Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms “amend,”
“amendment” or “supplement” with respect to
the Registration Statement, any Preliminary Prospectus or the Final
Prospectus shall be deemed to refer to and include the filing of
any document under the Exchange Act after the Effective Date of the
Registration Statement, or the date of any Preliminary Prospectus
or the Final Prospectus, as the case may be, deemed to be
incorporated therein by reference.
(b) On the Effective Date, the
Registration Statement did, and when the Final Prospectus is first
filed in accordance with Rule 424(b) and on the Closing Date, the
Final Prospectus (and any supplement thereto) will, comply in all
material respects with the applicable requirements of the Act and
the rules thereunder; on the Effective Date and on the Closing Date
the Indenture did or will comply in all material respects with the
requirements of the Trust Indenture Act of 1939, as amended (the
“Trust Indenture Act”), and the rules thereunder; on
the applicable Effective Date and at the Execution Time, the
Registration Statement did not contain any untrue statement of a
material fact required to be stated therein or necessary in order
to make the statements therein not misleading; and as of its date
and on the Closing Date, the Final Prospectus (together with any
supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that
the Company makes no representations or warranties as to (i) that
part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) under the
Trust Indenture Act of the Trustee or (ii) the information
contained in or omitted from the Registration Statement or the
Final Prospectus (or any supplement thereto) in reliance upon and
in conformity with information furnished in writing to the Company
by or on behalf of any Underwriter through the Representatives
specifically for inclusion in connection with the preparation of
the Registration Statement or the Final Prospectus (or any
supplement thereto).
(c) This Agreement has been duly
authorized, executed and delivered by the Company. The Indenture
has been duly authorized, executed and delivered by the Company,
has been duly qualified under the Trust Indenture Act, and
constitutes a legal, valid and binding obligation enforceable
against the Company in accordance with its terms (subject to
applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, arrangement, moratorium and other similar laws
relating to or affecting the rights and remedies of creditors
generally from time to time in effect, and subject to general
principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Securities
have been duly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to
and paid for by the Underwriters pursuant to this Agreement, will
constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture (subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization,
arrangement, moratorium and other similar laws relating to or
affecting the rights and remedies of creditors generally from time
to time in effect, and subject to
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general principles of
equity, regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(d) None of the issue and sale of
the Securities, the consummation of any other of the transactions
herein contemplated or the fulfillment of the terms hereof will
conflict with, result in a breach of, or constitute a default
under, (i) the charter or by-laws of the Company, or (ii) the terms
of any material indenture or other material agreement or instrument
to which the Company or its subsidiaries is a party or bound, or
(iii) any decree or regulation or order applicable to the Company
of any U.S. federal or California or Delaware court, governmental
authority or agency having jurisdiction over the Company, except
where the conflict or breach of which in clause (ii) or clause
(iii) above would not have a material adverse effect on the Company
and its subsidiaries taken as a whole.
(e) At the Applicable Time the
Disclosure Package, when taken together as a whole, does not
contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. The preceding sentence does not apply to
statements in or omissions from the Disclosure Package based upon
and in conformity with written information furnished to the Company
by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists
of the information described as such in Section 6
hereof.
(f) The Company is a Well-Known
Seasoned Issuer and the Registration Statement is an
“automatic shelf registration statement” as defined in
Rule 405 of the Act Regulations. The Company has not received
from the Commission any notice pursuant to Rule 401(g)(2) of the
Act Regulations objecting to the use of the automatic shelf
registration form. The Company has paid the registration fee for
this offering pursuant to Rule 456(b)(1) of the Act Regulations or
will pay such fees within the time period required by such rule
(without giving effect to the proviso therein) and in any event
prior to the Closing Date.
(g) Each Issuer Free Writing
Prospectus, including any final term sheet listed on
Schedule III hereof prepared and filed pursuant to this
Agreement, does not include any information that conflicts with the
information contained in the Registration Statement, including any
document incorporated therein and any prospectus supplement deemed
to be a part thereof that has not been superseded or modified. The
foregoing sentence does not apply to statements in or omissions
from the Disclosure Package based upon and in conformity with
written information furnished to the Company by any Underwriter
through the Representative specifically for use therein, it being
understood and agreed that the only such information furnished by
or on behalf of any Underwriter consists of the information
described as such in Section 6 hereof.
(h) At the earliest time after the
filing of the Registration Statement that the Company or another
offering participant made a bona fide offer (within the meaning of
Rule 164(h)(2) of the Act Regulations) of the Securities, the
Company was not and is not
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an
Ineligible Issuer (as defined in Rule 405), without taking into
account of any determination by the Commission pursuant to the Rule
405 that it is not necessary that the Company by considered an
Ineligible Issuer.
2.
Purchase and Sale . Subject to the terms and conditions and
in reliance upon the representations and warranties herein set
forth, the Company agrees to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the
Company, at the purchase price set forth in Schedule I
hereto, the respective principal amounts of each of the Securities
set forth opposite each respective Underwriter’s name in
Schedule II hereto.
3.
Delivery and Payment .
(a) Delivery of and payment for
the Securities shall be made at the office, on the date and at the
time specified in Schedule I hereto, which date and time may
be postponed by agreement between the Representatives and the
Company or as provided in Section 7 hereof (such date and time of
delivery and payment for the Securities being called the
“Closing Date”). Delivery of the Securities shall be
made to the Representatives for the respective accounts of the
several Underwriters against payment by the several Underwriters
through the Representatives of the purchase price thereof to or
upon the order of the Company by wire transfer or transfers in
immediately available funds to an account designated by the
Company. The Securities shall be delivered in definitive global
form through the facilities of The Depository Trust
Company.
(b) It is understood that the
several Underwriters propose to offer the Securities for sale to
the public as set forth in the Prospectus.
4.
Agreements .
(A) The
Company agrees with the several Underwriters that:
(a) The Company will file the
Final Prospectus, properly completed, pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed and will
provide evidence satisfactory to the Representatives of such timely
filing. The Company will promptly advise the Representatives (i) of
any receipt by the Company from the Commission of any notice
pursuant to Rule 401(g)(2) of the Act Regulations objecting to use
of the automatic shelf registration statement form with respect to
the Registration Statement, (ii) when, prior to termination of the
offering of the Securities, any amendment to the Registration
Statement relating to the Securities shall have become effective
(if not already effective), (iii) of any request by the Commission
for any amendment of the Registration Statement or amendment of or
supplement to the Final Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or
the institution or threatening of any proceeding for that purpose,
(v) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Securities for sale
in any jurisdiction or the initiation or threatening of any
proceeding for such purpose and (vi)
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when the
Preliminary Prospectus, and any supplement thereto, and any Issuer
Free Writing Prospectus, shall have been filed (if required) by the
Company. The Company will use its commercially reasonable efforts
to prevent the issuance of any such stop order and, if issued, to
obtain as soon as possible the withdrawal thereof. The Company will
not file any amendment to the Registration Statement or supplement
to the Final Prospectus relating to the Securities unless the
Company has afforded you the opportunity to review it prior to
filing and will not file any such proposed amendment or supplement
to which you reasonably and timely object.
(b) If, at any time when a
prospectus relating to the Securities is required to be delivered
under the Act (including in circumstances where such requirement
may be satisfied pursuant to Rule 172), any event occurs as a
result of which the Final Prospectus as then amended or
supplemented would include any untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein in the light of the circumstances under which they were
made not misleading, or if it shall be necessary to amend the
Registration Statement or supplement the Final Prospectus to comply
with the Act or the rules thereunder in any material respect, the
Company will give the Representatives prompt notice of the
occurrence of such event and promptly will prepare and file with
the Commission, subject to the last sentence of paragraph (a) of
this Section 4, an amendment or supplement which will correct such
statement or omission or an amendment which will effect such
compliance.
(c) The Company will make
generally available to its securityholders as soon as practicable,
but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under
the Act) an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act
and the rules thereunder (including, at the option of the Company,
Rule 158).
(d) The Company will furnish to
the Representatives and counsel for the Underwriters, without
charge, copies of the Registration Statement (including exhibits
thereto) and each amendment thereto which shall have become
effective on or prior to the Closing Date (and the Company will
furnish to counsel for the Underwriters a photocopy of one signed
copy of the Registration Statement (including exhibits and
amendments)) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act (including in
circumstances where such requirement may be satisfied pursuant to
Rule 172), as many copies of any Preliminary Prospectus, the Final
Prospectus and each Issuer Free Writing Prospectus and any
amendments thereof and supplements thereto as the Representatives
may reasonably request.
(e) The Company will take such
action as the Representatives may reasonably request to qualify the
Securities for sale under the laws of such jurisdictions as the
Representatives may reasonably request, and to maintain such
qualifications in effect so long as required for the distribution
of the Securities, provided that in connection therewith the
Company shall not be required to qualify to do business in any
jurisdiction or
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to file a
consent or otherwise subject itself to service of process or
taxation in any jurisdiction where it is not already so
subject.
(f) Until the earlier of the day
on which the distribution of the Securities is completed or the
business day following the Closing Date, the Company will not,
without the consent of the Representatives, offer or sell, or
announce the offering of, any debt securities covered by the
Registration Statement or any other registration statement filed
under the Act which mature more than one year after the date hereof
and which are substantially similar to such debt securities, except
any proposed issuances of debt securities with respect to which the
Company has advised the Representatives in writing prior to the
execution hereof.
(g) The Company will not take,
directly or indirectly, any action intended to result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the
Securities.
(h) The Company will prepare a
final term sheet, if required, containing a description of the
Securities, in a form approved by the Representatives and to file
such term sheet pursuant to Rule 433(d) within the time required by
such Rule.
(i) If there occurs an event or
development as a result of which the Disclosure Package would
include an untrue statement of a material fact or would omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances then prevailing, not
misleading, the Company will notify promptly the Representatives so
that any use of the Disclosure Package may cease until it is
amended or supplemented.
(j) If there occurs an event or
development as a result of which an Issuer Free Writing Prospectus
would conflict with the Registration Statement, the Prospectus
Supplement or the Final Prospectus, the Company will notify
promptly the Representatives.
(k) Unless it obtains the prior
written consent of the Representatives, the Company will not make
any offer relating to the Securities that would constitute an
Issuer Free Writing Prospectus or that would otherwise constitute a
Free Writing Prospectus required to be filed by the Company with
the Commission or retained by the Company under Rule 433, other
than the final term sheet prepared and filed pursuant to
Section 4(h) hereto; provided that the prior written consent
of the parties hereto shall be deemed to have been given in respect
of the Issuer Free Writing Prospectus included in
Schedule III hereto. Any such Free Writing Prospectus
consented to by the Representatives is hereinafter referred to as a
“Permitted Free Writing Prospectus.” The Company agrees
that (x) it has treated and will treat, as the case may be,
each Permitted Free Writing Prospectus as an Issuer Free Writing
Prospectus and (y) it has complied and will comply, as the case may
be, with the requirements of Rules 164 and 433 applicable to any
Permitted Free Writing Prospectus, including in respect of timely
filing with the Commission, legending and record
keeping.
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(l) The Company has given the
Representatives notice of any filings made pursuant to the Exchange
Act within 48 hours prior to the Execution Time; the Company will
give the Representatives notice of its intention to make any such
filing from the Execution Time to the Closing Date and will furnish
the Representative(s) with copies of any such documents a
reasonable amount of time prior to such proposed filing.
(B) The
several Underwriters agree with the Company that:
(a) The Company will pay the
expenses of printing and producing all documents relating to the
offering.
(b) The Company will pay the
reasonable fees, expenses and disbursements of outside counsel for
the Company and the Trustee relating to the offering.
(c) The Company will pay any fees
of Moody’s Investors Service, Inc., Standard &
Poor’s Ratings Group, a division of the McGraw-Hill
Companies, Inc. and Fitch Ratings relating to the rating of the
Securities.
(d) The Company will pay the fees
and disbursements of Ernst & Young LLP relating to the
preparation of the letters required by Section 5(e) of this
Agreement.
(e) The several Underwriters will
pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes or resale of any of the Securities by
them and any advertising expenses in connection with any offers
they make.
(f) Unless they obtain the prior
written consent of the Company, the Representatives will not make
any offer relating to the Securities that would constitute an
Issuer Free Writing Prospectus or that would otherwise constitute a
Free Writing Prospectus required to be filed by the Company with
the Commission or retained by the Company under Rule 433, other
than the final term sheet prepared and filed pursuant to Section
4(h) hereto; provided that the prior written consent of the parties
hereto shall be deemed to have been given in respect of the Issuer
Free Writing Prospectus included in Schedule III
hereto.
(C) Each
of the Underwriters severally represents and warrants and agrees as
set forth on Schedule V hereto.
5.
Conditions to the Obligations of the Underwriters . The
obligations of the Underwriters to purchase the Securities shall be
subject to the accuracy in all material respects of the
representations and warranties on the part of the Company contained
herein as of the Execution Time, as of the date of the
effectiveness of any amendment to the Registration Statement filed
prior to the Closing Date (including the filing of any document
incorporated by reference therein) and as of the Closing Date, to
the accuracy in all material respects of the statements of the
Company made in any certificates delivered by the Company pursuant
to the provisions hereof, to the performance in all
material
8
respects by
the Company of its obligations hereunder and to the following
additional conditions:
(a) The Final Prospectus, or any
supplement thereto, shall have been filed in the manner and within
the time period required under Rule 424(b), and any Issuer Free
Writing Prospectus shall have been filed in the manner and within
the time period required by Rule 433; and no stop order
suspending the effectiveness of the Registration Statement, or any
notice that would prevent its use, as amended from time to time,
shall have been issued and no proceedings for that purpose shall
have been instituted or threatened.
(b) The Company shall have
furnished to the Representatives:
(i) the opinion of the General
Counsel, an Associate General Counsel or a Deputy General Counsel
of the Company, or an outside counsel for the Company, dated the
Closing Date, substantially to the effect that:
(A) the Company
has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the State of Delaware, with full
corporate power and authority to own its properties and conduct its
business as described in the Disclosure Package and Final
Prospectus as amended or supplemented, except where such failure
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(B) the
Indenture and the Securities conform in all material respects to
the description thereof contained in the Disclosure Package and the
Final Prospectus;
(C) the
Indenture has been duly authorized, executed and delivered by the
Company, has been duly qualified under the Trust Indenture Act, and
constitutes a legal, valid and binding obligation enforceable
against the Company in accordance with its terms (subject to
applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, arrangement, moratorium and other similar laws
relating to or affecting the rights and remedies of creditors
generally from time to time in effect, and subject to general
principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Securities
have been duly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to
and paid for by the Underwriters pursuant to this Agreement, will
constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture (subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization,
arrangement, moratorium and other similar laws relating to or
affecting the rights and remedies of creditors generally from time
to time in effect, and subject to general principles of equity,
regardless of whether such enforceability is considered in a
proceeding in equity or at law);
9
(D) the
Registration Statement and any amendments thereto have become
effective under the Act; any required filing of the Base
Prospectus, any Issuer Free Writing Prospectus, any Preliminary
Prospectus or the Final Prospectus, and any supplements thereto,
pursuant to Rule 424(b) or Rule 433 has been made in the manner and
within the time period required by Rule 424(b) or Rule 433, as
the case may be; to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement,
as amended, or any notice that would prevent its use has been
issued and no proceedings for that purpose have been instituted or
are pending or contemplated under the Act;
(E) this
Agreement has been duly authorized, executed and delivered by the
Company;
(F) no
authorization, approval or other action by, and no notice to,
consent of, order of, or filing with, any U.S. federal or
California or Delaware governmental authority or agency is required
for the consummation of the transactions contemplated herein,
except such as have been obtained under the Act, the Exchange Act
and the Trust Indenture Act and such as may be required under the
blue sky laws of any jurisdiction in connection with the purchase
and distribution of the Securities and such other approvals
(specified in such opinion) as have been obtained; and
(G) none of
the issue and sale of the Securities, the consummation of any other
of the transactions herein contemplated or the fulfillment of the
terms hereof will conflict with, result in a breach of, or
constitute a default under, the charter or by-laws of the Company
or, to such counsel’s knowledge, the terms of any Material
Agreements, or any material decree or regulation known to such
counsel to be applicable to the Company of any U.S. federal or
California or Delaware court, governmental authority or agency
having jurisdiction over the Company. “Material
Agreements” means all agreements filed as exhibits to the
Company’s most recent Annual Report on Form 10-K pursuant to
clause (10) of paragraph (b) of Item 601 of Regulation S-K (but
only such agreements that continue to be in effect).
Such opinion shall also include a statement that such
counsel has participated in conferences with officers and other
representatives of the Company, counsel for the Company, the
independent accountants of the Company and the Underwriters at
which the Registration Statement, the Disclosure Package and the
Final Prospectus and related matters were discussed and, although
such counsel is not passing upon, and does not assume any
responsibility for, the accuracy, completeness or fairness of the
Registration Statement, the Disclosure Package or the Final
Prospectus or the statements contained therein and has made no
independent check or verification thereof, on the basis of the
foregoing, no facts have come to such counsel’s attention
that has caused such counsel to believe that (i) the Registration
Statement and the Final Prospectus (except the financial statements
and the notes thereto and financial statement schedules and other
information of an accounting, statistical or financial nature
included therein, and the Statement of Eligibility (Form T-1)
included as an exhibit to the Registration Statement, as to which
such counsel need express no view) were not appropriately
responsive in all material
10
respects
with requirements of the Act and the rules thereunder, (ii) the
Registration Statement, as of the most recent Effective Date,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the Final
Prospectus as of its date and on the Closing Date includes any
untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading (in
each case except for the financial statements and the notes thereto
and the financial statement schedules and other information of an
accounting, statistical or financial nature included therein, and
the Statement of Eligibility (Form T-1) included as an exhibit to
the Registration Statement, as to which such counsel need express
no view) and (iii) that the Disclosure Package, considered
together, as of the Applicable Time, contained any untrue statement
of material fact or omitted to state any material fact necessary in
order to make the statements therein, in light of the circumstance
under which they were made, not misleading (except the financial
statements and the notes thereto and financial statement schedules
and other information of an accounting, statistical or financial
nature included therein, as to which such counsel need express no
view).
Any of the statements described above may be omitted from
the opinion of such counsel; provided, however, that in such event
the Company shall also have furnished to the Representatives the
corresponding opinion or statement of Wilson Sonsini Goodrich &
Rosati, Professional Corporation, counsel for the Company,
described in subsection 5(b)(ii) below.
(ii) in the event that any of the
statements described in the foregoing subsection 5(b)(i) are
omitted from the opinion delivered pursuant to such subsection, the
opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, counsel for the Company, dated the Closing Date, to
the effect of the statements so omitted.
In rendering such opinions, such counsel may rely (A) as
to matters involving the application of laws of any jurisdiction
other than the State of California or the United States, to the
extent they deem proper and spec
