EXHIBIT 5.01
December 7, 2001
Handspring, Inc.
2831 Mission College Boulevard
Santa Clara, CA 95054
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-3 (File No.
333-73616) (the "REGISTRATION STATEMENT") filed by Handspring, Inc., a Delaware
corporation (the "COMPANY"), on November 19, 2001 and Amendment No. 1 thereto to
be filed by the Company on December 7, 2001, with the Securities and Exchange
Commission (the "COMMISSION") in connection with the registration under the
Securities Act of 1933, as amended (the "SECURITIES ACT") and the proposed
issuance and sale, from time to time by the Company of its (a) secured or
unsecured debt securities in one or more series (the "DEBT SECURITIES"), (b)
shares of Preferred Stock, par value $0.001 per share, in one or more series
(the "PREFERRED STOCK"), (c) shares of Common Stock, par value $0.001 per share
(the "COMMON STOCK"), and (d) warrants to purchase Debt Securities, shares of
Preferred Stock or shares of Common Stock (the "WARRANTS" and, together with the
Debt Securities, the Preferred Stock and the Common Stock, the "SECURITIES"),
having a maximum aggregate public offering price of up to $75,000,000 (or the
equivalent in one or more foreign currencies). The Securities may be sold from
time to time as set forth in the Registration Statement, the prospectus
contained therein (the "PROSPECTUS") and the supplements to the Prospectus (the
"PROSPECTUS SUPPLEMENTS"). We have assumed that if any Debt Securities are
issued, they will only be issued pursuant to an indenture between the Company
and State Street Bank and Trust Company of California, N.A. (the "TRUSTEE") in
the form filed with the Registration Statement as an exhibit.
In rendering this opinion, we have examined the following:
(1) the Second Amended and Restated Certificate of Incorporation of
the Company, as filed with the Delaware Secretary of State on
June 26, 2000;
(2) the Restated Bylaws of the Company, as adopted on May 16, 2000;
(3) the Registration Statement, together with the exhibits filed as a
part thereof;
(4) the Prospectus;
(5) the resolutions of the Company's Board of Directors (the "BOARD")
adopted at a meeting on November 14, 2001, approving the filing
of the Registration Statement and the issuance of up to
$60,000,000 of the Securities, and the action by unanimous
written consent of the Board dated December 6, 2001, approving
the issuance of up to an additional $15,000,000 of the Securities
and establishing a pricing committee of the Board to approve each
sale of Securities and the terms of any such sale;
(6) the forms of Underwriting Agreements for equity and debt
securities;
(7) the forms of Senior Indenture, Senior Debt Security, Subordinated
Indenture and Subordinated Debt Security that were filed with the
Registration Statement;
(8) the forms of certificates of Common Stock and Preferred Stock,
and the standard debt securities and stock warrant provisions;
(9) a statement from the Company as of the date hereof as to the
number of (i) outstanding shares of capital stock, (ii) issued
and outstanding options, warrants and rights to purchase capital
stock, and (iii) any additional shares of capital stock reserved
for future issuance in connection with the Company's stock option
and stock purchase plans and all other plans, agreements or
rights;
(10) a statement from the Company's transfer agent as to the number of
issued and outstanding shares of Common Stock as of the date of
this opinion; and
(11) a Management Certificate addressed to us and dated of even date
herewith executed by the Company containing factual and other
representations.
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 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 documents reviewed by us, and the due
authorization, execution and delivery of all documents where authorization, due
execution and delivery are prerequisites to the effectiveness thereof. We have
also assumed that certificates or instruments representing the Securities will
have been properly signed by authorized officers of the Company or their agents.
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 included in the documents
referred to above and the representations and warranties made by representatives
of the Company to us, including but not limited to those set forth in the
Management Certificate. 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 opinions expressed
herein are not accurate.
We are admitted to practice law in the state of California and this
opinion is rendered only with respect to, and no opinion is expressed herein
concerning the application or effect of the laws of any jurisdiction other than,
(i) the existing laws of the United States of America, (ii) the existing laws of
the state of California, (iii) the Delaware General Corporation Law, the
Delaware Constitution and reported judicial decisions interpreting these laws,
and (iv) solely with respect to whether or not the Debt Securities are the valid
and binding obligations of the Company, the existing laws of the state of New
York.
In connection with our opinion expressed below, we have assumed that, at
or prior to the time of the delivery of the Securities, the Registration
Statement will have been declared effective under the Securities Act of 1933, as
amended, that the registration will apply to the Securities 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 the Securities. We have also
assumed that the terms of any Security to be established subsequent to the date
hereof, the issuance and delivery of such Security and the compliance by the
Company with the terms of such Security will not violate any applicable law
(including, without limitation, any law relating to usury) or result in a
violation of any provision of any instrument or agreement then binding upon the
Company or any restriction imposed by any court or governmental body having
jurisdiction over the Company.
The Company has informed us that the Company intends to issue the
Securities from time to time on a delayed or continuous basis. This opinion is
limited to the laws, including the rules and regulations, as in effect on the
date hereof. We are basing this opinion on our understanding that, prior to
issuing any of the Securities, the Company will advise us in writing of the
terms thereof and other information material thereto, will afford us an
opportunity to review the operative documents pursuant to which such Securities
are to be issued (including the Registration Statement, the Prospectus and the
applicable supplement to the Prospectus, as then in effect) and will file such
supplement or amendment to this opinion (if any) as we may reasonably consider
necessary or appropriate with respect to such Securities. However, we undertake
no responsibility to monitor the Company's future compliance with applicable
laws, rules or regulations of the Commission or other governmental body. In
particular, we assume that the Company will obtain the requisite approval of
its stockholders if required by the laws of the states of California, Delaware
or New York, or if necessary because the Company does not have a sufficient
number of authorized but unissued and unreserved shares of Common Stock and/or
Preferred Stock at the time of each issuance of Securities. We also assume the
Company will timely file any and all supplements to the Registration Statement
and Prospectus as are necessary to comply with applicable laws in effect from
time to time.
This opinion is qualified by, and is subject to, and we render no
opinion with respect to, the following limitations and exceptions to the
enforceability of the Debt Securities and the Warrants to purchase Debt
Securities:
(a) the effect of the laws of bankruptcy, insolvency, reorganization,
arrangement, moratorium, fraudulent conveyance, and other similar
laws now or hereinafter in effect relating to or affecting the
rights and remedies of creditors;
(b) the effect of general principles of equity and similar
principles, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, public
policy and unconscionability, and the possible unavailability of
specific performance, injunctive relief, or other equitable
remedies, regardless of whether considered in a proceeding in
equity or at law; and
(c) the effect of California, New York and federal laws relating to
usury or permissible rates of interest for loans, forebearances
or the use of money.
Based upon the foregoing, we are of the opinion that:
1. When (i) the issuance of the Debt Securities has been duly authorized
by appropriate corporate action of the Company and, if required, its
stockholders, including reservation for future issuance of a sufficient number
of authorized shares of Preferred Stock or Common Stock into which such Debt
Securities may be convertible, (ii) an indenture relating to such Debt
Securities in the form filed with or incorporated by reference into the
Registration Statement as an exhibit has been duly authorized and validly
executed and delivered by each of the Company and the Trustee, (iii) the form
and terms of the Debt Securities have been duly established in accordance with
the indenture pursuant to resolutions duly adopted by the Board and as set forth
in an officer's certificate or supplemental indenture duly authorized by the
Board and duly executed by an authorized officer of the Company, and (iv)
instruments representing such Debt Securities have been duly executed and
authenticated in accordance with the terms of the appropriate indenture and
issued, sold and delivered (A) in the manner and for the consideration stated in
the Registration Statement, the Prospectus and any Prospectus Supplement
relating thereto (as amended as of the date of such issuance, sale and delivery)
and any applicable definitive purchase, underwriting or similar agreement, and
(B) if upon conversion or exercise of any other Security, in accordance with the
terms of such Security or the instrument governing such Security providing for
such conversion or exercise as approved by the Board, for the consideration
approved by the Board and provided for in the terms of such, then the Debt
Securities will be validly issued and will constitute valid and binding
obligations of the Company.
2. When appropriate corporate action has been taken by the Company and
its stockholders (if required), including (i) the approval of the terms of any
particular series of the Preferred Stock and (ii) the authorization of the
execution and filing of a certificate of designation conforming to the Delaware
General Corporation Law regarding such series of the Preferred Stock (the
"CERTIFICATE OF DESIGNATION") with the Delaware Secretary of State, the
Preferred Stock (including any Preferred Stock that may be issuable pursuant to
the conversion of any of the Debt Securities or Warrants) will be duly and
validly authorized; and when (A) the filing of the Certificate of Designation
with the Delaware Secretary of State has duly occurred and has been approved,
(B) shares of such series of the Preferred Stock have been issued, and (C)
certificates representing the shares of Preferred Stock have been duly executed
by the Company, countersigned, registered, sold and delivered (x) in the manner
and for the consideration stated in the Registration Statement, the Prospectus
and any Prospectus Supplement relating thereto (as amended as of the date of
such issuance, sale and delivery) and the applicable definitive purchase,
underwriting or similar agreement, (y) if upon conversion or exercise of any
other Security, in accordance with the terms of such Security or the instrument
governing such Security providing for such conversion or exercise as approved by
the Board, for the consideration approved by the Board and provided for in the
terms of such Security (which consideration is not less than the par value of
the Preferred Stock), and (z) in accordance with the terms of the particular
series as established by the Board or a duly authorized committee of the Board,
then the shares of Preferred Stock will be validly issued, fully paid and
non-assessable.
3. When (i) the issuance of the shares of Common Stock has been duly
authorized by appropriate corporate action of the Company and its stockholders
(if required), the Common Stock (including any Common Stock that may be issuable
pursuant to the conversion of Debt Securities or Preferred Stock or the exercise
of Warrants) will be duly and validly authorized; and when such shares of Common
Stock have been issued and the certificates representing shares of Common Stock
have been duly executed by the Company, countersigned, registered, sold and
delivered (A) in the manner and for the consideration stated in the Registration
Statement, the Prospectus and any Prospectus Supplement relating thereto (as
amended as of the date of such issuance, sale and
delivery) and the applicable definitive purchase, underwriting or similar
agreement, and (B) if upon conversion or exercise of any other Security, in
accordance with the terms of such Security or the instrument governing such
Security providing for such conversion or exercise as approved by the Board, for
the consideration approved by the Board and provided for in the terms of such
Security (which consideration is not less than the par value of the Common
Stock), then the shares of Common Stock will be validly issued, fully paid and
non-assessable.
4. When (i) the issuance of Warrants have been duly authorized by
appropriate corporate action of the Company and its stockholders (if required),
including reservation for future issuance of a sufficient number of authorized
shares of Preferred Stock or Common Stock into which such Warrants may be
exercisable, if and as applicable, (ii) a debt warrant agreement or stock
warrant agreement, as the case may be, relating to such Warrants in the form
filed as an exhibit to the Registration Statement or incorporated by reference
into the Registration Statement has been duly authorized and validly executed
and delivered by the Company and, if applicable, the warrant agent appointed by
the Company, and (iii) such Warrants have been duly executed and authenticated
in accordance with the terms of the appropriate agreement and issued, sold and
delivered in the manner and for the consideration stated in the Registration
Statement, the Prospectus and any Prospectus Supplement relating thereto (as
amended as of the date of such issuance, sale and delivery) and any applicable
definitive purchase, underwriting or similar agreement, then the Warrants will
be validly issued, and solely with respect to Warrants to purchase Debt
Securities, will be valid and binding obligations of the Company.
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, provided
that the conditions set forth in this letter are satisfied, any amendments or
supplements thereto. In giving this consent we do not thereby admit that we come
within the category of persons whose consent is required by the Securities Act
or by the rules and regulations promulgated thereunder.
This opinion is intended solely for use in connection with the issuance
and sale of Securities subject to the Registration Statement and is not to be
relied upon for any other purpose. This opinion speaks as of the date first
above written, and 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,
/s/ Fenwick & West LLP
FENWICK & WEST LLP