EXHIBIT 2.1.10
FORM OF WILSON SONSINI GOODRICH & ROSATI OPINION
May ___, 2000
Chili!Soft, Inc.
13920 SE Eastgate Way, Suite 120
Bellevue, Washington 98005
Ladies and Gentlemen:
We have acted as counsel to Cobalt Networks, Inc., a Delaware corporation
("Parent"), in connection with the merger (the "Merger") of Blue Tortilla
Acquisition Corp., a California corporation and a wholly owned subsidiary of
Parent ("Merger Sub"), with and into Chili!Soft, Inc., a California corporation
("Chili!Soft"), pursuant to the Agreement and Plan of Reorganization by and
among Parent, Merger Sub and Chili!Soft dated as of March 22, 2000 (the
"Acquisition Agreement"). This opinion is furnished to you pursuant to Section
7.2(c) of the Acquisition Agreement. Unless otherwise defined herein, the
capitalized terms used in this opinion have the meanings given to them in the
Acquisition Agreement.
We have acted as counsel for Parent and Merger Sub in connection with the
negotiation of the Acquisition Agreement and the effectuation of the Merger. As
such counsel, we have made such legal and factual examinations and inquiries as
we have deemed advisable or necessary for the purposes of rendering this
opinion. In addition, we have examined originals or copies of documents,
corporate records and other writings, which we consider relevant for the
purposes of this opinion. In such examination, we have assumed the genuineness
of all signatures on original documents, the conformity to original documents of
all copies submitted to us and the due execution and delivery of all documents
by any party other than Parent and Merger Sub where due execution and delivery
are a prerequisite to the effectiveness thereof.
As used in this opinion, the expressions "to our knowledge" or similar
language with reference to matters of fact means that, after an examination of
documents made available to us by Parent and Merger Sub, and after inquiries of
officers of Parent and Merger Sub, but without any further independent factual
investigation, we find no reason to believe that the opinions expressed herein
are factually incorrect. Further, the expression "to our knowledge" with
reference to matters of fact refers to the current actual knowledge of the
attorneys of this firm who have worked on matters for Parent and Merger Sub
solely in connection with the Acquisition Agreement and the transactions
contemplated thereby. Except to the extent expressly set forth herein or as we
otherwise believe to be necessary to our opinion, we have not undertaken any
independent investigation to determine the existence or absence of any fact, and
no inference as to our knowledge of the existence or absence of any fact should
be drawn from our representation of Parent and Merger Sub or the rendering of
the opinions set forth below.
Chili!Soft, Inc.
Page 2
For purposes of this opinion, we are assuming that you have all requisite power
and authority, and have taken any and all necessary corporate action, to execute
and deliver the Acquisition Agreement and we assume that the representations and
warranties made by you in the Acquisition Agreement and pursuant thereto are
true and correct.
The opinions hereinafter expressed are subject to the following
qualifications:
A. We express no opinion as to the effect of rules of law governing
specific performance, injunctive relief or other equitable remedies
(regardless of whether any such remedy is considered in a proceeding
at law or in equity);
B. We express no opinion as to the effect of applicable bankruptcy,
insolvency, reorganization, moratorium and other similar federal or
state laws affecting the rights of creditors;
C. We have assumed that there are no documents, agreements,
understandings or negotiations between or among Chili!Soft, Parent or
Merger Sub, which would expand, modify or otherwise affect the
respective rights and obligations of the parties set forth in the
Acquisition Agreement, the Merger Agreement between Chili!Soft and
Merger Sub (the "Merger Agreement") or the other agreements referred
to therein;
D. We express no opinion as to (i) any registration, qualification, anti-
fraud or other requirements or provisions of applicable federal or
state securities laws, (ii) compliance with federal or state anti-
trust laws, (iii) any consequences under federal, state or local tax
laws, or (iv) the enforceability of any employment or noncompetition
agreement;
E. We express no opinion as to the enforceability of any of the
agreements attached as exhibits to the Acquisition Agreement;
F. We express no opinion as to the enforceability of contractual
provisions that purport to indemnify any party against or to exonerate
or release any party from (i) liability for a party's wrongful or
negligent acts, (ii) liability for attorneys' fees or expenses arising
from or related to such liability or actions or (iii) the
indemnification provisions of Section 5 of the Declaration of
Registration Rights to the extent the provisions thereof may be
subject to limitations of public policy and the effect of applicable
statutes and judicial decisions;
Chili!Soft, Inc.
Page 3
G. We note that Section 10.8 of the Acquisition Agreement selects the
laws of the State of Delaware to govern the Acquisition Agreement and
the laws of the State of California to govern the Merger Agreement. We
express no opinion as to whether the laws of any particular
jurisdiction apply to any of the agreements or other matters addressed
in this opinion. Solely for purposes of this opinion, we have assumed
that the internal laws of the State of California as applied to a
contract made between residents of that state present in that state
when the contract is made (and without regard to principles of
conflicts of law) apply exclusively to govern the Acquisition
Agreement and Merger Agreement;
H. We are members of the Bar of the State of California and we are not
expressing any opinion as to any matter relating to laws of any
jurisdiction other than the laws of the United States of America, the
Delaware General Corporation Law and the laws of the State of
California. We are admitted to practice law only in the State of
California. Accordingly, the opinions expressed herein are limited in
all respects to existing laws of the State of California, applicable
federal laws of the United States and the General Corporation Law of
the State of Delaware. As you know, we are not licensed to practice
law in the State of Delaware, and our opinions as to the General
Corporation Law of the State of Delaware are based solely on our
review of standard compilations of such laws. We have made no inquiry
or confirmation thereof, and we have made no inquiry into, and express
no opinion as to, the statutes, regulations, treaties or common laws
of any other nation, state or jurisdiction, or the effect on the
transactions contemplated in the Acquisition Agreement of non-
compliance under any such statutes, regulations, treaties or common
laws; and
I. Certain assumption and qualifications are implicit in opinions of
attorneys, as referred to in several opinion letter reports of certain
committees of the California State Bar, and the listing of certain
specific qualifications and assumptions in this opinion shall not be
considered to limit or preclude our reliance on other qualifications
and assumptions otherwise deemed to be included by standard practice
of California attorneys. No opinion shall be implied in this letter
beyond the specific statements made herein.
Based upon and subject to the foregoing, and as except as set forth in the
Acquisition Agreement, we are of the opinion that:
1. Parent is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. Merger Sub is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of California. Each of Parent and Merger Sub has the corporate power and
authority to own its properties and to carry on its business as now being
conducted.
Chili!Soft, Inc.
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2. Parent and Merger Sub each have all requisite corporate power and
authority to execute, deliver and perform their respective obligations under the
Acquisition Agreement and the Merger Agreement and to consummate the
transactions contemplated thereby.
3. The execution and delivery of the Acquisition Agreement, the Merger
Agreement and the consummation of the transactions contemplated thereby have
been duly authorized by all necessary corporate action on the part of Parent and
Merger Sub and their respective boards of directors and stockholders. Each of
the Reorganization Agreement and the Merger Agreement has been duly executed and
delivered by Parent and Merger Sub and constitutes a legally valid and binding
obligation of Parent and Merger Sub, enforceable against each of them in
accordance with its terms.
4. The execution and delivery of the Acquisition Agreement and the Merger
Agreement do not, and the consummation of the transactions contemplated thereby
will not, result in any violation of or default (with or without notice or lapse
of time, or both), under any provision of the Certificate of Incorporation or
Bylaws of Parent or the Articles of Incorporation or Bylaws of Merger Sub, or
(ii) to our knowledge, violate any provision of federal, California or Delaware
corporate law applicable to the Parent or Merger Sub. To our knowledge, no
consent, waiver, approval, order or authorization of, or registration, permit,
order, designation, declaration or filing with, any Governmental Entity is
required by or with respect to Parent or Merger Sub in connection with the
execution and delivery of the Acquisition Agreement or the consummation by
Parent and Merger Sub of the transactions contemplated thereby except for (a)
the filing of the Merger Agreement with the Secretary of State of the State of
California or (b) such consents, approvals, orders, authorizations,
registrations, declarations and filings as may be required under applicable
state and federal securities laws.
5. The shares of Parent Common Stock to be issued on conversion of
Company Capital Stock in the Merger and upon exercise of Company Options to be
assumed by Parent pursuant to the Merger will, when issued and delivered in
accordance with the Acquisition Agreement, be duly authorized, validly issued,
fully paid and non-assessable, and free of liens, encumbrances, or preemptive or
similar rights contained in the Certificate of Incorporation or Bylaws of
Parent; provided, however, that such shares are subject to such restrictions as
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are expressly set forth in the Acquisition Agreement and the Affiliate
Agreements, and to restrictions on transfer under applicable state and federal
securities laws.
6. To our knowledge, there is no action, proceeding, or investigation
pending, or as to which Parent has received any notice of assertion against
Parent, before any court or administrative agency that questions the validity of
the Acquisition Agreement or the Merger Agreement.
7. Upon the filing of the Merger Agreement with the California Secretary
of State, the Merger will become effective under the California Corporations
Code.
Chili!Soft, Inc.
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The opinions expressed herein are solely for your benefit in connection
with the above transactions and may not be relied upon in any manner or for any
purpose by any other person. We assume no obligation to inform you of any
facts, circumstances, events or changes in the law that may hereafter be brought
to our attention that may alter, affect or modify the opinion expressed herein.
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation