0001104659-07-057218.txt : 20070730 0001104659-07-057218.hdr.sgml : 20070730 20070730171305 ACCESSION NUMBER: 0001104659-07-057218 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20070730 DATE AS OF CHANGE: 20070730 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: OPSWARE INC CENTRAL INDEX KEY: 0001100813 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 943340178 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-61417 FILM NUMBER: 071010272 BUSINESS ADDRESS: STREET 1: 599 N MATHILDA AVENUE CITY: SUNNYVALE STATE: CA ZIP: 94086 MAIL ADDRESS: STREET 1: 599 N MATHLIDA AVENUE CITY: SUNNYVALE STATE: CA ZIP: 94086 FORMER COMPANY: FORMER CONFORMED NAME: LOUDCLOUD INC DATE OF NAME CHANGE: 20000912 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: HEWLETT PACKARD CO CENTRAL INDEX KEY: 0000047217 STANDARD INDUSTRIAL CLASSIFICATION: COMPUTER & OFFICE EQUIPMENT [3570] IRS NUMBER: 941081436 STATE OF INCORPORATION: DE FISCAL YEAR END: 1031 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 3000 HANOVER ST STREET 2: MS 1050 CITY: PALO ALTO STATE: CA ZIP: 94304 BUSINESS PHONE: 6508571501 MAIL ADDRESS: STREET 1: 3000 HANOVER ST STREET 2: MS 1050 CITY: PALO ALTO STATE: CA ZIP: 94304 SC 13D 1 a07-20594_1sc13d.htm SC 13D

	UNITED STATES
	SECURITIES AND EXCHANGE COMMISSION
	Washington, D.C. 20549
	SCHEDULE 13D

Under the Securities Exchange Act of 1934
(Amendment No. )*

OPSWARE INC.

(Name of Issuer)

Common Stock, $0.001 par value per share

(Title of Class of Securities)

68383A101

(CUSIP Number)

Hewlett-Packard Company

Charles N. Charnas

Vice President, Deputy General Counsel and Assistant Secretary

3000 Hanover Street

Palo Alto, CA 94304

(650) 857-1501

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

July 20, 2007

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

CUSIP No. 68383A101

	1.	Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) Hewlett-Packard Company (I.R.S. Identification No. 94-1081436)

	2.	Check the Appropriate Box if a Member of a Group (See Instructions)
		(a)			o
		(b)			x

	3.	SEC Use Only

	4.	Source of Funds (See Instructions) OO (See Item 3)

	5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o N/A

	6.	Citizenship or Place of Organization Delaware

Number of Shares Beneficially Owned by Each Reporting Person With			7.	Sole Voting Power 0

			8.	Shared Voting Power 28,928,645 (See Item 5)

			9.	Sole Dispositive Power 0

			10.	Shared Dispositive Power 28,928,645 (See Item 5)

	11.	Aggregate Amount Beneficially Owned by Each Reporting Person 28,928,645 (See Item 5)

	12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o

	13.	Percent of Class Represented by Amount in Row (11) 24.5% (See Item 5)

	14.	Type of Reporting Person (See Instructions) CO

Item 1.	Security and Issuer
This statement relates to shares of common stock of Opsware Inc. (“Opsware”), par value $0.001 per share (the “Shares”). The address and principal executive office of Opsware is 599 N. Mathilda Avenue, Sunnyvale, California 94085.

Item 2.	Identity and Background
This statement is being filed on behalf of Hewlett-Packard Company, a Delaware corporation (“HP”). The principal executive offices of HP are located at 3000 Hanover Street, Palo Alto, CA 94304. HP’s principal line of business is providing technology solutions to consumers, businesses and institutions globally. Attached as Schedule I, and incorporated herein by reference, is a chart setting forth, with respect to each executive officer, director and controlling person of HP, his or her name, residence or business address and present principal occupation or employment (along with the name, principal business and address of any corporation or other organization in which such employment is conducted), in each case as of the date hereof. During the last five years, neither HP nor, to the best knowledge of HP, any executive officer, director or controlling person of HP named on Schedule I have been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). During the last five years, neither HP nor, to the best knowledge of HP, any of the persons named on Schedule I is or has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. To the best knowledge of HP, other than Sari M. Baldauf and Catherine A. Lesjak, each executive officer, director or controlling person of HP is a citizen of the United States. Ms. Lesjak is a citizen of Canada and Ms. Baldauf is a citizen of Finland.

Item 3.	Source and Amount of Funds or Other Consideration
Pursuant to, and subject to the terms and conditions contained in, the Support Agreements described in Item 4, HP may be deemed to have acquired beneficial ownership of the Subject Shares (as defined below) by virtue of entering into the Support Agreements with certain stockholders of Opsware. HP has not paid any consideration to such stockholders in connection with the execution and delivery of the Support Agreements described under Item 4 of this statement.

Item 4.	Purpose of Transaction
On July 20, 2007, HP, Orca Acquisition Corporation, a newly formed Delaware corporation and wholly owned subsidiary of HP (“Purchaser”), and Opsware entered into an Agreement and Plan of Merger (the “Merger Agreement”). Upon the terms and subject to the conditions set forth in the Merger Agreement, Purchaser, as promptly as practicable after the date of the Merger Agreement (and in any event within ten (10) business days), will commence a cash tender offer (the “Offer”) to purchase all outstanding Shares at a price of $14.25 per share (the “Offer Price”), net to the seller in cash. Following the completion of the Offer and the satisfaction or waiver of the conditions to the Merger set forth in the Merger Agreement, (i) Purchaser will be merged under Delaware law into Opsware (the “Merger”), with Opsware being the surviving corporation, (ii) each Share that is not tendered and accepted pursuant to the Offer (other than Shares owned by HP or Opsware or any of their respective wholly owned subsidiaries) will be converted into the right to receive in cash an amount per share equal to the Offer Price and (iii)

each share of common stock, par value $0.001 per share, of Purchaser that is issued and outstanding immediately prior to the Merger will be converted into one share of common stock, par value $0.001 per share, of the surviving corporation. The Offer, the Merger and the other transactions contemplated by the Merger Agreement are subject to the satisfaction or waiver of certain conditions, including receipt of regulatory approvals, as set forth in the Merger Agreement. The Merger Agreement is attached as Exhibit 1 hereto and is incorporated herein by reference.

The purpose of the Offer and the Merger is to enable HP to acquire control of Opsware by acquiring all of the outstanding Shares. Concurrently with the execution and delivery of the Merger Agreement, and as a condition and inducement to the willingness of HP and Purchaser to enter into the Merger Agreement, certain directors and executive officers of Opsware (and certain trust and limited partnership entities affiliated with certain of such persons) (the “Stockholders”), in their capacity as stockholders of Opsware, entered into Tender and Stockholder Support Agreements (collectively, the “Support Agreements”) with HP and Purchaser, a copy of the form of which is attached hereto as Exhibit 2 and is incorporated herein by reference. Pursuant to the Support Agreements and as more fully described therein, each Stockholder, among other things, (i) agreed to tender into the Offer, and not withdraw, all Shares of which he or she is the beneficial owner (including Shares subsequently received due to the exercise of options or otherwise) or has the sole right to vote and dispose, and any Shares over which such Stockholder subsequently acquires beneficial ownership (the “Subject Shares”), (ii) agreed to vote any of his or her Subject Shares (A) in favor of the Merger (including the adoption of the Merger Agreement); and (B) against any action or agreement which would materially impede or interfere with, or prevent, the Merger, including, but not limited to, any other extraordinary corporate transaction, including, a merger, acquisition, sale, consolidation, reorganization or liquidation involving Opsware and a third party, or any other Acquisition Transaction proposed by a third party, (iii) subject the Subject Shares to certain transfer restrictions and (iv) agreed that his or her representatives would not solicit, initiate, knowingly encourage, or knowingly facilitate (including by way of furnishing non-public information) any inquiries or the making or submission of, any offer, proposal or indication of interest that constitutes or would reasonably be expected to lead to an Acquisition Proposal. “Acquisition Proposal” means any inquiry, offer, proposal or indication of interest, whether or not in writing, as the case may be, by any Person that relates to an Acquisition Transaction. “Acquisition Transaction” means any transaction or series of related transactions (other than the transactions contemplated by the Merger Agreement) involving (i) any merger, consolidation, recapitalization, liquidation or other direct or indirect business combination involving Opsware pursuant to which the stockholders of Opsware immediately preceding such transaction would hold less than eighty-five percent (85%) of the equity or voting securities of the surviving or resulting entity of such transaction, (ii) the issuance or acquisition, directly or indirectly, of shares of any class of capital stock or other equity securities of (A) Opsware representing more than fifteen percent (15%) (by ownership or voting power) of the outstanding shares of any class of capital stock of Opsware by any person or “group” (as defined under Section 13(d) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Act”)) or (B) any Opsware subsidiary or subsidiaries whose assets constitute fifteen percent (15%) or more of the assets of Opsware and its subsidiaries, taken as a whole, (iii) any tender or exchange offer that if consummated would result in any person or “group” (as defined under Section 13(d) of the Act) beneficially owning shares of any class of capital stock or other equity securities of Opsware representing more than fifteen percent (15%) (by ownership or voting power) of the outstanding shares of any class of capital stock of Opsware, (iv) the acquisition, license, lease, purchase or other disposition of assets that constitute fifteen percent (15%) or more of the total assets (including equity securities of subsidiaries) of Opsware and its subsidiaries, taken as a whole, other than transactions in the ordinary course of business or consistent with past practice, or (v) any combination of the foregoing. The Support Agreements terminate when and if the Merger Agreement is terminated without the consummation of the Merger.

HP did not pay any additional consideration to the Stockholders in connection with the execution and delivery of the Support Agreements. The purpose of the Support Agreements is to increase the likelihood that the Offer and the Merger will be consummated.

Pursuant to the terms of the Merger Agreement, following the acceptance for payment by Purchaser pursuant to the Offer of more than fifty percent (50%) of the outstanding Shares, and at all times thereafter, Purchaser shall be entitled to elect or designate such number of directors, rounded up to the next whole number, of

the Board of Directors of Opsware as is equal to the product of the total number of directors on the Opsware Board of Directors (giving effect to the directors elected or designated by Purchaser pursuant to this sentence) multiplied by the percentage that the aggregate number of Shares beneficially owned by HP, Purchaser and any of its affiliates bears to the total number of Shares then outstanding. However, notwithstanding the foregoing, in no event shall Purchaser be entitled to elect or designate a majority of the Opsware Board of Directors unless it is the beneficial owner of Shares entitling it to exercise at least a majority of the voting power of the outstanding Shares. Upon consummation of the Merger, the directors and officers of Purchaser shall be appointed as the directors and officers, respectively, of Opsware until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with Opsware’s certificate of incorporation and bylaws. Thereafter, HP intends to integrate Opsware's business and operations with those of HP under the direction of HP’s management. In addition, the Certificate of Incorporation and Bylaws of Opsware will be amended and restated to become the Certificate of Incorporation and Bylaws of Purchaser. Upon the consummation of the Offer, the Shares may become eligible for termination of registration pursuant to Section 12(g)(4) of the Act, and HP may cause them to be deregistered. Upon the consummation of the Merger, the Shares will become eligible for such deregistration and HP will cause them to be deregistered. Other than as described in this Item 4, HP currently has no plans or proposals which relate to, or may result in, any of the matters listed in Items 4(a)-(j) of Schedule 13D. HP intends to continue to review Opsware and its assets, corporate structure, dividend policy, capitalization, operations, properties, policies, management and personnel, and to further consider, following consummation of the Offer and the appointment of directors to the Opsware Board of Directors, whether any changes would be desirable in light of the circumstances then existing, and reserves the right to take such actions or effect such changes as it deems desirable.

Item 5.	Interest in Securities of the Issuer
(a) Not including Shares that the Stockholders may subsequently receive due to the exercise of options, as a result of entering into the Support Agreements, as of July 20, 2007, HP may be deemed to have acquired beneficial ownership of an aggregate of 16,756,791 Shares that were either owned by the Stockholders or over which the Stockholders had the power to vote and dispose. Such Shares represented approximately 15.8% of the outstanding Shares that were deemed to be outstanding for purposes of calculating the beneficial ownership of HP under Section 13(d) of the Act. Including Shares that the Stockholders may subsequently receive due to the exercise of options, as a result of entering into the Support Agreements, as of July 20, 2007, HP may be deemed to have acquired beneficial ownership of an aggregate of 28,928,645 Shares that were either owned by the Stockholders or over which the Stockholders had the power to vote and dispose. Such Shares represented approximately 24.5% of the outstanding Shares that were deemed to be outstanding for purposes of calculating the beneficial ownership of HP under Section 13(d) of the Act. All percentages of Shares beneficially owned described in this statement are based upon 105,811,082 Shares outstanding as of July 16, 2007. HP directly owns no Shares. See the description set forth under Item 4 of this statement, which is incorporated herein by reference. (b) HP may be deemed to share with the signatories of the Support Agreements the power to vote the Subject Shares solely with respect to those matters described in Item 4 of this statement and in the Support Agreements, which are incorporated herein by reference.

HP also may be deemed to share with the signatories of the Support Agreements the power to dispose of the Subject Shares subject thereto solely to the extent that the Support Agreements restrict the ability of the Stockholders to transfer the Subject Shares, as more fully described in Item 4 of this statement and in the Support Agreements, which are incorporated herein by reference. Except as described herein, HP is not entitled to any rights as a stockholder of Opsware in respect of the Subject Shares, and, therefore, HP disclaims beneficial ownership of the Subject Shares. To the knowledge of HP, none of the persons set forth on Schedule I hereto beneficially owns any Shares. (c) To the knowledge of HP, no transactions in Shares have been effected during the past 60 days by either HP or any person set forth on Schedule I hereto. (d) To the knowledge of HP, no other person has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, Shares. (e) Not applicable.

Item 6.	Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
Except as set forth in Item 4, neither HP nor, to the best knowledge of HP, any person set forth on Schedule I hereto, has any contracts, arrangements, understandings or relationships (legal or otherwise) with any other person with respect to any securities of Opsware or its subsidiaries.

Item 7.	Material to Be Filed as Exhibits
1. Agreement and Plan of Merger, dated as of July 20, 2007, by and among HP, Purchaser and Opsware (incorporated by reference to Exhibit 99.1 to the Current Report on Form 8-K filed by HP on July 23, 2007). 2. Form of Tender and Stockholder Support Agreements. HP and Purchaser entered into Tender and Stockholder Support Agreements, dated as of July 20, 2007, with each of Marc L. Andreessen, Jordan J. Breslow, William V. Campbell, David F. Conte, Mark Cranney, Sachin Gupta, Tim Howes, Benjamin A. Horowitz, Simon M. Lorne, Michael S. Ovitz, Sharmila N. Shahani, John L. O’Farrell and Michelangelo A. Volpi, and certain trust and limited partnership entities affiliated with certain of such persons.

Signature

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Date: July 30, 2007	HEWLETT-PACKARD COMPANY


	/s/ Charles N. Charnas
	Charles N. Charnas
	Vice President, Deputy General Counsel
	and Assistant Secretary

Schedule I

The following table sets forth the names, principal occupations and five-year employment histories of the directors and executive officers of HP. The business address for each person is 3000 Hanover Street, Palo Alto, California 94304.

Name	Age	Current Principal Occupation or Employment and Five-Year Employment History

Directors:

Lawrence T. Babbio, Jr.	62	Mr. Babbio served as Vice Chairman and President of Verizon Communications, Inc. (formerly Bell Atlantic Corporation), a telecommunications company, from 2000 until his retirement in the first quarter of 2007. He was a director of Compaq Computer Corporation from 1995 until HP’s acquisition of Compaq in May 2002.

Sari M. Baldauf	51	Ms. Baldauf served as Executive Vice President and General Manager of the Networks business group of Nokia Corporation, a communications company, from July 1998 until February 2005. She previously held various positions at Nokia since 1983. Ms. Baldauf also serves as a director at SanomaWSOY, a director of F-Secure Corporation, a director of VIT Corporation, the non-executive chairman of the Savonlinna Opera Festival and a member of the Global Board of the International Youth Foundation.

Richard A. Hackborn	70	Mr. Hackborn has served as HP’s lead independent director since September 2006. Previously, Mr. Hackborn served as HP’s Chairman of the Board from January 2000 to September 2000. He was HP’s Vice President, Computer Products Organization from 1990 until his retirement in 1993 after a 33-year career with HP.

John H. Hammergren	48	Mr. Hammergren has served as Chairman of McKesson Corporation, a healthcare services and information technology company, since July 2002 and as President and Chief Executive Officer of McKesson since April 2001. From July 1999 to April 2001, Mr. Hammergren served as Co-President and Co-Chief Executive Officer of McKesson. Mr. Hammergren is also a director of Nadro, S.A. de C.V. (Mexico) and Verispan LLC.

Mark V. Hurd*	50	Mr. Hurd has served as Chairman of HP since September 2006 and as Chief Executive Officer, President and a member of the Board since April 1, 2005. Prior to that, he served as Chief Executive Officer of NCR Corporation, a technology company, from March 2003 to March 2005 and as President from July 2001 to March 2005. From September 2002 to March 2003 Mr. Hurd was the Chief Operating Officer of NCR, and from July 2000 until March 2003 he was Chief Operating Officer of NCR’s Teradata data-warehousing division.

Joel Z. Hyatt	57	Mr. Hyatt has served as the Chief Executive Officer of Current Media, LLC, a cable and satellite television company, since September 2002. From September 1998 to June 2003, Mr. Hyatt was a Lecturer in Entrepreneurship at the Stanford University Graduate School of Business. Previously, Mr. Hyatt was the founder and Chief Executive Officer of Hyatt Legal Plans, Inc.,

Name	Age	Current Principal Occupation or Employment and Five-Year Employment History

		a provider of employer-sponsored group legal plans.

John R. Joyce	53	Mr. Joyce has served as a Managing Director at Silver Lake since July 2005. From 1975 to July 2005, Mr. Joyce served in multiple roles for IBM, a global technology firm, including Senior Vice President and Group Executive of the IBM Global Services division; Chief Financial Officer; President, IBM Asia Pacific; and Vice President and Controller for IBM’s global Operations. He is also a director of Gartner, Inc., Avago Technologies Limited and Serena Software, Inc.

Robert L. Ryan	64	Mr. Ryan served as Senior Vice President and Chief Financial Officer of Medtronic, Inc., a medical technology company, from 1993 until his retirement in May 2005. He also is a director of UnitedHealth Group Incorporated, General Mills, Inc. and The Black and Decker Corporation and Citigroup, Inc..

Lucille S. Salhany	61	Ms. Salhany has served as President and Chief Executive Officer of JHMedia, a consulting company, since 1997. Since 2003, she has been a partner and director of Echo Bridge Entertainment, an independent film distribution company. From 1999 to March 2002, she was President and Chief Executive Officer of LifeFX Networks, Inc., which filed for federal bankruptcy protection in May 2002. From 1994 to 1997, Ms. Salhany was the Chief Executive Officer and President of UPN (United Paramount Network), a broadcasting company. From 1993 to 1994, she was Chairman of Fox Broadcasting Company, a national television network, and from 1991 to 1993 she was Chairman of Twentieth Television, a division of Fox Broadcasting Company. Ms. Salhany was a director of Compaq from 1997 until HP’s acquisition of Compaq in May 2002. Ms. Salhany is also a director of Ion Media Networks, Inc.

G. Kennedy Thompson	56	Mr. Thompson has served as Chairman of the Board of Wachovia Corporation, a financial services company, since February 2003 and as a director since 1999. He has also served as Chief Executive Officer of Wachovia since April 2000 and as President since 1999. Mr. Thompson also is a director of Wachovia Preferred Funding Corp.

Executive Officers:

R. Todd Bradley	48	Mr. Bradley was elected Executive Vice President in June 2005. From October 2003 to June 2005, he served as the Chief Executive Officer of palmOne Inc., a mobile computing company. Mr. Bradley also served as President and Chief Operating Officer of palmOne from May 2002 until October 2003, and from June 2001 to May 2002 he served as Executive Vice President and Chief Operating Officer of palmOne.

Charles N. Charnas	49	Mr. Charnas was elected Assistant Secretary in 1999. He was appointed Vice President and Deputy General Counsel in 2002. Since 1999, he has headed the Corporate, Securities and Mergers and Acquisitions Section of HP’s worldwide legal department. From September 2006 through February 2007, Mr. Charnas also served as Acting General of HP. Mr. Charnas is not an executive officer for

Name	Age	Current Principal Occupation or Employment and Five-Year Employment History

		purposes of Section 16 of the Securities Exchange Act of 1934.

Jon E. Flaxman	50	Mr. Flaxman has served as Executive Vice President and Chief Administrative Officer since March 2007. He served as Principal Accounting Officer from February 2005 until February 2007. He was elected Senior Vice President in 2002 after serving as Vice President and Controller since May 2001.

Michael J. Holston	44	Mr. Holston has served as Executive Vice President and General Counsel since February 2007 and as Secretary since March 2007. Prior to that, he was a partner in the litigation practice at Morgan, Lewis & Bockius LLP, where, among other clients, he supported HP as external counsel on a variety of litigation and regulatory matters for more than ten years.

Vyomesh Joshi	53	Mr. Joshi was elected Executive Vice President in 2002 after serving as Vice President since January 2001. He became President of the Imaging and Printing Group in February 2001. Mr. Joshi also served as Chairman of Phogenix Imaging LLC, a joint venture between HP and Kodak, from 2000 until May 2003, when Phogenix was dissolved and Controller from 2002 until February 2007. Mr. Joshi also is a director of Yahoo! Inc.

Catherine A. Lesjak	48	Ms. Lesjak has served as Executive Vice President and Chief Financial Officer since January 2007. She was elected Senior Vice President and Treasurer in 2003. From May 2002 to July 2003, she was Vice President of Finance for Enterprise Marketing and Solutions and Vice President of Finance for the Software Global Business Unit. From June 2000 to May 2002, Ms. Lesjak was Controller for the Software Solutions Organization.

Ann M. Livermore	47	Ms. Livermore was elected Executive Vice President in 2002 after serving as Vice President since 1995. Since May 2004, she has led the Technology Solutions Group. In April 2001, she became President of HP Services. In October 1999, she became President of the Business Customer Organization. Ms. Livermore also is a director of United Parcel Service, Inc.

John N. McMullen	48	Mr. McMullen has served as Senior Vice President and Treasurer since March 2007. Previously, he served as Vice President of Finance for HP’s Imaging and Printing Group since May 2002.

Randall D. Mott	51	Mr. Mott was elected Executive Vice President and Chief Information Officer in July 2005. From 2000 to June 2005, Mr. Mott was Senior Vice President and Chief Information Officer of Dell Inc., a technology company.

James T. Murrin	46	Mr. Murrin has served as Senior Vice President, Controller and Principal Accounting Officer since March 2007. Previously, he served as Vice President of Finance for HP’s Technology Solutions Group since 2004. Prior to that, Mr. Murrin held various other finance positions at HP since joining the company in 1989.

Marcela Perez de Alonso	53	Ms. Perez de Alonso was elected Executive Vice President, Human Resources in January 2004. From 1999 until she joined HP in January 2004, Ms. Perez de Alonso was Division Head of Citigroup North Latin America Consumer Bank, in charge of the retail business operations of Citigroup in Puerto Rico, Venezuela, Colombia, Peru, Panama, the Bahamas and the Dominican Republic and also in charge of deposit products for the international retail bank until 2002.

Shane V. Robison	53	Mr. Robison has served as Executive Vice President and Chief Strategy and Technology Officer since May 2002. He was elected Senior Vice President in 2002 in connection with HP’s acquisition of Compaq. Prior to joining HP, Mr. Robison served as Senior Vice President, Technology and Chief Technology Officer at Compaq from 2000 to May 2002.

*Serves as both an executive officer and director of HP.

EX-2 2 a07-20594_1ex2.htm EX-2

Exhibit 2

TENDER AND STOCKHOLDER SUPPORT AGREEMENT

This TENDER AND STOCKHOLDER SUPPORT AGREEMENT (this “Agreement”), dated July 20, 2007, is by and among Hewlett-Packard Company, a Delaware corporation (“Parent”), Orca Acquisition Corporation, a Delaware corporation (“Purchaser”), and certain stockholders of Opsware Inc., a Delaware corporation (the “Company”), set forth on Schedule I hereto (each a “Stockholder” and, collectively the “Stockholders”).

WHEREAS, Parent, Purchaser and the Company propose to enter into an Agreement and Plan of Merger, dated as of the date hereof (the “Merger Agreement”), which provides, among other things, for Purchaser to commence a tender offer for all of the issued and outstanding Common Stock (as defined below) of the Company (the “Offer”) and the merger of Purchaser with and into the Company, with the Company continuing as the surviving corporation (the “Merger”), upon the terms and subject to the conditions set forth in the Merger Agreement (capitalized terms used herein without definition shall have the respective meanings specified in the Merger Agreement);

WHEREAS, each Stockholder beneficially owns the number of shares of common stock, par value $0.001 per share, of the Company (the “Common Stock”) set forth opposite the name of such Stockholder on Schedule I hereto (such shares of Common Stock, together with any other shares of capital stock of the Company acquired (whether held beneficially or of record) by such Stockholder after the date hereof and prior to the earlier of the Effective Time and the termination of all of the Stockholder’s obligations under this Agreement, including any shares of Common Stock acquired by means of purchase, dividend or distribution, or issued upon the exercise of any warrants or options, or the conversion of any convertible securities or otherwise, being collectively referred to herein as the “Shares”); and

WHEREAS, as a condition to the willingness of Parent and Purchaser to enter into the Merger Agreement and as an inducement and in consideration therefor, the Stockholders have agreed to enter into this Agreement.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements set forth herein and in the Merger Agreement, and intending to be legally bound hereby, the parties hereto agree as follows:

SECTION 1. Representations and Warranties of the Stockholders. Each Stockholder hereby represents and warrants to Parent and Purchaser, severally and not jointly, and solely as to itself and its Shares, as follows:

(a) The Stockholder (i) is the beneficial owner, and has good and marketable title to, the Shares set forth opposite such Stockholder’s name on Schedule I hereto, free and clear of any and all liens, claims, security interests, proxies, voting trusts or agreements, options, rights, understandings or arrangements or any other encumbrances whatsoever on title, transfer, or exercise of any rights of a stockholder in respect of such Shares (collectively, “Encumbrances”) except any Encumbrances arising under securities laws or arising hereunder; (ii) does not own, of record or beneficially, any shares of capital stock of the Company (or rights to acquire any such shares) other than the Shares set forth on Schedule I hereto); and (iii) has the right to vote and dispose of and holds power to issue instructions with respect to the matters set forth in Sections 3, 4 and 5 hereof, power of conversion, power to demand appraisal rights and power to agree to all of the matters set forth in this Agreement, in each case with respect to all of such Stockholder’s Shares, with no material limitations, qualifications or restrictions on such rights, subject to applicable federal securities law and the terms of this Agreement.

(b) In the case of any Stockholder that is a corporation, limited partnership or limited liability company, such Stockholder is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or constituted.

(c) The Stockholder has the legal capacity and all requisite power and authority to execute and deliver this Agreement and to perform the Stockholder’s obligations hereunder and consummate the transactions contemplated hereby. To the extent applicable, the execution, delivery and performance by the Stockholder of this Agreement and the consummation by the Stockholder of the transactions contemplated hereby have been duly and validly authorized by the Stockholder (or its board of directors or similar governing body, as applicable), and no other actions or proceedings on the part of the Stockholder are necessary to authorize the execution and delivery by the Stockholder of this Agreement and the consummation by the Stockholder of the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by the Stockholder and constitutes a valid and binding obligation of the Stockholder enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law).

(d) Neither the execution and delivery of this Agreement by the Stockholder, the performance by the Stockholder of such Stockholder’s obligations hereunder nor the consummation by the Stockholder of the transactions contemplated hereby will (i) result in a violation or breach of, or constitute (with or without notice or lapse of time or both) a default under, or conflict with (A) to the extent applicable, any provisions of the organizational documents of the Stockholder or (B) any contract, trust, commitment, agreement, understanding, arrangement or restriction of any kind to which such Stockholder is a party or by which such Stockholder’s Shares are bound, or (ii) violate, or require any consent, approval, or notice under, any provision of any judgment, order, decree, statute, law, rule or regulation applicable to such Stockholder or any of such Stockholder’s Shares.

SECTION 2. Representations and Warranties of Parent and Purchaser. Each of Parent and Purchaser hereby, jointly and severally, represents and warrants to the Stockholders as follows:

(a) Each of Parent and Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated, and each of Parent and Purchaser has all requisite corporate power and corporate authority to execute and deliver this Agreement and to perform its obligations hereunder and consummate the transactions contemplated hereby, and has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement.

(b) This Agreement has been duly authorized, executed and delivered by each of Parent and Purchaser and constitutes a valid and binding obligation of Parent and Purchaser enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law).

(c) Neither the execution and delivery of this Agreement by Parent and Purchaser, the performance by Parent and Purchaser of their obligations hereunder nor the consummation by Parent and Purchaser of the transactions contemplated hereby will (i) result in a violation or breach of, or constitute (with or without notice or lapse of time or both) a default under, or conflict with (A) any provisions of the organizational documents of Parent or Purchaser or (B) any contract, trust, commitment, agreement, understanding, arrangement or restriction of any kind to which such Parent or Purchaser is a party or by which Parent or Purchaser or their assets are bound, or (ii) violate, or require any consent, approval, or notice under, any provision of any judgment, order, decree, statute, law, rule or regulation applicable to Parent or Purchaser or their assets.

SECTION 3. Tender of the Shares.

(a) Unless this Agreement shall have been terminated in accordance with its terms, and subject to Section 4, each Stockholder hereby agrees that it shall (i) tender its Shares (and deliver any certificates evidencing such Shares or an appropriate affidavit of lost certificate with respect thereto to the extent any of such certificates have been lost, misplaced or destroyed), or cause its Shares to be tendered, into the Offer promptly following the date hereof, and in any event no later than five business days prior to the Initial Expiration Date of the Offer, free and clear of all Encumbrances and (ii) not withdraw its Shares, or cause its Shares to be withdrawn, from the Offer at any time. If a Stockholder acquires Shares after the date hereof, such Stockholder shall (A) tender or cause to be tendered such Shares on or before the fifth business day prior to the Initial Expiration Date or, if later, on or before the second business day after such acquisition but in any event prior to the Expiration Date, and (B) not withdraw such Shares, or cause such Shares to be withdrawn, from the Offer at any time.

SECTION 4. Transfer of the Shares; Other Actions.

(a) Prior to the termination of this Agreement, except as otherwise provided herein (including pursuant to Section 3 hereof), each Stockholder shall not: (i) transfer, assign, sell, gift-over, pledge or otherwise dispose (whether by sale, merger, consolidation, liquidation, dissolution, dividend, distribution or otherwise) of, or consent to any of the foregoing (“Transfer”), any Shares or any right or interest therein; (ii) enter into any contract, option or other agreement, arrangement or understanding with respect to any Transfer of Shares; (iii) grant any proxy or power-of-attorney with respect to any of the Shares; (iv) deposit any of the Shares into a voting trust, or enter into a voting agreement or arrangement with respect to any of the Shares; or (v) take any other action that would restrict, limit or interfere in any material respect with the performance of such Stockholder’s obligations hereunder or the transactions contemplated hereby. Notwithstanding the foregoing, the preceding sentence shall not prohibit a Transfer of Shares by Stockholder: (A) if Stockholder is an individual, to any member of Stockholder’s immediate family, or to a trust established for the benefit of Stockholder and/or for the benefit of one or more members of Stockholder’s immediate family or established for charitable purposes, or upon the death of Stockholder, or (B) if Stockholder is a partnership, limited liability company or trust, to one or more partners or members of Stockholder or to an affiliated corporation under common control with Stockholder or to any trustee or beneficiary of the trust, provided that any Transfer permitted pursuant to (A) or (B) above shall be permitted only if, as a precondition to such transfer, the transferee of such Shares agrees in writing with Parent to be bound by the terms and conditions of this Agreement.

SECTION 5. Covenant to Vote. Prior to termination of this Agreement in accordance with its terms, each Stockholder hereby agrees to vote all Shares beneficially owned by such Stockholder (the “Vote Shares”), or to provide a written consent in respect of the Vote Shares, in connection with any meeting of the stockholders of the Company or any action by written consent in lieu of a meeting of stockholders of the Company (i) in favor of the Merger (including adoption of the Merger Agreement) and/or (ii) against any action or agreement which would materially impede or interfere with, or prevent, the Merger, including, but not limited to, any other extraordinary corporate transaction, including, a merger, acquisition, sale, consolidation, reorganization or liquidation involving the Company and a third party, or any other Acquisition Transaction proposed by a third party.

SECTION 6. Non-Solicitation.

(a) Each Stockholder shall not and shall not authorize or permit its representatives to directly or indirectly (i) solicit, initiate, knowingly encourage, or knowingly facilitate (including by way of furnishing non-public information) any inquiries or the making or submission of, any offer, proposal or indication of interest that constitutes or would reasonably be expected to lead to an Acquisition Proposal, (ii) participate or engage in any discussions or negotiations with, or disclose or provide any non-public information or data relating to the Company or any Company Subsidiary or afford access to

the properties, assets, books or records or employees of the Company or any Company Subsidiary to any Third Party relating to, or that would reasonably be expected to lead to, an Acquisition Proposal, (iii) accept, approve, endorse or recommend an Acquisition Proposal or (iv) enter into any agreement, arrangement, undertaking, contract, commitment or understanding (including any agreement in principle or letter of intent or understanding) with respect to or contemplating an Acquisition Proposal; provided however that, with respect to an Acquisition Proposal that the Company Board of Directors has determined to constitute, or be likely to lead to, a Superior Proposal in accordance with Section 5.2(b) of the Merger Agreement, the Stockholder may (A) furnish information with respect to the Company and Company Subsidiaries to a Third Party in connection with such Acquisition Proposal; provided, that a copy of all such information is delivered simultaneously to Parent to the extent it has not previously been so furnished to Parent and (B) participate in discussions or negotiations with such Third Party regarding such Acquisition Proposal, in each case if and only to the extent the Company is engaged in such activities with such Third Party in compliance with the terms of the Merger Agreement.

(b) It is understood that this Section 6 limits the rights of each Stockholder only to the extent that such Stockholder is acting in such Stockholder’s capacity as a Stockholder. Nothing herein shall be construed as preventing a Stockholder, or a director, officer or employee of a Stockholder or Affiliate of a Stockholder, who is an officer or director of the Company from fulfilling the obligations of such office (including the performance of obligations required by the fiduciary obligations of such Stockholder, or director, officer or employee of a Stockholder or Affiliate of a Stockholder, acting solely in his or her capacity as an officer or director of the Company).

SECTION 7. Further Assurances. Each Stockholder shall, upon request of Parent or Purchaser, execute and deliver any additional documents and take such further actions as may reasonably be deemed by Parent or Purchaser to be necessary or desirable to carry out the provisions of this Agreement.

SECTION 8. Termination. This Agreement, and all rights and obligations of the parties hereunder shall terminate on the earlier of: (a) the date the Merger Agreement is validly terminated in accordance with its terms, (b) the Effective Time and (c) with respect to any Stockholder, such date and time as any amendment or change to the Merger Agreement or the Offer that decreases the Offer Price is effected without the consent of such Stockholder. Termination of this Agreement shall not relieve any party from liability for any breach hereof prior to such termination. Section 10 and Section 12 shall survive any termination of this Agreement.

SECTION 9. Waiver of Appraisal and Dissenter’s Rights. Each Stockholder waives and agrees not to exercise any rights of appraisal, rights to dissent or similar rights with respect to the Merger or other transactions contemplated by the Merger Agreement that the Stockholder may have with respect to the Stockholder’s Shares pursuant to applicable law.

SECTION 10. Expenses. All fees, costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such fees, costs and expenses.

SECTION 11. Stop Transfer Order; Legend. In furtherance of this Agreement, concurrently herewith, each Stockholder shall, and hereby does authorize the Company or its counsel to, notify the Company’s transfer agent that there is a stop transfer order with respect to all of the Shares of such Stockholder (and that this Agreement places limits on the voting and transfer of such Shares).

SECTION 12. Miscellaneous.

(a) Notices. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally, telecopied (which is confirmed) or sent by a nationally recognized

overnight courier service, such as Fedex (providing proof of delivery), to the parties at the following addresses (or at such other address for a party as shall be specified by like notice):

If to any of the Stockholders, at the address set forth opposite the name of such Stockholder on the signature page hereto:

with a copy to:

Opsware Inc.
599 N. Mathilda Avenue
Sunnyvale, CA 94085
Attention: General Counsel
Facsimile: (800) 883-9410

and a copy to:

Fenwick & West LLP
801 California Street
Mountain View, CA 94041
Attention: David Healy
Lynda Twomey
Facsimile: (650) 938-5200

and

If to Parent or Purchaser, to:

Hewlett-Packard Company
3000 Hanover Street
Palo Alto, CA 94304
Attention: General Counsel
Facsimile: 650-857-2012

with a copy to:

Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
New York, NY 10006
Attention: Christopher E. Austin, Esq.
General Fax: 212-225-3999

(b) Headings. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

(c) Counterparts. This Agreement may be executed manually or by facsimile by the parties hereto in any number of counterparts, each of which shall be considered one and the same agreement. This Agreement shall become effective with respect to a Stockholder when a counterpart hereof shall have been signed by each of Parent, Purchaser and such Stockholder and delivered to the other such parties.

(d) Entire Agreement. This Agreement (together with the Merger Agreement and any other documents and instruments referred to herein and therein) constitutes the entire agreement among the parties with respect to the subject matter hereof and thereof and supersedes all other prior agreements and understandings, both written and oral, among the parties or any of them with respect to the subject matter hereof and thereof. This Agreement is not intended and does not confer upon any Person other than the parties hereto any rights hereunder.

(e) Governing Law.

(i) This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the principles of conflicts of law thereof that would result in the application of law of any other state.

(ii) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Delaware Court of Chancery, or, if no such state court has proper jurisdiction, the Federal court of the United States of America, sitting in Delaware, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or the agreements delivered in connection herewith or the transactions contemplated hereby or thereby or for recognition or enforcement of any judgment relating thereto, and each of the parties hereby irrevocably and unconditionally (A) agrees not to commence any such action or proceeding except in such courts, (B) agrees that any claim in respect of any such action or proceeding may be heard and determined in such Delaware Court of Chancery or, if no such state court has proper jurisdiction, in such Federal court, (C) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any such action or proceeding in any such Delaware Court of Chancery or Federal court, and (D) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such Delaware Court of Chancery or Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 12(a). Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.

(iii) EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS, INCLUDING THE OFFER AND MERGER, CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (C) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 12(e)(iii).

(f) Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other parties except that Parent and Purchaser may assign, in their sole discretion and without the consent of any other party, any or all of their rights, interests and obligations hereunder to each other or to one or more direct or indirect wholly-owned subsidiaries of Parent (each, an “Assignee”). Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by, the parties and their respective successors and assigns, and the provisions of this Agreement are not intended to confer upon any person other than the parties hereto any rights or remedies hereunder.

(g) Severability of Provisions. If any term or provision of this Agreement is invalid, illegal or incapable of being enforced by rule of law or public policy, all other conditions and provisions of this

Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions are fulfilled to the extent possible.

(h) Specific Performance. The parties hereto acknowledge that money damages would be an inadequate remedy for any breach of this Agreement by any party hereto, and that the obligations of the parties hereto shall be enforceable by any party hereto through injunctive or other equitable relief without any requirement to post a bond.

(i) Amendment. No amendment, modification or waiver in respect of this Agreement shall be effective against any party unless it shall be in writing and signed by such party.

(j) Binding Nature. This Agreement is binding upon and is solely for the benefit of the parties hereto and their respective successors, legal representatives and assigns.

(k) Option Exercises. Nothing in this Agreement shall require a Stockholder to exercise any option or warrant to purchase shares of Common Stock of the Company.

[signature page follows]

IN WITNESS WHEREOF, Parent, Purchaser and the Stockholders have caused this Agreement to be duly executed and delivered as of the date first written above.

	HEWLETT-PACKARD COMPANY

	By
		Name:
		Title:

	ORCA ACQUISITION CORPORATION

	By
		Name:
		Title:

SIGNATURE PAGE TO TENDER AND STOCKHOLDER SUPPORT AGREEMENT

	[STOCKHOLDER]

	By
		Name:
		Title:

	[STOCKHOLDER]

	By
		Name:
		Title:

SIGNATURE PAGE TO TENDER AND STOCKHOLDER SUPPORT AGREEMENT

SCHEDULE I

Name and Address		Shares
TOTAL

I-1

Under the Securities Exchange Act of 1934 (Amendment No. )*

Under the Securities Exchange Act of 1934
(Amendment No. )*