TENDER AND OPTION AGREEMENT
BY AND AMONG
HEWLETT-PACKARD COMPANY
AND
CERTAIN PRINCIPAL SHAREHOLDERS OF INDIGO N.V.
TENDER AND OPTION AGREEMENT
THIS TENDER AND OPTION AGREEMENT (this "AGREEMENT") is made and entered into
as of September 6, 2001, by and among Hewlett-Packard Company, a Delaware
corporation (the "BUYER"), and each of the individuals listed on the signature
pages hereto (each in his, her or its individual capacity, a "SHAREHOLDER," and,
collectively, the "SHAREHOLDERS").
WHEREAS, each of the Shareholders is, as of the date hereof, the record and
beneficial owner of common shares, par value NLG 0.04 per share, of Indigo N.V.,
a corporation organized under the laws of The Netherlands (the "COMPANY," and
such shares, the "COMMON SHARES"), and the Common Shares subject to outstanding
options, warrants or other rights, as set forth on the signature pages of this
Agreement;
WHEREAS, the Buyer and the Company concurrently herewith are entering into
an Offer Agreement, dated as of the date hereof (the "OFFER AGREEMENT"), which
provides, among other things, (i) for the Buyer or a Subsidiary of the Buyer, as
promptly as practicable after the date hereof, to commence an exchange offer
(the "OFFER") to acquire all of the outstanding Common Shares of the Company in
exchange for either (x) shares of Buyer Common Stock or (y) shares of Buyer
Common Stock plus CVRs, and (ii) for the subsequent post-closing reorganization
to be accomplished upon the terms and subject to the conditions set forth in the
Offer Agreement; and
WHEREAS, as a condition to the willingness of the Buyer to enter into the
Offer Agreement, and in order to induce the Buyer to enter into the Offer
Agreement, each of the Shareholders has agreed (solely in his, her or its
capacity as a shareholder of the Company) to enter into this Agreement.
NOW, THEREFORE, in consideration of the execution and delivery by the Buyer
of the Offer Agreement and the representations, warranties, covenants and
agreements set forth herein and therein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION 1. CERTAIN DEFINITIONS. Capitalized terms used but not defined
herein shall have the meanings ascribed to such terms in the Offer Agreement.
For purposes of this Agreement:
(a) "ELECTION" shall mean either of the Fixed Offer Price or the Contingent
Offer Price.
(b) "OVERSUBSCRIBED CONSIDERATION" shall mean the consideration obtained by
tendering Shares into the Oversubscribed Election.
(c) "OVERSUBSCRIBED ELECTION" shall mean that Election, if either, for which
the aggregate number of Common Shares that has been tendered immediately prior
to the Expiration Time (and not properly withdrawn) exceeds the Maximum Fixed
Price Election Number or the Maximum Contingent Price Election Number.
(d) "SHARES" shall mean: (i) all securities of the Company (including all
Common Shares and all options, warrants and other rights to acquire Common
Shares) owned by the Shareholder as of the date of this Agreement; and (ii) all
additional securities of the Company (including all additional Common Shares and
all additional options, warrants and other rights to acquire Common Shares) of
which the Shareholder acquires ownership during the period from the date of this
Agreement through the Termination Date.
(e) "TERMINATION DATE" shall mean the earlier to occur of (i) valid
termination of the Offer Agreement pursuant to Article VII thereof; or (ii) the
Closing Time.
(f) TRANSFER. A Shareholder shall be deemed to have effected a "TRANSFER" of
Shares if such Shareholder directly or indirectly (i) sells, pledges, encumbers,
grants an option with respect to, transfers or otherwise disposes of such Shares
or any interest therein, or (ii) enters into an agreement
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or commitment providing for the sale of, pledge of, encumbrance of, grant of an
option with respect to, transfer of or disposition of such Shares or any
interest therein.
(g) "UNDERSUBSCRIBED CONSIDERATION" shall mean the consideration obtained by
tendering Shares into the Undersubscribed Election.
(h) "UNDERSUBSCRIBED ELECTION" shall mean, to the extent there is an
Oversubscribed Election, the other Election.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER. Shareholder
hereby represents, warrants and covenants to the Buyer that Shareholder (i) is
the beneficial owner of the Common Shares and the options, warrants and other
rights to acquire Common Shares indicated on the signature pages of this
Agreement, free and clear of any pledges, options, rights of first refusal,
co-sale rights, attachments or other encumbrances other than as contemplated
hereby and the Shareholders' Agreement, dated September 13, 2000, by and among
the Company, the Buyer and the other Company Shareholders named therein;
(ii) does not beneficially own any securities of the Company other than the
Common Shares and options, warrants and other rights to acquire Common Shares of
the Company indicated on the signature pages of this Agreement; (iii) has full
power and authority to make, enter into and carry out the terms of this
Agreement; and (iv) the execution, delivery and performance of this Agreement by
such Shareholder and the consummation of the transactions contemplated hereby,
will not (x) require the consent, waiver, approval, or authorization of any
governmental authority or any other person or entity except as contemplated by
the Offer Agreement; or (y) violate, conflict with, result in a breach of or the
acceleration of any obligation under, or constitute a default (or an event which
with notice or the lapse of time or both would become a default) under, or give
to others any right of termination, amendment, acceleration or cancellation of,
or result in the creation of a lien or other encumbrance on any property or
asset of the Shareholder pursuant to any provision of any indenture, mortgage,
lien, lease, agreement, contract, instrument, order, judgment, ordinance,
regulation or decree to which the Shareholder is subject or by which the
Shareholder or any of Shareholder's property or assets (other than the Company's
assets, if any) is bound, in each case as would not materially adversely affect
the Shareholder's obligations hereunder.
SECTION 3. AGREEMENT TO TENDER SHARES.
(a) Each of the Shareholders hereby agrees that such Shareholder shall
tender, or if such Shareholder holds such shares through a broker, instruct the
broker to tender, his, her or its Common Shares into the Offer promptly, and in
any event no later than the tenth business day following the commencement of the
Offer, pursuant to and in accordance with the terms of the Offer Agreement, and
that such Shareholder shall not withdraw any Shares so tendered unless the Offer
is terminated or has expired.
(b) Each of the Shareholders hereby agrees that such Shareholder will
automatically elect to receive the Undersubscribed Consideration for up to all
of the Common Shares held by such Shareholder (the "MANDATORY ELECTION").
Notwithstanding anything to the contrary, Section 1.1(c)(ii) and
Section 1.1(c)(iii) of the Offer Agreement, as applicable, shall be applied to
any Common Shares tendered by Company Shareholders (other than those tendered by
the Shareholders party to this Agreement) only to the extent that
Undersubscribed Consideration continues to exist after giving effect to the
Mandatory Election. To facilitate the calculation of shares subject to the
Mandatory Election in accordance with the above provisions, the Buyer may round
the number of shares proposed to be automatically elected by any Shareholder to
the nearest one hundred (100) shares.
(c) Notwithstanding anything to the contrary in this Agreement, each of the
Shareholders hereby agrees and pledges (i) either (A) to exercise no later than
the day immediately prior to the Closing Time all options, warrants and other
rights to acquire Common Shares then owned by such Shareholder (collectively,
the "WARRANTS") through the non-cash exercise provisions set forth therein and
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(B) to immediately tender the Common Shares received upon such exercise into the
Offer; or (ii) to not exercise any of the Warrants after the Closing Time until
such time as the Post-Closing Reorganization referred to in Article II of the
Offer Agreement is consummated.
SECTION 4. TRANSFER OF THE SHARES. Except as required herein, each of the
Shareholders hereby agrees that, at all times during the period from the date of
this Agreement until the Termination Date, such Shareholder shall not cause or
permit any Transfer of any of the Shares to be effected, unless each person to
which any such Shares, or any interest therein, is or may be Transferred shall
have (i) executed a counterpart of this Agreement; and (ii) agreed in writing to
hold such Shares, or such interest therein, subject to all of the terms and
conditions set forth in this Agreement.
SECTION 5. CERTAIN EVENTS. In the event of any stock split, stock
dividend, merger, reorganization, recapitalization or other change in the
capital structure of the Company affecting the Common Shares or the acquisition
of additional Common Shares or other securities or rights of the Company by any
Shareholder, the number of Shares shall be adjusted appropriately, and this
Agreement and the rights and obligations hereunder shall attach to any
additional Common Shares or other securities or rights of the Company issued to
or acquired by any such Shareholder.
SECTION 6. CERTAIN OTHER AGREEMENTS. From and after the date of this
Agreement until the Termination Date, no Shareholder will, nor will any
Shareholder authorize or permit any of such Shareholder's officers, directors,
affiliates or employees or any investment banker, attorney, accountant,
consultant or other agent, advisor or representative retained by such
Shareholder to, directly or indirectly, (i) solicit, initiate, encourage or
induce the making, submission or announcement of any Acquisition Proposal;
(ii) engage or participate in any discussions or negotiations regarding, or
furnish to any person any information relating to the Company or any of its
Subsidiaries or afford access to the business, properties, assets, books or
records of the Company or any of its Subsidiaries to any person that has made,
or take any other action intended to assist or facilitate any inquiries or the
making, submission, or announcement of any proposal that constitutes or would
reasonably be expected to lead to, any Acquisition Proposal; (iii) approve,
endorse or recommend any Acquisition Proposal; or (iv) enter into any letter of
intent or similar document or any contract, agreement or commitment
contemplating or otherwise relating to any Acquisition Transaction; PROVIDED,
this section shall not apply to any person in his capacity as a director of the
Company.
SECTION 7. REGULATORY FILINGS. Each of the Shareholders hereby covenants
and agrees, to the extent that such Shareholder is required to do so under
applicable laws or regulations, (i) to file or cause to be filed with the FTC
and the DOJ the notifications and other information required to be filed by such
Shareholder under the HSR Act with respect to the Offer and the transactions
contemplated thereby; and (ii) to make any other Foreign Filings required by
such Shareholder of which it is aware with respect to the Offer and the
transactions contemplated thereby. Such Shareholder shall pay all filing fees
and all other fees and expenses pursuant to any such filings made by such
Shareholder that relate to such Shareholder's acquisition of Buyer Common Stock
as a result of the Offer.
SECTION 8. FURTHER ASSURANCES. Each of the Shareholders hereby covenants
and agrees to, upon the request of the Buyer, execute and deliver any additional
documents and take such further actions as may be reasonably requested by the
Buyer to carry out the provisions of this Agreement; PROVIDED, THAT such action
is consistent with, and does not create any obligations that extend the general
scope of the provisions of this Agreement.
SECTION 9. OPTION.
(a) The Shareholder hereby grants Buyer an irrevocable (to the extent
permitted by applicable law), exclusive option to purchase up to all of the
Shares at a per Share exercise price equal to the Contingent Price Exchange
Ratio (the "PURCHASE OPTION"). Such Purchase Option shall become
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exercisable by Buyer upon the Shareholder's breach of its obligations under
Section 3 of this Agreement or upon the Shareholder's breach of any other
material agreement or covenant on the part of the Shareholder set forth in this
Agreement.
(b) In the event that the Buyer elects to exercise the Purchase Option, the
Buyer shall so notify the Shareholder. Upon receipt of such notification, the
Shareholder shall deliver the Shares to the Buyer, to be held by the Buyer
pending the closing of the exercise of the Purchase Option. At the closing of
the exercise of the Purchase Option, the Buyer shall deliver to the Shareholder
the Contingent Price Exchange Ratio for each Share delivered by the Shareholder.
(c) The Buyer in its sole discretion may designate and assign one or more
employees, officers, directors, stockholders or direct or indirect subsidiaries
of the Buyer or other persons or organizations to exercise all or a part of the
Buyer's Purchase Option.
(d) In the event that the Buyer's Purchase Option is exercised, then upon
and following such exercise, the only remaining right of the Shareholder under
this Agreement shall be the right to receive payment for such Shares as set
forth in this Section 9, and the Shareholder shall have no right whatsoever to
tender the Shares upon its own election.
SECTION 10. LEGENDS. If so requested by the Buyer, Shareholder agrees to
use its reasonable best efforts to place on the certificates representing the
Shares a legend stating that they are subject to this Agreement.
SECTION 11. TERMINATION. Except as otherwise provided in this Agreement,
this Agreement, and all rights and obligations of the parties hereunder, shall
terminate and have no further force or effect immediately upon the Termination
Date; PROVIDED, HOWEVER, that Sections 12 and 13 shall survive any termination
of this Agreement.
SECTION 12. EXPENSES. All fees and expenses incurred by any one party
hereto shall be borne by the party incurring such fees and expenses; PROVIDED,
that if either party (i.e., the "initiating party") institutes any action
against the other party (i.e., the "target party") to enforce the terms of this
Agreement, such target party shall pay reasonable costs and expenses, including,
without limitation, reasonable attorneys' fees and costs (collectively,
"Costs"), incurred by the initiating party in connection with such action,
provided that the initiating party is successful in all material respects with
respect to all claims (after all appeals) ("Material Success") in its action
against the target party.
SECTION 13. MISCELLANEOUS.
(a) SEVERABILITY. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, then the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
(b) BINDING EFFECT AND ASSIGNMENT. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by either
of the parties without prior written consent of the other.
(c) AMENDMENTS AND MODIFICATION. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by the parties hereto.
(d) SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties hereto
acknowledge that the Buyer shall be irreparably harmed and that there shall be
no adequate remedy at law for a violation of any of the covenants or agreements
of Shareholder set forth herein. Therefore, it is agreed that, in addition to
any
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other remedies that may be available to the Buyer upon any such violation, the
Buyer shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to the Buyer at
law or in equity.
(e) NOTICES. All notices and other communications pursuant to this
Agreement shall be in writing and deemed to be sufficient if contained in a
written instrument and shall be deemed given if delivered personally,
telecopied, sent by nationally-recognized overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
parties at the following address (or at such other address for a party as shall
be specified by like notice):
If to the Buyer: Hewlett-Packard Company
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
Professional Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
Professional Corporation
▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Shareholder: To the address for notice set forth on the signature page
hereof.
With a copy to: ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(f) REGISTERED SHARES. Each of the Shareholders shall receive Buyer Common
Stock in the Offer that is registered on Form S-4.
(g) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of
New York, without giving effect to the
conflicts of law principles thereof. Each of the parties hereby irrevocably
consents to the exclusive jurisdiction and venue of any court within the State
of
New York in connection with any matter based upon or arising out of this
Agreement of the matters contemplated herein, agrees that process may be served
upon them in any manner authorized by the laws of the State of
New York for such
persons and waives any covenants not to assert or plead any objection which they
might otherwise have to such jurisdiction, venue and such process.
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(h) ENTIRE AGREEMENT. This Agreement contains the entire understanding of
the parties in respect of the subject matter hereof, and supersedes all prior
negotiations and understandings between the parties with respect to such subject
matter.
(i) EFFECT OF HEADINGS. The section headings are for convenience only and
shall not affect the construction or interpretation of this Agreement.
(j) COUNTERPARTS. This Agreement may be executed by facsimile and in
several counterparts, each of which shall be an original, but all of which
together shall constitute one and the same agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, each of the Buyer and the Shareholders have caused this
Agreement to be duly executed and delivered as of the date first written above.
HEWLETT-PACKARD COMPANY
By:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: ASSISTANT SECRETARY
WALTHROUP CORPORATION N.V.:
By:
▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: DIRECTOR
Address: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇-▇▇▇▇ ▇▇▇▇▇▇
Telephone:
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Facsimile No.:
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Shares beneficially owned:
------------ shares of Common Shares
------------ shares of Common Shares issuable upon the
exercise of outstanding options, warrants or other
rights.
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IN WITNESS WHEREOF, each of the Buyer and the Shareholders have caused this
Agreement to be duly executed and delivered as of the date first written above.
HEWLETT-PACKARD COMPANY
By:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: ASSISTANT SECRETARY
VISIONVEST CORPORATION N.V.
By:
▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: DIRECTOR
Address: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇-▇▇▇▇ ▇▇▇▇▇▇
Telephone:
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Facsimile No.:
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Shares beneficially owned:
------------ shares of Common Shares
------------ shares of Common Shares issuable upon the
exercise of outstanding options, warrants or other
rights.
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IN WITNESS WHEREOF, each of the Buyer and the Shareholders have caused this
Agreement to be duly executed and delivered as of the date first written above.
HEWLETT-PACKARD COMPANY
By:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: ASSISTANT SECRETARY
GEMINI SYSTEMS CORPORATION N.V.
By:
/s/ ▇▇. ▇▇▇▇▇▇
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Name: ▇▇. ▇▇▇▇▇▇
Title: CHAIRMAN
Address: Prager ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇-▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
Telephone:
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Facsimile No.:
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Shares beneficially owned:
------------ shares of Common Shares
------------ shares of Common Shares issuable upon the
exercise of outstanding options, warrants or other
rights.
9
IN WITNESS WHEREOF, each of the Buyer and the Shareholders have caused this
Agreement to be duly executed and delivered as of the date first written above.
HEWLETT-PACKARD COMPANY
By:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: ASSISTANT SECRETARY
TOSCAL N.V.
By:
/s/ ▇▇. ▇▇▇▇▇▇
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Name: ▇▇. ▇▇▇▇▇▇
Title: CHAIRMAN
Address: Prager ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇-▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
Telephone:
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Facsimile No.:
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Shares beneficially owned:
------------ shares of Common Shares
------------ shares of Common Shares issuable upon the
exercise of outstanding options, warrants or other
rights.
10
IN WITNESS WHEREOF, each of the Buyer and the Shareholders have caused this
Agreement to be duly executed and delivered as of the date first written above.
HEWLETT-PACKARD COMPANY
By:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: ASSISTANT SECRETARY
OZF LTD.
By:
/s/ ▇▇. ▇▇▇▇▇▇
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Name: ▇▇. ▇▇▇▇▇▇
Title: CHAIRMAN
Address: Prager ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇-▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
Telephone:
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Facsimile No.:
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Shares beneficially owned:
------------ shares of Common Shares
------------ shares of Common Shares issuable upon the
exercise of outstanding options, warrants or other
rights.
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IN WITNESS WHEREOF, each of the Buyer and the Shareholders have caused this
Agreement to be duly executed and delivered as of the date first written above.
HEWLETT-PACKARD COMPANY
By:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: ASSISTANT SECRETARY
▇▇▇▇▇▇▇ CORPORATION N.V.
By:
▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: DIRECTOR
Address: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇-▇▇▇▇ ▇▇▇▇▇▇
Telephone:
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Facsimile No.:
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Shares beneficially owned:
------------ shares of Common Shares
------------ shares of Common Shares issuable upon the
exercise of outstanding options, warrants or other
rights.
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