Page 23 of 33 Pages
EXHIBIT Z
VOTING AGREEMENT
THIS VOTING 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 the individual or entity listed on the signature
page hereto (the "Shareholder").
WHEREAS, the Shareholder is, as of the date hereof, the record and
beneficial owner of the 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, the Shareholder 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) "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.
(b) "Termination Date" shall mean the earliest to occur of (i)
-----------------
valid termination of the Offer Agreement pursuant to Article VII thereof; (ii)
Page 24 of 33 Pages
the Closing Time; or (iii) four months after the End Date as determined pursuant
to the Offer Agreement (ignoring for this purpose any amendment to such
Agreement after the date hereof).
(c) Transfer. The Shareholder shall be deemed to have effected a
--------
"Transfer" of Shares if the 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 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.
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 the proxy contained herein; and (iv) the execution, delivery and
performance of this Agreement by the 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 Vote Shares. At every meeting of the Company
------------------------
Shareholders called, including an extraordinary general meeting, and at every
adjournment thereof, and on every action or approval by written consent of the
Company Shareholders, Shareholder shall cause the Common Shares to be voted:
(a) in favor of appointment of the new members of the Company
Boards in accordance with the designation of the Buyer as set forth in the Offer
Agreement;
(b) in favor of resolution upon the amendment of the Articles of
Association of the Company as attached as an exhibit to the Offer Agreement;
Page 25 of 33 Pages
(c) in favor of the Post-Closing Reorganization and any action
required in furtherance thereof; provided, however, that such action is in
-------- --------
accordance with all applicable laws;
(d) against any of the following actions (other than those
actions that relate to the Offer and the transactions contemplated by the Offer
Agreement): (A) any merger, consolidation, business combination, sale of assets,
reorganization or recapitalization of the Company or any subsidiary of the
Company with any party, (B) any sale, lease or transfer of any significant part
of the assets of the Company or any subsidiary of the Company, (C) any
reorganization, recapitalization, dissolution, liquidation or winding up of the
Company or any Subsidiary of the Company, (D) any material change in the
capitalization of the Company or any Subsidiary of the Company, or the corporate
structure of the Company or any Subsidiary of the Company, or (E) any other
action that is intended, or could reasonably be expected to, impede, interfere
with, delay, postpone, discourage or adversely affect the Offer or any of the
other transactions contemplated by the Offer Agreement, including the
Post-Closing Reorganization; and
(e) in favor of waiving any notice that may have been or may be
required relating to the Offer or any of the other transactions contemplated by
the Offer Agreement, including the Post-Closing Reorganization.
SECTION 4. Transfer of the Shares.
----------------------
(a) Transferee of Shares to be Bound by this Agreement. Except
---------------------------------------------------
as required herein, the Shareholder hereby agrees that, at all times during the
period from the date of this Agreement until the Termination Date, the
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 a proxy in the form attached hereto as Exhibit A (with such modifications as
---------
the Buyer may reasonably request) (the "Proxy"); 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.
(b) Transfer of Voting Rights. The Shareholder hereby also
---------------------------
agrees that, at all times commencing with the execution and delivery of this
Agreement until the Termination Date, the Shareholder shall not deposit, or
permit the deposit of, any Shares in a voting trust, grant any proxy (other than
the Proxy) in respect of the Shares, or enter into any shareholder agreement or
similar arrangement or commitment in contravention of the obligations of the
Shareholder under this Agreement with respect to any of the Shares.
SECTION 5. Grant of Irrevocable Proxy; Appointment of Proxy.
--------------------------------------------------------
Concurrently with the execution of this Agreement, the Shareholder hereby
revokes any and all previous proxies granted with respect to the Shares and
agrees to deliver to the Buyer the Proxy in the form attached hereto as Exhibit
-------
A, which shall be irrevocable to the fullest extent permissible by applicable
-
law.
Page 26 of 33 Pages
SECTION 6. 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 the
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 the Shareholder.
SECTION 7. Certain Other Agreements. From and after the date of this
-------------------------
Agreement until the Termination Date, the Shareholder will not, nor will the
Shareholder authorize or permit any of the Shareholder's officers, directors,
affiliates or employees or any investment banker, attorney, accountant,
consultant or other agent, advisor or representative retained by the 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 8. Further Assurances. The Shareholder 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 and to vest in the Buyer the
power to vote the Shares as contemplated by Section 3 hereof and the Proxy;
provided, that such action is consistent with and does not create any
obligations that extend the general scope of the Agreement.
SECTION 9. Registration Rights. Shareholder agrees not to exercise any
-------------------
registration rights it may have with respect to Shareholder's Shares (including
piggyback registration rights) prior to the Termination Date.
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 and to an
irrevocable proxy.
SECTION 11. Termination. All rights and obligations of the parties
-----------
hereunder and under the Proxies 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
-----------------
Page 27 of 33 Pages
against the other party (i.e., the "target party") to enforce the terms of this
------------
Agreement or the Proxy to which the Shareholder is a party, 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 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):
Page 28 of 33 Pages
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 copies to: ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇,
L.L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(f) Governing Law. This Agreement shall be governed by and
--------------
construed in accordance with the laws of The Netherlands, without giving effect
to the conflicts of law principles thereof.
Page 29 of 33 Pages
(g) Entire Agreement. This Agreement and the Proxy contain the
-----------------
entire understanding of the parties in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
(h) Effect of Headings. The section headings are for convenience
------------------
only and shall not affect the construction or interpretation of this Agreement.
(i) 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]
Page 30 of 33 Pages
IN WITNESS WHEREOF, each of the Buyer and the Shareholder have caused this
Agreement to be duly executed and delivered as of the date first written above.
HEWLETT-PACKARD COMPANY
By:
-----------------------------------------
Name:
Title:
S-C INDIGO CV
By: S-C INDIGO II CV,
its General Partner
By: S-C Graphics, Inc.,
its General Partner
Name:
Title:
Address:
-----------------------------------
-------------------------------------------------
-------------------------------------------------
Telephone:
--------------------------------
Facsimile No.:
--------------------------------
Shares beneficially owned:
shares of
---------------------------
Common Shares
shares of
---------------------------
Common Shares issuable upon the exercise of
outstanding options, warrants or other rights.
Page 31 of 33 Pages
EXHIBIT A
IRREVOCABLE PROXY
The undersigned shareholder of Indigo N.V., a corporation organized
under the laws of The Netherlands (the "Company"), hereby irrevocably (to the
-------
fullest extent permitted by law), solely in his, her or its individual capacity
as a shareholder, appoints ___________________, and each of them, as the sole
and exclusive attorneys and proxies of the undersigned, with full power of
substitution and resubstitution, to vote and exercise all voting and related
rights (to the full extent that the undersigned is entitled to do so) with
respect to all of the shares of capital stock of the Company that now are or
hereafter may be beneficially owned by the undersigned, and any and all other
shares or securities of the Company issued or issuable in respect thereof on or
after the date hereof (collectively, the "Shares") in accordance with the terms
------
of this Proxy. The Shares beneficially owned by the undersigned shareholder of
the Company as of the date of this Proxy are listed on the final page of this
Proxy. Upon the execution of this Proxy by the undersigned, any and all prior
proxies given by the undersigned with respect to any Shares are hereby revoked
and the undersigned hereby agrees not to grant any subsequent proxies with
respect to the Shares until after the Termination Date (as defined below).
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest and is granted pursuant to that certain Voting
Agreement of even date herewith by and between Hewlett-Packard Company, a
Delaware corporation (the "Buyer"), and the undersigned shareholder, and is
-----
granted in consideration of the Buyer entering into that certain Offer Agreement
(the "Offer Agreement"), by and between the Buyer and the Company, which
----------------
provides for the Buyer or Subsidiary of the Buyer to commence an exchange offer
(the "Offer") to acquire all of the outstanding common shares, par value NLG
-----
0.04 per share of the Company (the "Common Shares") and for the subsequent
--------------
post-closing reorganization (the "Post-Closing Reorganization") to be
-----------------------------
accomplished upon the terms and subject to the conditions set forth in the Offer
Agreement. As used herein, the term "Termination Date" shall mean the earlier to
----------------
occur of (i) valid termination of the Offer Agreement pursuant to Article VII
thereof; (ii) the Closing Time; or (iii) four months after the End Date as
determined pursuant to the Offer Agreement (ignoring for this purpose any
amendment to such Agreement after the date hereof).
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the
Termination Date, to act as the undersigned's attorney and proxy to vote the
Shares, and to exercise all voting, consent and similar rights of the
undersigned with respect to the Shares (including, without limitation, the power
to execute and deliver written consents) at every annual, special, adjourned or
postponed meeting of shareholders of the Company, including an extraordinary
meeting of shareholders, and in every written consent in lieu of such meeting:
(a) in favor of appointment of the new members of the Company Boards
in accordance with the designation of the Buyer as set forth in the Offer
Agreement;
(b) in favor of resolution upon the amendment of the Articles of
Association of the Company as attached as an exhibit to the Offer Agreement;
Page 32 of 33 Pages
(c) in favor of the Post-Closing Reorganization and any action
required in furtherance thereof; provided, however, that such action is in
accordance with all applicable laws;
(d) against any of the following actions (other than those actions
that relate to the Offer and the transactions contemplated by the Offer
Agreement): (A) any merger, consolidation, business combination, sale of assets,
reorganization or recapitalization of the Company or any subsidiary of the
Company with any party, (B) any sale, lease or transfer of any significant part
of the assets of the Company or any subsidiary of the Company, (C) any
reorganization, recapitalization, dissolution, liquidation or winding up of the
Company or any Subsidiary of the Company, (D) any material change in the
capitalization of the Company or any Subsidiary of the Company, or the corporate
structure of the Company or any Subsidiary of the Company, or (E) any other
action that is intended, or could reasonably be expected to, impede, interfere
with, delay, postpone, discourage or adversely affect the Offer or any of the
other transactions contemplated by the Offer Agreement, including the
Post-Closing Reorganization; and
(e) in favor of waiving any notice that may have been or may be
required relating to the Offer or any of the other transactions contemplated by
the Offer Agreement, including the Post-Closing Reorganization.
The attorneys and proxies named above may not exercise this Proxy on
any other matter except as provided above. The undersigned shareholder may vote
the Shares on all other matters. The undersigned shareholder will abstain from
casting any votes of the Shares on any of the matters provided above and will
not contest, in the relevant meeting of shareholders or otherwise, the exclusive
right of the attorneys and proxies named above to vote the Shares on the matters
provided above in their sole discretion.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This Proxy shall be governed by, and construed in accordance with, the
laws of The Netherlands, without giving effect to the conflicts of laws
principles thereof.
This Proxy is irrevocable (to the fullest extent permitted by law).
This Proxy shall terminate, and be of no further force and effect, automatically
upon the Termination Date.
Page 33 of 33 Pages
Dated: ______________, 2001
Signature of Shareholder:
------------------------------
Print Name of Shareholder: S-C INDIGO CV
By: S-C INDIGO II CV,
its General Partner
By: S-C GRAPHICS, INC.
its General Partner
Shares beneficially owned:
shares of Company Shares
----------
shares of Company Shares issuable upon the exercise
----------
of outstanding options, warrants or other rights