FORM OF TENDER AGREEMENT
BY AND AMONG
HEWLETT-PACKARD COMPANY
AND
CERTAIN SHAREHOLDERS OF INDIGO N.V.
TENDER AGREEMENT
THIS TENDER 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 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 page 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; or
(ii) the Closing Time.
(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. The
Shareholder hereby represents, warrants and covenants to the Buyer that the
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
page of this Agreement, free and clear of any pledges, options, rights of first
refusal, co-sale rights, attachments or other encumbrances; (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,
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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; 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 the Shareholder's property or assets is bound.
SECTION 3. AGREEMENT TO TENDER SHARES. The Shareholder hereby agrees that
the Shareholder shall tender, or if the 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 the Shareholder shall not withdraw any Shares so
tendered unless the Offer is terminated or has expired.
SECTION 4. TRANSFER OF THE SHARES.
(a) TRANSFEREE OF SHARES TO BE BOUND BY THIS AGREEMENT. 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, or
discuss, negotiate or make any offer regarding any Transfer of any of the
Shares, 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 the Shareholder.
SECTION 6. 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.
SECTION 7. 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 deemed by the Buyer to be necessary or
desirable to carry out the provisions of this Agreement.
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SECTION 8. LEGENDS. If so requested by the Buyer, Shareholder agrees to
use its best efforts to place on the certificates representing the Shares a
legend stating that they are subject to this Agreement.
SECTION 9. 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 10 and 11 shall survive any termination
of this Agreement.
SECTION 10. 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 the Buyer institutes any action against the Shareholder to enforce the
terms of this Agreement, the Shareholder shall pay reasonable costs and
expenses, including, without limitation, reasonable attorneys' fees and costs,
incurred by the Buyer in connection with such action, provided that the Buyer is
successful in its action against the Shareholder.
SECTION 11. 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):
If to the Buyer:
Hewlett-Packard Company
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Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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With copies to:
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Professional Corporation
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Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
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Professional Corporation
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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
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(f) 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. The Shareholder 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 the Shareholder 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 the Shareholder might otherwise
have to such jurisdiction, venue and such process.
(g) 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.
(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.
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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:
SHAREHOLDER
By:
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.
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