EXHIBIT C
FORM OF
VOTING AGREEMENT
BY AND AMONG
HEWLETT-PACKARD COMPANY
AND
CERTAIN SHAREHOLDERS OF INDIGO N.V.
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; 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. 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 comtemplated
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;
(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.
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 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; and, if
the initiating party is not Materially Successful, the initiating party shall
pay the target party's Costs.
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):
If to the Buyer: Hewlett-Packard Company
0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
With copies to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
Xxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
and
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
Xxx Xxxxxx
Xxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
If to the Shareholder: To the address for notice set forth on the signature
page hereof.
With a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X.Xxxxxxxx, Esq.
Xxxxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
(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.
(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]
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:
WALTHROUP CORPORATION N.V.:
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.
[SIGNATURE PAGE TO
VOTING AGREEMENT]
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:
VISIONVEST CORPORATION N.V.
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.
[SIGNATURE PAGE TO
VOTING AGREEMENT]
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:
-----------------------------------------
Name:
Title:
GEMINI SYSTEMS CORPORATION N.V.
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.
[SIGNATURE PAGE TO
VOTING AGREEMENT]
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:
-----------------------------------------
Name:
Title:
TOSCAL N.V.
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.
[SIGNATURE PAGE TO
VOTING AGREEMENT]
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:
-----------------------------------------
Name:
Title:
OZF LTD.
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.
[SIGNATURE PAGE TO
VOTING AGREEMENT]
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:
-----------------------------------------
Name:
Title:
XXXXXXX CORPORATION N.V.
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.
[SIGNATURE PAGE TO
VOTING AGREEMENT]
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; or (ii) the Closing Time.
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;
(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.
Dated: ______________, 2001
Signature of Shareholder:
Print Name of Shareholder: WALTHROUP CORPORATION N.V.
Shares beneficially owned:
------------------- shares of Company Shares
------------------- shares of Company Shares
issuable upon the exercise of outstanding
options, warrants or other rights
[SIGNATURE PAGE TO IRREVOCABLE PROXY]
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.
Dated: ______________, 2001
Signature of Shareholder:
Print Name of Shareholder: VISIONVEST CORPORATION N.V.
Shares beneficially owned:
------------------- shares of Company Shares
------------------- shares of Company Shares
issuable upon the exercise of outstanding
options, warrants or other rights
[SIGNATURE PAGE TO IRREVOCABLE PROXY]
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.
Dated: ______________, 2001
Signature of Shareholder:
Print Name of Shareholder: GEMINI SYSTEMS CORPORATION N.V.
Shares beneficially owned:
------------------- shares of Company Shares
------------------- shares of Company Shares
issuable upon the exercise of outstanding
options, warrants or other rights
[SIGNATURE PAGE TO IRREVOCABLE PROXY]
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.
Dated: ______________, 2001
Signature of Shareholder:
Print Name of Shareholder: TOSCAL N.V.
Shares beneficially owned:
------------------- shares of Company Shares
------------------- shares of Company Shares
issuable upon the exercise of outstanding
options, warrants or other rights
[SIGNATURE PAGE TO IRREVOCABLE PROXY]
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.
Dated: ______________, 2001
Signature of Shareholder:
Print Name of Shareholder: OZF LTD.
Shares beneficially owned:
------------------- shares of Company Shares
------------------- shares of Company Shares
issuable upon the exercise of outstanding
options, warrants or other rights
[SIGNATURE PAGE TO IRREVOCABLE PROXY]
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.
Dated: ______________, 2001
Signature of Shareholder:
Print Name of Shareholder: XXXXXXX CORPORATION N.V.
Shares beneficially owned:
------------------- shares of Company Shares
------------------- shares of Company Shares
issuable upon the exercise of outstanding
options, warrants or other rights
[SIGNATURE PAGE TO IRREVOCABLE PROXY]
EXHIBIT C [S-C]
FORM OF
VOTING AGREEMENT
BY AND AMONG
HEWLETT-PACKARD COMPANY
AND
CERTAIN SHAREHOLDERS OF INDIGO N.V.
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "AGREEMENT") is made and entered into as of
September 6, 2001, by and among Xxxxxx-Xxxxxxx 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) 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;
(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.
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 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):
If to the Buyer: Hewlett-Packard Company
0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
With copies to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
Xxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
and
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
Xxx Xxxxxx
Xxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
If to the Shareholder: To the address for notice set forth on the signature
page hereof.
With copies to: Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
and
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
(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.
(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]
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
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
[SIGNATURE PAGE TO VOTING AGREEMENT]
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;
(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,
A-1
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.
A-2
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.
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
[SIGNATURE PAGE TO IRREVOCABLE PROXY]
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