Page 16 of 33 Pages
TENDER AGREEMENT
THIS TENDER AGREEMENT (this "Agreement") is made and entered into as
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of September 6, 2001, by and among Hewlett-Packard Company, a Delaware
corporation (the "Buyer"), and each of the individuals listed on the signature
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pages hereto (each in his, her or its individual capacity, a "Shareholder," and,
collectively, the "Shareholders").
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WHEREAS, each of the Shareholders is, as of the date hereof, the
record and beneficial owner of common shares, par value NLG 0.04 per share, of
Indigo N.V., a corporation organized under the laws of The Netherlands (the
"Company," and such shares, the "Common Shares"), and the Common Shares subject
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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"),
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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
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Company in exchange for either (x) shares of Buyer Common Stock or (y) shares of
Buyer Common Stock plus CVRs, and (ii) for the subsequent post-closing
reorganization to be accomplished upon the terms and subject to the conditions
set forth in the Offer Agreement; and
WHEREAS, as a condition to the willingness of the Buyer to enter into
the Offer Agreement, and in order to induce the Buyer to enter into the Offer
Agreement, each of the Shareholders has agreed (solely in his, her or its
capacity as a shareholder of the Company) to enter into this Agreement.
NOW, THEREFORE, in consideration of the execution and delivery by the
Buyer of the Offer Agreement and the representations, warranties, covenants and
agreements set forth herein and therein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION 1. Certain Definitions. Capitalized terms used but not defined
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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
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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 earlier to occur of (i) valid
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termination of the Offer Agreement pursuant to Article VII thereof; (ii) the
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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. A Shareholder shall be deemed to have effected a
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"Transfer" of Shares if such Shareholder directly or indirectly (i) sells,
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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.
(d) Representations and Warranties of the Shareholder. Shareholder
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hereby represents, warrants and covenants to the Buyer that Shareholder (i) is
the beneficial owner of the Common Shares and the options, warrants and other
rights to acquire Common Shares indicated on the signature pages of this
Agreement, free and clear of any pledges, options, rights of first refusal,
co-sale rights, attachments or other encumbrances other than as contemplated
hereby and the Shareholders' Agreement, dated September 13, 2000, by and among
the Company, the Buyer and the other Company Shareholders named therein; (ii)
does not beneficially own any securities of the Company other than the Common
Shares and options, warrants and other rights to acquire Common Shares of the
Company indicated on the signature pages of this Agreement; (iii) has full power
and authority to make, enter into and carry out the terms of this Agreement; and
(iv) the execution, delivery and performance of this Agreement by such
Shareholder and the consummation of the transactions contemplated hereby, will
not (x) require the consent, waiver, approval, or authorization of any
governmental authority or any other person or entity except as contemplated by
the Offer Agreement; or (y) violate, conflict with, result in a breach of or the
acceleration of any obligation under, or constitute a default (or an event which
with notice or the lapse of time or both would become a default) under, or give
to others any right of termination, amendment, acceleration or cancellation of,
or result in the creation of a lien or other encumbrance on any property or
asset of the Shareholder pursuant to any provision of any indenture, mortgage,
lien, lease, agreement, contract, instrument, order, judgment, ordinance,
regulation or decree to which the Shareholder is subject or by which the
Shareholder or any of Shareholder's property or assets (other than the Company's
assets, if any) is bound, in each case as would not materially adversely affect
the Shareholder's obligations hereunder.
SECTION 2. Agreement to Tender Shares. Each of the Shareholders hereby
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agrees that such Shareholder shall tender, or if such Shareholder holds such
shares through a broker, instruct the broker to tender, his, her or its Common
Shares into the Offer promptly, and in any event no later than the tenth
business day following the commencement of the Offer, pursuant to and in
accordance with the terms of the Offer Agreement, and that such Shareholder
shall not withdraw any Shares so tendered unless the Offer is terminated or has
expired.
SECTION 3. Transfer of the Shares. Except as required herein, each of
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the Shareholders hereby agrees that, at all times during the period from the
date of this Agreement until the Termination Date, such Shareholder shall not
cause or permit any Transfer of any of the Shares to be effected, unless each
person to which any such Shares, or any interest therein, is or may be
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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 4. Certain Events. In the event of any stock split, stock
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dividend, merger, reorganization, recapitalization or other change in the
capital structure of the Company affecting the Common Shares or the acquisition
of additional Common Shares or other securities or rights of the Company by any
Shareholder, the number of Shares shall be adjusted appropriately, and this
Agreement and the rights and obligations hereunder shall attach to any
additional Common Shares or other securities or rights of the Company issued to
or acquired by any such Shareholder.
SECTION 5. Certain Other Agreements. From and after the date of this
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Agreement until the Termination Date, no Shareholder will, nor will any
Shareholder authorize or permit any of such Shareholder's officers, directors,
affiliates or employees or any investment banker, attorney, accountant,
consultant or other agent, advisor or representative retained by such
Shareholder to, directly or indirectly, (i) solicit, initiate, encourage or
induce the making, submission or announcement of any Acquisition Proposal; (ii)
engage or participate in any discussions or negotiations regarding, or furnish
to any person any information relating to the Company or any of its Subsidiaries
or afford access to the business, properties, assets, books or records of the
Company or any of its Subsidiaries to any person that has made, or take any
other action intended to assist or facilitate any inquiries or the making,
submission, or announcement of any proposal that constitutes or would reasonably
be expected to lead to, any Acquisition Proposal; (iii) approve, endorse or
recommend any Acquisition Proposal; or (iv) enter into any letter of intent or
similar document or any contract, agreement or commitment contemplating or
otherwise relating to any Acquisition Transaction; provided, this section shall
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not apply to any person in his capacity as a director of the Company.
SECTION 6. Regulatory Filings. Each of the Shareholders hereby
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covenants and agrees, to the extent that such Shareholder is required to do so
under applicable laws or regulations, (i) to file or cause to be filed with the
FTC and the DOJ the notifications and other information required to be filed by
such Shareholder under the HSR Act with respect to the Offer and the
transactions contemplated thereby; and (ii) to make any other Foreign Filings
required by such Shareholder of which it is aware with respect to the Offer and
the transactions contemplated thereby. Such Shareholder shall pay all filing
fees and all other fees and expenses pursuant to any such filings made by such
Shareholder that relate to such Shareholder's acquisition of Buyer Common Stock
as a result of the Offer.
SECTION 7. Further Assurances. Each of the Shareholders hereby
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covenants and agrees to, upon the request of the Buyer, execute and deliver any
additional documents and take such further actions as may be reasonably
requested by the Buyer to carry out the provisions of this Agreement; provided,
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that such action is consistent with, and does not create any obligations that
extend the general scope of the provisions of this Agreement.
SECTION 8. [INTENTIONALLY OMITTED]
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SECTION 9. Legends. If so requested by the Buyer, Shareholder agrees
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to use its reasonable best efforts to place on the certificates representing the
Shares a legend stating that they are subject to this Agreement.
SECTION 10. Termination. Except as otherwise provided in this
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Agreement, this Agreement, and all rights and obligations of the parties
hereunder, shall terminate and have no further force or effect immediately upon
the Termination Date; provided, however, that Sections 12 and 13 shall survive
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any termination of this Agreement.
SECTION 11. Expenses. All fees and expenses incurred by any one party
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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
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against the other party (i.e., the "target party") to enforce the terms of this
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Agreement, such target party shall pay reasonable costs and expenses, including,
without limitation, reasonable attorneys' fees and costs (collectively,
"Costs"), incurred by the initiating party in connection with such action,
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provided that the initiating party is successful in all material respects with
respect to all claims (after all appeals) ("Material Success") in its action
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against the target party.
SECTION 12. Miscellaneous.
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(a) Severability. If any term, provision, covenant or restriction
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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
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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
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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
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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
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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
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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
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(f) Registered Shares. The Company agrees that each of the
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Shareholders shall receive Buyer Common Stock in the Offer that is registered on
Form S-4.
(g) Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of New York, without giving
effect to the conflicts of law principles thereof. Each of the parties hereby
irrevocably consents to the exclusive jurisdiction and venue of any court within
the State of New York in connection with any matter based upon or arising out of
this Agreement of the matters contemplated herein, agrees that process may be
served upon them in any manner authorized by the laws of the State of New York
for such persons and waives any covenants not to assert or plead any objection
which they might otherwise have to such jurisdiction, venue and such process.
(h) Entire Agreement. This Agreement contains the entire
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understanding of the parties in respect of the subject matter hereof, and
supersedes all prior negotiations and understandings between the parties with
respect to such subject matter.
(i) Effect of Headings. The section headings are for convenience
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only and shall not affect the construction or interpretation of this Agreement.
(j) Counterparts. This Agreement may be executed by facsimile and
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in several counterparts, each of which shall be an original, but all of which
together shall constitute one and the same agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, each of the Buyer and the Shareholders have caused
this Agreement to be duly executed and delivered as of the date first written
above.
HEWLETT-PACKARD COMPANY
By:
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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:
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Telephone:
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Facsimile No.:
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Shares beneficially owned:
shares of
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Common Shares
shares of
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Common Shares issuable upon
the exercise of outstanding
options, warrants or other
rights.
