EXHIBIT 99.2
HEWLETT-PACKARD COMPANY
CORPORATE GUARANTY
(Limited Amount)
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This Corporate Guaranty (this "Guaranty") is made as of this 1st day of
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April 2002 by Hewlett-Packard Company, a Delaware corporation ("Guarantor"), for
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the benefit of each Holder (as such term is defined in the CVR Agreement (as
defined below)) of Contingent Value Rights (as defined below) and
Hewlett-Packard Erste Vermogensverwaltungs- und Beteiligungsgesellschaft mbH, a
business entity organized under the laws of Germany ("Obligor").
WHEREAS, Obligor is an indirect subsidiary of Guarantor and Guarantor
has an interest in the financial condition of Obligor and expects to derive
advantages from the financial accommodations described herein;
WHEREAS, pursuant to an exchange offer made by Obligor pursuant to the
terms of the Offer Agreement (the "Offer Agreement") dated as of September 6,
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2001, as amended on February 13, 2002, by and between Guarantor and Indigo N.V.,
a corporation organized under the laws of The Netherlands, Obligor is issuing
Contingent Value Rights (as defined in the CVR Agreement) to each Holder;
WHEREAS, Obligor may be required to pay certain amounts to the Holders
based on the terms and conditions contained in the Offer Agreement and in the
CVR Agreement dated as of April 1, 2002, entered into by and between Obligor and
XX Xxxxxx Trust Company, National Association, as Trustee, and XX Xxxxxx Trust
Company, National Association, as Depositary and Paying Agent (the "CVR
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Agreement").
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WHEREAS, it is a condition of the issuance of the Contingent Value
Rights by Obligor that the Holders receive the benefits of this Guaranty.
NOW, THEREFORE, for valuable consideration, the receipt whereof by
Guarantor is hereby acknowledged, and to induce the Holders to consummate the
transactions contemplated by the Offer Agreement and to induce Obligor to issue
the Contingent Value Rights, Guarantor hereby agrees as follows:
1. Guaranty.
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(a) Subject to Section 4 below, Guarantor hereby unconditionally and
irrevocably guarantees to the Holders (i) the due and punctual payment in
immediately available funds of any and all sums of money that may become due
pursuant to the Contingent Value Rights and the CVR Agreement, and (ii) the due
and punctual performance of all covenants, agreements, obligations and
liabilities of Obligor under or pursuant to the Contingent Value Rights and the
CVR Agreement (all the monetary and other obligations referred to in the
preceding clauses (i) and (ii), together with interest and any and all legal and
other costs and expenses paid or incurred by the Holders or the Trustee in
connection with the collection thereof (excluding any and all legal and other
costs and expenses that the CVR Agreement provides shall be paid by the Holders
or the Trustee), being collectively called the "Obligations"). Guarantor shall
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pay in full or perform, as applicable, any such Obligation promptly on demand
(in the manner set forth in Section 12 hereof) following the failure of Obligor
so to pay or perform, as applicable, such Obligation pursuant to the terms of
the Contingent Value Rights and the CVR Agreement.
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(b) To the fullest extent permitted by applicable law, the obligations
of Guarantor hereunder shall not be discharged, impaired or affected by (i) the
failure of any Holder or any other party to assert any claim or demand or to
enforce or exercise any right or remedy against the Obligor or any other party
under the provisions of the Contingent Value Rights and the CVR Agreement, or
(ii) by any other act or omission that may or might in any manner or to any
extent otherwise operate as a discharge of the Obligor as a matter of law or
equity.
(c) This Guaranty is absolute, unconditional and continuing and
constitutes an independent guaranty of payment when due and not of collection,
and is in no way conditioned on or contingent upon any attempt to enforce in
whole or in part any of Obligor's Obligations to the Holders, the existence or
continuance of Obligor as a legal entity, the consolidation or merger of Obligor
with or into any other entity, the sale, lease or disposition by Obligor of all
or substantially all of its assets to any other entity, the bankruptcy or
insolvency of Obligor, the admission by Obligor of its inability to pay its
debts as they mature, or the making by Obligor of a general assignment for the
benefit of, or entering into a composition or arrangement with, creditors.
(d) Each failure by Obligor to pay or perform Obligations to the
Holders that are subject to this Guaranty as and when they are due shall give
rise to a separate cause of action, and separate suits may be brought hereunder
as each cause of action arises.
(e) Guarantor further guarantees that all payments made by Obligor to
the Holders on the Obligations will be, when made, final and, if any such
payment is recovered from, or repaid by, the Holders in whole or in part in any
bankruptcy, insolvency or similar proceeding instituted by or against Obligor,
this Guaranty shall continue to be fully applicable to such Obligation to the
same extent as though the payment so recovered or repaid had never been
originally made on such Obligation.
2. Unsecured Obligation. This Guaranty is an unsecured obligation of
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Guarantor and shall rank pari passu with all other unsecured obligations of
Guarantor.
3. Consent to Alteration of Terms of CVR Agreement. Subject to Section 4
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below, the Guarantor hereby covenants that from time to time, without notice to
or consent of the Guarantor, the performance or observance by Obligor of any
obligation under the Contingent Value Rights and the CVR Agreement may be: (i)
waived; and (ii) payment of any Obligation hereby guaranteed may be extended in
accordance with any agreement between Obligor and Holders, all without affecting
the liability of the Guarantor hereunder.
4. Maximum Liability of Guarantor. Notwithstanding any provision of this
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Guaranty to the contrary, the liability of Guarantor hereunder shall not exceed
the CVR Payout, as such term is defined in the CVR Agreement, plus interest
incurred thereon pursuant to the Contingent Value Rights and the CVR Agreement
and the costs and expenses mentioned in Section 1. Notwithstanding any provision
of this Guaranty to the contrary, nothing herein shall be deemed to expand the
obligations and covenants of Obligor under or pursuant to the Contingent Value
Rights and the CVR Agreement.
5. Subrogation. No payment by Guarantor pursuant to any provision hereof
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shall entitle Guarantor, by subrogation to the rights of the Holders or
otherwise to any payment by Obligor or out of the property of Obligor, except
after payment in full of all Obligations which may be or become payable to the
Holders at any time or from time to time under the Contingent Value Rights and
the CVR Agreement.
Continuing Guaranty. This Guaranty shall be a continuing guaranty. Any
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co-guarantor or co-guarantors, or any other party liable upon or in respect of
any Obligation hereby guaranteed may be released without affecting the liability
of Guarantor. No failure or delay on the part of the Holders in exercising any
right,
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power or privilege hereunder and no course of dealing between Guarantor and the
Holders shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights, powers and remedies herein expressly provided are cumulative and not
exclusive of any rights, powers or remedies that the Holders would otherwise
have. No notice or demand on Guarantor in any case shall entitle Guarantor to
any other further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Holders to any other or further action
in any circumstances without notice or demand.
7. Binding Effect. This Guaranty shall be binding upon Guarantor and its
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permitted successors and assigns and shall inure to the benefit of the Holders
and their successors and assigns. Except as provided for in Section 8 below,
Guarantor may not assign its obligations under this Guaranty to any other
person, by operation of law or otherwise, without the written consent of a
majority in interest of the Holders.
8. Consolidation, Merger, etc.
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(a) Guarantor shall be entitled in its sole discretion to consolidate
or merge with any Person (as defined below) or sell, lease, exchange, transfer,
license, or otherwise dispose of any or all of its assets (whether tangible or
intangible). In the event of any such merger, consolidation, sale, lease,
exchange, transfer, license or other disposition, subject to Section 8(b) below,
this Guaranty shall remain in effect unless otherwise agreed to in writing by a
majority in interest of the Holders.
(b) In the event of a merger or consolidation in which Guarantor is
not the surviving entity or a sale, conveyance or transfer of all or
substantially all of the properties and assets of Guarantor, (i) the surviving
Person or the purchaser, as applicable, shall expressly assume, by an agreement
supplemental hereto, executed and delivered to the Trustee under the CVR
Agreement, in form reasonably satisfactory to the Trustee, all obligations and
covenants of Guarantor under this Guaranty, and (ii) following the assumption of
this Guaranty by such successor Person, such successor Person shall succeed to
and be substituted for Guarantor hereunder with the same effect as if such
successor Person had been named herein.
(c) In the event of any such merger, consolidation, sale, conveyance
or transfer pursuant to Section 8(b), Guarantor or any Person which shall
theretofore have become such in the manner described in this Section shall be
discharged from all obligations and covenants under this Guaranty and may be
liquidated and dissolved.
(d) For purposes of this Section 8, "Person" means any individual,
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corporation, artnership, joint venture, association, joint-stock company, trust,
limited liability company, unincorporated organization or government or other
agency or political subdivision thereof.
9. Waivers. To the fullest extent permitted by law, Guarantor hereby
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waives:
(a) Notice of acceptance of this Guaranty and of the incurring of
any and all of the Obligations of Obligor; and
(b) Presentment of any instrument, demand of payment, notice of
non-payment or protest thereof.
10. Notification. Whenever at any time or from time to time Guarantor
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shall make any payment to the Holders hereunder on account of Guarantor's
liability hereunder, it will notify Obligor in writing that such payment is made
under this Guaranty for such purpose.
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11. Partial Invalidity. If at any time any provision of this Guaranty
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is or becomes illegal, invalid or unenforceable in any respect under the laws of
any jurisdiction, neither the legality, validity or enforceability of the
remaining provisions of this Guaranty nor the legality, validity or
enforceability of such provision under the laws of any other jurisdiction shall
in any way be affected or impaired thereby.
12. Enforcement by Trustee. Guarantor agrees and acknowledges and the
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Holders and Obligor by acceptance of this Guaranty and the benefits conferred
hereby, agree that XX Xxxxxx Trust Company, National Association, as Trustee
under the CVR Agreement, or any successor Trustee appointed pursuant to the CVR
Agreement, shall act on behalf of the Holders with respect to this Guaranty in
accordance with and subject to the applicable provisions of the CVR Agreement.
Any demand for performance hereunder shall be made in writing, delivered to the
Guarantor by the Trustee.
13. GOVERNING LAW; JURISDICTION. ALL QUESTIONS AND/OR DISPUTES
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CONCERNING THE CONSTRUCTION, VALIDITY AND INTERPRETATION OF THIS GUARANTY SHALL
BE GOVERNED BY THE INTERNAL LAWS, AND NOT THE LAWS OF CONFLICTS, OF THE STATE OF
DELAWARE. GUARANTOR, OBLIGOR, THE TRUSTEE AND EACH OF THE HOLDERS BY THEIR
ACCEPTANCE OF THE CONTINGENT VALUE RIGHTS HEREBY IRREVOCABLY AND UNCONDITIONALLY
AGREES TO BE SUBJECT TO, AND HEREBY CONSENTS AND SUBMITS TO, THE JURISDICTION OF
THE COURTS OF THE STATE OF DELAWARE, AND AGREES THAT ANY ACTION INVOLVING ANY
EQUITABLE OR OTHER CLAIM SHALL BE BROUGHT EXCLUSIVELY IN THE DELAWARE COURT OF
CHANCERY. IN THE EVENT THAT THE DELAWARE COURT OF CHANCERY DOES NOT ACCEPT
JURISDICTION OVER ANY SUCH ACTION, GUARANTOR, OBLIGOR, THE TRUSTEE, AND EACH OF
THE HOLDERS BY THEIR ACCEPTANCE OF THE CONTINGENT VALUE RIGHTS HEREBY
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ANY SUCH ACTION THEN SHALL BE
BROUGHT EXCLUSIVELY IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
DELAWARE. UNLESS THE CONTEXT OTHERWISE REQUIRES, ALL TERMS USED HEREIN WHICH ARE
DEFINED IN THE UNIFORM COMMERCIAL CODE OF THE STATE OF DELAWARE SHALL HAVE THE
MEANINGS THEREIN STATED.
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IN WITNESS WHEREOF, Guarantor has caused this instrument to be duly
executed and delivered by its proper officers as of the date first written
above.
HEWLETT-PACKARD COMPANY
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Executive Vice President and
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Chief Financial Officer
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Address: 0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attest: /s/ Xxx X. Xxxxxxx
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Name: Xxx X. Xxxxxxx
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Title: Vice President, General Counsel and Secretary
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