Exhibit 11
[CREO LETTERHEAD]
January 29, 2003
HarbourVest Partners VI--Direct Fund, L.P.
c/o HarbourVest Partners, LLC
One Financial Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Dear Sirs:
The undersigned parties agree to amend and restate the letter agreement
previously entered into between them to provide for the terms set forth below
and each of the undersigned parties hereto agrees that this letter agreement
shall supercede and replace in its entirety such earlier letter agreement.
Therefore, this will confirm our agreement with respect to the purchase of
1,532,052 shares (the "Shares") of common stock, par value $.0001 per share
("Printcafe Common Stock"), of Printcafe Software, Inc. ("Printcafe") from
you:
1. We have agreed that we will purchase the Shares from you in exchange
for an aggregate purchase price of U.S.$1,991,667.60 (the "Purchase Price").
The Purchase Price shall be payable in an aggregate number of common shares,
without par value ("Creo Shares"), of Creo Inc. ("Creo") equal to the quotient
of (i) the Purchase Price divided by (ii) the average of the daily weighted
average trading price for Creo Shares on the Toronto Stock Exchange (converted
into U.S. dollars) for the 5 consecutive trading days ending on the third
trading day before the Closing (as defined below).
2. The closing of the purchase and sale of the Shares (the "Closing")
shall take place at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, XX 00000 at 8:00 a.m. New York City Time on January 30,
2003. At the Closing, you shall deliver or cause to be delivered to us (i)
certificates representing the number of Shares being purchased pursuant to the
terms hereof, endorsed in blank or accompanied by duly executed stock powers,
in either case with the signatures thereon guaranteed by a financial
institution which is a member of an applicable Medallion Program (or, for
those Shares held in book-entry form, cause the book-entry transfer of such
Shares to such brokerage account as we shall specify by notice given to you
prior to the Closing) and (ii) an opinion of counsel in the form previously
delivered to us. At the Closing, we shall deliver to you the Purchase Price
payable in Creo Shares by delivery of one or more stock certificate(s)
evidencing the Creo Shares registered in such name(s) as you may have
requested prior to the Closing. At your option, exercised by notice to us
prior to the Closing, you may elect to receive payment of the Purchase Price
in cash in lieu of Creo Shares.
3. If, within the period ending two years after the Closing, we purchase,
directly or indirectly, additional shares of Printcafe Common Stock (the
"Additional Shares") in an Acquisition Triggering Transaction at a per share
purchase price that is greater than the per share Purchase Price paid for the
Shares, we will pay to you promptly after the completion of the Acquisition
Triggering Transaction the excess, if any (the "Acquisition Additional
Amount") of (x) the product of (i) the weighted average per share purchase
price we paid for the Additional Shares in such Acquisition Triggering
Transaction, multiplied by (ii) the number of Shares, over (y) the Purchase
Price for
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the Shares. Such Acquisition Additional Amount shall be payable in that number
of Creo Shares equal to the quotient of (i) the Acquisition Additional Amount
divided by (ii) the average of the daily weighted average trading price for
Creo Shares on the Toronto Stock Exchange (converted into U.S. dollars) for
the 5 consecutive trading days ending on the third trading day before the date
on which the Triggering Transaction is consummated.
4. If, within the period ending two years after the Closing, we sell,
directly or indirectly, 25% or more of the shares of Printcafe Common Stock
that we own in a Disposition Triggering Transaction or a Disposition
Triggering Transaction involving the liquidation or dissolution of Printcafe
occurs, we will pay to you promptly after the completion of the Disposition
Triggering Transaction 100% of the excess, if any (the "Disposition Additional
Amount") of (x) the product of (i) the weighted average per share purchase
price (or payment upon the liquidation or dissolution of Printcafe) we receive
for our Printcafe Common Stock in such Disposition Triggering Transaction,
multiplied by (ii) the number of Shares, over (y) the Purchase Price for the
Shares. Such Disposition Additional Amount shall be payable in that number of
Creo Shares equal to the quotient of (i) the Disposition Additional Amount
divided by (ii) the average of the daily weighted average trading price for
Creo Shares on the Toronto Stock Exchange (converted into U.S. dollars) for
the 5 consecutive trading days ending on the third trading day before the date
on which the Disposition Triggering Transaction is consummated.
5. For purposes of paragraphs 3 and 4 above, (x) an "Acquisition
Triggering Transaction" means a tender or exchange offer, merger or similar
corporate transaction or series of related transactions resulting in us
beneficially owning 70% or more of the outstanding Printcafe Common Stock
(calculated for this purpose on a fully-diluted basis), or a purchase by us,
in one transaction or series of related transactions, of a block of 1,000,000
or more shares of Printcafe Common Stock from another stockholder of
Printcafe, and (y) a "Disposition Triggering Transaction" means (i) a merger,
tender offer or similar corporate transaction or series of related
transactions pursuant to which, or a sale by us of shares of Printcafe Common
Stock as a result of which, any person or group other than Creo or its
affiliates acquires 70% or more of the outstanding Printcafe Common Stock
(calculated for this purpose on a fully-diluted basis) or (ii) the dissolution
or liquidation of Printcafe. At your option, exercised by notice to us prior
to the consummation of the relevant Acquisition Triggering Transaction or
Disposition Triggering Transaction, you may elect to receive payment of the
applicable Acquisition Additional Amount or Disposition Additional Amount in
cash in lieu of Creo Shares. It is understood and agreed that more than one
Acquisition Triggering Transaction or Disposition Triggering Transaction may
occur, and that each such event shall be subject to paragraphs 3 or 4 above,
as applicable, except that in calculating the relevant Additional Amounts
appropriate adjustment shall be made for any prior Additional Amounts paid by
us to you pursuant to such paragraphs in order to avoid duplicative payments.
6. In consideration of our agreement to purchase the Shares from you, you
represent and warrant to us as of January 15, 2003, as of the opening of
business on January 21, 2003 and as of the date hereof that (i) you are the
sole beneficial and record owner of the Shares, and have full legal power and
authority to transfer the Shares to us pursuant this letter, (ii) assuming the
accuracy of our representation in clauses (iii) and (iv) of Section 7 below,
the execution, delivery and consummation by you of this letter agreement, and
the transfer of the Shares to us, will not violate any law (including any U.S.
securities law) or breach any agreement to which you are party or subject,
(iii) upon delivery of the Shares to us against payment therefor as provided
in this letter, we will acquire all of your right and title to the Shares,
free and clear of any lien, claim or encumbrance of any kind created or
incurred by you (other than a legend as to restrictions on transfer under U.S.
securities laws the terms of which you previously provided to us) and (iv) you
are a "qualified institutional buyer" (as defined in Rule 144A under the
Securities Act of 1933, as amended) and
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are acquiring the Creo Shares solely for your own account for the purpose of
investment and not with a view to or for sale in connection with any
distribution thereof. You further agree and acknowledge that the Creo Shares
have not been and will not be registered under any U.S. or Canadian securities
laws and may not be resold or otherwise transferred except in compliance with
an applicable exemption from the registration requirements of such laws. You
also agree and acknowledge that the certificates or other documents
representing the Creo Shares may contain the following, or a substantially
similar, legend, which legend shall be removed only upon receipt of an opinion
of counsel satisfactory to us that such legend may be so removed:
THE SECURITIES REPRESENTED HEREBY (THE "SECURITIES") HAVE
NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933
OR ANY U.S. STATE OR CANADIAN SECURITIES LAWS AND MAY NOT
BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
REGISTERED UNDER SUCH SECURITIES LAWS OR UNLESS CREO SHALL
HAVE RECEIVED A SATISFACTORY OPINION OF COUNSEL THAT
REGISTRATION OF SUCH SECURITIES UNDER SUCH SECURITIES LAWS
IS NOT REQUIRED.
7. We represent and warrant to you as of January 15, 2003, as of the
opening of business on January 21, 2003 and as of the date hereof that (i) the
Creo Shares to be issued to you pursuant to this letter agreement have been
duly authorized by all necessary corporate action and, when issued in
accordance with the terms hereof, will be validly issued and outstanding,
fully paid and non-assessable, (ii) the execution, delivery and consummation
by us of this letter agreement, and the payment by us of the Purchase Price to
you, including, if applicable, the issuance by us of the Creo Shares to you in
satisfaction thereof, will not violate any law (including any U.S. securities
law) or breach any agreement to which we are party or subject, (iii) we are an
"accredited investor" (as defined in Rule 501 under the Securities Act of
1933, as amended (the "Act")), (iv) we are acquiring the Shares solely for our
own account and not for or on behalf of any other person or entity and not
with a view to or for sale in connection with any distribution thereof and (v)
any sales of the Shares will be made in compliance with the Act or any
applicable exemption available thereunder. It is understood and agreed that
you are making no representation or warranty with respect to Printcafe or the
Printcafe Common Stock, except as expressly provided herein, and that we are
making our own investment decision with respect to the Shares.
8. You hereby irrevocably appoint Creo Inc., its officers and designees,
and each of them, the attorneys-in-fact and proxies of you, each with full
power of substitution, to vote at any annual, special or adjourned meeting of
Printcafe's stockholders or otherwise in such manner as each such
attorney-in-fact and proxy or his substitute shall in his sole discretion deem
proper with respect to, to execute any written consent concerning any matter
as such attorney-in-fact and proxy or his substitute shall in his sole
discretion deem proper with respect to, and to otherwise act as each such
attorney-in-fact and proxy or his substitute shall in his sole discretion deem
proper with respect to, the Shares (and with respect to any and all other
Shares or other securities or rights issued or issuable in respect of such
Shares on or after January 21, 2003). This power of attorney and proxy are
irrevocable and are granted in consideration of the payment for such Shares in
accordance with the terms of this letter agreement, and shall hereby, without
further action, revoke all prior powers of attorney and proxies appointed by
you at any time with respect to such Shares (and any such other Shares or
securities or rights) and no subsequent powers of attorney, proxies, consent
or revocations may be given and (and, if given, will not be deemed effective)
by you.
9. Each of the undersigned parties hereto agree that they shall execute
such documents and other papers and take such further actions as may be
reasonably necessary or desirable to carry out the provisions of this letter
agreement and the transactions contemplated hereby.
10. We may assign our rights and obligations hereunder to one or more of
our subsidiaries, but any such assignment shall not relieve us of our
obligations hereunder.
11. In the event of a stock dividend, stock split, reverse stock split or
similar transaction after the date hereof which has the effect of increasing
or decreasing the outstanding number of shares of Printcafe Common Stock, all
per share amounts specified in this letter agreement shall be appropriately
and equitably adjusted to give retroactive effect to such event or
transaction.
Kindly confirm your agreement with the foregoing terms by signing in the
applicable place below and returning a copy of this letter to us.
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Very truly yours,
CREO INC.
By: /s/ Xxxx Xxxxx
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Accepted and agreed to:
HARBOURVEST PARTNERS VI--DIRECT FUND, L.P.
By: HarbourVest VI-Direct Associates LLC
Its General Partner
By: HarbourVest Partners, LLC
Its Managing Member
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxxx
Managing Director
HarbourVest Partners VI--Direct Fund L.P hereby irrevocably elects to
exercise its option to receive the Purchase Price or, if applicable, the
Acquisition Additional Amount or Disposition Additional Amount in cash.
HARBOURVEST PARTNERS VI--DIRECT FUND L.P.
By: HarbourVest VI--Direct Associates LLC
Its General Partner
By: HarbourVest Partners, LLC
Its Managing Member
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxxx
Managing Director
Dated: January 29, 2003
HarbourVest Partners VI--Direct Fund L.P hereby irrevocably elects to
exercise its option to receive the Purchase Price or, if applicable, the
Acquisition Additional Amount or Disposition Additional Amount in cash.
HARBOURVEST PARTNERS VI--DIRECT FUND L.P.
By: HarbourVest VI--Direct Associates LLC
Its General Partner
By: HarbourVest Partners, LLC
Its Managing Member
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxxx
Managing Director
Dated: January 29, 2003
