Exhibit 10
[CREO LETTERHEAD]
January 17, 2003
▇▇▇▇▇▇▇▇ New Technologies Fund II, Inc.
c/o J. & ▇. ▇▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
This will confirm our agreement with respect to the purchase of
678,960 shares (the "Shares") of common stock, par value $.0001 per share
("Printcafe Common Stock"), of Printcafe Software, Inc. ("Printcafe") from
you:
1. We will purchase the Shares from you for an aggregate purchase price of
U.S.$882,648.00 (the "Purchase Price"). Except as you may elect at your sole
option pursuant to paragraph 2, 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 Creo in Burnaby, British Columbia, at 8 a.m.,
Pacific Standard time, on February 24, 2003, or such other time and date as
you and we shall mutually agree upon. At the Closing, upon receipt by you or
your custodian of the Purchase Price, you shall (A) deliver or cause to be
delivered to us 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 (B) 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 not less than two business days prior to the Closing. 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 at least two business
days prior to the Closing. At your option, exercised by notice to us two
business days prior to the Closing, you may elect to receive payment of the
Purchase Price in cash in lieu of Creo Shares. If you elect to receive cash,
at the Closing, we shall deliver the Purchase Price in U.S. dollars by wire
transfer in immediately available funds to an account or accounts designated
by you not less than two business days prior to the Closing.
3. If, within the period starting two months before the date of this letter
and ending two years after the Closing, we purchase 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 average per
share purchase price we paid for
1
the Additional Shares in such Acquisition Triggering Transaction, multiplied
by (ii) the number of Shares, over (y) the Purchase Price for the Shares.
Except as you may elect at your sole option pursuant to paragraph 5, 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 starting two months before the date of this letter
and ending two years after the Closing, we sell all of the shares of Printcafe
Common Stock that we own in a Disposition Triggering Transaction, we will pay
to you promptly after the completion of the Disposition Triggering Transaction
the excess, if any (the "Disposition Additional Amount") of (x) the product of
(i) the average per share purchase price 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. Except as you
may elect at your sole option pursuant to paragraph 5, 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 recapitalization, reorganization, conveyance of shares or
assets (including any pledge or derivative transaction that has the effect of
changing the economic benefits and risks of ownership), tender or exchange
offer, consolidation, amalgamation or merger or other similar transaction
pursuant to which we acquire, or following the consummation of which we own
(of record, beneficially or otherwise), hold or otherwise control, 60% or more
of the outstanding Printcafe Common Stock (including, as of any date of
determination, the Printcafe Common Stock owned by Creo or its affiliates as
of such date, and calculated based on the number of shares of Printcafe Common
Stock outstanding on such date), any security into or for which Printcafe
Common Stock has been converted or exchanged or any similar security of any
successor, or a purchase by us of a block of more than 750,000 shares of
Printcafe Common Stock or the purchase of any Printcafe Common Stock from
HarbourVest Partners VI--Direct Fund, L.P. or Mellon Ventures II, L.P. or any
of their affiliates, and (y) a "Disposition Triggering Event" means a
recapitalization, reorganization, conveyance of shares or assets (including
any pledge or derivative transaction that has the effect of changing the
economic benefits and risks of ownership), tender or exchange offer,
consolidation, amalgamation or merger or other similar transaction pursuant to
which any person or group (as defined in Section 13(d)(3) under the Securities
Exchange Act of 1934, as amended and Rule 13d-5(b) thereunder) other than Creo
or its affiliates acquires ownership (beneficially or otherwise) of, holds or
otherwise controls 60% or more of the outstanding Printcafe Common Stock
(calculated, as of any date of determination, based on the number of shares of
Printcafe Common Stock outstanding on such date), any security into or for
which Printcafe Common Stock has been converted or exchanged or any similar
security of any successor. Upon our becoming aware of the occurrence or
expected occurrence of an Acquisition Triggering Event or a Disposition
Triggering Event, we shall promptly provide notice to you of such event or
expected event, which notice shall include, to
2
the extent known, the Acquisition Additional Amount or Disposition Additional
Amount, as applicable, and the calculation thereof. At your option, exercised
by notice to us prior to the consummation of the relevant Acquisition
Triggering Transaction or Disposition Triggering Transaction (or, if later,
not more than two business days after you receive from us the notice referred
to in the preceding sentence), you may elect to receive payment of the
applicable Acquisition Additional Amount or Disposition Additional Amount in
cash in lieu of Creo Shares. If you elect to receive cash, we shall deliver
the Acquisition Additional Amount or the Disposition Additional Amount, as the
case may be, in U.S. dollars by wire transfer in immediately available funds
to an account or accounts designated by you in the election notice within
three business days of the closing of such transaction. It is understood and
agreed that more than one Acquisition Triggering Event or Disposition
Triggering Event 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 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) 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, and (iii) if you do not elect to receive cash in
payment of the Purchase Price, you represent and warrant to us that you are a
"qualified institutional buyer" (as defined in Rule 144A under the Securities
Act of 1933, as amended). If you elect to receive Creo Shares in payment of
the Purchase Price, any Acquisition Additional Amount or any Disposition
Additional Amount, (A) you further represent and warrant to us that you are
acquiring such 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, and (B) you further agree and acknowledge that such 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, and 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.
3
7. We represent and warrant to you 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 issuance by us of the Creo Shares to you will not violate any law or
breach any agreement to which we are party or subject, and (iii) we are and
any affiliate to which we assign our rights hereunder pursuant to paragraph 8
will be an "accredited investor" (as defined in Rule 501 under the Securities
Act of 1933, as amended) and are acquiring the Shares solely for our own
account for the purpose of investment and not with a view to or for sale in
connection with any distribution thereof.
8. This Agreement, including, without limitation, the representations,
warranties and covenants contained herein, shall be binding on the parties
hereto and their respective successors and assigns. 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.
9. This Agreement may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute one agreement
binding all of the parties hereto.
10. No amendment of any provision of this Agreement shall be effective unless
it is in writing and is signed by each of the parties hereto; no waiver of any
provision of this Agreement, or any consent regarding any term of this
Agreement, shall be effective unless it is in writing and is signed by the
party to be charged therewith, any such waiver or consent shall be effective
only for specific instances and specific purpose it is given and shall not
constitute a commitment to grant any other, further or continuing waiver or
consent.
11. The rights and remedies of the parties are deemed to be cumulative, and
not exclusive. No delay in exercising any right or remedy hereunder shall
constitute a waiver of such rights and remedies.
12. Notices given pursuant to any provision of this letter agreement shall be
addressed as follows: (a) if to the Company, to Creo Inc., ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇.▇. V5G 4MI, Attention: General Counsel, and (b) if to Seligman, to
▇. & ▇. ▇▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: General Counsel, or in any case to such other address as the
person to be notified may have requested in writing.
13. All of the agreements, representations and warranties of the parties
hereto shall survive the execution and delivery of this Agreement.
4
14. This letter agreement shall be governed by and construed in accordance
with the internal laws of the State of New York.
15. Each of the parties agree to maintain in strict confidence the contents
and terms of this Agreement and not disclose such contents or terms to any
third party except as required by applicable law; provided that the foregoing
shall not restrict Creo from issuing a press release promptly after the
Closing announcing it has acquired the Shares and the purchase price for the
Shares but so long as none of the other terms, including the identity of the
sellers, is disclosed.
Kindly confirm your agreement with the foregoing terms by
signing in the applicable place below and returning a copy of this letter to
us.
Very truly yours,
CREO INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------
5
Accepted and agreed to:
SELIGMAN NEW TECHNOLOGIES FUND II, INC.
By: ▇. & ▇. ▇▇▇▇▇▇▇▇ & Co. Incorporated,
its investment adviser
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: SVP
6
In connection with the letter agreement with Creo Inc., dated as of
the date hereof, the undersigned hereby irrevocably elects to exercise their
option to receive the Purchase Price and, if applicable, any Acquisition
Additional Amount or any Disposition Additional Amount in cash.
▇▇▇▇▇▇▇▇ NEW TECHNOLOGIES
FUND II, INC.
By: ▇. & ▇. ▇▇▇▇▇▇▇▇ & Co. Incorporated,
its investment adviser
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: SVP
Dated: January 17, 2003
[CREO LETTERHEAD]
January 17, 2003
▇▇▇▇▇▇▇▇ Communications and Information Fund, Inc.
c/o J. & ▇. ▇▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
This will confirm our agreement with respect to the purchase of
391,100 shares (the "Shares") of common stock, par value $.0001 per share
("Printcafe Common Stock"), of Printcafe Software, Inc. ("Printcafe") from
you:
1. We will purchase the Shares from you for an aggregate purchase price of
U.S.$508,430.00 (the "Purchase Price"). Except as you may elect at your sole
option pursuant to paragraph 2, 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 Creo in Burnaby, British Columbia, at 8 a.m.,
Pacific Standard time, on February 24, 2003, or such other time and date as
you and we shall mutually agree upon. At the Closing, upon receipt by you or
your custodian of the Purchase Price, you shall (A) deliver or cause to be
delivered to us 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 (B) 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 not less than two business days prior to the Closing. 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 at least two business
days prior to the Closing. At your option, exercised by notice to us two
business days prior to the Closing, you may elect to receive payment of the
Purchase Price in cash in lieu of Creo Shares. If you elect to receive cash,
at the Closing, we shall deliver the Purchase Price in U.S. dollars by wire
transfer in immediately available funds to an account or accounts designated
by you not less than two business days prior to the Closing.
3. If, within the period starting two months before the date of this letter
and ending two years after the Closing, we purchase 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 average per
share purchase price we paid for
1
the Additional Shares in such Acquisition Triggering Transaction, multiplied
by (ii) the number of Shares, over (y) the Purchase Price for the Shares.
Except as you may elect at your sole option pursuant to paragraph 5, 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 starting two months before the date of this letter
and ending two years after the Closing, we sell all of the shares of Printcafe
Common Stock that we own in a Disposition Triggering Transaction, we will pay
to you promptly after the completion of the Disposition Triggering Transaction
the excess, if any (the "Disposition Additional Amount") of (x) the product of
(i) the average per share purchase price 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. Except as you
may elect at your sole option pursuant to paragraph 5, 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 recapitalization, reorganization, conveyance of shares or
assets (including any pledge or derivative transaction that has the effect of
changing the economic benefits and risks of ownership), tender or exchange
offer, consolidation, amalgamation or merger or other similar transaction
pursuant to which we acquire, or following the consummation of which we own
(of record, beneficially or otherwise), hold or otherwise control, 60% or more
of the outstanding Printcafe Common Stock (including, as of any date of
determination, the Printcafe Common Stock owned by Creo or its affiliates as
of such date, and calculated based on the number of shares of Printcafe Common
Stock outstanding on such date), any security into or for which Printcafe
Common Stock has been converted or exchanged or any similar security of any
successor, or a purchase by us of a block of more than 750,000 shares of
Printcafe Common Stock or the purchase of any Printcafe Common Stock from
HarbourVest Partners VI--Direct Fund, L.P. or Mellon Ventures II, L.P. or any
of their affiliates, and (y) a "Disposition Triggering Event" means a
recapitalization, reorganization, conveyance of shares or assets (including
any pledge or derivative transaction that has the effect of changing the
economic benefits and risks of ownership), tender or exchange offer,
consolidation, amalgamation or merger or other similar transaction pursuant to
which any person or group (as defined in Section 13(d)(3) under the Securities
Exchange Act of 1934, as amended and Rule 13d-5(b) thereunder) other than Creo
or its affiliates acquires ownership (beneficially or otherwise) of, holds or
otherwise controls 60% or more of the outstanding Printcafe Common Stock
(calculated, as of any date of determination, based on the number of shares of
Printcafe Common Stock outstanding on such date), any security into or for
which Printcafe Common Stock has been converted or exchanged or any similar
security of any successor. Upon our becoming aware of the occurrence or
expected occurrence of an Acquisition Triggering Event or a Disposition
Triggering Event, we shall promptly provide notice to you of such event or
expected event, which notice shall include, to
2
the extent known, the Acquisition Additional Amount or Disposition Additional
Amount, as applicable, and the calculation thereof. At your option, exercised
by notice to us prior to the consummation of the relevant Acquisition
Triggering Transaction or Disposition Triggering Transaction (or, if later,
not more than two business days after you receive from us the notice referred
to in the preceding sentence), you may elect to receive payment of the
applicable Acquisition Additional Amount or Disposition Additional Amount in
cash in lieu of Creo Shares. If you elect to receive cash, we shall deliver
the Acquisition Additional Amount or the Disposition Additional Amount, as the
case may be, in U.S. dollars by wire transfer in immediately available funds
to an account or accounts designated by you in the election notice within
three business days of the closing of such transaction. It is understood and
agreed that more than one Acquisition Triggering Event or Disposition
Triggering Event 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 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) 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 and (iii) if you do not elect to receive cash in
payment of the Purchase Price, you represent and warrant to us that you are a
"qualified institutional buyer" (as defined in Rule 144A under the Securities
Act of 1933, as amended). If you elect to receive Creo Shares in payment of
the Purchase Price, any Acquisition Additional Amount or any Disposition
Additional Amount, (A) you further represent and warrant to us that you are
acquiring such 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, and (B) you further agree and acknowledge that such 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, and 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.
3
7. We represent and warrant to you 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 issuance by us of the Creo Shares to you will not violate any law or
breach any agreement to which we are party or subject, and (iii) we are and
any affiliate to which we assign our rights hereunder pursuant to paragraph 8
will be an "accredited investor" (as defined in Rule 501 under the Securities
Act of 1933, as amended) and are acquiring the Shares solely for our own
account for the purpose of investment and not with a view to or for sale in
connection with any distribution thereof.
8. This Agreement, including, without limitation, the representations,
warranties and covenants contained herein, shall be binding on the parties
hereto and their respective successors and assigns. 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.
9. This Agreement may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute one agreement
binding all of the parties hereto.
10. No amendment of any provision of this Agreement shall be effective unless
it is in writing and is signed by each of the parties hereto; no waiver of any
provision of this Agreement, or any consent regarding any term of this
Agreement, shall be effective unless it is in writing and is signed by the
party to be charged therewith, any such waiver or consent shall be effective
only for specific instances and specific purpose it is given and shall not
constitute a commitment to grant any other, further or continuing waiver or
consent.
11. The rights and remedies of the parties are deemed to be cumulative, and
not exclusive. No delay in exercising any right or remedy hereunder shall
constitute a waiver of such rights and remedies.
12. Notices given pursuant to any provision of this letter agreement shall be
addressed as follows: (a) if to the Company, to Creo Inc., ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇.▇. V5G 4MI, Attention: General Counsel, and (b) if to Seligman, to
▇. & ▇. ▇▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: General Counsel, or in any case to such other address as the
person to be notified may have requested in writing.
13. All of the agreements, representations and warranties of the parties
hereto shall survive the execution and delivery of this Agreement.
14. This letter agreement shall be governed by and construed in accordance
with the internal laws of the State of New York.
15. Each of the parties agree to maintain in strict confidence the contents
and terms of this Agreement and not disclose such contents or terms to any
third party except as required by applicable law; provided that the foregoing
shall not restrict Creo from issuing a press release promptly after the
Closing announcing it has acquired the Shares and the purchase price for the
Shares but so long as none of the other terms, including the identity of the
sellers, is disclosed.
4
Kindly confirm your agreement with the foregoing terms by
signing in the applicable place below and returning a copy of this letter to
us.
Very truly yours,
CREO INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
5
Accepted and agreed to:
SELIGMAN COMMUNICATIONS AND INFORMATION FUND, INC.
By: ▇. & ▇. ▇▇▇▇▇▇▇▇ & Co. Incorporated,
its investment adviser
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: SVP
6
In connection with the letter agreement with Creo Inc.,
dated as of the date hereof, the undersigned hereby irrevocably elects to
exercise their option to receive the Purchase Price and, if applicable, any
Acquisition Additional Amount or any Disposition Additional Amount in cash.
SELIGMAN COMMUNICATIONS AND
INFORMATION FUND, INC.
By: ▇. & ▇. ▇▇▇▇▇▇▇▇ & Co. Incorporated,
its investment adviser
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: SVP
Dated: January 17, 2003
[CREO LETTERHEAD]
January 17, 2003
Seligman Communications and Information Portfolio
c/o J. & ▇. ▇▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
This will confirm our agreement with respect to the purchase
of 8,000 shares (the "Shares") of common stock, par value $.0001 per share
("Printcafe Common Stock"), of Printcafe Software, Inc. ("Printcafe") from
you:
1. We will purchase the Shares from you for an aggregate purchase price of
U.S.$10,400.00 (the "Purchase Price"). Except as you may elect at your sole
option pursuant to paragraph 2, 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 Creo in Burnaby, British Columbia, at 8 a.m.,
Pacific Standard time, on February 24, 2003, or such other time and date as
you and we shall mutually agree upon. At the Closing, upon receipt by you or
your custodian of the Purchase Price, you shall (A) deliver or cause to be
delivered to us 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 (B) 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 not less than two business days prior to the Closing. 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 at least two business
days prior to the Closing. At your option, exercised by notice to us two
business days prior to the Closing, you may elect to receive payment of the
Purchase Price in cash in lieu of Creo Shares. If you elect to receive cash,
at the Closing, we shall deliver the Purchase Price in U.S. dollars by wire
transfer in immediately available funds to an account or accounts designated
by you not less than two business days prior to the Closing.
3. If, within the period starting two months before the date of this letter
and ending two years after the Closing, we purchase 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
1
completion of the Acquisition Triggering Transaction the excess, if any (the
"Acquisition Additional Amount") of (x) the product of (i) the 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 the Shares. Except as you may elect at your sole option
pursuant to paragraph 5, 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 starting two months before the date of this letter
and ending two years after the Closing, we sell all of the shares of Printcafe
Common Stock that we own in a Disposition Triggering Transaction, we will pay
to you promptly after the completion of the Disposition Triggering Transaction
the excess, if any (the "Disposition Additional Amount") of (x) the product of
(i) the average per share purchase price 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. Except as you
may elect at your sole option pursuant to paragraph 5, 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 recapitalization, reorganization, conveyance of shares or
assets (including any pledge or derivative transaction that has the effect of
changing the economic benefits and risks of ownership), tender or exchange
offer, consolidation, amalgamation or merger or other similar transaction
pursuant to which we acquire, or following the consummation of which we own
(of record, beneficially or otherwise), hold or otherwise control, 60% or more
of the outstanding Printcafe Common Stock (including, as of any date of
determination, the Printcafe Common Stock owned by Creo or its affiliates as
of such date, and calculated based on the number of shares of Printcafe Common
Stock outstanding on such date), any security into or for which Printcafe
Common Stock has been converted or exchanged or any similar security of any
successor, or a purchase by us of a block of more than 750,000 shares of
Printcafe Common Stock or the purchase of any Printcafe Common Stock from
HarbourVest Partners VI--Direct Fund, L.P. or Mellon Ventures II, L.P. or any
of their affiliates, and (y) a "Disposition Triggering Event" means a
recapitalization, reorganization, conveyance of shares or assets (including
any pledge or derivative transaction that has the effect of changing the
economic benefits and risks of ownership), tender or exchange offer,
consolidation, amalgamation or merger or other similar transaction pursuant to
which any person or group (as defined in Section 13(d)(3) under the Securities
Exchange Act of 1934, as amended and Rule 13d-5(b) thereunder) other than Creo
or its affiliates acquires ownership (beneficially or otherwise) of, holds or
otherwise controls 60% or more of the outstanding Printcafe Common Stock
(calculated, as of any date of determination, based on the number of shares of
Printcafe Common Stock outstanding on such date), any
2
security into or for which Printcafe Common Stock has been converted or
exchanged or any similar security of any successor. Upon our becoming aware of
the occurrence or expected occurrence of an Acquisition Triggering Event or a
Disposition Triggering Event, we shall promptly provide notice to you of such
event or expected event, which notice shall include, to the extent known, the
Acquisition Additional Amount or Disposition Additional Amount, as applicable,
and the calculation thereof. At your option, exercised by notice to us prior
to the consummation of the relevant Acquisition Triggering Transaction or
Disposition Triggering Transaction (or, if later, not more than two business
days after you receive from us the notice referred to in the preceding
sentence), you may elect to receive payment of the applicable Acquisition
Additional Amount or Disposition Additional Amount in cash in lieu of Creo
Shares. If you elect to receive cash, we shall deliver the Acquisition
Additional Amount or the Disposition Additional Amount, as the case may be, in
U.S. dollars by wire transfer in immediately available funds to an account or
accounts designated by you in the election notice within three business days
of the closing of such transaction. It is understood and agreed that more than
one Acquisition Triggering Event or Disposition Triggering Event 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 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) 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 and (iii) if you do not elect to receive cash in
payment of the Purchase Price, you represent and warrant to us that you are a
"qualified institutional buyer" (as defined in Rule 144A under the Securities
Act of 1933, as amended). If you elect to receive Creo Shares in payment of
the Purchase Price, any Acquisition Additional Amount or any Disposition
Additional Amount, (A) you further represent and warrant to us that you are
acquiring such 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, and (B) you further agree and acknowledge that such 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, and 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
3
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 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 issuance by us of the Creo Shares to you will not violate any law or
breach any agreement to which we are party or subject, and (iii) we are and
any affiliate to which we assign our rights hereunder pursuant to paragraph 8
will be an "accredited investor" (as defined in Rule 501 under the Securities
Act of 1933, as amended) and are acquiring the Shares solely for our own
account for the purpose of investment and not with a view to or for sale in
connection with any distribution thereof.
8. This Agreement, including, without limitation, the representations,
warranties and covenants contained herein, shall be binding on the parties
hereto and their respective successors and assigns. 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.
9. This Agreement may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute one agreement
binding all of the parties hereto.
10. No amendment of any provision of this Agreement shall be effective unless
it is in writing and is signed by each of the parties hereto; no waiver of any
provision of this Agreement, or any consent regarding any term of this
Agreement, shall be effective unless it is in writing and is signed by the
party to be charged therewith, any such waiver or consent shall be effective
only for specific instances and specific purpose it is given and shall not
constitute a commitment to grant any other, further or continuing waiver or
consent.
11. The rights and remedies of the parties are deemed to be cumulative, and
not exclusive. No delay in exercising any right or remedy hereunder shall
constitute a waiver of such rights and remedies.
12. Notices given pursuant to any provision of this letter agreement shall be
addressed as follows: (a) if to the Company, to Creo Inc., ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇.▇. V5G 4MI, Attention: General Counsel, and (b) if to Seligman, to
▇. & ▇. ▇▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: General Counsel, or in any case to such other address as the
person to be notified may have requested in writing.
13. All of the agreements, representations and warranties of the parties
hereto shall survive the execution and delivery of this Agreement.
4
14. This letter agreement shall be governed by and construed in accordance
with the internal laws of the State of New York.
15. Each of the parties agree to maintain in strict confidence the contents
and terms of this Agreement and not disclose such contents or terms to any
third party except as required by applicable law; provided that the foregoing
shall not restrict Creo from issuing a press release promptly after the
Closing announcing it has acquired the Shares and the purchase price for the
Shares but so long as none of the other terms, including the identity of the
sellers, is disclosed.
Kindly confirm your agreement with the foregoing terms by
signing in the applicable place below and returning a copy of this letter to
us.
Very truly yours,
CREO INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------
5
Accepted and agreed to:
SELIGMAN COMMUNICATIONS AND INFORMATION PORTFOLIO
By: ▇. & ▇. ▇▇▇▇▇▇▇▇ & Co. Incorporated,
its investment adviser
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: SVP
6
In connection with the letter agreement with Creo Inc., dated as
of the date hereof, the undersigned hereby irrevocably elects to exercise their
option to receive the Purchase Price and, if applicable, any Acquisition
Additional Amount or any Disposition Additional Amount in cash.
SELIGMAN COMMUNICATIONS AND
INFORMATION PORTFOLIO
By: ▇. & ▇. ▇▇▇▇▇▇▇▇ & Co. Incorporated,
its investment adviser
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: SVP
Dated: January 17, 2003
