TENDER AGREEMENT
BY AND AMONG
HEWLETT-PACKARD COMPANY
AND
CERTAIN PRINCIPAL SHAREHOLDERS OF INDIGO N.V.
TENDER AGREEMENT
THIS TENDER AGREEMENT (this "AGREEMENT") is made and entered into as of
September 6, 2001, by and among Hewlett-Packard Company, a Delaware corporation
(the "Buyer"), and each of the individuals listed on the signature pages hereto
(each in his, her or its individual capacity, a "SHAREHOLDER," and,
collectively, the "SHAREHOLDERS").
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 to outstanding
options, warrants or other rights, as set forth on the signature pages of this
Agreement;
WHEREAS, the Buyer and the Company concurrently herewith are entering into
an Offer Agreement, dated as of the date hereof (the "OFFER AGREEMENT"), which
provides, among other things, (i) for the Buyer or a Subsidiary of the Buyer, as
promptly as practicable after the date hereof, to commence an exchange offer
(the "OFFER") to acquire all of the outstanding Common Shares of the Company in
exchange for either (x) shares of Buyer Common Stock or (y) shares of Buyer
Common Stock plus CVRs, and (ii) for the subsequent post-closing reorganization
to be accomplished upon the terms and subject to the conditions set forth in the
Offer Agreement; and
WHEREAS, as a condition to the willingness of the Buyer to enter into the
Offer Agreement, and in order to induce the Buyer to enter into the Offer
Agreement, 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
herein shall have the meanings ascribed to such terms in the Offer Agreement.
For purposes of this Agreement:
(a) "SHARES" shall mean: (i) all securities of the Company (including
all Common Shares and all options, warrants and other rights to acquire
Common Shares) owned by the Shareholder as of the date of this Agreement;
and (ii) all additional securities of the Company (including all additional
Common Shares and all additional options, warrants and other rights to
acquire Common Shares) of which the Shareholder acquires ownership during
the period from the date of this Agreement through the Termination Date.
(b) "TERMINATION DATE" shall mean the earlier to occur of (i) valid
termination of the Offer Agreement pursuant to Article VII thereof;
(ii) the Closing Time; or (iii) four months after the End Date as determined
pursuant to the Offer Agreement (ignoring for this purpose any amendment to
such agreement after the date hereof).
(c) TRANSFER. A Shareholder shall be deemed to have effected a
"TRANSFER" of Shares if such Shareholder directly or indirectly (i) sells,
pledges, encumbers, grants an option with respect to, transfers or otherwise
disposes of such Shares or any interest therein, or (ii) enters into an
agreement or commitment providing for the sale of, pledge of, encumbrance
of, grant of an option with respect to, transfer of or disposition of such
Shares or any interest therein.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER. Shareholder
hereby represents, warrants and covenants to the Buyer that Shareholder (i) is
the beneficial owner of the Common Shares and the options, warrants and other
rights to acquire Common Shares indicated on the signature pages of this
Agreement, free and clear of any pledges, options, rights of first refusal,
co-sale rights, attachments or other encumbrances other than as contemplated
hereby and the Shareholders'
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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 3. AGREEMENT TO TENDER SHARES. Each of the Shareholders hereby
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 4. TRANSFER OF THE SHARES. Except as required herein, each of 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 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 5. CERTAIN EVENTS. In the event of any stock split, stock
dividend, merger, reorganization, recapitalization or other change in the
capital structure of the Company affecting the Common Shares or the acquisition
of additional Common Shares or other securities or rights of the Company by 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 6. CERTAIN OTHER AGREEMENTS. From and after the date of this
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 not apply to any person in his capacity as a director of the
Company.
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SECTION 7. REGULATORY FILINGS. Each of the Shareholders hereby 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 8. FURTHER ASSURANCES. Each of the Shareholders hereby covenants
and agrees to, upon the request of the Buyer, execute and deliver any additional
documents and take such further actions as may be reasonably requested by the
Buyer to carry out the provisions of this Agreement; PROVIDED, that such action
is consistent with, and does not create any obligations that extend the general
scope of the provisions of this Agreement.
SECTION 9. [INTENTIONALLY OMITTED]
SECTION 10. LEGENDS. If so requested by the Buyer, Shareholder agrees to
use its reasonable best efforts to place on the certificates representing the
Shares a legend stating that they are subject to this Agreement.
SECTION 11. TERMINATION. Except as otherwise provided in this 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 any termination
of this Agreement.
SECTION 12. EXPENSES. All fees and expenses incurred by any one party
hereto shall be borne by the party incurring such fees and expenses; PROVIDED,
that if either party (i.e., the "INITIATING PARTY") institutes any action
against the other party (i.e., the "TARGET PARTY") to enforce the terms of this
Agreement, such target party shall pay reasonable costs and expenses, including,
without limitation, reasonable attorneys' fees and costs (collectively,
"COSTS"), incurred by the initiating party in connection with such action,
provided that the initiating party is successful in all material respects with
respect to all claims (after all appeals) ("MATERIAL SUCCESS") in its action
against the target party.
SECTION 13. MISCELLANEOUS.
(a) SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, then the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
(b) BINDING EFFECT AND ASSIGNMENT. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement nor
any of the rights, interests or obligations of the parties hereto may be
assigned by either of the parties without prior written consent of the
other.
(c) AMENDMENTS AND MODIFICATION. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by the parties hereto.
(d) SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties hereto
acknowledge that the Buyer shall be irreparably harmed and that there shall
be no adequate remedy at law for a violation of any of the covenants or
agreements of Shareholder set forth herein. Therefore, it is agreed that, in
addition to any other remedies that may be available to the Buyer upon any
such violation, the
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Buyer shall have the right to enforce such covenants and agreements by
specific performance, injunctive relief or by any other means available to
the Buyer at law or in equity.
(e) NOTICES. All notices and other communications pursuant to this
Agreement shall be in writing and deemed to be sufficient if contained in a
written instrument and shall be deemed given if delivered personally,
telecopied, sent by nationally-recognized overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid, to
the parties at the following address (or at such other address for a party
as shall be specified by like notice):
If to the Buyer: Hewlett-Packard Company
0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
With copies to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
Xxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
and
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
Xxx Xxxxxx
Xxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
If to the Shareholder: To the address for notice set forth on the signature
page hereof.
With copies to: Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
and
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
(f) REGISTERED SHARES. The Company agrees that each of the
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 construed
in accordance with the laws of the State of
New York, without giving effect
to the conflicts of law principles thereof.
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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 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 only
and shall not affect the construction or interpretation of this Agreement.
(j) COUNTERPARTS. This Agreement may be executed by facsimile and in
several counterparts, each of which shall be an original, but all of which
together shall constitute one and the same agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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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: /s/ XXXXXXX X. XXXXXXX
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: ASSISTANT SECRETARY
S-C INDIGO CV
By: S-C INDIGO II CV,
its General Partner
By: S-C GRAPHICS, INC.,
its General Partner
By: /s/ XXXXX XXXXXXX
-----------------------------------------
Name: Xxxxx Xxxxxxx
Title: VICE PRESIDENT
Address: c/o Chatterjee Group
--------------------------------------------
000 Xxxxxxx Xxxxxx
---------------------------------------------
Suite 3000 NYC 10106
---------------------------------------------
Telephone: -----------------------------------
Facsimile No.: --------------------------------
Shares beneficially owned:
shares of Common Shares
shares of Common Shares issuable upon the
exercise of outstanding options, warrants or
other rights.
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