0000912057-01-532743.txt : 20011008
0000912057-01-532743.hdr.sgml : 20011008
ACCESSION NUMBER: 0000912057-01-532743
CONFORMED SUBMISSION TYPE: SC 13D/A
PUBLIC DOCUMENT COUNT: 7
FILED AS OF DATE: 20010919
GROUP MEMBERS: HEWLETT-PACKARD EUROPE B.V.
SUBJECT COMPANY:
COMPANY DATA:
COMPANY CONFORMED NAME: INDIGO NV
CENTRAL INDEX KEY: 0000920910
STANDARD INDUSTRIAL CLASSIFICATION: PRINTING TRADES MACHINERY & EQUIPMENT [3555]
IRS NUMBER: 000000000
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: SC 13D/A
SEC ACT: 1934 Act
SEC FILE NUMBER: 005-59627
FILM NUMBER: 1740687
BUSINESS ADDRESS:
STREET 1: LUCHTHAVENWEG 59 VII
STREET 2: 5657 EA EINDHOVEN
CITY: NETHERLANDS
STATE: P8
BUSINESS PHONE: 2124085100
MAIL ADDRESS:
STREET 1: C/O INDIGO INTERNATIONAL INC
STREET 2: 400 UNICORN PARK DRIVE
CITY: WOBURN
STATE: MA
ZIP: 08101
FILED BY:
COMPANY DATA:
COMPANY CONFORMED NAME: HEWLETT PACKARD CO
CENTRAL INDEX KEY: 0000047217
STANDARD INDUSTRIAL CLASSIFICATION: COMPUTER & OFFICE EQUIPMENT [3570]
IRS NUMBER: 941081436
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1031
FILING VALUES:
FORM TYPE: SC 13D/A
BUSINESS ADDRESS:
STREET 1: 3000 HANOVER ST
CITY: PALO ALTO
STATE: CA
ZIP: 94304
BUSINESS PHONE: 4158571501
MAIL ADDRESS:
STREET 1: 3000 HANOVER ST
STREET 2: MS 20BL
CITY: PALO ALTO
STATE: CA
ZIP: 94304
SC 13D/A
1
a2058850zsc13da.txt
SC 13D/A
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 2)*
INDIGO N.V.
--------------------------------------------------------------------------------
(Name of Issuer)
Common shares, par value 0.04 Dutch guilders per share
--------------------------------------------------------------------------------
(Title of Class of Securities)
N44495104
--------------------------------------------------------------------------------
(CUSIP Number)
Charles N. Charnas, Esq.
Assistant Secretary
Hewlett-Packard Company
3000 Hanover Street, MS20-BQ
Palo Alto, California 94304
Telephone: (650) 857-1501
--------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
Copy to:
Larry W. Sonsini, Esq.
Aaron J. Alter, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
Telephone: (650) 493-9300
September 6, 2001
--------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of Sections 240.13d-1(e), 240.13d-1(f) or
240.13d-1(g), check the following box.[ ]
NOTE: Schedules filed in paper format shall include a signed original and
five copies of the schedule, including all exhibits. See Section 240.13d-7
for other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Schedule 13D
CUSIP No. N44495104
--------------------------------------------------------------------------------
1. Names of Reporting Persons. I.R.S. Identification Nos. of above
persons (entities only).
Hewlett-Packard Company
--------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group (See
Instructions)
(a) [X]
(b) [ ]
--------------------------------------------------------------------------------
3. SEC Use Only
--------------------------------------------------------------------------------
4. Source of Funds (See Instructions) WC, 00(1)
--------------------------------------------------------------------------------
5. Check if Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e)
--------------------------------------------------------------------------------
6. Citizenship or Place of Organization Delaware
--------------------------------------------------------------------------------
Number of 7. Sole Voting Power - 0 -
Shares ------------------------------------------------------------
Beneficially 8. Shared Voting Power 118,671,035 Common Shares(2)
Owned by ------------------------------------------------------------
Each 9. Sole Dispositive Power - 0 -
Reporting ------------------------------------------------------------
Person With 10. Shared Dispositive Power 118,671,035 Common Shares(2)
--------------------------------------------------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
118,671,035 Common Shares
--------------------------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions)
--------------------------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11) 83.9%
--------------------------------------------------------------------------------
14. Type of Reporting Person (See Instructions)
CO
--------------------------------------------------------------------------------
(1) Source of funds for the initial purchase of Indigo N.V. securities reported
on the Schedule 13D filed on October 27, 2000 was working capital of
Hewlett-Packard Europe B.V. Subject to the terms and conditions of the
Offer Agreement (discussed herein and filed as Exhibit 7 hereto), a
combination of common stock of Hewlett-Packard Company and contingent value
rights of Hewlett-Packard Company or one of its affiliates will be used to
purchase Indigo N.V. common stock pursuant to an exchange offer for all of
the outstanding common stock of Indigo N.V. not owned by Hewlett-Packard
Company or its affiliates. It is anticipated that any payments under the
contingent value rights will be made from the working capital of
Hewlett-Packard Company or one of its affiliates.
(2) Includes 77,041,406 common shares of Indigo N.V. that are subject to the
Voting Agreements (discussed in Item 6 below and filed as Exhibits 12
and 13 hereto) entered into between Hewlett-Packard Company and certain
shareholders of Indigo N.V. (27,728,512 of which Common Shares are also
subject to the Tender Agreements discussed in Item 6 below and filed as
Exhibits 10 and 11 hereto and 49,312,894 of which Common Shares are
also subject to the Tender and Option Agreement discussed in Item 6
below and filed as Exhibit 9 hereto). The remaining 41,629,629 shares of
Indigo N.V., or rights to acquire such shares, are held by
Hewlett-Packard Europe B.V. or Hewlett-Packard Company. Hewlett-Packard
Company expressly
Schedule 13D
disclaims beneficial ownership of any of the Common Shares of Indigo N.V.
covered by the Voting Agreements, the Tender Agreements and/or the
Tender and Option Agreement until such time as Hewlett-Packard Company
purchases any such shares.
Schedule 13D
CUSIP No. N444495104
--------------------------------------------------------------------------------
1. Names of Reporting Persons. I.R.S. Identification Nos. of above
persons (entities only).
Hewlett-Packard Europe B.V.
--------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group (See
Instructions)
(a) [X]
(b) [ ]
--------------------------------------------------------------------------------
3. SEC Use Only
--------------------------------------------------------------------------------
4. Source of Funds (See Instructions) WC, 00(1)
--------------------------------------------------------------------------------
5. Check if Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e)
--------------------------------------------------------------------------------
6. Citizenship or Place of Organization Delaware
--------------------------------------------------------------------------------
Number of 7. Sole Voting Power - 0 -
Shares ------------------------------------------------------------
Beneficially 8. Shared Voting Power 41,629,629 Common Shares
Owned by ------------------------------------------------------------
Each 9. Sole Dispositive Power - 0 -
Reporting ------------------------------------------------------------
Person With 10. Shared Dispositive Power 41,629,629 Common Shares
--------------------------------------------------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
41,629,629 Common Shares
--------------------------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions)
--------------------------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11) 30.4%
--------------------------------------------------------------------------------
14. Type of Reporting Person (See Instructions)
CO
--------------------------------------------------------------------------------
(1) Source of funds for the initial purchase of Indigo N.V. securities reported
on the Schedule 13D filed on October 27, 2000 was working capital of
Hewlett-Packard Europe B.V.
Schedule 13D
AMENDMENT NO. 2 TO
STATEMENT PURSUANT TO RULE 13d-1
OF THE GENERAL RULES AND REGULATIONS
UNDER THE SECURITIES ACT OF 1934, AS AMENDED
This Amendment No. 2 amends the Schedule 13D originally filed on
October 27, 2000 (the "Schedule 13D"), and amends and restates in its
entirety Amendment No. 1 to the Schedule 13D ("Amendment No. 1"), which
Amendment No. 1 was originally filed on September 7, 2001. The Schedule 13D
relates to common shares, par value 0.04 Dutch guilders per share (the
"Common Shares") of Indigo N.V., a corporation organized under the laws of
The Netherlands (the "Issuer" or "Indigo N.V." or the "Company"). Capitalized
terms used herein but not defined herein shall have the meanings attributed
to them in the Schedule 13D. The items listed below are hereby amended and
supplemented as follows:
ITEM 2. IDENTITY AND BACKGROUND.
ITEM 2 OF THE SCHEDULE 13D IS HEREBY AMENDED, SUPPLEMENTED AND/OR RESTATED AS
FOLLOWS:
1. SCHEDULE A THERETO IS HEREBY AMENDED AND RESTATED IN ITS ENTIRETY
AS SET FORTH ON SCHEDULE A HERETO.
2. PARAGRAPHS (d) AND (e) OF ITEM 2 ARE HEREBY AMENDED AND RESTATED
IN THEIR ENTIRETY TO READ AS FOLLOWS:
(d) During the last five years none of the Reporting Persons or,
to the best of their knowledge, any of (1) the Reporting
Persons' subsidiaries, executive officers or directors; (2)
the executive officers and directors of any person
controlled by such Reporting Persons; or (3) the directors
and executive officers of any person ultimately in control
of the Reporting Persons has been convicted in a criminal
proceeding (excluding traffic violations or similar
misdemeanors).
(e) During the last five years none of the Reporting Persons or,
to the best of their knowledge, any of (1) the Reporting
Persons' subsidiaries, executive officers or directors; (2)
the executive officers and directors of any person
controlled by such Reporting Persons; or (3) the directors
and executive officers of any person ultimately in control
of the Reporting Persons was party to a civil proceeding of
a judicial or administrative body of competent jurisdiction
and as a result of such proceeding was or is subject to a
judgment, decree or final order enjoining future violations
of, or prohibiting or mandating activities subject to,
Federal or State securities laws or finding any violation
with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
ITEM 3 OF THE SCHEDULE 13D IS HEREBY AMENDED AND SUPPLEMENTED AS FOLLOWS:
1. ITEM 3 SHALL BE AMENDED BY ADDING THE FOLLOWING PARAGRAPHS:
The source and amount of funds or other consideration
to be used by Hewlett-Packard Company or one of its direct or
indirect subsidiaries to purchase the Common Shares of the
Company in connection with an exchange offer (as described in
Item 4 below) are newly issued shares of Hewlett-Packard
Company common stock and non-transferable contingent value
rights ("CVR") to be issued by Hewlett-Packard Company or one
of its direct or indirect subsidiaries. In exchange for each
share of the common stock of the Company, shareholders of the
Company may elect to receive either (1) $7.50 in
Hewlett-Packard common stock or (2) $6.00 in Hewlett-Packard
common stock plus one CVR entitling its holder to a cash
payment of up to $4.50 if the Company's business achieves a
total of $1.6 billion in revenue over a three-year
post-closing period. The total number of the Company's common
shares that will be exchanged for each of the above-described
elections is limited. If either election is oversubscribed,
the Company's shareholders who have tendered into the exchange
offer will be subject to proration to achieve the fixed number
associated with each election as described in the Offer
Agreement (as defined in Item 4 below). Hewlett-Packard
anticipates that any payments made under the CVRs will be made
from the working capital of Hewlett-Packard Company or one of
its affiliates.
ITEM 4. PURPOSE OF TRANSACTION.
ITEM 4 OF THE SCHEDULE 13D IS HEREBY AMENDED, SUPPLEMENTED AND/OR RESTATED AS
FOLLOWS:
Schedule 13D
1. THE FIRST AND FOURTEENTH PARAGRAPHS THEREOF ARE HEREBY DELETED
AND REPLACED IN THEIR ENTIRETY WITH THE FOLLOWING PARAGRAPHS:
Pursuant to an Offer Agreement, dated as of
September 6, 2001 (the "Offer Agreement"), by and between
Hewlett-Packard Company and the Company, Hewlett-Packard
Company or one of its direct or indirect subsidiaries intends
to commence an exchange offer for all the outstanding Common
Shares of the Company not owned by Hewlett-Packard and its
affiliates in exchange for a combination of shares of
Hewlett-Packard Company's common stock and CVRs.
Pursuant to the Offer Agreement, Hewlett-Packard
Company intends, simultaneously with or as soon as possible
after the Closing (as defined in the Offer Agreement) to
effectuate a corporate reorganization (the "Post-Closing
Reorganization") of the Company and its subsidiaries, which
may include, without limitation (i) the commencement of a
compulsory acquisition by Hewlett-Packard Company of Common
Shares from any remaining minority shareholder in
accordance with Section 2:92a of the Dutch Civil Code (the
"DCC"), (ii) the amendment of the Articles of Association
of the Company to permit the creation, among other things,
of separate classes of shares, (iii) the distribution of an
extraordinary dividend on the shares of the Company or a
particular class or classes of shares of Indigo N.V., (iv)
the sale and transfer by the Company, or any of its
subsidiaries, to Hewlett-Packard Company, or any affiliates
of Hewlett-Packard Company, of all or a portion of the
assets of the Company or its subsidiaries, (v) the
effectuation by the Company and one or more Dutch
Subsidiaries of Hewlett-Packard Company of a legal merger
within the meaning of Section 2:309 of the DCC, (vi) the
termination of the listing of the Company's Shares on the
Nasdaq National Market, (vii) the deregistration of the
Company under the Exchange Act and the cessation of the
Company's reporting obligations thereunder, or (viii) any
one or more combinations of any of the foregoing actions.
The Offer Agreement contains a number of
provisions limiting the ability of the Company to become
acquired by, or to pursue the acquisition of the Company by,
any persons other than Hewlett-Packard Company or one of its
direct or indirect subsidiaries during the pendency of the
Offer Agreement. Among other things, the Offer Agreement
contains non-solicitation provisions that, among other things,
prohibit Indigo N.V. from soliciting or discussing any
Acquisition Proposal (as defined in the Offer Agreement),
approving or recommending any Acquisition Proposal, or
entering into a letter of intent or agreement relating to any
Acquisition Proposal. These non-solicitation provisions
terminate upon the earlier of the closing of the Offer or the
termination of the Offer Agreement pursuant to Article VII
thereof. In addition, certain shareholders of the Company have
entered into a Tender and Option Agreements, Tender Agreements
and Voting Agreements as described in Item 6 which may impede
the acquisition of control of the Company by any person other
than Hewlett-Packard Company or one of its direct or indirect
subsidiaries.
-3-
Schedule 13D
2. THE ELEVENTH PARAGRAPH THEREOF IS HEREBY AMENDED AND SUPPLEMENTED BY
ADDING THE FOLLOWING SENTENCE AS THE LAST SENTENCE THEREOF.
Pursuant to the Offer Agreement, Indigo N.V.'s
approval of and consent to the Offer also constitutes approval
for purposes of the standstill provisions set forth in the
Shareholders' Agreement; provided that, in the event the Offer
Agreement is terminated pursuant to Article VII thereof, such
standstill provisions shall continue in full force and effect
after such termination.
3. THE THIRTEEN PARAGRAPH THEREOF IS HEREBY DELETED AND REPLACED IN
ITS ENTIRETY WITH THE FOLLOWING SENTENCE.
Pursuant to the Offer Agreement, Hewlett-Packard
Company has agreed that neither it nor any of its direct or
indirect subsidiaries will sell or otherwise transfer any
Common Shares of Indigo N.V. (other than amongst
Hewlett-Packard Company and its direct and indirect
subsidiaries) until the earlier of the closing of the Offer
or the termination of the Offer Agreement pursuant to
Article VII thereof.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
ITEM 5 OF THE SCHEDULE 13D IS HEREBY AMENDED, SUPPLEMENTED AND/OR RESTATED AS
FOLLOWS:
1. PARAGRAPHS (a) AND (b) OF ITEM 5 ARE HEREBY AMENDED AND RESTATED IN
THEIR ENTIRETY TO READ AS FOLLOWS:
(a) The Reporting Persons beneficially own the 14,814,814
Common Shares owned by Purchaser, 14,814,815 Warrant Shares
that Hewlett-Packard Europe B.V. has a right to acquire
through the exercise of the Acquisition Warrant and
12,000,000 Warrant Shares that Hewlett-Packard Europe B.V.
has a right to acquire through the exercise of the
Performance Warrant. Hewlett-Packard Company also has the
right to vote an additional 77,041,406 shares pursuant to
the Voting Agreements and to purchase such shares in the
Offer pursuant to the Tender Agreements and the Tender and
Option Agreement, although Hewlett-Packard Company
disclaims beneficial ownership of these shares.
Accordingly, the Reporting Persons may be deemed to be the
beneficial owners of 118,671,035 Common Shares, or 83.9% of
the Common Shares. The number of Company Common Shares
outstanding is based upon the Common Shares issued and
outstanding as of September 5, 2001, as represented by the
Company in the Offer Agreement.
(b) Hewlett-Packard Company, as the sole indirect
stockholder of Purchaser, and Purchaser, have shared power to
dispose, or direct the disposition of the 14,814,814 Common
Shares previously purchased and the Acquisition Warrant and
the Performance Warrant and shared power to vote, or to direct
the vote of the 14,814,814 Common Shares previously purchased.
As between Hewlett-Packard Company and the Purchaser,
Hewlett-Packard Company has the sole power to vote and dispose
of the 77,041,406 shares beneficially owned by it pursuant to
the Tender and Option Agreement, the Tender Agreements, and
the Voting Agreements (including the shares that would be
received upon the complete exercise of the option provided
pursuant to the Tender and Option Agreement).
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
ITEM 6 OF THE SCHEDULE 13D IS HEREBY AMENDED, SUPPLEMENTED AND/OR RESTATED AS
FOLLOWS:
Item 6 - Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer
(a) OFFER AGREEMENT
The Offer Agreement is described and/or referred to
in Item 4 and is filed as Exhibit 7.
(b) THE FORM OF CVR AGREEMENT
The CVRs are described and/or referred to in Item 3
and the Form of CVR Agreement is filed as Exhibit 8.
(c) AGREEMENTS WITH THE LANDA FAMILY TRUST
AFFILIATES, S-C INDIGO C.V. AND CERTAIN OFFICERS AND
DIRECTORS OF THE COMPANY
As an inducement to Hewlett-Packard Company to
enter into the Offer Agreement, (1) the following entities:
Gemini Systems Corporation N.V., Toscal N.V., Visionvest
N.V., Deering Corporation N.V. and OZF Ltd. (collectively,
the "Landa Family Trust Affiliates") entered into a Tender
and Option Agreement with Hewlett-Packard Company as
described below and a copy of which is attached as Exhibit
9, (2) S-C Indigo C.V. entered into a Tender Agreement with
Hewlett-Packard Company as described below and a copy of
which is attached as Exhibit 10, (3) certain officers and
directors of the Company as listed on Schedule C hereto
entered into a Tender Agreement with Hewlett-Packard
Company as described below and a copy of the form of which
is attached as Exhibit 11, (4) S-C Indigo C.V. entered into
a Voting Agreement with Hewlett-Packard Company as
described below and a copy of which is attached as Exhibit
12,
-4-
Schedule 13D
and (5) the Landa Family Trust Affiliates and certain
officers and directors of the Company as listed on Schedule
C have each entered into a Voting Agreement with
Hewlett-Packard Company as described below and a copy of
the form of which is attached as Exhibit 13.
Pursuant to the Voting Agreements, each of the
Company shareholders who is a party thereto agreed, among
other things, to vote its Common Shares: (i) in favor of
the appointment of the new members of Indigo N.V.'s
Management and Supervisory Boards as set forth in the Offer
Agreement; (ii) in favor of the amendment of Indigo N.V.'s
Articles of Association as contemplated by the Offer
Agreement; (iii) in favor of the Post-Closing
Reorganization (as defined in the Offer Agreement) and any
action required in furtherance thereof as contemplated by
the Offer Agreement; (iv) against certain alternative
transactions; and (v) in favor of waiving any notice that
may have been or may be required relating to the Offer or
any of the other transactions contemplated by the Offer
Agreement, including the Post-Closing Reorganization.
Pursuant to the Voting Agreements, each of the Company
shareholders who is a party thereto also agreed not to
transfer its Common Shares to any party from the date of
the Voting Agreements, unless such party agrees: (a) to
execute a counterpart to the Voting Agreement and to
execute an irrevocable proxy (the "Irrevocable Proxy")
substantially in the form set forth as Exhibit A to the
Voting Agreements; and (b) to hold such Common Shares, or
such interest therein, subject to all of the terms and
conditions of the Voting Agreement. In furtherance of the
foregoing, each of the Company shareholders who is a party
to a Voting Agreement granted Hewlett-Packard Company an
Irrevocable Proxy to vote such shareholder's Common Shares
as described above. The Voting Agreements and the
Irrevocable Proxies will terminate on the earlier of the
closing of the Offer or the termination of the Offer
Agreement pursuant to Article VII thereof; provided, that
the Voting Agreement and Irrevocable Proxy between
Hewlett-Packard Company and S-C Indigo C.V. will terminate
on December 30, 2002 if such date is earlier.
Hewlett-Packard Company did not pay any additional
consideration to any shareholder of Indigo N.V. in
connection with the execution and delivery of the Voting
Agreements.
Pursuant to the Tender Agreements, each of the
Company shareholders who is a party thereto agreed to
tender their Common Shares (including any subsequently
acquired Common Shares) in the Offer pursuant to and in
accordance with the terms of the Offer Agreement. Each of
these shareholders further agreed not to withdraw any of
the Common Shares they tender unless the Offer is
terminated or has expired. Each of these shareholders also
agreed not to transfer its Common Shares to any party from
the date of the Tender Agreement, unless such party agrees:
(i) to execute a counterpart to the Tender Agreement; and
(ii) to hold such Common Shares, or such interest therein,
subject to all of the terms and conditions of the Tender
Agreement. The Tender Agreements will terminate on the
earlier of the closing of the Offer or the termination of
the Offer Agreement pursuant to Article VII thereto;
provided, that the Tender Agreement between Hewlett-Packard
Company and S-C Indigo C.V. will terminate on December 30,
2002 if such date is earlier. Hewlett-Packard Company did
not pay any additional consideration to any shareholder of
Indigo N.V. in connection with the execution and delivery
of the Tender Agreements.
Pursuant to the Tender and Option Agreement, the
Landa Family Trust Affiliates have agreed to tender their
Common Shares (including any subsequently acquired Common
Shares) in the Offer under substantially the same terms as
the Tender Agreements described above. In addition, the
Landa Family Trust Affiliates have, pursuant to the Tender
and Option Agreement, granted Hewlett-Packard Company an
irrevocable option (the "Option"), under certain
circumstances, to purchase all of their Common Shares. The
Option is only exercisable by Hewlett-Packard Company upon
such shareholder's breach of its obligations to tender its
Common Shares into the Offer or upon such shareholder's
breach of any other material agreement or covenant on the
part of such shareholder set forth in the Tender and Option
Agreement. Pursuant to the Tender and Option Agreement, the
Landa Family Trust Affiliates also agreed, to the extent
that either the Fixed Offer Price (as defined in the Offer
-5-
Schedule 13D
Agreement) or the Contingent Offer Price (as defined in the
Offer Agreement) is oversubscribed, to automatically elect
to receive the undersubscribed consideration alternative
for up to all of the Common Shares held by such
shareholder. The Tender and Option Agreement will terminate
on the earlier of the closing of the Offer or the
termination of the Offer Agreement pursuant to Article VII
thereof. Hewlett-Packard Company did not pay additional
consideration to any shareholder of Indigo N.V. in
connection with the execution and delivery of the Tender
and Option Agreement.
References to, and descriptions of, the Offer, the
Offer Agreement, the CVR Agreement, the Voting Agreements,
the Irrevocable Proxies, the Tender Agreements and the
Tender and Option Agreement as set forth in this Schedule
13D are qualified in their entirety by the terms of the
Offer Agreement, the CVR Agreement, the Voting Agreements,
the Irrevocable Proxies, the Tender Agreements and the
Tender and Option Agreement, which are incorporated herein
by reference.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
ITEM 7 OF THE SCHEDULE 13D IS HEREBY AMENDED AND SUPPLEMENTED AS FOLLOWS:
1. THE EXHIBIT DESCRIPTION LIST THEREOF SHALL BE AMENDED BY ADDING THE
FOLLOWING EXHIBITS TO THE LIST:
The Offer Agreement has been revised by agreement of the
parties thereto to make certain technical corrections to reflect the
intent of the parties thereto. The Offer Agreement filed as an
exhibit hereto is filed in its revised form.
7. Offer Agreement, dated as of September 6, 2001, by and between
Hewlett-Packard Company and Indigo N.V. (Incorporated by
reference to exhibit 99.1 to the Report on Form 8/K-A filed by
Hewlett-Packard Company on September 19, 2001).
8. Form of Contingent Value Rights Agreement (Incorporated by
reference to exhibit 99.3 to the Report on Form 8-K/A filed by
Hewlett-Packard Company on September 19, 2001).
9. Tender and Option Agreement, dated as of September 6, 2001, by
and among Hewlett-Packard Company and the Landa Family
Trust Affiliates.
10. Tender Agreement, dated as of September 6, 2001, by and among
Hewlett-Packard Company and S-C Indigo C.V.
11. Form of Tender Agreement by and between Hewlett-Packard
Company and certain officers and directors of Indigo N.V.
12. Voting Agreement and Irrevocable Proxy, dated as of
September 6, 2001, by and among Hewlett-Packard Company and
S-C Indigo C.V.
13. Form of Voting Agreement and Irrevocable Proxy by and
between Hewlett-Packard Company and the Landa Family Trust
Affiliates and certain officers and directors of Indigo N.V.
14. Power of Attorney, dated September 7, 2001, authorizing
Charles N. Charnas to sign on behalf of Hewlett-Packard Europe
B.V.
-6-
Schedule 13D
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete and
correct.
Dated: September 19, 2001
-----------------------------------
HEWLETT-PACKARD COMPANY
By: /s/ Charles N. Charnas
------------------------------
Name: Charles N. Charnas
Title: Assistant Secretary
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete and
correct.
Dated: September 19, 2001
-----------------------------------
HEWLETT-PACKARD EUROPE B.V.
By: /s/ Charles N. Charnas
------------------------------
Name: Charles N. Charnas*
* Pursuant to a Power of Attorney attached hereto as Exhibit 14.
-7-
SCHEDULE A
DIRECTORS AND EXECUTIVE OFFICERS
OF HEWLETT-PACKARD COMPANY
The name and present principal occupation or employment, and the
name, principal business and address of any corporation or other organization
in which such employment is conducted, of each executive officer and director
of Hewlett-Packard Company are set forth below. Unless otherwise indicated,
each individual's business address is the address of Hewlett-Packard Company,
3000 Hanover Street, MS20-BT, Palo Alto, California 94304. Other than Iain M.
Morris, who is a citizen of the United Kingdom, each individual is a citizen
of the United States.
NAME PRESENT PRINCIPAL OCCUPATION AND BUSINESS ADDRESS
Susan D. Bowick Vice President and Director, Corporate Human
Resources
Richard A. DeMillo Vice President and Chief Technology Officer
Debra L. Dunn Vice President, Strategy and Corporate
Operations
Carleton S. Fiorina* Chairman, President and Chief Executive Officer
Jon Flaxman Vice President and Corporate Controller
Vyomesh Joshi President, Imaging and Printing Systems
Pradeep Jotwani President, Consumer Business Organization
Ann M. Livermore President, HP Services
Harry W. McKinney President, Business Customer Organization
Iain M. Morris President, Embedded and Personal Systems
Robert P. Wayman* Executive Vice President, Finance and
Administration and Chief Financial Officer
Duane E. Zitzner President, Computing Systems
Philip M. Condit* Chairman and Chief Executive Officer of The
Boeing Company, P.O. Box 3707 - M/S 10-10,
Seattle, Washington 98124-2207
Patricia C. Dunn* Chairman and Chief Executive Officer of
Barclays Global Investors, 45 Fremont Street,
San Francisco, California, 94105
Sam Ginn* Retired Chairman of Vodafone Air Touch PLC,
1 California Street, 30th Floor, San Francisco,
California, 94111
Richard A. Hackborn* 2895 Los Altos Drive, Meridian, ID 83642
-8-
Walter B. Hewlett* Independent Software Developer, 945 Addison
Avenue, Palo Alto, California, 94301
Dr. George A. Keyworth II* Chairman and Senior Fellow, The Progress and
Freedom Foundation, a public policy research
institute, 41 Avenida de las Casas, Santa Fe,
New Mexico, 87501
Robert E. Knowling, Jr.* Chairman and Chief Executive Officer of
Internet Access Technologies Inc., 5450
Northwest Central, Suite 300, Houston,
Texas 77092
* Director of Hewlett-Packard Company.
-9-
Schedule 13D
SCHEDULE C
INDIGO N.V.
SHAREHOLDERS WHO SIGNED VOTING AGREEMENTS AND TENDER AGREEMENTS
OR TENDER AND OPTION AGREEMENTS
The following table sets forth the name, and for those
individuals who are directors, officers or employees of Indigo N.V., their
position, of each Indigo N.V. shareholder that entered into a Voting
Agreement and a Tender Agreement or Tender and Option Agreement with
Hewlett-Packard Company.
Shareholder Shares Beneficially Owned
-------------------------------------------------------------------------------
Alon Bar-Shany 188,280**
Chief Financial Officer
Dan S. Chill 131,754**
Vice President and General Counsel
Mimi Sela 163,500**
Vice President Strategic Relations
Dilip M. Advani 23,375**
Director
Rob G.P. Jeurissen 32,563**
Director
Hans S. Leudesdorff 0**
Director
Rafi Maor 627,200**
President, COO and Director
Richard C.E. Morgan 130,063**
Director
-10-
Schedule 13D
Tis Prager 49,417,132*
Director
Pernandu Chatterjee 26,397,135*
Walthroup Corporation N.V. 4,032,619*
Visionvest Corporation N.V. 3,845,571*
Gemini Systems Corporation N.V. 19,573,838*
OZF Ltd. 2,312,101*
Toscal N.V. 27,426,955*
Deering Corporation N.V. 2,602,752*
S-C Indigo C.V. 26,327,539**
--------------------------------------------------------------------------------
-11-
Schedule 13D
* Number of common shares of Indigo N.V. beneficially owned as of May 31,
2001, as reported in the Form 20-F filed by Indigo N.V. on June 28, 2001.
** Number of common shares of Indigo N.V. beneficially owned as of
September 13, 2001, based on information provided by Indigo N.V.
-12-
EX-9
3
a2058850zex-9.txt
EXHIBIT 9
TENDER AND OPTION AGREEMENT
BY AND AMONG
HEWLETT-PACKARD COMPANY
AND
CERTAIN PRINCIPAL SHAREHOLDERS OF INDIGO N.V.
TENDER AND OPTION AGREEMENT
THIS TENDER AND OPTION 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) "ELECTION" shall mean either of the Fixed Offer Price or the Contingent
Offer Price.
(b) "OVERSUBSCRIBED CONSIDERATION" shall mean the consideration obtained by
tendering Shares into the Oversubscribed Election.
(c) "OVERSUBSCRIBED ELECTION" shall mean that Election, if either, for which
the aggregate number of Common Shares that has been tendered immediately prior
to the Expiration Time (and not properly withdrawn) exceeds the Maximum Fixed
Price Election Number or the Maximum Contingent Price Election Number.
(d) "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.
(e) "TERMINATION DATE" shall mean the earlier to occur of (i) valid
termination of the Offer Agreement pursuant to Article VII thereof; or (ii) the
Closing Time.
(f) 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
1
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.
(g) "UNDERSUBSCRIBED CONSIDERATION" shall mean the consideration obtained by
tendering Shares into the Undersubscribed Election.
(h) "UNDERSUBSCRIBED ELECTION" shall mean, to the extent there is an
Oversubscribed Election, the other Election.
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' 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.
(a) 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.
(b) Each of the Shareholders hereby agrees that such Shareholder will
automatically elect to receive the Undersubscribed Consideration for up to all
of the Common Shares held by such Shareholder (the "MANDATORY ELECTION").
Notwithstanding anything to the contrary, Section 1.1(c)(ii) and
Section 1.1(c)(iii) of the Offer Agreement, as applicable, shall be applied to
any Common Shares tendered by Company Shareholders (other than those tendered by
the Shareholders party to this Agreement) only to the extent that
Undersubscribed Consideration continues to exist after giving effect to the
Mandatory Election. To facilitate the calculation of shares subject to the
Mandatory Election in accordance with the above provisions, the Buyer may round
the number of shares proposed to be automatically elected by any Shareholder to
the nearest one hundred (100) shares.
(c) Notwithstanding anything to the contrary in this Agreement, each of the
Shareholders hereby agrees and pledges (i) either (A) to exercise no later than
the day immediately prior to the Closing Time all options, warrants and other
rights to acquire Common Shares then owned by such Shareholder (collectively,
the "WARRANTS") through the non-cash exercise provisions set forth therein and
2
(B) to immediately tender the Common Shares received upon such exercise into the
Offer; or (ii) to not exercise any of the Warrants after the Closing Time until
such time as the Post-Closing Reorganization referred to in Article II of the
Offer Agreement is consummated.
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.
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. OPTION.
(a) The Shareholder hereby grants Buyer an irrevocable (to the extent
permitted by applicable law), exclusive option to purchase up to all of the
Shares at a per Share exercise price equal to the Contingent Price Exchange
Ratio (the "PURCHASE OPTION"). Such Purchase Option shall become
3
exercisable by Buyer upon the Shareholder's breach of its obligations under
Section 3 of this Agreement or upon the Shareholder's breach of any other
material agreement or covenant on the part of the Shareholder set forth in this
Agreement.
(b) In the event that the Buyer elects to exercise the Purchase Option, the
Buyer shall so notify the Shareholder. Upon receipt of such notification, the
Shareholder shall deliver the Shares to the Buyer, to be held by the Buyer
pending the closing of the exercise of the Purchase Option. At the closing of
the exercise of the Purchase Option, the Buyer shall deliver to the Shareholder
the Contingent Price Exchange Ratio for each Share delivered by the Shareholder.
(c) The Buyer in its sole discretion may designate and assign one or more
employees, officers, directors, stockholders or direct or indirect subsidiaries
of the Buyer or other persons or organizations to exercise all or a part of the
Buyer's Purchase Option.
(d) In the event that the Buyer's Purchase Option is exercised, then upon
and following such exercise, the only remaining right of the Shareholder under
this Agreement shall be the right to receive payment for such Shares as set
forth in this Section 9, and the Shareholder shall have no right whatsoever to
tender the Shares upon its own election.
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
4
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 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
3000 Hanover Street
Palo Alto, California 94304
Attention: General Counsel
Facsimile: (650) 857-4837
With copies to: Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
Attention: Larry W. Sonsini, Esq.
Aaron J. Alter, Esq.
Facsimile No.: (650) 493-6811
and
Wilson Sonsini Goodrich & Rosati
Professional Corporation
One Market
Spear Tower, Suite 3300
San Francisco, California 94105
Attention: Steve L. Camahort, Esq.
Facsimile No.: (415) 947-2099
If to the Shareholder: To the address for notice set forth on the signature page
hereof.
With a copy to: Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166-0193
Attention: Dennis J. Friedman, Esq.
Barbara L. Becker, Esq.
Facsimile No.: (212) 351-4035
(f) REGISTERED SHARES. 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. 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.
5
(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]
6
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/ CHARLES N. CHARNAS
-------------------------------------
Name: Charles N. Charnas
Title: ASSISTANT SECRETARY
WALTHROUP CORPORATION N.V.:
By:
URS BRUNNER
-------------------------------------
Name: Urs Brunner
Title: DIRECTOR
Address: Muhlebachstrasse 6
CH-8008 Zurich
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.
7
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/ CHARLES N. CHARNAS
-------------------------------------
Name: Charles N. Charnas
Title: ASSISTANT SECRETARY
VISIONVEST CORPORATION N.V.
By:
URS BRUNNER
-------------------------------------
Name: Urs Brunner
Title: DIRECTOR
Address: Muhlebachstrasse 6
CH-8008 Zurich
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.
8
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/ CHARLES N. CHARNAS
-------------------------------------
Name: Charles N. Charnas
Title: ASSISTANT SECRETARY
GEMINI SYSTEMS CORPORATION N.V.
By:
/s/ DR. PRAGER
-------------------------------------
Name: Dr. Prager
Title: CHAIRMAN
Address: Prager Dreifuss
Muhlebachstrasse 6
CH-8008 Zurich, Switzerland
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.
9
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/ CHARLES N. CHARNAS
-------------------------------------
Name: Charles N. Charnas
Title: ASSISTANT SECRETARY
TOSCAL N.V.
By:
/s/ DR. PRAGER
-------------------------------------
Name: Dr. Prager
Title: CHAIRMAN
Address: Prager Dreifuss
Muhlebachstrasse 6
CH-8008 Zurich, Switzerland
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.
10
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/ CHARLES N. CHARNAS
-------------------------------------
Name: Charles N. Charnas
Title: ASSISTANT SECRETARY
OZF LTD.
By:
/s/ DR. PRAGER
-------------------------------------
Name: Dr. Prager
Title: CHAIRMAN
Address: Prager Dreifuss
Muhlebachstrasse 6
CH-8008 Zurich, Switzerland
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.
11
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/ CHARLES N. CHARNAS
-------------------------------------
Name: Charles N. Charnas
Title: ASSISTANT SECRETARY
DEERING CORPORATION N.V.
By:
URS BRUNNER
-------------------------------------
Name: Urs Brunner
Title: DIRECTOR
Address: Muhlebachstrasse 6
CH-8008 Zurich
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.
12
EX-10
4
a2059205zex-10.txt
EXHIBIT 10
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'
1
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.
2
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
3
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
3000 Hanover Street
Palo Alto, California 94304
Attention: General Counsel
Facsimile: (650) 857-4837
With copies to: Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
Attention: Larry W. Sonsini, Esq.
Aaron J. Alter, Esq.
Facsimile No.: (650) 493-6811
and
Wilson Sonsini Goodrich & Rosati
Professional Corporation
One Market
Spear Tower, Suite 3300
San Francisco, California 94105
Attention: Steve L. Camahort, Esq.
Facsimile No.: (415) 947-2099
If to the Shareholder: To the address for notice set forth on the signature
page hereof.
With copies to: Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166-0193
Attention: Dennis J. Friedman, Esq.
Barbara L. Becker, Esq.
Facsimile No.: (212) 351-4035
and
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
590 Madison Avenue
New York, New York 10022
Attention: Patrick J. Dooley, Esq.
Facsimile No.: (212) 872-1002
(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.
4
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]
5
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/ CHARLES N. CHARNAS
-----------------------------------------
Name: Charles N. Charnas
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/ PETER HURWITZ
-----------------------------------------
Name: Peter Hurwitz
Title: VICE PRESIDENT
Address: c/o Chatterjee Group
--------------------------------------------
888 Seventh Avenue
---------------------------------------------
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.
6
EX-11
5
a2059205zex-11.txt
EXHIBIT 11
FORM OF TENDER AGREEMENT
BY AND AMONG
HEWLETT-PACKARD COMPANY
AND
CERTAIN 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 the individual or entity listed on the signature page hereto
(the "SHAREHOLDER").
WHEREAS, the Shareholder 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 page 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, the Shareholder 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 earliest to occur of (i) valid
termination of the Offer Agreement pursuant to Article VII thereof; or
(ii) the Closing Time.
(c) TRANSFER. The Shareholder shall be deemed to have effected a
"TRANSFER" of Shares if the 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. The
Shareholder hereby represents, warrants and covenants to the Buyer that the
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
page of this Agreement, free and clear of any pledges, options, rights of first
refusal, co-sale rights, attachments or other encumbrances; (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,
1
delivery and performance of this Agreement by the 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; 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 the Shareholder's property or assets is bound.
SECTION 3. AGREEMENT TO TENDER SHARES. The Shareholder hereby agrees that
the Shareholder shall tender, or if the 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 the Shareholder shall not withdraw any Shares so
tendered unless the Offer is terminated or has expired.
SECTION 4. TRANSFER OF THE SHARES.
(a) TRANSFEREE OF SHARES TO BE BOUND BY THIS AGREEMENT. The
Shareholder hereby agrees that, at all times during the period from the date
of this Agreement until the Termination Date, the Shareholder shall not
cause or permit any Transfer of any of the Shares to be effected, or
discuss, negotiate or make any offer regarding any Transfer of any of the
Shares, 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 the Shareholder.
SECTION 6. CERTAIN OTHER AGREEMENTS. From and after the date of this
Agreement until the Termination Date, the Shareholder will not, nor will the
Shareholder authorize or permit any of the Shareholder's officers, directors,
affiliates or employees or any investment banker, attorney, accountant,
consultant or other agent, advisor or representative retained by the 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.
SECTION 7. FURTHER ASSURANCES. The Shareholder 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 deemed by the Buyer to be necessary or
desirable to carry out the provisions of this Agreement.
2
SECTION 8. LEGENDS. If so requested by the Buyer, Shareholder agrees to
use its best efforts to place on the certificates representing the Shares a
legend stating that they are subject to this Agreement.
SECTION 9. 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 10 and 11 shall survive any termination
of this Agreement.
SECTION 10. 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 the Buyer institutes any action against the Shareholder to enforce the
terms of this Agreement, the Shareholder shall pay reasonable costs and
expenses, including, without limitation, reasonable attorneys' fees and costs,
incurred by the Buyer in connection with such action, provided that the Buyer is
successful in its action against the Shareholder.
SECTION 11. 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 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
3000 Hanover Street
Palo Alto, California 94304
Attention: General Counsel
Facsimile: (650) 857-4837
3
With copies to:
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
Attention: Larry W. Sonsini, Esq.
Aaron J. Alter, Esq.
Facsimile No.: (650) 493-6811
and
Wilson Sonsini Goodrich & Rosati
Professional Corporation
One Market Spear Tower, Suite 3300
San Francisco, California 94105
Attention: Steve L. Camahort, Esq.
Facsimile No.: (415) 947-2099
If to the Shareholder: To the address for notice set forth on the signature
page hereof.
With a copy to:
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166-0193
Attention: Dennis J. Friedman, Esq.
Barbara L. Becker, Esq.
Facsimile No.: (212) 351-4035
(f) 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. The Shareholder 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 the Shareholder 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 the Shareholder might otherwise
have to such jurisdiction, venue and such process.
(g) 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.
(h) EFFECT OF HEADINGS. The section headings are for convenience only
and shall not affect the construction or interpretation of this Agreement.
(i) 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]
4
IN WITNESS WHEREOF, each of the Buyer and the Shareholder have caused this
Agreement to be duly executed and delivered as of the date first written above.
HEWLETT-PACKARD COMPANY
By:
Name:
Title:
SHAREHOLDER
By:
Name:
Title:
Address:
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.
5
EX-12
6
a2059205zex-12.txt
EXHIBIT 12
VOTING AGREEMENT
BY AND AMONG
HEWLETT-PACKARD COMPANY
AND
CERTAIN SHAREHOLDERS OF INDIGO N.V.
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "AGREEMENT") is made and entered into as of
September 6, 2001, by and among Hewett-Packard Company, a Delaware corporation
(the "BUYER"), and the individual or entity listed on the signature page hereto
(the "SHAREHOLDER").
WHEREAS, the Shareholder is, as of the date hereof, the record and
beneficial owner of the 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, the Shareholder 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 earliest 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. The Shareholder shall be deemed to have effected a
"TRANSFER" of Shares if the 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 Agreement, dated September 13, 2000, by and among
the Company, the Buyer and the other Company
1
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 the proxy contained herein; and (iv) the
execution, delivery and performance of this Agreement by the 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 VOTE SHARES. At every meeting of the Company
Shareholders called, including an extraordinary general meeting, and at every
adjournment thereof, and on every action or approval by written consent of the
Company Shareholders, Shareholder shall cause the Common Shares to be voted:
(a) in favor of appointment of the new members of the Company Boards in
accordance with the designation of the Buyer as set forth in the Offer
Agreement;
(b) in favor of resolution upon the amendment of the Articles of
Association of the Company as attached as an exhibit to the Offer Agreement;
(c) in favor of the Post-Closing Reorganization and any action required
in furtherance thereof; PROVIDED, HOWEVER, that such action is in accordance
with all applicable laws;
(d) against any of the following actions (other than those actions that
relate to the Offer and the transactions contemplated by the Offer
Agreement): (A) any merger, consolidation, business combination, sale of
assets, reorganization or recapitalization of the Company or any subsidiary
of the Company with any party, (B) any sale, lease or transfer of any
significant part of the assets of the Company or any subsidiary of the
Company, (C) any reorganization, recapitalization, dissolution, liquidation
or winding up of the Company or any Subsidiary of the Company, (D) any
material change in the capitalization of the Company or any Subsidiary of
the Company, or the corporate structure of the Company or any Subsidiary of
the Company, or (E) any other action that is intended, or could reasonably
be expected to, impede, interfere with, delay, postpone, discourage or
adversely affect the Offer or any of the other transactions contemplated by
the Offer Agreement, including the Post-Closing Reorganization; and
(e) in favor of waiving any notice that may have been or may be required
relating to the Offer or any of the other transactions contemplated by the
Offer Agreement, including the Post-Closing Reorganization.
SECTION 4. TRANSFER OF THE SHARES.
(a) TRANSFEREE OF SHARES TO BE BOUND BY THIS AGREEMENT. Except as
required herein, the Shareholder hereby agrees that, at all times during the
period from the date of this Agreement until the Termination Date, the
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 a proxy in the form attached hereto as EXHIBIT A (with
such modifications as the Buyer may reasonably request)
2
(the "PROXY"); 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.
(b) TRANSFER OF VOTING RIGHTS. The Shareholder hereby also agrees
that, at all times commencing with the execution and delivery of this
Agreement until the Termination Date, the Shareholder shall not deposit, or
permit the deposit of, any Shares in a voting trust, grant any proxy (other
than the Proxy) in respect of the Shares, or enter into any shareholder
agreement or similar arrangement or commitment in contravention of the
obligations of the Shareholder under this Agreement with respect to any of
the Shares.
SECTION 5. GRANT OF IRREVOCABLE PROXY; APPOINTMENT OF PROXY. Concurrently
with the execution of this Agreement, the Shareholder hereby revokes any and all
previous proxies granted with respect to the Shares and agrees to deliver to the
Buyer the Proxy in the form attached hereto as EXHIBIT A, which shall be
irrevocable to the fullest extent permissible by applicable law.
SECTION 6. 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 the
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 the Shareholder.
SECTION 7. CERTAIN OTHER AGREEMENTS. From and after the date of this
Agreement until the Termination Date, the Shareholder will not, nor will the
Shareholder authorize or permit any of the Shareholder's officers, directors,
affiliates or employees or any investment banker, attorney, accountant,
consultant or other agent, advisor or representative retained by the 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.
SECTION 8. FURTHER ASSURANCES. The Shareholder 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 and to vest in the Buyer the power to
vote the Shares as contemplated by Section 3 hereof and the Proxy; provided,
that such action is consistent with and does not create any obligations that
extend the general scope of the Agreement.
SECTION 9. REGISTRATION RIGHTS. Shareholder agrees not to exercise any
registration rights it may have with respect to Shareholder's Shares (including
piggyback registration rights) prior to the Termination Date.
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 and to an
irrevocable proxy.
SECTION 11. TERMINATION. All rights and obligations of the parties
hereunder and under the Proxies 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.
3
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 or the Proxy to which the Shareholder is a party, 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 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
3000 Hanover Street
Palo Alto, California 94304
Attention: General Counsel
Facsimile: (650) 857-4837
4
With copies to: Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
Attention: Larry W. Sonsini, Esq.
Aaron J. Alter, Esq.
Facsimile No.: (650) 493-6811
and
Wilson Sonsini Goodrich & Rosati
Professional Corporation
One Market
Spear Tower, Suite 3300
San Francisco, California 94105
Attention: Steve L. Camahort, Esq.
Facsimile No.: (415) 947-2099
If to the Shareholder: To the address for notice set forth on the signature
page hereof.
With copies to: Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166-0193
Attention: Dennis J. Friedman, Esq.
Barbara L. Becker, Esq.
Facsimile No.: (212) 351-4035
and
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
590 Madison Avenue
New York, New York 10022
Attention: Patrick J. Dooley, Esq.
Facsimile No.: (212) 872-1002
(f) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of The Netherlands, without giving effect to the
conflicts of law principles thereof.
(g) ENTIRE AGREEMENT. This Agreement and the Proxy contain the entire
understanding of the parties in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
(h) EFFECT OF HEADINGS. The section headings are for convenience only
and shall not affect the construction or interpretation of this Agreement.
(i) 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]
5
IN WITNESS WHEREOF, each of the Buyer and the Shareholder have caused this
Agreement to be duly executed and delivered as of the date first written above.
HEWLETT-PACKARD COMPANY
By: /s/ CHARLES N. CHARNAS
-----------------------------------------
Name: Charles N. Charnas
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/ PETER HURWITZ
-----------------------------------------
Name: Peter Hurwitz
Title: VICE PRESIDENT
Address: c/o Chatterjee Group
--------------------------------
888 Seventh Avenue
---------------------------------------------
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
6
IRREVOCABLE PROXY
The undersigned shareholder of Indigo N.V., a corporation organized under
the laws of The Netherlands (the "COMPANY"), hereby irrevocably (to the fullest
extent permitted by law), solely in his, her or its individual capacity as a
shareholder, appoints , and each of them, as the sole and exclusive
attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to vote and exercise all voting and related rights (to the full
extent that the undersigned is entitled to do so) with respect to all of the
shares of capital stock of the Company that now are or hereafter may be
beneficially owned by the undersigned, and any and all other shares or
securities of the Company issued or issuable in respect thereof on or after the
date hereof (collectively, the "SHARES") in accordance with the terms of this
Proxy. The Shares beneficially owned by the undersigned shareholder of the
Company as of the date of this Proxy are listed on the final page of this Proxy.
Upon the execution of this Proxy by the undersigned, any and all prior proxies
given by the undersigned with respect to any Shares are hereby revoked and the
undersigned hereby agrees not to grant any subsequent proxies with respect to
the Shares until after the Termination Date (as defined below).
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest and is granted pursuant to that certain Voting
Agreement of even date herewith by and between Hewlett-Packard Company, a
Delaware corporation (the "BUYER"), and the undersigned shareholder, and is
granted in consideration of the Buyer entering into that certain Offer Agreement
(the "OFFER AGREEMENT"), by and between the Buyer and the Company, which
provides for the Buyer or Subsidiary of the Buyer to commence an exchange offer
(the "OFFER") to acquire all of the outstanding common shares, par value NLG
0.04 per share of the Company (the "COMMON SHARES") and for the subsequent
post-closing reorganization (the "POST-CLOSING REORGANIZATION") to be
accomplished upon the terms and subject to the conditions set forth in the Offer
Agreement. As used herein, the term "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).
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the
Termination Date, to act as the undersigned's attorney and proxy to vote the
Shares, and to exercise all voting, consent and similar rights of the
undersigned with respect to the Shares (including, without limitation, the power
to execute and deliver written consents) at every annual, special, adjourned or
postponed meeting of shareholders of the Company, including an extraordinary
meeting of shareholders, and in every written consent in lieu of such meeting:
(a) in favor of appointment of the new members of the Company Boards in
accordance with the designation of the Buyer as set forth in the Offer
Agreement;
(b) in favor of resolution upon the amendment of the Articles of Association
of the Company as attached as an exhibit to the Offer Agreement;
(c) in favor of the Post-Closing Reorganization and any action required in
furtherance thereof; PROVIDED, HOWEVER, that such action is in accordance with
all applicable laws;
(d) against any of the following actions (other than those actions that
relate to the Offer and the transactions contemplated by the Offer Agreement):
(A) any merger, consolidation, business combination, sale of assets,
reorganization or recapitalization of the Company or any subsidiary of the
Company with any party, (B) any sale, lease or transfer of any significant part
of the assets of the Company or any subsidiary of the Company, (C) any
reorganization, recapitalization, dissolution, liquidation or winding up of the
Company or any Subsidiary of the Company, (D) any material change in the
capitalization of the Company or any Subsidiary of the Company, or the corporate
structure of
A-1
the Company or any Subsidiary of the Company, or (E) any other action that is
intended, or could reasonably be expected to, impede, interfere with, delay,
postpone, discourage or adversely affect the Offer or any of the other
transactions contemplated by the Offer Agreement, including the Post-Closing
Reorganization; and
(e) in favor of waiving any notice that may have been or may be required
relating to the Offer or any of the other transactions contemplated by the Offer
Agreement, including the Post-Closing Reorganization.
The attorneys and proxies named above may not exercise this Proxy on any
other matter except as provided above. The undersigned shareholder may vote the
Shares on all other matters. The undersigned shareholder will abstain from
casting any votes of the Shares on any of the matters provided above and will
not contest, in the relevant meeting of shareholders or otherwise, the exclusive
right of the attorneys and proxies named above to vote the Shares on the matters
provided above in their sole discretion.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This Proxy shall be governed by, and construed in accordance with, the laws
of The Netherlands, without giving effect to the conflicts of laws principles
thereof.
This Proxy is irrevocable (to the fullest extent permitted by law). This
Proxy shall terminate, and be of no further force and effect, automatically upon
the Termination Date.
Dated: September 6, 2001
Signature of Shareholder: /s/ PETER HURWITZ
------------------------------------------
Print Name of Shareholder: S-C INDIGO CV By: S-C INDIGO II CV GP
By: S-C GRAPHICS, INC. its GP
Shares beneficially owned:
shares of Company Shares
---------
shares of Company Shares issuable upon the
--------- exercise of outstanding options, warrants
or other rights
A-2
EX-13
7
a2059205zex-13.txt
EXHIBIT 13
FORM OF
VOTING AGREEMENT
BY AND AMONG
HEWLETT-PACKARD COMPANY
AND
CERTAIN SHAREHOLDERS OF INDIGO N.V.
VOTING AGREEMENT
THIS VOTING 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 the individual or entity listed on the signature page hereto
(the "SHAREHOLDER").
WHEREAS, the Shareholder is, as of the date hereof, the record and
beneficial owner of the 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, the Shareholder 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 earliest to occur of (i) valid
termination of the Offer Agreement pursuant to Article VII thereof; or (ii) the
Closing Time.
(c) TRANSFER. The Shareholder shall be deemed to have effected a "Transfer"
of Shares if the 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 comtemplated
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
1
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
the proxy contained herein; and (iv) the execution, delivery and performance of
this Agreement by the 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 VOTE SHARES. At every meeting of the Company
Shareholders called, including an extraordinary general meeting, and at every
adjournment thereof, and on every action or approval by written consent of the
Company Shareholders, Shareholder shall cause the Common Shares to be voted:
(a) in favor of appointment of the new members of the Company Boards in
accordance with the designation of the Buyer as set forth in the Offer
Agreement;
(b) in favor of resolution upon the amendment of the Articles of Association
of the Company as attached as an exhibit to the Offer Agreement;
(c) in favor of the Post-Closing Reorganization and any action required in
furtherance thereof; PROVIDED, HOWEVER, that such action is in accordance with
all applicable laws;
(d) against any of the following actions (other than those actions that
relate to the Offer and the transactions contemplated by the Offer Agreement):
(A) any merger, consolidation, business combination, sale of assets,
reorganization or recapitalization of the Company or any subsidiary of the
Company with any party, (B) any sale, lease or transfer of any significant part
of the assets of the Company or any subsidiary of the Company, (C) any
reorganization, recapitalization, dissolution, liquidation or winding up of the
Company or any Subsidiary of the Company, (D) any material change in the
capitalization of the Company or any Subsidiary of the Company, or the corporate
structure of the Company or any Subsidiary of the Company, or (E) any other
action that is intended, or could reasonably be expected to, impede, interfere
with, delay, postpone, discourage or adversely affect the Offer or any of the
other transactions contemplated by the Offer Agreement, including the
Post-Closing Reorganization; and
(e) in favor of waiving any notice that may have been or may be required
relating to the Offer or any of the other transactions contemplated by the Offer
Agreement, including the Post-Closing Reorganization.
SECTION 4. TRANSFER OF THE SHARES.
(a) TRANSFEREE OF SHARES TO BE BOUND BY THIS AGREEMENT. Except as required
herein, the Shareholder hereby agrees that, at all times during the period from
the date of this Agreement until the Termination Date, the 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 a proxy
in the form attached hereto as EXHIBIT A (with such modifications as the Buyer
may reasonably request) (the "PROXY"); 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.
2
(b) TRANSFER OF VOTING RIGHTS. The Shareholder hereby also agrees that, at
all times commencing with the execution and delivery of this Agreement until the
Termination Date, the Shareholder shall not deposit, or permit the deposit of,
any Shares in a voting trust, grant any proxy (other than the Proxy) in respect
of the Shares, or enter into any shareholder agreement or similar arrangement or
commitment in contravention of the obligations of the Shareholder under this
Agreement with respect to any of the Shares.
SECTION 5. GRANT OF IRREVOCABLE PROXY; APPOINTMENT OF PROXY. Concurrently
with the execution of this Agreement, the Shareholder hereby revokes any and all
previous proxies granted with respect to the Shares and agrees to deliver to the
Buyer the Proxy in the form attached hereto as EXHIBIT A, which shall be
irrevocable to the fullest extent permissible by applicable law.
SECTION 6. 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 the
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 the Shareholder.
SECTION 7. CERTAIN OTHER AGREEMENTS. From and after the date of this
Agreement until the Termination Date, the Shareholder will not, nor will the
Shareholder authorize or permit any of the Shareholder's officers, directors,
affiliates or employees or any investment banker, attorney, accountant,
consultant or other agent, advisor or representative retained by the 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.
SECTION 8. FURTHER ASSURANCES. The Shareholder 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 and to vest in the Buyer the power to
vote the Shares as contemplated by Section 3 hereof and the Proxy; provided,
that such action is consistent with and does not create any obligations that
extend the general scope of the Agreement.
SECTION 9. REGISTRATION RIGHTS. Shareholder agrees not to exercise any
registration rights it may have with respect to Shareholder's Shares (including
piggyback registration rights) prior to the Termination Date.
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 and to an
irrevocable proxy.
SECTION 11. TERMINATION. All rights and obligations of the parties
hereunder and under the Proxies 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")
3
institutes any action against the other party (i.e., the "TARGET PARTY") to
enforce the terms of this Agreement or the Proxy to which the Shareholder is a
party, 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 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
3000 Hanover Street
Palo Alto, California 94304
Attention: General Counsel
Facsimile: (650) 857-4837
With copies to: Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
Attention: Larry W. Sonsini, Esq.
Aaron J. Alter, Esq.
Facsimile No.: (650) 493-6811
and
4
Wilson Sonsini Goodrich & Rosati
Professional Corporation
One Market
Spear Tower, Suite 3300
San Francisco, California 94105
Attention: Steve L. Camahort, Esq.
Facsimile No.: (415) 947-2099
If to the Shareholder: To the address for notice set forth on the signature
page hereof.
With a copy to: Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166-0193
Attention: Dennis J. Friedman, Esq.
Barbara L. Becker, Esq.
Facsimile No.: (212) 351-4035
(f) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of The Netherlands, without giving effect to the
conflicts of law principles thereof.
(g) ENTIRE AGREEMENT. This Agreement and the Proxy contain the entire
understanding of the parties in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
(h) EFFECT OF HEADINGS. The section headings are for convenience only and
shall not affect the construction or interpretation of this Agreement.
(i) 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]
5
IN WITNESS WHEREOF, each of the Buyer and the Shareholder have caused this
Agreement to be duly executed and delivered as of the date first written above.
HEWLETT-PACKARD COMPANY
By:
--------------------------------------
Name:
Title:
SHAREHOLDER
By:
--------------------------------------
Name:
Title:
Address:
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
EXHIBIT A
IRREVOCABLE PROXY
The undersigned shareholder of Indigo N.V., a corporation organized under
the laws of The Netherlands (the "COMPANY"), hereby irrevocably (to the fullest
extent permitted by law), solely in his, her or its individual capacity as a
shareholder, appoints , and each of them, as the sole and
exclusive attorneys and proxies of the undersigned, with full power of
substitution and resubstitution, to vote and exercise all voting and related
rights (to the full extent that the undersigned is entitled to do so) with
respect to all of the shares of capital stock of the Company that now are or
hereafter may be beneficially owned by the undersigned, and any and all other
shares or securities of the Company issued or issuable in respect thereof on or
after the date hereof (collectively, the "SHARES") in accordance with the terms
of this Proxy. The Shares beneficially owned by the undersigned shareholder of
the Company as of the date of this Proxy are listed on the final page of this
Proxy. Upon the execution of this Proxy by the undersigned, any and all prior
proxies given by the undersigned with respect to any Shares are hereby revoked
and the undersigned hereby agrees not to grant any subsequent proxies with
respect to the Shares until after the Termination Date (as defined below).
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest and is granted pursuant to that certain Voting
Agreement of even date herewith by and between Hewlett-Packard Company, a
Delaware corporation (the "BUYER"), and the undersigned shareholder, and is
granted in consideration of the Buyer entering into that certain Offer Agreement
(the "OFFER AGREEMENT"), by and between the Buyer and the Company, which
provides for the Buyer or Subsidiary of the Buyer to commence an exchange offer
(the "OFFER") to acquire all of the outstanding common shares, par value NLG
0.04 per share of the Company (the "COMMON SHARES") and for the subsequent
post-closing reorganization (the "POST-CLOSING REORGANIZATION") to be
accomplished upon the terms and subject to the conditions set forth in the Offer
Agreement. As used herein, the term "TERMINATION DATE" shall mean the earlier to
occur of (i) valid termination of the Offer Agreement pursuant to Article VII
thereof; or (ii) the Closing Time.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the
Termination Date, to act as the undersigned's attorney and proxy to vote the
Shares, and to exercise all voting, consent and similar rights of the
undersigned with respect to the Shares (including, without limitation, the power
to execute and deliver written consents) at every annual, special, adjourned or
postponed meeting of shareholders of the Company, including an extraordinary
meeting of shareholders, and in every written consent in lieu of such meeting:
(a) in favor of appointment of the new members of the Company Boards in
accordance with the designation of the Buyer as set forth in the Offer
Agreement;
(b) in favor of resolution upon the amendment of the Articles of Association
of the Company as attached as an exhibit to the Offer Agreement;
(c) in favor of the Post-Closing Reorganization and any action required in
furtherance thereof; PROVIDED, HOWEVER, that such action is in accordance with
all applicable laws;
(d) against any of the following actions (other than those actions that
relate to the Offer and the transactions contemplated by the Offer Agreement):
(A) any merger, consolidation, business combination, sale of assets,
reorganization or recapitalization of the Company or any subsidiary of the
Company with any party, (B) any sale, lease or transfer of any significant part
of the assets of the Company or any subsidiary of the Company, (C) any
reorganization, recapitalization, dissolution, liquidation or winding up of the
Company or any Subsidiary of the Company, (D) any material change in the
capitalization of the Company or any Subsidiary of the Company, or the corporate
structure of the Company or any Subsidiary of the Company, or (E) any other
action that is intended, or could reasonably be expected to, impede, interfere
with, delay, postpone, discourage or adversely affect the Offer or any of the
other transactions contemplated by the Offer Agreement, including the
Post-Closing Reorganization; and
(e) in favor of waiving any notice that may have been or may be required
relating to the Offer or any of the other transactions contemplated by the Offer
Agreement, including the Post-Closing Reorganization.
The attorneys and proxies named above may not exercise this Proxy on any
other matter except as provided above. The undersigned shareholder may vote the
Shares on all other matters. The undersigned shareholder will abstain from
casting any votes of the Shares on any of the matters provided above and will
not contest, in the relevant meeting of shareholders or otherwise, the exclusive
right of the attorneys and proxies named above to vote the Shares on the matters
provided above in their sole discretion.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This Proxy shall be governed by, and construed in accordance with, the laws
of The Netherlands, without giving effect to the conflicts of laws principles
thereof.
This Proxy is irrevocable (to the fullest extent permitted by law). This
Proxy shall terminate, and be of no further force and effect, automatically upon
the Termination Date.
Dated: September 6, 2001
Signature of Shareholder:
Print Name of Shareholder:
Shares beneficially owned:
shares of Company Shares
shares of Company Shares issuable upon the exercise of
outstanding options, warrants or other rights
[SIGNATURE PAGE TO IRREVOCABLE PROXY]
EX-14
8
a2059205zex-14.txt
EX-14
POWER OF ATTORNEY
Hewlett-Packard Europe B.V. (the "Company") does hereby constitute,
designate and appoint Mr. Charles N. Charnas as its true and lawful
attorney-in-fact and agent to execute any Schedule 13D or amendment thereto
for filing with the Securities and Exchange Commission pursuant to the
requirements of the Securities Exchange Act of 1934, as amended in connection
with the Company's holdings in Indigo N.V., with full power to act on behalf
of the Company.
The Company hereby ratifies and confirms and undertakes to ratify and
confirm whatsoever Mr. Charnas shall do or purport to do in right or by
virtue of this Power of Attorney.
IN WITNESS WHEREOF, the Company has caused this Power of Attorney to be
executed by its duly authorized officer this 7th day of September, 2001.
HEWLETT-PACKARD EUROPE B.V.
By: /s/ Robert P. Wayman
---------------------------------
Name: Robert P. Wayman
-------------------------------
Title: Managing Director
------------------------------