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Title: |
Offer Agreement |
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Entities: |
Hewlett-Packard Co.; Gibson, Dunn & Crutcher; Wilson Sonsini Goodrich & Rosati; Indigo N.V. |
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Date: |
2001 |
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Size: |
Preview shows 17KB of 273KB total |
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Price: |
$99 |
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ID: |
#233828 |
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OFFER AGREEMENT
BY AND BETWEEN
HEWLETT-PACKARD COMPANY
AND
INDIGO N.V.
{Page}
TABLE OF CONTENTS
{Table}
{Caption}
PAGE
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{C} {S} {C}
ARTICLE I THE OFFER................................................... 1
1.1 The Offer................................................... 1
1.2 Company Actions............................................. 4
1.3 Company Boards and Committees............................... 6
1.4 Stock Options; Warrants; Employee Stock Purchase Plans...... 6
1.5 Required Withholding........................................ 6
1.6 No Liability................................................ 6
ARTICLE II POST CLOSING REORGANIZATION................................. 6
2.1 Restructuring............................................... 6
2.2 Co-operation of the Company................................. 7
ARTICLE III REPRESENTATIONS AND WARRANTIES OF COMPANY................... 7
3.1 Organization and Qualification; Subsidiaries................ 7
3.2 Articles of Association..................................... 8
3.3 Capitalization.............................................. 8
3.4 Authority Relative to this Agreement........................ 10
3.5 No Conflict; Required Filings and Consents.................. 10
3.6 Compliance; Permits......................................... 11
3.7 SEC Filings; Financial Statements........................... 12
3.8 No Undisclosed Liabilities.................................. 12
3.9 Absence of Certain Changes or Events........................ 12
3.10 Absence of Litigation....................................... 13
3.11 Employee Matters and Benefit Plans.......................... 13
3.12 Restrictions on Business Activities......................... 17
3.13 Title to Property........................................... 18
3.14 Taxes....................................................... 18
3.15 Brokers..................................................... 21
3.16 Intellectual Property....................................... 21
3.17 Agreements, Contracts and Commitments....................... 25
3.18 Opinion of Financial Advisor................................ 26
3.19 Insurance................................................... 26
3.20 Board Approval.............................................. 27
3.21 Environmental Matters....................................... 27
3.22 Grants, Incentives and Subsidies............................ 28
3.23 Disclosure.................................................. 29
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER..................... 29
4.1 Organization................................................ 29
4.2 Certificate of Incorporation and Bylaws..................... 30
4.3 Capitalization.............................................. 30
4.4 Authority Relative to this Agreement........................ 30
4.5 Issuance of Buyer Common Stock.............................. 30
4.6 No Conflict; Required Filings and Consents.................. 30
4.7 SEC Filings; Financial Statements........................... 31
4.8 Ownership of Company Common Stock........................... 31
4.9 Absences of Certain Changes or Events....................... 31
ARTICLE V INTERIM CONDUCT............................................. 31
5.1 Conduct of Business by Company.............................. 31
{/Table}
i
{Page}
{Table}
{Caption}
PAGE
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{C} {S} {C}
ARTICLE VI ADDITIONAL AGREEMENTS....................................... 34
6.1 Confidentiality; Access to Information...................... 34
6.2 No Solicitation............................................. 34
6.3 Public Disclosure........................................... 35
6.4 Commercially Reasonable Efforts; Notification............... 35
6.5 Third Party Consents........................................ 36
6.6 Stock Options; ESPP; Warrants............................... 36
6.7 Employment and Employee Benefits............................ 38
6.8 Form S-8.................................................... 39
6.9 Indemnification............................................. 39
6.10 Regulatory Filings.......................................... 39
6.11 Israeli Approvals........................................... 39
6.12 Company Shareholder Approval................................ 41
6.13 Inspection of Real Property................................. 41
6.14 Company Affiliate Agreements................................ 41
6.15 NYSE Listing................................................ 41
6.16 CVR Agreement............................................... 42
6.17 Consultation................................................ 42
6.18 Registered Intellectual Property Rights..................... 42
6.19 Company Tender and Voting Agreements........................ 42
6.20 Employee Covenants.......................................... 42
6.21 Approved Enterprise Covenant................................ 42
6.22 Environmental Covenant...................................... 42
6.23 Sale of Company Shares...................................... 43
6.24 Dutch Tax Ruling............................................ 43
6.25 Tax Planning Cooperation.................................... 43
ARTICLE VII TERMINATION, AMENDMENT AND WAIVER........................... 43
7.1 Termination................................................. 43
7.2 Notice of Termination; Effect of Termination................ 44
7.3 Fees and Expenses........................................... 44
7.4 Amendment................................................... 45
7.5 Extension; Waiver........................................... 45
ARTICLE VIII GENERAL PROVISIONS.......................................... 46
8.1 Non-Survival of Representations and Warranties.............. 46
8.2 Notices..................................................... 46
8.3 Counterparts................................................ 47
8.4 Entire Agreement; Third Party Beneficiaries................. 47
8.5 Severability................................................ 47
8.6 Other Remedies; Specific Performance........................ 47
8.7 Governing Law............................................... 47
8.8 Rules of Construction....................................... 47
8.9 Assignment.................................................. 47
8.10 WAIVER OF JURY TRIAL........................................ 48
ARTICLE IX DEFINITIONS................................................. 48
9.1 Definitions................................................. 48
9.2 Miscellaneous............................................... 57
{/Table}
ii
{Page}
{Table}
{S} {C}
INDEX OF ANNEXES
Annex I Conditions of the Offer
INDEX OF EXHIBITS
Exhibit A Form of CVR Agreement
Exhibit B-1 Company Tender Agreement
Exhibit B-2 Company Tender and Option Agreement for the Principal
Company Shareholders
Exhibit C Company Voting Agreement
Exhibit D Company Affiliate Agreement
Exhibit E Form of Amended Articles of Association of the Company
{/Table}
iii
{Page}
OFFER AGREEMENT
THIS OFFER AGREEMENT (this "AGREEMENT") is made and entered into as of
September 6, 2001, by and between Hewlett-Packard Company, a Delaware
corporation (the "BUYER"), and Indigo N.V., a corporation organized under the
laws of The Netherlands (the "COMPANY").
RECITALS
A. Upon the terms and subject to the conditions set forth in the Agreement,
the Buyer and the Company intend to enter into a business combination
transaction.
B. The Company Boards have each (i) determined that the Offer is at a price
and on terms that are favorable and fair to and in the best interests of the
Company and the Company Shareholders, and (ii) approved the Offer upon the terms
and subject to the conditions set forth in this Agreement.
C. In furtherance thereof, it is proposed that the Buyer or a Subsidiary of
the Buyer shall, as promptly as practicable, commence an exchange offer (the
"OFFER") to acquire all of the outstanding Company Shares, at a price for each
Company Share equal to either (i) the Fixed Offer Price or (ii) the Contingent
Price Exchange Ratio plus one CVR (together, the "CONTINGENT OFFER PRICE") (the
Fixed Offer Price and the Contingent Offer Price are collectively referred to
herein as the "OFFER PRICE"), upon the terms and subject to the conditions set
forth in this Agreement.
D. Also in furtherance thereof, it is proposed that, prior to and following
the consummation of the Offer, the Buyer and the Company shall cooperate to
accomplish any one or more of the post-closing reorganizations described in
Article II hereof.
E. The CVR Certificates will be issued pursuant to a Contingent Value
Rights Agreement in substantially the form attached hereto as EXHIBIT A (the
"CVR AGREEMENT") to be entered into between the Buyer and a trustee mutually
agreeable to the Company and the Buyer (the "TRUSTEE").
F. Concurrently with the execution of this Agreement, as a condition and
inducement to the Buyer's willingness to enter into this Agreement, (i) certain
officers and directors of the Company are entering into Tender Agreements in
substantially the form attached hereto as EXHIBIT B-1, and the Principal Company
Shareholders are entering into Tender and Option Agreements in substantially the
form attached hereto as EXHIBIT B-2 (collectively, the "COMPANY TENDER
AGREEMENTS"), (ii) certain officers and directors of the Company and certain
other Company Shareholders are entering into Voting Agreements in substantially
the form attached hereto as EXHIBIT C (collectively, the "COMPANY VOTING
AGREEMENTS"), (iii) the Company Affiliates are entering into the Company
Affiliate Agreements in substantially the form attached hereto as EXHIBIT D
(collectively, the "COMPANY AFFILIATE AGREEMENTS"), and (iv) the Buyer and
Benzion Landa have entered into a Consulting Agreement (the "CONSULTING
AGREEMENT").
G. The Company and the Buyer intend that the Offer shall constitute a
taxable transaction under the Code.
H. Certain terms used in this Agreement are defined in Article IX hereof.
NOW, THEREFORE, in consideration of the premises and the representations,
warranties, covenants and agreements herein contained, and intending to be
legally bound hereby, the Company and the Buyer hereby agree as follows:
ARTICLE I
THE OFFER
1.1 THE OFFER.
(a) Provided that (i) this Agreement shall not have been terminated in
accordance with Section 7.1 and (ii) none of the events set forth in Annex I
hereto that would entitle the Buyer not to consummate the Offer shall have
occurred and be continuing, as promptly as practicable, the Buyer
{Page}
shall (or shall cause a Subsidiary of the Buyer to) commence (within the meaning
of Rule 14d-2 under the Exchange Act) the Offer for any and all of the Company
Shares. In the event that the Buyer shall cause a Subsidiary of the Buyer to
commence the Offer, each reference to the Buyer in this Article I and Annex I
shall be deemed, where applicable, to refer to such Subsidiary. Each Company
Share accepted by the Buyer pursuant to the Offer shall be exchanged for the
right to receive the Offer Price from the Buyer. The obligation of the Buyer to
accept for payment and to pay for any Company Shares tendered shall be subject
only to the satisfaction or waiver of: (i) the condition that there shall be
validly tendered in accordance with the terms of the Offer prior to the
Expiration Time and not withdrawn a number of Company Shares that, together with
the Company Shares then owned by the Buyer and its Subsidiaries, represents at
least ninety-five percent (95%) of the Outstanding Company Shares (the "MINIMUM
CONDITION"); and (ii) the other conditions set forth in Annex I. The Buyer
expressly reserves the right to increase the Offer Price, to waive any of the
conditions to the Offer or to make any other changes in the terms and conditions
of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company
in writing, no change may be made that: (1) decreases the Offer Price;
(2) changes the form or combination of consideration to be paid in the Offer;
(3) reduces the number of Company Shares to be purchased in the Offer;
(4) amends the conditions set forth in Annex I to broaden the scope of such
conditions, add any additional conditions, or otherwise amend any other material
term of the Offer in a manner materially adverse to the Company Shareholders;
(5) extends the Offer, except as provided in Section 1.1(b) or in the next
sentence; or (6) amends the Minimum Condition, except as provided in the next
sentence. The Buyer expressly reserves the right to amend or waive the Minimum
Condition to reduce the percentage of Outstanding Company Shares required to be
validly tendered in accordance with the terms of the Offer, PROVIDED that the
Buyer shall extend the Offer for a period of not fewer than 10 Business Days
after any such amendment or waiver.
(b) (i) Subject to the terms and conditions of the Offer and this Agreement,
the Offer shall expire at midnight, New York City time, on the date that is
twenty (20) Business Days after the date the Offer is commenced; PROVIDED,
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