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Exhibit 7.7
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AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT (this "Amendment No.
1") is being entered into as of March 17, 1998, by and among Wang Laboratories,
Inc., a Delaware corporation ("Wang"), Wang Nederland BV, a Netherlands
corporation ("Wang Nederland" and together with Wang, the "Buyers"), Ing. C.
Olivetti & C. S.p.A., an Italian corporation ("Olivetti"), Olivetti Sistemas e
Servicios Limitada, a Brazilian corporation ("Olivetti Sistemas"), and Olivetti
do Brasil S.A., a Brazilian corporation ("Olivetti Brazil" and together with
Olivetti and Olivetti Sistemas, the "Sellers").
The Buyers and the Sellers are parties to a Stock Purchase Agreement,
dated as of February 28, 1998 (the "Agreement"), and desire to amend the
Agreement.
NOW THEREFORE, in consideration of the foregoing, the mutual covenants
contained herein and the consummation of the transactions contemplated by the
Agreement, the Buyers and the Sellers agree to amend the Agreement as follows
(with capitalized terms used and not defined herein having their respective
meanings ascribed to them in the Agreement):
1. Cash Portion of the Purchase in U.S. Dollars. The Cash Portion of
the Purchase Price shall be paid in U.S. Dollars at the exchange rate of U.S.
$1.00 per 1,798.5 Italian lira. Accordingly, pursuant to Sections 2.1(b)(i) of
the Agreement, Wang shall pay and deliver (or cause Wang Nederland or any
subsidiary assigned of Wang permitted under Section 12.4 of the Agreement to pay
and deliver) to Olivetti U.S. $68,612,732.83, of which (a) U.S. $16,680,567.14
shall be deposited in escrow in accordance with Section 3.4(a) of the Agreement,
(b) U.S. $39,588,546.01 shall be deposited in escrow pursuant to 6.5(b) of the
Agreement and (c) U.S. $5,560,189.05 shall be paid and delivered to Olivetti
Sistemas and Olivetti Brazil in exchange for the Olsy Brazil Shares.
2. Olsy Germany. Olsy International shall not grant Olsy Germany an
irrevocable revenue contribution in the amount of German DM 15,800,000 in
connection with the recapitalization thereof as December 31, 1997.
3. Italy Welfare Plans. Section 6.17(b) of the Agreement is hereby
amended to read in its entirety as follows:
"Olivetti hereby assumes all liabilities and obligations of Olsy and
each Controlled Subsidiary in Italy to provide medical or other similar
benefits after retirement or other termination of employment, to any
individual who, as of the Closing Date, is an employee or former
employee of Olsy or any Controlled Subsidiary in Italy, whether such
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liabilities and obligations arise under the FASIDO, FSIO-SI, FSIO-SC,
FADO AND CPIDO (collectively, the "Italian Plans"), under other similar
plans or pursuant to collective bargaining or other written agreement
with any labor organization, employee association or works council. In
consideration of the foregoing, from and after the Closing Date, Olsy
shall use its commercially reasonable best efforts to, and shall cause
each Controlled Subsidiary in Italy to use its commercially reasonable
best efforts to (i) apply to continue to be a contributing employer to
the Italian Plans and (ii) if such application is accepted by the
relevant bodies of the Italian Plans, continue to contribute to the
Italian Plans."
4. Certain Schedules to the Agreement. (a) Attached hereto are
Schedules 3.2(d), 6.16(b), 6.16(c) and 6.27 to the Agreement which,
respectively, supersede Schedules 3.2(d), 6.16(b), 6.16(c) and 6.27 attached to
the Agreement at signing.
(b) In connection with the change of Schedule 6.16(b) of the Agreement
effected by Section 4(a) of this Amendment No. 1, (i) for avoidance of doubt the
term "Customer Bond" means only those bid, performance, advance payment or
residual bonds listed on Schedule 6.16(b) to the Agreement attached hereto
denoted with a "C" which satisfy the criteria in clauses (i) and (ii) of the
first sentence of Section 6.16(b) of the Agreement and (ii) the last sentence of
Section 6.16(b) of the Agreement is hereby amended to read in its entirety as
follows:
"Olivetti hereby waives all rights of subrogation or similar rights,
whether arising under law or contract (including, without limitation,
any counter guarantee given by Olsy, Olsy Japan, Olsy Brazil or any
Controlled Subsidiary to Olivetti), with respect to all bid,
performance, advance payment or residual bonds issued by Olivetti with
respect to the Business, Olsy, Olsy Japan, Olsy Brazil or any
Controlled Subsidiary other than the Customer Bonds."
(c) In connection with the change of Schedule 6.27 to the Agreement
effected by Section 4(a) of this Amendment No. 1 and the surrender of the lease
for the property at Didsbury, Manchester, UK on March 11, 1998, the last
sentence of Section 6.12(d) of the Agreement is hereby amended to read in its
entirety as follows:
"In connection with the preparation of the Closing Financial
Statements, (i) if any of
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the actions required to be taken pursuant to Section 1.8(a) shall not
have been taken prior to the Closing Financial Statements Date, Wang
shall cause such actions to be taken effective as of the date such
actions should have been taken pursuant to Section 1.8(a), (ii) Wang
shall cause all repair costs capitalized by Olsy North America, Inc.
not previously reversed and expensed to be reversed and expensed and
(iii) Wang shall increase the restructuring fund for empty spaces on
the books and records of Olsy and the Controlled Subsidiaries by
200,000,000 Italian lira."
5. Certain Schedules to the Olivetti Disclosure Schedule. Attached
hereto are Schedules 4.14(b) (ix) for Italy, 4.15(b) (i) (aa), 4.15(b) (i) (cc)
and 4.20 for Hong Kong, Germany, Netherlands and Rest of the World to the
Olivetti Disclosure Schedule which, respectively, supersede Schedules 4.14 (b)
(ix) for Italy, 4.15 (b) (i) (aa), 4.15(b) (i) (cc) and 4.20 for Hong Kong,
Germany, Netherlands and Rest of the World included in the Olivetti Disclosure
Schedule at signing.
6. Indemnification for Approval of Statutory Reports. In addition to
the indemnification pursuant to Section 7.2(a) or 10.2(a) of the Agreement,
Olivetti shall indemnify Wang, Olsy and the Controlled Subsidiaries and the
directors of Olsy and the Controlled Subsidiaries against and hold them harmless
from any Loss suffered or incurred by any of them for or on account of or
arising from or in connection with the approval of the "statutory reports" for
the year ended December 31, 1997.
7. Intercompany Funded Debt. Olivetti hereby represents and warrants to
Wang that, except for the Unsettled Amount (as defined below), all amounts owed
by Olivetti or any Olivetti Affiliate, on the one hand, to Olsy, Olsy Japan,
Olsy Brazil or any Controlled Subsidiary, on the other hand, or vice versa,
arising out of loans from one to the other have been paid or otherwise
extinguished resulting in a single amount owing from Olsy to Olivetti of
48,300,000,000 Italian lira (the "Olsy Payable"), which includes a net unsettled
amount of approximately 600,000,000 Italian lira (the "Unsettled Amount") owing
from Olsy to Olivetti. By no later than April 15, 1998, Olivetti shall deliver
to Wang a complete accounting and reconciliation of the foregoing from December
31, 1997 to the Closing Date. By not later than April 15, 1998, the Unsettled
Amount shall be settled and neither Olivetti or any Olivetti Affiliates, on the
one hand, nor Wang, Olsy, Olsy Japan, Olsy Brazil or any Controlled Subsidiary,
on the other hand, shall dispute the settlement of any part thereof. By not
later than March 23, 1998, Wang shall cause Olsy to pay Olivetti an amount, in
cash in immediately available funds, equal to the Olsy Payable less the amounts
payable by Olivetti or an Olivetti Affiliate pursuant to Sections 6.5(c) or (d)
of the Agreement.
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8. Cash Leakage. The definition of "Cash Leakage" in Section 6.14(d) of
the Agreement is hereby amended to read in its entirety as follows:
"The term "Cash Leakage" means the use of cash (decrease in cash) due
to dividends and equity distributions, or payments and loans out of the
ordinary course of business as prohibited and not otherwise waived
pursuant to Section 6.1 for the period beginning on January 1, 1998 and
ending on the Closing Date (as if such Section 6.1 applied throughout
such period); provided that any such use of cash is not captured in the
Closing Tangible Equity Value and provided that any loan or purchased
asset made other than in the ordinary course of business and not
approved in writing by Wang shall be transferred to Olivetti free of
charge other than any related expense of transfer."
9. Miscellaneous. The "s" at the end of the word "Sections" and the
words and numbers "and 5-1402" in the parenthetical in the first sentence of
Section 12.6 of the Agreement are hereby deleted. The Closing is occurring on,
and the Closing Date is, March 17, 1998. All references to the Agreement in the
documents being delivered at the Closing shall be deemed to be to the Agreement
as amended by this Amendment No. 1.
10. Agreement in Full Force and Effect. The Agreement, as amended by
this Amendment No. 1, shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1
to be signed by their duly authorized officers as of the date above written.
WANG LABORATORIES, Inc.
Attest: By /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Senior Vice President
/s/ Attestor
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Title:
WANG NEDERLAND BV
Attest: By /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Director
/s/ Attestor
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Title:
ING. C. Olivetti & C. S.P.A.
Attest: By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Attorney-on-fact
/s/ Attestor
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Title:
OLIVETTI SISTEMAS E SERVICIOS
LIMITADA
Attest: By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Attorney-in-fact
/s/ Attestor
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Title:
OLIVETTI DO BRASIL S.A.
Attest: By /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Attorney-in-fact
/s/ Attestor
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Title:
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