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Exhibit 7.5
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STOCKHOLDERS AGREEMENT
BY AND BETWEEN
WANG LABORATORIES, INC.
AND
ING. C. OLIVETTI & C. S.P.A.
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TABLE OF CONTENTS
SECTION 1. LEGENDS.......................................................1
SECTION 2. BOARD OF DIRECTORS............................................2
Initial Election of Olivetti Nominees.........................2
Reelection of Olivetti Nominees...............................2
Criteria for Olivetti Nominees................................2
Changes in the Size of the Board..............................3
Vacancies.....................................................3
D&O Coverage..................................................3
Committees....................................................4
SECTION 3. INFORMATION RIGHTS; XXXXXXX XXXXXXX POLICY....................4
SECTION 4. CERTAIN RESTRICTIONS..........................................5
Transfer Restrictions.........................................5
Short Sale, Hedging and Pledge Restrictions...................5
Standstill Restrictions.......................................6
NOL Restrictions..............................................7
Voting Restrictions...........................................7
SECTION 5. RIGHT TO PARTICIPATE IN PUBLIC OFFERINGS......................7
SECTION 6. PRE-REGISTRATION PROCEDURES...................................8
SECTION 7. DEMAND REGISTRATIONS..........................................9
Registration Requests.........................................9
Limitations on Requested Registrations........................9
Registration Statement Form..................................11
Registration Expenses........................................11
Priority in Cutback Registrations............................11
SECTION 8. SHELF REGISTRATIONS..........................................11
Shelf Registration Requests..................................11
Limitations on Shelf Registration Statements.................11
Registration Expenses........................................13
Discontinuance of Disposition................................13
SECTION 9. PIGGYBACK REGISTRATIONS......................................13
Right to Include Registrable Securities......................13
Limitation on Piggyback Registrations........................14
Registration Expenses........................................14
Priority in Cutback Registrations............................14
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SECTION 10. REGISTRATION PROCEDURES......................................14
SECTION 11. UNDERWRITTEN OFFERINGS.......................................18
Underwritten Requested Offerings.............................18
Underwritten Piggyback Offerings.............................19
SECTION 12. HOLDBACK AGREEMENTS..........................................19
By Olivetti..................................................19
By Wang......................................................19
Exception....................................................20
SECTION 13. INDEMNIFICATION..............................................20
Indemnification by Wang......................................20
Indemnification by the Sellers...............................21
Notices of Claims, etc.......................................21
Contribution.................................................22
Other Indemnification........................................23
Indemnification Payments.....................................23
SECTION 14. COVENANTS RELATING TO RULE 144...............................23
SECTION 15. OTHER REGISTRATION RIGHTS....................................23
No Existing Agreements.......................................23
Future Agreements............................................24
SECTION 16. INTERPRETATION OF THE AGREEMENT..............................24
Definitions..................................................24
Interpretation...............................................29
Accounting Principles........................................29
Directly or Indirectly.......................................29
Governing Law................................................29
Section Headings.............................................30
Severability.................................................30
SECTION 17. MISCELLANEOUS................................................30
Termination..................................................30
Notices......................................................30
Reproduction of Documents....................................31
Successors and Assigns.......................................31
Entire Agreement; Amendment and Waiver.......................32
No Third Party Beneficiary...................................32
Counterparts.................................................32
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STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT, dated as of this 17th day of March, 1998 by
and between Ing. C. Olivetti & C. S.p.A., an Italian corporation ("Olivetti"),
and Wang Laboratories, Inc., a Delaware corporation ("Wang").
R E C I T A L S:
WHEREAS, Wang has agreed to purchase, among other things, and
Olivetti has agreed, among other things, to sell, all of the outstanding capital
shares of Olivetti Solutions S.p.A., an Italian corporation and a subsidiary of
Olivetti ("Olsy"), pursuant to a Stock Purchase Agreement, dated as of February
28, 1998 (the "Stock Purchase Agreement"); and
WHEREAS, the consideration to be paid by Wang to Olivetti for the
shares of Olsy includes up to 8,750,000 shares of Common Stock (collectively,
the "Wang Shares"), 7,250,000 shares of which will be delivered on the date
hereof and 1,500,000 shares of which may be delivered in December 1998 pursuant
to the Ancillary Consideration Agreement; and
WHEREAS, Olivetti and Wang desire to promote their mutual interests
by agreeing to, among other things, the orderly disposition of the Wang Shares;
and
WHEREAS, certain capitalized terms used herein and not otherwise
defined have the meanings ascribed to such terms in Section 16(a) hereof;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. LEGENDS.
The certificates evidencing the Wang Shares will bear one or
both of the following legends:
"THE SECURITIES EVIDENCED HEREBY ARE SUBJECT TO THE TERMS AND
PROVISIONS OF THAT CERTAIN STOCKHOLDERS AGREEMENT, DATED AS
OF MARCH 17, 1998, BY AND BETWEEN ING. C. OLIVETTI & C., S.P.A. AND
WANG LABORATORIES, INC. ("WANG"), A COPY OF WHICH IS ON FILE AT
THE PRINCIPAL OFFICES OF WANG AND IS AVAILABLE UPON REQUEST."
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE
SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, OFFERED FOR
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SALE, ASSIGNED, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF
EXCEPT IN COMPLIANCE WITH, OR PURSUANT TO AN EXEMPTION FROM
THE REQUIREMENTS OF SUCH ACT OR SUCH LAWS."
SECTION 2. BOARD OF DIRECTORS.
(a) Initial Election of Olivetti Nominees. As soon as
practicable (but not later than thirty (30) days) following the date of closing
of the transactions contemplated by the Stock Purchase Agreement, Wang will take
all actions (consistent with applicable law and Wang's certificate of
incorporation and by-laws) necessary to increase the size of the board of
directors of Wang (the "Board") by two members and to elect Xx. Xxxxxxx
Xxxxxxxxx as a member of Class I of the Board and Mr. Xxxxxx Erede as a member
of Class III of the Board (Messrs. Colaninno and Erede and any other Olivetti
nominee designated by Olivetti in accordance with this Section 2 are referred to
herein individually as an "Olivetti Nominee" and collectively as the "Olivetti
Nominees").
(b) Reelection of Olivetti Nominees. Subject to Section 2(c),
(i) at each annual or special meeting of stockholders of Wang, or the taking of
action by written consent of stockholders of Wang, at which any class of the
Board of which an Olivetti Nominee is a member is to be elected, Olivetti shall
have the right (but not the obligation) to designate an Olivetti Nominee to be
elected to such class of the Board and (ii) if Olivetti so designates an
Olivetti Nominee, (A) the Organization, Compensation and Nominating Committee
(or other committee exercising a similar function, the "Nominating Committee")
of the Board will recommend to the Board the election of such Olivetti Nominee
to the Board and (B) Wang will take all actions (consistent with applicable law
and Wang's certificate of incorporation and by-laws) necessary to submit such
Olivetti Nominee to the stockholders of Wang for election to such class of the
Board and, if not elected by the stockholders of Wang, to otherwise cause,
within thirty (30) days of such non-election, such Olivetti Nominee to become a
member of such class of the Board; provided, however, that the number of
directors that Olivetti is entitled to designate shall be reduced to (i) one (1)
if Olivetti holds less than sixty-six percent (66%) of the Wang Shares and (ii)
zero (0) if Olivetti holds less than thirty-three percent (33%) of the Wang
Shares. As soon as practicable following the date on which Olivetti owns less
than sixty-six percent (66%) of the Wang Shares, Olivetti shall cause all but
one of the Olivetti Nominees serving on the Board to resign (regardless of the
remaining term, if any) from the Board. As soon as practicable following the
date on which Olivetti owns less than thirty-three percent (33%) of the Wang
Shares, Olivetti shall cause all the Olivetti Nominees serving on the Board to
resign (regardless of the remaining term, if any) from the Board.
(c) Criteria for Olivetti Nominees. Olivetti will not
designate any person as an Olivetti Nominee for election to the Board if (i)
such person has been convicted of, or has pled nolo contendere to, a felony,
(ii) the election of such person would violate any law, (iii) any event required
to be disclosed pursuant to Item 401(f) of the Regulation S-K of the Securities
Exchange Act of 1934, as amended (the "1934 Act") has occurred with respect to
such person, (iv) such person cannot commit the time and attention necessary to
serve as an active Board member, (v) such person is employed by or owns directly
or indirectly more than 5% of the stock or voting rights of a direct competitor
of Wang
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(other than Olivetti or one of its Affiliates) or (vi) such person is not
"qualified" to serve as a member of the Board. A person shall be presumed to be
"qualified" if such person has (A) significant business expertise or experience
in the information, high technology or computer or other related industries and
(B) served as a member of the board of directors, or as chief operating officer,
chief executive officer or managing director of a public company or a privately
held company with annual revenue in excess of Five Hundred Million Dollars
($500,000,000) unless the Nominating Committee (with any Olivetti Nominee who is
a member thereof abstaining) determines that such person is not "qualified." If
the Nominating Committee determines that any such person is not "qualified" Wang
shall promptly notify Olivetti of such determination.
(d) Changes in the Size of the Board. Subject to Sections 2(b)
and 2(c), (i) if the size of the Board is increased, Olivetti shall have the
right (but not the obligation) to designate additional Olivetti Nominees to the
Board so that the percentage of Olivetti Nominees as compared to the total
number of members on the Board will not be less than (A) twenty percent (20%) in
the event Olivetti holds not less than fifteen percent (15%) of the then
outstanding shares of Capital Stock and (B) ten percent (10%) in the event
Olivetti holds not less than seven and one-half percent (7 1/2%) of the then
outstanding shares of Capital Stock and (ii) if Olivetti so designates any such
additional Olivetti Nominee, (A) the Nominating Committee of the Board will
recommend to the Board the election of any such additional Olivetti Nominee to
the Board and (B) Wang will take all actions (consistent with applicable law and
Wang's certificate of incorporation and by-laws) necessary to submit any such
additional Olivetti Nominee to the stockholders of Wang for election to the
Board and, if not elected by the stockholders of Wang, to otherwise cause,
within thirty (30) days of such non-election, any such additional Olivetti
Nominee to be elected to the Board. If the size of the Board is reduced,
Olivetti shall cause the applicable number of Olivetti Nominees to immediately
resign (regardless of the remaining term, if any) from the Board so that the
percentage of Olivetti Nominees as compared to the total number of members on
the Board will not be less than (i) twenty percent (20%) in the event Olivetti
holds not less than 5,800,000 of the Wang Shares and (ii) ten percent (10%) in
the event Olivetti holds not less than 2,900,000 of the Wang Shares. The number
of Olivetti Nominees to which Olivetti is entitled pursuant to this Section 2(d)
shall equal the product of (x) the percentage representation to which Olivetti
is entitled at such time multiplied by (y) the number of members constituting
the entire Board after taking into account the increase or decrease thereto,
which number shall be rounded down to the nearest whole number if the fractional
portion thereof is less than .5 and shall be rounded up to the nearest whole
number if the fractional portion thereof is .5 or greater.
(e) Vacancies. Subject to Section 2(c), if any Olivetti
Nominee shall cease to serve as a director for any reason, other than pursuant
to the proviso to the first sentence of Section 2(b) or Section 2(d), and
Olivetti designates an Olivetti Nominee in accordance with this Section 2 to
fill such vacancy, Wang will take all actions (consistent with applicable law
and Wang's certificate of incorporation and by-laws) to fill such vacancy with
such Olivetti Nominee within thirty (30) days of such designation.
(f) D&O Coverage. Until such time as Olivetti is no longer
entitled to designate at least one (1) Olivetti Nominee for election to the
Board, Wang shall cause to be
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maintained directors' and officers' liability insurance in favor of the Olivetti
Nominees on the same terms and conditions maintained for other members of the
Board or shall implement an alternative liability insurance program (which may
include self insurance) approved by a majority vote of the Board; provided, that
in all such cases the Olivetti Nominees are treated in the same manner as all
other members of the Board.
(g) Committees. Subject to Section 2(c), (i) for so long as
Olivetti has the right to designate two (2) Olivetti Nominees for election to
the Board, Olivetti shall have the right (but not the obligation) to designate
at least one (1) Olivetti Nominee to serve on each standing committee of the
Board (which currently include the Strategy and Technology Committee, the
Finance and Audit Committee and the Organization, Compensation and Nominating
Committee) or other committee established by a resolution duly adopted by the
Board (except where such service would be prohibited by law or regulation) (the
foregoing, the "Committees") and (ii) if Olivetti so designates at least one (1)
Olivetti Nominee to serve on each such Committee, Wang will take all actions
(consistent with applicable law and Wang's certificate of incorporation and
by-laws) to cause at least one (1) Olivetti Nominee to serve on each such
Committee within thirty (30) days of such designation. Subject to Section 2(c),
(i) for so long as Olivetti has the right to designate one (1) Olivetti Nominee
for election to the Board, Olivetti shall have the right (but not the
obligation) to designate such Olivetti Nominee to serve on one-half (1/2) of the
then existing Committees, which Committees shall be chosen by such Olivetti
Nominee in his sole discretion, and (ii) if Olivetti so designates such Olivetti
Nominee to serve on one-half of the then existing Committees, Wang will take all
actions (consistent with applicable law and Wang's certificate of incorporation
and by-laws) to cause such Olivetti Nominee to serve on one-half (1/2) of the
then existing Committees so selected within thirty (30) days of such designation
and selection.
SECTION 3. INFORMATION RIGHTS; XXXXXXX XXXXXXX POLICY.
(a) For so long as any Olivetti Nominee is a member of the
Board, Wang will: (i) deliver to the Olivetti Nominees on the Board copies of
all information distributed by Wang to a majority of the members of the Board;
and (ii) deliver to Olivetti, as promptly as practicable following filing, a
copy of each report, schedule or other document filed by Wang pursuant to the
requirements of any federal securities laws.
(b) For as long as Olivetti beneficially owns (as determined
pursuant to Rule 13d-3 of the 0000 Xxx) any Wang Shares, Wang will continue to
comply in all material respects with the reporting requirements of Section 13 or
15(d) of the 1934 Act, to the extent such reporting requirements are applicable
to Wang.
(c) For as long as Olivetti beneficially owns (as determined
pursuant to Rule 13d-3 of the 0000 Xxx) any Wang Shares, Wang will afford
Olivetti a reasonable opportunity to review any filing with any governmental or
regulatory authority and any press release or similar public announcement which
refers to, describes or mentions Olivetti or any of its Affiliate (other than
solely in its capacity as a stockholder of Wang) prior to the time that such
filing is filed with or sent to the
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applicable governmental or regulatory authority or such announcement is
disseminated, provided that Wang shall not be required to provide Olivetti with
an opportunity to review such filing, press release or announcement to the
extent such information (i) has been previously disclosed by Olivetti or Wang
not in violation of this Agreement or (ii) (A) Wang has previously provided
Olivetti with a copy of such information and (B) Olivetti has not objected to
the disclosure of such information.
(d) For as long as Olivetti beneficially owns (as determined
pursuant to Rule 13d-3 of the 0000 Xxx) any Wang Shares, (i) Olivetti will, and
will cause each of Affiliates to, and will use its commercially reasonable best
efforts to cause its and each of its Affiliates, directors, officers, employees,
agents and representatives to, comply with the written policies of Wang
regarding xxxxxxx xxxxxxx or similar laws to the extent that any of the
foregoing are provided (whether by Wang, Olivetti or any Olivetti Nominee) with
any information provided by Wang pursuant to Section 3(a) or 3(c) and (ii) Wang
will notify Olivetti of any amendment to such policy or the adoption of any
additional policy regarding xxxxxxx xxxxxxx or similar laws (any such policy,
"Wang's Xxxxxxx Xxxxxxx Policy"). Olivetti shall use its commercially reasonable
best efforts to cause each Olivetti Nominee to (i) review Wang's Xxxxxxx Xxxxxxx
Policy and (ii) deliver to Wang a statement to such effect upon election on the
Board. Wang, with the concurrence of a majority of the Board, shall be
authorized to remove from the Board any Olivetti Nominee who discloses or uses
any non-public information regarding Wang in violation of any applicable law or
Wang's Xxxxxxx Xxxxxxx Policy.
SECTION 4. CERTAIN RESTRICTIONS.
(a) Transfer Restrictions. Except with the prior written
consent of Wang duly authorized by a majority of the Board, excluding the
Olivetti Nominees, until the earlier of (i) the third anniversary of the date
hereof or (ii) the occurrence of an Early Termination Event, Olivetti will not,
and will cause each of its Affiliates not to, directly or indirectly sell,
transfer or otherwise dispose of any Wang Shares, except to one or more
Majority-Owned Olivetti Affiliates (provided that prior thereto any such
Majority-Owned Olivetti Affiliate agrees in writing to be bound by the terms and
conditions of this Agreement and that Olivetti shall remain liable to Wang for
any breach of this Agreement by any such Majority-Owned Olivetti Affiliate).
(b) Short Sale, Hedging and Pledge Restrictions. Except with
the prior written consent of Wang duly authorized by a majority of the Board,
excluding the Olivetti Nominees, for so long as Olivetti beneficially owns (as
determined pursuant to Rule 13d-3 of the 0000 Xxx) thirty-three percent (33%) or
more of the Wang Shares, Olivetti will not, and will cause each of its
Affiliates not to, directly or indirectly:
(i) engage in any short sale or hedging transaction with
respect to any Wang Shares; or
(ii) pledge any Wang Shares, except to one or more bona fide
financial institutions for the purpose of securing bona fide
indebtedness of Olivetti (provided that prior thereto any such
financial institution agrees in writing to be bound by the terms
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and conditions of this Agreement (other than Sections 2 and 3) and
that Olivetti shall remain liable to Wang for any breach of this
Agreement by any such financial institution).
(c) Standstill Restrictions. Except with the prior written
consent of Wang duly authorized by a majority of the Board, excluding the
Olivetti Nominees, until the earlier of (i) ninety (90) days after the
occurrence of a Modified Early Termination Event or (ii) one hundred eighty
(180) days after the date after the third (3rd) anniversary of the date hereof
on which all of the Olivetti Nominees on the Board resign from the Board,
Olivetti will not, and will cause each of its Affiliates not to, directly or
indirectly:
(i) act in concert with any other person or Group by becoming
a member of a 13D Group, other than any 13D Group comprised
exclusively of Olivetti and one or more of its Affiliates;
(ii) purchase or otherwise acquire shares of Capital Stock as
a result of which, after giving effect to such purchase or
acquisition, Olivetti and its Affiliates will beneficially own (as
determined pursuant to Rule 13d-3 of the 0000 Xxx) more than 19.9%
of the outstanding shares of Common Stock;
(iii) solicit, initiate, encourage or participate in any
"solicitation" of "proxies" or become a "participant" in any
"election contest" (as such terms are defined or used in Regulation
14A under the 1934 Act; disregarding clause (iv) of Rule 14a 1(1)(2)
and including an exempt solicitation pursuant to Rule 14a 2(b)(1));
call, or in any way encourage or participate in a call for, any
special meeting of stockholders of Wang (or take any action with
respect to action by written consent of the stockholders of Wang);
seek to advise any Person with respect to voting of any securities
of Wang; make any statement in a press release, newspaper
advertisement or similar general communication of how it intends to
vote at any meeting of stockholders of Wang (or with respect to any
action by written consent of the stockholders of Wang); request, or
take any action to obtain or retain, any list of holders of any
securities of Wang; or initiate or propose any stockholder proposal
or participate in or encourage the making of, or solicit
stockholders of Wang for the approval of, one or more stockholder
proposals; provided, however, that Olivetti shall not be prohibited
from receiving communications from a security holder who is engaged
in any "solicitation" of "proxies" or who is a "participant" in any
"election contest";
(iv) otherwise act, alone or in concert with others, to seek
propose or seek to effect any form of business combination
transaction with Wang or any of its Affiliates or any restructuring,
recapitalization or any similar transaction with respect to any
thereof (other than through Olivetti Nominees at meetings of the
Board);
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(v) seek representation on the Board or a change in the
composition or size of the Board other than as set forth in Section
2; or
(vi) assist, advise or encourage any Person with respect to,
or seek to do, any of the foregoing.
(d) NOL Restrictions. Except for purchases and acquisitions of
Common Stock pursuant to the Ancillary Consideration Agreement or with the
Additional Cash Consideration (as defined in the Ancillary Consideration
Agreement), if Olivetti, at any time, intends to purchase or otherwise acquire
Capital Stock, Olivetti shall notify Wang in writing (the "Purchase Notice") of
(i) the Capital Stock which Olivetti intends to purchase or otherwise acquire,
(ii) the estimated period of time over which such contemplated purchase or other
acquisition is to be effected and (iii) the estimated price for such purchase or
other acquisition. Upon receipt of the Purchase Notice, Wang shall have three
(3) Business Days to, in its good faith judgment, either (A) approve the
purchase or other acquisition contemplated in the Purchase Notice or (B)
prohibit or impose restrictions on the purchase or other acquisition
contemplated in the Purchase Notice to the extent that the consummation thereof
would be reasonably likely to cause the undue risk of loss of, or the limitation
on the use of, the net operating loss, capital loss or tax credit carryforwards
to which Wang is entitled pursuant to Section 382 of the Code or any successor
statutes and the regulations promulgated thereunder. Olivetti shall conform to
the conduct prescribed by Wang with respect to the purchase or other acquisition
contemplated in the Purchase Notice.
(e) Voting Restrictions. If Olivetti or an Olivetti Affiliate
purchases or otherwise acquires any shares of Capital Stock in violation of
Sections 4(c)(ii) or (d), then (i) all such shares of Capital Stock shall
automatically lose their voting rights and (ii) Wang shall have the right to
compel Olivetti to dispose of all of such shares of Capital Stock.
SECTION 5. RIGHT TO PARTICIPATE IN PUBLIC OFFERINGS.
If, at any time prior to the date on which Olivetti sells any
of the Wang Shares, Wang proposes to issue or sell any shares of Common Stock in
an offering of Common Stock registered under the Securities Act of 1933, as
amended (the "1933 Act"), Wang shall send to (or cause to be sent to) Olivetti a
copy of the prospectus for such offering simultaneously with the distribution of
the same. If Olivetti notifies Wang not later than five (5) Business Days prior
to the "pricing" of such offering that it is interested in acquiring shares of
Common Stock in such offering on the terms of such offering, (a) Wang shall,
subject to Section 4(d) and to applicable law and regulations, cause a number of
shares of Common Stock to be sold to Olivetti in such offering and on the terms
of such offering and (b) Olivetti shall purchase a number of shares of Common
Stock in such offering and on the terms and conditions of such offering, in each
case, such that Olivetti would own the same percentage of the shares of Common
Stock outstanding immediately following the consummation of such offering as it
owned of the number of shares of Common Stock outstanding immediately prior to
the consummation of such offering.
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SECTION 6. PRE-REGISTRATION PROCEDURES.
(a) Prior to making any request pursuant to Sections 7(a) or
8(a), Olivetti shall deliver to Wang a written notice (a "Desired Sale Notice")
that it desires to sell not less than and up to that number of the Wang Shares
with respect to which it is then entitled to make a request pursuant to Sections
7(a) or 8(a) which Wang is required to honor pursuant to Sections 7(b) or 8(b),
specifying the number of Wang Shares it desires to sell. Wang shall use its
commercially reasonable best efforts to present to Olivetti, within forty-five
(45) days after the date of such Desired Sale Notice, a proposal (the
"Proposal") for the sale of the Wang Shares specified in any Desired Sale
Notice. In the Proposal, Wang shall propose to Olivetti that the sale of the
Wang Shares specified in any Desired Sale Notice be effected through (i) a
private sale that is exempt from the registration requirements of the 1933 Act
(a "Private Sale"), (ii) a repurchase by Wang (a "Repurchase"), (iii) a
Requested Registration, (iv) a Shelf Registration or (v) any combination of the
foregoing.
(b) If any Proposal involves a Private Sale, the terms and
conditions of such Private Sale must be acceptable to Olivetti in its sole
discretion and Olivetti shall deliver in writing an acceptance or rejection of
any Private Sale within fifteen (15) days of the date of the Proposal. If
Olivetti accepts such Private Sale, such Private Sale shall be consummated not
later than the ninetieth (90th) day following the date of the Desired Sale
Notice.
(c) If any Proposal involves a Repurchase, such Proposal shall
state the number of Wang Shares covered by such Repurchase and the per share
price to be paid in such Repurchase and Olivetti shall deliver in writing an
acceptance or rejection of such Repurchase within fifteen (15) days of the date
of the Proposal. If Olivetti accepts such Repurchase, such Repurchase shall be
consummated not later than the ninetieth (90th) day following the date of the
Desired Sale Notice.
(d) If the Proposal involves a Requested Registration, such
Requested Registration shall be effected in accordance with Section 7 with the
Proposal being deemed the written request of Olivetti referred to in Section
7(a).
(e) If the Proposal involves a Shelf Registration, such Shelf
Registration shall be effected in accordance with Section 8 with the Proposal
being deemed the written request of Olivetti referred to in Section 8(a).
(f) If Wang (i) fails to deliver a Proposal to Olivetti within
forty-five (45) days after the date of any Desired Sale Notice, (ii) delivers a
Proposal involving a Private Sale or Repurchase within forty-five (45) days of
any Desired Sale Notice but such Private Sale or Repurchase is not consummated
within ninety (90) days of the date of such Desired Sale Notice (other than as a
result of Olivetti's failure to consummate such Private Sale or Repurchase) or
(iii) delivers a Proposal involving a Requested Registration or Shelf
Registration within forty-five (45) days of any Desired Sale Notice but such
Requested Registration or Shelf Registration is not effected in accordance with
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Sections 7 or 8, as the case may be (except by reason of some act or omission on
the part of Olivetti), then Olivetti shall be entitled to request registration
of the Wang Shares covered by such Private Sale, Repurchase, Requested
Registration or Shelf Registration under the 1933 Act pursuant to either Section
7(a) or Section 8(a). If Olivetti requests registration of such Wang Shares
pursuant to Section 7(a), Wang shall effect such registration in accordance with
either Section 7 or Section 8, at Wang's election. If Olivetti requests
registration of such Wang Shares pursuant to Section 8(a), Wang shall effect
such registration in accordance with Section 8.
SECTION 7. DEMAND REGISTRATIONS.
(a) Registration Requests. Subject to Section 6, at any time
after the earliest to occur of (i) the third (3rd) anniversary of the date
hereof or (ii) an Early Termination Event, upon the written request of Olivetti
(specifying that such request is being made pursuant to this Section 7(a))
delivered to Wang requesting that Wang effect the registration under the 1933
Act of all or part of Olivetti's Registrable Securities as an underwritten
offering and specifying the number of Registrable Securities to be registered,
Wang will use its commercially reasonable best efforts to effect the
registration under the 1933 Act of the Registrable Securities which Wang has
been so requested to register by Olivetti within sixty (60) days of such
request, all to the extent required to permit the disposition (in accordance
with the intended methods thereof) of the Registrable Securities so to be
registered. Subject to Section 7(e), Wang may include in such registration other
securities of the same class as the Registrable Securities for sale for its own
account or for the account of any other Person. Neither Wang nor any of its
security holders shall have the right to include any of Wang's securities (other
than Registrable Securities) in a registration statement to be filed as part of
a Requested Registration unless (i) such securities are of the same class as the
Registrable Securities and (ii) Wang or such security holders, as applicable,
agree in writing to sell, subject to Section 7(e), their securities on the same
terms and conditions as apply to the Registrable Securities being sold. If any
security holders of Wang (other than Olivetti) register securities of Wang in a
Requested Registration in accordance with this Section 7, such holders shall pay
the fees and expenses of their counsel and their pro rata share, on the basis of
the respective amounts of the securities included in such registration on behalf
of each such holder, of the Registration Expenses if the Registration Expenses
for such registration are not paid by Wang for any reason.
(b) Limitations on Requested Registrations.
(i) Notwithstanding anything herein to the contrary, Wang
shall not be required to honor a request for a Requested
Registration if:
(A) Wang has previously effected an aggregate of three
(3) Private Sales, Repurchases or Effective
Registrations;
(B) the market value of the Registrable Securities
requested by Olivetti to be so registered is less
than $20,000,000;
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(C) if an Early Termination Event has not occurred, if
such request for a Requested Registration is made
prior to the fourth (4th) anniversary of the date
hereof and the sum of the number of Registrable
Securities the subject thereof and all Registrable
Securities the subject of prior requests for
Requested Registrations or Shelf Registrations
exceed 2,900,000 Registrable Securities;
(D) in the event an Early Termination Event has not
occurred, if such request for a Requested
Registration is made prior to the fifth (5th)
anniversary and the sum of the number of
Registrable Securities the subject thereof and all
Registrable Securities the subject of prior
requests for Requested Registrations or Shelf
Registrations exceed 5,800,000 Registrable
Securities;
(E) such request is received from Olivetti with
respect to Registrable Securities that may
immediately be sold under Rule 144 during any
ninety (90) day period; provided that the
foregoing shall not apply where Olivetti owns more
that ten percent (10%) of the outstanding shares
of Capital Stock immediately prior to the date of
such request; or
(F) such request is received by Wang less than (X)
three hundred (300) days following the effective
date of any previous registration statement filed
in connection with a Requested Registration or a
Shelf Registration (Y) ninety (90) days following
the effective date of any previous registration
statement filed in connection with a Piggyback
Registration (regardless of whether Olivetti
exercised its rights under this Agreement with
respect to such Piggyback Registration).
(ii) In addition, if (A) in the bona fide opinion of one or
more reputable investment banking firms, effecting any Requested
Registration would adversely affect a material financing,
acquisition, disposition of assets or stock, merger or other
comparable transaction by Wang, Wang may postpone taking action with
respect to such Requested Registration for a reasonable period of
time (not exceeding one hundred eighty (180) days from the date of
the Desired Sale Notice relating to such Requested Registration) or
(B) effecting any Requested Registration would require Wang to make
public disclosure of information which Wang has a bona fide business
purpose for preserving as confidential, Wang may postpone taking
action with respect to such Requested Registration until the earlier
of (x) the date upon which such material information is disclosed to
the public or ceases to be material or (y) one hundred eighty (180)
days after Wang makes such good faith determination.
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(c) Registration Statement Form. Wang may, if permitted by
law, effect any Requested Registration by the filing of a registration statement
on Form S-3 unless the Managing Underwriter shall notify Wang in writing that,
in the judgment of such Managing Underwriter, the use of a more detailed form
specified in such notice is of material importance to the success of the Public
Offering of such Registrable Securities, in which case such registration shall
be effected on the form so specified. Requested Registrations shall be on such
appropriate registration form promulgated by the Commission as shall be selected
by Wang, and shall be reasonably acceptable to Olivetti, and shall permit the
disposition of such Registrable Securities in accordance with the intended
method or methods specified in their request for such registration.
(d) Registration Expenses. Wang will pay all Registration
Expenses incurred in connection with any Requested Registration.
(e) Priority in Cutback Registrations. If a Requested
Registration becomes a Cutback Registration, Wang will include in any such
registration to the extent of the number which the Managing Underwriter advises
Xxxx xxx be sold in such offering (i) first, the Registrable Securities
requested to be included in such registration by Olivetti and (ii) second, other
securities of Wang proposed to be included in such registration, allocated among
the holders thereof in accordance with the priorities then existing among Wang
and the holders of such other securities. Any securities excluded from such
Requested Registration shall be withdrawn from and shall not be included in such
Requested Registration.
SECTION 8. SHELF REGISTRATIONS.
(a) Shelf Registration Requests. Subject to Section 6, at any
time after the earliest to occur of (i) the third (3rd) anniversary of the date
hereof or (ii) an Early Termination Event, upon the written request of Olivetti
(specifying that such request is being made pursuant to this Section 8(a))
delivered to Wang requesting that Wang effect the registration under the 1933
Act of all or part of Olivetti's Registrable Securities on a Form S-3 for a
public offering on a delayed or continuous basis pursuant to Rule 415 under the
1933 Act and specifying the number of Registrable Securities to be registered,
provided Wang is then entitled pursuant to the 1933 Act to file a Form S-3, Wang
shall use its commercially reasonable best efforts to effect the registration
under the 1933 Act of the Registrable Securities which Wang has been so
requested to register by Olivetti within thirty (30) days of such request.
(b) Limitations on Shelf Registration Statements.
(i) Notwithstanding anything herein to the contrary, Wang
shall not be required to honor a request for a Shelf Registration
if:
(A) Wang has previously effected an aggregate of three
(3) Private Sales, Repurchases or Effective
Registrations;
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(B) if an Early Termination Event has not occurred, if
such request for a Shelf Registration is made
prior to the fourth (4th) anniversary of the date
hereof and the sum of the number of Registrable
Securities the subject thereof and all Registrable
Securities the subject of prior requests for
Requested Registrations or Shelf Registrations
exceed 2,900,000 Registrable Securities;
(C) in the event an Early Termination Event has not
occurred, if such request for a Shelf Registration
is made prior to the fifth (5th) anniversary and
the sum of the number of Registrable Securities
the subject thereof and all Registrable Securities
the subject of prior requests for Requested
Registrations or Shelf Registrations exceed
5,800,000 Registrable Securities; or
(D) such request is received by Wang less than (X)
three hundred (300) days following the effective
date of any previous registration statement filed
in connection with a Requested Registration or a
Shelf Registration or (Y) ninety (90) days
following the effective date of any previous
registration statement filed in connection with a
Piggyback Registration (regardless of whether
Olivetti exercised its rights under this Agreement
with respect to such Piggyback Registration).
(ii) In addition, if (A) in the bona fide opinion of one or
more reputable investment banking firms, effecting any Shelf
Registration would adversely affect a material financing,
acquisition, disposition of assets or stock, merger or other
comparable transaction by Wang, Wang may postpone taking action with
respect to such Shelf Registration for a reasonable period of time
(not exceeding one hundred eighty (180) days from the date of the
Desired Sale Notice relating to such Shelf Registration) or (B) in
the good faith determination of Wang effecting any Shelf
Registration would require Wang to make public disclosure of
information which Wang has a bona fide business purpose for
preserving as confidential, Wang may postpone taking action with
respect to such Shelf Registration until the earlier of (x) the date
upon which such material information is disclosed to the public or
ceases to be material or (y) one hundred eighty (180) days after
Wang makes such good faith determination.
(iii) In addition, if an Early Termination Event has occurred
and the number of Registrable Securities the subject of a request
for any Shelf Registration exceeds 5,000,000 Registrable Securities
and a reputable investment banking firm advises Wang and Olivetti in
writing that, in its opinion, the number of Registrable Securities
requested to be included in such Shelf Registration exceeds the
number which can be
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sold pursuant to such Shelf Registration without a material
reduction in the selling price anticipated to be received for such
Registrable Securities, Wang shall include in such Shelf
Registration the greater of (A) 5,000,000 Registrable Securities or
(B) such number of Registrable Securities as such investment banking
firm advises Wang and Olivetti can be sold pursuant to such Shelf
Registration without a material reduction in the selling price
anticipated to be received for such Registrable Securities .
(c) Registration Expenses. Wang will pay all Registration
Expenses incurred in connection with any Shelf Registration.
(d) Discontinuance of Disposition. Olivetti agrees that upon
receipt of any notice from Wang that (i) in the opinion of one or more
investment banking firms, Olivetti's disposition of Registrable Securities
pursuant to any Shelf Registration would adversely affect a material financing,
acquisition, disposition of assets or stock, merger or other comparable
transaction by Wang, Olivetti shall forthwith discontinue such disposition of
Registrable Securities pursuant to such Shelf Registration for a period of up to
one hundred eighty (180) days or (ii) in the good faith determination of Wang,
Olivetti's disposition of Registrable Securities pursuant to any Shelf
Registration would require Wang to make public disclosure of information of
which Wang has a bona fide business purpose for preserving as confidential,
Olivetti shall forthwith discontinue such disposition of Registrable Securities
pursuant to such Shelf Registration until the earlier of (x) the date upon which
such material information is disclosed to the public or ceases to be material or
(y) one hundred eighty (180) days after Wang makes such good faith
determination.
SECTION 9. PIGGYBACK REGISTRATIONS.
(a) Right to Include Registrable Securities. If Wang at any
time after the earlier to occur of (i) the third (3rd) anniversary of the date
hereof or (ii) the occurrence of an Early Termination Event, proposes to effect
a Piggyback Registration Wang will give prompt written notice (a "Notice of
Piggyback Registration") at least thirty (30) days prior to the anticipated
filing date, to Olivetti of its intention to effect a Piggyback Registration,
which Notice of Piggyback Registration shall include a description of the
intended method of disposition of such securities. Upon the written request of
Olivetti made within twenty (20) days after receipt of a Notice of Piggyback
Registration (which request shall specify the Registrable Securities intended to
be disposed of by Olivetti and the intended method of disposition thereof), Wang
will use its commercially reasonable best efforts to include in the registration
statement relating to such Piggyback Registration all Registrable Securities
which Wang has been so requested by Olivetti to register. Notwithstanding the
foregoing, if, at any time after giving a Notice of Piggyback Registration and
prior to the effective date of the registration statement filed in connection
with such Piggyback Registration, Wang shall determine for any reason not to
register or to delay registration of such securities, Wang may, at its election,
give written notice of such determination to Olivetti and, thereupon, (i) in the
case of a determination not to register, shall be relieved of its obligation to
register any Registrable Securities in connection with such registration (but
not from its obligation to pay the Registration Expenses in connection
therewith) without prejudice, however, to the rights of Olivetti to request that
such registration be effected as a Requested
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Registration under Section 7 hereof, and (ii) in the case of a determination to
delay registering, shall be permitted to delay registering any Registrable
Securities for the same period as the delay in registering such other
securities. No registration effected under this Section 9 shall relieve Wang of
its obligations under Sections 6, 7 or 8.
(b) Limitation on Piggyback Registrations. Notwithstanding
anything contained herein to the contrary, Wang shall not be required to effect
any registration of Registrable Securities under this Section 9 incidental to
the registration of any of its securities in connection with mergers,
acquisitions, exchange offers, subscription offers, dividend reinvestment plans
or stock option or other employment benefit or similar plans.
(c) Registration Expenses. Wang will pay all Registration
Expenses incurred in connection with each Piggyback Registration.
(d) Priority in Cutback Registrations. If a Piggyback
Registration becomes a Cutback Registration, Wang will include in such
registration to the extent of the amount of the securities which the Managing
Underwriter advises Xxxx xxx be sold in such offering:
(i) if such registration as initially proposed by Wang was
solely a primary registration of its securities, (x), first, the
securities proposed by Wang to be sold for its own account and (y)
second, any Registrable Securities requested to be included in such
registration by Olivetti and any other securities of Wang proposed
to be included in such registration, allocated among the holders
thereof (including Olivetti) in accordance with the priorities then
existing among Wang and such holders; and
(ii) if such registration as initially proposed by Wang was in
whole or in part requested by holders of securities of Wang, other
than holders of Registrable Securities in their capacities as such,
pursuant to demand registration rights, (x) first, such securities
held by the holders initiating such registration and (y) second, any
Registrable Securities requested to be included in such registration
by Olivetti and any other securities of Wang proposed to be included
in such registration, allocated among the holders thereof in
accordance with the priorities then existing among Wang and the
holders of such other securities.
and any securities so excluded shall be withdrawn from and shall not be included
in such Piggyback Registration.
SECTION 10. REGISTRATION PROCEDURES.
If and whenever Wang is required to use its commercially reasonable
best efforts to effect the registration of any Registrable Securities under the
1933 Act pursuant to Section 7, Section 8 or Section 9 hereof, Wang will use its
commercially reasonable best efforts to effect the registration
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and sale of such Registrable Securities in accordance therewith. Without
limiting the foregoing, Wang in each such case will, as expeditiously as
possible:
(a) prepare and file with the Commission (in the case of a
Requested Registration or a Shelf Registration Statement, not later than thirty
(30) days after Wang's receipt of the request therefor from Olivetti) the
requisite registration statement to effect such registration and use its
commercially reasonable best efforts to cause such registration statement to
become effective, provided that as far in advance as practical before filing
such registration statement or any amendment thereto, Wang will furnish to
Olivetti copies of reasonably complete drafts of all such documents proposed to
be filed (including exhibits), and Olivetti shall have the opportunity to object
to any information pertaining solely to Olivetti or its Affiliates that is
contained therein and Wang will make the corrections reasonably requested by
Olivetti with respect to such information prior to filing any such registration
statement or amendment;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and any prospectus used in connection
therewith as may be necessary to maintain the effectiveness of such registration
statement and to comply with the provisions of the 1933 Act with respect to the
disposition of all Registrable Securities covered by such registration
statement, in accordance with the intended methods of disposition thereof, until
the earlier of (i) such time as all of such securities have been disposed of in
accordance with the intended methods of disposition by the seller or sellers
thereof set forth in such registration statement and (ii) one hundred twenty
(120) days after such registration statement becomes effective (or if an Early
Termination Event has occurred and such registration statement is for a Shelf
Registration, (x) one hundred eighty (180) days after such registration becomes
effective if less than 5,000,000 Registrable Securities were registered on such
registration statement or (y) one (1) year after such registration statement
becomes effective if 5,000,000 or more Registrable Securities were registered on
such registration statement);
(c) promptly notify Olivetti and the underwriter or
underwriters, if any:
(i) when such registration statement or any prospectus used in
connection therewith, or any amendment or supplement thereto, has
been filed and, with respect to such registration statement or any
post-effective amendment thereto, when the same has become
effective;
(ii) of any written comments from the Commission with respect
to any filing referred to in clause (i) or of any written request by
the Commission for amendments or supplements to such registration
statement or prospectus;
(iii) of the notification to Wang by the Commission of its
initiation of any proceeding with respect to the issuance by the
Commission of, or of the issuance by the Commission of, any stop
order suspending the effectiveness of such registration statement;
and
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(iv) of the receipt by Wang of any notification with respect
to the suspension of the qualification of any Registrable Securities
for sale under the applicable securities or blue sky laws of any
jurisdiction.
(d) furnish to each seller of Registrable Securities covered
by such registration statement such number of conformed copies of such
registration statement and of each amendment and supplement thereto (in each
case including all exhibits and documents incorporated by reference), such
number of copies of the prospectus contained in such registration statement
(including each preliminary prospectus and any summary prospectus) and any other
prospectus filed under Rule 424 promulgated under the 1933 Act relating to
Olivetti's Registrable Securities, and such other documents, as such seller of
Registrable Securities may reasonably request to facilitate the disposition of
its Registrable Securities;
(e) use its commercially reasonable best efforts to register
or qualify all Registrable Securities covered by such registration statement
under such other securities or blue sky laws of such jurisdictions as Olivetti
shall reasonably request, to keep such registration or qualification in effect
for so long as such registration statement remains in effect, and take any other
action which may be reasonably necessary or advisable to enable Olivetti to
consummate the disposition in such jurisdictions of the Registrable Securities
owned by Olivetti, except that Wang shall not for any such purpose be required
(i) to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this subparagraph
(e) be obligated to be so qualified, (ii) to subject itself to taxation in any
such jurisdiction or (iii) to consent to general service of process in any
jurisdiction;
(f) use its commercially reasonable best efforts to cause all
Registrable Securities covered by such registration statement to be registered
with or approved by such other governmental agencies or authorities as may be
necessary to enable Olivetti to consummate the disposition of such Registrable
Securities;
(g) until such time as Olivetti ceases to be an "affiliate" of
Wang for purposes of the 1933 Act, furnish to Olivetti a signed counterpart,
addressed to it, of
(i) an opinion of counsel for Wang, dated the effective date
of such registration statement (or, if such registration includes an
underwritten Public Offering, dated the date of any closing under
the underwriting agreement), reasonably satisfactory in form and
substance to Olivetti, and
(ii) a "comfort" letter, dated the effective date of such
registration statement (and, if such registration includes an
underwritten Public Offering, dated the date of any closing under
the underwriting agreement), signed by the independent public
accountants who have certified Wang's financial statements included
or incorporated by reference in such registration statement,
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in each case covering substantially the same matters with
respect to such registration statement (and the prospectus
included therein) and, in the case of the accountants' letter,
with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions
of issuer's counsel and in accountants' letters delivered to
the underwriters in underwritten Public Offerings of
securities and, in the case of the accountants' letter, such
other financial matters, as Olivetti (or the underwriters, if
any) may reasonably request;
(h) notify Olivetti, at any time when a prospectus relating
thereto is required to be delivered under the 1933 Act, of the happening of any
event as a result of which any prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, and at the request of Olivetti promptly prepare and
furnish to Olivetti a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
(i) otherwise use its commercially reasonable best efforts to
comply with all applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve (12) months, but not
more than eighteen (18) months, beginning with the first (1st) full calendar
month after the effective date of such registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the 1933 Act and Rule
158 promulgated thereunder;
(j) until such time as Olivetti ceases to be an "affiliate" of
Wang for purposes of the 1933 Act, make available for inspection by Olivetti,
any underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by Olivetti or
any such underwriter (collectively, the "Inspectors"), all financial and other
records, pertinent corporate documents and properties of Wang (collectively, the
"Records") as shall be reasonably necessary to enable them to exercise their due
diligence responsibility, and cause Wang's officers, directors and employees to
supply all information reasonably requested by any such Inspector in connection
with such registration statement, and permit the Inspectors to participate in
the prepara tion of such registration statement and any prospectus contained
therein and any amendment or supplement thereto. Records which Wang determines,
in good faith, to be confidential and which it notifies the Inspectors are
confidential shall not be disclosed by the Inspectors unless (i) the disclosure
of such Records is necessary to avoid or correct a misstatement or omission in
the registration statement, (ii) the release of such Records is ordered pursuant
to a subpoena or other order from a court of competent jurisdiction or (iii) the
information in such Records has been made generally available to the public. The
seller of Registrable Securities agrees by acquisition of such Registrable
Securities that it will, upon learning that disclosure of such Records is sought
in a court of competent jurisdiction,
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give notice to Wang and allow Wang, at Wang's expense, to undertake appropriate
action to prevent disclosure of the Records deemed confidential;
(k) provide a transfer agent and registrar for all Registrable
Securities covered by such registration statement not later than the effective
date of such registration statement; and
(l) use its commercially reasonable best efforts to cause all
Registrable Securities covered by such registration statement to be listed, upon
official notice of issuance, on any securities exchange on which any of the
securities of Wang of the same class as the Registrable Securities are then
listed.
Wang may require Olivetti, as a condition to including Registrable
Securities in such registration, shall, furnish Wang with such information and
affidavits regarding Olivetti and the distribution of such securities as Wang
may from time to time reasonably request in writing in connection with such
registration.
Olivetti agrees by acquisition of such Registrable Securities that
upon receipt of any notice from Wang of the happening of any event of the kind
described in subparagraph (h) of this Section 10, Olivetti will forthwith
discontinue its disposition of Registrable Securities pursuant to the
registration statement relating to such Registrable Securities until Olivetti's
receipt of the copies of the supplemented or amended prospectus contemplated by
subparagraph (h) of this Section 10 and, if so directed by Wang, will deliver to
Wang (at Wang's expense) all copies, other than permanent file copies, then in
Olivetti's possession of the prospectus relating to such Registrable Securities
current at the time of receipt of such notice. In the event Wang shall give any
such notice, the period referred to in subparagraph (b) of this Section 10 shall
be extended by a number of days equal to the number of days during the period
from and including the giving of notice pursuant to subparagraph (h) of this
Section 10 and to and including the date when Olivetti shall receive the copies
of the supplemented or amended prospectus contemplated by subparagraph (h) of
this Section 10.
SECTION 11. UNDERWRITTEN OFFERINGS.
(a) Underwritten Requested Offerings. In the case of any
underwritten Public Offering being effected pursuant to a Requested
Registration, the Managing Underwriter and any other underwriter or underwriters
with respect to such offering shall be selected by Wang. Wang shall enter into
an underwriting agreement in customary form with such underwriter or
underwriters, which shall include, among other provisions, indemnities to the
effect and to the extent provided in Section 13 hereof. Olivetti shall be a
party to such underwriting agreement and may, at their option, require that any
or all of the representations and warranties by, and the other agreements on the
part of, Wang to and for the benefit of such underwriters also be made to and
for their benefit and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement also be
conditions precedent to Olivetti's obligations. Olivetti shall not be required
to make any representations or warranties to or agreements with Wang or the
underwriters other than
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representations, warranties or agreements regarding Olivetti and its ownership
of the securities being registered on its behalf and Olivetti's intended method
of distribution and any other representation required by law. Olivetti may not
participate in such underwritten offering unless it agrees to sell its
Registrable Securities on the basis provided in such underwriting agreement and
completes and executes all questionnaires, powers of attorney, indemnities and
other documents reasonably required under the terms of such underwriting
agreement.
(b) Underwritten Piggyback Offerings. If Wang at any time
proposes to register any of its securities in a Piggyback Registration and such
securities are to be distributed by or through one or more underwriters, Wang
will, subject to the provisions of Section 9(d) hereof, use its commercially
reasonable best efforts, if requested by Olivetti, to arrange for such
underwriters to include the Registrable Securities to be offered and sold by
Olivetti among the securities to be distributed by such underwriters, and
Olivetti shall be obligated to sell their Registrable Securities in such
Piggyback Registration through such underwriters on the same terms and
conditions as apply to the other Wang securities to be sold by such underwriters
in connection with such Piggyback Registration. Olivetti shall be a party to the
underwriting agreement between Wang and such underwriter or underwriters and
may, at their option, require that any or all of the representations and
warranties by, and the other agreements on the part of, Wang to and for the
benefit of such underwriters also be made to and for Olivetti's benefit and that
any or all of the conditions precedent to the obligations of such underwriters
under such underwriting agreement also be conditions precedent to Olivetti's
obligations. Olivetti shall not be required to make any representations or
warranties to or agreements with Wang or the underwriters other than
representations, warranties or agreements regarding Olivetti and its ownership
of the securities being registered on its behalf and Olivetti's intended method
of distribution and any other representation required by law. Olivetti may not
participate in such underwritten offering unless it agrees to sell its
Registrable Securities on the basis provided in such underwriting agreement and
completes and executes all questionnaires, powers of attorney, indemnities and
other documents reasonably required under the terms of such underwriting
agreement.
SECTION 12. HOLDBACK AGREEMENTS.
(a) By Olivetti. Unless the Managing Underwriter (or, in the
case of a non-underwritten Public Offering, Wang) otherwise agrees, Olivetti, by
acquisition of such Registrable Securities, agrees, to the extent permitted by
law, not to effect any public sale or distribution (including a sale under Rule
144) of such securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the thirty (30) days prior to and the
one hundred thirty-five (135) days after the effective date of any registration
statement filed by Wang in connection with an underwritten Public Offering (or
for such shorter period of time as is sufficient and appropriate, in the opinion
of the Managing Underwriter (or, in the case of a non-underwritten Public
Offering, Wang), in order to complete the sale and distribution of the
securities included in such registration), except as part of such registration
statement, whether or not Olivetti participates in such registration.
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(b) By Wang. Unless the Managing Underwriter otherwise agrees,
Wang agrees not to effect any public sale or distribution of its equity
securities, or any securities convertible into or exchangeable or exercisable
for such securities, during the thirty (30) days prior to and the one hundred
thirty-five (135) days after the effective date of the registration statement
filed in connection with an underwritten offering made pursuant to a Requested
Registration or a Piggyback Registration (or for such shorter period of time as
is sufficient and appropriate, in the opinion of the Managing Underwriter, in
order to complete the sale and distribution of the securities included in such
registration), except as part of such underwritten registration and except
pursuant to registrations on Form S-4 or Form S-8 promulgated by the Commission
or any successor or similar forms thereto.
(c) Exception. The foregoing provisions shall not apply to
Olivetti to the extent Olivetti is prohibited by applicable law from agreeing to
withhold from sale or to the extent Olivetti is acting in its capacity as a
fiduciary or an investment adviser. Without limiting the scope of the term
"fiduciary", a holder shall be deemed to be acting as a fiduciary or an
investment adviser if its actions or the shares proposed to be sold are subject
to the Employee Retirement Income Security Act, the Investment Company Act of
1940 or the Investment Advisers Act of 1940 or if such shares are held in a
separate account under applicable insurance law or regulation.
SECTION 13. INDEMNIFICATION
(a) Indemnification by Wang. Wang shall, to the full extent
permitted by law, indemnify and hold harmless Olivetti in connection with a
Requested Registration or a Piggyback Registration, its directors and officers,
and each other Person, if any, who controls Olivetti within the meaning of the
1933 Act, against any losses, claims, damages, expenses (including reasonable
attorney fees) or liabilities, joint or several (together, "Losses"), to which
Olivetti or any such director or officer or controlling Person may become
subject under the 1933 Act or otherwise, insofar as such Losses (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any such registration statement, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein (in the case of a prospectus, in the light of the
circumstances under which they were made) not misleading, and Wang will
reimburse Olivetti and each such director, officer and controlling Person for
any legal or any other expenses reasonably incurred by them in connection with
investigating or defending any such Loss (or action or proceeding in respect
thereof); provided that Wang shall not be liable in any such case to the extent
that any such Loss (or action or proceeding in respect thereof) arises out of or
is based upon (x) an untrue statement or alleged untrue statement or omission or
alleged omission made in any such registration statement, preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information furnished to Wang by
Olivetti specifically stating that it is for use in the preparation thereof or
(y) Olivetti's failure to send or give a copy of the final prospectus to the
Persons asserting an untrue statement or alleged untrue statement or omission or
alleged omission at or prior to the written confirmation of the sale of
Registrable Securities
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to such Person if such statement or omission was corrected in such final
prospectus. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of Olivetti or any such director, officer
or controlling Person, and shall survive the transfer of such securities by such
seller. Wang shall also indemnify each other Person who participates (including
as an underwriter) in the offering or sale of Registrable Securities, their
officers and directors and each other Person, if any, who controls any such
participating Person within the meaning of the 1933 Act to the same extent as
provided above with respect to holders of Registrable Securities.
(b) Indemnification by the Sellers. Olivetti, as a condition
to including Registrable Securities in any registration statement filed in
connection with a Requested Registration or a Piggyback Registration, shall, to
the full extent permitted by law, indemnify and hold harmless Wang, its
directors and officers, and each other Person, if any, who controls Wang within
the meaning of the 1933 Act, against any Losses to which Wang or any such
director or officer or controlling Person may become subject under the 1933 Act
or otherwise, insofar as such Losses (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any such registration statement, any preliminary prospectus, final prospectus or
summary prospectus contained therein, or any amendment or supplement thereto, or
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of a
prospectus, in the light of the circumstances under which they were made) not
misleading, if such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to Wang by such seller specifically stating that it is for
use in the preparation of such registration statement, preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement; provided,
however, that the obligation to provide indemnification pursuant to this Section
13(b) shall be several, and not joint and several, among such Indemnifying
Parties and the aggregate amount which may be recovered from any holder of
Registrable Securities pursuant to the indemnification provided for in this
Section 13(b) in connection with any registration and sale of Registrable
Securities shall be limited to the total proceeds received by such holder from
the sale of such Registrable Securities. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of Wang or
any such director, officer or participating or controlling Person and shall
survive the transfer of such securities by such seller. Such holders shall also
indemnify each other Person who participates (including as an underwriter) in
the offering or sale of Registrable Securities, their officers and directors and
each other Person, if any, who controls any such participating Person within the
meaning of the 1933 Act to the same extent as provided above with respect to
Wang.
(c) Notices of Claims, etc. Promptly after receipt by an
Indemnified Party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding paragraph (a) or (b) of this
Section 13, such Indemnified Party will, if a claim in respect thereof is to be
made against an Indemnifying Party pursuant to such paragraphs, give written
notice to the latter of the commencement of such action, provided that the
failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under the preceding para
graphs of this Section 13, except to the extent that the Indemnifying Party is
actually prejudiced by
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such failure to give notice. In case any such action is brought against an
Indemnified Party, the Indemnifying Party shall be entitled to participate in
and to, unless, in the reasonable judgment of any Indemnified Party, a conflict
of interest between such Indemnified Party and any Indemnifying Party exists
with respect to such claim, to assume the defense thereof, jointly with any
other Indemnifying Party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such Indemnified Party, and after notice from
the Indemnifying Party to such Indemnified Party of its election so to assume
the defense thereof, the Indemnifying Party shall not be liable to such Indemni
fied Party for any legal or other expenses subsequently incurred by the latter
in connection with the defense thereof other than reasonable costs of
investigation; provided that the Indemnified Party may participate in such
defense at the Indemnified Party's expense; and provided, further that the
Indemnified Party or Indemnified Parties shall have the right to employ one
counsel to represent it or them if, in the reasonable judgment of the
Indemnified Party or Indemnified Parties, it is advisable for it or them to be
represented by separate counsel by reason of having legal defenses which are
different from or in addition to those available to the Indemnifying Party, and
in that event the reasonable fees and expenses of such one counsel shall be paid
by the Indemnifying Party. If the Indemnifying Party is not entitled to, or
elects not to, assume the defense of a claim, it will not be obligated to pay
the fees and expenses of more than one counsel for the Indemnified Parties with
respect to such claim, unless in the reasonable judgment of any Indemnified
Party a conflict of interest may exist between such Indemnified Party and any
other Indemnified Parties with respect to such claim, in which event the
Indemnifying Party shall be obligated to pay the fees and expenses of such
additional counsel for the Indemnified Parties. No Indemnifying Party shall
consent to entry of any judgment or enter into any settlement without the
consent of the Indemnified Party which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified Party of a
release from all liability in respect to such claim or litigation. No
Indemnifying Party shall be subject to any liability for any settlement made
without its consent, which consent shall not be unreasonably withheld.
(d) Contribution. If the indemnity and reimbursement
obligation provided for in any paragraph of this Section 13 is unavailable or
insufficient to hold harmless an Indemnified Party in respect of any Losses (or
actions or proceedings in respect thereof) referred to therein, then the
Indemnifying Party shall contribute to the amount paid or payable by the
Indemnified Party as a result of such Losses (or actions or proceedings in
respect thereof) in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party on the one hand and the Indemnified Party on the
other hand in connection with statements or omissions which resulted in such
Losses, as well as any other relevant equitable considerations. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Indemnifying Party or the Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this paragraph were to be determined
by pro rata allocation or by any other method of allocation which does not take
account of the equitable consider ations referred to in the first sentence of
this paragraph. The amount paid by an Indemnified Party as a result of the
Losses referred to in the first sentence of this paragraph shall be deemed to
include any
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legal and other expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending any Loss which is the subject of this
paragraph.
No Indemnified Party guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution
from the Indemnifying Party if the Indemnifying Party was not guilty of such
fraudulent misrepresentation.
(e) Other Indemnification. Indemnification similar to that
specified in the preceding paragraphs of this Section 13 (with appropriate
modifications) shall be given by Wang and each seller of Registrable Securities
with respect to any required registration or other qualification of securities
under any federal or state law or regulation of any governmental authority other
than the 1933 Act. The provisions of this Section 13 shall be in addition to any
other rights to indemnification or contribution which an Indemnified Party may
have pursuant to law, equity, contract or otherwise.
(f) Indemnification Payments. The indemnification required by
this Section 13 shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are received or
Losses are incurred.
SECTION 14. COVENANTS RELATING TO RULE 144.
If at any time Wang is required to file reports in
compliance with either Section 13 or Section 15(d) of the 1934 Act, Wang will
file reports in compliance with the 1934 Act, will comply with all rules and
regulations of the Commission applicable in connection with the use of Rule 144
and take such other actions and furnish Olivetti with such other information as
Olivetti may request in order to avail itself of such rule or any other rule or
regulation of the Commission allowing Olivetti to sell any Registrable
Securities without registration, and will, at its expense, forthwith upon the
request of Olivetti, deliver to Olivetti a certificate, signed by Wang's
principal financial officer, stating (a) Wang's name, address and telephone
number (including area code), (b) Wang' s Internal Revenue Service
identification number, (c) Wang's Commission file number, (d) the number of
shares of each class of Stock outstanding as shown by the most recent report or
statement published by Wang and (e) whether Wang has filed the reports required
to be filed under the 1934 Act for a period of at least ninety (90) days prior
to the date of such certificate and in addition has filed the most recent annual
report required to be filed thereunder. If at any time Wang is not required to
file reports in compliance with either Section 13 or Section 15(d) of the 1934
Act, Wang at its expense will, forthwith upon the written request of Olivetti,
make available adequate current public information with respect to Wang within
the meaning of paragraph (c)(2) of Rule 144.
SECTION 15. OTHER REGISTRATION RIGHTS.
(a) No Existing Agreements. Wang represents and warrants to
Olivetti that there is not in effect on the date hereof any agreement by Wang
pursuant to which any holders of
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securities of Wang have a right to cause Wang to register or qualify such
securities under the 1933 Act or any securities or blue sky laws of any
jurisdiction that would conflict or be inconsistent with any provision of this
Agreement.
(b) Future Agreements. Wang shall not hereafter agree with the
holders of any securities issued or to be issued by Wang to register or qualify
such securities under the 1933 Act or any securities or blue sky laws of any
jurisdiction unless such agreement specifically provides that: (i) such holder
of such securities may not participate in any Requested Registration except as
provided in Section 7; (ii) the holder of such securities may not participate in
any Piggyback Registration except as provided in Section 9; and (iii) such
securities may not be publicly offered or sold for the period specified in
Section 12(b)(y) under the circumstances described in such Section.
SECTION 16. INTERPRETATION OF THE AGREEMENT.
(a) Definitions. Except as otherwise specifically indicated,
the following terms will have the following meanings for all purposes of this
Agreement:
"Affiliate" means any person or entity, directly or indirectly,
controlling, controlled by or under common control with such person or entity.
"Agreement" means this Stockholders Agreement, as the same shall be
amended from time to time.
"Ancillary Consideration Agreement" means the Ancillary
Consideration Agreement dated as of the date hereof between Wang and Olivetti.
"Board" has the meaning ascribed to it in Section 2(a).
"Business Day" means a day other than Saturday, Sunday or any other
day on which banks located in the State of New York or the Commonwealth of
Massachusetts are authorized or obligated to close.
"Capital Stock" means any security, option, warrant, call,
commitment, subscription, right to purchase or other agreement of any character
that is convertible into or exchangeable or redeemable for shares of capital
stock of Wang, and shall also include additional shares of capital stock to be
issued pursuant to the conversion, exchange or redemption of any security,
option, warrant, call, commitment, subscription, right to purchase or other
agreement of any character that is convertible into or exchangeable or
redeemable for shares of capital stock.
"Change of Control" means one or more of the following events:
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(i) less than a majority of the members of the Board shall be
persons who either (A) were serving as directors on the date of this
Agreement or (B) were nominated as directors and approved by the vote of
the majority of the directors who are directors referred to in clause (A)
above or this clause (B);
(ii) the stockholders of Wang shall approve any plan or proposal for
the liquidation or dissolution of Wang; and
(iii) an announcement by any person, or group of persons acting in
concert, of an acquisition of Wang's securities or other transaction which
will require the filing with the Commission of a Schedule 13D under the
1934 Act, with respect to beneficial ownership of Wang (other than by a
financial entity or other similar institutional investor holding
securities of Wang for investment purposes that is eligible to file a
Schedule 13G under the 1934 Act with respect to such acquisition in
accordance with Rule 13d-1(b)(1) of the 0000 Xxx) in which Item 4 thereof
will indicate a plan or proposal under subsections (a)-(j) thereof with
respect to either (x) the acquisition of forty percent (40%) of Wang's
voting securities (other than securities issued in a public offering made
by Wang) or (y) the merger or consolidation of Wang with another entity
where the stockholders of Wang would not, immediately after the merger or
consolidation, own at least fifty percent (50%) of the voting securities
of the entity issuing the cash or securities in the merger or
consolidation, or the sale of substantially all of the assets of Wang;
provided, however, that if such previously announced acquisition or
transaction is withdrawn or not otherwise consummated, the Change of
Control triggered by this subparagraph (iii) shall be deemed to be of no
further force and the restrictions in Section 4(a) of this Agreement shall
apply as if no Change of Control had occurred.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the United States Securities and Exchange
Commission, or any successor governmental agency or authority.
"Committees" has the meaning ascribed to it in Section 2(g).
"Common Stock" means shares of Common Stock, par value $0.01 per
share, of Wang, as constituted on the date hereof, and any stock into which such
Common Stock shall have been changed or any stock resulting from any
reclassification of such Common Stock.
"Cutback Registration" means any Requested Registration or Piggyback
Registration to be effected as an underwritten Public Offering in which the
Managing Underwriter with respect thereto advises Wang and Olivetti in writing
that, in its opinion, the number of securities requested to be included in such
registration (including securities of Wang which are not Registrable Securities)
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exceed the number which can be sold in such offering without a material
reduction in the selling price anticipated to be received for the securities to
be sold in such Public Offering.
"Desired Sale Notice" has the meaning ascribed to it in Section
6(a).
"Early Termination Event" shall be deemed to have occurred upon the
occurrence of any one or more of the following: (i) if Wang fails to (A) cause
any Olivetti Nominee not elected to the Board by the stockholders of Wang to
otherwise become a member of the Board as required by Sections 2(b) or (d)
within the period provided for therein, (B) fill any vacancy on the Board as
required by Section 2(e) within the period provided for therein or (C) cause the
Olivetti Nominees to serve on Committees as required by Section 2(g) within the
period provided for therein (unless at the time of any such failure one (1) or
more Olivetti Nominees are then serving on the Board and all such Olivetti
Nominees do not resign from the Board within ninety (90) days of such failure,
in which case no Early Termination Event shall occur as a result of such
failure); (ii) if the Nominee Committee determines that two (2) persons
designated in sequence by Olivetti, in good faith as satisfying the criteria set
forth in Section 2(c), pursuant to Sections 2(b) or (d) for the same seat on the
Board are not "qualified" (unless at the time of the second (2nd) of such
determinations one (1) or more Olivetti Nominees are then serving on the Board
and all such Olivetti Nominees do not resign from the Board within ninety (90)
days of the second (2nd) of such determinations, in which case no Early
Termination Event shall occur as a result of such determinations); (iii) if Wang
breaches this Agreement and such is neither cured nor desisted from within
thirty (30) days of receipt of written notice from Olivetti of such breach and
such breach would reasonably be expected to materially adversely affect
Olivetti; (iv) the occurrence of a Change of Control; or (v) the sale, lease,
transfer or other disposition of all or substantially all of the assets of Wang.
"Effective Registration" means a Requested Registration or a Shelf
Registration which (a) has been declared or ordered effective in accordance with
the rules of the Commission, and (b) has been kept effective for the period of
time contemplated by Section 10(b) and (c), with respect to a Requested
Registration, has resulted in at least fifty percent (50%) of the Registrable
Securities requested to be included in such registration actually being sold
(except by reason of some act or omission on the part of Olivetti); provided
that a Cutback Registration in which the number of Registrable Securities
actually included in such Requested Registration is not at least fifty (50%) of
the number of Registrable Securities requested to be included in such
registration shall not be an Effective Registration for purposes of this
Agreement. Notwithstanding the foregoing, a registration that does not become
effective after it has been filed with the Commission solely by reason of the
refusal to proceed of Olivetti shall be deemed to be an Effective Registration
for purposes of this Agreement.
"Form S-3" means Form S-3 promulgated by the Commission under the
1933 Act, or any successor or similar short-form registration statement.
"Group" means a "group" as such term is used in Section 13(d)(3) of
the 1934 Act.
"Indemnified Party" means a party entitled to indemnity in
accordance with Section 13.
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"Indemnifying Party" means a party obligated to provide indemnity in
accordance with Section 13.
"Inspectors" has the meaning ascribed to it in Section 10(j).
"Losses" has the meaning ascribed to it in Section 13(a).
"Majority-Owned Olivetti Affiliate" means any corporation in which
Olivetti, directly or indirectly, owns or controls shares of stock or other
ownership interests having ordinary voting power to elect a majority of the
board of directors of such corporation.
"Managing Underwriter" means, with respect to any Public Offering,
the underwriter or underwriters managing such Public Offering.
"Modified Early Termination Event" shall be deemed to have occurred
upon the occurrence of any one or more of the following: (i) if Wang fails to
(A) cause any Olivetti Nominee not elected to the Board by the stockholders of
Wang to otherwise become a member of the Board as required by Sections 2(b) or
(d) within the period provided for therein, (B) fill any vacancy on the Board as
required by Section 2(e) within the period provided for therein or (C) cause the
Olivetti Nominees to serve on Committees as required by Section 2(g) within the
period provided for therein (unless at the time of any such failure one (1) or
more Olivetti Nominees are then serving on the Board and all such Olivetti
Nominees do not resign from the Board within ninety (90) days of such failure,
in which case no Modified Early Termination Event shall occur as a result of
such failure); or (ii) if the Nominee Committee determines that any two (2)
persons designated in sequence by Olivetti, in good faith as satisfying the
criteria set forth in Section 2(c), pursuant to Sections 2(b) or (d) for the
same seat on the Board are not "qualified" (unless at the time of the second
(2nd) of such determinations one (1) or more Olivetti Nominees are then serving
on the Board and all such Olivetti Nominees do not resign from the Board within
ninety (90) days of the second (2nd) of such determinations, in which case no
Early Termination Event shall occur as a result of such determinations).
"NASD" means the National Association of Securities Dealers.
"1933 Act" has the meaning ascribed to it in Section 5.
"1934 Act" has the meaning ascribed to it in Section 2(c).
"Notice of Piggyback Registration" has the meaning ascribed to it in
Section 9(a).
"Olivetti Nominee" has the meaning ascribed to it in Section 2(a).
"Person" means any natural person, corporation, general partnership,
limited partnership, proprietorship, other business organization, trust, union
or association.
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"Piggyback Registration" means any registration of securities of
Wang of the same class as the Registrable Securities under the 1933 Act (other
than a registration in respect of a dividend reinvestment or similar plan for
stockholders of Wang or on Form S-4 or Form S-8 promulgated by the Commission,
or any successor or similar forms thereto), whether for sale for the account of
Wang or for the account of any holder of securities of Wang (other than
Registrable Securities).
"Private Sale" has the meaning ascribed to it in Section 6(a).
"Public Offering" means any offering of Common Stock to the public,
either on behalf of Wang or any of its securityholders, pursuant to an effective
registration statement under the 1933 Act.
"Purchase Notice" has the meaning ascribed to it in Section 4(d).
"Records" has the meaning ascribed to it in Section 10(j).
"Registrable Securities" means (i) the Wang Shares and (ii) any
additional shares of Common Stock issued or distributed by way of a dividend,
stock split or other distribution in respect of the Wang Shares, acquired by way
of any rights offering or similar offering made in respect of the Wang Shares.
As to any particular Registrable Securities, once issued such securities shall
cease to be Registrable Securities when (i) a registration statement with
respect to the sale of such securities shall have become effective under the
1933 Act and such securities shall have been disposed of in accordance with such
registration statement, (ii) they shall have been distributed to the public
pursuant to Rule 144, or (iii) they shall have ceased to be outstanding.
"Registration Expenses" means all expenses incident to Wang's
performance of or compliance with its obligations under this Agreement to effect
(i) a Special Private Sale, (ii) a Special Repurchase, (iii) a Special Public
Offering or (iv) the registration of Registrable Securities in a Requested
Registration or a Piggyback Registration, including, without limitation, all
registration, filing, securities exchange listing and NASD fees, all
registration, filing, qualification and other fees and expenses of complying
with securities or blue sky laws, all word processing, duplicating and printing
expenses, messenger and delivery expenses, the fees and disbursements of counsel
for Wang and of its independent public accountants, including the expenses of
any special audits or "cold comfort" letters required by or incident to such
performance and compliance, and any fees and disbursements of underwriters
customarily paid by issuers or sellers of securities, but excluding underwriting
discounts and commissions and transfer taxes, if any, in respect of Registrable
Securities, and any fees and disbursements of counsel and accountants retained
by Olivetti, which shall be payable by Olivetti; provided, however, that if an
Early Termination Event shall have occurred, Registration Expenses shall include
the reasonable fees and expenses of a single counsel retained by Olivetti in
connection with the registration of Registrable Securities.
"Requested Registration" means any registration of Registrable
Securities under the 1933 Act effected in accordance with Section 7.
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"Repurchase" has the meaning ascribed to it in Section 6(a).
"Rule 144" means Rule 144 promulgated by the Commission under the
1933 Act, and any successor provision thereto.
"Shelf Registration" means any registration of Registrable
Securities under the 1933 Act effected in accordance with Section 8.
"13D Group" means any group of persons acquiring, holding, voting or
disposing of Common Stock which would be required under Section 13(d) of the
1934 Act and the rules and regulations thereunder (as in effect, and based on
legal interpretations thereof existing, on the date hereof) to file a statement
on Schedule 13D with the Commission as a "person" within the meaning of Section
13(d)(3) of the 1934 Act if such group beneficially owned voting securities
representing more than 5% of the Common Stock then outstanding.
"Wang Shares" has the meaning ascribed to it in the preamble.
(b) Interpretation. Unless the context of this Agreement
otherwise requires, (i) words of any gender include each other gender; (ii)
words using the singular or plural number also include the plural or singular
number, respectively; (iii) the terms "hereof," "herein," "hereby" and
derivative or similar words refer to this entire Agreement; and (iv) the term
"Section" refers to the specified Section of this Agreement. Whenever this
Agreement refers to a number of days, such number shall refer to calendar days
unless Business Days are specified.
(c) Accounting Principles. Where the character or amount of
any asset or amount of any asset or liability or item of income or expense is
required to be determined or any consolidation or other accounting computation
is required to be made for the purposes of this Agreement, this shall be done in
accordance with U.S. generally accepted accounting principles at the time in
effect, to the extent applicable, except where such principles are inconsistent
with the requirements of this Agreement.
(d) Directly or Indirectly. Where any provision in this
Agreement refers to action to be taken by any Person, or which such Person is
prohibited from taking, such provision shall be applicable whether such action
is taken directly or indirectly by such Person.
(e) Governing Law; Choice of Forum. This Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware
applicable to contracts made and to be performed entirely within such State (and
each of the parties hereto expressly submits itself to the non-exclusive
jurisdictions of the state and federal courts of the State of Delaware in any
action, suit or proceeding relating to any dispute under this Agreement and
irrevocably waives, to the fullest extent permitted by law, any objection that
it may now or hereafter have to the laying of the venue of any such action, suit
or proceeding brought in such a court and any claim that any such action, suit
or proceeding brought in such a court has been brought in an inconvenient
forum).
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(f) Section Headings. The headings of the sections and
subsections of this Agreement are inserted for convenience only and shall not be
deemed to constitute a part thereof.
(g) Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision.
SECTION 17. MISCELLANEOUS.
(a) Termination. This Agreement shall terminate on (i) the
date of the consent of each of the parties hereto; (ii) as to any share of
Common Stock, when such share is disposed of in a Requested Registration, a
Shelf Registration or a Piggyback Registration; or (iii) on the tenth
anniversary of the date hereof.
(b) Notices. All notices and other communications hereunder
shall be in writing and shall be sent by hand delivery or overnight courier, in
each case receipt acknowledged, or registered or certified mail, in each case
with postage prepaid and return receipt requested, to the respective parties at
the following addresses:
If to Wang, to:
Wang Laboratories, Inc.
000 Xxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxxx Xxxxxx
Attention: Xxxxx X. Xxxxx
Executive Vice President
Chief Financial Officer and
Xxxxxx X. Xxxxxx, Senior
Vice President, General
Counsel and Secretary
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
If to Olivetti, to:
Ing. C. Olivetti & C. S.p.A.
Xxx Xxxxxx, 00
00000 Xxxxx
Xxxxx
Attention: Managing Director
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with a copy to:
Erede E Associati
Xxx Xxxxxxxxxx, 00
00000 Xxxxxx
Xxxxx
Attention: Avv. Xxxxxxx Xxxxxxxx
and
Xxxxxx & Xxxxx
00 Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Any party may change its address for receiving notice by written notice given to
the other parties. All notices and other communications hereunder shall be
deemed to have been duly given as of the earlier of (a) the date received at the
address and in the manner provided above or (b) the date receipt is
acknowledged.
(c) Reproduction of Documents. This Agreement and all
documents relating thereto, including, without limitation, (i) consents, waivers
and modifications which may hereafter be executed, (ii) documents received by
each party pursuant hereto and (iii) financial statements, certificates and
other information previously or hereafter furnished to each party, may be
reproduced by each party by an photographic, photostatic, microfilm, microcard,
miniature photographic or other similar process and each party may destroy any
original document so reproduced. All parties hereto agree and stipulate that any
such reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by Olivetti in the
regular course of business) and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
but neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any of the parties hereto without the prior
written consent of the other party, except (a) by operation of law or (b) that
Olivetti may, subject to Section 4(b), assign any of its rights (but not its
obligations) under this Agreement to any one or more Majority-Owned Olivetti
Affiliates.
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(e) Entire Agreement; Amendment and Waiver. This Agreement
constitutes the entire understanding of the parties hereto relating to the
subject matter hereof and supersede all prior agreements or understandings with
respect to the subject matter hereof among such parties. This Agreement may be
amended, and the observance of any term of this Agreement may be waived, with
(and only with) the written consent of each of the Parties.
(f) No Third Party Beneficiary. Nothing herein expressed or
implied is intended or shall be construed to confer upon or give to any person
or corporation other than the parties hereto and their successors or assigns,
any rights or remedies under or by reason of this Agreement.
(g) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this
Stockholders Agreement as of the date first above written.
WANG LABORATORIES, INC.
By: /s/ Xxxxx Xxxxxxx
---------------------
Name: Xxxxx Xxxxxxx
Title:Senior Vice President
ING. C. OLIVETTI & C. S.P.A.
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Attorney-in-fact
