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April 3, 1984
Xxxxxx Corporation
0000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
U.S.A.
Attention: Xx. Xxxx X. Xxxxx
President
Gentlemen:
This letter will confirm the agreements and representations of Fujitsu
Limited ("Fujitsu") and Xxxxxx Corporation ("Xxxxxx") with respect to the
acquisition by Fujitsu of 6,007,532 shares (the "Shares") of Xxxxxx Common
Stock, $.05 par value ("Common Stock") and warrants to purchase 2,490,000
shares of Common Stock expiring December 31, 1984 ("Warrants") from Xxxxxx
Corporation ("Xxxxxx"). For purposes of this Agreement, the term "Xxxxxx Equity
Securities" at a particular time shall mean all shares of Xxxxxx Common Stock,
$.05 par value, Xxxxxx Preferred Stock and any other class or series of equity
securities then authorized in the Xxxxxx Certificate of Incorporation, and all
such securities issuable upon conversion or exercise of any then outstanding
options, warrants or convertible securities of Xxxxxx.
1. Neither Fujitsu nor any majority-owned subsidiary of Fujitsu
(collectively called "Fujitsu Group") will, without the prior approval of
Xxxxxx, directly or indirectly, acquire any Xxxxxx Equity Securities, whether
in the open market, directly from Xxxxxx, directly from other Xxxxxx security
holders, or otherwise, if such acquisition would result in the Fujitsu Group's
Percentage Ownership of Common Stock Outstanding On A Fully Diluted Basis
exceeding 49.5% of all Common Stock Outstanding On A Fully Diluted Basis.
"Common Stock Outstanding On A Fully Diluted Basis" shall mean all shares of
Common Stock having voting power in the election of directors outstanding at
any time plus all shares of Common Stock issuable upon conversion of exercise
of securities convertible into, and rights to acquire, Common Stock having
voting power in the election of directors outstanding at any time.
2. Section 1(a)(i) of the Xxxxxx/Fujitsu 1982 Agreement, dated as of
March 4, 1982, is hereby amended so as to delete the number "31.3%" wherever it
appears and to substitute therefor the number "49.5%.
3. The provisions of this Agreement will become effective on the date
of the closing of the purchase of the Shares and Warrants by Fujitsu from Xxxxxx
and shall remain in full force and effect until the tenth anniversary of such
date, or earlier
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termination as provided below, after which such provisions, except for
provisions of Section 2 above, which shall survive, shall become null and void
and will cease to have any further force or effect, provided, however, that
this Agreement (except for Section 2) may be terminated by Fujitsu or by Xxxxxx
by delivering a written notice of termination to the other party at any time
during the period from April 1, 1990 to June 30, 1990.
4. Each party hereto acknowledges that the breach of any of its
agreements contained herein would result in irreparable damage to the other
which could not be adequately compensated in monetary damages.
5. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware.
If the foregoing correctly sets forth the understanding between us,
please execute this letter in the space provided below, whereupon it will
become a binding agreement between us pursuant to its terms.
Very truly yours,
FUJITSU LIMITED
By: /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
President
Acknowledged and agreed to:
XXXXXX CORPORATION
By: /s/ Xxxx X. Xxxxx
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