1
Exhibit 7.2
-----------
STOCK ESCROW AGREEMENT
STOCK ESCROW AGREEMENT, dated as of March 17th, 1998 (this
"Stock Escrow Agreement"), by and among Wang Laboratories, Inc., a Delaware
corporation ("Wang"), Ing. C. Olivetti & C. S.p.A., an Italian corporation
("Olivetti"), and American Stock Transfer and Trust Company, a New York trust
company, as Escrow Agent (the "Agent").
This Stock Escrow Agreement is being entered into pursuant to
Section 3.4(b) of the Stock Purchase Agreement, dated as of February 28, 1998
(the "Agree ment"), by and among Wang, Wang Nederland BV, Olivetti, Olivetti
Sistemas e Servicios Limitada and Olivetti do Brasil S.A. Capitalized terms used
and not otherwise defined herein shall have the respective meanings as cribed to
them in the Agreement. This Stock Escrow Agreement is a Related Agreement and an
Indemnified Related Agreement with the meaning of the Agreement.
NOW, THEREFORE, in consideration of the forego ing, the
respective representations, warranties, cove nants and agreements set forth in
the Agreement and herein and other good and valuable consideration, the adequacy
and receipt of which are hereby acknowledged, and intending to be bound hereby,
the parties hereto hereby agree as follows:
ARTICLE I
STOCK ESCROW FUND
1.1 Establishment of Stock Escrow Fund. Simultaneously with
the execution and delivery of this Stock Escrow Agreement and in accordance with
Section 3.4(b) of the Agreement, Wang and Olivetti are depositing a certificate
representing 7,250,000 shares of Wang Common Stock (as defined in Section 1.4)
with the Agent. After the date hereof and in accordance with Section 3.2 of the
Ancillary Consideration Agreement, dated as of the date hereof, by and between
Wang and Olivetti, Wang and Olivetti may deposit a certificate representing
1,500,000 shares of Wang Common Stock with the Agent. Such certif icates (which
shall be collectively referred to herein as the "Wang Shares Certificate") are
being deposited to secure the indemnification obligations of Olivetti under
2
(a) Sections 7.2(a) or 10.2 of the Agreement (including, without limitation,
with respect to any Indemnified Related Agreement) or (b) Section 4.1 of the
Indemnifica tion Agreement (MIS), dated as of the date hereof (the
"Indemnification Agreement (MIS)"), by and among Wang, Olsy and Olivetti. The
Agent agrees to hold, as escrow agent, the Wang Shares Certificate (which,
together with any dividends or other distributions on the shares of Wang Common
Stock represented thereby and amounts into which the shares of Wang Common Stock
represented thereby may be changed, shall be hereafter referred to as the "Stock
Escrow Fund") in escrow in accordance with this Stock Escrow Agreement.
1.2 Payment of Losses from Stock Escrow Fund.
(a) At any time prior to the third anni versary of
the Closing Date (the "Stock Escrow Fund Release Date"), Wang may notify the
Agent, by notice substantially in the form of Exhibit A hereto (a "Loss
Notice"), of any Loss in respect of which Olivetti is obligated to indemnify a
Wang Tax Indemnified Party or a Wang Indemnified Person pursuant to Sections
7.2(a) or 10.2 of the Agreement or Section 4.1 of the Indemnifica tion Agreement
(MIS) which has not been paid within ten days of Olivetti becoming so obligated.
The Loss Notice (i) shall set forth the Loss, the date on which Olivetti became
obligated to pay such Loss, the amount of such Loss (which shall be stated in
U.S. dollars at then prevailing exchange rates) and the section of the Agree
ment or the MIS Agreement pursuant to which Olivetti is obligated to pay such
Loss and (ii) shall have attached to it documentation with respect to (aa)
Olivetti having been notified of such Loss in accordance with the appli cable
section of the Agreement or the Indemnification Agreement (MIS), (bb) if
Olivetti refused to pay or rejected such Loss in accordance with the applicable
section of the Agreement or the Indemnification Agreement (MIS), the resolution
of such refusal or rejection in accordance with the Agreement, the
Indemnification Agree ment (MIS) or any Indemnified Related Agreement and (cc)
Olivetti having been notified of it having become obli gated to pay such Loss
(as a result of such resolution or otherwise) not less than 10 days prior to the
date of such Loss Notice. Wang shall simultaneously deliver a copy of each Loss
Notice to Olivetti.
(b) Not later than five Business Days of receipt of
any Loss Notice, (i) the Agent shall deliver
3
to Wang the Wang Shares Certificate then held in escrow by the Agent and (ii)
Wang shall simultaneously issue and deliver to the Agent a Wang Shares
Certificate represent ing a number of shares of Wang Common Stock equal to the
number of shares of Wang Common Stock represented by the Wang Shares Certificate
delivered by the Agent to Wang pursuant to clause (i) of this sentence, less a
number of shares of Wang Common Stock determined by dividing the amount of the
Loss set forth in such Loss Notice by the Average Market Price of a share of
Wang Common Stock (as defined in Section 1.4) as of the date of such Loss
Notice.
1.3 Release of Stock Escrow Fund.
(a) On the fifth Business Day prior to the Stock
Escrow Fund Release Date, Wang shall notify the Agent, by notice substantially
in the form of Exhibit B hereto (the "Pending Loss Notice"), of any Loss in re
spect of which any Wang Tax Indemnified Person or Wang Indemnified Person
asserts that Olivetti is obligated to indemnify such Wang Tax Indemnified Party
or Wang Indem nified Person pursuant to Sections 7.2(a) or 10.2 of the Agreement
or Section 4.1 of the Indemnification Agreement (MIS) of which Olivetti has been
given notice pursuant to the Agreement or the Indemnification Agreement (MIS)
and which is pending as of the date of the Pending Loss Notice (any such Loss
being hereinafter referred to as a "Pending Loss"). The Pending Loss Notice (i)
shall set forth each Pending Loss, the amount of each Pending Loss (or if not
then determinable, Wang's best estimate thereof) and the aggregate amount (the
"Pending Loss Aggregate Amount") of all Pending Losses (or Wang's best estimate
thereof) and (ii) shall have attached to it documentation with respect to each
Pending Loss (aa) of Olivetti having been notified of such Pending Loss in
accordance with the applicable section of the Agreement or the Indemnification
Agreement (MIS) and (bb) estab lishing that such Pending Loss is pending, such
as a copy of Olivetti's refusal to pay or rejection of such Pending Loss or a
recent filing or submission in any court, arbitration or other proceeding
regarding such Pending Loss or other appropriate documentation. Wang shall
simultaneously deliver a copy of the Pending Loss Notice to Olivetti.
(b) If Wang fails to notify the Agent of any Pending
Loss, on the Stock Escrow Fund Release Date the Agent shall deliver the Wang
Shares Certificate then
4
held in escrow by the Agent (and all dividends or other distributions on the
shares of Wang Common Stock repre sented thereby then held by the Agent) to
Olivetti.
(c) If Wang notifies the Agent of any Pending Loss,
on the Stock Escrow Fund Release Date (i) the Agent shall deliver the Wang
Shares Certificate then held in escrow by the Agent to Wang and (ii) simulta
neously with such delivery, Wang shall deliver (aa) to the Agent a Wang Shares
Certificate representing a number of shares (the "Pending Loss Shares") of Wang
Common Stock equal to the amount of the Pending Loss Aggregate Amount divided by
the Average Market Price of a share of Wang Common Stock as of the date of the
Pending Loss Notice (but not more than the number of shares of Wang Common Stock
represented by the Wang Shares Certificate delivered by the Agent to Wang
pursuant to clause (i) of this sentence) and (bb) to Olivetti a Certificate
repre senting a number of shares of Wang Common Stock equal to the difference
between the number of shares of Wang Common Stock represented by the Wang Shares
Certificate delivered by the Agent to Wang pursuant to clause (i) of this
sentence and the number of shares of Wang Common Stock represented by the Wang
Shares Certificate deliv ered by Wang to the Agent pursuant to clause (ii)(aa)
of this sentence. Simultaneously with the delivery by Wang to Olivetti of a
certificate pursuant to clause (ii)(bb) of the immediately preceding sentence,
the Escrow Agent shall deliver to Olivetti all dividends or other distri butions
on the shares of Wang Common Stock represented by such certificate then held by
the Agent.
(d) At any time after the Stock Escrow Fund Release
Date and prior to the date on which Wang and Olivetti mutually notify the Agent
that all Pending Losses have been are resolved pursuant to the Agreement, the
Indemnification Agreement (MIS) or any Indemnified Related Agreement (the "Stock
Escrow Fund Termination Date"), Wang may be paid for any Pending Loss for which
Olivetti becomes obligated to pay a Wang Tax Indemnified Party or a Wang Tax
Indemnified Person pursuant to Sec tion 7.2(a) or 10.2 of the Agreement or
Section 4.1 of the Indemnification Agreement (MIS) which has not been paid
within 10 days of Olivetti becoming so obligated in the manner provided for in
Section 1.2. On the Stock Escrow Fund Termination Date, the Agent shall deliver
the Wang Shares Certificate then held in Escrow by the Agent (and all dividends
or other distributions on the shares
5
of Wang Common Stock represented thereby then held by the Agent) to Olivetti.
(e) At any time after 120 days after the Stock Escrow
Fund Release Date and prior to the Stock Escrow Fund Termination Date, Olivetti
may notify the Agent, by notice substantially in the form of Exhibit C hereto (a
"Failure to Prosecute Notice"), of any Pending Loss (other than a Pending Loss
involving a Third Party Claim) which no Wang Tax Indemnified Person or Wang
Indemnified Person is using commercially reasonable best efforts to prosecute.
The Failure to Prosecute Notice (i) shall set forth the Pending Loss and the
amount of such Pending Loss (or estimate thereof) set forth on the Pending Loss
Notice and (ii) shall have attached to it an affidavit of the President of
Olivetti with respect to the facts that establish that no Wang Tax Indemnified
Person or Wang Indemnified Person is using commercially reasonable best efforts
to prosecute it. Olivetti shall simultaneously deliver a copy of any Failure to
Prosecute Notice to Wang. Not later than five Business Days after receipt of any
Failure to Prosecute Notice, (i) the Agent shall deliver to Wang the Wang Shares
Certificate then held in escrow by the Agent and (ii) Wang shall simulta neously
issue and deliver to (aa) the Agent a Wang Shares Certificate representing a
number of shares of Wang Common Stock equal to the number of shares of Wang
Common Stock represented by the Wang Shares Certificate deliv ered by the Agent
to Wang pursuant to clause (i) of this sentence, less a number of shares (the
"Failure to Prose cute Shares") of Wang Common Stock determined by dividing the
amount of the Pending Loss set forth in such Failure to Prosecute Notice by the
Average Market Price of a share of Wang Common Stock as of the date of such
Failure to Prosecute Notice and (bb) Olivetti a certificate representing the
Failure to Prosecute Shares.
(f) At any time after the earlier of the third
anniversary of the Closing Date and the occurrence of an Early Termination Event
(as defined in the Stock holders Agreement, dated as of the date hereof, by and
between Wang and Olivetti), Olivetti may notify the Agent, by notice
substantially in the form of Exhibit D hereto (a "Substitution of Collateral
Notice"), that Olivetti has delivered to Wang a letter of credit (a
"Substitution of Collateral Letter of Credit") substan tially in the form of the
Letter of Credit. The Substi tution of Collateral Notice (i) shall set forth the
amount of the Substitution of Collateral Letter of Credit
6
and (ii) shall have a copy of the Substitution of Collat eral Letter of Credit
attached to it. Olivetti shall simultaneously deliver a copy of any Substitution
of Collateral Notice to Wang. Not later than five Business Days after receipt of
any Substitution of Collateral Notice, (i) the Agent shall deliver to Wang the
Wang Shares Certificate then held in escrow by the Agent and (ii) Wang shall
simultaneously issue and deliver to (aa) Olivetti a certificate representing a
number of shares of Wang Common Stock equal to the number of shares of Wang
Comon Stock determined by dividing the face amount of such Substitution of
Collateral Letter of Credit by U.S. $27 (the "Substitution of Collateral
Factor"), as ad justed from time to time pursuant to Section 2.15, and (bb) if
the number of shares of Wang Common Stock repre sented by the Wang Shares
Certificate delivered by the Agent to Wang pursuant to clause (i) of this
sentence exceeds the number of shares of Wang Common Stock repre sented by the
certificate delivered by Wang to Olivetti pursuant to clause (ii)(aa) of this
sentence, the Agent a Wang Shares Certificate representing a number of shares of
Wang Common Stock equal to such excess.
1.4 Certain Defined Terms.
Average Market Price. The term "Average Market Price" for a
share of Wang Common Stock means the average of the daily Current Market Prices
of a share of Wang Common Stock during the 45 consecutive trading days
immediately prior to the day in question.
Current Market Price. The term "Current Market Price" for a
share of Wang Common Stock means the last reported sales price, regular way on
such day, or, if no sale takes place on such day, the average of the reported
closing bid and asked prices on such day, regular way, in either case as
reported on the Nasdaq National Market System of the National Association of
Securities Dealers, or, if such security is not quoted on such Nasdaq Na tional
Market, on the principal national securities exchange on which such security is
listed or admitted for trading or, if not listed or admitted for trading on any
national securities exchange, the average of the closing bid and asked prices on
such day in the over-the-counter market as reported by Nasdaq or, if bid and
asked prices for such security on such day shall not have been re ported through
Nasdaq, the average of the bid and asked prices on such day as furnished by any
New York Stock
7
Exchange member firm regularly making a market in such security selected for
such purpose by Wang.
Wang Common Stock. The term "Wang Common Stock" means shares
of common stock, par value $0.01 per share, of Wang, as constituted on the date
hereof, any stock into which such common stock shall have been changed or any
stock resulting from any reclassification of such common stock.
ARTICLE II
GENERAL PROVISIONS
2.1 Wang Common Stock in Stock Escrow Fund. Olivetti shall
have the right to vote shares of Wang Common Stock held in the Stock Escrow Fund
for all pur poses. Wang shall pay all ordinary cash dividends on shares of Wang
Common Stock held in the Stock Escrow Fund to the holder of record thereof; Wang
shall pay all other dividends and other distributions on shares of Wang Common
Stock held in the Stock Escrow Fund to the Agent.
2.2 Term of Agreement. This Stock Escrow Agreement shall be in
effect until the date one month following (a) the Stock Escrow Fund Release Date
or (b) if there is any Pending Loss as of the Stock Escrow Fund Release Date,
the Stock Escrow Fund Termination Date.
2.3 Expenses of the Agent. The Agent shall be entitled to
reasonable compensation for its services hereunder and shall be reimbursed for
all reasonable expenses, disbursements and advancements incurred or made by it
in performance of its services hereunder, which will be paid by one-half by
Olivetti and one-half by Wang.
2.4 Taxes on Stock Escrow Fund. Olivetti and Wang shall each
bear one-half all federal, state and local taxes based upon or measured by net
or gross income arising from the Stock Escrow Fund and shall provide the Agent
with sufficient information so that the Agent can comply with reporting
obligations imposed under any laws relating to such taxes.
2.5 Investment of Cash in Stock Escrow Fund. Cash held in the
Stock Escrow Fund shall be invested by the Agent in short-term obligations of
the U.S. govern ment or in certificates of deposit issued by a bank or trust
company having combined capital and surplus of at least $500,000,000 or in such
other manner as the parties hereto may agree. All interest or other accretions
from property held in the Stock Escrow Fund shall become part of the Stock
Escrow Fund and be subject to the terms hereof.
2.6 The Agent. The obligations of the Agent under this
Agreement are subject to the following terms and conditions:
(a) The Agent is not a party to and is not bound by
any agreement other than as expressly set forth in this Stock Escrow Agreement;
(b) The Agent acts hereunder as a deposi tory only
and is not responsible for or liable in any manner whatsoever for the
sufficiency, correctness, genuineness or validity of any funds, shares,
documents or other materials deposited with it. Wang and Olivetti agree to and
hereby do waive any suit, claim, demand or cause of action of any kind which
they may have or may assert against the Agent arising out of or relating to the
execution or performance by the Agent of this Stock Escrow Agreement, unless
such suit, claim, demand or cause of action is based upon the willful
misconduct, gross negligence or bad faith of the Agent. To the extent that the
Agent delivers any funds, shares or documents in accordance with the
instructions described in this Agreement, Wang and Olivetti further agree,
jointly and severally, to indemnify the Agent against and from any and all
claims, demands, costs, liabilities and expenses, including counsel fees, which
may be asserted against it or to which it may be exposed or which it may incur
by reason of its execution or performance of this Stock Escrow Agreement unless
arising from the Agent's willful misconduct, gross negligence or bad faith. The
Agent shall not be required to defend any legal proceed ing which may be
instituted against it with respect to the subject matter of this Stock Escrow
Agreement unless it is requested to do so by one of the parties hereto and is
indemnified by such requesting party to the Agent's satisfaction against the
cost and expenses (including reasonable attorney's fees) of such defense, unless
arising from the Agent's willful misconduct, gross negli gence or bad faith. The
Agent shall not be required to institute legal proceedings of any kind. The
Agent shall
8
not be required to perform any acts which violate any law or applicable rules of
any governmental agency;
(c) The Agent shall not have any respon sibility for
the genuineness or validity of any notice, evidence or other document or item
delivered to it, and the Agent shall be entitled to rely upon and shall be
protected in acting upon any written notice, waiver, consent, receipt or other
evidence or paper document which the Agent reasonably believes to be genuine and
to be signed by the proper person;
(d) The Agent shall not be liable for any error of
judgment or for any acts done or steps taken or omitted or admitted by it or for
any mistake of facts or law or for anything which the Agent may do or refrain
from doing in connection herewith except for the Agent's own willful misconduct,
gross negligence or bad faith; and
(e) As to any legal questions arising in connection
with the administration of this Agreement, the Agent may rely absolutely upon
the opinions given to it by its counsel and shall be free of liability for
acting in reliance on such opinions.
2.7 Removal of Agent. The Agent agrees that Wang and Olivetti
may, by mutual agreement at any time, remove the Agent as agent hereunder, and
substitute another therefor. In such event the Agent shall, upon receipt of
written notice of such removal, account for and deliver to such substituted
escrow agent the Stock Escrow Fund and the Agent shall thereafter be discharged
of all liability hereunder.
2.8 Amendment and Modification. This Stock Escrow Agreement
may be amended, modified and supple mented only by written agreement of Wang,
Olivetti and the Agent.
2.9 Waiver of Compliance. Except as otherwise provided in this
Stock Escrow Agreement, any failure of any of the parties to comply with any
obligation, cove nant, agreement or condition herein may be waived by the party
or parties entitled to the benefits thereof only by a written instrument signed
by the party granting such waiver, but such waiver or failure to insist upon
strict compliance with such obligation, covenant, agreement or
9
condition shall not operate as a waiver of, or estoppel with respect to, any
subsequent or other failure.
2.10 Notices. All notices and other communica tions 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: 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.
and
Gianni, Origoni & Partners
20121 Milano
Xxxxxx Xxxxxxxxxx, 0
Xxxxx
Attention: Avv. Xxxxx Xxxxxxx
If to Olivetti, to:
Ing. C. Olivetti & C. S.p.A.
Xxx X. Xxxxxx, 00
00000 Xxxxx
Xxxxx
Attention: Managing Director
10
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.
If to the Agent, to:
American Stock Transfer and Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Executive Vice President
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.
2.11 Assignment. This Stock Escrow Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but neither this
Stock Escrow Agreement nor any of the rights, inter ests or obligations
hereunder shall be assigned by any of the parties hereto without the prior
written consent of the other parties, except (a) by operation of law, (b) that
Wang may assign any of its rights (but not its obligations to Olivetti or the
Agent) under this Stock Escrow Agreement to any one or more of its
majority-owned subsidiaries, foreign or domestic, and (c) that Wang may grant a
security interest in its entire right, title and interest in this Stock Escrow
Agreement to the party or parties from which it obtains the financing for the
transactions contemplated by the Agreement (provided, however, that until
foreclosure of such security interest Wang shall at all times be the sole
counterparty of
11
Olivetti and the Agent for any matter arising under this Stock Escrow
Agreement).
2.12 Governing Law. This Stock Escrow Agree ment shall be
governed by the laws of the State of New York (without giving effect to the
principles of con flicts of law thereof except for General Obligations Law
Section 5-1401 and with respect to the exception to Section 2.14 of this Stock
Escrow Agreement, Section 5- 1402) as to all matters, including but not limited
to, matters of validity, construction, effect, performance and remedies. The
invalidity or unenforceability of any provision of this Stock Escrow Agreement
shall not affect the validity or enforceability of any other provision.
2.13 Counterparts. This Stock Escrow Agreement may be executed
simultaneously in two or more counter parts, each of which shall be deemed to be
an original, but all of which together shall constitute one and the same
instrument.
2.14 Dispute Resolution. Any dispute between Wang and Olivetti
arising out of this Stock Escrow Agree ment shall be resolved in accordance with
Section 12.12 of the Agreement, except that any dispute arising out of the Stock
Escrow Agreement with respect to a breach or alleged breach of this Stock Escrow
Agreement by the Agent shall be decided by the state or federal courts of the
State of New York (and each of the parties hereto expressly submits itself to
the non-exclusive jurisdic tions of the state and federal courts of the State of
New York in any action, suit or proceeding relating to any such breach or
alleged breach of this Cash Escrow Agree ment by the Agent 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 inconve nient forum).
2.15 Adjustment of the Substitution of Collat eral Factor. If
the outstanding shares of Wang Common Stock shall be subdivided into a greater
number of shares of Wang Common Stock, the Substitution of Collateral Factor in
effect at the opening of business on the day following the day upon which such
subdivision becomes effective shall be proportionately reduced, and con versely,
if the outstanding shares of Wang Common Stock
12
shall be combined into a smaller number of shares of Wang Common Stock, the
Substitution of Collateral Factor in effect at the opening of business on the
day following the day upon which such combination becomes effective shall be
proportionately increased, such reduction or increase, as the case may be, to
become effective immedi ately after the opening of business on the day following
the day upon which such subdivision or combination be comes effective.
13
IN WITNESS WHEREOF, the parties hereto have caused this Stock
Escrow Agreement to be duly executed as of the day and year 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/ Xxxxxx Xxxxxxxx
--------------------
Name: Xxxxxx Xxxxxxxx
Title:Attorney-in-fact
AMERICAN STOCK TRANSFER
AND TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxx
Title:Vice President
14
Exhibit A
[Letterhead of Wang Laboratories, Inc.]
[Date]
American Stock Transfer and Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Executive Vice President
Ladies and Gentlemen:
Reference is made to the Stock Escrow Agreement, dated as of
March __, 1998, by and among Wang Laboratories, Inc., Ing. C. Olivetti & C.
S.p.A. and American Stock Transfer and Trust Company (the "Stock Escrow
Agreement"). Capitalized terms used and not otherwise defined herein have the
respective meanings ascribed to them in the Stock Escrow Agreement.
Pursuant to Section 1.2(a) of the Stock Escrow Agreement, the
undersigned hereby notifies you that on [____________, Olivetti became obligated
to pay a Loss in the amount of U.S. $[ ] pursuant to Section [ ] of the
[Agreement][Indemnification Agreement (MIS)] [Indem nified Related Agreement]
relating to [ ] and has not paid such Loss within ten days of such date. Accord
ingly, please deliver the Wang Share Certificate held by you to the undersigned
in accordance with Section 1.2(b) of the Stock Escrow Agreement.
Attached hereto is documentation with respect to (a) Olivetti
having been notified of such Loss in accordance with the applicable section of
the [Agreement] [Indemnification Agreement (MIS)] [Indemnified Related
Agreement], (b) if Olivetti refused to pay or rejected such Loss in accordance
with the applicable section of the [Agreement] [Indemnification Agreement (MIS)]
[Indem nified Related Agreement], the resolution of such refusal or rejection in
accordance with the [Agreement] [Indemni fication Agreement (MIS)] [Indemnified
Related Agreement] and (c) Olivetti having been notified of it having become
15
obligated to pay such Loss not less than 10 days prior to the date of such Loss
Notice.
Very truly yours,
WANG LABORATORIES, INC.
By_________________________
Name:
Title:
cc: Ing. C. Olivetti & C. S.p.A.
Xxx X. Xxxxxx, 00
00000 Xxxxx
Xxxxx
Attention: Managing Director
16
Exhibit B
[Letterhead of Wang Laboratories, Inc.]
[Date]
American Stock Transfer and Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Executive Vice President
Ladies and Gentlemen:
Reference is made to the Stock Escrow Agreement, dated as of
March __, 1998, by and among Wang Laboratories, Inc., Ing. C. Olivetti & C.
S.p.A. and American Stock Transfer and Trust Company (the "Stock Escrow
Agreement"). Capitalized terms used and not otherwise defined herein have the
respective meanings ascribed to them in the Stock Escrow Agreement.
Pursuant to Section 1.3(a) of the Stock Escrow Agreement, the
undersigned hereby notifies you by way of Schedule 1 hereto of each Pending
Loss, the amount of each Pending Loss (or if not determinable, a good faith
estimate thereof) and the Pending Loss Aggregate Amount. Accordingly, please
deliver the Wang Share Certificate held by you to the undersigned in accordance
with Section 1.3(c) of the Stock Escrow Agreement.
Attached hereto is documentation with respect to each Pending
Loss (a) of Olivetti having been notified of such Pending Loss in accordance
with the applicable section of the [Agreement] [Indemnification Agreement (MIS)]
[Indemnified Related Agreement] and (b) establish ing that such Pending Loss is
pending, such as a copy of Olivetti's refusal to pay or rejection of such
Pending
17
Loss or a recent filing or submission in any court, arbitration or other
proceeding regarding such Pending Loss or other appropriate documentation.
Very truly yours,
WANG LABORATORIES, INC.
By________________________
Name:
Title:
cc: Ing. C. Olivetti & C. S.p.A.
Xxx X. Xxxxxx, 00
00000 Xxxxx
Xxxxx
Attention: Managing Director
18
Exhibit C
[Letterhead of Ing. C. Olivetti & C. S.p.A.]
[Date]
American Stock Transfer and Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Executive Vice President
Ladies and Gentlemen:
Reference is made to the Stock Escrow Agreement, dated as of
March __, 1998, by and among Wang Laboratories, Inc., Ing. C. Olivetti & C.
S.p.A. and American Stock Transfer and Trust Company (the "Stock Escrow
Agreement"). Capitalized terms used and not otherwise defined herein have the
respective meanings ascribed to them in the Stock Escrow Agreement.
Pursuant to Section 1.3(e) of the Stock Escrow Agreement, the
undersigned hereby notifies you that no Wang Tax Indemnified Person or Wang
Indemnified Person is using commercially reasonable best efforts to prosecute
the Pending Loss referred to as [ ] on the Pending Loss in the amount (or
estimated amount) of [ ] as set forth on the Pending Loss Notice. Accordingly,
please deliver the Wang Share Certificate held by you to Wang in accordance with
Section 1.3(e) of the Stock Escrow Agreement.
19
Attached hereto is an affidavit of the Presi dent the
undersigned with respect to the facts that establish that no Wang Tax
Indemnified Person or Wang Indemnified Person is using commercially reasonable
best efforts to prosecute such Pending Loss.
Very truly yours,
ING. C. OLIVETTI & C. S.P.A.
By________________________
Name:
Title:
cc: Wang Laboratories, Inc.
000 Xxxxxxxxxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Senior Vice President,
General Counsel and Secretary
20
Exhibit D
[Letterhead of Ing. C. Olivetti & C. S.p.A.]
[Date]
American Stock Transfer and Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: [ ]
Ladies and Gentlemen:
Reference is made to the Stock Escrow Agreement, dated as of
March __, 1998, by and among Wang Laboratories, Inc., Ing. C. Olivetti & C.
S.p.A. and American Stock Transfer and Trust Company (the "Stock Escrow
Agreement"). Capitalized terms used and not otherwise defined herein have the
respective meanings ascribed to them in the Stock Escrow Agreement.
Pursuant to Section 1.3(f) of the Stock Escrow Agreement, the
undersigned hereby notifies you that Olivetti has delivered to Wang a
Substitution of Collat eral Letter of Credit in the face amount of U.S.$[ ]
substantially in the form of the Letter of Credit. A copy of the Substitution of
Collateral Letter of Credit is attached hereto. Accordingly, please deliver the
Wang Share Certificate held by you to Wang in accordance with Section 1.3(f) of
the Stock Escrow Agreement.
Very truly yours,
ING. C. OLIVETTI & C. S.P.A.
By________________________
Name:
Title:
cc: Wang Laboratories, Inc.
000 Xxxxxxxxxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Senior Vice President,
General Counsel and Secretary
