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EXHIBIT 5
LETTER AGREEMENT, DATED JULY 9, 1997
July 9, 1997
Fujitsu Limited
Marunouchi Center Xxxx.
0-0, Xxxxxxxxxx 0-Xxxxx
Xxxxxxx-xx, Xxxxx 000
XXXXX
Dear Sirs:
In connection with your consideration of a possible transaction involving
Xxxxxx Corporation, a Delaware corporation (the "Company"), you agree that for a
period (the "Restricted Period") commencing with the date of this letter
agreement and ending on the earlier of (i) the first anniversary of the date of
this letter agreement or (ii) the occurrence of a "Significant Event" (as
defined below), neither you nor any of your Representatives (for purposes of
this letter agreement, "Representative" shall mean, as to any person, its
directors, officers, employees, agents and advisors (including, without
limitation, financial advisors, attorneys and accountants) and "person" shall be
broadly interpreted to include, without limitation, any corporation, company,
partnership, other entity or individual) shall, without the prior written
consent of the Company or its board of directors:
(a) acquire, offer to acquire, or agree to acquire, directly or
indirectly, by purchase or otherwise, any voting securities or
direct or indirect rights to acquire any voting securities of the
Company or any subsidiary thereof, or of any successor to or person
in control of the Company, or any assets of the Company or any
subsidiary or division thereof or of any such successor or
controlling person, except as your Representatives may do so for
their own account or for the account of persons other than you or
your affiliates;
(b) make, or in any way participate, directly or indirectly, in any
"solicitation" of "proxies" to vote (as such terms are used in the
rules of the Securities and Exchange Commission (the "SEC")), or
seek to advise or influence any person or entity with respect to the
voting of any voting securities, except as your Representatives may
do so in their capacities as members of the Company Board of
Directors or in their capacities as agents or advisors of persons
other than you or your affiliates;
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(c) make any public announcement with respect to, or submit a
proposal for, or offer of (with or without conditions) any
extraordinary transaction involving the Company or any of its
securities or assets;
(d) form, join or in any way participate in a "group" as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), in connection with any of the foregoing; or
(e) request the Company or any of its Representatives, directly or
indirectly, to amend or waive any provision of this paragraph.
During the Restricted Period, the Company agrees to promptly advise you of
any inquiry or proposal made to it with respect to any Significant Event. For
purposes of this letter agreement, (i) "Significant Event" shall mean any of (A)
the public announcement by a bona fide offer of a proposal to acquire or the
acquisition by any person or "13D Group" (as defined below) of beneficial
ownership of "Voting Securities" (as defined below) of the Company representing
15% or more of the then outstanding Voting Securities of the Company; (B) the
announcement or commencement by any person or 13D Group of a tender or exchange
offer to acquire Voting Securities of the Company which, if successful, would
result in such person or 13D Group owning, when combined with any other Voting
Securities of the Company owned by such person or 13D Group, 15% or more of the
then outstanding Voting Securities of the Company; or (C) the entry into by the
Company, or determination by the Company to seek to, or commence negotiations
to, enter into any merger, sale or other business combination transaction
pursuant to which the outstanding shares of common stock of the Company would be
converted into cash or securities of another person or 13D Group or 50% or more
of the then outstanding shares of common stock of the Company would be owned by
persons other than the then current holders of shares of common stock of the
Company, or which would result in all or a substantial portion of the Company's
assets being sold to any person or 13D Group; (ii) "Voting Securities" shall
mean shares of any class of capital stock of the Company which are then entitled
to vote generally in the election of directors; provided, that for purposes of
this definition any securities which at such time are convertible or
exchangeable into or exercisable for shares of common stock of the Company shall
be deemed to have been so converted, exchanged or exercised; and (iii) "13D
Group" shall mean any group of persons formed for the purpose of acquiring,
holding, voting or disposing of Voting Securities which would be required under
Section 13(d) of the Exchange Act and the rules and regulations thereunder to
file a statement on Schedule 13D with the SEC as a "person" within the meaning
of Section 13(d)(3) of the Exchange Act if such group beneficially owned Voting
Securities representing more than 5% of the total combined voting power of all
such Voting Securities then outstanding.
Please confirm your agreement with the foregoing by signing and returning
one copy of this letter to the undersigned, whereupon this letter agreement
shall become a binding agreement between you and the Company.
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Very truly yours,
XXXXXX CORPORATION
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Chairman, President & CEO
Accepted and agreed as of the
date first written above:
FUJITSU LIMITED
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Member of the Board
