<PAGE> 1
As filed with the Securities and Exchange Commission on April 19, 1995
Registration Statement No. 33-_____
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
Registration Statement Under The Securities Act of 1933
WANG LABORATORIES, INC.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 7372 04-2192707
- ------------------------------- ---------------------------- -------------------
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
ONE INDUSTRIAL AVENUE
LOWELL, MASSACHUSETTS 01851
(508) 459-5000
---------------------------
(Address, including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
ALBERT A. NOTINI, ESQ.
SENIOR VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY
WANG LABORATORIES, INC.
ONE INDUSTRIAL AVENUE
LOWELL, MASSACHUSETTS 01851
(508) 459-5000
-----------------------------
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
COPIES TO:
JOHN A. BURGESS, ESQ.
HALE AND DORR
60 STATE STREET
BOSTON, MASSACHUSETTS 02109
(617) 526-6000
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date hereof.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box.
/___ /
<PAGE> 2
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. / X /
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Proposed
Maximum
Title of Each Class Amount to be Proposed Maximum Aggregate Amount of
of Securities to be Registered Offering Price Per Offering Registration
Registered Share Price Fee
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 1,500,000.00 $14.00(1) $21,000,000.00(1) $ 7,242.00
$.01 par value
per share
Preferred Stock, 2,760,414.52 $25.00(2) $69,010,363.00(2) $23,797.00
$.01 par value
per share
- -------------------------------------------------------------------------------------------------------------------------
<FN>
(1) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) under the Securities
Act of 1933 based on the average of the high and low sale prices of the registrant's Common Stock on April 11, 1995,
as reported on the Nasdaq National Market.
(2) Based on a bona fide estimate of the maximum offering price estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(a) under the Securities Act of 1933.
</TABLE>
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933, or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE> 3
SUBJECT TO COMPLETION, DATED APRIL 19, 1995
APPEARING ALONG THE LEFT MARGIN:
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
PROSPECTUS
1,500,000 SHARES OF COMMON STOCK
2,760,414.52 SHARES OF 11% EXCHANGEABLE PREFERRED STOCK
WANG LABORATORIES, INC.
This Prospectus covers the resale of 1,500,000 shares of Common Stock,
$.01 par value per share (the "Common Stock"), of Wang Laboratories, Inc.
("Wang" or the "Company") and 2,760,414.52 shares of 11% Exchangeable Preferred
Stock, $.01 par value per share, of the Company (the "11% Preferred Stock," and
together with the Common Stock, the "Stock"). All of the shares of Stock
offered hereby are being sold by certain stockholders of the Company (the
"Selling Stockholders"). See "Selling Stockholders." The Company will not
receive any of the proceeds from the sale of Stock by the Selling Stockholders.
Holders of the 11% Preferred Stock are entitled to receive dividends at
an annual rate of 11%, which may be paid, at the option of the Company, in
additional shares of 11% Preferred Stock until September 30, 1996. After
September 30, 1996, dividends will be payable only in cash. Upon the
liquidation, dissolution or winding-up of the Company, holders of the 11%
Preferred Stock are entitled to receive an amount equal to $25.00 per share plus
any accrued and unpaid dividends. On September 30, 2003, the Company is
obligated to redeem all outstanding shares of the 11% Preferred Stock at a
redemption price equal to $25.00 per share plus any accrued and unpaid
dividends, and at any time on or after September 30, 1996, the Company has the
option to redeem some or all of the outstanding shares of the 11% Preferred
Stock for a cash payment equal to $25.50 per share (which payment declines by
$0.125 per share on September 30 of 1997, 1998, 1999 and 2000 and remains at
$25.00 thereafter) plus any accrued and unpaid dividends. The holders of the
11% Preferred Stock have one-half of one vote per share on all matters to be
voted on by stockholders; and have certain special voting rights in the event of
specified defaults by the Company. The terms of the 11% Preferred Stock also
include certain covenants for the benefit of the holders of the 11% Preferred
Stock. See "Description of Capital Stock -- 11% Preferred Stock."
The Selling Stockholders have advised the Company that they propose to
sell, from time to time, the shares of Stock offered hereby in the
over-the-counter market, in negotiated transactions, through the writing of
options on the shares of Stock, in ordinary brokerage transactions or a
combination of such methods of sale, at market prices prevailing at the time of
sale, at prices related to such market prices or at negotiated prices. See
"Plan of Distribution."
THE STOCK OFFERED HEREBY INVOLVES A HIGH DEGREE OF RISK. SEE "INVESTMENT
CONSIDERATIONS."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
The date of this Prospectus is April __, 1995.
<PAGE> 4
ADDITIONAL INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-3 (together with all
amendments, exhibits and schedules thereto, the "Registration Statement") under
the Securities Act of 1933, as amended, with respect to the Stock offered
hereby. This Prospectus does not contain all of the information set forth in
the Registration Statement and the exhibits and schedules thereto. For further
information with respect to the Company and the Stock, reference is made to the
Registration Statement and the exhibits and schedules filed as a part thereof.
Statements contained in this Prospectus as to the contents of any contract or
any other document referred to are not necessarily complete, and, in each
instance, if such contract or document is filed as an exhibit, reference is made
to the copy of such contract or document filed as an exhibit to the Registration
Statement, each such statement being qualified in all respects by such reference
to such exhibit. The Registration Statement, including the exhibits and
schedules thereto, may be inspected without charge at the Securities and
Exchange Commission's principal office in Washington, D.C., and copies of all or
any part thereof may be obtained from such office after payment of fees
prescribed by the Commission.
The Company is also subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Commission. Such reports, proxy statements and other information filed by
the Company can be inspected and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549,
as well as at the Regional Offices of the Commission at Seven World Trade
Center, 14th Floor, New York, New York 10048, and Northwestern Atrium Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies can be
obtained at prescribed rates by writing to the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. The Common Stock
of the Company is traded on the Nasdaq National Market. Reports and other
information concerning the Company may be inspected at the National Association
of Securities Dealers, Inc., 1725 K Street, N.W., Washington, D.C. 20006.
Wang Laboratories, Inc. (together with its subsidiaries, "Wang" or the
"Company") is a Delaware corporation. The Company's principal office is located
at One Industrial Avenue, Lowell, Massachusetts 01851 and its telephone number
is (508) 459-5000.
"Wang" and the Wang logo are registered trademarks of Wang Laboratories,
Inc. The text of this prospectus also contains references to trademarks of
other companies.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the fiscal year
ended June 30, 1994, as amended by Form 10-K/A, dated October 21, 1994;
(2) The Company's Quarterly Reports on Form 10-Q for the quarters
ended September 30, 1994 and December 31, 1994;
(3) The Company's Current Reports on Form 8-K dated September 19,
1994, December 30, 1994, January 31, 1995, as amended by Form 8-K/A on April
14, 1995, and April 17, 1995; and
-2-
<PAGE> 5
(4) The Company's Registration Statement on Form 8-A dated
September 27, 1993 registering the Common Stock under Section 12(g) of the
Exchange Act.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
hereof and prior to the termination of the offering of the Stock registered
hereby shall be deemed to be incorporated by reference into this Prospectus and
to be a part hereof from the date of filing such documents. Any statements
contained herein or in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon written or oral request of such person, a copy of
any or all of the foregoing documents incorporated by reference into this
Prospectus (without exhibits to such documents, unless such exhibits are
specifically incorporated by reference into such documents). Requests for such
copies should be directed to the Secretary of the Company, One Industrial
Avenue, Lowell, Massachusetts, 01851, telephone (508) 459-5000.
Except as otherwise noted, all references in this Prospectus to
historical transactions in the 11% Preferred Stock give effect to the
four-for-one split of the 11% Preferred Stock, effected in the form of a stock
dividend, in April 1995.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE CONTAINED IN
THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH OTHER INFORMATION AND
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE
INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY ANY SECURITIES OTHER THAN THE REGISTERED SECURITIES TO WHICH IT
RELATES. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION
OF AN OFFER TO BUY SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR
SOLICITATION IS UNLAWFUL.
-3-
<PAGE> 6
THE COMPANY
Wang's business strategy is as follows:
. to be a worldwide leader in workflow, integrated
imaging, document management, and related office
software for client/server open systems.
. to be a major worldwide provider of integration and
support services for office software and networks.
. to continue to provide support, expansion and
interoperability options for current VS customers and
GCOS customers.
In implementing this strategy, Wang develops, markets and supports
software and offers services that define, automate and manage critical office
processes. In addition, Wang develops and markets workflow, imaging and
document management software and related software applications for client/server
open systems, and provides integration and support services for office networks
worldwide. The Company's software and services are designed to enable its
customers to realize improvements in productivity, quality and responsiveness
through the definition, automation and management of critical business
processes.
Wang also provides products, support and services worldwide to its
substantial base of VS minicomputer customers by offering upgrade products,
service, and open systems coexistence and migration products. In addition,
Wang provides services and support on an exclusive basis to users of Bull GCOS
platforms in North America, including the United States Government, Australia
and New Zealand and provides GCOS products to such customers in all of these
geographies other than with respect to U.S. commercial customers. Such
products and services for these customers, together with the third party
product customer base serviced by the Company, currently provide the major
part of the Company's revenues, and these customers give the Company a well-
defined market for its new products and services.
Wang's rights to provide services to the GCOS customer base resulted
from the Company's acquisition effective as of January 30, 1995 of certain
assets and subsidiaries of Bull HN Information Systems Inc. and Bull S.A.
(collectively "Bull") (the "Bull Transaction"). The addition of Bull's U.S.
customer service business and six sales and service subsidiaries creates one of
the largest hardware independent, worldwide, multi-vendor field maintenance
organizations. As part of the Bull Transaction, the Company acquired Bull's
Paris-based workflow and imaging business. As a result, Wang has a worldwide
organization in this market segment with over 1,500 installed systems and has
one of the largest sales and support organizations and research and development
organizations dedicated to the workflow and imaging market.
-4-
<PAGE> 7
INVESTMENT CONSIDERATIONS
In addition to the other information in this Prospectus, the following
factors should be considered carefully by potential investors in evaluating an
investment in the Stock offered hereby.
IMPLEMENTATION OF BUSINESS STRATEGY. The Company has been operating
outside of the protection of Chapter 11 of the Bankruptcy Code ("Chapter 11")
since September 21, 1993, after having operated under Chapter 11 between August
18, 1992 and September 21, 1993. In connection with the Chapter 11 proceeding,
the Company substantially reduced its debt, restructured significant
obligations, disposed of a variety of unprofitable assets, rejected unfavorable
contracts, reduced expenses, and made significant progress in realigning the
focus of its overall business. The bulk of these activities, including the
reduction of debt, restructuring of outstanding obligations and rejection of
unfavorable contracts, only could have been accomplished under the protection of
Chapter 11 and should not be regarded as indicative of the Company's ability to
do so in the future.
Moreover, as a result of the adoption of "fresh-start" reporting, as
required by Statement of Position 90-7, "Financial Reporting by Entities in
Reorganization Under the Bankruptcy Code" issued by the American Institute of
Certified Public Accountants, effective as of September 30, 1993, the Company's
assets and liabilities were adjusted to fair values, and the Company's
accumulated deficit as of September 30, 1993 was eliminated. Historical
financial information of the predecessor company presented here, therefore,
cannot be viewed as indicative of the Company's future financial performance,
and financial statements for periods after September 30, 1993 are not comparable
to financial statements for prior periods.
The Company is reorienting its business emphasis away from sales of
Wang-manufactured computer hardware, and is increasing its focus on sales,
distribution and support of workflow, imaging, and related work management
software, and providing systems and network integration and support services
for multi-vendor office systems. The Company's ability to fully implement this
strategy over the long term, and the ultimate success of the strategy, are
subject to a broad range of uncertainties and contingencies, many of which are
beyond the Company's control. Revenue from the Company's new workflow and
imaging software products has to date been small as a percentage of Wang's
overall revenues. Accordingly, there can be no assurance that the Company will
be able to implement fully its new business strategy on a timely or profitable
basis, or, even if implemented, that such realignment will return the Company
to profitability on a continuing basis.
HISTORY OF LOSSES. The Company recorded net losses of $197.2 million,
$356.6 million and $385.5 million in the fiscal years ended June 30, 1993, 1992
and 1991, respectively. The ability of the Company to operate on a profitable
basis in the future will depend, among other things, on the Company reorienting
itself in a timely fashion as a provider of open systems software and services.
There can be no assurance that the Company will be able to maintain
profitability on a sustained basis.
RISKS ASSOCIATED WITH THE BULL TRANSACTION. While the Company believes
that the completion of the Bull Transaction will significantly strengthen its
competitive position in key strategic areas which it has targeted and will
generate synergies with Wang's existing business, there can be no assurance that
Wang's strategic goals for the Bull Transaction will be achieved. Furthermore,
the successful integration and ongoing
-5-
<PAGE> 8
operation of the businesses acquired from Bull will require the dedication of
significant financial, operational and management resources, which could
unfavorably impact the Company's overall operations or limit its ability to
consider other strategic or acquisition alternatives.
The Company expects to incur charges to operations, currently estimated
at $65 million, in the quarter ended March 31, 1995 (the quarter in which the
Bull Transaction was consummated) to reflect principally the costs associated
with combining the operations of the Company and Bull. These costs will consist
primarily of workforce-related charges of $43 million, $9 million for the
elimination of redundant facilities and other charges, and $13 million for the
write down of certain assets. Approximately $10 million, representing
relocation costs, system integration costs and other related charges, will be
reported as incurred in future periods. Cash requirements for the integration
and consolidation actions will total approximately $60 million. Approximately
$25 million will be expended during the current fiscal year ending June 30,
1995; the remainder will be expended during the next fiscal year ending June
30, 1996.
As a result of the Bull Transaction, Wang and Bull will continue to have
a close strategic relationship. Bull will be the designated reseller of a range
of Wang products, and will continue to provide support to the businesses
acquired from Bull both on a transitional and ongoing basis. In the event that
the parties fail to sustain an ongoing strategic relationship, whether because
of marketing or commercial conflicts or because of changes in Bull's strategic
direction attributable to its scheduled privatization or otherwise, all of the
anticipated benefits of the Bull Transaction may not be achieved.
RISKS ASSOCIATED WITH OTHER POTENTIAL ACQUISITIONS. The Company's
business strategy contemplates that it will seek to continue to complement its
operations with acquisitions of, and investments in, computer software, network
integration companies and service companies. Although management expects to
seek out and carefully analyze such opportunities, there can be no assurance
that the Company will in fact be able to identify or consummate one or more
acquisitions on satisfactory terms. In addition, there can be no assurance that
any such transaction would result in long-term benefits to the Company, or, in
the event of one or more significant acquisitions, that the Company and its
management will be able to assimilate effectively and manage the resulting
business. The Company evaluates such potential transactions from time to time,
and one or more such transactions could occur at any time.
LIQUIDITY NEEDS. Upon the consummation of the Chapter 11
reorganization, the Company received $60 million in proceeds from the private
placement of 2,400,000 shares of 11% Preferred Stock and 1,500,000 shares of
Common Stock, and entered into a $30 million financing facility. In addition,
during the nine months ended June 30, 1994, the Company generated $35.5 million
of cash from operations. On January 30, 1995 the Company terminated its $30
million financing facility and to help finance the cost of the Bull Transaction
and for general corporate purposes entered into a credit agreement with
several financial institutions (the "Credit Agreement") which provided the
Company with a revolving credit line of $125 million. Borrowings under the
Credit Agreement averaged $6.1 million during February 1995 and $1.2 million
during March 1995. No borrowings were outstanding as of March 31, 1995. The
Company believes that existing cash balances, current financing arrangements
and cash generated from operations will be sufficient to support the Company's
operating needs for at least the next 12 months and to complete its planned
restructuring and reorganization-related efforts. There can be no assurance,
however, that the Company will have access on acceptable terms to sufficient
capital resources to continue the realignment of its business, to fund
significant levels of corporate growth or to fund any future operating losses.
In addition, additional acquisition transactions may result in the incurrence
of significant indebtedness or require additional working capital to fund the
operations of the combined entities. Substantial borrowings under the Credit
Agreement may result in the Company being exposed to the financial and
operational risks generally associated with a more highly leveraged business.
FINANCIAL RESTRICTIONS. The Company's Credit Agreement contains
financial covenants which require compliance with a current ratio, specified
minimum levels of EBITDA and net worth and specified limitations on capital
expenditures. In addition, the Credit Agreement contains limitations on the
type and amounts of indebtedness that
-6-
<PAGE> 9
may be incurred and on stock repurchases by the Company. The terms of the 11%
Preferred Stock prohibit the Company from incurring more than approximately
$130 million in indebtedness (other than for acquisitions or conversion of the
11% Preferred Stock to subordinated debentures). There can be no assurance
that the Company will attain the earnings levels required to maintain
compliance with these financial covenants and other requirements of the
Credit Agreement or will not require borrowings prohibited by the Credit
Agreement or in excess of the limits imposed by the terms of the 11% Preferred
Stock. Any inability of the Company to obtain adequate working capital on
acceptable terms could jeopardize the confidence of vendors, suppliers and
customers in the financial stability of the Company.
-7-
<PAGE> 10
BUSINESS
Wang's business strategy is as follows:
. to be a worldwide leader in workflow, integrated
imaging, document management, and related office
software for client/server open systems.
. to be a major worldwide provider of integration and
support services for office software and networks.
. to continue to provide support, expansion and
interoperability options for current VS customers and
GCOS customers.
In implementing this strategy, Wang develops, markets and supports
software and offers services that define, automate and manage critical office
processes. In addition, Wang develops and markets workflow, imaging and
document management software and related software applications for
client/server open systems, and provides integration and support services for
office networks worldwide. The addition of Bull's workflow and imaging business
will result in a significant worldwide organization with an installed base of
more than 1,500 systems in the workflow and imaging market segment. The
Company's software and services are designed to enable its customers to realize
improvements in productivity, quality and responsiveness through the
definition, automation and management of critical business processes.
Wang also provides products, support and services worldwide to its
substantial base of VS minicomputer customers by offering upgrade products,
service, and open systems coexistence and migration products. In addition,
Wang provides services and support on an exclusive basis to users of Bull GCOS
platforms in North America, including the United States Government, Australia
and New Zealand and provides GCOS products to such customers in all of these
geographies other than with respect to U.S. commercial customers. Such
products and services for these customers, together with the third party
product customer base serviced by the Company, currently provide the major part
of the Company's revenues, and these customers give the Company a well-defined
market for its new products and services.
Wang's rights to provide services to the GCOS customer base resulted
from the Bull Transaction. The addition of Bull's U.S. customer service
business and six sales and service subsidiaries creates one of the largest
hardware independent, worldwide, multi-vendor field maintenance organizations.
As part of the Bull Transaction, the Company acquired Bull's Paris-based
workflow and imaging business. As a result, Wang has a worldwide organization
in this market segment with over 1,500 installed systems and has one of the
largest sales and support organizations and research and development
organizations dedicated to the workflow and imaging market.
In July 1994, the Company announced a new organizational structure that
is intended to advance its business focus on software and services. Each of
Wang's businesses is described in more detail below.
. THE SOFTWARE BUSINESS has worldwide responsibility for all aspects of
the Company's workflow, imaging, document management and for
application-builder software, as well as related hardware and
professional services.
-8-
<PAGE> 11
. THE CUSTOMER SERVICES BUSINESS has worldwide responsibility for
multi-vendor maintenance services, the Company's line of VS
minicomputers, the installation and support of office networks, and the
sale and support of popular third-party hardware and software
applications. The addition of Bull's U.S. customer service business
including the GCOS installed base, and the other sales and service
subsidiaries creates one of the largest hardware independent, worldwide,
multi-vendor field maintenance organizations.
. THE SOLUTIONS INTEGRATION BUSINESS provides products and solutions to
Wang's U.S. Government customers (Federal Systems Division), and
assists customers in maximizing the effectiveness of their organizations
by using client/server technologies (the Specialty Solutions group).
The recent acquisition of the Bull subsidiary focusing on U.S.
Government customers increases Wang's presence as an information
technology integrator to the U.S. Government.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of Common Stock
by the Selling Stockholders.
SELLING STOCKHOLDERS
On December 16, 1993, the Company sold 2,400,000 shares of 11% Preferred
Stock and 1,500,000 shares of Common Stock to the Selling Stockholders pursuant
to an exemption from registration under Section 4(2) of the Securities Act.
Subsequently, 360,414.52 additional shares of 11% Preferred Stock were issued as
dividends on the previously outstanding 11% Preferred Stock. All of the shares
of Stock being registered hereunder were acquired by the Selling Stockholders in
such private placement, or as dividends on the 11% Preferred Stock, and
represent all of the Stock sold in that private placement. Various Selling
Stockholders also acquired Common Stock pursuant to the Reorganization Plan as
creditors of the Company (although none of such shares are covered by this
Prospectus).
None of the Selling Stockholders holds any position or office with, has
been employed by, or has otherwise had a material relationship with, the Company
or its predecessor Massachusetts corporation, other than as stockholders of the
Company, with the exception of George Karfunkel, who is Executive Vice President
of American Stock Transfer & Trust Company. That company serves as the
Company's Transfer Agent, Warrant Agent, Intercompany Convertible Instruments
Agent, and Common Stock Disbursing Agent, and its affiliate, Pension Benefit
Corporation, provided administrative services to the Company's Pension and
Retirement Savings Plan from July 1, 1994 to February 28, 1995.
The following table lists the shares of Common Stock owned as of April
15, 1995, the shares of Common Stock offered for sale in this offering, and the
shares of 11% Preferred Stock owned and offered hereunder by each of the Selling
Stockholders.
-9-
<PAGE> 12
<TABLE>
<CAPTION>
Number of
Shares of Number of Number of Shares of
Common Stock Shares of 11% Preferred Stock
Name of Selling Beneficially Common Stock Beneficially Owned
Stockholders Owned(1) Offered Hereby and Offered Hereby
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Steinhardt Partners, L.P. 398,250 398,250 732,890.16
Institutional Partners, L.P. 351,750 351,750 647,317.16
Mutual Series Fund, Inc. 250,000 250,000 460,069.20
Omega Institutional Partners, 798,414 125,000 230,034.64
L.P.
Goldman, Sachs & Co. 125,000 125,000 230,034.64
Martin L. Solomon 50,000 50,000 92,013.72
Wilmer J. Thomas 50,000 50,000 92,013.72
George Karfunkel 150,000 150,000 276,041.28
--------- --------- ------------
TOTALS 2,118,414 1,500,000 2,760,414.52
========= ========= ============
<FN>
(1) Does not include any shares which the named stockholder may receive in the future upon the distribution of
additional shares of Common Stock or Warrants under the Reorganization Plan.
</TABLE>
The Selling Stockholders are parties to a Registration Rights Agreement
for Securities (the "Registration Rights Agreement") with the Company under
which they have certain rights with respect to the registration under the
Securities Act, for resale to the public, of the 1,500,000 shares of Common
Stock (the "Registrable Common Stock") and 2,760,414.52 shares of 11% Preferred
Stock they purchased from the Company (including the Stock). These Selling
Stockholders have exercised their right to registration with respect to the
Stock subject to this offering. The Registration Rights Agreement provides that
in the event the Company proposes to register any of its Common Stock under the
Securities Act (for its own account or otherwise), the Selling Stockholders who
continue to hold any Registrable Common Stock are entitled to include the
Registrable Common Stock in such registration, subject to certain conditions and
limitations, including the right of the managing underwriter of any such
offering to limit the number of shares of Registrable Common Stock included in
such registration. The Company is required to bear the expenses of such
registrations (except underwriting discounts and commissions).
The Selling Stockholders also have certain "anti-dilution" rights with
respect to their shares of Common Stock purchased from the Company. See
"Description of Capital Stock -- Common Stock" below.
-10-
<PAGE> 13
If all Stock covered by this Prospectus is sold by the Selling
Stockholders, none of the Selling Stockholders will continue to hold any Common
Stock with related registration and antidilution rights under the Registration
Rights Agreement.
PLAN OF DISTRIBUTION
The Selling Stockholders may elect, from time to time, to sell either
shares of Common Stock, 11% Preferred Stock or both. The Selling Stockholders
will act independently of the Company in making decisions with respect to the
timing, manner and size of each sale. Such sales may be made in the
over-the-counter market, in negotiated transactions, through the writing of
options on the shares of Stock, or through a combination of such methods of
sale, at market prices prevailing at the time of sale, prices related to the
then-current market price or at negotiated prices, including pursuant to an
underwritten offering or one or more of the following methods: (a) purchases by
a broker-dealer as principal and resale by such broker or dealer for its account
pursuant to this Prospectus; (b) ordinary brokerage transactions and
transactions in which the broker solicits purchasers; and (c) block trades in
which the broker-dealer so engaged will attempt to sell the shares as agent but
may position and resell a portion of the block as principal to facilitate the
transaction. The Selling Stockholders may also pledge shares of Stock as
collateral for margin accounts and such shares could be resold pursuant to the
terms of such accounts. The Company has been advised by the Selling
Stockholders that they have not made any arrangements relating to the
distribution of the shares covered by this Prospectus. In effecting sales,
broker-dealers engaged by the Selling Stockholders may arrange for the other
broker-dealers to participate. Such broker-dealers may receive compensation in
the form of discounts, concessions or commissions from the Selling Stockholders
and/or the purchasers of the shares for which such broker-dealers may act as
agent or to whom they may sell as principal, or both (which compensation shall
be negotiated immediately prior to sale and which, as to a particular
broker-dealer, may be in excess of customary compensation). Any broker-dealer
may act as broker-dealer on behalf of one or more of the Selling Stockholders in
connection with the offering of certain of the shares by Selling Stockholders.
The Registration Rights Agreement provides that the Company will
indemnify the Selling Stockholders against certain liabilities, including
certain liabilities under the Securities Act. Additionally, the Company will
pay the expenses, estimated to be $70,000, in connection with this offering,
other than transfer taxes, discounts, commissions, fees or expenses of
underwriters, selling brokers, dealer managers or similar securities industry
professionals relating to the distribution of the Stock, or legal expenses of
any person other than the Company and the Selling Stockholders.
In offering the shares of Stock covered hereby, the Selling Stockholders
and any broker-dealers and any other participating broker-dealers who execute
sales for the Selling Stockholders may be deemed to be "underwriters" within the
meaning of the Securities Act in connection with such sales, and any profits
realized by the Selling Stockholders and the compensation of such broker-dealer
may be deemed to be underwriting discounts and commissions. In addition, any
shares covered by this Prospectus which qualify for sale pursuant to Rule 144
may be sold under Rule 144 rather than pursuant to this Prospectus. None of the
shares covered by this Prospectus presently qualify for sale pursuant to Rule
144.
The Company has advised the Selling Stockholders that during such time
as they may be engaged in a distribution of Stock included herein they are
required to comply with
-11-
<PAGE> 14
Rules 10b-6 and 10b-7 under the Exchange Act (as those Rules are described in
more detail below) and, in connection therewith, that they may not engage in
any stabilization activity in connection with the Company's securities, are
required to furnish to each broker-dealer through which Stock included herein
may be offered copies of this Prospectus, and may not bid for or purchase any
of the Company's securities except as permitted under the Exchange Act. The
Selling Stockholders have agreed to inform the Company when the distribution of
the shares is completed.
Rule 10b-6 under the Exchange Act prohibits, with certain exceptions,
participants in a distribution from bidding for or purchasing, for an account in
which the participant has a beneficial interest, any of the securities that are
the subject of the distribution. Rule 10b-7 governs bids and purchases made in
order to stabilize the price of a security in connection with a distribution of
the security.
The public offering of the shares by the Selling Stockholders will
terminate on the earlier of (a) 18 months from the effective date or (b) the
date on which all shares offered hereby have been sold by the Selling
Stockholders. The Selling Stockholders have agreed to discontinue disposition
of the Stock upon receipt of notice from the Company of: (1) any request by the
Commission for amendments or supplements to the Registration Statement or
Prospectus; (2) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or initiation of any proceedings for
that purpose; (3) the receipt by the Company of any notification with respect to
the suspension of the qualification of the Stock for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose; (4) the
happening of any event as a result of which the Prospectus contains any 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 not misleading; (5)
the Company's reasonable determination that a post-effective amendment to the
Registration Statement would be appropriate or that there exist circumstances
not yet disclosed to the public which make further sales under the Registration
Statement inadvisable pending such disclosure and post-effective amendment; and
(6) the Company's possession of material information that it deems advisable not
to disclose in a Registration Statement.
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of 100,000,000
shares of Common Stock, $.01 par value per share, and 5,000,000 shares of
Preferred Stock (the "Preferred Stock") (of which 3,660,000 shares have been
designated as 11% Preferred Stock). As of March 31, 1995, there were
outstanding 33,775,207 shares of Common Stock (after giving effect to the
issuance of 30,000,000 shares issuable to general unsecured creditors of the
Company pursuant to the Reorganization Plan, notwithstanding that certain of
such shares remain undistributed pending resolution of disputed claims) held by
approximately 7,600 stockholders of record, and 2,760,414.52 shares of 11%
Preferred Stock held by eight stockholders of record.
In addition, as of March 31, 1995 the Company may be obligated to issue
in the future (i) up to 16,666,667 shares of Common Stock upon the conversion of
Intercompany Convertible Instruments issued or issuable to subsidiaries of the
Company pursuant to the Reorganization Plan, (ii) 7,500,000 shares of Common
Stock upon the exercise of the Warrants to be distributed to former stockholders
of the Company pursuant to the Reorganization Plan (see Note G of Notes to June
30, 1994 Consolidated Financial Statements), (iii) approximately 4,684,000
shares of Common Stock to employees of the Company pursuant to the Company's
stock purchase and stock incentive plans and (iv)
-12-
<PAGE> 15
260,000 shares of Common Stock upon the exercise of stock options granted to
the Directors of the Company pursuant to the Company's director stock option
plans.
The following summary of certain provisions of the Company's Common
Stock, 11% Preferred Stock, Certificate of Incorporation and By-laws is not
intended to be complete, and is qualified by reference to the provisions of
applicable law and to the Company's Certificate of Incorporation (as it may be
amended), Certificate of Stock Designation relative to the 11% Preferred Stock,
and By-laws. See "Additional Information."
COMMON STOCK
Holders of the Common Stock are entitled to one vote for each share held
on all matters submitted to a vote of stockholders and do not have cumulative
voting rights. Accordingly, holders of a majority of the outstanding shares of
Common Stock entitled to vote in any election of Directors may elect all of the
Directors standing for election. Holders of the Common Stock are entitled to
receive ratably such dividends, if any, as may be declared by the Board of
Directors out of funds legally available therefor. Upon the liquidation,
dissolution or winding-up of the Company, holders of the Common Stock are
entitled to receive ratably the net assets of the Company available for
distribution, after the payment of all liabilities of the Company and the
payment of any amounts owing to holders of capital stock of the Company ranking
senior to the Common Stock as to liquidation. Holders of the Common Stock have
no preemptive, subscription, redemption or conversion rights. The outstanding
shares of Common Stock, including the shares offered hereby, are fully paid and
nonassessable. The rights, preferences and privileges of holders of the Common
Stock (including the right to receive dividends or liquidation distributions)
are subject to, and may be adversely affected by, the rights of holders of
shares of the 11% Preferred Stock and any other series of Preferred Stock that
the Company may designate and issue in the future.
In order to help preserve the Company's ability to use its net
operating loss carryforwards and certain other tax attributes under the
Internal Revenue Code, the Company's Certificate of Incorporation provides
that, during the two-year period ending December 16, 1995, (i) no person or
entity may acquire any Common Stock (or any option or warrant to purchase
Common Stock) to the extent such acquisition would cause that person's
"Ownership Interest Percentage" (as defined in the Certificate of
Incorporation) to equal or exceed 5% and (ii) no person or entity whose
Ownership Interest Percentage is 5% or more may transfer any shares of Common
Stock or any options or warrants to purchase Common Stock. The registration of
the shares of Common Stock offered hereby, under the Securities Act, will have
no effect on these restrictions on transfer as they pertain to such shares.
These restrictions are not applicable to transfers pursuant to a bona fide
tender offer for at least 50% of the outstanding Common Stock. In addition,
any transfer of Common Stock (or options or warrants) that would otherwise be
prohibited shall be permissible if the Board of Directors of the Company
determines that the transaction will not jeopardize the Company's ability to
utilize its tax attributes. The ownership or conversion of the Company's
Intercompany Convertible Instruments will not be considered for purposes of
determining one's Ownership Interest Percentage.
The current holders of the 1,500,000 shares of outstanding Common Stock
offered hereby, and certain transferees of those shares, have certain
contractual "anti-dilution" rights with respect to future issuances of Common
Stock by the Company. In the event the Company issues or sells shares of Common
Stock (or options, warrants or other rights to acquire Common Stock) at a price
per share that is lower than the "current market value" (as defined in the
agreement), such stockholders shall be entitled to receive, for no additional
consideration, such number of additional shares
-13-
<PAGE> 16
of Common Stock as is determined by multiplying (i) the number of shares of
Common Stock originally acquired by such stockholder or acquired pursuant to
this anti-dilution provision by (ii) a fraction, the numerator of which shall
be the number of shares of Common Stock outstanding after giving effect to the
issuance or sale in question and the denominator of which shall be the number
of shares of Common Stock that would have been outstanding after giving effect
to such issuance or sale at the then current market value per share. This
provision does not apply to certain specified issuances or sales of Common
Stock by the Company, including issuances pursuant to the Warrants and the
Intercompany Convertible Instruments, issuances of up to 5,000,000 shares
pursuant to employee benefit plans and issuances of 90,000 shares issued
pursuant to options granted to members of the Board of Directors. This
"antidilution" right is not transferable to a purchaser of the Common Stock in
a public offering, including an offering pursuant to this Prospectus (or under
Rule 144 under the Securities Act).
PREFERRED STOCK
The Board of Directors is authorized under the Company's Certificate of
Incorporation, subject to any limitations prescribed by law but without
stockholder approval, to issue from time to time up to an aggregate of 5,000,000
shares of Preferred Stock, in one or more series (of which 3,660,000 shares have
been designated as 11% Preferred Stock). Each such series of Preferred Stock
will have such number of shares, designations, preferences, voting powers,
qualifications and special or relative rights or privileges as shall be
determined by the Board of Directors, which may include, among others, dividend
rights, voting rights, redemption and sinking fund provisions, liquidation
preferences, conversion rights and preemptive rights.
The Board of Directors has the authority to issue the Preferred Stock
and to determine its rights and preferences in order to eliminate delays
associated with a stockholder vote on specific issuances. The rights of the
holders of Common Stock will be subject to the rights of holders of any
Preferred Stock issued in the future. The issuance of Preferred Stock, while
providing desirable flexibility in connection with possible acquisitions and
other corporate purposes, could have the effect of making it more difficult for
a third party to acquire, or of discouraging a third party from attempting to
acquire, a majority of the voting stock of the Company.
11% PREFERRED STOCK
Under the Company's Certificate of Stock Designation with respect to its
11% Preferred Stock (the "Certificate of Designation"), the Board of Directors
is authorized to issue up to 3,660,000 shares of such stock. The Company
anticipates that this authorization will be sufficient to allow the Board of
Directors to declare and pay dividends on the outstanding 11% Preferred Stock in
additional shares of such stock through September 30, 1996. The Company issued
2,400,000 shares of 11% Preferred Stock to the Selling Stockholders on December
16, 1993 and, as of October 31, 1994, had issued an additional 360,414.52 such
shares as such dividends after giving effect to a four-for-one stock split of
the 11% Preferred Stock effected in April 1995.
Holders of the 11% Preferred Stock are entitled to receive, when, as and
if declared by the Board of Directors of the Company out of funds legally
available therefor, dividends (the "11% Preferred Dividend Payments") at an
annual rate of 11% (based upon the liquidation preference of the 11% Preferred
Stock, i.e. $60 million). Until September 30, 1996, the 11% Preferred Dividend
Payments may be paid, at the option of the Company, in cash, in additional
shares of 11% Preferred Stock (valued for such purposes at $25.00 per share), or
in any combination thereof. After September 30, 1996,
-14-
<PAGE> 17
dividends may be paid only in cash. The terms of the 11% Preferred Stock (i)
restrict the right of the Company to pay dividends on the Common Stock or other
stock of the Company ranking junior to the 11% Preferred Stock as to dividends,
(ii) prohibit (with certain limited exceptions) the Company from purchasing or
otherwise acquiring any outstanding shares of Common Stock, any other stock of
the Company ranking junior to the 11% Preferred Stock as to dividends, or any
options or acquisition rights related thereto, and (iii) prohibit the Company
from incurring indebtedness (as defined in the Certificate of Designation),
excluding the Exchange Debentures (as defined below) and certain
acquisition-related indebtedness, in excess of approximately $130 million
principal amount during the three-year period ending December 16, 1996, and
thereafter unless certain financial covenants are satisfied.
The Certificate of Designation provides that the 11% Preferred Stock
ranks senior to all of the Company's now or hereafter issued Preferred Stock and
Common Stock with respect to payment of dividends and distribution upon
liquidation. Upon the liquidation, dissolution or winding-up of the Company,
holders of the 11% Preferred Stock are entitled to receive, out of the assets of
the Company available for distribution (after payment of all liabilities of the
Company, but before any distribution to the holders of Common Stock or any other
capital stock of the Company ranking junior to the 11% Preferred Stock as to
liquidation), an amount equal to $25 per share plus any accrued and unpaid
dividends, and no more. If the assets of the Corporation available for
distribution to the holders of the 11% Preferred Stock are insufficient to pay
such liquidation preference, the available assets will be distributed ratably
among the holders of the 11% Preferred Stock. Neither a consolidation, merger or
other business combination involving the Company nor a sale or transfer of its
assets will be considered a liquidation, dissolution or winding-up of the
Company.
On September 30, 2003, the Company is obligated to redeem (to the extent
it has funds legally available therefor) all outstanding shares of the 11%
Preferred Stock at a redemption price equal to $25.00 per share plus any accrued
and unpaid dividends. At any time on or after September 30, 1996, the Company
may, at its option, redeem (in whole or from time to time in part) the
outstanding shares of the 11% Preferred Stock for a cash payment equal to $25.50
per share (provided that such payment declines by $0.125 per share on September
30 of 1997, 1998, 1999 and 2000 and remains at $25.00 per share thereafter),
plus any accrued and unpaid dividends. The Company shall not be entitled to
make a partial redemption of the outstanding shares of the 11% Preferred Stock
unless all accrued and unpaid dividends have been paid in full.
The holders of the 11% Preferred Stock vote together with the holders of
the Common Stock on all matters to be voted on by stockholders, and have one
half of one vote per share (as compared to one vote per share for the holders of
the Common Stock). If dividends on the 11% Preferred Stock are in arrears in an
amount equal to at least six quarterly dividend payments, there has been a
default in a redemption payment, or the Company has incurred indebtedness in
excess of the restriction described above, the number of directors of the
Company will be increased by two, and the holders of the 11% Preferred Stock
will have the exclusive right to elect such two additional directors, until such
arrearage or default has been cured. In addition, the affirmative vote of at
least two-thirds of any outstanding shares of the 11% Preferred Stock (voting as
a separate class) is required for certain corporate actions, including (i) an
amendment to the Certificate of Incorporation, Certificate of Designation or
By-laws which adversely affects the rights of the holders of the 11% Preferred
Stock or increases the authorized number of shares of 11% Preferred Stock, (ii)
the authorization or issuance of any capital stock ranking on a parity with or
senior to the 11% Preferred Stock as to
-15-
<PAGE> 18
dividends or liquidation rights, (iii) any reclassification of the 11%
Preferred Stock, or (iv) the incurrence of indebtedness in excess of the limits
described above.
The shares of the 11% Preferred Stock are exchangeable, at the option of
the Company, in whole but not in part, for 11% Junior Exchangeable Subordinated
Debentures of the Company due 2003 (the "Exchange Debentures"), at a rate of
$25.00 principal amount of the Exchange Debentures for each share of 11%
Preferred Stock. In addition, at the time of such exchange, the Company shall
pay to the holders of the 11% Preferred Stock any accrued and unpaid dividends,
which may be paid, at the option of the Company, either in cash, in additional
Exchange Debentures or in any combination thereof.
The Company may not engage in any consolidation or merger (other than
one in which the holders of the Common Stock prior to the transaction hold 50%
or more of the common stock of the resulting company), or sell or transfer all
or substantially all of its assets, unless the Company offers to purchase all of
the outstanding shares of the 11% Preferred Stock for the optional redemption
price described above (or $25.50 per share plus accrued and unpaid dividends, in
the event such a transaction occurs prior to September 30, 1996), and purchases
any such shares which are properly tendered.
DELAWARE LAW AND CERTAIN CHARTER AND BY-LAW PROVISIONS
The Company is subject to the provisions of Section 203 of the Delaware
General Corporation Law. In general, Section 203 prohibits a publicly-held
Delaware corporation from engaging in a "business combination" with an
"interested stockholder" for a period of three years after the date of the
transaction in which the person became an interested stockholder, unless the
business combination is approved in a prescribed manner. A "business
combination" includes mergers, asset sales and other transactions resulting in a
financial benefit to the interested stockholder. Subject to certain exceptions,
an "interested stockholder" is a person who, together with affiliates and
associates, owns, or within three years did own, 15% or more of the
corporation's voting stock.
The Company's Certificate of Incorporation provides for the division of
the Board of Directors into three classes, as nearly equal in size as possible,
with staggered three-year terms. The classification of the Board of Directors
could have the effect of making it more difficult for a third party to acquire,
or discouraging a third party from attempting to acquire, control of the
Company.
The Company's Certificate of Incorporation contains a provision
eliminating a director's liability to the Company or its stockholder for
monetary damages for a breach of fiduciary duty, except to the extent the
Delaware General Corporation Law prohibits the elimination of such liability
(such as in circumstances involving wrongful acts, such as the breach of a
director's duty of loyalty or acts or omissions which involve intentional
misconduct or a knowing violation of law). The Company's Certificate of
Incorporation also contains a provision obligating the Company to indemnify its
directors and officers to the fullest extent permitted by law.
The Company's Certificate of Incorporation provides that any action
required or permitted to be taken by the stockholders of the Company may be
taken only at a duly called stockholders meeting, and not by the written consent
of stockholders.
The Company's Certificate of Incorporation also includes a prohibition
against the issuance of non-voting equity securities.
-16-
<PAGE> 19
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Common Stock and the 11%
Preferred Stock is American Stock Transfer & Trust Company, 40 Wall Street, New
York, New York 10055. Its telephone number is 212-936-5100.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby will be passed
upon for the Company by Hale and Dorr, Boston, Massachusetts.
EXPERTS
The consolidated financial statements and schedules of the Company
appearing in the Company's Annual Report on Form 10-K for the year ended June
30, 1994 have been audited by Ernst & Young LLP, independent auditors, as set
forth in their report thereon included therein and incorporated herein by
reference. Such consolidated financial statements and schedules are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
The financial statements of the CS Business, W/I Business and
Subsidiaries of Bull HN Information Systems Inc. incorporated in this
Prospectus by reference from Amendment No. 1 to Current Report of Wang
Laboratories, Inc. on Form 8-K/A dated January 31, 1995 have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their report, which is
incorporated herein by reference, and have been so incorporated in reliance upon
the report of such firm given upon their authority as experts in accounting and
auditing.
-17-
<PAGE> 20
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
<TABLE>
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<CAPTION>
Amount to
Nature of Expense be Paid
----------------- --------
<S> <C>
SEC registration fee 31,039
Legal (including Blue Sky) and Accounting
Fees and Expenses of the Company 35,000
Miscellaneous 3,961
-------
TOTAL $70,000
=======
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law authorizes a court
to award, or a corporation's Board of Directors to grant, indemnification to
directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933,
as amended (the "Securities Act"). Article Tenth of Registrant's Certificate of
Incorporation provides for indemnification of its directors and officers to the
maximum extent permitted by the Delaware General Corporation Law.
<TABLE>
ITEM 16. EXHIBITS
<CAPTION>
Exhibit
Number
======
<S> <C>
2.1 (1) Amended and Restated Reorganization Plan dated
September 20, 1993
4.1 Certificate of Incorporation, as amended to date
4.2 (1) Bylaws of Registrant
4.3 (1) Form of Common Stock Certificate
4.4 Form of 11% Exchangeable Preferred Stock Certificate
5.1 Opinion of Hale and Dorr
12.1 Statement of computation of earnings to fixed charges
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Hale and Dorr (included in Exhibit 5.1)
</TABLE>
II-1
<PAGE> 21
<TABLE>
<S> <C>
23.3 Consent of Deloitte & Touche LLP
24.1 Power of Attorney (appears on Page II-4)
---------------------
<FN>
1 Filed as an Exhibit to the Registrant's Registration Statement on Form 8-A filed on September 27, 1993.
</TABLE>
ITEM 17. UNDERTAKINGS
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in
the information set forth in this Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") that are incorporated by reference in this Registration
Statement.
(2) That, for the purposes of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at the time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in this
Registration
II-2
<PAGE> 22
Statement shall be deemed to be a new registration statement relating to the
securities offered therein and the offering of such securities at the time
shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Corporation pursuant to the indemnification provisions described herein, or
otherwise, the Company has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a director, officer or
controlling person of the Company in the successful defense of any action, suit
or proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Company will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
II-3
<PAGE> 23
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Lowell, Commonwealth of Massachusetts this 19th day
of April, 1995.
WANG LABORATORIES, INC.
By: /s/ Franklyn A. Caine
------------------------------------
Franklyn A. Caine
Executive Vice President and
Chief Financial Officer
<TABLE>
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Albert A. Notini and John A. Burgess and each of them, his true and lawful
attorneys-in-fact and agents, with full power of substitution and resubstitution
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement on Form S-3 and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
and to take such actions in, and file with the appropriate authorities in,
whatever states said attorneys-in-fact and agents, and each of them, shall
determine, such applications, statements, consents and other documents as may be
necessary or expedient to register securities of the Company for sale, granting
unto said attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite or necessary to be done in and
about the premises, as fully to all intents and purposes as he might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof and the Registrant hereby confers like
authority on its behalf.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons on April 19, 1995, in the capacities indicated:
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Joseph M. Tucci Chairman of the Board, Chief
- ----------------------------- Executive Officer and Director
Joseph M. Tucci (Principal Executive Officer)
/s/ Franklyn A. Caine Executive Vice President and
- ----------------------------- Chief Financial Officer
Franklyn A. Caine (Principal Financial Officer)
</TABLE>
II-4
<PAGE> 24
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Gregory C. Thompson Vice President and Corporate
- ----------------------------- Controller (Principal Accounting
Gregory C. Thompson Officer)
Director
- -----------------------------
David A. Boucher
Director
- -----------------------------
Stephen G. Jerritts
/s/ Raymond C. Kurzweil Director
- -----------------------------
Raymond C. Kurzweil
/s/ Axel J. Leblois Director
- -----------------------------
Axel J. Leblois
/s/ Paul E. Tsongas Director
- -----------------------------
Paul E. Tsongas
/s/ Karl G. Wassmann III Director
- ------------------------------
Karl G. Wassmann III
/s/ Frederick A. Wang Director
- ------------------------------
Frederick A. Wang
/s/ John P. White Director
- ------------------------------
John P. White
</TABLE>
II-5
<PAGE> 25
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number
======
<S> <C>
2.1 (1) Amended and Restated Reorganization Plan dated
September 20, 1993
4.1 Certificate of Incorporation, as amended to date
4.2 (1) Bylaws of Registrant
4.3 (1) Form of Common Stock Certificate
4.4 Form of 11% Exchangeable Preferred Stock Certificate
5.1 Opinion of Hale and Dorr
12.1 Statement of computation of earnings to fixed charges
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Hale and Dorr (included in Exhibit 5.1)
23.3 Consent of Deloitte & Touche LLP
24.1 Power of Attorney (appears on Page II-4)
---------------------
<FN>
1 Filed as an Exhibit to the Registrant's Registration Statement on Form 8-A filed on September 27, 1993.
</TABLE>
<PAGE> 1
EXHIBIT 4.1
CERTIFICATE OF INCORPORATION
OF
WANG LABORATORIES DELAWARE, INC.
FIRST: The name of the Corporation is Wang Laboratories Delaware, Inc.
(hereinafter the "Corporation").
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, in the City of Wilmington, County of
New Castle. The name of its registered agent at that address is The Corporation
Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of the State of Delaware as set forth in Title 8 of the Delaware Code (the
"GCL").
FOURTH: The total number of shares of stock which the Corporation shall
have the authority to issue is 102,000,000 shares consisting of 100,000,000
shares of common stock, par value $0.01 per share (the "Common Stock"), and
2,000,000 shares of preferred stock, par value $0.01 per share (the "Preferred
Stock").
Shares of the Preferred Stock of the Corporation may be issued from
time to time in one or more classes or series, each of which class or series
shall have such distinctive designation or title as shall be fixed by the Board
of Directors of the Corporation (the "Board of Directors") in a resolution or
resolutions adopted prior to the issuance of any shares thereof. Each such
class or series of Preferred Stock shall have such voting powers, full or
limited, and such preferences and relative, participating, optional or other
special rights and such qualifications, limitations or restrictions thereof, as
shall be stated in such resolution or resolutions providing for the issue of
such class or series of Preferred Stock as may be adopted from time to time by
the Board of Directors prior to the issuance of any shares thereof pursuant to
the authority hereby expressly vested in it, all in accordance with the laws of
the State of Delaware.
<PAGE> 2
Notwithstanding the foregoing, the Corporation shall not issue any
non-voting equity securities.
FIFTH: A. Certain Restrictions on the Transfer of Common Stock. In
order to preserve the net operating loss carryovers, capital loss carryovers
and tax credit carryovers (the "Tax Benefits") to which the Corporation is
entitled pursuant to the Internal Revenue Code of 1986, as amended, or any
succesor statute (collectively, the "Code") and the regulations thereunder, the
following restrictions shall apply for the two-year period immediately
following the effective date of the Certificate of Incorporation of the
Corporation:
(1) No person shall acquire any shares of Common Stock, or any option
or warrant to purchase any such stock, to the extent such acquisition would
cause the Ownership Interest Percentage (as defined below) of the acquiror or
any other person to increase to five (5) percent or more, whether or not said
acquiror or other person held stock of the Corporation, or options or warrants
to purchase such stock, in excess of such percentage before such transfer. In
addition, no person whose Ownership Interest Percentage equals or exceeds five
(5) percent shall transfer any shares of Common Stock of the Corporation or any
options or warrants to purchase such stock. For purposes of this Article FIFTH,
(a) "person" refers to any individual, corporation, estate, trust, association,
company, partnership, joint venture or similar organization; (b) a person's
"Ownership Interest Percentage" shall be the sum of such person's direct
ownership interest in the Corporation as determined under Treasury Regulation
Section 1.382-2T(f)(8) or any succesor regulation and such person's indirect
ownership interest in the Corporation as determined under Treasury Regulation
Section 1.382-2T(f)(15) or any successor regulation, except that, for purposes
of determining a person's direct ownership interest in the Corporation, any
ownership interest held by such person in the Corporation described in Treasury
Regulation Section 1.382-2T(f)(18)(iii)(A) or any successor regulation shall be
treated as stock of the Corporation, and for purposes of determining a person's
indirect ownership interest in the Corporation, Treasury Regulation Sections
1.382-2T(g)(2), 1.382-2T(h)(2)(iii) and 1.382-2T(h)(6)(iii) or any successor
regulations shall not apply and any stock that would be attributed to such
person pursuant to the option attribution rule of Treasury Regulation Section
1.382-
2
<PAGE> 3
2T(h)(4) or any successor regulation, if to do so would result in an ownership
change, shall be attributed to such person without regard to whether such
attribution results in an ownership change; (c) "transfer" refers to any means
of conveying legal or beneficial ownership of shares of stock of the
Corporation, or options or warrants to purchase such shares, other than stock,
or options or warrants to purchase stock, acquired by reason of death, gift,
divorce or separation, whether such means is direct or indirect, voluntary or
involuntary, including, without limitation, the transfer of ownership of any
entity that owns shares of stock of the Corporation, or options or warrants to
purchase such shares; (d) "transferee" means any person to whom stock, or
options or warrants to purchase stock, of the Corporation is transferred and
(e) no person shall be deemed to have an Ownership Interest Percentage equal to
or above five (5) percent solely as a result of the ownership of the
Corporation's Intercompany Convertible Instruments or any Common Stock issued
upon conversion thereof.
(2) Any transfer of shares of Common Stock of the Corporation, or
options or warrants to purchase any such shares, that would otherwise be
prohibited pursuant to the preceding subparagraph, shall nonetheless be
permitted if information relating to a specific proposed transaction is
presented to the Board of Directors and the Board determines that such
transaction will not jeopardize the Tax Benefits, based upon an opinion of
legal counsel selected by the Board of Directors to that effect. The transfer
restrictions set forth in this Article FIFTH shall not be effective if (a) the
Board of Directors authorizes the filing of a federal tax return electing to
opt out of Section 382(1)(5) of the Code or (b) the Board of Directors
determines that Section 382(1)(5) does not apply. The provisions of this
Article FIFTH shall not apply to a transfer of Common Stock pursuant to a bona
fide tender offer for at least 50% of aggregate amount of the Corporation's
Common Stock for the sole purpose of allowing stockholders to tender their
shares pursuant to the offer. Nothing in this subparagraph shall be construed
to limit or restrict the Board of Directors in the exercise of its fiduciary
duties under applicable law.
B. Attempted Transfer in Violation of Transfer Restrictions. Unless
approval of the Board of Directors is obtained, or a bona fide tender offer is
commenced, as
3
<PAGE> 4
provided in subparagraph A(2) of this Article FIFTH, any attempted acquisition
or transfer of shares of Common Stock of the Corporation, or options or
warrants to acquire such shares, in excess of the shares or options or warrants
that could be transferred to the transferee without restriction under
subparagraph A(1) of this Article FIFTH is not effective to transfer ownership
of such excess shares, or options or warrants to acquire shares (the
"Prohibited Shares/Options") to the purported acquiror thereof (the "Purported
Acquiror") who shall not be entitled to any rights as stockholder or
optionholder or warrantholder of the Corporation with respect to the Prohibited
Shares/Options (including, without limitation, the right to vote or to receive
dividends with respect thereto). All rights with respect to the Prohibited
Shares/Options shall remain the property of the person who initially purported
to transfer Prohibited Shares/Options to a Purported Acquiror (the "Initial
Transferor") until such time as the Prohibited Shares/Options are resold as set
forth in subparagraph B(1) or subparagraph B(2) of this Article FIFTH. The
Purported Acquiror, by acquiring ownership of shares of the Common Stock, or
options or warrants to purchase such shares, that are Prohibited
Shares/Options, shall be deemed to have consented to all the provisions of this
Article FIFTH and to have agreed to act as provided in the following
subparagraph B(1):
(1) Upon demand by the Corporation, the Purported Acquiror shall
transfer any certificate or other evidence of purported ownership of the
Prohibited Shares/Options within the Purported Acquiror's possession or
control, along with any dividends or other distributions paid by the
Corporation with respect to the Prohibited Shares/Options that were received by
the Purported Acquiror (the "Prohibited Distributions"), to an agent designated
by the Corporation (the "Agent"). If the Purported Acquiror has sold the
Prohibited Shares/Options after purportedly acquiring them, the Purported
Acquiror shall be deemed to have sold the Prohibited Shares/Options as agent
for the Initial Transferor, and in lieu of transferring the Prohibited
Shares/Options and Prohibited Distributions to the Agent shall transfer to the
Agent the Prohibited Distributions and the proceeds of such sale (the "Resale
Proceeds") except to the extent that the Agent grants written permission to the
Purported Acquiror to retain a portion of the Resale Proceeds not exceeding the
amount that would have been payable by the
4
<PAGE> 5
Agent to the Purported Acquiror pursuant to the following subparagraph B(2) if
the Prohibited Shares/Options had been sold by the Agent rather than by the
Purported Acquiror. Any purported transfer of the Prohibited Shares/Options by
the Purported Acquiror other than a transfer described in one of the two
preceding sentences shall not be effective to transfer any ownership of the
Prohibited Shares/Options.
(2) The Agent shall sell in an arm's-length transaction (through the
exchange or inter-dealer quotation system upon which the Common Stock is listed
or quoted, if possible) any Prohibited Shares/Options transferred to the Agent
by the Purported Acquiror, and the proceeds of such sale (the "Sale Proceeds"),
or the Resale Proceeds, if applicable, shall be allocated to the Purported
Acquiror up to the purported purchase price paid or value of consideration
surrendered by the Purported Acquiror for the Prohibited Shares/Options.
Subject to the succeeding provisions of this subparagraph, any Resale Proceeds
or Sale Proceeds in excess of the amount allocable to the Purported Acquiror
pursuant to the preceding sentence, together with any Prohibited Distributions,
shall be the property of the Initial Transferor. If the identity of the Initial
Transferor cannot be determined by the Agent through inquiry made to the
Purported Acquiror, the Agent shall publish appropriate notice (in The Wall
Street Journal, if possible) for seven consecutive business days in an attempt
to identify the Initial Transferor in order to transmit any Resale Proceeds or
Sale Proceeds or Prohibited Distributions due to the Initial Transferor
pursuant to this subparagraph. The Agent may also take, but is not required to
take, other reasonable actions to attempt to identify the Initial Transferor.
If after 90 days following the final publication of such notice the Initial
Transferor has not been identified, any amounts due to the Initial Transferor
pursuant to this subparagraph may be paid over to a court or governmental
agency, if applicable law permits, or otherwise shall be transferred to an
entity designated by the Corporation that is described in Section 501(c)(3) of
the Code. In no event shall any such amounts due to the Initial Transferor
inure to the benefit of the Corporation or the Agent, but such amounts may be
used to cover expenses (including but not limited to the expenses of
publication) incurred by the Agent in attempting to identify the Initial
Transferor.
5
<PAGE> 6
C. Prompt Enforcement Against Purported Acquiror. Within thirty (30)
business days of learning of a purported transfer of Prohibited Shares/Options
to a Purported Acquiror, the Corporation, through its Secretary, shall demand
that the Purported Acquiror surrender to the Agent the certificates
representing the Prohibited Shares/Options, or any Resale Proceeds, and any
Prohibited Distributions, and, if such surrender is not made by the Purported
Acquiror within thirty (30) business days from the date of such demand, the
Corporation shall institute legal proceedings to compel such transfer;
provided, however, that nothing in this Paragraph C shall preclude the
Corporation in its discretion from immediately bringing legal proceedings
without a prior demand, and also provided that failure of the Corporation to
act within the time periods set out in this Paragraph C shall not constitute a
waiver of any right of the Corporation to compel any transfer required by
subparagraph B(1) of this Article FIFTH.
D. Additional Actions to Prevent Violation or Attempted Violation.
Upon a determination by the Board of Directors that there has been or is
threatened a purported transfer of Prohibited Shares/Options to a Purported
Acquiror, the Board of Directors may take such action in addition to any action
required by the preceding Paragraph as it deems advisable to give effect to the
provisions of this Article FIFTH, including, without limitation, refusing to
give effect on the books of this Corporation to such purported transfer or
instituting proceedings to enjoin such purported transfer.
E. Obligation to Provide Information. The Corporation may require as
a condition to the registration of the transfer of any shares of its Common
Stock, or options or warrants to acquire such shares, that the proposed
transferee furnish to the Corporation all information reasonably requested by
the Corporation with respect to all the proposed transferee's direct or
indirect ownership interests in, or options or warrants to acquire Common Stock
of, the Corporation.
F. Legends. All certificates evidencing ownership of shares of this
Corporation, or options or warrants to acquire such shares, that are subject to
the restrictions on transfer contained in this Article FIFTH shall bear a
conspicuous legend referencing the restrictions set forth in this Article FIFTH.
6
<PAGE> 7
SIXTH: The names and mailing addresses of the Incorporators are as
follows:
<TABLE>
<CAPTION>
Names Mailing Addresses
----- -----------------
<S> <C>
John H. LeFevre 1 Industrial Avenue
Lowell, MA 01851
David S. Hoiriis 1 Industrial Avenue
Lowell, MA 01851
</TABLE>
SEVENTH: The business and affairs of the Corporation shall be managed
by or under the direction of a Board of Directors consisting of not less than
one nor more than 12 directors, the exact number of directors to be determined
from time to time by resolution adopted by the affirmative vote of a majority
of the directors then in office. The directors shall be divided into three
classes, designated Class I, Class II and Class III. Each class shall consist,
as nearly as may be possible, of one-third of the total number of directors
constituting the entire Board of Directors. The term of the initial Class I
directors shall terminate on the date of the 1994 annual meeting of
stockholders; the term of the initial Class II directors shall terminate on
the date of the 1995 annual meeting of stockholders and the term of the initial
Class III directors shall terminate on the date of the 1996 annual meeting of
stockholders. At each annual meeting of stockholders beginning in 1994,
successors to the class of directors whose term expires at that annual meeting
shall be elected for a three-year term. If the number of directors is changed,
any increase or decrease shall be apportioned among the classes so as to
maintain the number of directors in each class as nearly equal as possible, and
any additional directors of any class elected to fill a vacancy resulting from
an increase in such class shall hold office for a term that shall coincide with
the remaining term of that class, but in no case will a decrease in the number
of directors shorten the term of any incumbent director. A director shall hold
office until the annual meeting for the year in which his term expires and
until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office.
Any vacancy on the Board of Directors, howsoever resulting, may be filled by a
majority of the directors then in office, even if less than a quorum, or by a
sole remaining director. Any director elected to
7
<PAGE> 8
fill a vacancy shall hold office for a term that shall coincide with the term
of the class to which such director shall have been elected.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by the Corporation shall have the
right, voting separately by class or series, to elect directors at an annual or
special meeting of stockholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
terms of this Certificate of Incorporation or the resolution or resolutions
adopted by the Board of Directors pursuant to Article FOURTH applicable
thereto, and such directors so elected shall not be divided into classes
pursuant to this Article SEVENTH unless expressly provided by such terms.
EIGHTH: Any action required or permitted to be taken at any annual or
special meeting of stockholders may be taken only upon the vote of the
stockholders at an annual or special meeting duly noticed and called, as
provided in the By-laws of the Corporation, and may not be taken by a written
consent of the stockholders pursuant to the GCL.
NINTH: The following provisions are inserted for the management of
the business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
(1) The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors.
(2) The directors shall have concurrent power with the stockholders to
make, alter, amend, change, add to or repeal the By-laws of the Corporation.
(3) Election of directors need not be by written ballot unless the
By-laws so provide.
(4) Except to the extent that the GCL prohibits the elimination or
limitation of liability of directors for breaches of fiduciary duty, no
director of the Corporation shall
8
<PAGE> 9
be personally liable to the Corporation or its stockholders for
monetary damages for any breach of fiduciary duty as a director. Any repeal
or modification of this Article NINTH by the stockholders of the
Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or
modification with respect to acts or omissions occurring prior to such
repeal or modification. The provisions of this Article NINTH shall not
adversely affect the rights and protection afforded to a director of the
Corporation by Wang Laboratories, Inc., a Massachusetts corporation and the
predecessor to this Corporation.
(5) In addition to the powers and authority hereinbefore or by statute
expressly conferred upon them, the directors are hereby empowered to
exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation, subject, nevertheless, to the
provisions of the GCL, this Certificate of Incorporation, and any By-laws
adopted by the stockholders; provided, however, that no By-laws hereafter
adopted by the stockholders or the directors shall invalidate any prior act
of the directors which would have been valid if such By-laws had not been
adopted.
TENTH: The Corporation shall indemnify its directors and officers to
the fullest extent authorized or permitted by law, as now or hereafter in
effect, and such right to indemification shall continue as to a person who has
ceased to be a director or officer of the Corporation and shall inure to the
benefit of his or her heirs, executors and personal and legal representatives;
provided, however, that, except for proceedings to enforce rights to
indemnification, the Corporation shall not be obligated to indemnify any
director or officer (or his or her heirs, executors or personal or legal
representatives) in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or
consented to by the Board of Directors of the Corporation. The right to
indemnification conferred by this Article TENTH shall include the right to be
paid by the Corporation the expenses incurred in defending or otherwise
participating
9
<PAGE> 10
in any proceeding in advance of its final disposition. The provisions of this
Article TENTH shall not adversely affect the rights and protection afforded to
a director of the Corporation by Wang Laboratories, Inc., a Massachusetts
corporation and the predecessor to this Corporation.
The Corporation may, to the extent authorized from time to time by the
Board of Directors, provide rights to indemnification and to the advancement of
expenses to employees and agents of the Corporation similar to those conferred
in this Article TENTH to directors and officers of the Corporation.
The rights to indemnification and to the advancement of expenses
conferred in this Article TENTH shall not be exclusive of any other right which
any person may have or hereafter acquire under this Certificate of
Incorporation, the By-laws, any statute, agreement, vote of stockholders or
disinterested directors or otherwise.
Any repeal or modification of this Article TENTH by the stockholders of
the Corporation shall not adversely affect any rights to indemnification and to
the advancement of expenses of a director or officer of the Corporation
existing at the time of such repeal or modification with respect to any acts or
omissions occurring prior to such repeal or modification.
ELEVENTH: Meetings of stockholders may be held within or without the
State of Delaware, as the By-laws may provide. The books of the Corporation may
be kept (subject to any provision contained in the GCL) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the By-laws of the Corporation.
TWELFTH: Notwithstanding any other provision contained in this
Certificate of Incorporation to the contrary, the affirmative vote of the
holders of sixty-six and two-thirds percent (66-2/3%) of the voting power of
the shares of the Corporation entitled to vote thereon shall be required to
amend, alter, change or repeal, or to adopt any provision inconsistent with the
purpose and intent of, Articles SEVENTH, NINTH (subsections (4) and (5)), TENTH
and TWELFTH of this Certificate of Incorporation.
10
<PAGE> 11
THIRTEENTH: The Corporation reserves the right to amend, alter, change
or repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
11
<PAGE> 12
WE, THE UNDERSIGNED, being the Incorporators hereinbefore named, for
the purpose of forming a corporation pursuant to the GCL, do make this
Certificate, hereby declaring and each certifying that this is my act and deed
and the facts herein stated are true, and accordingly have hereunto set my hand
this 16th day of December, 1993.
/s/ John H. LeFevre
--------------------
John H. LeFevre
Incorporator
/s/ David S. Hoiriis
---------------------
David S. Hoiriis
Incorporator
12
<PAGE> 13
CERTIFICATE OF OWNERSHIP AND MERGER
OF
WANG LABORATORIES, INC., A Massachusetts Corporation
INTO
WANG LABORATORIES DELAWARE, INC., A Delaware Corporation
- -------------------------------------------------------------------------------
Pursuant to Sections 103 and 253 of the General
Corporation Law of the State of Delaware
- -------------------------------------------------------------------------------
Wang Laboratories, Inc., a Massachusetts corporation (the
"Corporation"), does hereby certify as follows:
FIRST: The Corporation owns all of the oustanding shares of the common
stock of Wang Laboratories Delaware, Inc., a Delaware corporation ("Wang
Delaware"), par value $0.01 per share, which is the only outstanding class of
capital stock of Wang Delaware.
SECOND: The Corporation has duly adopted resolutions, dated June 23,
1993 and November 5, 1993, authorizing the merger of the Corporation into Wang
Delaware pursuant to Section 253 of the Delaware General Corporation Law. A
true copy of such resolutions is attached hereto as Exhibit A. Such resolutions
have not been modified or rescinded and are in full force and effect on the
date hereof.
THIRD: The proposed merger has been adopted and approved by the
Corporation in accordance with the laws of the Commonwealth of Massachusetts,
specifically, Sections 79 and 73 of the Massachusetts Business Corporation Law
("MBCL") which allows a Massachusetts corporation to take any proceeding and do
any act provided in a plan of reorganization that has been or shall be
confirmed by a court of competent jurisdiction, including to merge or to
consolidate as permitted by the MBCL, without further action by its directors
or stockholders. The Confirmation Order was entered by the Bankruptcy Court
for the District of Massachusetts on September 21, 1993.
FOURTH: Upon the effective date of the merger, Wang Delaware, the
surviving corporation, shall change its name to Wang Laboratories, Inc.
<PAGE> 14
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Ownership and Merger to be signed by its duly authorized officers this 20th day
of December, 1993.
Wang Laboratories, Inc., a
Massachusetts corporation
By: /s/ John H. LeFevre
---------------------
Name: John H. LeFevre
Title: Vice President
ATTEST:
By: /s/ David S. Hoiriis
----------------------
Name: David S. Hoiriis
Title: Assistant Clerk
2
<PAGE> 15
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
WANG LABORATORIES, INC.
PURSUANT TO SECTION 242
OF THE CORPORATION LAW OF THE
STATE OF DELAWARE
WANG LABORATORIES, INC. (hereinafter called the "Corporation"),
organized and existing under and by virtue of the General Corporation Law of
the State of Delaware, does hereby certify:
At a meeting of the Board of Directors of the Corporation held on
September 12, 1994, a resolution was duly adopted, pursuant to Section 242 of
the General Corporation Law of the State of Delaware, setting forth an
amendment to the Certificate of Incorporation of the Corporation, declaring
said amendment to be advisable and submitting said amendment to the
stockholders of the Corporation for consideration thereof. The holders of (i) a
majority of the votes represented by the shares of Common Stock and 11%
Exchangeable Preferred Stock eligible to vote and (ii) two-thirds of the shares
of 11% Exchangeable Preferred Stock eligible to vote approved said proposed
amendment, at the Annual Meeting of Stockholders held on January 25, 1995, in
accordance with Section 242 of the General Corporation Law of the State of
<PAGE> 16
Delaware. The resolution setting forth the amendment is as follows:
RESOLVED: That Article FOURTH of the Corporation's Certificate of
Incorporation be and it hereby is deleted in its entirety and the
following paragraph is inserted in lieu thereof:
"FOURTH: The total number of shares of stock which the
Corporation shall have the authority to issue is 105,000,000
shares consisting of 100,000,000 shares of common stock, par
value $0.01 per share (the "Common Stock"), and 5,000,000
shares of preferred stock, par value $0.01 per share (the
"Preferred Stock").
Shares of the Preferred Stock of the Corporation may be
issued from time to time in one or more classes or series, each
of which class or series shall have such distinctive designation
or title as shall be fixed by the Board of Directors of the
Corporation (the "Board of Directors") in a resolution or
resolutions adopted prior to the issuance of any shares thereof.
Each such class or series of Preferred Stock shall have such
voting powers, full or limited, and such preferences and
relative, participating, optional or other special rights and
such qualifications, limitations or restrictions thereof, as
shall be stated in such resolution or resolutions providing for
the issue of such class or series of Preferred Stock as may be
adopted from time to time by the Board of Directors prior to the
issuance of any shares thereof pursuant to the authority hereby
expressly vested in it, all in accordance with the laws of the
State of Delaware.
Notwithstanding the foregoing, the Corporation shall not
issue any non-voting equity securities."
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be
hereto affixed and this Certificate of Amendment of Certificate of
Incorporation to be signed by its Chairman of the
-2-
<PAGE> 17
Board and Chief Executive Officer and attested by its Secretary this 25th day
of January, 1995.
WANG LABORATORIES, INC.
By: /s/ Joseph M. Tucci
-------------------------
Joseph M. Tucci
Chairman of the Board and
Chief Executive Officer
Corporate Seal
Attest: /s/ Albert A. Notini
-------------------------
Albert A. Notini
Secretary
-3-
<PAGE> 18
AMENDED AND RESTATED CERTIFICATE OF DESIGNATION, NUMBER, VOTING POWERS,
PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIAL
RIGHTS, AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS THEREOF, OF
THE SERIES OF PREFERRED STOCK TO BE DESIGNATED.
11% EXCHANGEABLE PREFERRED STOCK
($0.01 Par Value)
OF
WANG LABORATORIES, INC.
The undersigned, Albert A. Notini, the Senior Vice President, General
Counsel and Secretary of Wang Laboratories, Inc., a Delaware corporation (the
"Corporation"), DOES HEREBY CERTIFY:
I. This Amended and Restated Certificate of Designation was adopted in
accordance with Sections 151(f) of the General Corporation Law of the State of
Delaware, the Board of Directors of the Corporation having duly adopted
resolutions on March 29, 1995, setting forth this Amended and Restated
Certificate of Designation, declaring its advisability and authorizing it to be
filed with the Secretary of State of the State of Delaware.
II. This Amended and Restated Certificate of Designation reads as follows:
Following is a statement of the designations, voting powers, preferences
and relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, of the shares of a series
of preferred stock (the "Preferred Stock"), par value $0.01 per share, of the
Corporation (in addition to the designations, voting powers, preferences and
relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, set forth in the
Corporation's Certificate of Incorporation which are applicable to the Preferred
Stock).
Section 1. Designation and Amount. The designation of such series of
Preferred Stock shall be the 11% Exchangeable Preferred Stock (herein the
"Exchangeable Preferred Stock"). The number of issuable shares of Exchangeable
Preferred Stock shall be 3,660,000.
<PAGE> 19
Section 2. Rank. All shares of Exchangeable Preferred Stock, both as
to payment of dividends and to distribution of assets upon liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
shall rank prior to all of the Corporation's now or hereafter issued preferred
stock, and senior to all of the Corporation's now or hereafter issued Common
Stock or any other common stock of any class of the Corporation. The term
"Common Stock" shall mean the Common Stock, $0.01 par value per share, of the
Corporation as the same exists at the date hereof or as such stock may be
constituted from time to time.
Section 3. Dividends and Certain Restrictions. The holders of the
Exchangeable Preferred Stock shall be entitled to receive, when, as and if
declared by the Board of Directors of the Corporation out of funds of the
Corporation legally available therefor, dividends at a rate per share of 11% per
annum (subject to appropriate adjustment in the event of any stock dividend,
stock split, combination or other similar recapitalization affecting such
shares), and no more, which shall be fully cumulative, shall accrue (whether or
not declared or paid) without interest from the date of first issuance and shall
be payable quarterly in arrears on each March 31, June 30, September 30 and
December 31, commencing December 31, 1993 (except that if such date is a
Saturday, Sunday or legal holiday, then such dividend will be payable on the
next day that is not a Saturday, Sunday or legal holiday) to holders of record
as they appear on the stock transfer books of the Corporation on such record
dates, not more than 60 nor less than 10 days preceding the payment dates for
such dividends, as are fixed by the Board of Directors. Any dividend payments
with respect to shares of Exchangeable Preferred Stock on or prior to September
30, 1996 may be made, in the sole discretion of the Corporation, either in (i)
cash, (ii) additional shares of Exchangeable Preferred Stock at the rate of 0.01
shares of Exchangeable Preferred Stock (subject to appropriate adjustment in the
event of any stock dividend, stock split, combination or other similar
recapitalization affecting such shares) for each $1.00 of such dividend or (iii)
any combination of cash and Exchangeable Preferred Stock, and the issuance of
such additional shares of Exchangeable Preferred Stock pursuant to (ii) or (iii)
above shall constitute full payment of any such dividend; provided that if such
dividends are not paid in cash, the Board of Directors shall declare and pay
dividends in additional shares of Exchangeable Preferred Stock to the extent
permitted by law. In the case of shares of Exchangeable Preferred Stock issued
as dividends on shares of Exchangeable Preferred Stock, dividends shall accrue
and be cumulative from the date following the dividend payment date in respect
of which such shares were deemed to have been issued as a dividend. For purpose
hereof, the term "legal holiday" shall mean any day on which banking
institutions are obligated or authorized
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<PAGE> 20
to close in New York, New York or in Boston, Massachusetts. Subject to the next
paragraph of this Section 3, dividends on account of arrears for any past
dividend period may be declared and paid at any time, without reference to any
regular dividend payment date. The amount of dividends payable for the initial
dividend period and any period shorter than a full quarterly dividend period
shall be computed on the basis of a 360-day year of twelve 30-day months.
On each dividend payment date all dividends which shall have accrued on
each share of Exchangeable Preferred Stock outstanding on such dividend payment
date shall accumulate and be deemed to become "due." For any dividend payment
date with respect to which dividends are not fully paid, such accrued dividends
shall be added (solely for the purpose of calculating dividends payable on the
Exchangeable Preferred Stock) to the Liquidation Preference of the Exchangeable
Preferred Stock effective at the beginning of the quarterly dividend period next
succeeding the quarterly dividend period as to which such dividends were not
paid and shall thereafter accrue additional dividends in respect thereof until
such unpaid dividends have been paid in full. No interest or sum of money or
other property or securities in lieu of interest shall be payable in respect of
any dividend payment or payments which are past due. Dividends paid on shares
of Exchangeable Preferred Stock in an amount less than the total amount of such
dividends at the time accumulated and payable on such shares shall be allocated
pro rata on a share-by-share basis among all such shares at the time
outstanding. All shares of Exchangeable Preferred Stock issued as a dividend
with respect to the Exchangeable Preferred Stock will thereupon be duly
authorized, validly issued, fully paid and non-assessable. After September 30,
1996, dividends on the Exchangeable Preferred Stock shall be paid only in cash.
Unless the preceding four quarterly dividends on the Exchangeable
Preferred Stock have been paid in cash, or declared and sums set aside for the
payment thereof, dividends (other than in Common Stock or any other stock of the
Corporation ranking junior to the Exchangeable Preferred Stock as to dividends
and as to liquidation rights) may not be paid, or declared and set aside for
payment, and other distributions may not be made upon the Common Stock or on any
other stock of the Corporation ranking junior to the Exchangeable Preferred
Stock as to dividends. So long as any shares of Exchangeable Preferred Stock
are outstanding, the Common Stock (or any rights, options or warrants to
purchase Common Stock), any other stock or other equity interests (or rights,
options or warrants to purchase such other stock or other equity interests) of
the Corporation ranking junior to the Exchangeable Preferred Stock as to
dividends or upon liquidation and the Intercompany Convertible Instruments (as
defined below) may not be redeemed, purchased or otherwise
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<PAGE> 21
acquired for any consideration by the Corporation, provided that,
notwithstanding the foregoing, the Corporation may acquire Intercompany
Convertible Instruments from any subsidiary of the Corporation and provided,
further, that, notwithstanding the foregoing, the Corporation may redeem,
purchase or otherwise acquire stock (i) from its employees in an amount up to 99
shares (subject to appropriate adjustment in the event of any stock dividend,
stock split, combination or other similar recapitalization affecting such
shares) in each half fiscal year per employee, (ii) in amounts sufficient to
allow employees to obtain cash to meet tax obligations arising upon exercise of
stock options or upon the termination of restrictions on restricted stock and
(iii) as the payment of the exercise price under stock options or restricted
stock awards to purchase Common Stock.
The Corporation shall not permit any subsidiary of the Corporation to
purchase or otherwise acquire for consideration any shares of stock (or rights,
options or warrants to purchase shares of stock or other equity interests) of
the Corporation or any units of the Intercompany Convertible Instruments unless
the Corporation could, under this Section 3, purchase or otherwise acquire such
shares (or rights, options or warrants to purchase shares of stock) or units at
such time and in such manner.
Any reference to "distribution" contained in this Section 3 shall not be
deemed to include any distribution made in connection with any liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary.
The Corporation shall not, and shall cause its subsidiaries not to,
directly or indirectly, create, incur, issue, assume, guarantee or otherwise
become directly or indirectly liable with respect to any Indebtedness other than
(x) the Debentures (as hereinafter defined) and (y) Indebtedness (as hereinafter
defined) that, when aggregated with all other Indebtedness of the Corporation
and its consolidated subsidiaries at the time outstanding (other than the
Debentures and the Indebtedness described in clause (z) below), does not exceed
the sum of (1) $75,000,000 principal amount plus (2) the principal amount of
Indebtedness outstanding (other than the Debentures and the Indebtedness
described in clause (z) below), and the undrawn amount under any revolving line
of credit or foreign factoring facility, on the date of consummation of the Plan
in an aggregate amount not to exceed $55.2 million (collectively, the
"Indebtedness Amount"), provided, however, that after the first three years
following the initial issuance of the Exchangeable Preferred Stock, the
Corporation may incur Indebtedness (exclusive of the Debentures and the
Indebtedness described in clause (z) below) in excess of the Indebtedness Amount
if at the time of such incurrence (A) the Corporation has retained earnings
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<PAGE> 22
(calculated in accordance with generally accepted accounting principles
consistently applied), cumulatively from the initial issuance of the
Exchangeable Preferred Stock, of $1.00 or more and (B) the ratio (the "Coverage
Ratio") of (1) earnings before interest, taxes and dividends on the Exchangeable
Preferred Stock (calculated in accordance with generally accepted accounting
principles consistently applied) to (2) interest (other than interest on the
Indebtedness described in clause (z) below) and dividends on the Exchangeable
Preferred Stock for the most recent consecutive four fiscal quarters of the
Corporation for which financial information is available equals at least 2.5 to
1 determined on a pro forma basis after giving effect to the incurrence of such
Indebtedness and the application of the net proceeds therefrom and (z)
Indebtedness for the purpose of financing the purchase price of capital stock
and/or assets of any business or businesses in a current line of business of the
Corporation described in the Disclosure Statement relating to the Plan or in any
related businesses (an "Acquisition") or assume Indebtedness in connection with
an Acquisition (provided that such Indebtedness (other than Indebtedness to pay
the purchase price) was not incurred in contemplation of such Acquisition);
provided, however, that (i) the aggregate amount of Indebtedness that may be
incurred or assumed since the date of consummation of the Plan pursuant to this
clause (z) shall in no event exceed $100,000,000 and (ii) at the time of such
incurrence or assumption on a pro forma basis after giving effect to such
Indebtedness and Acquisition and prior transactions the Coverage Ratio for the
most recent consecutive four fiscal quarters of the Corporation for which
financial information is available is at least 2.0 to 1; and provided, further,
that the Company may refinance any outstanding Indebtedness permitted to be
incurred pursuant to the foregoing provisions through the issuance of new
Indebtedness having a principal amount (or, if the new Indebtedness is issued at
a discount, an "original issue price") which does not exceed the principal
amount and accrued interest on the Indebtedness being refinanced. For purposes
of this Section 3, availability of amounts denominated in foreign currencies
will be converted into dollars at the exchange rates prevailing at the date of
determination. "Indebtedness" with respect to any person means the sum (without
duplication) at any date of (i) all indebtedness, unconditional or contingent,
for borrowed money, or for the deferred purchase price of property or services
(other than trade payable paid in accordance with industry practice), and all
guarantees and other obligations, unconditional or contingent, for indebtedness
for borrowed money of third parties, (ii) all indebtedness and other liabilities
secured by any lien on any property owned by such person even though such person
has not assumed or otherwise become liable for payment thereof, (iii) all
capitalized lease obligations, (iv) all guarantees by such person or any
Indebtedness of third parties, and (v) all obligations of
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<PAGE> 23
such person in respect of letters of credit, bonds, acceptances or similar
obligations issued or created for the account of such person.
Section 4. Liquidation Preference. In the event of a liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
the holders of Exchangeable Preferred Stock shall be entitled to receive out of
the assets of the Corporation, whether such assets are stated capital or surplus
of any nature, an amount equal to the dividends accrued and unpaid thereon to
the date of final distribution to such holders, whether or not declared, without
interest, and a sum equal to $100 per share (subject to appropriate adjustment
in the event of any stock dividend, stock split, combination or other similar
recapitalization affecting such shares), and no more (such sum, the "Liquidation
Preference"), before any payment shall be made or any assets distributed to the
holders of Common Stock or any other class or series of the Corporation's
capital stock ranking junior as to liquidation rights to the Exchangeable
Preferred Stock; provided, however, that such rights shall accrue to the holders
of Exchangeable Preferred Stock only in the event that the Corporation's
payments with respect to the liquidation preferences of the holders of capital
stock of the Corporation ranking senior as to liquidation rights to the
Exchangeable Preferred Stock (the "Senior Liquidation Stock") are fully met. If
the assets of the Corporation available for distribution after the liquidation
preferences of the Senior Liquidation Stock are fully met are not sufficient to
pay an amount equal to the Liquidation Preference to the holders of outstanding
shares of Exchangeable Preferred Stock and the liquidation preference to the
holders of any other series of the Corporation's capital stock which may
hereafter be created in accordance with Section 6(c) hereof having liquidation
rights on a parity with the shares of Exchangeable Preferred Stock (the "Parity
Liquidation Stock"), then the assets of the Corporation shall be distributed
ratably among the holders of the Exchangeable Preferred Stock and the Parity
Liquidation Stock in proportion to the respective preferential amounts to which
each is entitled (but only to the extent of such preferential amounts). Neither
a consolidation merger or other business combination of the Corporation with or
into another corporation or other entity nor a sale or transfer of all or part
of the Corporation's assets for cash, securities or other property shall be
considered a liquidation, dissolution or winding up of the Corporation for
purposes of this Section 4 (unless in connection therewith the liquidation of
the Corporation is specifically approved).
The holder of any shares of Exchangeable Preferred Stock shall not be
entitled to receive any payment owed for such shares under this Section 4 until
such holder shall cause to be delivered to the Corporation (i) the
certificate(s) representing such shares
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<PAGE> 24
of Exchangeable Preferred Stock and (ii) transfer instrument(s) satisfactory to
the Corporation and sufficient to transfer such shares of Exchangeable Preferred
Stock to the Corporation free of any adverse interest. As in the case of the
Redemption Price, no interest shall accrue on any payment upon liquidation after
the due date thereof.
Section 5. Redemption.
On September 30, 2003, the Corporation shall redeem, out of funds
legally available therefor, all shares of the Exchangeable Preferred Stock then
outstanding at a redemption price (the "Mandatory Redemption Price") equal to
the Liquidation Preference per share, together with accrued and unpaid dividends
to the redemption date. If, on September 30, 2003, funds are not legally
available to the Corporation for redemption of the shares of Exchangeable
Preferred Stock, the Corporation shall redeem on such date, at the Mandatory
Redemption Price, that number of shares of Exchangeable Preferred Stock which it
can lawfully redeem, and from time to time thereafter, as soon as funds are
legally available, the Corporation shall redeem at the Mandatory Redemption
Price shares of Exchangeable Preferred Stock until the Corporation has redeemed
the shares of Exchangeable Preferred Stock in full.
The Corporation may not redeem the Exchangeable Preferred Stock prior to
September 30, 1996. The Corporation, at its option, may at any time after
September 30, 1996, redeem, out of funds legally available therefor, in whole or
from time to time in part, the Exchangeable Preferred Stock on any date set by
the Board of Directors, for cash at a redemption price equal to the redemption
prices set forth below (expressed as percentages of the Liquidation Preference)
per share (the "Redemption Price"), together with accrued and unpaid dividends
to the redemption date (subject to the right of the holder of record of shares
of Exchangeable Preferred Stock on a record date for the payment of a dividend
on the Exchangeable Preferred Stock to receive the dividend due on such shares
of Exchangeable Preferred Stock on the corresponding dividend payment date, if
such dividend payment date is prior to the date set for redemption), if redeemed
during the 12-month period beginning September 30th of the years indicated
below:
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<PAGE> 25
<TABLE>
<CAPTION>
Year Percentage
---- ----------
<S> <C>
1996 102.00
1997 101.50
1998 101.00
1999 100.50
2000 100.00
2001 100.00
2002 100.00
</TABLE>
In case of the redemption of less than all of the then outstanding
Exchangeable Preferred Stock, the Corporation shall select the shares of
Exchangeable Preferred Stock to be redeemed in accordance with any method
permitted by the national securities exchange on which the Exchangeable
Preferred Stock is then listed, or if not so listed, the Corporation shall
designate by lot, or in such other manner as the Board of Directors may
determine, the shares to be redeemed, or shall effect such redemption pro rata.
Notwithstanding the foregoing, the Corporation shall not redeem less than all of
the Exchangeable Preferred Stock at any time outstanding until all dividends
accrued and in arrears upon all Exchangeable Preferred Stock then outstanding
shall have been paid for all past dividend periods.
Not more than 60 nor less than 30 days prior to the redemption date,
notice by first class mail, postage prepaid, shall be given to each holder of
record of the Exchangeable Preferred Stock to be redeemed, at such holder's
address as it shall appear upon the stock transfer books of the Corporation.
Each such notice of redemption shall specify the date fixed for redemption, the
Redemption Price, the place or places of payment and that payment will be made
upon presentation and surrender of the certificate(s) evidencing the shares of
Exchangeable Preferred Stock to be redeemed.
Any notice that is mailed as herein provided shall be conclusively
presumed to have been duly given, whether or not the holder of the Exchangeable
Preferred Stock receives such notice; and failure to give such notice by mail,
or any defect in such notice to the holders of any shares designated for
redemption shall not affect the validity of the proceedings for the redemption
of any other shares of Exchangeable Preferred Stock. On or after the date fixed
for redemption as stated in such notice, each holder of the shares called for
redemption shall surrender the certificate evidencing such shares to the
Corporation at the place designated in such notice and shall thereupon be
entitled to receive payment of the Redemption Price. If less than all the
shares represented by any such surrendered certificate are redeemed, a new
certificate shall be issued
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<PAGE> 26
without cost to the holder thereof representing the unredeemed shares. If such
notice of redemption shall have been so mailed and if, on or prior to the
redemption date specified in such notice all funds necessary for such redemption
shall have been set aside by the Corporation, separate and apart from its other
funds, in trust for the account of the holders of the shares so to be redeemed
(so as to be and continue to be available therefor), then on and after the
redemption date, notwithstanding that any certificate for shares of the
Exchangeable Preferred Stock so called for redemption shall not have been
surrendered for cancellation, all shares of Exchangeable Preferred Stock with
respect to which such notice shall have been mailed and such funds shall have
been set aside shall be deemed to be no longer outstanding and all rights with
respect to such shares of the Exchangeable Preferred Stock so called for
redemption shall forthwith cease and terminate, except the right of the holders
thereof to receive out of the funds so set aside in trust the amount payable on
redemption thereof (including an amount equal to accrued and unpaid dividends to
the redemption date) without interest thereon. However, if such notice of
redemption shall have been so mailed and if, prior to the redemption date
specified in such notice, all said funds necessary for such redemption shall
have been irrevocably deposited in trust, for the account of the holders of the
shares so to be redeemed (so as to be and continue to be available therefor),
with a corporation organized and doing business under the laws of the United
States or any State thereof or of the District of Columbia (or a corporation or
other person permitted to act as a trustee by the Securities and Exchange
Commission) authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $100,000,000 and subject to
supervision or examination by Federal, State or District of Columbia authority,
then, upon the making of such irrevocable deposit and without awaiting the
redemption date, all shares of the Exchangeable Preferred Stock with respect to
which such notice shall have been so mailed and such funds shall have been so
irrevocably deposited shall be deemed to be no longer outstanding, and all
rights with respect to such shares of the Exchangeable Preferred Stock so called
for redemption shall forthwith cease and terminate except the right of the
holders thereof on or after the redemption date to receive out of the funds so
irrevocably deposited in trust the amount payable upon redemption thereof
(including an amount equal to accrued and unpaid dividends to the redemption
date) without interest thereon.
The holder of any shares of Exchangeable Preferred Stock redeemed upon
any exercise of the Corporation's redemption right shall not be entitled to
receive payment of the Redemption Price for such shares until such holder shall
cause to be delivered to the place specified in the notice given with respect to
such redemption (i) the certificate(s) representing such shares of
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<PAGE> 27
Exchangeable Preferred Stock redeemed and (ii) transfer instrument(s)
satisfactory to the Corporation and sufficient to transfer such shares of
Exchangeable Preferred Stock to the Corporation free of any adverse interest. No
interest shall accrue on the Redemption Price of any shares of Exchangeable
Preferred Interests after it redemption date.
Section 6. Voting Rights.
(a) General. The holders of the Preferred Stock will vote
together with the Common Stock on all matters to be voted on by stockholders,
including the election of directors. In addition, the holders of Exchangeable
Preferred Stock will have all voting rights required by law. In connection with
any right to vote together with the Common Stock, each holder of Exchangeable
Preferred Stock will have two votes for each share (subject to appropriate
adjustment in the event of any stock dividend, stock split, combination or other
similar recapitalization affecting such shares) held. Any shares of
Exchangeable Preferred Stock held by the Corporation or any entity controlled by
the Corporation shall not have voting rights hereunder and shall not be counted
in determining the presence of a quorum.
(b) Default Voting Rights.
(i) Right to Elect Directors. Whenever dividends on
the Exchangeable Preferred Stock shall be in arrears in an amount equal
to at least six quarterly dividends (whether or not consecutive), or any
redemption price (whether mandatory or optional) has not been paid in
full when due, or the Corporation has incurred Indebtedness in excess of
the amount permitted by Section 3, (A) the number of members of the
Board of Directors of the Corporation shall be increased by two,
effective as of the time of election of such directors as hereinafter
provided, and (B) the holders of the Exchangeable Preferred Stock
(voting separately as a class) will have the exclusive right to vote for
and elect such two additional directors of the Corporation at any
meeting of stockholders of the Corporation at which directors are to be
elected held during the period such dividends remain in arrears or such
redemption price has not been paid in full. The right of the holders of
the Exchangeable Preferred Stock to vote for such two additional
directors shall remain vested until (x) payment in full of all accrued
and unpaid dividends on the Exchangeable Preferred Stock has been made
and dividends have been timely paid for two consecutive quarters after
such payment, or (y) payment in full of any redemption price (whether
mandatory or optional) which has become due, or (z) the date on which
the Corporation's Indebtedness shall
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<PAGE> 28
be reduced to amounts permitted under Section 3 and shall continue to be
so reduced for a period of two quarters, as the case may be, at which
time such rights shall terminate (subject in each case to revesting).
(ii) Special Meeting. Whenever such right shall vest,
it may be exercised initially by the vote of the holders of a majority
of the shares of the Exchangeable Preferred Stock present and voting, in
person or by proxy, at a special meeting of holders of the Exchangeable
Preferred Stock or at the next annual meeting of stockholders, or by
written consent of the holders of record of a majority of the
outstanding shares of the Exchangeable Preferred Stock without a
meeting. Unless such action shall have been taken by written consent as
aforesaid, a special meeting of the holders of the Exchangeable
Preferred Stock for the exercise of such right shall be called by the
Secretary of the Corporation as promptly as possible in compliance with
applicable law and regulations, and in any event within 10 days after
receipt of a written request signed by the holders of record of at least
25% of the outstanding shares of Exchangeable Preferred Stock, subject
to any applicable notice requirements imposed by law or by any national
securities exchange on which any Exchangeable Preferred Stock is listed.
Such meeting shall be held at the earliest practicable date thereafter.
Notwithstanding the provisions of this paragraph, no such special
meeting shall be held during the 60-day period preceding the date fixed
for the annual meeting of stockholders.
(iii) Term of Office of Directors. Any director who
shall have been elected by holders of the Exchangeable Preferred Stock
shall hold office for a term expiring (subject to the earlier payment of
all dividends and redemption payments (whether mandatory or optional) in
arrears on the Exchangeable Preferred Stock) at the next annual meeting
of the stockholders and during such term may be removed at any time,
either for or without cause, by, and only by, the affirmative vote of
the holders of record of a majority of the shares of the Exchangeable
Preferred Stock, voting as a single class, present and voting, in person
or by proxy, at a special meeting of such stockholders called for such
purpose, or by written consent without a meeting of the holders of
record of a majority of the outstanding shares of the Exchangeable
Preferred Stock, voting as a single class, and any vacancy created by
such removal may also be filled at such meeting or by such written
consent. A special meeting of the holders of the shares of the
Exchangeable Preferred Stock for the removal of a director elected by
the holders of the Exchangeable Preferred Stock and the filling of the
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<PAGE> 29
vacancy created thereby shall be called by the Secretary of the
Corporation as promptly as possible and in any event within 10 days
after receipt of request therefor signed by the holders of not less than
25% of the outstanding shares of the Exchangeable Preferred Stock taken
as a single class, subject to any applicable notice requirements imposed
by law or any national securities exchange on which any Exchangeable
Preferred Stock is listed. Such meeting shall be held at the earliest
practicable date thereafter.
(iv) Vacancies. Any vacancy caused by the death or
resignation of a director who shall have been elected in accordance with
this subparagraph (b) may be filled by the remaining director so elected
or, if not so filled, by a vote of holders of one-third of the shares of
the Exchangeable Preferred Stock present and voting as a single class,
in person or by proxy, at a meeting of such holders of Exchangeable
Preferred Stock called for such purpose, or by written consent without a
meeting of the holders of record of a majority of the outstanding shares
of the Exchangeable Preferred Stock as a single class. Unless such
vacancy shall have been filled by the remaining director or by written
consent as aforesaid, such meeting shall be called by the Secretary of
the Corporation at the earliest practicable date after such death or
resignation, and in any event within 10 days after receipt of a written
request signed by the holders of record of at least 25% of the
outstanding shares of the Exchangeable Preferred Stock taken as a single
class. Notwithstanding the provisions of this paragraph, no such special
meeting shall be held during the 60-day period preceding the date fixed
for the annual meeting of stockholders.
(v) Stockholders' Right to Call Meeting. If any
meeting of the holders of the Exchangeable Preferred Stock required by
this subparagraph (b) to be called shall not have been called within 10
days after personal service of a written request therefor upon the
Secretary of the Corporation or within 15 days after mailing the same
within the United States of America by registered mail addressed to the
Secretary of the Corporation at its principal office, subject to any
applicable notice requirements imposed by law or any national securities
exchange on which any Exchangeable Preferred Stock is listed, then the
holders of record of at least 25% of the outstanding shares of the
Exchangeable Preferred Stock may designate in writing a holder of a
share of the Exchangeable Preferred Stock to call such meeting at the
expense of the Corporation, and such meeting may be called by such
Person so designated upon the notice required for annual meetings of
stockholders or such shorter notice
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<PAGE> 30
(but in no event shorter than permitted by law or any national
securities exchange on which the Exchangeable Preferred Stock is listed)
as may be acceptable to the holders of a majority of the total number of
shares of the Exchangeable Preferred Stock. Any holder of a share of
the Exchangeable Preferred Stock so designated shall have access to the
stock books of the Corporation relating solely to the Exchangeable
Preferred Stock for the purpose of causing such meeting to be called
pursuant to these provisions.
(vi) Quorum. At any meeting of the holders of the
Exchangeable Preferred Stock called in accordance with the provisions of
this subparagraph (b) for the election or removal of directors, the
presence in person or by proxy of the holders of one-third of the total
number of shares of the Exchangeable Preferred Stock as a single class
shall be required to constitute a quorum; in the absence of a quorum, a
majority of the holders present in person or by proxy shall have power
to adjourn the meeting from time to time without notice, other than
announcement at the meeting, until a quorum shall be present.
(c) Class Voting Rights. So long as shares of the
Exchangeable Preferred Stock are outstanding, the Corporation shall not,
directly or indirectly or through merger or consolidation with any other person,
without the affirmative vote or consent of the holders of at least sixty-six and
two-thirds percent (66 2/3%) of all outstanding Exchangeable Preferred Stock,
voting separately as a class, (i) amend, alter or repeal (by merger,
consolidation or otherwise) any provision of the Certificate of Incorporation or
by the By-laws of the Corporation, as amended, or prior to an exchange date, the
Indenture (as hereinafter defined) (except for such amendments which can be made
without the consent of the holders of the Debentures pursuant to the terms of
the Indenture) so as to affect adversely the relative rights, preferences,
qualifications, limitations or restrictions of the Exchangeable Preferred Stock
or the rights of holders of the Debentures (if issued), (ii) increase the
authorized number of shares of the Exchangeable Preferred Stock, (iii) authorize
or issue or increase the authorized amount of any additional class or series of
stock (including any series of Preferred Stock), or any security convertible
into stock of such class or series, ranking on a parity with or senior to the
Exchangeable Preferred Stock as to dividends or as to rights upon liquidation,
dissolution or winding up, (iv) effect any reclassification of the Exchangeable
Preferred Stock, or (v) incur any Indebtedness except for Indebtedness permitted
by Section 3. In connection with any right to vote pursuant to this Section
6(c), each holder of Exchangeable Preferred Stock will have one vote for each
share held. A class vote on the part of the Exchangeable Preferred Stock shall,
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<PAGE> 31
without limitation, specifically not be deemed to be required (except as
otherwise required by law or resolution of the Corporation's Board of Directors)
in connection with : (a) the authorization, issuance or increase in the
authorized amount of any shares of any other class or series of stock that ranks
junior to the Exchangeable Preferred Stock upon liquidation, dissolution or
winding up of the Corporation; provided that so long as any of the shares of
Exchangeable Preferred Stock are outstanding, the Corporation may not create any
shares of any other class or series of stock that ranks junior to the
Exchangeable Preferred Stock unless the terms thereof provide that (A) dividends
on such junior class or series of stock are payable solely in additional shares
of such junior class or series of stock if cash dividends have not been paid on
the Exchangeable Preferred Stock on the immediately preceding dividend payment
date, and (B) such junior class or series of stock shall not be subject to any
mandatory redemption or mandatory offer to purchase requirements prior to
September 30, 2003, or (b) the issuance or increase in the amount of any notes,
bonds, mortgages, debentures or other obligations of the Corporation to the
extent the issuance or increase thereof is permitted pursuant to Section 3.
Section 7. Exchange. The shares of Exchangeable Preferred Stock are
exchangeable at the option only of the Corporation, in whole but not in part, on
any dividend payment date, for the 11% Junior Exchangeable Subordinated
Debentures due 2003 (the "Debentures") of the Corporation, to be issued under an
Indenture (the "Indenture") between the Corporation and a corporation organized
and doing business under the laws of the United States or any State thereof or
of the District of Columbia (or a corporation or other person permitted to act
as a trustee by the Securities and Exchange Commission) authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $100,000,000 and subject to supervision or examination by Federal,
State or District of Columbia authority, as trustee under the Indenture (the
"Trustee"), which shall be in substantially the form on file with the Secretary
of the Corporation, completed as set forth therein and with such changes as may
be required by law or usage. Holders of the outstanding shares of Exchangeable
Preferred Stock will be entitled to receive $100 principal amount of the
Debentures in exchange for each share of Exchangeable Preferred Stock (subject
to appropriate adjustment in the event of any stock dividend, stock split,
combination or other similar recapitalization affecting such shares) held by
them. On the date of the exchange, the Corporation shall pay an amount equal to
accrued and unpaid dividends, at the Corporation's option, in cash or in
Debentures (at the rate of $100 principal amount for each $100 in accrued and
unpaid dividends) or in any combination thereof.
-14-
<PAGE> 32
No such exchange of Debentures for shares of Exchangeable Preferred
Stock shall be made unless on or prior to the dividend payment date on which
such exchange is to be made (i) the Indenture shall have been executed and
delivered by the Corporation and the Trustee and (ii) the Trustee shall have
received an Opinion of Counsel (as such term is defined in the Indenture), dated
such dividend payment date, substantially to the following effect (together with
appropriate assumptions or qualifications), with such changes therein as such
Trustee shall approve:
(1) the Corporation has duly authorized the exercise of its
right to redeem the Exchangeable Preferred Stock in exchange for the
Debentures and has exercised such option; (2) the Corporation has full
corporate power and authority to enter into the Indenture and to perform
its obligations under the Indenture and to issue and deliver the
Debentures; (3) the Indenture has been duly authorized, executed and
delivered by the Corporation and is a legal, valid and binding agreement
of the Corporation enforceable against the Corporation in accordance
with its terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in effect and to
general equitable principles); (4) the Debentures will, when issued in
accordance with the terms of the Indenture, constitute legal, valid and
binding obligations of the Corporation enforceable against the
Corporation in accordance with their terms (subject, as to enforcement
of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or others laws affecting creditors' rights generally from
time to time in effect and to general equitable principles) and are
entitled to the benefits of the Indenture; (5) no consent, approval,
authorization or order of any court or governmental agency or body is
required in connection with the issuance of the Debentures, except such
as may be required under the blue sky laws of any jurisdiction and such
other approvals (specified in such opinion) as have been obtained; and
(6) the issuance of Debentures and the performance by the Corporation of
its obligations under the Indenture will not be in conflict with or
constitute a breach of or a default (with the passage of time or
otherwise) under (w) the Certificate of Incorporation or By-laws of the
Corporation in effect at the date of such opinion, (x) the charter or
by-laws of any subsidiary of the Corporation, which conflict, breach or
default is material to the Corporation and its subsidiaries taken as a
whole, in effect at the date of such opinion, (y) any agreement or
instrument, known to such counsel and which is, individually or in the
aggregate, material to the Corporation and its
-15-
<PAGE> 33
subsidiaries taken as a whole, to which the Corporation or any of its
subsidiaries is a party or by which it or any of its subsidiaries is
bound or (z) any statute, law or regulation known to such counsel and in
effect at the date of such opinion to which the Corporation or any of
its subsidiaries may be subject or any judgment, decree or order, known
to such counsel, of any court or governmental agency or authority then
in effect and applicable to the Corporation or any of its subsidiaries
(which conflict, breach or default is, in the case of this clause (z),
individually or in the aggregate, material to the Corporation and its
subsidiaries taken as a whole).
Upon such exchange (unless default shall be made by the Corporation in
issuing Debentures in exchange for the outstanding shares of the Exchangeable
Preferred Stock on the exchange date), the rights of the holders of the
Exchangeable Preferred Stock as stockholders of the Corporation shall cease
(except the right to receive on the date of exchange an amount equal to the
amount of accrued and unpaid dividends on the Exchangeable Preferred Stock to
the date of exchange and the Debentures), and the person or persons entitled to
receive the Debentures issuable upon such redemption and exchange shall be
treated for all purposes as the registered holder or holders of such Debentures.
The Corporation will mail to each holder of record of Exchangeable Preferred
Stock, at such holder's last address as it shall appear upon the stock transfer
books of the Corporation, written notice of its intention to exchange the
Exchangeable Preferred Stock not less than 20 nor more than 60 days prior to the
exchange date. Such notice shall state: (i) the exchange date; (ii) the place
or places where certificates for such shares are to be surrendered for exchange
for Debentures; and (iii) that dividends on the shares to be exchanged will
cease to accrue on such exchange date. Upon surrender in accordance with said
notice of the certificate for any shares to be exchanged (properly endorsed or
assigned for transfer, if the Corporation shall so require and the notice shall
so state), the Corporation will cause the Debentures to be authenticated and
issued in exchange for such shares of Exchangeable Preferred Stock and to be
mailed to the holder of the shares of Exchangeable Preferred Stock at such
holder's address of record or such other address as the holder shall specify
upon such surrender of such certificates.
If on the exchange date the Corporation shall be in default in the
payment of any dividends (including cumulative dividends, if applicable) on
Exchangeable Preferred Stock, or if there shall not be legally available funds
therefor, or if such exchange shall on such date be prohibited by applicable
law, then no shares of the Exchangeable Preferred Stock shall be exchanged.
-16-
<PAGE> 34
Section 8. Outstanding Shares. For purposes of this Certificate of
Designation, all shares of Exchangeable Preferred Stock shall be deemed
outstanding except (i) from the date fixed for redemption pursuant to Section 5,
all shares of Exchangeable Preferred Stock that have been so called for
redemption under Section 5 if funds necessary for payment of the redemption
price have been irrevocably deposited in trust, for the account of the holders
of the shares so to be redeemed (so as to be and continue to be available
therefor), with a corporation organized and doing business under the laws of the
United States or any State or territory thereof or of the District of Columbia
(or a corporation or other person permitted to act as a trustee by the
Securities and Exchange Commission) authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$100,000,000 and subject to supervision or examination by Federal, State or
District of Columbia or territorial authority; and (ii) from the date of
registration of transfer, all shares of Exchangeable Preferred Stock held of
record by the Corporation or any subsidiary of the Corporation.
Section 9. Status of Acquired Shares. Shares of Exchangeable Preferred
Stock redeemed by the Corporation, received upon exchange pursuant to Section 7,
or otherwise acquired by the Corporation, will be restored to the status of
authorized and unissued shares of Preferred Stock, without designation as to
series, and may thereafter be issued, but not as shares of Exchangeable
Preferred Stock.
Section 10. Preemptive Rights. The Exchangeable Preferred Stock are
not entitled to any preemptive or subscription rights in respect of any
securities of the Corporation.
Section 11. Offer to Purchase in Connection with Certain Business
Combinations.
(a) So long as any shares of Exchangeable Preferred Stock
remain outstanding, the Corporation will not enter into a Business Combination
or permit a Business Combination to occur unless the Corporation shall have made
an offer to purchase (a "Business Combination Purchase Offer") any or all of the
outstanding shares of Exchangeable Preferred Stock for cash at a purchase price
equal to the optional Redemption Price applicable at such time, or at the
redemption price of 102% of the Liquidation Preference, together with cumulative
accrued and unpaid dividends, if the Business Combination occurs prior to
September 30, 1996 (and the pro rata portion thereof in the case of fractional
shares), together with an amount equal to accrued and unpaid dividends to the
date of purchase, and shall have consummated the purchase of all shares of
Exchangeable Preferred Stock properly tendered pursuant to such Business
Combination
-17-
<PAGE> 35
Purchase Offer at the closing of such Business Combination in accordance with
the procedures set forth in Section 11(b).
(b) At the commencement of a Business Combination Purchase
Offer, a written notice (the "Business Combination Purchase Notice") of such
Business Combination Purchase Offer shall be mailed to each holder of record of
shares of Exchangeable Preferred Stock addressed to such holder at his mailing
address as shown on the records of the Corporation. The Business Combination
Purchase Notice shall be accompanied by a copy of the most recently available
report or other information regarding the Corporation required to be delivered
to the holders of Exchangeable Preferred Stock pursuant to Section 13, even if
such report or other information has been previously mailed to such holder in
accordance with Section 13. Each such Business Combination Purchase Notice
shall contain all instructions and materials necessary to enable such holder of
Exchangeable Preferred Stock to tender his shares pursuant to the Business
Combination Purchase Offer and shall state:
(i) that the Business Combination Purchase Offer is
being made pursuant to this Section 11 and that all shares of
Exchangeable Preferred Stock properly tendered will be accepted for
payment;
(ii) the parties to the Business Combination and the
terms and timing of the Business Combination;
(iii) the aggregate Liquidation Preference of all of the
outstanding shares, including fractional shares, of Exchangeable
Preferred Stock;
(iv) the purchase price and the date (the "Business
Combination Purchase Date") on which the Corporation shall purchase
shares duly tendered pursuant to the Business Combination Purchase
Offer;
(v) that, unless the Corporation defaults in making
the payment pursuant to the Business Combination Purchase Offer, any
shares of Exchangeable Preferred Stock accepted for payment pursuant to
the Business Combination Purchase Offer shall cease to accrue dividends
after the Business Combination Purchase Date;
(vi) that any shares of Exchangeable Preferred Stock
not tendered or accepted for payment will continue to accrue dividends;
(vii) that stockholders electing to have shares
purchased pursuant to the Business Combination Purchase Offer
-18-
<PAGE> 36
will be required to surrender the certificate or certificates
representing such shares, together with a form entitled "Option of
Stockholder to Elect Purchase" (or other appropriate form letter of
transmittal) to be mailed to the holders of such Business Combination
Purchase Notice, to the Corporation at the address specified in the
Business Combination Purchase Notice prior to the close of business on
the business day next preceding the Business Combination Purchase Date;
(viii) that a stockholder electing to accept the Business
Combination Purchase Offer with respect to only a portion of his shares
must accept the Business Combination Purchase Offer with respect to all
fractional shares owned by him;
(ix) that each stockholder will be entitled to withdraw
his election if the Corporation receives, not later than the close of
business on the third business day next preceding the Business
Combination Purchase Date (or such other later date as may be required
by law), a letter executed with such formalities as the Corporation in
its sole discretion deems reasonably appropriate or, at the
Corporation's option, a telegram, telex, facsimile transmission, in each
case setting forth the name of the stockholder, the number of shares of
Exchangeable Preferred Stock previously delivered for purchase and a
statement that such stockholder does thereby withdraw his election to
have such shares purchased;
(x) that stockholders whose shares are purchased only
in part will be issued a new certificate representing the unpurchased
shares so surrendered; and
(xi) such other information as the Corporation in its
sole discretion deems appropriate.
(c) In the event of a material change in the parties to or the
terms or the timing of any Business Combination, the Corporation shall give the
holders of the Exchangeable Preferred Stock written notice in accordance with
Section 11(b) describing such material change at least five Business Days prior
to the Business Combination Purchase Date (subject, with respect to such five
Business Day limitation, to any applicable law or regulation requiring a longer
notice or waiting period).
(d) The Business Combination Purchase Date shall be a date
occurring no earlier than 20 Business Days and no later than 40 Business Days
after the mailing of the Business Combination Purchase Notice (subject, with
respect to such 40 Business Day
-19-
<PAGE> 37
limitation, to Section 11(c) and any applicable law or regulation requiring a
longer notice or waiting period).
(e) On the Business Combination Purchase Date, the Corporation
shall (i) accept for payment shares of Exchangeable Preferred Stock (including
fractional shares) properly tendered and (ii) set aside in a separate account,
for the benefit of holders whose shares of Exchangeable Preferred Stock are to
be purchased, at a corporation organized and doing business under the laws of
the United States or any State or territory thereof or of the District of
Columbia (or a corporation or other person permitted to act as a trustee by the
Securities and Exchange Commission) authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$100,000,000 and subject to supervision or examination by Federal, State or
District of Columbia authority, money sufficient to pay the purchase price of
all shares (including fractional shares) of Exchangeable Preferred Stock so
accepted. The Corporation shall promptly mail or deliver to the holders of
Exchangeable Preferred Stock so purchased, payment in an amount equal to the
purchase price and promptly mail or deliver to such stockholders a new
certificate for Exchangeable Preferred Stock representing the unpurchased shares
surrendered. Any shares of Exchangeable Preferred Stock not purchased pursuant
to the Business Combination Purchase Offer shall be promptly mailed or delivered
by the Corporation to the holder thereof. The Corporation shall publicly
announce the results of the Business Combination Purchase Offer on or as soon as
practicable after the Business Combination Purchase Date.
(f) "Business Combination" means any consolidation or merger
of the Corporation with or into any other corporation or corporations in which
the Common Stock of the Corporation is exchanged for cash, securities (other
than Common stock) or other property or as a result of which holders of the
Common stock prior to the consummation of the transaction hold less than 50% of
the common stock of the combined company, or any sale or conveyance of all or
substantially all the property of the Corporation.
Section 12. Restrictions on Transactions with Affiliates.
Except to the extent set forth in the Amended and Restated
Reorganization Plan of Wang Laboratories, Inc. and Official Committee of
Unsecured Creditors, dated September 20, 1993 (the "Plan"), the Corporation
shall not, and shall not permit any subsidiary of the Corporation to, sell,
lease, transfer or otherwise dispose of any of its properties or assets to or
purchase any property or assets from, or enter into any contract, agreement,
understanding, loan, advance or guarantee with, or for the benefit of, an
affiliate (as such term is defined in the
-20-
<PAGE> 38
Securities Act of 1933, as amended) (an "Affiliate Transaction"), having a value
in excess of $1,000,000, except on terms that are no less favorable to the
Corporation or such subsidiary than those that would have been obtained in a
comparable transaction by the Corporation or such subsidiary with an unrelated
Person, as determined by a resolution of the Board of Directors of the
Corporation. An Affiliate Transaction shall not include the issuance or
redemption of the Intercompany Convertible Instruments or any transaction
between the Corporation and one or more of its Wholly-Owned Subsidiaries or
between Wholly-Owned Subsidiaries of the Corporation. "Wholly-Owned Subsidiary"
means a subsidiary of the Corporation, 100% of the capital stock of which (other
than qualifying shares owned by directors as required by, or deemed appropriate
under, applicable law) is owned by the Corporation or another Wholly-Owned
Subsidiary. "Intercompany Convertible Instruments" means the maximum of 50,000
units to be issued by the Corporation to its Wholly-Owned Subsidiaries, each
such unit convertible into shares of Common stock of the Corporation, as further
described in the Plan.
Section 13. Reports.
So long as the Exchangeable Preferred Stock remains outstanding, the
Corporation shall cause its annual reports to stockholders and any quarterly or
other financial reports and information furnished by it to stockholders pursuant
to the requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), to be mailed to the holders of the Exchangeable Preferred Stock
(contemporaneously with the mailing of such materials are mailed to the
Corporation's stockholders) at their addresses appearing on the books of the
Corporation. If the Corporation is not required to furnish annual or quarterly
reports to its stockholders pursuant to the Exchange Act, it shall cause its
financial statements, including any notes thereto and with respect to annual
reports, an auditors' report by a nationally recognized firm of independent
certified public accountants), a "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and such other information which
the Corporation would otherwise be required to include in annual and quarterly
reports filed under the Exchange Act, to be mailed to the holders of the
Exchangeable Preferred Stock, within 120 days after the end of each of the
Corporation's fiscal years and within 60 days after the end of each of its first
three fiscal quarters.
Section 14. Severability of Provisions. Whenever possible, each
provision hereof shall be interpreted in a manner as to be effective and valid
under applicable law, but if any provision hereof is held to be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating or otherwise
-21-
<PAGE> 39
adversely affecting the remaining provisions hereof. If a court of competent
jurisdiction should determine that a provision hereof would be valid or
enforceable if a period of time were extended or shortened or a particular
percentage were increased or decreased, then such court may make such change as
shall be necessary to render the provision in question effective and valid
under applicable law.
IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated
Certificate of Designation to be duly executed by its Senior Vice President,
General Counsel and Secretary this 14th day of April, 1995.
WANG LABORATORIES, INC.
By: /s/ Albert A. Notini
------------------------------
Name: Albert A. Notini
Title: Senior Vice President,
General Counsel and
Secretary
-22-
<PAGE> 1
Exhibit 4.4
WANG
NUMBER SHARES
0025
WANG LABORATORIES, INC.
11% EXCHANGEABLE PREFERRED STOCK
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
SEE REVERSE FOR CERTAIN
RESTRICTIONS AND DEFINITIONS
THIS CERTIFIES THAT
is the owner of
fully paid and non-assessable shares of the 11% EXCHANGEABLE PREFERRED STOCK,
$.01 par value, of
=========================== WANG LABORATORIES, INC. ==========================
transferable on the books of the Corporation in person or by duly authorized
attorney upon surrender of this certificate properly endorsed.
This certificate and the shares of stock represented hereby are issued and
held subject to the laws of the State of Delaware and to the Certificate of
Incorporation and the By-laws of the Corporation, as now or hereafter amended.
This certificate is not valid unless countersigned and registered by the
Transfer Agent and Registrar.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
executed by the fascimile signatures of its duly authorized officers and sealed
with the facsimile seal of the Corporation.
Dated
WANG LABORATORIES, INC.
CORPORATE
SEAL
1993
DELAWARE
/s/ R.L. BUCKINGHAM /s/ JOSEPH M. TUCCI
- ------------------------- ----------------------------
TREASURER CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
COUNTERSIGNED AND REGISTERED
AMERICAN STOCK TRANSFER & TRUST COMPANY
TRANSFER AGENT
AND REGISTRAR
AUTHORIZED SIGNATURE
<PAGE> 2
THE CORPORATION IS AUTHORIZED TO ISSUE MORE THAN ONE CLASS OF STOCK. THE
CORPORATION WILL FURNISH TO THE HOLDER UPON REQUEST WITHOUT CHARGE THE
DESIGNATIONS, PREFERENCES, POWERS, QUALIFICATIONS AND RELATIVE OR SPECIAL RIGHTS
OF EACH CLASS OF STOCK OR SERIES THEREOF AND THE QUALIFICATIONS, LIMITATIONS OR
RESTRICTIONS OF SUCH PREFERENCES OR RIGHTS.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM--as tenants in common UNIF GIFT MIN ACT-- Custodian
TEN ENT--as tenants by the entireties (Cust) (Minor)
JT TEN --as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act
in common (State)
</TABLE>
Addtional abbreviations may also be used though not in the above list.
For value received, ___ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------
- --------------------------------------------
_______________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING ZIP CODE OF ASSIGNEE.)
_______________________________________________________________________________
_______________________________________________________________________________
_________________________________________________________________________shares
of the stock represented by the within Certificate, and do hereby irrevocably
constitute and appoint
_______________________________________________________________________Attorney
to transfer the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated___________________________
_______________________________________________________
THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH
NOTICE: THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN
EVERY PARTICULAR WITHOUT ALTERATION OR ENLARGEMENT OR
ANY CHANGE WHATEVER
<PAGE> 1
EXHIBIT 5.1
[HALE AND DORR LETTERHEAD]
April 18, 1995
Wang Laboratories, Inc.
One Industrial Avenue
Lowell, MA 01851
Ladies and Gentlemen:
We have assisted in the preparation of the Registration Statement on
Form S-3 (the "Registration Statement") filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to the
registration of 1,500,000 shares of Common Stock, $.01 par value per share and
2,760,414.52 shares of 11% Exchangeable Preferred Stock (the "Shares"), of Wang
Laboratories, Inc., a Delaware corporation (the "Company"), issued to certain
selling stockholders (the "Selling Stockholders") of the Company pursuant to
the terms of Stock and Warrant Subscription Agreements between the Company and
each Selling Stockholder dated September 20, 1993 (the "Stock and Warrant
Subscription Agreements").
We have examined the Stock and Warrant Subscription Agreements, the
Certificate of Incorporation and By-Laws of the Company and all amendments
thereto and have examined and relied on the originals, or copies certified to
our satisfaction, of such records of meetings, written actions in lieu of
meetings, or resolutions adopted at meetings, of the directors of the Company
and such other documents and instruments as in our judgment are necessary or
appropriate to enable us to render the opinions expressed below.
In our examination of the foregoing documents, we have assumed
(i) the genuineness of all signatures and the authenticity of all documents
submitted to us as originals, (ii) the conformity to the originals of all
documents submitted to us as certified or photostatic copies, and (iii) the
authenticity of the originals of the latter documents.
Based upon and subject to the foregoing, we are of the opinion that
the Shares have been duly and validly authorized and issued and are fully paid
and non-assessable.
<PAGE> 2
Wang Laboratories, Inc.
April 18, 1995
Page 2
We hereby consent to the use of our name in the Registration
Statement and in the related Prospectus under the caption "Legal Matters" and
to the filing of this opinion as an exhibit to the Registration Statement.
Very truly yours,
HALE AND DORR
<PAGE> 1
EXHIBIT 12.1
WANG LABORATORIES INC.
CALCULATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Dollars in millions except ratios)
<TABLE>
<CAPTION>
Reorganized
Company Predecessor Company
------------------------------ -------------------------------------------------------
Six months Nine months Three months
ended Dec. 31, ended June 30, ended Sept. 30, For the year ended June 30,
1994 1994 1993 1993 1992 1991 1990
------------------------------ -------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
FIXED CHARGES
Interest Expense $ 1.6 $ 3.5 $1.2 $15.0 $44.6 $44.0 $ 79.9
Portion of rent expense
representative of interest 4.3 5.6 2.7 9.7 19.1 33.5 47.0
----------------------------- -------------------------------------------------------
5.9 9.1 3.9 24.7 63.7 77.5 126.9
Preferred dividend requirement 7.3 7.5 -- -- -- -- --
----------------------------- -------------------------------------------------------
Combined fixed charges and
preferred dividend $13.2 $16.6 $3.9 $24.7 $63.7 $77.5 $126.9
============================= =======================================================
EARNINGS
Income (loss) from continuing
operations before income
taxes, discontinued operations
fresh-start reporting adjustment
and extraordinary item 15.1 20.4 (22.6) (197.2) (346.5) (368.8) (577.3)
Fixed charges per above 5.9 9.1 3.9 24.7 63.7 77.5 126.9
----------------------------- -------------------------------------------------------
$21.0 $29.5 ($18.7) ($172.5) ($282.8) ($291.3) ($450.4)
============================= =======================================================
Ratio of earnings to combined
fixed charges and preferred
dividends 1.6 1.8 -- -- -- -- --
============================= =======================================================
Coverage deficiency -- -- ($18.7) ($172.5) ($282.8) ($291.3) ($450.4)
============================= =======================================================
</TABLE>
<PAGE> 1
EXHIBIT 23.1
------------
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related prospectus of Wang Laboratories,
Inc. for the registration of 1,500,000 shares of its Common Stock and
2,760,414.52 shares of its 11% Exchangeable Preferred Stock and to the
incorporation by reference therein of our report dated July 27, 1994 except
for Note K, as to which the date is September 19, 1994, with respect to the
consolidated financial statements and schedules of Wang Laboratories, Inc.
included in its Annual Report (Form 10-K) for the year ended June 30, 1994,
filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Boston, Massachusetts
April 12, 1995
<PAGE> 1
EXHIBIT 23.3
------------
INDEPENDENT AUDITORS' CONSENT
- -----------------------------
We consent to incorporation by reference in this Registration Statement of Wang
Laboratories, Inc. on Form S-3 of our report on the financial statements of the
CS Business, W/I Business and Subsidiaries of Bull HN Information Systems Inc.
dated December 28, 1994, appearing in Amendment No. 1 to Current Report of Wang
Laboratories, Inc. on Form 8-K/A dated January 31, 1995 and to the reference to
us under the heading "Experts" in the Prospectus, which is part of this
Registration Statement.
DELOITTE & TOUCHE LLP
Boston, Massachusetts
April 12, 1995
