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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 14, 1996
REGISTRATION STATEMENT NO. 333-06611
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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WANG LABORATORIES, INC.
(Exact name of registrant as specified in its charter)
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<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>
600 TECHNOLOGY PARK DRIVE
BILLERICA, MASSACHUSETTS 01821
(508) 967-5000
(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.
600 TECHNOLOGY PARK DRIVE
BILLERICA, MASSACHUSETTS 01821
(508) 967-5000
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent For Service)
COPIES TO:
<TABLE>
<S> <C>
JOHN A. BURGESS, ESQ. DAVID T. BREWSTER, ESQ.
SUSAN W. MURLEY, ESQ. SKADDEN, ARPS, SLATE, MEAGHER & FLOM
HALE AND DORR ONE BEACON STREET
60 STATE STREET BOSTON, MASSACHUSETTS 02108
BOSTON, MASSACHUSETTS 02109 (617) 573-4800
(617) 526-6000
</TABLE>
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. / /
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/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registrations statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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.
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<PAGE> 2
PROSPECTUS
2,875,000 DEPOSITARY SHARES EACH REPRESENTING A 1/20 INTEREST
IN A SHARE OF 6 1/2% SERIES B CUMULATIVE CONVERTIBLE PREFERRED STOCK
143,750 SHARES OF 6 1/2% SERIES B CUMULATIVE CONVERTIBLE PREFERRED STOCK,
$.01 PAR VALUE
5,411,900 SHARES OF COMMON STOCK,
$.01 PAR VALUE
WANG LABORATORIES, INC.
The 2,875,000 Depositary Shares (the "Depositary Shares") of Wang
Laboratories, Inc. ("Wang" or the "Company"), the 143,750 shares of 6 1/2%
Series B Cumulative Convertible Preferred Stock, $.01 par value per share (the
"Series B Preferred Stock"), of the Company represented by the Depositary Shares
and the 5,411,900 shares of Common Stock, $.01 par value per share (the "Common
Stock" and, together with the Depositary Shares and the Preferred Stock, the
"Securities"), of the Company issuable upon conversion of the Series B Preferred
Stock may be offered from time to time for the account of certain holders of the
Securities (the "Selling Holders") as described under "Selling Holders." The
Selling Holders may from time to time sell the Securities offered hereby in the
over-the-counter market, in negotiated transactions or through a combination of
such methods of sale, at market prices prevailing at the time of sale, at prices
related to then prevailing market prices or at negotiated prices. See "Plan of
Distribution."
The Depositary Shares were originally issued by the Company on February 27,
1996 in a transaction exempt from registration under the Securities Act of 1933,
as amended (the "Securities Act"), and each Depositary Share represents a 1/20
interest in a share of Series B Preferred Stock, entitling the holder thereof,
proportionately, to all the rights and preferences of the Series B Preferred
Stock represented thereby (including dividend, voting, conversion, redemption
and liquidation rights and preferences). The Series B Preferred Stock
represented by the Depositary Shares is deposited with American Stock Transfer &
Trust Company (the "Depositary"), and, unless withdrawn, will not trade
separately from the Depositary Shares (see "Description of Depositary Shares --
Withdrawal of Preferred Stock" and -- "Amendment and Termination of the Deposit
Agreement").
The Series B Preferred Stock represented by the Depositary Shares is
convertible at the option of the holder at any time, unless previously redeemed,
into Common Stock initially at the rate of 37.6471 shares of Common Stock for
each share of Series B Preferred Stock (equivalent to a conversion price of
$26.5625 per share of Common Stock or a rate of 1.8824 shares of Common Stock
for each Depositary Share). The initial conversion price is subject to
adjustment in certain events. See "Description of Series B Preferred Stock."
The Series B Preferred Stock (and related Depositary Shares) may not be
redeemed through March 1, 1999. Thereafter, the Series B Preferred Stock (and
related Depositary Shares) may be redeemed at the option of the Company, in
whole or in part, at specified redemption prices plus accrued and unpaid
dividends through the redemption date. At any time the Series B Preferred Stock
is redeemed, the Depositary Shares representing the Series B Preferred Stock
will be redeemed at a price per share equal to 1/20 of the redemption price per
share of Series B Preferred Stock. See "Description of Series B Preferred Stock"
and "Description of Depositary Shares."
Cash dividends on the Series B Preferred Stock are cumulative at the rate of
$65 per annum per share ($3.25 per annum per Depositary Share), payable
quarterly in arrears, commencing on May 1, 1996. Each share of Series B
Preferred Stock represents the right to receive $1,000 ($50 per Depositary
Share), plus accrued and unpaid dividends, upon liquidation of the Company. The
Series B Preferred Stock ranks junior to the Company's 4 1/2% Series A
Cumulative Convertible Preferred Stock and senior to the Common Stock with
respect to payment of dividends or upon liquidation, dissolution or winding up
of the Company.
The Depositary Shares are eligible for trading by "qualified institutional
buyers" in the Private Offerings, Resales and Trading through Automated Linkages
("PORTAL") Market. The Common Stock is listed on the Nasdaq National Market
under the symbol "WANG." On August 13, 1996, the last reported sale price of the
Common Stock on the Nasdaq National Market was $18 7/8 per share.
The Company will not receive any of the proceeds from the sale by the
Selling Holders of the Securities offered hereby.
PROSPECTIVE INVESTORS SHOULD CAREFULLY CONSIDER THE MATTERS DISCUSSED UNDER
"RISK FACTORS" BEGINNING ON PAGE 4.
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 August 14, 1996.
<PAGE> 3
ADDITIONAL INFORMATION
The Company is 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
Securities and Exchange Commission (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, New York, New York 10048, and 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., 1735 K Street, N.W., Washington, D.C. 20006. In
addition, the Company is required to file electronic versions of these documents
with the Commission through the Commission's Electronic Data Gathering,
Analysis, and Retrieval (EDGAR) system. The Commission maintains a World Wide
Web site at http://www.sec.gov that contains reports, proxy and information
statements and other information regarding registrants that file electronically
with the Commission.
The Company has filed with the Commission a Registration Statement on Form
S-3 (together with all amendments, exhibits and schedules thereto, the
"Registration Statement") under the Securities Act with respect to the
Securities 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
Securities, 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 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.
"Wang" is a registered trademark 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, 1995;
(2) The Company's Quarterly Report on Form 10-Q, as amended by a Form
10-Q/A, for the quarter ended September 30, 1995;
(3) The Company's Quarterly Report on Form 10-Q for the quarter ended
December 31, 1995;
(4) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996;
(5) The Company's Current Reports on Form 8-K dated July 21, 1995,
December 7, 1995, January 23, 1996, February 28, 1996, April 4, 1996, May
10, 1996 and August 13, 1996; and
(6) 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 Securities 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
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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, 600 Technology Park
Drive, Billerica, Massachusetts, 01821, telephone (508) 967-5000.
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.
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RISK FACTORS
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 Securities offered hereby.
Brief Operating History Subsequent to Chapter 11 Reorganization;
Noncomparability of Historical Financial Information. On September 30, 1993,
the Company's reorganization plan (the "Reorganization Plan") was confirmed
after the Company had operated under Chapter 11 of the U.S. Bankruptcy Code
("Chapter 11") since August 18, 1992. 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, could only 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, 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.
Implementation of Business Strategy. The Company's strategy is to build
upon internal growth in its targeted segments of the software and information
technology services markets with strategic alliances and acquisitions designed
to complement Wang's core competencies. The Company's ability to implement this
strategy fully over the long term, and the ultimate success of this strategy,
are subject to a broad range of uncertainties and contingencies, many of which
are beyond the Company's control. There can be no assurance that the Company
will be able to implement required strategic relationships or acquisitions, or,
if entered into, that such strategic relationships or acquisitions will in fact
further the implementation of the Company's business strategy. The Company's
existing strategic relationships with Microsoft Corporation ("Microsoft") and
Kodak Business Imaging Systems ("Kodak") are subject to a variety of
uncertainties, including possible evolutions in technology, business
relationships or strategic plans of the parties which may, in the future, result
in the termination of, or a change in the nature of or in the expectations with
respect to, such strategic relationships. The Company's relationship with
Microsoft also includes certain contractual obligations, which, if not
satisfied, could allow Microsoft to terminate all or a portion of the
relationship. In addition, there can be no assurance that any of the Company's
acquisitions or strategic alliances will result in long-term benefits to the
Company, or, with respect to one or more significant acquisitions, that the
Company and its management will be able to effectively assimilate and manage the
resulting business. The Company evaluates such transactions regularly, and one
or more such transactions could occur at any time.
Currently, a significant portion of the Company's revenues are attributable
to the servicing, upgrading and enhancement of its installed base of VS and
other traditional proprietary systems, which revenues the Company expects will
continue to decline during the current fiscal year at the rate of 20-25% per
annum. As the Company's proprietary revenues decline, individual customer losses
may have a significant effect on the rate of decline. The Company's continued
growth is predicated on the business strategy described above (including the
acquisition of new customer service and network integration businesses and
continued expansion of its software business) more than offsetting the decline
in revenues from traditional sources. To the extent that there are delays and
difficulties in the implementation of the Company's strategy, or that the
decline in revenues from traditional sources is more rapid than anticipated, the
Company's results of operations and the price of its equity securities could be
adversely affected.
Competition. The information technology industry, including the work
management software and service and support markets, is intensely competitive
and undergoing rapid change. Competition is vigorous in all parts of the
worldwide market for work management software, software for the expanding
Internet marketplace and office-related software and services. The Company's
competitors are numerous and vary
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widely in market position, size and resources. Some have substantially greater
resources, including larger research and engineering staffs and larger marketing
organizations than the Company. Competitors differ significantly depending upon
the market, customer and geographic area involved. In many of the Company's
markets, traditional computer hardware companies provide the most significant
competition. The Company must also compete, particularly in the market for open
systems application software and imaging technology, with newer, smaller
businesses with more limited resources, but which have, in a number of cases,
been able to develop and bring to market significant products with highly
competitive technological features. There can be no assurance that the Company
will have the technical resources to be able to introduce competitive software
products on a timely basis, invest in research and development activity on the
same basis as its competitors, or otherwise be able to develop new software and
enhancements to current software on a timely basis. In addition, the third-party
maintenance and support market is extremely competitive with low barriers to
entry, and many other organizations, including hardware-independent service
organizations, compete for the provision of maintenance and service to users. In
addition, firms not now in direct competition with the Company, including large
software development and sales companies, may in the future introduce competing
products or services.
Possible Volatility of Price of Securities. Factors such as announcements
of technological innovations or new products by the Company, its competitors or
other third parties, quarterly variations in the Company's results of
operations, and changes in overall industry conditions may all affect the market
prices of the Securities and cause them to fluctuate significantly. In addition,
because the Company does not have a significant history of financial results
since its reorganization, and because post-reorganization results are not
comparable with those prior to and during the Chapter 11 proceeding,
uncertainties concerning the financial performance of the Company on a sustained
basis may increase the volatility of the market prices of the Securities.
Furthermore, the market prices of the stocks of many high technology companies
have experienced wide fluctuations that have not necessarily been related to the
operating performance of the individual companies.
International Operations. International revenues in recent years have
accounted for approximately one-half of the Company's total revenues. The
Company's international operations are subject to all of the risks normally
associated with international sales, including changes in regulatory compliance
requirements, compliance costs associated with International Standards
Organization (ISO) 9000 quality control standards, special standards
requirements, exposure to currency fluctuations, tariffs and other barriers,
difficulties in staffing and managing international subsidiary operations,
potentially adverse tax consequences and country-specific product requirements.
While the Company attempts to reduce its currency exposure, there can be no
assurance that it will not experience significant losses on international
currency fluctuations. In addition, effective intellectual property protection
may not be available in every foreign country in which the Company's products
are distributed.
Dependence on Government Revenue. In recent years the Company has derived
approximately 15% of its revenues from branches or agencies of the United States
government, and derived significant additional revenues from agencies of various
foreign governments. A significant portion of the Company's United States
federal government revenues comes from orders under government contract or
subcontract awards, which involves the risk that the failure to obtain an award,
or a delay on the part of the government agency in making the award or of
ordering or paying for products under an awarded contract, could have an impact
on the financial performance of the Company for the period in question. Other
risks involved in government sales are the larger discounts (and thus lower
margins) often involved in government sales, the unpredictability of funding for
various government programs, and the ability of the government agency to
unilaterally terminate the contract. Revenues from the United States government
and government agencies are received under a number of different contracts and
from a number of different government agencies and departments. Most sources of
government revenues are independent of each other, although occasionally orders
under one contract or from one government agency may be linked with orders under
another contract or from another agency (so that if one order or contract were
cancelled, it is likely that the other would also be cancelled).
Superior Rights of Preferred Stock. The Board of Directors of the Company
is authorized under the Company's Certificate of Incorporation, without
stockholder approval, to issue from time to time up to an
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aggregate of 5,000,000 shares of preferred stock, $.01 par value per share (the
"Preferred Stock"), in one or more series. Of the 5,000,000 authorized shares of
Preferred Stock, 90,000 shares have been designated as 4 1/2% Series A
Cumulative Convertible Preferred Stock (the "Series A Preferred Stock"), all of
which shares have been issued, and 143,750 shares have been designated as Series
B Preferred Stock, all of which shares have been issued and are represented by
the Depositary Shares offered hereby. The rights of holders of Common Stock
(including the Common Stock offered hereby issuable upon conversion of the
Series B Preferred Stock represented by the Depositary Shares) are subject to,
and may be adversely affected by, the rights of holders of the Series A
Preferred Stock and the Series B Preferred Stock represented by the Depositary
Shares and any other series of Preferred Stock that the Company may designate
and issue in the future. In particular, before any payment or distribution is
made to holders of Common Stock upon the liquidation, dissolution or winding-up
of the Company, holders of both the Series A Preferred Stock and the Series B
Preferred Stock are entitled to receive a liquidation preference of $1,000 per
share, plus accrued and unpaid dividends. The Series A Preferred Stock and the
Series B Preferred Stock represented by the Depositary Shares also have various
rights, preferences and privileges with respect to dividends, redemption,
voting, conversion and registration under the Securities Act.
Potential Dilution Attributable to Intercompany Convertible Instruments,
Privately Placed Stock and Warrants. The Company may from time to time, in its
sole discretion, issue an aggregate of up to 50,000 units of Intercompany
Convertible Instruments to certain of its foreign subsidiaries in order to
increase the capitalization of such subsidiaries and help the Company maintain
its worldwide network of sales and service operations. At the present time,
49,225 Intercompany Convertible Instruments have been issued. The Intercompany
Convertible Instruments are redeemable for cash at $1,000 per unit by the
Company at any time and convertible at the election of the holder into $1,000
worth of Common Stock per unit at a conversion price equal to the greater of the
then market price per share of the Company's Common Stock or $4.00. Also, in
addition to the 5,411,900 shares of Common Stock offered hereby issuable upon
conversion of the Series B Preferred Stock represented by the Depositary Shares,
approximately 3,913,100 shares of Common Stock are issuable upon conversion of
the outstanding shares of Series A Preferred Stock. In addition, the Company has
issued and there are outstanding 7,500,000 warrants to purchase shares of Common
Stock at an exercise price of $21.45 per share (the "Warrants"). The Warrants
were issued under the Company's Reorganization Plan to holders of equity
interests in the predecessor company. Any conversion of the Intercompany
Convertible Instruments or the Preferred Stock or exercise of the Warrants could
dilute the relative interest of holders of outstanding Common Stock.
Anti-takeover Provisions. The Company's Certificate of Incorporation and
By-Laws and the Delaware General Corporate Law contain provisions which could
have the effect of delaying or preventing transactions that might result in a
change in control of the Company, including transactions in which stockholders
might otherwise receive a premium for their shares over the then-current market
price, and may limit the ability of stockholders to approve transactions that
they deem to be in their best interests.
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THE COMPANY
Wang develops, markets and supports software and offers services that
define, automate, manage and measure critical business processes. The Company
develops and markets software for applications in work management (workflow,
imaging, computer output to laser disk (COLD) and document and storage
management), and provides integration and support services for office networks
worldwide. The Company's software and services enable its customers to realize
improvements in productivity, quality and responsiveness through the definition,
automation, management and measurement of critical business processes. The
Company's customers include businesses, institutions and governments of varying
sizes around the world.
Business Strategy
The Company focuses on particular segments of the software and services
industries in which the Company enjoys substantial sales, research and
development and marketing expertise and which, in the Company's judgment, offer
significant growth opportunities. The Company's strategy is, through internal
development and acquisition, to build upon its position in the work management
software solutions market and to strengthen its position as a worldwide provider
of support and value-added network integration services for office systems. The
Company believes that this approach will build on its existing technological
strengths and customer base, and position the Company to respond effectively to
evolving changes in the worldwide market for information services.
Software
Wang is a leading provider of work management software for client/server
applications which permit customers to track, manage and improve their critical
business processes. The Company's workflow, imaging and COLD software allows
customers to define, automate, manage and measure the flow of work, add imaging
to new or existing applications and integrate images, documents and computer
data into business processes. The software operates on open, client/server
platforms and supports the needs of an enterprise, from individual desktops to
distributed work groups to mission-critical production applications. Principal
markets for the Company's software include: banking and financial services;
insurance; government; and enterprises with structured business processes.
Wang has sought to leverage and enhance its strength in work management
software through strategic alliances and acquisitions targeted to complement
Wang's core competencies. In April 1995, Wang and Microsoft announced a
worldwide multi-year technical, service and marketing alliance pursuant to which
Wang was designated as Microsoft's preferred vendor of imaging and workflow
systems, and as an authorized provider of end-user support services for
Microsoft products. As part of the alliance, Microsoft purchased $90.0 million
face amount of Wang's Series A Preferred Stock for $84.0 million.
In addition, in March 1995, the Company and Kodak Business Imaging Systems
("Kodak"), a division of Eastman Kodak Company, announced a strategic alliance
which provides for the distribution by Kodak of Wang's imaging, workflow and
COLD software on a private label basis, and which provides Wang access to
advanced Kodak technology in areas of optical peripherals, scanners and color
imaging.
In July 1995, Wang acquired Sigma Imaging Systems, Inc. ("Sigma"), a
developer of state-of-the-art workflow and imaging software for paper-intensive
businesses. This software provides customers the scalable, enterprise-wide
processing power required for high-volume, image-based transaction processing
applications. The Sigma software line is used in many of the largest multi-site
imaging and workflow systems currently in commercial use on Windows NT. The
acquisition by Wang of the Sigma software line is allowing Wang to accelerate
development and commercialization of Windows NT versions of its imaging and
workflow server software.
In December 1995, the Company acquired Avail Systems Corporation ("Avail"),
a developer of software that automates the storage, relocation, archiving and
retrieval of information on a client/server network. In early 1995, prior to the
acquisition of Avail by Wang, Avail and Microsoft announced an agreement to
include Avail's storage management technology in the next generation of
Microsoft's Windows NT operating system.
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In connection with the acquisition, Wang expanded and enhanced the Company's
alliance with Microsoft. Wang believes that the acquisition of Avail positions
it to become a leader in the high-growth network storage management market and,
coupled with the Sigma imaging technology, enables Wang to expand and enhance
its work management software offerings.
Services
Wang is a leading independent provider of maintenance and support services,
network integration, installation, training and other value-added services to
customers worldwide. As part of its strategy in the services market, the Company
targets growth segments of the market, including services for desktop systems
and networking systems and service and support for high-end UNIX systems and
network integration. The Company provides support services for customers on
existing proprietary mainframe and mid-range systems, including the Company's VS
minicomputers and the GCOS platform of Compagnie des Machines Bull. In addition,
the Company is continuing to build upon its existing VS and GCOS customer base,
to support customer transition strategies from existing proprietary systems to
client/server applications and to service the needs of its VS minicomputer
customers by offering upgrade software, service and open system coexistence and
migration products. Principal markets for the Company's services include:
governments; hardware and software producers desiring an international service
organization; and businesses with large or expanding computer networks.
Wang and its authorized distributors support more than 3,500 third-party
products in approximately 130 countries through a worldwide network of customer
engineers, telephone "help desk" support centers and logistics operations. The
Company offers a range of services and support for client/server applications,
including users of numerous desktop systems (AST, Dell, Leading Edge, NEC,
Packard Bell, Printronix and Zenith Data Systems), users of networking products
(Banyan, Bay Networks and Novell) and end-user help desk services (Leading Edge,
NEC, Packard Bell and Tricord). Under the Company's alliance with Microsoft,
Wang was designated an authorized provider of end-user support services for
Microsoft products, and has provided support services for Windows 95 users in
Australia since the product's introduction in August 1995.
In October 1995, the Company built upon its strength in the solutions
integration business through the acquisition of BISS Limited ("BISS"), a United
Kingdom company which specializes in the design, implementation and support of
network computing solutions. The Company believes that, with this acquisition,
it is one of the largest independent network integrators in the United Kingdom.
The new organization is focusing on developing network infrastructure solutions,
including local area network ("LAN") and wide area network interconnection,
client/server architecture and network management systems.
On May 3, 1996, the Company acquired Dataserv Computer Maintenance, Inc.
("Dataserv") from BellSouth Corporation for $28.5 million in cash. Dataserv
provides customers with computer maintenance and support services for
point-of-sale retail scanners and registers and industry-standard servers and
desktop products, as well as application helpdesk and network integration
services. Dataserv is focused on servicing companies in the banking and
financial services, insurance, retail and manufacturing industries.
On July 24, 1996, the Company agreed to acquire I-NET, Inc. ("I-NET"), a
network and desktop outsourcing company, for $167 million in cash and notes,
plus assumed liabilities. I-NET employs more than 3,000 professionals located in
50 offices in the United States and abroad. Wang expects that the combined
company will be able to offer its customers mission-critical network support
services, as well as network design and implementation, network integration and
help desk services. The transaction is expected to close by the end of the first
quarter of fiscal 1997, subject to the satisfaction of certain closing
conditions.
General
Wang's products and services are offered by a worldwide sales and marketing
organization. The Company's direct sales and marketing organization is
supplemented by independent distributors in approximately 100 countries. To
further support its worldwide direct sales and distributor organization, the
Company has additional channels of distribution, including value-added resellers
("VARs") and software partners who
8
<PAGE> 10
incorporate their proprietary application software into the Company's software
or integrate their software applications with those of the Company.
Wang Laboratories, Inc. (together with its subsidiaries, "Wang" or the
"Company") is a Delaware corporation. The Company's principal office is located
at 600 Technology Park Drive, Billerica, Massachusetts 01821 and its telephone
number is (508) 967-5000.
<TABLE>
RATIO OF EARNINGS TO COMBINED FIXED
CHARGES AND PREFERRED STOCK DIVIDENDS
Set forth below is the ratio of earnings to combined fixed charges and
preferred stock dividends for the nine months ended March 31, 1996, the year
ended June 30, 1995, the nine months ended June 30, 1994, the three months ended
September 30, 1993, and the years ended June 30, 1993, 1992 and 1991. For
purposes of computing the ratio, (i) earnings consist of income (loss) from
continuing operations before income taxes, discontinued operations,
"fresh-start" reporting adjustment, extraordinary item and fixed charges and
(ii) fixed charges consist of interest on debt, that portion of rent expense
that the Company believes to be representative of interest and the preferred
stock dividend requirement. The Company adopted "fresh-start" reporting, as
required by Statement of Position 90-7, "Financial Reporting by Entities in a
Reorganization Under the Bankruptcy Code" issued by the American Institute of
Certified Public Accountants, effective September 30, 1993, in connection with
its reorganization under Chapter 11 of the Bankruptcy Code (the
"Reorganization").
<CAPTION>
REORGANIZED COMPANY PREDECESSOR COMPANY
----------------------------------------------- ----------------------------------------
NINE MONTHS NINE MONTHS THREE MONTHS
ENDED YEAR ENDED ENDED ENDED
MARCH 31, 1996 JUNE 30, 1995 JUNE 30, 1994 SEPTEMBER 30, 1993 1993 1992 1991
--------------- -------------- -------------- ------------------- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to combined
fixed charges.................. (1) (1) 1.7 (1) (1) (1) (1)
<FN>
- ---------------
(1) Earnings were inadequate during these periods to cover combined fixed
charges and preferred stock dividends. The dollar amount of the deficiency
at March 31, 1996, June 30, 1995, September 30, 1993, June 30, 1993, June
30, 1992, and June 30, 1991 was $18.5 million, $48.1 million, $18.7 million,
$172.5 million, $282.8 million and $291.3 million, respectively. The dollar
amount of the deficiencies for the periods before October 1, 1993 were
computed using financial information prior to the Reorganization.
</TABLE>
USE OF PROCEEDS
The Company will not receive any proceeds from the sale by the Selling
Holders of the Securities offered hereby.
9
<PAGE> 11
SELLING HOLDERS
The Depositary Shares were initially issued and sold pursuant to a Purchase
Agreement dated as of February 21, 1996, between the Company, on the one hand,
and Lehman Brothers Inc., BT Securities Corporation and Salomon Brothers Inc
(together, the "Initial Purchasers"), on the other hand. The Selling Holders
acquired the Depositary Shares (i) from the Initial Purchasers in transactions
complying with Rule 144A, Regulation D or Regulation S under the Securities Act
or (ii) in other permitted resale transactions exempt from registration under
the Securities Act from the Initial Purchasers or holders who acquired the
Depositary Shares from the Initial Purchasers or other prior holders thereof.
<TABLE>
Except as otherwise indicated, the table below sets forth certain
information with respect to the Selling Holders and the Depositary Shares as of
June 5, 1996. The term Selling Holders includes the beneficial owners of the
Securities listed below and their transferees, pledgees, donees or other
successors. Other than as a result of the ownership of Securities indicated
below, none of the Selling Holders has had any material relationship with the
Company or any of its affiliates within the past three years.
<CAPTION>
NUMBER/ NUMBER OF
PERCENTAGE OF SHARES OF COMMON
NUMBER OF NUMBER OF DEPOSITARY SHARES STOCK
NAME OF DEPOSITARY SHARES DEPOSITARY SHARES BENEFICIALLY OWNED BENEFICIALLY
SELLING HOLDER BENEFICIALLY OWNED OFFERED HEREBY(1) AFTER OFFERING(1) OWNED
- ------------------------------- ------------------- ------------------ ------------------- ----------------
<S> <C> <C> <C> <C>
Allstate Insurance Company..... 50,000 50,000 -- --
American Investors Life
Insurance Company, Inc....... 7,500 7,500 -- --
Bancroft Convertible Fund,
Inc.......................... 7,500 7,500 -- --
Bond Fund Series -- Oppenheimer
Bond Fund for Growth......... 60,000 60,000 -- --
BT Securities Corp............. 105,100 105,100 -- 23,216
Delta Air Lines Master
Trust(2)..................... 15,000 15,000 -- --
Ellsworth Convertible Growth
and Income Fund, Inc......... 7,500 7,500 -- --
Fidelity Financial Trust:
Fidelity Convertible
Securities Fund(3)........... 42,000 42,000 -- --
Fidelity Charles Street Trust:
Fidelity Asset Manager(3).... 46,100 46,100 -- 125,000
Fidelity Charles Street Trust:
Fidelity Asset Manager:
Growth(3).................... 12,400 12,400 -- 133,800
Fidelity Charles Street Trust:
Fidelity Asset Manager:
Income(3).................... 2,500 2,500 -- 4,705
Fidelity Capital Trust:
Fidelity Value Fund(3)....... 67,500 67,500 -- 1,268,651
Fidelity Devonshire Trust:
Fidelity Equity-Income
Fund(3)...................... 53,600 53,600 -- --
Fidelity Financial Trust:
Fidelity Equity-Income II
Fund(3)...................... 32,000 32,000 -- 60,224
Fidelity Securities Fund:
Fidelity Growth & Income
Fund(3)...................... 69,700 69,700 -- 237,900
Fidelity Devonshire Trust:
Fidelity Mid-Cap Stock
Fund(3)...................... 5,300 5,300 -- 70,900
Fidelity Management Trust
Company on behalf of accounts
managed by it(4)............. 8,600 8,600 -- 105,100
Franklin Investors Securities
Trust Convertible Securities
Fund......................... 20,000 20,000 -- --
General Motors Hourly Rate
Employees Pension Plan....... 80,000 80,000 -- --
Golden Rule Insurance
Company(5)................... 40,000 40,000 -- --
Lehman Brothers(6)............. 117,500 117,500 -- --
</TABLE>
10
<PAGE> 12
<TABLE>
<CAPTION>
NUMBER/ NUMBER OF
PERCENTAGE OF SHARES OF COMMON
NUMBER OF NUMBER OF DEPOSITARY SHARES STOCK
NAME OF DEPOSITARY SHARES DEPOSITARY SHARES BENEFICIALLY OWNED BENEFICIALLY
SELLING HOLDER BENEFICIALLY OWNED OFFERED HEREBY(1) AFTER OFFERING(1) OWNED
- ------------------------------- ------------------- ------------------ ------------------- ----------------
<S> <C> <C> <C> <C>
Lipco Partners, L.P............ 206,000 206,000 -- --
Nancy M. McNeil................ 460 460 -- --
OCM Convertible Trust(2)....... 17,700 17,700 -- --
OCM Convertible Limited
Partnership.................. 4,500 4,500 -- --
Peoples Security Life
Insurance.................... 18,500 18,500 -- --
Pimco Equity Income Fund....... 105,000 105,000 -- --
Salomon Brothers(7)............ 36,450 36,450 -- --
State of Connecticut(8)........ 16,000 16,000 -- --
State Employees' Retirement
Fund of the State of
Delaware(2).................. 5,200 5,200 -- --
Societe Generale Securities
Corp......................... 15,000 15,000 -- --
Any other holder of Depositary
Shares or future transferee
from any such holder......... 1,600,390 1,600,390 -- --
Total.......................... 2,875,000 2,875,000 -- 2,029,496
<FN>
- ---------------
(1) Assumes that all of the Depositary Shares are sold.
(2) Reflects ownership as of July 25, 1996.
(3) Each of such entities is either an investment company or a portfolio of an
investment company registered under Section 8 of the Investment Company Act
of 1940, as amended, or a private investment account advised by Fidelity
Management & Research Company ("FMR Co."). FMR Co. is a Massachusetts
corporation and an investment advisor registered under Section 203 of the
Investment Advisers Act of 1940, as amended, and provides investment
advisory services to each of such entities mentioned above, and to other
registered investment companies and to certain other funds which are
generally offered to a limited group of investors. FMR Co. is a wholly-owned
subsidiary of FMR Corp. ("FMR"), a Massachusetts corporation.
(4) Shares indicated as owned by such entity are owned directly by various
private investment accounts, primarily employee benefit plans for which
Fidelity Management Trust Company ("FMTC") serves as trustee or managing
agent. FMTC is a wholly-owned subsidiary of FMR and a bank as defined in
Section 3(a)(6) of the Securities Exchange Act of 1934, as amended.
(5) Reflects ownership as of August 9, 1996.
(6) Reflects ownership as of July 18, 1996.
(7) Reflects ownership as of August 2, 1996.
(8) Reflects ownership as of July 23, 1996.
</TABLE>
The preceding table has been prepared based upon information furnished to
the Company by the Depositary or by or on behalf of the Selling Holders.
Additional information concerning ownership of the Securities offered hereby
rests with certain holders of the Securities who are not named in the preceding
table, with whom the Company believes it has no affiliation and from whom the
Company has received no response to its request for such information.
In view of the fact that Selling Holders may offer all or a portion of the
Depositary Shares or shares of Common Stock held by them pursuant to the
offering contemplated by this Prospectus, and because this offering is not being
underwritten on a firm commitment basis, no estimate can be given as to the
number of Depositary Shares or shares of Common Stock that will be held by the
Selling Holders after completion of the offering made hereby.
Information concerning the Selling Holders may change from time to time and
any such changed information will be set forth in supplements to this Prospectus
if and when necessary. In addition, the price at which the Series B Preferred
Stock represented by the Depositary Shares is convertible into Common Stock is
11
<PAGE> 13
subject to adjustment under certain circumstances. Accordingly, the number of
shares of Common Stock issuable upon conversion thereof offered hereby may
increase or decrease.
As noted above, the Series B Preferred Stock represented by the Depositary
Shares is deposited with the Depositary and, unless withdrawn (see "Description
of Depositary Shares -- Withdrawal of Preferred Stock" and -- "Amendment and
Termination of the Deposit Agreement"), will not trade separately from the
Depositary Shares.
PLAN OF DISTRIBUTION
The Securities covered hereby may be offered and sold from time to time by
the Selling Holders. The Selling Holders 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, or through a combination of such methods of sale, at market prices
prevailing at the time of sale, prices related to the then prevailing market
price or at negotiated prices, including pursuant to one or more of the
following methods: (i) purchases by a broker-dealer as principal and resale by
such broker or dealer for its account pursuant to this Prospectus; (ii) ordinary
brokerage transactions and transactions in which the broker solicits purchasers;
and (iii) 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 Holders may also pledge
Securities as collateral for margin accounts and such Securities could be resold
pursuant to the terms of such accounts. In effecting sales, broker-dealers
engaged by the Selling Holders 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 Holders 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 Holders in connection with the offering of
certain of the shares by Selling Holders.
The Company has agreed to indemnify the Selling Holders against certain
liabilities, including certain liabilities under the Securities Act, in
connection with the sale of shares pursuant to this Prospectus. Additionally,
the Company will pay the expenses incurred in connection with this offering,
other than brokerage commissions, underwriting fees or expenses and legal or
accounting expenses incurred by the Selling Holders.
In offering the Securities covered hereby, the Selling Holders and any
broker-dealers and any other participating broker-dealers who execute sales for
the Selling Holders 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 Holders and the compensation of such broker-dealer may be deemed to be
underwriting discounts and commissions.
The Company has advised the Selling Holders that during such time as they
may be engaged in a distribution of Securities included herein they are required
to comply with Rules 10b-6 and 10b-7 under the Exchange Act 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 Securities 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. 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 by the Selling Holders of the shares covered hereby
will terminate on the earlier of (i) such date that permits the Registration
Statement to be usable for a period of three years from February 27, 1996 or
(ii) the date on which all Securities offered hereby have been sold by the
Selling Holders. The Selling Holders have agreed to discontinue disposition of
the Securities covered hereby in
12
<PAGE> 14
certain circumstances, including upon receipt of notice from the Company that
there exists material undisclosed information which the Company has a bona fide
business purpose for keeping confidential.
DESCRIPTION OF SERIES B PREFERRED STOCK
The summary of terms of the Series B Preferred Stock contained in this
Registration Statement does not purport to be complete and is subject to, and
qualified in its entirety by, the complete text of the Certificate of
Incorporation and the Certificate of Designations of the Series B Preferred
Stock (the "Series B Certificate of Designations"), which are hereby
incorporated by reference and made a part hereof. The Certificate of
Incorporation and the Series B Certificate of Designations are available from
the Company. See "Information Incorporated by Reference."
GENERAL
The Company has authorized the issuance of 143,750 shares of Series B
Preferred Stock, all of which are issued and outstanding. The holders of the
Series B Preferred Stock have no preemptive rights with respect to any shares of
capital stock of the Company or any other securities of the Company convertible
into or carrying rights or options to purchase any such shares. The Series B
Preferred Stock is not subject to any sinking fund or other obligation of the
Company to redeem or retire the Series B Preferred Stock. Unless converted or
redeemed, the Series B Preferred Stock has perpetual maturity.
DIVIDENDS
Holders of shares of Series B Preferred Stock will be entitled to receive,
when, as and if declared by the Board of Directors of the Company out of assets
of the Company legally available therefor, cumulative cash dividends at the rate
per annum of $65 per share of Series B Preferred Stock. Dividends on the Series
B Preferred Stock are payable quarterly in arrears on May 1, August 1, November
1 and February 1 of each year, commencing May 1, 1996 (and, in the case of any
accrued but unpaid dividends, at such additional times and for such interim
periods, if any, as determined by the Board of Directors), at such annual rate.
Such quarterly cash payments may not be treated as dividends for federal income
tax purposes. Each such dividend is payable to holders of record as they appear
on the stock records of the Company at the close of business on such record
dates, which shall not be more than 60 days or less than 10 days preceding the
payment dates corresponding thereto, as shall be fixed by the Board of Directors
of the Company or a duly authorized committee thereof. Dividends on shares of
Series B Preferred Stock accrue from the date of issuance of such shares of
Series B Preferred Stock. Dividends are cumulative from such date, whether or
not in any dividend period or periods there shall be assets of the Company
legally available for the payment of such dividends. Accumulations of dividends
on shares of Series B Preferred Stock do not bear interest. Dividends payable on
the Series B Preferred Stock for any period greater or less than a full dividend
period will be computed on the basis of a 360-day year consisting of twelve
30-day months. Dividends payable on the Series B Preferred Stock for each full
dividend period will be computed by dividing the annual dividend rate by four.
The Series B Preferred Stock ranks junior as to dividends to the Series A
Preferred Stock and any class or series of the Company's stock hereafter issued
which ranks senior as to dividends to the Series B Preferred Stock
(collectively, "senior dividend stock"), and if at any time the Company has
failed to pay or declare and set apart for payment accrued and unpaid dividends
on any senior dividend stock, the Company may not pay any dividends on the
Series B Preferred Stock.
The Series B Preferred Stock will have priority as to dividends over the
Common Stock and any other series or class of the Company's stock hereafter
issued which ranks junior as to dividends to the Series B Preferred Stock
(collectively, "junior dividend stock"). The Company will not (i) declare, pay
or set apart funds for the payment of any dividend or other distribution with
respect to any junior dividend stock, or (ii) redeem, purchase or otherwise
acquire for consideration any junior dividend stock or any series or class of
the Company's stock hereinafter issued which ranks on a parity as to dividends
with the Series B Preferred Stock (collectively, "parity dividend stock")
through a sinking fund or otherwise (except by conversion into or exchange for
shares of junior dividend stock and other than a redemption or purchase or other
acquisition of
13
<PAGE> 15
shares of Common Stock of the Company made for purposes of an employee incentive
or benefit plan of the Company or any subsidiary), unless all accrued and unpaid
dividends with respect to the Series B Preferred Stock and any parity dividend
stock at the time such dividends are payable have been paid or funds have been
set apart for payment of such dividends.
The Company will not declare, pay or set apart funds for payment of
dividends on any parity dividend stock unless it has paid or declared and set
apart for payment or contemporaneously pays or declares and sets apart for
payment all accrued and unpaid dividends for all prior periods on the Series B
Preferred Stock and may not pay dividends on the Series B Preferred Stock unless
it has paid or declared and set apart for payment or contemporaneously pays or
declares and sets apart for payment all accrued and unpaid dividends for all
prior periods on the parity dividend stock. Whenever all accrued dividends are
not paid in full on the Series B Preferred Stock or any parity dividend stock,
all dividends declared on the Series B Preferred Stock and such parity dividend
stock will be declared pro rata so that the amount of dividends declared per
share on the Preferred Stock and such parity dividend stock will bear the same
ratio that accrued and unpaid dividends per share on the Series B Preferred
Stock and such parity dividend stock bear to each other.
Under Delaware law, the Company may declare and pay dividends on its shares
of capital stock out of its surplus (which totalled $338.1 million as of March
31, 1996) or, in case there is no such surplus, out of net income for the fiscal
year in which the dividend is declared and/or the preceding fiscal year.
REDEMPTION
<TABLE>
The Series B Preferred Stock is not redeemable prior to March 1, 1999. On
and after such date, the Series B Preferred Stock is redeemable at the option of
the Company, in whole or in part, at the following redemption prices per share
if redeemed during the 12-month period beginning March 1 of the year indicated
below, plus, in each case, all dividends accrued and unpaid on the Series B
Preferred Stock up to the date fixed for redemption, upon giving notice as
provided below:
<CAPTION>
REDEMPTION PRICE
YEAR PER SHARE
---- ----------------
<S> <C>
1999......................................... $1,030
2000......................................... $1,020
2001......................................... $1,010
2002 and thereafter.......................... $1,000
</TABLE>
If fewer than all of the outstanding shares of Series B Preferred Stock are
to be redeemed, the shares to be redeemed will be determined pro rata or by lot
or in such other manner as prescribed by the Company's Board of Directors.
At least 15 days but not more than 30 days prior to the date fixed for the
redemption of the Series B Preferred Stock, a written notice will be mailed to
each holder of record of Series B Preferred Stock to be redeemed, notifying such
holder of the Company's election to redeem such shares, stating the date fixed
for redemption thereof and calling upon such holder to surrender to the Company
on the redemption date at the place designated in such notice the certificate or
certificates representing the number of shares specified therein. On or after
the redemption date, each holder of Series B Preferred Stock to be redeemed must
present and surrender his certificate or certificates for such shares to the
Company at the place designated in such notice and thereupon the redemption
price of such shares will be paid to or on the order of the person whose name
appears on such certificate or certificates as the owner thereof and each
surrendered certificate will be canceled. Should fewer than all the shares
represented by any such certificate be redeemed, a new certificate will be
issued representing the unredeemed shares.
From and after the redemption date (unless the Company defaults in payment
of the redemption price), all dividends on the shares of Series B Preferred
Stock designated for redemption in such notice will cease to accrue and all
rights of the holders thereof as stockholders of the Company, except the right
to receive the redemption price thereof (including all accrued and unpaid
dividends up to the redemption date), will cease and terminate and such shares
will not thereafter be transferred (except with the consent of the Company) on
14
<PAGE> 16
the Company's books, and such shares shall not be deemed to be outstanding for
any purpose whatsoever. On the redemption date, the Company must pay any accrued
and unpaid dividends in arrears for any dividend period ending on or prior to
the redemption date. In the case of a redemption date falling after a dividend
payment record date and prior to the related payment date, the holders of Series
B Preferred Stock at the close of business on such record date will be entitled
to receive the dividend payable on such shares on the corresponding dividend
payment date, notwithstanding the redemption of such shares following such
dividend payment record date. Except as provided for in the preceding sentences,
no payment or allowance will be made for accrued dividends on any shares of
Series B Preferred Stock called for redemption.
At its election, the Company, prior to the redemption date, may deposit the
redemption price of the shares of Series B Preferred Stock so called for
redemption in trust for the holders thereof with a bank or trust company, in
which case such notice to holders of the shares of Series B Preferred Stock to
be redeemed will (i) state the date of such deposit, (ii) specify the office of
such bank or trust company as the place of payment of the redemption price and
(iii) call upon such holders to surrender the certificates representing such
shares at such place on or after the date fixed in such redemption notice (which
may not be later than the redemption date), against payment of the redemption
price (including all accrued and unpaid dividends up to the redemption date).
Any moneys so deposited which remain unclaimed by the holders of Series B
Preferred Stock at the end of two years after the redemption date will be
returned by such bank or trust company to the Company.
LIQUIDATION PREFERENCE
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company, the holders of the Series B Preferred Stock will be
entitled to receive a liquidation preference of $1,000 per share, plus accrued
and unpaid dividends to the payment date, before any payment or distribution is
made to holders of Common Stock or any other class or series of the Company's
stock hereinafter issued which ranks junior as to liquidation rights to the
Series B Preferred Stock, but the holders of the shares of the Series B
Preferred Stock will not be entitled to receive the liquidation preference of
such shares until the liquidation preference of the Series A Preferred Stock and
any other series or classes of the Company's stock hereafter issued which ranks
senior as to liquidation rights to the Series B Preferred Stock (collectively,
"senior liquidating stock") has been paid in full.
The holders of Series B Preferred Stock and all series or classes of the
Company's stock hereafter issued which rank on a parity as to liquidation rights
with the Series B Preferred Stock are entitled to share ratably, in accordance
with the respective preferential amounts payable on such stock, in any
distribution (after payment of the liquidation price of the senior liquidating
stock) which is not sufficient to pay in full the aggregate of the amounts
payable thereon. After payment in full of the liquidation preference of the
shares of the Series B Preferred Stock, the holders of such shares will not be
entitled to any further participation in any distribution of assets by the
Company. Neither a consolidation or merger of the Company with another
corporation nor a sale or transfer of all or substantially all of the Company's
assets will be considered a liquidation, dissolution or winding up, voluntary or
involuntary, of the Company.
VOTING RIGHTS
The holders of shares of Series B Preferred Stock will be entitled to vote
on all matters submitted to a vote of the stockholders of the Company and will
vote together with the holders of Common Stock and any other stock of the
Company having general voting rights as a single class on all matters to be
voted on by the stockholders of the Company. Each share of Series B Preferred
Stock will entitle the holder thereof to one vote.
If the equivalent of six quarterly dividends payable on the Series B
Preferred Stock or any outstanding shares of parity dividend stock have not been
declared and paid or set apart for payment, whether or not consecutive, the
number of directors of Company shall be increased by two and the holders of the
Series B Preferred Stock, voting separately as a class with the holders of
parity dividend stock on which like voting rights have been conferred and are
exercisable, will be entitled to elect such two additional directors at each
meeting of stockholders at which directors are to be elected and which is held
during the period such dividends
15
<PAGE> 17
remain in arrears. Such voting rights will terminate when all such dividends
accrued and unpaid have been authorized and declared and paid or set apart for
payment. The term of office of all directors so elected will terminate
immediately upon the termination of such voting rights.
In addition, without the affirmative vote or consent of the holders of at
least 66 2/3% of the outstanding shares of the Series B Preferred Stock and all
other affected stock ranking on a parity with Series B Preferred Stock as to
dividend or liquidation rights, upon which like voting rights have been
conferred and are exercisable, voting separately as a class, the Company may not
(i) amend, alter or repeal any of the provisions of the Certificate of
Incorporation (including any certificate of designations or similar document
relating to any series of Preferred Stock) so as to affect adversely the
relative rights, preferences, qualifications, limitations or restrictions of the
Series B Preferred Stock or the holders thereof or (ii) create, authorize or
issue, or reclassify any stock of the Company into, or increase the authorized
amount of, any senior dividend stock or senior liquidating stock or any
securities convertible into such senior dividend stock or senior liquidating
stock. However, the creation by the Company of additional classes of Preferred
Stock ranking on a parity with or junior to the Series B Preferred Stock, or the
increase by the Company of the authorized amount of any class of Preferred Stock
ranking on a parity with or junior to the Series B Preferred Stock, shall not be
deemed to materially adversely affect the preferences, rights, powers or
privileges of the Series B Preferred Stock. See "Conversion Price Adjustments"
below.
CONVERSION RIGHTS
Shares of Series B Preferred Stock are convertible, in whole or in part, at
any time at the option of the holders thereof, into shares of Common Stock at a
conversion price of $26.5625 per share of Common Stock (equivalent to a rate of
approximately 37.6471 shares of Common Stock for each share of Series B
Preferred Stock), subject to adjustment as described below ("Conversion Price").
The right to convert shares of Series B Preferred Stock called for redemption
will terminate at the close of business on the day preceding a redemption date.
For information as to notices of redemption, see "Redemption" above.
Conversion of shares of Series B Preferred Stock, or a specified portion
thereof, may be effected by delivering certificates evidencing such shares,
together with written notice of conversion and a proper assignment of such
certificates to the Company or in blank, to the office or agency to be
maintained by the Company for that purpose. Initially such office will be the
principal corporate trust office of American Stock Transfer & Trust Company.
Each conversion will be deemed to have been effected immediately prior to
the close of business on the date on which the certificates for shares of Series
B Preferred Stock shall have been surrendered and notice (and, if applicable,
payment of an amount equal to the dividend payable on such shares) received by
the Company as aforesaid and the conversion shall be at the Conversion Price in
effect at such time and on such date.
Any share of Series B Preferred Stock surrendered for conversion during the
period from the close of business on a dividend payment record date for any
dividend payment date through the close of business on the day next preceding
such dividend payment date shall (unless such share of Series B Preferred Stock
being converted shall have been called for redemption on a redemption date in
such period) be accompanied by payment of an amount equal to the dividend
payable on such shares on such dividend payment date. An amount equal to such
payment shall be paid by the Company on such dividend payment date to the record
holder of such shares of Series B Preferred Stock at the close of business on
such dividend payment record date. Except as provided above, the Company shall
make no payment or allowance for unpaid dividends, whether or not in arrears, on
converted shares or for dividends on the shares of Common Stock issued upon such
conversion.
Fractional shares of Common Stock are not to be issued upon conversion but,
in lieu thereof, the Company will pay a cash adjustment based on the current
market price of the Common Stock issued upon such conversion.
16
<PAGE> 18
CONVERSION PRICE ADJUSTMENTS
The Conversion Price is subject to adjustment upon certain events,
including (i) dividends (and other distributions) payable in Common Stock on any
class of capital stock of the Company, (ii) the issuance to holders of Common
Stock of certain rights or warrants entitling them to subscribe for or purchase
Common Stock, (iii) subdivisions, combinations and reclassifications of Common
Stock, and (iv) distributions to all holders of Common Stock of evidences of
indebtedness of the Company or assets (including securities, but excluding those
dividends, rights, warrants and distributions referred to above and dividends
and distributions paid in cash out of the profits or surplus of the Company
other than "Extraordinary Cash Distributions", as defined below). In addition to
the foregoing adjustments, the Company will be permitted to make such reductions
in the Conversion Price as it considers to be advisable in order that any stock
dividends, subdivision of shares, distribution of rights or warrants to purchase
stock or securities, or a distribution of other assets (other than cash
dividends) hereafter made by the Company to its stockholders will not be taxable
to the holders of the Common Stock. The Company from time to time may also, to
the extent permitted by law, reduce the Conversion Price by any amount for any
period of at least 20 days, in which case the Company shall give at least 15
days' notice of such decrease, if the Board of Directors has made a
determination that such decrease would be in the best interests of the Company,
which determination shall be conclusive. "Extraordinary Cash Distribution" means
the portion of any cash dividend or cash distribution on the Common Stock that,
when added to all other cash dividends and cash distributions on the Common
Stock made during the immediately preceding 12-month period (other than cash
dividends and cash distributions for which a prior adjustment to the Conversion
Price was previously made), exceeds, on a per share of Common Stock basis, ten
percent (10%) of the average daily closing price of the Common Stock over such
12-month period.
In case the Company shall be a party to any transaction (including without
limitation a merger, consolidation, sale of all or substantially all of the
Company's assets or recapitalization or reclassification of the Common Stock
(each of the foregoing being referred to as a "Transaction")), in each case as a
result of which shares of Common Stock will be converted into the right to
receive stock, securities or other property (including cash or any combination
thereof), each share of Series B Preferred Stock will thereafter be convertible
into the kind and amount of shares of stock and other securities and property
receivable (including cash or any combination thereof) upon the consummation of
such Transaction by a holder of that number of shares or fraction thereof of
Common Stock into which one share of Series B Preferred Stock is convertible
immediately prior to such Transaction. The Company may not become a party to any
such Transaction unless the terms thereof are consistent with the foregoing.
No adjustment of the Conversion Price will be required to be made in any
case until cumulative adjustments amount to 1% or more of the Conversion Price.
Any adjustments not so required to be made will be carried forward and taken
into account in subsequent adjustments.
TRANSFER AGENT, REGISTRAR AND DIVIDEND DISBURSING AGENT
The transfer agent, registrar, dividend disbursing agent and redemption
agent for the shares of Series B Preferred Stock and the Depositary Shares will
be American Stock Transfer & Trust Company (in such capacity, the "Transfer
Agent"). American Stock Transfer & Trust Company also serves as transfer agent
for the Common Stock and the Series A Preferred Stock.
DESCRIPTION OF DEPOSITARY SHARES
GENERAL
The following is a brief description of the terms of the Depositary Shares
which does not purport to be complete and is subject to, and qualified in its
entirety by reference to, the provisions of the Deposit Agreement (as defined
below) (including the form of Depositary Receipt contained therein), which is
hereby incorporated by reference and made a part hereof. A copy of the Deposit
Agreement is available from the Company.
17
<PAGE> 19
Each Depositary Share represents a 1/20 interest in a share of Series B
Preferred Stock. The shares of the Series B Preferred Stock are deposited with
the Depositary under a Deposit Agreement (the "Deposit Agreement") among the
Company, the Depositary and the holders from time to time of the depositary
receipts (the "Depositary Receipts") issued by the Depositary. The Depositary
Receipts evidence the Depositary Shares. Subject to the terms of the Deposit
Agreement, each holder of a Depositary Receipt evidencing a Depositary Share is
entitled, proportionately, to all the rights and preferences of, and subject to
all of the limitations of, the interest in the Series B Preferred Stock
represented thereby (including dividend, voting, conversion, redemption and
liquidation rights and preferences).
DIVIDENDS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock to the record holders
of Depositary Shares in proportion to the number of Depositary Shares owned by
such holders on the relevant record date, which will be the same date as the
record date fixed by the Company for the Series B Preferred Stock. In the event
that the calculation of such amount to be paid results in an amount which is a
fraction of one cent, the amount the Depositary shall distribute to such record
holder shall be rounded to the next higher whole cent.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Receipts
entitled thereto, in proportion, as nearly as may be practicable, to the number
of Depositary Shares owned by such holders on the relevant record date, unless
the Depositary determines (after consultation with the Company) that it is not
feasible to make such distribution, in which case the Depositary may (with the
approval of the Company) adopt any other method for such distribution as it
deems equitable and appropriate, including the sale of such property (at such
place or places and upon such terms as it may deem equitable and appropriate)
and distribution of the net proceeds from such sale to such holders.
REDEMPTION
Whenever the Company redeems any Series B Preferred Stock held by the
Depositary, the Depositary will redeem, as of the same redemption date, the
number of Depositary Shares representing the Series B Preferred Stock so
redeemed. The Depositary will publish a notice of redemption of the Depositary
Shares containing the same type of information presented in the same manner as
the Company's notice of redemption and will mail the notice of redemption
promptly upon receipt of such notice from the Company and not less than 15 nor
more than 30 days prior to the date fixed for redemption of the Series B
Preferred Stock and the Depositary Shares to the record holders of the
Depositary Receipts. In case less than all the outstanding Depositary Shares are
to be redeemed, the Depositary Shares to be so redeemed shall be determined pro
rata or by lot or by any other equitable method determined by the Depositary to
be consistent with the method determined by the Board of Directors of the
Company with respect to the Series B Preferred Stock.
LIQUIDATION PREFERENCE
In the event of the liquidation, dissolution or winding up of the affairs
of the Company, whether voluntary or involuntary, the holders of each Depositary
Share will be entitled to 1/20 of the liquidation preference accorded each share
of the Series B Preferred Stock.
VOTING RIGHTS
Promptly upon receipt of notice of any meeting at which the holders of the
Series B Preferred Stock are entitled to vote, the Depositary will mail the
information contained in such notice of meeting to the record holders of the
Depositary Shares as of the record date for such meeting. Each such record
holder of Depositary Receipts will be entitled to instruct the Depositary as to
the exercise of the voting rights pertaining to the number of shares of Series B
Preferred Stock represented by such record holder's Depositary Shares. The
Depositary will endeavor, insofar as practicable, to vote such Series B
Preferred Stock represented by such Depositary Shares in accordance with such
instructions, and the Company will agree to take all action which may be deemed
necessary by the Depositary in order to enable the Depositary to do so. The
Depositary will
18
<PAGE> 20
abstain from voting any of the Series B Preferred Stock to the extent that it
does not receive specific instructions from the holders of Depositary Receipts.
CONVERSION
Depositary Receipts, evidencing Depositary Shares may be surrendered with
written instructions to the Depositary to instruct the Company to cause the
conversion of any specified number of whole shares of Series B Preferred Stock
represented by whole Depositary Shares evidenced by such Depositary Receipts,
into whole shares of Common Stock and cash for any fractional share amount, at
the conversion price then in effect pursuant to the Series B Preferred Stock
Certificate of Designations.
Upon receipt by the Depositary of a Depositary Receipt or Depositary
Receipts, together with a notice of conversion, duly completed and executed,
directing the Depositary to instruct the Company to cause the conversion of a
specified number of shares of Series B Preferred Stock, and an assignment of
such Depositary Receipt or Depositary Receipts to the Company or in blank, duly
completed and executed, the Depositary shall instruct the Company (i) to cause
the conversion of the number of whole shares of Series B Preferred Stock
represented by the Depositary Shares evidenced by the Depositary Receipts so
surrendered, as specified in the written notice to the Depositary and (ii) to
cause the delivery to the holders of such Depositary Receipts a certificate or
certificates evidencing the number of whole shares of Common Stock received upon
conversion of the Series B Preferred Stock, along with the amount of money, if
any, to be delivered to the holders of the Depositary Receipts surrendered for
conversion in lieu of fractional shares of Common Stock otherwise issuable. The
conversion of the shares of Series B Preferred Stock represented by the
Depositary Shares is subject to certain terms and provisions as set forth in the
Series B Preferred Stock Certificate of Designations. See "Description of Series
B Preferred Stock -- Conversion Rights" and "-- Conversion Price Adjustments."
WITHDRAWAL OF PREFERRED STOCK
Upon surrender of Depositary Receipts at the principal office of the
Depositary, upon payment of any unpaid amount due the Depositary, and subject to
the terms of the Deposit Agreement, the owner of the Depositary Shares evidenced
thereby is entitled to delivery of the number of whole shares of Series B
Preferred Stock and all money and other property, if any, represented by such
Depositary Shares. Fractional shares of Preferred Stock will not be issued. If
the Depositary Receipts delivered by the holder evidence a number of Depositary
Shares in excess of the number of Depositary Shares representing the number of
whole shares of Series B Preferred Stock to be withdrawn, the Depositary will
deliver to such holder at the same time a new Depositary Receipt evidencing such
excess number of Depositary Shares. Holders of Series B Preferred Stock thus
withdrawn will not thereafter be entitled to deposit such shares under the
Deposit Agreement or to receive Depositary Receipts evidencing Depositary Shares
therefor.
AMENDMENT AND TERMINATION OF DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary. However, any
amendment which materially and adversely alters the rights of the holders (other
than any change in fees) of the Depositary Shares will not be effective unless
such amendment has been approved by the holders of at least 66 2/3% of the
Depositary Shares then outstanding. No such amendment may impair the right,
subject to the terms of the Deposit Agreement, of any owner of any Depositary
Shares to surrender the Depositary Receipt evidencing such Depositary Shares
with instructions to the Depositary to deliver to the holder the Series B
Preferred Stock and all money and other property, if any, represented thereby,
or to cause the conversion of the underlying shares of Series B Preferred Stock
represented by the Depositary Shares into Common Stock, except in order to
comply with mandatory provisions of applicable law.
Whenever so directed by the Company, the Depositary will terminate the
Deposit Agreement after mailing notice of such termination to the record holders
of all Depositary Receipts then outstanding at least 30 days prior to the date
fixed in such notice for such termination. The Depositary may likewise terminate
the
19
<PAGE> 21
Deposit Agreement if at any time 45 days shall have expired after the Depositary
shall have delivered to the Company a written notice of its election to resign
and a successor depositary shall not have been appointed and accepted its
appointment. If any Depositary Receipts remain outstanding after the date of
termination, the Depositary thereafter will discontinue the transfer of
Depositary Receipts, will suspend the distribution of dividends to the holders
thereof, and will not give any further notices (other than notice of such
termination) or perform any further acts under the Deposit Agreement except as
provided below and except that the Depositary will continue (i) to collect
dividends on the shares of Series B Preferred Stock and any other distributions
with respect thereto and (ii) to deliver the shares of Series B Preferred Stock
together with such dividends and distributions and the net proceeds of any sales
of rights, preferences, privileges or other property, without liability for
interest thereon, in exchange for Depositary Receipts surrendered. At any time
after the expiration of two years from the date of termination, the Depositary
may sell the shares of Series B Preferred Stock then held by it at public or
private sale, at such place or places and upon such terms as it deems proper and
may thereafter hold the net proceeds of any such sale, together with any money
and other property then held by it, without liability for interest thereon, for
the pro rata benefit of the holders of Depositary Receipts which have not been
surrendered. The Company does not intend to terminate the Deposit Agreement or
to permit the resignation of the Depositary without appointing a successor
depositary. In the event the Deposit Agreement is terminated and a sufficient
number of shares of Series B Preferred Stock remain outstanding, the Company
will use its best efforts to list the shares of Series B Preferred Stock on the
Nasdaq National Market (unless the holders of a majority of the outstanding
shares of Series B Preferred Stock shall consent to the Company not affecting
such listing).
CHARGES OF DEPOSITARY
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. Holders of
Depositary Receipts will pay transfer, income and other taxes and governmental
charges and certain other charges as are provided in the Deposit Agreement to be
for their accounts. In certain circumstances, the Depositary may refuse to
transfer Depositary Shares, may withhold dividends and distributions and sell
the Depositary Shares evidenced by such Depositary Receipt if such charges are
not paid.
MISCELLANEOUS
The Depositary will forward to the holders of Depositary Receipts all
reports and communications from the Company which are delivered to the
Depositary and which the Company is required to furnish to the holders of the
Series B Preferred Stock. In addition, the Depositary will make available for
inspection by holders of Depositary Receipts at the principal office of the
Depositary, and at such other places as it may from time to time deem advisable,
any reports and communications received from the Company which are received by
the Depositary as the holder of Series B Preferred Stock.
Neither the Depositary nor any Depositary's Agent (as defined in the
Deposit Agreement), nor the Registrar (as defined in the Deposit Agreement) nor
the Company assumes any obligation or will be subject to any liability under the
Deposit Agreement to holders of Depositary Receipts other than for its
negligence, willful misconduct or bad faith. Neither the Depositary, any
Depositary's Agent, the Registrar nor the Company will liable if it is prevented
or delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. The Company and the Depositary are not
obligated to prosecute or defend any legal proceeding in respect of any
Depositary Shares, Depositary Receipts or Series B Preferred Stock unless
reasonable satisfactory indemnity is furnished. The Company and the Depositary
may rely on written advice of counsel or accountants, or on information provided
by holders of Depositary Receipts or other persons believed in good faith to be
competent to give such information and on documents believed to be genuine and
to have been signed or presented by the proper party or parties.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to the Company notice
of its election to do so, and the Company may at any time remove the Depositary,
any such resignation or removal to take effect upon the
20
<PAGE> 22
appointment of a successor Depositary and its acceptance of such appointment.
Such successor Depositary must be appointed within 60 days after delivery of the
notice for resignation or removal and must be a bank or trust company having its
principal office in the United States of America and having a combined capital
and surplus of at least $150,000,000.
LEGAL MATTERS
The validity of the Depositary Shares, the Series B Preferred Stock
represented by the Depositary Shares and 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 schedule of Wang Laboratories,
Inc. appearing in the Company's Annual Report on Form 10-K for the year ended
June 30, 1995 and in the consolidated financial statements of the Company
appearing in the Company's Current Report on Form 8-K dated April 4, 1996 have
been audited by Ernst & Young LLP, independent auditors, as set forth in their
reports thereon included therein, and are incorporated herein by reference in
reliance upon such reports given upon the authority of such firm as experts in
accounting and auditing.
21
<PAGE> 23
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<CAPTION>
NATURE OF EXPENSE AMOUNT TO BE PAID
----------------- -----------------
<S> <C>
SEC registration fee......................................................... $36,624
Legal and accounting fees and expenses....................................... 30,000
Printing fees and expenses................................................... 20,000
Blue Sky fees and expenses................................................... 0
Miscellaneous................................................................ 3,376
-------
TOTAL.............................................................. $90,000
</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.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- --------
<S> <C>
2.1(1) Amended and Restated Reorganization Plan dated September 20, 1993
4.1(2) Certificate of Incorporation, as amended to date
4.2(3) Certificate of Designation with respect to 4 1/2% Series A Cumulative
Convertible Preferred Stock
4.3(4) Certificate of Designation with respect to 6 1/2% Series B Cumulative
Convertible Preferred Stock
4.4(5) Bylaws of Registrant, as amended to date
4.5 Deposit Agreement, dated as of February 21, 1996, among the Registrant, the
Initial Purchasers and American Stock Transfer & Trust Company, as Depositary
4.6 Form of Certificate for Depositary Shares each Representing a 1/20 interest in a
share of 6 1/2% Series B Cumulative Convertible Preferred Stock
4.7 Form of Certificate for 6 1/2% Series B Cumulative Convertible Preferred Stock
5.1 Opinion of Hale and Dorr
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Hale and Dorr (included in Exhibit 5.1)
24.1* Power of Attorney
<FN>
- ---------------
* Previously filed.
(1) Filed as an exhibit to the Registrant's Registration Statement on Form 8-A
filed on September 27, 1993 and incorporated herein by reference.
(2) Filed as an exhibit to the Registrant's Quarterly Report on Form 10-Q for
the quarter ended December 31, 1994 and incorporated herein by reference.
(3) Filed as an exhibit to the Registrant's Annual Report on Form 10-K for the
year ended June 30, 1995 and incorporated herein by reference.
(4) Filed as an exhibit to the Registrant's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1996 and incorporated herein by reference.
(5) Filed as an exhibit to the Registrant's Quarterly Report on Form 10-Q for
the quarter ended December 31, 1995 and incorporated herein by reference.
</TABLE>
II-1
<PAGE> 24
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 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-2
<PAGE> 25
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 Amendment No. 1 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Billerica, Commonwealth of
Massachusetts this 13th day of August, 1996.
WANG LABORATORIES, INC.
By: /s/ FRANKLYN A. CAINE
------------------------------------
FRANKLYN A. CAINE
Executive Vice President and
Chief Financial Officer
<TABLE>
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed by the following persons on
this 13th day of August, 1996, in the capacities indicated:
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* 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 (Principal
FRANKLYN A. CAINE Financial Officer)
* Vice President and Corporate
- ---------------------------------------- Controller (Principal Accounting
GREGORY C. THOMPSON Officer)
* Director
- ----------------------------------------
DAVID A. BOUCHER
* Director
- ----------------------------------------
MICHAEL W. BROWN
* Director
- ----------------------------------------
MARCIA J. HOOPER
* Director
- ----------------------------------------
JOSEPH J. KROGER
* Director
- ----------------------------------------
RAYMOND C. KURZWEIL
* Director
- ----------------------------------------
AXEL J. LEBLOIS
* Director
- ----------------------------------------
PAUL E. TSONGAS
* Director
- ----------------------------------------
FREDERICK A. WANG
</TABLE>
*By: /s/ FRANKLYN A. CAINE
------------------------------------
FRANKLYN A. CAINE
ATTORNEY-IN-FACT
II-3
<PAGE> 26
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- --------
<S> <C>
2.1(1) Amended and Restated Reorganization Plan dated September 20, 1993
4.1(2) Certificate of Incorporation, as amended to date
4.2(3) Certificate of Designation with respect to 4 1/2% Series A Cumulative
Convertible Preferred Stock
4.3(4) Certificate of Designation with respect to 6 1/2% Series B Cumulative
Convertible Preferred Stock
4.4(5) Bylaws of Registrant, as amended to date
4.5 Deposit Agreement, dated as of February 21, 1996, among the Registrant, the
Initial Purchasers and American Stock Transfer & Trust Company, as Depositary
4.6 Form of Certificate for Depositary Shares each Representing a 1/20 interest in a
share of 6 1/2% Series B Cumulative Convertible Preferred Stock
4.7 Form of Certificate for 6 1/2% Series B Cumulative Convertible Preferred Stock
5.1 Opinion of Hale and Dorr
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Hale and Dorr (included in Exhibit 5.1)
24.1* Power of Attorney
<FN>
- ---------------
* Previously filed.
(1) Filed as an exhibit to the Registrant's Registration Statement on Form 8-A
filed on September 27, 1993 and incorporated herein by reference.
(2) Filed as an exhibit to the Registrant's Quarterly Report on Form 10-Q for
the quarter ended December 31, 1994 and incorporated herein by reference.
(3) Filed as an exhibit to the Registrant's Annual Report on Form 10-K for the
year ended June 30, 1995 and incorporated herein by reference.
(4) Filed as an exhibit to the Registrant's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1996 and incorporated herein by reference.
(5) Filed as an exhibit to the Registrant's Quarterly Report on Form 10-Q for
the quarter ended December 31, 1995 and incorporated herein by reference..
</TABLE>
<PAGE> 1
EXHIBIT 4.5
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of February 27, 1996, among Wang Laboratories,
Inc., a Delaware corporation, American Stock Transfer & Trust Company, a New
York trust company, as Depositary, and all holders from time to time of
Depositary Receipts issued hereunder.
WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of shares of 6 1/2% Series B Cumulative Convertible
Preferred Stock of the Company with the Depositary for the purposes set forth in
this Deposit Agreement and for the issuance hereunder of the Receipts evidencing
Depositary Shares, each representing a 1/20 interest in a share of such Series B
Preferred Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed to this Deposit Agreement, with appropriate insertions, modifications
and omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained herein, it is
agreed by and among the parties hereto as follows:
ARTICLE I
DEFINITIONS
The following definitions shall apply to the respective terms used in this
Deposit Agreement and the Receipts:
SECTION 1.1 The term "Accredited Investor" shall have the meaning given
that term in Rule 501(a) of the rules and regulations under the Securities Act.
SECTION 1.2 The term "Affiliate" shall mean, with respect to any person,
any person that, directly or indirectly, controls, is controlled by or is under
common control with such person in question. For the purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlled by" and "under common control with") shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such person, whether through the ownership of voting
securities or by contract or otherwise.
SECTION 1.3 The term "Business Day" shall mean any day other than
Saturday, Sunday or a day on which banking institutions are obligated or
authorized to be closed in New York, New York or in Boston, Massachusetts.
SECTION 1.4 The term "Certificate of Designations" shall mean the
Certificate of Designations adopted by the Board of Directors of the Company or
a duly authorized committee thereof establishing and setting forth the rights,
preferences, privileges and limitations of the Series B Preferred Stock.
SECTION 1.5 The term "Certificate of Incorporation" shall mean the
Certificate of Incorporation, as amended from time to time, of the Company.
SECTION 1.6 The term "Certificate of Transfer" shall mean the instrument
of transfer on the reverse of the Certificated Receipt.
SECTION 1.7 The term "Certificated Receipt" shall have the meaning
assigned to such term in Section 2.3.
SECTION 1.8 The term "Company" shall mean Wang Laboratories, Inc., a
Delaware corporation having its principal office at 600 Technology Park Drive,
Billerica, Massachusetts 01821, and its successors.
SECTION 1.9 The term "Corporate Office" shall mean the corporate office of
the Depositary at which at any particular time its depositary receipt business
shall be administered.
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SECTION 1.10 The term "Deposit Agreement" shall mean this agreement, as
the same may be amended, modified or supplemented from time to time.
SECTION 1.11 The term "Depositary" shall mean American Stock Transfer &
Trust Company, a New York trust company, having its principal office at 40 Wall
Street, Suite 46, New York, New York 10005, and any successor as Depositary
hereunder.
SECTION 1.12 The term "Depositary Share" shall mean a 1/20 interest in a
share of the Series B Preferred Stock deposited with the Depositary hereunder
and the same proportional interest in any and all other property received by the
Depositary in respect of such share of Series B Preferred Stock and held under
this Deposit Agreement, all as evidenced by the Receipts executed and delivered
hereunder. Subject to the terms of this Deposit Agreement, each holder of a
Depositary Share is entitled, proportionately, to all the rights, preferences,
privileges and obligations of the Series B Preferred Stock represented by such
Depositary Share, including those set forth in the dividend, voting, conversion,
liquidation and redemption provisions of the Certificate of Designations, and to
the benefits of all obligations of the Company under the Certificate of
Designations.
SECTION 1.13 The term "Depositary's Agent" shall mean an agent appointed
by the Depositary as provided, and for the purposes specified, in Section 7.5.
SECTION 1.14 The term "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended.
SECTION 1.15 The term "Global Receipt" shall have the meaning assigned to
such term in Section 2.3.
SECTION 1.16 The term "Qualified Institutional Buyer" shall have the
meaning given that term in Rule 144A in the rules and regulations under the
Securities Act.
SECTION 1.17 The term "Receipt" shall mean a Depositary Receipt issued
hereunder to evidence one or more Depositary Shares, whether in definitive or
temporary form.
SECTION 1.18 The term "record holder" as applied to a Receipt shall mean
the person in whose name a Receipt is registered on the books maintained by the
Depositary for such purpose.
SECTION 1.19 The term "Registrar" shall mean any bank or trust company
appointed to register Receipts as herein provided.
SECTION 1.20 The term "Registration Rights Agreement" shall mean the
Registration Rights Agreement dated as of February [ ], 1996 by and between the
Company and Lehman Brothers Inc., BT Securities Corporation and Salomon Brothers
Inc.
SECTION 1.21 The term "SEC" shall mean the Securities and Exchange
Commission.
SECTION 1.22 The term "Securities Act" shall mean the Securities Act of
1933, as amended.
SECTION 1.23 The term "Series B Preferred Stock" shall mean shares of the
Company's 6 1/2% Series B Cumulative Convertible Preferred Stock, par value
$0.01 per share.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF
SERIES B PREFERRED STOCK, EXECUTION AND DELIVERY,
TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.1 Form and Transferability of Receipts. Definitive Receipts
shall be engraved or printed or lithographed with steel-engraved borders and
underlying tint and shall be substantially in the form set forth in Exhibit A
annexed to this Deposit Agreement, with appropriate insertions, modifications
and omissions, as hereinafter provided. Pending the preparation of definitive
Receipts, the Depositary shall, upon written order in accordance with Section
2.2, execute and deliver temporary Receipts which are printed, lithographed,
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typewritten, mimeographed or otherwise substantially of the tenor of the
definitive Receipts in lieu of which they are issued and with such appropriate
insertions, modifications and omissions as hereinafter provided. The Company
will cause definitive Receipts to be prepared without unreasonable delay. After
the preparation of definitive Receipts, the temporary Receipts shall be
exchangeable for definitive Receipts upon surrender of the temporary Receipts,
at the Corporate Office, without charge to the holder. Upon surrender for
cancellation of any one or more temporary Receipts, the Depositary shall execute
and deliver in exchange therefor definitive Receipts representing the same
number of Depositary Shares as represented by the surrendered temporary Receipt
or Receipts. Such exchange shall be made at the Company's expense and without
any charge to the holder thereof, provided, however, that the Company will not
bear the expense incurred by the holder for transferring the temporary Receipts
to the Corporate Office for exchange. Until so exchanged, the temporary Receipts
shall in all respects be entitled to the same benefits under this Deposit
Agreement as definitive Receipts. Receipts shall be executed by the Depositary
by the manual signature of a duly authorized signatory of the Depositary,
provided that such signature may be a facsimile if a Registrar (other than the
Depositary) shall have countersigned the Receipts by manual signature of a duly
authorized signatory of the Registrar. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any purpose
unless it shall have been executed as provided in the preceding sentence. The
Depositary shall record on its books each Receipt executed as provided above and
delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole Depositary
Shares. All Receipts shall be dated the date of their execution.
Receipts may be endorsed with or have incorporated in the text thereof,
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or regulation or with the rules and regulations of any
securities exchange upon which the Series B Preferred Stock, the Depositary
Shares or the Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject by reason of the date of issuance of the Series
B Preferred Stock or otherwise.
Title to any Receipt (and to the Depositary Shares evidenced by such
Receipt) that is properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement, shall be transferable by delivery with
the same effect as in the case of a negotiable instrument; provided, however,
that until a Receipt shall be transferred on the books of the Depositary as
provided in Sections 2.5 and 2.6, the Depositary may, notwithstanding any notice
to the contrary, treat the record holder thereof at such time as the absolute
owner thereof for the purpose of determining the person entitled to dividend
distributions or other distributions or to any notice provided for in this
Deposit Agreement and for all other purposes.
SECTION 2.2 Deposit of Series B Preferred Stock; Execution and Delivery of
Receipts in Respect Thereof. Subject to the terms and conditions of this
Deposit Agreement, the Depositary, upon receipt of written instructions from the
Company or the holder to which such Series B Preferred Stock was issued, and a
certificate or certificates for the Series B Preferred Stock to be deposited
under this Deposit Agreement in accordance with the provisions of this Section
2.2, shall execute and deliver a Receipt or Receipts for the number of
Depositary Shares representing such deposited Series B Preferred Stock to the
person or persons stated in such instructions.
Subject to the terms and conditions of this Deposit Agreement, any holder
of Series B Preferred Stock may deposit such Series B Preferred Stock (including
any fractional share of Series B Preferred Stock) under this Deposit Agreement
by delivery to the Depositary of a certificate or certificates for the Series B
Preferred Stock to be deposited, properly endorsed or accompanied, if required
by the Depositary, by a properly executed instrument of transfer or endorsement
in form satisfactory to the Depositary, together with (i) all such
certifications as may be required by the Depositary in accordance with the
provisions of this Deposit Agreement and (ii) a written order directing the
Depositary to execute and deliver to or upon the written order of the person or
persons stated in such order a Receipt or Receipts for the number of Depositary
Shares representing such deposited Series B Preferred Stock.
If required by the Depositary, Series B Preferred Stock presented for
deposit at any time, whether or not the register of stockholders of the Company
is closed, shall also be accompanied by an agreement or
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assignment, or other instrument satisfactory to the Depositary, that will
provide for the prompt transfer to the Depositary or its nominee of any dividend
or right to subscribe for additional Series B Preferred Stock or to receive
other property that any person in whose name the Series B Preferred Stock is or
has been registered may thereafter receive upon or in respect of such deposited
Series B Preferred Stock, or in lieu thereof such agreement of indemnity or
other agreement as shall be satisfactory to the Depositary.
Upon receipt by the Depositary of a certificate or certificates for Series
B Preferred Stock to be deposited hereunder, together with the other documents
specified above, the Depositary shall, as soon as transfer and registration can
be accomplished, present such certificate or certificates to the registrar and
transfer agent of the Series B Preferred Stock for transfer and registration in
the name of the Depositary or its nominee of the Series B Preferred Stock being
deposited. Deposited Series B Preferred Stock shall be held by the Depositary in
an account to be established by the Depositary at the Corporate Office or at
such other office as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates for Series
B Preferred Stock to be deposited hereunder, together with the other documents
specified above, the Depositary, subject to the terms and conditions of this
Deposit Agreement, shall execute and deliver to or upon the order of the person
or persons named in the written order delivered to the Depositary referred to in
the first or second paragraph of this Section 2.2 a Receipt or Receipts for the
number of whole Depositary Shares representing the Series B Preferred Stock so
deposited and registered in such name or names as may be requested by such
person or persons. The Depositary shall execute and deliver such Receipt or
Receipts at the Corporate Office, except that, at the request, risk and expense
of any person requesting such delivery, such delivery may be made at such other
place which may be designated by such person. In each case, delivery will be
made only upon payment to the Depositary of all taxes and other governmental
charges and any fees payable in connection with such deposit and the transfer of
the deposited Series B Preferred Stock. The Company shall deliver to the
Depositary from time to time such quantities of Receipts as the Depositary may
request to enable the Depositary to perform its obligations under this Deposit
Agreement.
Notwithstanding the provisions of this Section 2.2 any shares of Series B
Preferred Stock withdrawn pursuant to Section 2.8 of this Deposit Agreement may
not thereafter be redeposited under the terms of this Deposit Agreement in
exchange for Depositary Receipts evidencing Depositary Shares.
SECTION 2.3 Procedures For Global Receipts. The Receipts may be
represented by (i) one or more fully registered Receipts in global form ("Global
Receipts") or (ii) Receipts registered in the name of individual holders or
their nominees ("Certificated Receipts").
If Receipts are to be represented by one or more Global Receipts, the
Depositary shall execute and deliver such Global Receipt which (i) shall
represent, and shall be denominated in an amount equal to, the aggregate number
of Receipts to be represented by such Global Receipt, (ii) shall be registered
in the name of The Depositary Trust Company ("DTC") or in the name of Cede & Co.
or of another nominee, as nominee of DTC, (iii) shall be delivered to DTC or
pursuant to DTC's instructions and (iv) shall bear a legend substantially to the
following effect:
Unless and until it is exchanged in whole or in part for Receipts in
definitive form, this Receipt may not be transferred except as a whole by
The Depository Trust Company (55 Water Street, New York, New York) ("DTC"),
to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC
or by DTC or any such nominee to a successor depositary or a nominee of
such successor depositary. Unless this certificate is presented by an
authorized representative of DTC to the issuer or its agent for
registration of transfer, exchange, exercise or payment, and any
certificate issued is registered in the name of Cede & Co. or such other
name as requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
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A Global Receipt may be transferred, in whole but not in part, only to a
nominee of DTC for such Global Receipt, or to DTC, or to a successor depositary
selected or approved by the Company, or to a nominee of such successor
depositary.
If at any time DTC notifies the Company that it is unwilling or unable to
continue as depositary for such Global Receipt or if at any time DTC shall no
longer be eligible or in good standing under the Exchange Act or other
applicable statute or regulation, the Company shall appoint a successor
depositary with respect to such Global Receipt. If a successor depositary for
such Global Receipt is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the
Depositary will execute and deliver Certificated Receipts in exchange for such
Global Receipt, in an aggregate amount equal to the number of Depositary
Receipts represented by the Global Receipt exchanged for such Certificated
Receipts.
The Company may at any time and in its sole discretion determine that the
Receipts or any portion thereof issued or issuable in the form of one or more
Global Receipts shall no longer be represented by such Global Receipt or
Receipts. In such event the Depositary will execute at the Corporate Office and
deliver Certificated Receipts in exchange in whole or in part for such Global
Receipt or Receipts in an aggregate amount equal to the number of Receipts
represented by such Global Receipt or Receipts or portion thereof exchanged for
such Certificated Receipts.
In any exchange provided for in either of the two preceding paragraphs, the
Depositary will execute and deliver Certificated Receipts. Upon the exchange of
the entire number of Receipts represented by a Global Receipt, such Global
Receipt shall be cancelled by DTC. Except as provided in the preceding
paragraph, Certificated Receipts issued in exchange for a Global Receipt
pursuant to this Section shall be registered in such names and in such amounts
as DTC shall instruct the Depositary. The Depositary shall deliver such
Certificated Receipts to the holders of Depositary Receipts in whose names such
Certificated Receipts are so registered.
SECTION 2.4 Optional Redemption of Series B Preferred Stock for
Cash. Whenever the Company shall elect to redeem shares of Series B Preferred
Stock in accordance with the Certificate of Designations it shall (unless
otherwise agreed in writing with the Depositary) give the Depositary in its
capacity as Depositary notice of the date of such proposed redemption of the
Series B Preferred Stock, which notice shall be given not less than 5 Business
Days prior to the date the Depositary is to mail notice of the redemption to the
record holders of Receipts, in the case of a redemption of all outstanding
Depositary Shares, and not less than 10 days prior to the date the Depositary is
to mail notice of the redemption to the record holders of Receipts evidencing
the Depositary Shares to be redeemed, in the case of a partial redemption of
outstanding Depositary Shares, and be accompanied by a certificate from the
Company stating that such redemption of the Series B Preferred Stock is in
accordance with the provisions of the Certificate of Designations. Such notice
shall be in addition to the notice required to be given by the Company for
redemption pursuant to the Certificate of Designations. On the date of any such
redemption of Series B Preferred Stock, provided that the Company shall then
have deposited with the Depositary the cash required pursuant to the Certificate
of Designations to be delivered in exchange for the Series B Preferred Stock to
be redeemed, the Depositary shall redeem the number of Depositary Shares
representing such redeemed Series B Preferred Stock. The Depositary shall mail,
first class postage prepaid, notice of the redemption of Series B Preferred
Stock and the proposed simultaneous redemption of the Depositary Shares
representing the Series B Preferred Stock to be redeemed, not less than 15 and
not more than 30 days prior to the date fixed for redemption of such Series B
Preferred Stock and Depositary Shares (the "Redemption Date"), to the record
holders of the Receipts evidencing the Depositary Shares to be so redeemed, at
the addresses of such holders as they appear on the records of the Depositary;
but neither failure to mail any such notice to one or more such holders nor any
defect in any notice to one or more such holders shall affect the sufficiency of
the proceedings for redemption as to other holders. Each such notice shall
state: (i) the Redemption Date; (ii) the number of Depositary Shares to be
redeemed and, if less than all the Depositary Shares held by any such holder are
to be redeemed, the number of such Depositary Shares held by such holder to be
so redeemed; (iii) the redemption price (as set forth in the Certificate of
Designations); (iv) the place or places where Receipts evidencing Depositary
Shares are to be surrendered for payment of the redemption price; and (v) that
dividends in respect of the
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shares of Series B Preferred Stock represented by the Depositary Shares to be
redeemed will cease to accumulate on such Redemption Date. Notices shall be
mailed by the Company pursuant to the Certificate of Designations. In case fewer
than all the outstanding Depositary Shares are to be redeemed, the Depositary
Shares to be redeemed shall be selected by lot or pro rata (as nearly as may be)
or by any other equitable method determined by the Depositary to be consistent
with the method determined by the Board of Directors of the Company with respect
to the Series B Preferred Stock.
Notice having been mailed as aforesaid, from and after the Redemption Date
(unless the Company shall have failed to redeem the shares of Series B Preferred
Stock to be redeemed by it, as set forth in the Company's notice provided for in
the preceding paragraph), the Depositary Shares called for redemption shall be
deemed no longer to be outstanding and all rights of the holders of Receipts
evidencing such Depositary Shares (except the right to receive the redemption
consideration) shall, to the extent of such Depositary Shares, cease and
terminate. Upon surrender in accordance with said notice of the Receipts
evidencing such Depositary Shares (properly endorsed or assigned for transfer,
as the Depositary shall so require), such Depositary Shares shall be redeemed at
a rate per Depositary Share equal to 1/20 of the amount of cash delivered upon
redemption of a share of Series B Preferred Stock pursuant to the Certificate of
Designations.
If fewer than all the Depositary Shares evidenced by a Receipt are called
for redemption, the Depositary will deliver to the holder of such Receipt upon
its surrender to the Depositary, together with the amount of cash for the
Depositary Shares called for redemption, a new Receipt evidencing the Depositary
Shares evidenced by such prior Receipt and not called for redemption.
SECTION 2.5 Transfer of Receipts. Subject to the terms and conditions of
this Deposit Agreement, the Depositary shall make transfers on its books from
time to time of Receipts upon any surrender thereof at the Corporate Office or
such other office as the Depositary may designate by the holder in person or by
a duly authorized attorney, properly endorsed or accompanied by a properly
executed instrument of transfer or endorsement, or other instrument satisfactory
to the Depositary, together with evidence of the payment of any transfer taxes
as may be required by law. Upon such surrender, the Depositary shall execute a
new Receipt or Receipts and deliver the same to or upon the order of the person
or persons entitled thereto evidencing the same aggregate number of Depositary
Shares evidenced by the Receipt or Receipts surrendered.
SECTION 2.6 Registration of Transfer of Restricted Securities. The
following procedures and restrictions shall apply with respect to the
registration of any transfer of any Certificated Receipt (i) prior to the third
anniversary of the latest date of original issuance of the Receipts or (ii) on
behalf of a holder who was an Affiliate of the Company during the three months
preceding the date of such transfer.
The Depositary shall register the transfer of any Receipt bearing the
restrictive legend set forth in the form of the Receipt attached to this Deposit
Agreement as EXHIBIT A (the "Private Placement Legend"), if the requested
transferee is to take transfer of or otherwise receive such Receipt pursuant to
an effective registration statement under the Securities Act, or if the transfer
is: (i) to the Company, (ii) inside the United States to a person who is, or who
is reasonably believed by such transferor to be, a Qualified Institutional Buyer
(as indicated by the box checked by the transferor on the Certificate of
Transfer which forms part of the form of Receipt attached hereto as Exhibit A,
or a transfer instrument substantially in the form of such Certificate of
Transfer) in a transaction meeting the requirements of Rule 144A under the
Securities Act, (iii) pursuant to an exemption from registration set forth in
Rule 144 under the Securities Act, (iv) inside the United States to any person
reasonably believed by such transferor to be an Accredited Investor and who,
prior to such transfer, furnishes to the transferor, the Depositary and the
Company such certifications, legal opinions or other information as may be
reasonably required to confirm that such transferee is an Accredited Investor
and that such transfer is being made pursuant to an exemption from or in a
transaction not subject to the registration requirements of the Securities Act
or (v) outside the United States in compliance with Rule 904 under the
Securities Act (as indicated by the box checked by the transferor on the
Certificate of Transfer, or a transfer instrument substantially in the form of
such Certificate of Transfer). If the proposed transfer is to be made other than
pursuant to an effective registration statement under the Securities Act or to
the Company, the holder must, prior to such transfer, furnish to the Depositary,
such certifications, legal opinions or other
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information as it may reasonably require to confirm that such transfer is being
made pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act.
Upon the transfer, exchange or replacement of Certificated Receipts not
bearing the Private Placement Legend, the Depositary shall deliver Certificated
Receipts that do not bear the Private Placement Legend. Upon the transfer,
exchange or replacement of Certificated Receipts bearing the Private Placement
Legend, the Depositary shall deliver only Certificated Receipts that bear the
Private Placement Legend unless (x) (i) the transferor is not an Affiliate of
the Company on the date of such transfer and has not been an Affiliate of the
Company during the three months preceding the date of such transfer and (ii)
such transfer occurs after the third anniversary of the latest date of original
issuance of the Receipts, (y) such transfer is pursuant to an effective
registration statement under the Securities Act or (z) such transfer occurs
after the expiration of any applicable "restricted period" pursuant to the
provisions of Regulation S under the Securities Act.
Notwithstanding any other provisions of this Deposit Agreement, so long as
a Global Receipt remains outstanding, unless the transferee shall otherwise
request in writing to the Depositary, no Certificated Receipt shall be issued or
authenticated in connection with the transfer of any Certificated Receipt
pursuant to the exception from registration under the Securities Act provided by
Rule 144A. Instead, upon acceptance for transfer of any Certificated Receipt,
the Depositary shall cancel such Certificated Receipt and shall, in lieu of
issuing a new Certificated Receipt in exchange for the Certificated Receipt
surrendered for registration of transfer, endorse on the schedule affixed to
such Global Receipt (or on a continuation of such schedule affixed to such
Global Receipt and made a part thereof) an appropriate notation evidencing the
date and an increase in the number of Receipts represented by such Global
Receipt in an amount equal to the number of Receipts represented by such
Certificated Receipt. All provisions of this Section 2.6 relating to the
transfer of Receipts shall apply to any transfer resulting in an increase in the
number of Receipts represented by such Global Receipt. The Depositary shall
notify DTC promptly of any increase in the number of Receipts represented by any
Global Receipt.
Notwithstanding any other provisions of this Deposit Agreement, resales or
other transfers of Receipts represented by a Global Receipt made in compliance
with Rule 144A or made on or subsequent to the date that is the later of three
years after (i) latest date of the original issuance of the Receipts or (ii) the
date such Receipts (or any predecessor Receipts) were transferred by a holder
that had been an Affiliate of the Company within three months prior to any such
sale, will be conducted according to the applicable rules and procedures of DTC
and without notice to, or action by, the Depositary. Upon written notice (upon
which notice the Depositary may rely) from a participant in DTC's system having
an interest in the Receipts represented by a Global Receipt that such
participant (or a beneficial owner who holds an interest in the Receipts through
such participant) intends to resell or transfer such Receipts otherwise than
pursuant to Rule 144A prior to the later of three years after (i) the latest
date of original issuance of the Receipts or (ii) the date such Receipts (or any
predecessor Receipts) were transferred by a holder that had been an Affiliate of
the Company within three months prior to any such sale, and upon satisfaction by
the transferor and, if applicable, the transferee, of the conditions necessary
for the registration of transfer of a Receipt set out in the first two
paragraphs of this Section 2.6, the Depositary shall be and is authorized by the
holder of such Global Receipt, by its acceptance thereof, to endorse on the
schedule affixed to such Global Receipt (or on a continuation of such schedule
affixed to such Global Receipt and made a part thereof) an appropriate notation
evidencing the date and the reduction in the number of Receipts represented by
such Global Receipt equal to the number of Receipts represented by such Global
Receipt being transferred and shall countersign and deliver a Certificated
Receipt registered in the name of the transferee or its nominee for an equal
number of Receipts. The Depositary shall notify DTC promptly of any decrease in
the number of Receipts represented by any Global Receipt.
Certificated Receipts bearing the Private Placement Legend and related
documentation may be amended or supplemented from time to time in accordance
with Section 6.1 either (a) to modify the restrictions on, and procedures for,
resales and other transfers of the Receipts represented by such Certificated
Receipts to reflect any change in applicable law or regulation (or the
interpretation thereof) or provide alternative procedures in compliance with
applicable law and practices relating to the resale or other transfer of
restricted securities (within the meaning of Rule 144) generally or (b) to
accommodate the issuance, if any, of Receipts in book-
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entry form and matters related thereto (although no such amendment or supplement
may require that a Receipt outstanding at the time such amendment or supplement
becomes effective be placed in book-entry form). Each holder of any Receipts
shall be deemed, by the acceptance of such Receipts, to have agreed to any such
amendment or supplement.
The Depositary and the Company and all holders of Receipts shall be
entitled to rely without further investigation on any certification by any
transferor on the Certificate of Transfer or any instrument substantially in the
form thereof. Unless a transferor required to provide a Certificate of Transfer
shall certify thereon that it is or, within the period during which it held such
Receipt, was an Affiliate of the Company, such transferor shall be deemed to
have represented that it is not nor has it been at any time during the period
which is held such Receipt an Affiliate of the Company.
SECTION 2.7 Combinations and Split-ups of Receipts. Upon surrender of a
Receipt or Receipts at the Corporate Office or such other office as the
Depositary may designate for the purpose of effecting a split-up or combination
of Receipts, subject to the terms and conditions of this Deposit Agreement, the
Depositary shall issue a new Receipt or Receipts in the authorized denominations
requested evidencing the same aggregate number of Depositary Shares evidenced by
the Receipt or Receipts surrendered; provided, however, that the Depositary
shall not issue any Receipt evidencing a fractional Depositary Share.
SECTION 2.8 Surrender of Receipts and Withdrawal of Series B Preferred
Stock. Any holder of a Receipt or Receipts may withdraw any or all of the
Series B Preferred Stock (but only in whole shares of Series B Preferred Stock)
represented by the Depositary Shares evidenced by such Receipts and all money
and other property, if any, represented by such Depositary Shares by
surrendering such Receipt or Receipts at the Corporate Office or at such other
office as the Depositary may designate for such withdrawals. After such
surrender, without unreasonable delay, the Depositary shall deliver to such
holder, or to the person or persons designated by such holder as hereinafter
provided, certificates for the whole number of shares of Series B Preferred
Stock and all such money and other property, if any, represented by the
Depositary Shares evidenced by the Receipt or Receipts so surrendered for
withdrawal. If the Receipt or Receipts delivered by the holder to the Depositary
in connection with such withdrawal shall evidence a number of Depositary Shares
in excess of the number of whole Depositary Shares representing the number of
shares of Series B Preferred Stock to be withdrawn, the Depositary shall at the
same time, in addition to such whole number of shares of Series B Preferred
Stock and such money and other property, if any, to be withdrawn, deliver to
such holder, or (subject to Section 2.5) upon his order, a new Receipt or
Receipts evidencing such excess number of whole Depositary Shares. Delivery of
the Series B Preferred Stock and such money and other property being withdrawn
may be made by the delivery of such certificates, documents of title and other
instruments as the Depositary may deem appropriate, which, as required by the
Depositary, shall be properly endorsed or accompanied by proper instruments of
transfer.
If the Series B Preferred Stock and the money and other property being
withdrawn are to be delivered to a person or persons other than the record
holder of the Receipt or Receipts being surrendered for withdrawal of Series B
Preferred Stock, such holder shall execute and deliver to the Depositary a
written order so directing the Depositary and the Depositary may require that
the Receipt or Receipts surrendered by such holder for withdrawal of such shares
of Series B Preferred Stock be properly endorsed in blank or accompanied by a
properly executed instrument of transfer or endorsement in blank.
The Depositary shall deliver the Series B Preferred Stock and the money and
other property, if any, represented by the Depositary Shares evidenced by
Receipts surrendered for withdrawal at the Corporate Office, except that, at the
request, risk and expense of the holder surrendering such Receipt or Receipts
and for the account of the holder thereof, such delivery may be made at such
other place as may be designated by such holder. Shares of Series B Preferred
Stock withdrawn pursuant to this Section 2.8 may not thereafter be redeposited
under the terms of this Deposit Agreement in exchange for Depositary Receipts
evidencing Depositary Shares.
SECTION 2.9 Limitations on Execution and Delivery, Transfer, Split-up,
Combination, Redemption, Surrender and Exchange of Receipts. As a condition
precedent to the execution and delivery, transfer, split-up, combination,
redemption, surrender or exchange of any Receipt or the exercise of any
conversion right
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referred to in Section 2.12, the Depositary, any of the Depositary's Agents or
the Company may require any or all of the following: (i) payment to it of a sum
sufficient for the payment (or, in the event that the Depositary or the Company
shall have made such payment, the reimbursement to it) of any tax (including
applicable interest, penalties or additions) or other governmental charge with
respect thereto (including any such tax or charge with respect to the Series B
Preferred Stock being deposited or withdrawn or with respect to the Common Stock
(as defined in Section 2.12) or other securities or property of the Company
being issued upon conversion or redemption); (ii) the production of proof
satisfactory to it as to the identity and genuineness of any signature; and
(iii) compliance with such regulations, if any, as the Depositary or the Company
may establish consistent with the provisions of this Deposit Agreement.
The deposit of Series B Preferred Stock may be refused, the delivery of
Receipts against Series B Preferred Stock may be suspended, the transfer of
Receipts may be refused, and the transfer, split-up, combination, surrender or
exchange of outstanding Receipts may be suspended (i) during any period when the
register of stockholders of the Company is closed, or (ii) if any such action is
deemed necessary or advisable by the Depositary, any of the Depositary's Agents
or the Company at any time or from time to time because of any requirement of
law or of any government or governmental body or commission, under any provision
of this Deposit Agreement, or for any other reason.
SECTION 2.10 Lost Receipts, etc. In case any Receipt shall be mutilated
or destroyed or lost or stolen, the Depositary in its discretion may execute and
deliver a Receipt of like form and tenor in exchange and substitution for such
mutilated Receipt or in lieu of and in substitution for such destroyed, lost or
stolen Receipt; provided that the holder thereof provides the Depositary with
(i) evidence satisfactory to the Depositary of such destruction, loss or theft
of such Receipt, of the authenticity thereof and of his ownership thereof, (ii)
reasonable indemnification satisfactory to the Depositary and (iii) payment of
any expense (including fees, charges and expenses of the Depositary) in
connection with such execution and delivery.
SECTION 2.11 Cancellation and Destruction of Surrendered Receipts. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary and returned to the Company. Except as prohibited by
applicable law or regulation the Company may destroy such Receipts so cancelled.
SECTION 2.12 Optional Conversion of Series B Preferred Stock into Common
Stock. At any time after 90 days following the latest date of original issue of
any shares of Series B Preferred Stock, Receipts may be surrendered with written
instructions to the Depositary to instruct the Company to cause the conversion
of any specified number of whole shares of Series B Preferred Stock represented
by whole Depositary Shares evidenced by such Receipts into whole shares of
common stock, par value $0.01 per share, of the Company ("Common Stock"), and
cash for any fractional share amount at the conversion price then in effect for
the Series B Preferred Stock pursuant to the Certificate of Designations, as
such conversion price may be adjusted by the Company from time to time as
provided in the Certificate of Designations. Subject to the terms and conditions
of this Deposit Agreement and the Certificate of Designations, a holder of a
Receipt or Receipts evidencing Depositary Shares representing whole or
fractional shares of Series B Preferred Stock may surrender such Receipt or
Receipts at the Corporate Office or at such office or to such Depositary's
Agents as the Depositary may designate for such purpose, together with a notice
of conversion duly completed and executed, thereby directing the Depositary to
instruct the Company to cause the conversion of the number of whole shares of
underlying Series B Preferred Stock specified in such notice of conversion into
shares of Common Stock, and an assignment of such Receipt or Receipts to the
Company or in blank, duly completed and executed. To the extent that a holder
delivers to the Depositary for conversion a Receipt or Receipts which in the
aggregate are convertible into less than one whole share of Common Stock, the
holder shall receive payment in cash in lieu of such fractional share of Common
Stock otherwise issuable. If more than one Receipt shall be delivered for
conversion at one time by the same holder, the number of whole shares of Common
Stock issuable upon conversion thereof shall be computed on the basis of the
aggregate number of Depositary Shares represented by the Receipts so delivered.
Upon receipt by the Depositary of a Receipt or Receipts, together with
notice of conversion, duly completed and executed, directing the Depositary to
instruct the Company to cause the conversion of a specified number of shares of
Series B Preferred Stock, and an assignment of such Receipt or Receipts to the
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Company or in blank, duly completed and executed, the Depositary shall instruct
the Company (i) to cause the conversion of the number of whole shares of Series
B Preferred Stock represented by the Depositary Shares evidenced by the Receipts
so surrendered for conversion as specified in the written notice to the
Depositary and (ii) to cause the delivery to the holders of such Receipts of a
certificate or certificates evidencing the number of whole shares of Common
Stock and the amount of money, if any, to be delivered to the holders of
Receipts surrendered for conversion in lieu of fractional shares of Common Stock
otherwise issuable. The Company shall as promptly as practicable after receipt
thereof cause the delivery of (i) a certificate or certificates evidencing the
number of whole shares of Common Stock into which the Series B Preferred Stock
represented by the Depositary Shares evidenced by such Receipt or Receipts has
been converted, and (ii) any money or other property to which the holder is
entitled by reason of such conversion. Upon such conversion, the Depositary (i)
shall deliver to the holder a Receipt evidencing the number of Depositary Shares
evidenced by the surrendered Receipt in excess of the number of Depositary
Shares evidenced by such Receipt that has been so converted, (ii) shall cancel
the Depositary Shares evidenced by Receipts surrendered for conversion and (iii)
shall deliver to the Company or its transfer agent for the Series B Preferred
Stock for cancellation the shares of Series B Preferred Stock represented by the
Depositary Shares evidenced by the Receipts so surrendered and so converted.
Upon the delivery of the shares of Series B Preferred Stock to be cancelled due
to such conversion by the Depositary to the Company, the Company shall deliver
to the Depositary a certificate or certificates evidencing the number of shares
of Series B Preferred Stock, if any, that equals the excess of the number of
shares of Series B Preferred Stock evidenced by the surrendered certificate over
the number of shares of Preferred Stock evidenced by that certificate that have
been so converted.
If Series B Preferred Stock shall be called by the Company for redemption,
the Depositary Shares representing such stock may be converted into Common Stock
as provided in this Deposit Agreement until, but not after, the close of
business on the day preceding the Redemption Date, unless the Company shall fail
to deposit with the Depositary the amount of cash required to redeem the Series
B Preferred Stock held by the Depositary, in which case the Depositary Shares
representing such Series B Preferred Stock may continue to be converted into
Common Stock until, but not after, the close of business on the date on which
the Company deposits with the Depositary such amount of cash as is required by
the Certificate of Designations to make full payment of the amounts payable upon
such redemption.
The record holder of Depositary Shares on any dividend payment record date
established by the Depositary shall be entitled to receive the dividend payable
with respect to such Depositary Shares on the corresponding dividend payment
date notwithstanding the conversion subsequent to such record date of the shares
of Series B Preferred Stock to which such Depositary Shares relate. However, any
Receipts surrendered with instructions to the Depositary for conversion of the
underlying Series B Preferred Stock during the period from the close of business
on a dividend payment record date for any dividend payment date, through the
close of business on the day next preceding such dividend payment date shall
(unless such underlying Series B Preferred Stock shall have been called for
redemption on a Redemption Date in such period) be accompanied by payment of an
amount equal to the dividend payable on the Depositary Shares evidenced by the
Receipts surrendered for conversion, on such dividend payment date.
Upon the conversion of any share of Series B Preferred Stock for which a
request for conversion has been made by the holder of Depositary Shares
representing such share, all dividends in respect of such Depositary Shares
shall cease to accrue, such Depositary Shares shall be deemed no longer
outstanding, all rights of the holder of the Receipt with respect to such
Depositary Shares (except the right to receive the Common Stock, any cash
payable with respect to any fractional shares of Common Stock as provided herein
and any cash payable on account of accrued dividends as provided herein and any
Receipts evidencing Depositary Shares not so converted) shall terminate, and the
Receipt evidencing such Depositary Shares shall be cancelled in accordance with
Section 2.11 hereof.
No fractional shares of Common Stock shall be issuable upon conversion of
Series B Preferred Stock underlying the Depositary Shares. If any holder of
Receipts surrendered with instructions to the Depositary for conversion of the
underlying Series B Preferred Stock would be entitled to a fractional share of
Common
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Stock upon such conversion, the Company shall cause to be delivered to such
holder an amount in cash for such fractional share as provided in the
Certificate of Designations.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.1 Filing Proofs, Certificates and Other Information. Any person
presenting Series B Preferred Stock for deposit or any holder of a Receipt may
be required from time to time to file such proof of residence or other
information, to execute such certificates and to make such representations and
warranties as the Depositary or the Company may reasonably deem necessary or
proper. The Depositary or the Company may withhold or delay the delivery of any
Receipt, the transfer, redemption or exchange of any Receipt, the withdrawal of
the Series B Preferred Stock represented by the Depositary Shares evidenced by
any Receipt, the distribution of any dividend or other distribution, the sale of
any rights or of the proceeds thereof, the exercise of any conversion right
referred to in Section 2.12 or the delivery of any Common Stock upon such
conversion until such proof or other information is filed, such certificates are
executed or such representations and warranties are made.
SECTION 3.2 Payment of Taxes or Other Governmental Charges. If any tax
(including applicable interest, penalties or additions) or other governmental
charge shall become payable by or on behalf of the Depositary with respect to
any Receipt, the Depositary Shares evidenced by such Receipt, the Series B
Preferred Stock (or any fractional interest therein) represented by such
Depositary Shares, the exercise of any conversion right referred to in Section
2.12 or any transaction referred to in Section 4.6 with respect to a Receipt or
the Series B Preferred Stock represented by such Receipt, such tax (including
transfer, issuance or acquisition taxes, if any) or governmental charge shall be
payable by the holder of such Receipt. Until such payment is made, transfer of
any Receipt or any withdrawal of the Series B Preferred Stock or money or other
property, if any, represented by the Depositary Shares evidenced by such Receipt
may be refused, any dividend or other distribution may be withheld, conversion
rights may be refused and any part or all of the Series B Preferred Stock or
other property represented by the Depositary Shares evidenced by such Receipt
may be sold for the account of the holder thereof (after attempting by
reasonable means to notify such holder prior to such sale). Any dividend or
other distribution so withheld and the proceeds of any such sale may be applied
to any payment of such tax or other governmental charge, the holder of such
Receipt remaining liable for any deficiency. In the event the Depositary is
required to pay any such amounts, the Company shall reimburse the Depositary for
payment thereof upon the request of the Depositary and the Depositary shall,
upon the Company's request and as instructed by the Company, pursue its rights
against such holder at the Company's expense.
SECTION 3.3 Representations and Warranties as to Series B Preferred
Stock. Each person (including, without limitation, the Company) depositing
Series B Preferred Stock under this Deposit Agreement shall be deemed to thereby
represent and warrant that such Series B Preferred Stock and each certificate
therefor are valid, fully paid and nonassessable shares and that the person
making such deposit is duly authorized to do so. Such representations and
warranties shall survive the deposit of the shares of Series B Preferred Stock
and the issuance of Receipts.
ARTICLE IV
DIVIDENDS AND DISTRIBUTIONS AND THE SERIES B
PREFERRED STOCK NOTICES
SECTION 4.1 Cash Distributions. Whenever the Depositary shall receive any
cash dividend or other cash distribution on the Series B Preferred Stock, the
Depositary shall, subject to Section 3.2, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.4 such amounts of such
sum as are, as nearly as practicable, attributable to the respective numbers of
Depositary Shares evidenced by the Receipts held by such holders; provided,
however, that in case the Company or the Depositary shall be
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required to withhold and does withhold from any cash dividend or other cash
distributed in respect of the Series B Preferred Stock an amount on account of
taxes, the amount made available for distribution or distributed in respect of
Depositary Shares shall be reduced accordingly. The Depositary shall distribute
or make available for distribution, as the case may be, only such amount,
however, as can be distributed without attributing to any owner of Depositary
Shares a fraction of one cent and any balance not so distributable shall be
rounded to the next highest whole cent and, upon request of the Depositary, the
Company shall pay the additional amount to the Depositary for distribution.
SECTION 4.2 Distributions Other Than Cash. Whenever the Depositary shall
receive any distribution other than cash on the Series B Preferred Stock, the
Depositary shall, subject to Section 3.2, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.4 such amounts of the
securities or property received by it as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders, in any manner that the Depositary and the Company
may deem equitable and practicable for accomplishing such distribution. If, in
the opinion of the Company after consultation with the Depositary, such
distribution cannot be made proportionately among such record holders, or if for
any other reason (including any requirement that the Company or the Depositary
withhold an amount on account of taxes or as otherwise required by law,
regulation, or court process), the Depositary deems, after consultation with the
Company, such distribution not to be feasible, the Depositary may, with the
approval of the Company, adopt such method as it deems equitable and practicable
for the purpose of effecting such distribution, including the sale (a public or
private sale) of the securities or property thus received, or any part thereof,
at such place or places and upon such terms as it may deem proper. The net
proceeds of any such sale shall, subject to Section 3.2, be distributed or made
available for distribution, as the case may be, by the Depositary to record
holders of Receipts as provided by Section 4.1 in the case of a distribution
received in cash.
SECTION 4.3 Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Series B Preferred Stock is registered on the books of the Company any
rights, preferences or privileges to subscribe for or to purchase any securities
or any rights, preferences or privileges of any other nature, such rights,
preferences or privileges shall, in each such instance be made available by the
Depositary to the record holders of Receipts if the Company so directs in such
manner as the Company shall instruct (including by the issuance to such record
holders of warrants representing such rights, preferences or privileges);
provided, however, that (a) if at the time of issue or offer of any such rights,
preferences or privileges the Company determines that it is not lawful or
feasible to make such rights, preferences or privileges available to some or all
holders of Receipts (by the issue of warrants or otherwise) or (b) if and to the
extent instructed by holders of Receipts who do not desire to exercise such
rights, preferences or privileges, the Depositary shall then, if so instructed
by the Company, and if applicable laws or the terms of such rights, preferences
or privileges so permit, sell such rights, preferences or privileges of such
holders at public or private sale, at such place or places and upon such terms
as it may deem proper. The net proceeds of any such sale shall be distributed by
the Depositary to the record holders of Receipts entitled thereto as provided by
Section 4.1 in the case of a distribution received in cash.
If registration under the Securities Act of the securities to which any
rights, preferences or privileges relate is required in order for holders of
Receipts to be offered or sold the securities to which such rights, preferences
or privileges relate, the Company will promptly file a registration statement
pursuant to the Securities Act with respect to such rights, preferences or
privileges and securities and use its best efforts to cause such registration
statement to become effective sufficiently in advance of the expiration of such
rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges. In no event shall the Depositary make
available to the holders of Receipts any right, preference or privilege to
subscribe for or to purchase any securities unless and until the Depositary
receives written notice and an opinion of counsel from the Company that a
registration statement shall have become effective or the offering and sale of
such securities to such holders are exempt from registration under the
provisions of the Securities Act.
If any other action under the law of any jurisdiction or any governmental
or administrative authorization, consent or permit is required in order for such
rights, preferences or privileges to be made available to holders of Receipts,
the Company will use its best efforts to take such action or obtain such
authorization, consent or
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permit sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges.
SECTION 4.4 Notice of Dividends, Fixing of Record Date for Holders of
Receipts. Whenever any cash dividend or other cash distribution shall become
payable, any distribution other than cash shall be made, or any rights,
preferences or privileges shall at any time be offered, with respect to the
Series B Preferred Stock or the Depositary shall receive notice of (i) any
meeting at which holders of Series B Preferred Stock are entitled to vote or of
which holders of Series B Preferred Stock are entitled to notice or (ii) any
election on the part of the Company to redeem any shares of Series B Preferred
Stock, the Depositary shall in each such instance fix a record date (which shall
be the same date as the record date fixed by the Company in respect of the
Series B Preferred Stock) for the determination of the holders of Receipts who
shall be entitled to receive such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, to give instructions for the
exercise of voting rights at any such meeting or to receive notice of such
meeting or whose Depositary Shares are to be so redeemed.
SECTION 4.5 Voting Rights. Upon receipt of notice of any meeting at which
the holders of Series B Preferred Stock are entitled to vote, the Depositary
shall, as soon as practicable (but in no event more than two business days)
thereafter, mail to the record holders of Receipts a notice, which shall be
provided by the Company and which shall contain (i) such information as is
contained in such notice of meeting, (ii) a statement that the holders of
Receipts at the close of business on a specified record date fixed pursuant to
Section 4.4 will be entitled, subject to any applicable provision of law, the
Certificate of Incorporation or the Certificate of Designations, to instruct the
Depositary as to the exercise of the voting rights pertaining to the amount of
Series B Preferred Stock represented by their respective Depositary Shares and
(iii) a brief statement as to the manner in which such instructions may be
given. Upon the written request of a holder of a Receipt on such record date,
the Depositary shall endeavor insofar as practicable to vote or cause to be
voted the number of shares of Series B Preferred Stock represented by the
Depositary Shares evidenced by such Receipt in accordance with the instructions
set forth in such request. The Company hereby agrees to take all reasonable
action that may be deemed necessary by the Depositary in order to enable the
Depositary to vote such shares of Series B Preferred Stock or cause such shares
of Series B Preferred Stock to be voted. In the absence of specific instructions
from the holder of a Receipt, the Depositary will abstain from voting to the
extent of the Series B Preferred Stock represented by the Depositary Shares
evidenced by such Receipt. After aggregating all voting Depositary Shares, the
Depositary will disregard for voting purposes any fractional share of Series B
Preferred Stock remaining.
SECTION 4.6 Changes Affecting Series B Preferred Stock and
Reclassifications, Recapitalizations, etc. Upon any split-up, consolidation or
any other reclassification of Series B Preferred Stock, or upon any
recapitalization, reorganization, merger, amalgamation or consolidation
affecting the Company or to which it is a party or sale of all or substantially
all of the Company's assets, the Depositary shall, upon the instructions of the
Company, treat any shares of stock or other securities or property (including
cash) that shall be received by the Depositary in exchange for or upon
conversion of or in respect of the Series B Preferred Stock as new deposited
property under this Deposit Agreement, and Receipts then outstanding shall
thenceforth represent the proportionate interests of holders thereof in the new
deposited property so received in exchange for or upon conversion or in respect
of such Series B Preferred Stock. In any such case the Depositary may, in its
discretion, with the approval of the Company, execute and deliver additional
Receipts, or may call for the surrender of all outstanding Receipts to be
exchanged for new Receipts specifically describing such new deposited property.
ARTICLE V
THE DEPOSITARY AND THE COMPANY
SECTION 5.1 Maintenance of Offices, Agencies, Transfer Books by the
Depositary; the Registrar. Upon execution of this Deposit Agreement in
accordance with its terms, the Depositary shall maintain at the Corporate Office
facilities for the execution and delivery, transfer, surrender and exchange,
split-up, combination and redemption of Receipts and deposit and withdrawal of
Series B Preferred Stock and at the
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offices of the Depositary's Agents, if any, facilities for the delivery,
transfer, surrender and exchange, split-up, combination, conversion and
redemption of Receipts and deposit and withdrawal of Series B Preferred Stock,
all in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Corporate Office for the
registration and transfer of Receipts, which books at all reasonable times and
during normal business hours shall be open for inspection by the record holders
of Receipts as provided by applicable law; provided, that any such holder
requesting to exercise such right shall certify to the Depositary that such
inspection shall be for a proper purpose reasonably related to such person's
interest as an owner of Depositary Shares evidenced by the Receipts. The
Depositary shall consult with the Company upon receipt of any request for
inspection and shall not permit such inspection unless authorized by the Company
in writing. The Depositary may close such books, at any time or from time to
time, when deemed expedient by it in connection with the performance of its
duties hereunder.
The Depositary shall make available for inspection by holders of Receipts
at the Corporate Office and at such other places as it may from time to time
deem advisable during normal business hours any reports and communications
received from the Company that are both received by the Depositary as the holder
of Series B Preferred Stock and made generally available to the holders of
Series B Preferred Stock.
Promptly upon request from time to time by the Company, the Depositary
shall, at the Company's sole expense, furnish to it a list, as of a recent date,
of the names, addresses and holdings of Depositary Shares of all persons in
whose names Receipts are registered on the books of the Depositary.
If the Receipts, the Depositary Shares evidenced thereby or the Series B
Preferred Stock represented by such Depositary Shares are listed on one or more
stock exchanges or on the Nasdaq National Market ("Nasdaq"), the Depositary
will, at the request of the Company, arrange such facilities for the delivery,
transfer, surrender and exchange of such Receipts, such Depositary Shares or
such Series B Preferred Stock as may be required by law or applicable stock
exchange or Nasdaq regulations.
SECTION 5.2 Prevention or Delay in Performance by the Depositary, the
Depositary's Agents or the Company. Neither the Depositary, the Registrar nor
any Depositary's Agent nor the Company shall incur any liability to any holder
of any Receipt, if by reason of any provision of any present or future law or
regulation thereunder of the United States of America or of any other
governmental authority or, in the case of the Depositary or the Depositary's
Agent, by reason of any provision, present or future, of the Certificate of
Incorporation or the Certificate of Designations or, in the case of the Company,
the Depositary or the Depositary's Agent, by reason of any act of God or war or
other circumstance beyond the control of the relevant party, the Depositary, any
Depositary's Agent or the Company shall be prevented or forbidden from doing or
performing any act or thing that the terms of this Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary's Agent or
the Company incur any liability to any holder of a Receipt by reason of any
nonperformance or delay, caused as aforesaid, in the performance of any act or
thing that the terms of this Deposit Agreement provide shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement.
SECTION 5.3 Obligations of the Depositary, the Depositary's Agents and the
Company. Neither the Depositary, the Registrar, any Depositary's Agent nor the
Company assumes any obligation or shall be subject to any liability under this
Deposit Agreement or any Receipt to holders of Receipts other than for their
negligence (including the failure to meet customary trade practice) or willful
misconduct and that each of them agrees to act in good faith in the performance
of such duties as are specifically set forth in this Deposit Agreement.
Neither the Depositary, the Registrar nor any Depositary's Agent nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to the Series B Preferred Stock,
Depositary Shares, Receipts or Common Stock that in its opinion may involve it
in expense or liability, unless indemnity satisfactory to it against all expense
and liability be furnished as often as may be required.
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Neither the Depositary, the Registrar, any Depositary's Agent nor the
Company shall be liable for any action or any failure to act by it in reliance
upon the advice of or information from legal counsel, any person presenting
Series B Preferred Stock for deposit, any holder of a Receipt or any other
person believed by it in good faith to be competent to give such advice or
information. The Depositary, any Depositary's Agent and the Company may each
rely and shall each be protected in acting upon any written notice, request,
direction or other document believed by it to be genuine and to have been signed
or presented by the proper party or parties.
The Depositary, its parent, affiliates, or subsidiaries, the Registrar and
any Depositary's Agent may own, buy, sell or deal in any class of securities of
the Company and its affiliates and in Receipts or Depositary Shares or become
pecuniarily interested in any transaction in which the Company and its
affiliates may be interested or contract with or lend money to or otherwise act
as fully or as freely as if the Depositary, the Registrar or the Depositary's
Agent, as the case may be, was not the Depositary, the Registrar or the
Depositary's Agent hereunder. The Depositary may also act as transfer agent or
registrar of any of the securities of the Company and its affiliates.
It is intended that neither the Depositary nor any Depositary's Agent shall
be deemed to be an "issuer" of the securities under the federal securities laws
or applicable state securities laws, it being expressly understood and agreed
that the Depositary and any Depositary's Agent are acting only in a ministerial
capacity as Depositary for the Series B Preferred Stock. The Depositary agrees
to comply with all information reporting and withholding requirements applicable
to it under law or this Deposit Agreement in its capacity as Depositary.
The Depositary shall act as the withholding agent for any payments,
distributions, and exchanges made with respect to the Depositary Shares and
Receipts, and the Series B Preferred Stock, Common Stock or other securities or
assets represented thereby (collectively, the "Securities"). The Depositary
shall be responsible with respect to the Securities for the timely (i)
collection and deposit of any required withholding or backup withholding tax,
and (ii) filing of any information returns or other documents with Federal
taxing authorities.
SECTION 5.4 Resignation and Removal of the Depositary, Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by notice of its election to do so delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of such
removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$150,000,000. If a successor depositary shall not have been appointed in 60
days, the resigning Depositary may petition a court of competent jurisdiction to
appoint a successor depositary. Every successor depositary shall execute and
deliver to its predecessor and to the Company an instrument in writing accepting
its appointment hereunder, and thereupon such successor depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon payment of
all sums due it and on the written request of the Company, shall promptly
execute and deliver an instrument transferring to such successor all rights and
powers of such predecessor hereunder, shall duly assign, transfer and deliver
all rights, title and interest in the Series B Preferred Stock and any moneys or
property held hereunder to such successor and shall deliver to such successor a
list of the record holders of all outstanding Receipts and such other records
respecting the Receipts, the Depositary Shares and the Series B Preferred Stock
as the successor shall require in order to perform its duties. Any successor
depositary shall promptly mail notice of its appointment to the record holders
of Receipts.
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<PAGE> 16
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act. Such successor
depositary may execute the Receipts either in the name of the predecessor
depositary or in the name of the successor depositary.
SECTION 5.5 Corporate Notices and Reports. The Company agrees that it
will deliver to the Depositary, and the Depositary will, promptly (but in no
event more than two business days) after receipt thereof, transmit to the record
holders of Receipts, in each case at the address recorded in the Depositary's
books, copies of all notices and reports (including financial statements)
required by law, by the rules of any national securities exchange or Nasdaq upon
which the Series B Preferred Stock, the Depositary Shares or the Receipts may be
listed or by the Certificate of Incorporation and the Certificate of
Designations to be furnished by the Company to holders of Series B Preferred
Stock. Such transmission will be at the Company's expense and the Company will
provide the Depositary with such number of copies of such documents as the
Depositary may reasonably request. In addition, the Depositary will transmit to
the record holders of Receipts at the Company's expense such other documents as
may be requested by the Company.
SECTION 5.6 Deposit of Series B Preferred Stock by the Company. The
Company agrees with the Depositary that neither the Company nor any company
controlled by the Company will at any time deposit any Series B Preferred Stock
if such Series B Preferred Stock is required to be registered under the
provisions of the Securities Act and no registration statement is at such time
in effect as to such Series B Preferred Stock.
SECTION 5.7 Indemnification by the Company. The Company agrees to
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any liability, costs and expenses (including
the reasonable fees and expenses of counsel) that may arise out of or in
connection with its acting as Depositary, Depositary's Agent or Registrar,
respectively, under this Deposit Agreement and the Receipts, except for any
liability arising out of negligence or bad faith on the part of any such person
or persons.
SECTION 5.8 Fees, Charges and Expenses. No fees, charges and expenses of
the Depositary or any Depositary's Agent hereunder or of any Registrar shall be
payable by any person other than the Company, except for any taxes (including
transfer taxes, if any) and other governmental charges and except as provided in
this Deposit Agreement. If the Depositary incurs fees, charges or expenses for
which it is not otherwise liable hereunder due to any action or inaction of a
holder of a Receipt or other person, such holder or other person will be liable
for such fees, charges and expenses. All other fees, charges and expenses of the
Depositary and any Depositary's Agent hereunder and of any Registrar (including,
in each case, the reasonable fees and expenses of counsel) incident to the
performance of their respective obligations hereunder will be paid upon
consultation and agreement between the Depositary and the Company as to the
amount and nature of such fees, charges and expenses. The Depositary shall
present its statement for fees, charges and expenses to the Company once every
month or at such other intervals as the Company and the Depositary may agree.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1 Amendment. The form of the Receipts and any provision of this
Deposit Agreement may at any time and from time to time be amended by agreement
between the Company and the Depositary in any respect that they may deem
necessary or desirable. Any amendment that shall impose any fees, taxes or
charges (other than taxes and other governmental charges, fees and expenses
provided for herein or in the Receipts), or that shall otherwise prejudice any
substantial existing right of holders of Receipts, shall not become effective as
to outstanding Receipts until the holders of record of Receipts representing not
less than 66 2/3% of the number of Depositary Shares then outstanding shall have
consented thereto in writing or by voting therefor in person or by proxy at a
meeting held on notice for such purpose or any adjournment or adjournments
thereof. Every holder of an outstanding Receipt at the time any such amendment
becomes
16
<PAGE> 17
effective shall be deemed, by continuing to hold such Receipt, to consent and
agree to such amendment and to be bound by this Deposit Agreement as amended
thereby. In no event shall any amendment impair the right, subject to the
provisions of Sections 2.4, 2.5, 2.8, 2.9 and 2.12 and Article III, of any owner
of any Depositary Shares to surrender the Receipt evidencing such Depositary
Shares with instructions to the Depositary to deliver to the holder the
underlying Series B Preferred Stock or to cause the conversion of the underlying
Series B Preferred Stock into Common Stock and cash for fractional shares and,
in each case, all money and other property, if any, represented thereby, except
in order to comply with mandatory provisions of applicable law.
SECTION 6.2 Termination. Whenever so directed by the Company, the
Depositary will terminate this Deposit Agreement by mailing notice of such
termination to the record holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. The Depositary
may likewise terminate this Deposit Agreement if at any time 60 days shall have
expired after the Depositary shall have delivered to the Company a written
notice of its election to resign and a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.4. If any
Receipts remain outstanding after the date of termination, the Depositary
thereafter will discontinue the transfer of Receipts, will suspend the
distribution of dividends to the holders thereof, and will not give any further
notices (other than notice of such termination) or perform any further acts
under this Deposit Agreement except as provided below and except that the
Depositary will continue (i) to collect dividends on the Series B Preferred
Stock and any other distributions with respect thereto and (ii) to deliver
Series B Preferred Stock together with such dividends and distributions and the
net proceeds of any sales of rights, preferences, privileges or other property,
without liability for interest thereon, in exchange for Receipts surrendered. At
any time after the expiration of two years from the date of termination, the
Depositary may sell the Series B Preferred Stock then held by it at public or
private sales, at such place or places and upon such terms as it deems proper
and may thereafter hold the net proceeds of any such sale, together with any
money and other property then held by it, without liability for interest
thereon, for the pro rata benefit of the holders of Receipts which have not been
surrendered. In the event this Deposit Agreement is terminated and a sufficient
number of shares of Series B Preferred Stock remain outstanding, the Company
will use its best efforts to list the shares of Series B Preferred Stock with
Nasdaq (unless the holders of a majority of the outstanding shares of Series B
Preferred Stock shall consent to the Company not effecting such listing). Upon
termination, the Company and the Depositary shall be discharged from all
obligations under this Deposit Agreement, except from the Company's obligations
to the Depositary, any Depositary's Agent or any Registrar under Sections 5.7
and 5.8.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Counterparts. This Deposit Agreement may be executed by the
Company and the Depositary in separate counterparts, each of which counterparts,
when so executed an delivered, shall be deemed an original, but all such
counterparts taken together shall constitute one and the same instrument.
Delivery of an executed counterpart of a signature page to this Deposit
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Deposit Agreement. Copies of this Deposit Agreement shall be
filed with the Depositary and the Depositary's Agent at the Corporate Office and
the respective offices of the Depositary's Agents, if any.
SECTION 7.2 Exclusive Benefits of Parties. This Deposit Agreement is for
the exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
SECTION 7.3 Invalidity of Provisions. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
17
<PAGE> 18
SECTION 7.4 Notices. Any notices to be given to the Company hereunder or
under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by overnight, registered or certified
mail, or by telegram or telex confirmed by letter, addressed to the Company at
600 Technology Park Drive, Billerica, Massachusetts 01821; Attention: Richard L.
Buckingham, with a copy addressed to the Company's General Counsel at 600
Technology Park Drive, Billerica, Massachusetts 01821 or at such other address
as shall be specified by the Company by like notice. Any notices to be given to
the Depositary hereunder or under the Receipts shall be in writing and shall be
deemed to have been duly given if personally delivered or sent by overnight,
registered or certified mail, or by telegram or telex confirmed by letter,
addressed to the Depositary at 40 Wall Street, 46th Floor, New York, New York,
10005, Attention: Herbert J. Lemmer, General Counsel and Senior Vice President,
or at such other address as shall be specified by the Depositary by like notice.
Any notices given to any record holder of a Receipt hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or telex confirmed by
letter, addressed to such record holder at the address of such record holder as
it appears on the books of the Depositary or, if such holder shall have filed
with the Depositary a written request that notices intended for such holder be
mailed to some other address, at the address designated in such request.
Delivery of a notice sent by mail, or by telegram or telex shall be deemed
to be effected at the time when a duly addressed letter containing the same (or
a duly addressed letter confirming an earlier notice in the case of a telegram
or telex message) is deposited, postage prepaid, in a post office letter box.
The Depositary or the Company may, however, act upon any telegram or telex
message received by it from the other or from any holder of a Receipt,
notwithstanding that such telegram or telex message shall not subsequently be
confirmed by letter as aforesaid.
SECTION 7.5 Depositary's Agents. The Depositary may from time to time
appoint Depositary's Agents to act in any respect for the Depositary for the
purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will notify the Company in writing of any such action.
SECTION 7.6 Holders of Receipts Are Parties. The holders of Receipts from
time to time shall be deemed to be parties to this Deposit Agreement and shall
be bound by all of the terms and conditions hereof and of the Receipts by
acceptance of delivery thereof.
SECTION 7.7 Governing Law. This Deposit Agreement and the Receipts and
all rights hereunder and thereunder and provisions hereof and thereof shall be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to conflict of laws rules.
SECTION 7.8 Headings. The headings of articles and sections in this
Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to be regarded as a part of
this Deposit Agreement or the Receipts or to have any bearing upon the meaning
or interpretation of any provision contained herein or in the Receipts.
18
<PAGE> 19
IN WITNESS WHEREOF, the Company and the Depositary have duly executed this
agreement as of the day and year first above set forth and all holders of
Receipts shall become parties hereto by and upon acceptance by them of delivery
of Receipts issued in accordance with the terms hereof.
WANG LABORATORIES, INC.
By:
-------------------------------
Name:
Title:
AMERICAN STOCK TRANSFER &
TRUST COMPANY
By:
-------------------------------
Name:
Attest: Title:
Attest:
<PAGE> 20
EXHIBIT A
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES,
EACH REPRESENTING A 1/20 INTEREST IN A SHARE OF
6 1/2% SERIES B CUMULATIVE CONVERTIBLE PREFERRED STOCK,
PAR VALUE $0.01 PER SHARE
OF
WANG LABORATORIES, INC.
(INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE)
No. 1 [ ]
Depositary Shares
<PAGE> 21
CUSIP [ ]
American Stock Transfer & Trust Company, as Depositary (the "Depositary"),
hereby certifies that [ ] is the registered owner of [ ] Depositary
Shares (the "Depositary Shares"), each Depositary Share representing a 1/20
interest in a share of 6 1/2% Series B Cumulative Convertible Preferred Stock,
par value $0.01 per share (the "Series B Preferred Stock"), of Wang
Laboratories, Inc., a corporation duly organized and existing under the laws of
the State of Delaware (the "Company"), and the same proportionate interest in
any and all other property received by the Depositary in respect of such shares
of Series B Preferred Stock and held by the Depositary under the Deposit
Agreement (as defined below). Subject to the terms of the Deposit Agreement,
each owner of a Depositary Share is entitled, proportionately, to all the
rights, preferences and privileges of the Series B Preferred Stock represented
thereby, including the dividend, voting, conversion, liquidation and other
rights contained in the Certificate of Designations of the Series B Preferred
Stock establishing the rights, preferences, privileges and limitations of the
Series B Preferred Stock (the "Certificate of Designations"), copies of which
are on file at the office of the Depositary at which at any particular time its
business in respect of matters governed by the Deposit Agreement shall be
administered, which at the time of the execution of the Deposit Agreement is
located at the corporate office of the Depositary at which at any time its
depositary receipt business shall be administered (the "Corporate Office").
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY DEPOSITED STOCK.
THE DEPOSITARY ASSUMES NO RESPONSIBILITY FOR THE CORRECTNESS OF THE DESCRIPTION
SET FORTH IN THIS RECEIPT, WHICH CAN BE TAKEN AS A STATEMENT OF THE COMPANY
SUMMARIZING CERTAIN PROVISIONS OF THE DEPOSIT AGREEMENT. UNLESS EXPRESSLY SET
FORTH IN THE DEPOSIT AGREEMENT, THE DEPOSITARY MAKES NO WARRANTIES OR
REPRESENTATIONS AS TO THE VALIDITY, GENUINENESS OR SUFFICIENCY OF ANY STOCK AT
ANY TIME DEPOSITED WITH THE DEPOSITARY UNDER THE DEPOSIT AGREEMENT OR OF THE
DEPOSITARY SHARES OR RECEIPTS (EXCEPT FOR ITS COUNTERSIGNATURES THEREON), AS TO
THE VALIDITY OR SUFFICIENCY OF THE DEPOSIT AGREEMENT, AS TO THE VALUE OF
DEPOSITARY SHARES OR AS TO ANY RIGHT, TITLE OR INTEREST OF THE RECORD HOLDERS OF
THE RECEIPTS IN AND TO THE DEPOSITARY SHARES.
The Company will furnish to any holder of a Receipt, without charge, upon
request addressed to its executive office or the office of its transfer agent, a
statement or summary of the powers, designations, preferences and relative,
participating, optional or other special rights of each authorized class of
capital stock of the Company, and of each series of preferred stock of the
Company authorized to be issued, so far as the same may have been fixed, and of
the qualifications, limitations or restrictions of such preferences and/or
rights.
This Depositary Receipt (the "Receipt") is continued on the reverse hereof
and the additional provisions therein set forth for all purposes have the same
effect as if set forth at this place.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed manually or, if a Registrar for the Receipts (other than the
Depositary) shall have been appointed, by facsimile by the Depositary by the
signature of a duly authorized officer thereof and, if executed by facsimile
signature of the Depositary, shall have been countersigned manually by such
Registrar by the signature of a duly authorized officer thereof.
Dated: February [ ], 1996
AMERICAN STOCK TRANSFER &
TRUST COMPANY
Depositary and Registrar
By
-----------------------------
Authorized Officer
1
<PAGE> 22
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) ("INSTITUTIONAL ACCREDITED
INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE SECURITY
EVIDENCED HEREBY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT WITHIN
THREE YEARS AFTER THE ORIGINAL ISSUANCE OF THE SECURITY EVIDENCED HEREBY RESELL
OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY EXCEPT (A) TO WANG
LABORATORIES, INC. OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT,
PRIOR TO SUCH TRANSFER, FURNISHES TO AMERICAN STOCK TRANSFER & TRUST COMPANY, AS
TRANSFER AGENT, A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED
HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH TRANSFER AGENT), (D)
OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT
OR (E) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY
EVIDENCED HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. IN CONNECTION WITH ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY IN
CERTIFICATED FORM WITHIN THREE YEARS AFTER THE ORIGINAL ISSUANCE OF SUCH
SECURITY, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE OF
THIS CERTIFICATE RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO AMERICAN STOCK TRANSFER & TRUST COMPANY, AS TRANSFER AGENT. IF
THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR A PURCHASER
WHO IS NOT A U.S. PERSON, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO
AMERICAN STOCK TRANSFER & TRUST COMPANY, AS TRANSFER AGENT, SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS IT MAY REASONABLY REQUIRE TO CONFIRM THAT
SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND
WILL BE REMOVED AFTER THE EXPIRATION OF THREE YEARS FROM THE ORIGINAL ISSUANCE
OF THE SECURITY EVIDENCED HEREBY. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT.
1. The Deposit Agreement. Depositary Receipts (the "Receipts"), of which
this Receipt is one, are made available upon the terms and conditions set forth
in the Deposit Agreement, dated as of February 27, 1996 (the "Deposit
Agreement") among the Company, the Depositary and all holders from time to time
of Receipts. The Deposit Agreement (copies of which are on file at the Corporate
Office and at the office of any Agent of the Depositary) sets forth the rights
of holders of Receipts and the rights and duties of the Depositary. The
statements made on the face and the reverse of this Receipt are summaries of
certain provisions of the Deposit Agreement and are subject to the detailed
provisions thereof, to which reference is hereby made. In the event of any
conflict between the provisions of this Receipt and the provisions of the
Deposit Agreement, the provisions of the Deposit Agreement will govern.
2. Definitions. Unless otherwise expressly provided herein, all defined
terms used herein shall have the meanings ascribed thereto in the Deposit
Agreement.
2
<PAGE> 23
3. Redemption of Series B Preferred Stock. Whenever the Company shall
elect to redeem shares of Series B Preferred Stock in accordance with the
Certificate of Designations, it shall (unless otherwise agreed in writing with
the Depositary) give the Depositary in its capacity as Depositary the notice
required by the Deposit Agreement. The Depositary shall mail, first class
postage prepaid, notice of such redemption and the proposed simultaneous
redemption of the number of Depositary Shares representing the Series B
Preferred Stock to be redeemed, not less than 15 and not more than 30 days prior
to the date fixed for redemption of such Series B Preferred Stock and Depositary
Shares (the "Redemption Date"), to the record holders of the Receipts evidencing
the Depositary Shares to be so redeemed, at the addresses of such holders as
they appear on the records of the Depositary; but neither failure to mail any
such notice to one or more such holders nor any defect in any notice to one or
more such holders shall affect the sufficiency of the proceedings for redemption
as to other holders. Each such notice shall state: (i) the Redemption Date; (ii)
the number of Depositary Shares to be redeemed and, if less than all the
Depositary Shares held by any such holder are to be redeemed, the number of such
Depositary Shares held by such holder to be so redeemed; (iii) the redemption
price (as set forth in the Certificate of Designations); (iv) the place or
places where Receipts evidencing Depositary Shares are to be surrendered for
payment of the redemption price; and (v) that dividends in respect of the shares
of Series B Preferred Stock represented by the Depositary Shares to be redeemed
will cease to accumulate on such Redemption Date. Notices shall be mailed by the
Company pursuant to the Certificate of Designations. In case fewer than all the
outstanding Depositary Shares are to be redeemed, the Depositary Shares to be
redeemed shall be selected by lot or pro rata (as nearly as may be) or by any
other equitable method determined by the Depositary to be consistent with the
method determined by the Board of Directors of the Company with respect to the
Series B Preferred Stock.
Notice having been mailed as aforesaid, from and after the Redemption Date
(unless the Company shall have failed to redeem the shares of Series B Preferred
Stock to be redeemed by it, as set forth in the Company's notice provided for
above), the Depositary Shares called for redemption shall be deemed no longer to
be outstanding and all rights of the holders of Receipts evidencing such
Depositary Shares (except the right to receive the redemption consideration)
shall, to the extent of such Depositary Shares, cease and terminate. Upon
surrender in accordance with said notice of the Receipts evidencing such
Depositary Shares (properly endorsed or assigned for transfer, as the Depositary
shall so require), such Depositary Shares shall be redeemed for an amount of
cash at a rate per Depositary Share equal to 1/20 of the amount of cash
delivered upon redemption of a share of Series B Preferred Stock pursuant to the
Certificate of Designations.
If fewer than all the Depositary Shares evidenced by this Receipt are
called for redemption, the Depositary will deliver to the holder of this Receipt
upon its surrender to the Depositary, a new Receipt evidencing the Depositary
Shares evidenced by such prior Receipt and not called for redemption.
4. Surrender of Receipts and Withdrawal of Series B Preferred Stock. Upon
surrender of this Receipt to the Depositary at the Corporate Office or such
other offices as the Depositary may designate, and subject to the provisions of
the Deposit Agreement, the holder hereof is entitled to withdraw, and to obtain
delivery of, to or upon the order of such holder, any or all of the Series B
Preferred Stock (but only in whole shares of Series B Preferred Stock) and any
or all money and other property, if any, at the time represented by the
Depositary Shares evidenced by this Receipt; provided, however, that, in the
event this Receipt shall evidence a number of Depositary Shares in excess of the
number of Depositary Shares representing the whole number of shares of Series B
Preferred Stock to be withdrawn, the Depositary shall, in addition to such whole
number of shares of Series B Preferred Stock and such money and other property,
if any, to be withdrawn, deliver, to or upon the order of such holder, a new
Receipt or Receipts evidencing such excess number of whole Depositary Shares.
Any shares of Series B Preferred Stock withdrawn pursuant to the terms of the
Deposit Agreement may not thereafter be redeposited under the Deposit Agreement
and exchanged for Receipts evidencing Depositary Shares.
5. Optional Conversion of Series B Preferred Stock into Common Stock. At
any time after 90 days following the latest date of original issue of any shares
of Series B Preferred Stock and subject to the terms and conditions of the
Deposit Agreement and the Certificate of Designations, this Receipt may be
surrendered with written instructions to the Depositary to instruct the Company
to cause the conversion of any specified number of whole shares of Series B
Preferred Stock represented by whole Depositary Shares evidenced hereby
3
<PAGE> 24
into whole shares of Common Stock, par value $0.01 per share, of the Company
("Common Stock"), and cash for any fractional share amount at the conversion
price then in effect for the Series B Preferred Stock pursuant to the
Certificate of Designations, as such conversion price may be adjusted by the
Company from time to time as provided in the Certificate of Designations.
Subject to the terms and conditions of the Deposit Agreement and the Certificate
of Designations, a holder of a Receipt or Receipts evidencing Depositary Shares
representing whole or fractional shares of Series B Preferred Stock may
surrender such Receipt or Receipts at the Corporate Office or at such offices or
to such Depositary's Agents as the Depositary may designate for such purpose,
together with a notice of conversion duly completed and executed, thereby
directing the Depositary to instruct the Company to cause the conversion of the
number of whole shares of underlying Series B Preferred Stock specified in such
notice of conversion into shares of Common Stock, and an assignment of such
Receipt or Receipts to the Company or in blank, duly completed and executed. To
the extent that a holder delivers to the Depositary for conversion a Receipt or
Receipts which in the aggregate are convertible into less than one whole share
of Common Stock, the holder shall receive payment in cash in lieu of such
fractional share of Common Stock otherwise issuable. If more than one Receipt
shall be delivered for conversion at one time by the same holder, the number of
whole shares of Common Stock issuable upon conversion thereof shall be computed
on the basis of the aggregate number of Depositary Shares represented by the
Receipts so delivered.
If Series B Preferred Stock shall be called by the Company for redemption,
the Depositary Shares representing such Series B Preferred Stock may be
converted into Common Stock as provided in the Deposit Agreement until, but not
after, the close of business on the day next preceding the Redemption Date
unless the Company shall fail to deposit with the Depositary the amount of cash
required to redeem the Series B Preferred Stock, in which case the Depositary
Shares representing such Series B Preferred Stock may continue to be converted
into Common Stock until, but not after, the close of business on the date on
which the Company deposits with the Depositary such amount of cash as is
required by the Certificate of Designations to make full payment of the amounts
payable upon such redemption. Upon receipt by the Depositary of a Receipt or
Receipts, together with a properly completed and executed notice of conversion,
representing any Series B Preferred Stock called for redemption, the shares of
Series B Preferred Stock held by the Depositary represented by such Depositary
Shares for which conversion is requested shall be deemed to have been received
by the Company for conversion immediately prior to the close of business on the
date of such receipt by the Depositary.
The record holder of Depositary Shares on any dividend payment record date
established by the Depositary shall be entitled to receive the dividend payable
with respect to such Depositary Shares on the corresponding dividend payment
date notwithstanding the conversion subsequent to such record date of the shares
of Series B Preferred Stock to which such Depositary Shares relate. However, any
Receipts surrendered with instructions to the Depositary for conversion of the
underlying Series B Preferred Stock during the period from the close of business
on a dividend payment record date for any dividend payment date, through the
close of business on the day next preceding such dividend payment date shall
(unless such underlying Series B Preferred Stock shall have been called for
redemption on a Redemption Date in such period) be accompanied by payment of an
amount equal to the dividend payable on the Depositary Shares evidenced by the
Receipts surrendered for conversion, on such dividend payment date.
6. Transfers, Split-ups, Combinations. Subject to Paragraphs 7, 8 and 9
below, this Receipt is transferable on the books of the Depositary upon
surrender of this Receipt to the Depositary at the Corporate Office or such
other offices as the Depositary may designate, properly endorsed or accompanied
by a properly executed instrument of transfer or endorsement, or other
instrument satisfactory to the Depositary, and upon such transfer the Depositary
shall issue a Receipt to or upon the order of the person entitled thereto, all
as provided in and subject to the Deposit Agreement. This Receipt may be split
into other Receipts or combined with other Receipts into one Receipt evidencing
the same aggregate number of Depositary Shares evidenced by the Receipt or
Receipts surrendered; provided, however, that the Depositary shall not execute
and deliver any Receipt evidencing a fractional Depositary Share.
7. Conditions to Signing and Delivery, Transfer, etc., of Receipts. Prior
to the execution and delivery, transfer, split-up, combination, surrender or
exchange of this Receipt, the Depositary, any of the Depositary's
4
<PAGE> 25
Agents or the Company may require any or all of the following: (i) payment to it
of a sum sufficient for the payment (or, in the event that the Depositary or the
Company shall have made such payment, the reimbursement to it) of any tax or
other governmental charge with respect thereto (including any such tax or charge
with respect to Series B Preferred Stock being deposited or withdrawn or with
respect to Common Stock or other securities or property of the Company being
issued upon conversion or redemption); (ii) the production of proof satisfactory
to it as to the identity and genuineness of any signature; and (iii) compliance
with such regulations, if any, as the Depositary or the Company may establish
not inconsistent with the Deposit Agreement. Any holder of this Receipt, may be
required to file such proof of information, to execute such certificates and to
make such representations and warranties as the Depositary or the Company may
reasonably deem necessary or proper. The Depositary or the Company may withhold
or delay the delivery of any Receipt, the transfer, redemption, conversion or
exchange of any Receipt, the withdrawal of the Series B Preferred Stock or money
or other property, if any, represented by the Depositary Shares evidenced by
this Receipt or the distribution of any dividend or other distribution until
such proof or other information is filed, such certificates are executed or such
representations and warranties are made.
8. Suspension of Delivery, Transfer, etc. The delivery of this Receipt
against Series B Preferred Stock may be suspended, and the transfer, split-up,
combination, surrender or exchange of this Receipt may be suspended (i) during
any period when the register of holders of Receipts is closed, or (ii) if any
such action is deemed necessary or advisable by the Depositary, any of the
Depositary's Agents or the Company at any time or from time to time because of
any requirement of law or of any government or governmental body or commission,
or under any provision of the Deposit Agreement.
9. Payment of Taxes or Other Governmental Charges. If any tax or other
governmental charge shall become payable by or on behalf of the Depositary with
respect to this Receipt, the Depositary Shares evidenced by this Receipt, the
Series B Preferred Stock (or any fractional interest therein) represented by
such Depositary Shares or any transaction referred to in Section 4.6 of the
Deposit Agreement, such tax (including transfer, issuance or acquisition taxes,
if any) or governmental charge shall be payable by the holder hereof. Until such
payment is made, transfer, redemption, conversion or exchange of this Receipt or
any withdrawal of the Series B Preferred Stock or money and other property, if
any, represented by the Depositary Shares evidenced by this Receipt may be
refused, any dividend or other distribution may be withheld and any part or all
of the Series B Preferred Stock or other property represented by the Depositary
Shares evidenced by this Receipt may be sold for the account of the holder
hereof (after attempting by reasonable means to notify such holder prior to such
sale). Any dividend or other distribution so withheld and the proceeds of any
such sale may be applied to any payment of such tax or other governmental
charge, the holder of this Receipt remaining liable for any deficiency. The
Depositary shall act as the withholding agent for any payments, distributions,
and exchanges made with respect to the Depositary Shares and Receipts, and the
Preferred Stock, Common Stock or other securities or assets represented thereby
(collectively, the "Securities"). The Depositary shall be responsible with
respect to the Securities for the timely (i) collection and deposit of any
required withholding or backup withholding tax, and (ii) filing of any
information returns or other documents with federal (and other applicable)
taxing authorities. In the event the Depositary is required to pay any such
amounts, the Company shall reimburse the Depositary for payment thereof upon the
request of the Depositary and the Depositary shall, upon the Company's request
and as instructed by the Company, pursue its rights against such holder at the
Company's expense.
10. Amendment. The form of the Receipts and any provision of the Deposit
Agreement may at any time and from time to time be amended by agreement between
the Company and the Depositary in any respect that they may deem necessary or
desirable. Any amendment that shall impose any fees, taxes or charges payable by
holders of Receipts (other than taxes and other governmental charges, fees and
other expenses provided for herein or in the Deposit Agreement), or that shall
otherwise prejudice any substantial existing right of holders of Receipts, shall
not become effective as to outstanding Receipts until the holders of record of
Receipts representing not less than 66 2/3% of the number of Depositary Shares
then outstanding shall have consented thereto in writing or by voting therefor
in person or by proxy at a meeting held on notice for such purpose or any
adjournment or adjournments thereof. The holder of this Receipt at the time any
such amendment becomes effective shall be deemed, by continuing to hold this
Receipt, to consent and agree to
5
<PAGE> 26
such amendment and to be bound by the Deposit Agreement as amended thereby. In
no event shall any amendment impair the right, subject to the provisions of
Paragraphs 3, 4, 5, 6, 7, 8 and 9 hereof and of Sections 2.4, 2.5, 2.8, 2.9 and
2.12 and Article III of the Deposit Agreement, of the owner of the Depositary
Shares evidenced by this Receipt to surrender this Receipt with instructions to
the Depositary to deliver to the holder the Series B Preferred Stock and all
money and other property, if any, represented hereby, or to cause the conversion
of the underlying Series B Preferred Stock into Common Stock and cash for any
fractional share amount, except in order to comply with mandatory provisions of
applicable law.
11. Fees, Charges and Expenses. The Company will pay all fees, charges
and expenses of the Depositary, except for taxes (including transfer taxes, if
any) and other governmental charges and such charges as are expressly provided
in the Deposit Agreement to be at the expense of persons depositing Series B
Preferred Stock, holders of Receipts or other persons.
12. Title to Receipts. It is a condition of this Receipt, and every
successive holder hereof by accepting or holding the same consents and agrees,
that title to this Receipt (and to the Depositary Shares evidenced hereby) when
properly endorsed or accompanied by a properly executed instrument of transfer
or endorsement, is transferable by delivery; provided, however, that until this
Receipt shall be transferred on the books of the Depositary as provided in
Section 2.5 of the Deposit Agreement, the Depositary may, notwithstanding any
notice to the contrary, treat the record holder hereof at such time as the
absolute owner hereof for the purpose of determining the person entitled to
distributions of dividends or other distributions or to any notice provided for
in the Deposit Agreement and for all other purposes.
13. Dividends and Distributions. Whenever the Depositary receives any
cash dividend or other cash distribution on the Series B Preferred Stock, the
Depositary will, subject to the provisions of the Deposit Agreement, distribute
such portions of such sum to record holders of Receipts as are, as nearly as
practicable, proportionate to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders; provided, however, that in case
the Company or the Depositary shall be required to withhold and does withhold
from any cash dividend or other cash distribution in respect of the Series B
Preferred Stock an amount on account of taxes or as otherwise required by law,
regulation or court order, the amount made available for distribution or
distributed in respect of Depositary Shares shall be reduced accordingly. The
Depositary shall distribute or make available for distribution, as the case may
be, only such amount, however, as can be distributed without attributing to any
owner of Depositary Shares a fraction of one cent and any balance not so
distributable shall be rounded to the next highest whole cent and, upon request
of the Depositary, the Company shall pay the additional amount to the Depositary
for distribution.
14. Subscription Rights, Preferences or Privileges. If the Company shall
at any time offer or cause to be offered to the persons in whose names Series B
Preferred Stock is registered on the books of the Company any rights,
preferences or privileges to subscribe for or to purchase any securities or any
rights, preferences or privileges of any other nature, such rights, preferences
or privileges shall in each such instance, subject to the provisions of the
Deposit Agreement, be made available by the Depositary to the record holders of
Receipts if the Company so directs in such manner as the Company shall instruct.
15. Notice of Dividends, Fixing of Record Date. Whenever any cash
dividend or other cash distribution shall become payable, any distribution other
than cash shall be made, or any rights, preferences or privileges shall at any
time be offered, with respect to the Series B Preferred Stock, or the Depositary
shall receive notice of (i) any meeting at which holders of Series B Preferred
Stock are entitled to vote or of which holders of Series B Preferred Stock are
entitled to notice or (ii) any election on the part of the Company to call for
redemption any shares of Series B Preferred Stock, the Depositary shall in each
such instance fix a record date (which shall be the same date as the record date
fixed by the Company with respect to the Series B Preferred Stock) for the
determination of the holders of Receipts (i) who shall be entitled to receive
such dividend, distribution, rights, preferences or privileges or the net
proceeds of the sale thereof, or to give instructions for the exercise of voting
rights at any such meeting or to receive notice of such meeting or (ii) whose
Depositary Shares are to be so redeemed.
16. Voting Rights. Upon issuance of notice of any meeting at which the
holders of Series B Preferred Stock are entitled to vote, the Company shall
direct the Depositary, as soon as practicable (but in no event
6
<PAGE> 27
more than two business days) thereafter, to mail to the record holders of
Receipts a notice, which shall contain (i) such information as is contained in
such notice of meeting, (ii) a statement that the holders of Receipts at the
close of business on a specified record date determined as provided in Paragraph
15 will be entitled, subject to any applicable provision of law, the Certificate
of Incorporation or the Certificate of Designations, to instruct the Depositary
as to the exercise of the voting rights pertaining to the amount of Series B
Preferred Stock represented by their respective Depositary Shares, and (iii) a
brief statement as to the manner in which such instructions may be given. Upon
the written request of a holder of a Receipt on such record date, the Depositary
shall endeavor insofar as practicable to vote or cause to be voted the amount of
Series B Preferred Stock represented by the Depositary Shares evidenced by such
Receipt in accordance with the instructions set forth in such request. The
Company has agreed to take all reasonable action that may be deemed necessary by
the Depositary in order to enable the Depositary to vote such Series B Preferred
Stock or cause such Series B Preferred Stock to be voted. In the absence of
specific instructions from the holder of a Receipt, the Depositary will abstain
from voting to the extent of the Series B Preferred Stock represented by the
Depositary Shares evidenced by such Receipt. After aggregating all voting
Depositary Shares, the Depositary will disregard for voting purposes any
fractional share of Series B Preferred Stock remaining.
17. Reports, Inspection of Transfer Books. The Depositary shall make
available for inspection by holders of Receipts at the Corporate Office and at
such other places as it may from time to time deem advisable, during normal
business hours, any reports and communications received from the Company that
are both received by the Depositary as the holder of Series B Preferred Stock
and made generally available to the holders of Series B Preferred Stock by the
Company. The Depositary shall keep books at the Corporate Office for the
registration and transfer of Receipts, which books during normal business hours
will be open for inspection by the record holders of Receipts as provided by
applicable law.
18. Liability of the Depositary, the Depositary's Agents and the
Company. Neither the Depositary, the Registrar nor any Depositary's Agent nor
the Company shall incur any liability to any holder of any Receipt, if by reason
of any provision of any present or future law or regulation of any governmental
authority or, in the case of the Depositary or the Depositary's Agent, by reason
of any provision, present or future, of the Certificate of Incorporation or the
Certificate of Designations or, in the case of the Company, the Depositary or
the Depositary's Agent, by reason of any act of God or war or other circumstance
beyond the control of the relevant party, the Depositary, any Depositary's Agent
or the Company shall be prevented or forbidden from doing or performing any act
or thing that the terms of the Deposit Agreement provide shall be done or
performed; nor shall the Depositary, any Depositary's Agent or the Company incur
any liability to any holder of a Receipt by reason of any nonperformance or
delay, caused as aforesaid, in the performance of any act or thing that the
terms of the Deposit Agreement provide shall or may be done or performed or by
reason of any exercise of, or failure to exercise, any discretion provided for
in the Deposit Agreement.
19. Obligations of the Depositary, the Depositary's Agents and the
Company. Neither the Depositary, the Registrar, any Depositary's Agent nor the
Company assumes any obligation or shall be subject to any liability hereunder or
under the Deposit Agreement to holders of Receipts other than for their
negligence (including the failure to comply with customary trade practice) or
willful misconduct and that each of them agrees to use good faith in the
performance of such duties as are specifically set forth in the Deposit
Agreement.
Neither the Depositary, the Registrar, any Depositary's Agent nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to Series B Preferred Stock,
Depositary Shares, Receipts or Common Stock that in its opinion may involve it
in expense or liability, unless indemnity satisfactory to it against all expense
and liability be furnished as often as may be required.
Neither the Depositary, the Registrar, any Depositary's Agent nor the
Company will be liable for any action or failure to act by it in reliance upon
the advice of or information from legal counsel, any person presenting Series B
Preferred Stock for deposit, any holder of a Receipt or any other person
believed by it in good faith to be competent to give such advice or information.
7
<PAGE> 28
20. Termination of Deposit Agreement. Whenever so directed by the
Company, the Depositary will terminate the Deposit Agreement, provided, that
notice of such termination has been given by mailing notice of such termination
to the record holders of all Receipts then outstanding at least 30 days prior to
the date fixed in such notice for such termination. The Depositary may likewise
terminate the Deposit Agreement if at any time 60 days shall have expired after
the Depositary shall have delivered to the Company a written notice of its
election to resign and a successor depositary shall not have been appointed and
accepted its appointment as provided in Section 5.4 of the Deposit Agreement.
Upon the termination of the Deposit Agreement, the Company shall be discharged
from all obligations thereunder except for its obligations to the Depositary,
any Depositary's Agent and any Registrar under Sections 5.7 and 5.8 of the
Deposit Agreement.
If any Receipts remain outstanding after the date of termination, the
Depositary thereafter shall discontinue all functions and be discharged from all
obligations under the Deposit Agreement, except as specifically provided
therein.
21. Governing Law. The Deposit Agreement and this Receipt and all rights
thereunder and hereunder and provisions thereof and hereof shall be governed by,
and construed in accordance with, the law of the State of New York without
giving effect to principles of conflict of laws.
8
<PAGE> 29
NOTICE OF CONVERSION
The undersigned holder of this Receipt for Depositary Shares hereby
irrevocably exercises the option to convert that number of whole shares of
Series B Preferred Stock of the Company represented by [ ] Depositary Shares
into shares of Common Stock of the Company and cash for any fractional share
amount in accordance with the terms of and subject to the conditions of the
Series B Preferred Stock, including the Certificate of Designations in respect
thereof, and the Deposit Agreement, and directs the Depositary to instruct the
Company that the shares of Common Stock deliverable upon such conversion be
registered in the name of, and delivered together with a check in payment for
any fractional shares of Common Stock to, the undersigned unless a different
name has been indicated below. If the shares of Common Stock are to be
registered in the name of a person other than the undersigned, the undersigned
will pay all transfer and similar taxes payable with respect thereto. If the
number of whole shares of Series B Preferred Stock represented by the number of
Depositary Shares set forth above is less than the number of shares of Series B
Preferred Stock on deposit in respect of this Receipt, the undersigned directs
that the Depositary execute and deliver to the undersigned, unless a different
name is indicated below, a new Receipt evidencing Depositary Shares for the
balance of such Series B Preferred Stock not to be converted.
Dated:
---------------------------------------
Signature:
NOTE: The signature on this notice of conversion must
correspond with the name as written upon the face of this
Receipt in every particular without alteration or
enlargement or any change whatsoever, and must be
guaranteed by a commercial bank, trust company,
securities broker or dealer, credit union, savings
association or other eligible guarantor institution which
is a member of or participant in a signature guarantee
program acceptable to the Depositary.
Name:
------------------------------------------------------------------------
Address:
(Please print names and address of Registered Holder)
Name:
------------------------------------------------------------------------
Address:
(Please indicate other delivery instructions, if applicable)
In connection with any transfer of any of the Depositary Shares evidenced
by this Receipt (or any issuance of shares of Common Stock upon conversion of
the Series B Preferred Stock represented by such Depositary Shares) occurring
prior to the third anniversary of the date of original issuance of this Receipt,
the undersigned states that such Depositary Shares (or such shares of Common
Stock, as the case may be) are being transferred:
- - inside the United States to a qualified institutional buyer pursuant to and in
compliance with Rule 144A under the Securities Act of 1933, as amended;
or
- - outside the United States pursuant to and in compliance with Rule 904 under
the Securities Act of 1933, as amended;
9
<PAGE> 30
or
- - to an institutional accredited investor pursuant to and in compliance with
Rule 144A under the Securities Act of 1933, as amended;
or
- - pursuant to and in compliance with Rule 144 under the Securities Act of 1933,
as amended (if available).
Unless one of the boxes above is checked, the Depositary will refuse to register
any of the Depositary Shares evidenced by this Receipt (or such shares of Common
Stock, as the case may be) in the name of any person other than the registered
holder hereof; provided, however, that the Depositary will, in its sole
discretion, register the transfer of such Depositary Shares or Common Stock, as
the case may be, if it has received such certifications, legal opinions and/or
other information as it has reasonably requested stating that such transfer is
being made pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act of 1933, as amended.
In addition, if the transferee is an institutional accredited investor, the
holder must furnish to the Depositary (i) a signed letter containing certain
representations and agreements relating to the restrictions on transfer of the
security evidenced hereby, and (ii) such other certifications, legal opinions or
other information as the Depositary may reasonably require stating that such
transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act of 1933, as
amended.
Dated:
Signature Guarantee:
Signature:
NOTE: The signature to this Agreement
must correspond with the name as written
upon the face of the Receipt in every
particular, without alteration or
enlargement or any change whatsoever.
<PAGE> 31
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ____________________ the within Receipt and all rights and interests
represented by the Depositary Shares evidenced thereby, and hereby irrevocably
constitutes and appoints ____________________ his attorney, to transfer the same
on the books of the within-named Depositary, with full power of substitution in
the premises.
Dated:
Signature:
NOTE: The signature on this assignment must
correspond with the name as written upon the
face of the Receipt in every particular,
without alteration or enlargement, or any
change whatsoever, and must be guaranteed by
a commercial bank, trust company, securities
broker or dealer, credit union, savings
association or other eligible guarantor
institution which is a member of or
participant in a signature guarantee program
acceptable to the Depositary.
<PAGE> 1
EXHIBIT 4.6
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES,
EACH REPRESENTING A 1/20 INTEREST IN A SHARE OF
6 1/2% SERIES B CUMULATIVE CONVERTIBLE PREFERRED STOCK,
$.01 PAR VALUE PER SHARE
OF
WANG LABORATORIES, INC.
(INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE)
No. ________ ________________________________
Depositary Shares
<PAGE> 2
CUSIP: ____________________
American Stock Transfer & Trust Company, as Depositary (the "Depositary"),
hereby certifies that ______________________________ is the registered owner of
______________________________ Depositary Shares (the "Depositary Shares"), each
Depositary Share representing a 1/20 interest in a share of 6 1/2% Series B
Cumulative Convertible Preferred Stock, $.01 par value per share (the "Series B
Preferred Stock"), of Wang Laboratories, Inc., a corporation duly organized and
existing under the laws of the State of Delaware (the "Company"), and the same
proportionate interest in any and all other property received by the Depositary
in respect of such shares of Series B Preferred Stock and held by the Depositary
under the Deposit Agreement (as defined below). Subject to the terms of the
Deposit Agreement, each owner of a Depositary Share is entitled,
proportionately, to all the rights, preferences and privileges of the Series B
Preferred Stock represented thereby, including the dividend, voting, conversion,
liquidation and other rights contained in the Certificate of Designations of the
Series B Preferred Stock establishing the rights, preferences, privileges and
limitations of the Series B Preferred Stock (the "Certificate of Designations"),
copies of which are on file at the office of the Depositary at which at any
particular time its business in respect of matters governed by the Deposit
Agreement shall be administered, which at the time of the execution of the
Deposit Agreement is located at the corporate office of the Depositary at which
at any time its depositary receipt business shall be administered (the
"Corporate Office").
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY DEPOSITED STOCK. THE
DEPOSITARY ASSUMES NO RESPONSIBILITY FOR THE CORRECTNESS OF THE DESCRIPTION SET
FORTH IN THIS RECEIPT, WHICH CAN BE TAKEN AS A STATEMENT OF THE COMPANY
SUMMARIZING CERTAIN PROVISIONS OF THE DEPOSIT AGREEMENT. UNLESS EXPRESSLY SET
FORTH IN THE DEPOSIT AGREEMENT, THE DEPOSITARY MAKES NO WARRANTIES OR
REPRESENTATIONS AS TO THE VALIDITY, GENUINENESS OR SUFFICIENCY OF ANY STOCK AT
ANY TIME DEPOSITED WITH THE DEPOSITARY UNDER THE DEPOSIT AGREEMENT OR OF THE
DEPOSITARY SHARES OR RECEIPTS (EXCEPT FOR ITS COUNTERSIGNATURES THEREON), AS TO
THE VALIDITY OR SUFFICIENCY OF THE DEPOSIT AGREEMENT, AS TO THE VALUE OF
DEPOSITARY SHARES OR AS TO ANY RIGHT, TITLE OR INTEREST OF THE RECORD HOLDERS OF
THE RECEIPTS IN AND TO THE DEPOSITARY SHARES.
The Company will furnish to any holder of a Receipt, without charge, upon
request addressed to its executive office or the office of its transfer agent, a
statement or summary of the powers, designations, preferences and relative,
participating, optional or other special rights of each authorized class of
capital stock of the Company, and of each series of preferred stock of the
Company authorized to be issued, so far as the same may have been fixed, and of
the qualifications, limitations or restrictions of such preferences and/or
rights.
This Depositary Receipt (the "Receipt") is continued on the reverse hereof
and the additional provisions therein set forth for all purposes have the same
effect as if set forth at this place.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed manually or, if a Registrar for the Receipts (other than the
Depositary) shall have been appointed, by facsimile by the Depositary by the
signature of a duly authorized officer thereof and, if executed by facsimile
signature of the Depositary, shall have been countersigned manually by such
Registrar by the signature of a duly authorized officer thereof.
Dated: February , 1996
AMERICAN STOCK TRANSFER &
TRUST COMPANY
Depositary and Registrar
By ______________________________
Authorized Officer
2
<PAGE> 3
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) ("INSTITUTIONAL ACCREDITED
INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE SECURITY
EVIDENCED HEREBY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT WITHIN
THREE YEARS AFTER THE ORIGINAL ISSUANCE OF THE SECURITY EVIDENCED HEREBY RESELL
OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY EXCEPT (A) TO WANG
LABORATORIES, INC. OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT,
PRIOR TO SUCH TRANSFER, FURNISHES TO AMERICAN STOCK TRANSFER & TRUST COMPANY, AS
TRANSFER AGENT, A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED
HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH TRANSFER AGENT), (D)
OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT
OR (E) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY
EVIDENCED HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. IN CONNECTION WITH ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY IN
CERTIFICATED FORM WITHIN THREE YEARS AFTER THE ORIGINAL ISSUANCE OF SUCH
SECURITY, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE OF
THIS CERTIFICATE RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO AMERICAN STOCK TRANSFER & TRUST COMPANY, AS TRANSFER AGENT. IF
THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR A PURCHASER
WHO IS NOT A U.S. PERSON, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO
AMERICAN STOCK TRANSFER & TRUST COMPANY, AS TRANSFER AGENT, SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS IT MAY REASONABLY REQUIRE TO CONFIRM THAT
SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND
WILL BE REMOVED AFTER THE EXPIRATION OF THREE YEARS FROM THE ORIGINAL ISSUANCE
OF THE SECURITY EVIDENCED HEREBY. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT.
1. The Deposit Agreement. Depositary Receipts (the "Receipts"), of which
this Receipt is one, are made available upon the terms and conditions set forth
in the Deposit Agreement, dated as of February 27, 1996 (the "Deposit
Agreement") among the Company, the Depositary and all holders from time to time
of Receipts. The Deposit Agreement (copies of which are on file at the Corporate
Office and at the office of any Agent of the Depositary) sets forth the rights
of holders of Receipts and the rights and duties of the Depositary. The
statements made on the face and the reverse of this Receipt are summaries of
certain provisions of the Deposit Agreement and are subject to the detailed
provisions thereof, to which reference is hereby made. In the event of any
conflict between the provisions of this Receipt and the provisions of the
Deposit Agreement, the provisions of the Deposit Agreement will govern.
2. Definitions. Unless otherwise expressly provided herein, all defined
terms used herein shall have the meanings ascribed thereto in the Deposit
Agreement.
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<PAGE> 4
3. Redemption of Series B Preferred Stock. Whenever the Company shall
elect to redeem shares of Series B Preferred Stock in accordance with the
Certificate of Designations, it shall (unless otherwise agreed in writing with
the Depositary) give the Depositary in its capacity as Depositary the notice
required by the Deposit Agreement. The Depositary shall mail, first class
postage prepaid, notice of such redemption and the proposed simultaneous
redemption of the number of Depositary Shares representing the Series B
Preferred Stock to be redeemed, not less than 15 and not more than 30 days prior
to the date fixed for redemption of such Series B Preferred Stock and Depositary
Shares (the "Redemption Date"), to the record holders of the Receipts evidencing
the Depositary Shares to be so redeemed, at the addresses of such holders as
they appear on the records of the Depositary; but neither failure to mail any
such notice to one or more such holders nor any defect in any notice to one or
more such holders shall affect the sufficiency of the proceedings for redemption
as to other holders. Each such notice shall state: (i) the Redemption Date; (ii)
the number of Depositary Shares to be redeemed and, if less than all the
Depositary Shares held by any such holder are to be redeemed, the number of such
Depositary Shares held by such holder to be so redeemed; (iii) the redemption
price (as set forth in the Certificate of Designations); (iv) the place or
places where Receipts evidencing Depositary Shares are to be surrendered for
payment of the redemption price; and (v) that dividends in respect of the shares
of Series B Preferred Stock represented by the Depositary Shares to be redeemed
will cease to accumulate on such Redemption Date. Notices shall be mailed and
published by the Company pursuant to the Certificate of Designations. In case
fewer than all the outstanding Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed shall be selected by lot or pro rata (as nearly
as may be) or by any other equitable method determined by the Depositary to be
consistent with the method determined by the Board of Directors of the Company
with respect to the Series B Preferred Stock.
Notice having been mailed and published as aforesaid, from and after the
Redemption Date (unless the Company shall have failed to redeem the shares of
Series B Preferred Stock to be redeemed by it, as set forth in the Company's
notice provided for above), the Depositary Shares called for redemption shall be
deemed no longer to be outstanding and all rights of the holders of Receipts
evidencing such Depositary Shares (except the right to receive the redemption
consideration) shall, to the extent of such Depositary Shares, cease and
terminate. Upon surrender in accordance with said notice of the Receipts
evidencing such Depositary Shares (properly endorsed or assigned for transfer,
as the Depositary shall so require), such Depositary Shares shall be redeemed
for an amount of cash at a rate per Depositary Share equal to 1/20 of the amount
of cash delivered upon redemption of a share of Series B Preferred Stock
pursuant to the Certificate of Designations.
If fewer than all the Depositary Shares evidenced by this Receipt are
called for redemption, the Depositary will deliver to the holder of this Receipt
upon its surrender to the Depositary, a new Receipt evidencing the Depositary
Shares evidenced by such prior Receipt and not called for redemption.
4. Surrender of Receipts and Withdrawal of Series B Preferred Stock. Upon
surrender of this Receipt to the Depositary at the Corporate Office or such
other offices as the Depositary may designate, and subject to the provisions of
the Deposit Agreement, the holder hereof is entitled to withdraw, and to obtain
delivery of, to or upon the order of such holder, any or all of the Series B
Preferred Stock (but only in whole shares of Series B Preferred Stock) and any
or all money and other property, if any, at the time represented by the
Depositary Shares evidenced by this Receipt; provided, however, that, in the
event this Receipt shall evidence a number of Depositary Shares in excess of the
number of Depositary Shares representing the whole number of shares of Series B
Preferred Stock to be withdrawn, the Depositary shall, in addition to such whole
number of shares of Series B Preferred Stock and such money and other property,
if any, to be withdrawn, deliver, to or upon the order of such holder, a new
Receipt or Receipts evidencing such excess number of whole Depositary Shares.
Any shares of Series B Preferred Stock withdrawn pursuant to the terms of the
Deposit Agreement may not thereafter be redeposited under the Deposit Agreement
and exchanged for Receipts evidencing Depositary Shares.
5. Optional Conversion of Series B Preferred Stock into Common
Stock. Subject to the terms and conditions of the Deposit Agreement and the
Certificate of Designations, this Receipt may be surrendered with written
instructions to the Depositary to instruct the Company to cause the conversion
of any specified number of whole shares of Series B Preferred Stock represented
by whole Depositary Shares evidenced hereby into whole shares of Common Stock,
$.01 par value per share, of the Company ("Common Stock"), and cash
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<PAGE> 5
for any fractional share amount at the conversion price then in effect for the
Series B Preferred Stock pursuant to the Certificate of Designations, as such
conversion price may be adjusted by the Company from time to time as provided in
the Certificate of Designations. Subject to the terms and conditions of the
Deposit Agreement and the Certificate of Designations, a holder of a Receipt or
Receipts evidencing Depositary Shares representing whole or fractional shares of
Series B Preferred Stock may surrender such Receipt or Receipts at the Corporate
Office or at such offices or to such Depositary's Agents as the Depositary may
designate for such purpose, together with a notice of conversion duly completed
and executed, thereby directing the Depositary to instruct the Company to cause
the conversion of the number of whole shares of underlying Series B Preferred
Stock specified in such notice of conversion into shares of Common Stock, and an
assignment of such Receipt or Receipts to the Company or in blank, duly
completed and executed. To the extent that a holder delivers to the Depositary
for conversion a Receipt or Receipts which in the aggregate are convertible into
less than one whole share of Common Stock, the holder shall receive payment in
cash in lieu of such fractional share of Common Stock otherwise issuable. If
more than one Receipt shall be delivered for conversion at one time by the same
holder, the number of whole shares of Common Stock issuable upon conversion
thereof shall be computed on the basis of the aggregate number of Depositary
Shares represented by the Receipts so delivered.
If Series B Preferred Stock shall be called by the Company for redemption,
the Depositary Shares representing such Series B Preferred Stock may be
converted into Common Stock as provided in the Deposit Agreement until, but not
after, the close of business on the day preceding the Redemption Date unless the
Company shall fail to deposit with the Depositary the amount of cash required to
redeem the Series B Preferred Stock, in which case the Depositary Shares
representing such Series B Preferred Stock may continue to be converted into
Common Stock until, but not after, the close of business on the date on which
the Company deposits with the Depositary such amount of cash as is required by
the Certificate of Designations to make full payment of the amounts payable upon
such redemption. Upon receipt by the Depositary of a Receipt or Receipts,
together with a properly completed and executed notice of conversion,
representing any Series B Preferred Stock called for redemption, the shares of
Series B Preferred Stock held by the Depositary represented by such Depositary
Shares for which conversion is requested shall be deemed to have been received
by the Company for conversion immediately prior to the close of business on the
date of such receipt by the Depositary.
6. Transfers, Split-ups, Combinations. Subject to Paragraphs 7, 8 and 9
below, this Receipt is transferable on the books of the Depositary upon
surrender of this Receipt to the Depositary at the Corporate Office or such
other offices as the Depositary may designate, properly endorsed or accompanied
by a properly executed instrument of transfer or endorsement, or other
instrument satisfactory to the Depositary, and upon such transfer the Depositary
shall issue a Receipt to or upon the order of the person entitled thereto, all
as provided in and subject to the Deposit Agreement. This Receipt may be split
into other Receipts or combined with other Receipts into one Receipt evidencing
the same aggregate number of Depositary Shares evidenced by the Receipt or
Receipts surrendered; provided, however, that the Depositary shall not execute
and deliver any Receipt evidencing a fractional Depositary Share.
7. Conditions to Signing and Delivery, Transfer, etc., of Receipts. Prior
to the execution and delivery, transfer, split-up, combination, surrender or
exchange of this Receipt, the Depositary, any of the Depositary's Agents or the
Company may require any or all of the following: (i) payment to it of a sum
sufficient for the payment (or, in the event that the Depositary or the Company
shall have made such payment, the reimbursement to it) of any tax or other
governmental charge with respect thereto (including any such tax or charge with
respect to Series B Preferred Stock being deposited or withdrawn or with respect
to Common Stock or other securities or property of the Company being issued upon
conversion or redemption); (ii) the production of proof satisfactory to it as to
the identity and genuineness of any signature; and (iii) compliance with such
regulations, if any, as the Depositary or the Company may establish not
inconsistent with the Deposit Agreement. Any holder of this Receipt, may be
required to file such proof of information, to execute such certificates and to
make such representations and warranties as the Depositary or the Company may
reasonably deem necessary or proper. The Depositary or the Company may withhold
or delay the delivery of any Receipt, the transfer, redemption, conversion or
exchange of any Receipt, the withdrawal of the Series B
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<PAGE> 6
Preferred Stock or money or other property, if any, represented by the
Depositary Shares evidenced by this Receipt or the distribution of any dividend
or other distribution until such proof or other information is filed, such
certificates are executed or such representations and warranties are made.
8. Suspension of Delivery, Transfer, etc. The delivery of this Receipt
against Series B Preferred Stock may be suspended, and the transfer, split-up,
combination, surrender or exchange of this Receipt may be suspended (i) during
any period when the register of holders of Receipts is closed, or (ii) if any
such action is deemed necessary or advisable by the Depositary, any of the
Depositary's Agents or the Company at any time or from time to time because of
any requirement of law or of any government or governmental body or commission,
or under any provision of the Deposit Agreement.
9. Payment of Taxes or Other Governmental Charges. If any tax or other
governmental charge shall become payable by or on behalf of the Depositary with
respect to this Receipt, the Depositary Shares evidenced by this Receipt, the
Series B Preferred Stock (or any fractional interest therein) represented by
such Depositary Shares or any transaction referred to in Section 4.6 of the
Deposit Agreement, such tax (including transfer, issuance or acquisition taxes,
if any) or governmental charge shall be payable by the holder hereof. Until such
payment is made, transfer, redemption, conversion or exchange of this Receipt or
any withdrawal of the Series B Preferred Stock or money and other property, if
any, represented by the Depositary Shares evidenced by this Receipt may be
refused, any dividend or other distribution may be withheld and any part or all
of the Series B Preferred Stock or other property represented by the Depositary
Shares evidenced by this Receipt may be sold for the account of the holder
hereof (after attempting by reasonable means to notify such holder prior to such
sale). Any dividend or other distribution so withheld and the proceeds of any
such sale may be applied to any payment of such tax or other governmental
charge, the holder of this Receipt remaining liable for any deficiency. The
Depositary shall act as the withholding agent for any payments, distributions,
and exchanges made with respect to the Depositary Shares and Receipts, and the
Preferred Stock, Common Stock or other securities or assets represented thereby
(collectively, the "Securities"). The Depositary shall be responsible with
respect to the Securities for the timely (i) collection and deposit of any
required withholding or backup withholding tax, and (ii) filing of any
information returns or other documents with federal (and other applicable)
taxing authorities. In the event the Depositary is required to pay any such
amounts, the Company shall reimburse the Depositary for payment thereof upon the
request of the Depositary and the Depositary shall, upon the Company's request
and as instructed by the Company, pursue its rights against such holder at the
Company's expense.
10. Amendment. The form of the Receipts and any provision of the Deposit
Agreement may at any time and from time to time be amended by agreement between
the Company and the Depositary in any respect that they may deem necessary or
desirable. Any amendment that shall impose any fees, taxes or charges payable by
holders of Receipts (other than taxes and other governmental charges, fees and
other expenses provided for herein or in the Deposit Agreement), or that shall
otherwise prejudice any substantial existing right of holders of Receipts, shall
not become effective as to outstanding Receipts until the holders of record of
Receipts representing not less than 66 2/3% of the number of Depositary Shares
then outstanding shall have consented thereto in writing or by voting therefor
in person or by proxy at a meeting held on notice for such purpose or any
adjournment or adjournments thereof. The holder of this Receipt at the time any
such amendment becomes effective shall be deemed, by continuing to hold this
Receipt, to consent and agree to such amendment and to be bound by the Deposit
Agreement as amended thereby. In no event shall any amendment impair the right,
subject to the provisions of Paragraphs 3, 4, 5, 6, 7, 8 and 9 hereof and of
Sections 2.4, 2.5, 2.8, 2.9 and 2.12 and Article III of the Deposit Agreement,
of the owner of the Depositary Shares evidenced by this Receipt to surrender
this Receipt with instructions to the Depositary to deliver to the holder the
Series B Preferred Stock and all money and other property, if any, represented
hereby, or to cause the conversion of the underlying Series B Preferred Stock
into Common Stock and cash for any fractional share amount, except in order to
comply with mandatory provisions of applicable law.
11. Fees, Charges and Expenses. The Company will pay all fees, charges
and expenses of the Depositary, except for taxes (including transfer taxes, if
any) and other governmental charges and such charges, as are expressly provided
in the Deposit Agreement to be at the expense of persons depositing Series B
Preferred Stock, holders of Receipts or other persons.
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<PAGE> 7
12. Title to Receipts. It is a condition of this Receipt, and every
successive holder hereof by accepting or holding the same consents and agrees,
that title to this Receipt (and to the Depositary Shares evidenced hereby) when
properly endorsed or accompanied by a properly executed instrument of transfer
or endorsement, is transferable by delivery; provided, however, that until this
Receipt shall be transferred on the books of the Depositary as provided in
Section 2.5 of the Deposit Agreement, the Depositary may, notwithstanding any
notice to the contrary, treat the record holder hereof at such time as the
absolute owner hereof for the purpose of determining the person entitled to
distributions of dividends or other distributions or to any notice provided for
in the Deposit Agreement and for all other purposes.
13. Dividends and Distributions. Whenever the Depositary receives any
cash dividend or other cash distribution on the Series B Preferred Stock, the
Depositary will, subject to the provisions of the Deposit Agreement, distribute
such portions of such sum to record holders of Receipts as are, as nearly as
practicable, proportionate to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders; provided, however, that in case
the Company or the Depositary shall be required to withhold and does withhold
from any cash dividend or other cash distribution in respect of the Series B
Preferred Stock an amount on account of taxes or as otherwise required by law,
regulation or court order, the amount made available for distribution or
distributed in respect of Depositary Shares shall be reduced accordingly. The
Depositary shall distribute or make available for distribution, as the case may
be, only such amount, however, as can be distributed without attributing to any
owner of Depositary Shares a fraction of one cent and any balance not so
distributable shall be rounded to the next highest whole cent and, upon request
of the Depositary, the Company shall pay the additional amount to the Depositary
for distribution.
14. Subscription Rights, Preferences or Privileges. If the Company shall
at any time offer or cause to be offered to the persons in whose names Series B
Preferred Stock is registered on the books of the Company any rights,
preferences or privileges to subscribe for or to purchase any securities or any
rights, preferences or privileges of any other nature, such rights, preferences
or privileges shall in each such instance, subject to the provisions of the
Deposit Agreement, be made available by the Depositary to the record holders of
Receipts if the Company so directs in such manner as the Company shall instruct.
15. Notice of Dividends, Fixing of Record Date. Whenever any cash
dividend or other cash distribution shall become payable, any distribution other
than cash shall be made, or any rights, preferences or privileges shall at any
time be offered, with respect to the Series B Preferred Stock, or the Depositary
shall receive notice of (i) any meeting at which holders of Series B Preferred
Stock are entitled to vote or of which holders of Series B Preferred Stock are
entitled to notice or (ii) any election on the part of the Company to call for
redemption any shares of Series B Preferred Stock, the Depositary shall in each
such instance fix a record date (which shall be the same date as the record date
fixed by the Company with respect to the Series B Preferred Stock) for the
determination of the holders of Receipts (i) who shall be entitled to receive
such dividend, distribution, rights, preferences or privileges or the net
proceeds of the sale thereof, or to give instructions for the exercise of voting
rights at any such meeting or to receive notice of such meeting or (ii) whose
Depositary Shares are to be so redeemed.
16. Voting Rights. Upon issuance of notice of any meeting at which the
holders of Series B Preferred Stock are entitled to vote, the Company shall
direct the Depositary, as soon as practicable thereafter, to mail to the record
holders of Receipts a notice, which shall contain (i) such information as is
contained in such notice of meeting, (ii) a statement that the holders of
Receipts at the close of business on a specified record date determined as
provided in Paragraph 15 will be entitled, subject to any applicable provision
of law, the Certificate of Incorporation or the Certificate of Designations, to
instruct the Depositary as to the exercise of the voting rights pertaining to
the amount of Series B Preferred Stock represented by their respective
Depositary Shares, and (iii) a brief statement as to the manner in which such
instructions may be given. Upon the written request of a holder of a Receipt on
such record date, the Depositary shall endeavor insofar as practicable to vote
or cause to be voted the amount of Series B Preferred Stock represented by the
Depositary Shares evidenced by such Receipt in accordance with the instructions
set forth in such request. The Company has agreed to take all reasonable action
that may be deemed necessary by the Depositary in order to enable the Depositary
to vote such Series B Preferred Stock or cause such Series B Preferred Stock to
be voted. In the absence of specific instructions from the holder of a Receipt,
the Depositary will abstain from voting to the
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<PAGE> 8
extent of the Series B Preferred Stock represented by the Depositary Shares
evidenced by such Receipt. After aggregating all voting Depositary Shares, the
Depositary will disregard for voting purposes any fractional share of Series B
Preferred Stock remaining.
17. Reports, Inspection of Transfer Books. The Depositary shall make
available for inspection by holders of Receipts at the Corporate Office and at
such other places as it may from time to time deem advisable, during normal
business hours, any reports and communications received from the Company that
are both received by the Depositary as the holder of Series B Preferred Stock
and made generally available to the holders of Series B Preferred Stock by the
Company. The Depositary shall keep books at the Corporate Office for the
registration and transfer of Receipts, which books during normal business hours
will be open for inspection by the record holders of Receipts as provided by
applicable law.
18. Liability of the Depositary, the Depositary's Agents and the
Company. Neither the Depositary, the Registrar nor any Depositary's Agent nor
the Company shall incur any liability to any holder of any Receipt, if by reason
of any provision of any present or future law or regulation of any governmental
authority or, in the case of the Depositary or the Depositary's Agent, by reason
of any provision, present or future, of the Certificate of Incorporation or the
Certificate of Designations or, in the case of the Company, the Depositary or
the Depositary's Agent, by reason of any act of God or war or other circumstance
beyond the control of the relevant party, the Depositary, any Depositary's Agent
or the Company shall be prevented or forbidden from doing or performing any act
or thing that the terms of the Deposit Agreement provide shall be done or
performed; nor shall the Depositary, any Depositary's Agent or the Company incur
any liability to any holder of a Receipt by reason of any nonperformance or
delay, caused as aforesaid, in the performance of any act or thing that the
terms of the Deposit Agreement provide shall or may be done or performed or by
reason of any exercise of, or failure to exercise, any discretion provided for
in the Deposit Agreement
19. Obligations of the Depositary, the Depositary's Agents and the
Company. Neither the Depositary, the Registrar, any Depositary's Agent nor the
Company assumes any obligation or shall be subject to any liability hereunder or
under the Deposit Agreement to holders of Receipts other than for their
negligence (including the failure to comply with customary trade practice) or
willful misconduct and that each of them agrees to use good faith in the
performance of such duties as are specifically set forth in the Deposit
Agreement.
Neither the Depositary, the Registrar, any Depositary's Agent nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to Series B Preferred Stock,
Depositary Shares, Receipts or Common Stock that in its opinion may involve it
in expense or liability, unless indemnity satisfactory to it against all expense
and liability be furnished as often as may be required.
Neither the Depositary, the Registrar, any Depositary's Agent nor the
Company will be liable for any action or failure to act by it in reliance upon
the advice of or information from legal counsel, accountants, any person
presenting Series B Preferred Stock for deposit, any holder of a Receipt or any
other person believed by it in good faith to be competent to give such advice or
information.
20. Termination of Deposit Agreement. Whenever so directed by the
Company, the Depositary will terminate the Deposit Agreement, provided, that
notice of such termination has been given by mailing notice of such termination
to the record holders of all Receipts then outstanding at least 30 days prior to
the date fixed in such notice for such termination. The Depositary may likewise
terminate the Deposit Agreement if at any time 60 days shall have expired after
the Depositary shall have delivered to the Company a written notice of its
election to resign and a successor depositary shall not have been appointed and
accepted its appointment as provided in Section 5.4 of the Deposit Agreement.
Upon the termination of the Deposit Agreement, the Company shall be discharged
from all obligations thereunder except for its obligations to the Depositary,
any Depositary's Agent and any Registrar under Sections 5.7 and 5.8 of the
Deposit Agreement.
If any Receipts remain outstanding after the date of termination, the
Depositary thereafter shall discontinue all functions and be discharged from all
obligations under the Deposit Agreement, except as specifically provided
therein.
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<PAGE> 9
21. Governing Law. The Deposit Agreement and this Receipt and all rights
thereunder and hereunder and provisions thereof and hereof shall be governed by,
and construed in accordance with, the law of the State of New York without
giving effect to principles of conflict of laws.
9
<PAGE> 10
NOTICE OF CONVERSION
The undersigned holder of this Receipt for Depositary Shares hereby
irrevocably exercises the option to convert that number of whole shares of
Series B Preferred Stock of the Company represented by ____________________
Depositary Shares into shares of Common Stock of the Company and cash for any
fractional share amount in accordance with the terms of and subject to the
conditions of the Series B Preferred Stock, including the Certificate of
Designations in respect thereof, and the Deposit Agreement, and directs the
Depositary to instruct the Company that the shares of Common Stock deliverable
upon such conversion be registered in the name of, and delivered together with a
check in payment for any fractional shares of Common Stock to, the undersigned
unless a different name has been indicated below. If the shares of Common Stock
are to be registered in the name of a person other than the undersigned, the
undersigned will pay all transfer and similar taxes payable with respect
thereto. If the number of whole shares of Series B Preferred Stock represented
by the number of Depositary Shares set forth above is less than the number of
shares of Series B Preferred Stock on deposit in respect of this Receipt, the
undersigned directs that the Depositary execute and deliver to the undersigned,
unless a different name is indicated below, a new Receipt evidencing Depositary
Shares for the balance of such Series B Preferred Stock not to be converted.
Dated:
----------------------------------------
Signature:
NOTE: The signature on this notice of
conversion must correspond with the name as
written upon the face of this Receipt in
every particular without alteration or
enlargement or any change whatsoever, and
must be guaranteed by a commercial bank,
trust company, securities broker or dealer,
credit union, savings association or other
eligible guarantor institution which is a
member of or participant in a signature
guarantee program acceptable to the
Depositary.
Name:
------------------------------------------------------------------------
Address:
---------------------------------------------------------------------
(Please print names and address of Registered Holder)
Name:
------------------------------------------------------------------------
Address:
----------------------------------------------------------------------
(Please indicate other delivery instructions, if aplicable)
In connection with any transfer of any of the Depositary Shares evidenced
by this Receipt (or any issuance of shares of Common Stock upon conversion of
the Series B Preferred Stock represented by such Depositary Shares) occurring
prior to the third anniversary of the date of original issuance of this Receipt,
the undersigned states that such Depositary Shares (or such shares of Common
Stock, as the case may be) are being transferred:
[ ] inside the United States to a qualified institutional buyer pursuant to
and in compliance with Rule 144A under the Securities Act of 1933, as
amended;
or
[ ] outside the United States pursuant to and in compliance with Rule 904
under the Securities Act of 1933, as amended;
or
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<PAGE> 11
[ ] to an institutional accredited investor pursuant to and in compliance with
Rule 144A under the Securities Act of 1933, as amended;
or
[ ] pursuant to and in compliance with Rule 144 under the Securities Act of
1933, as amended (if available).
Unless one of the boxes above is checked, the Depositary will refuse to register
any of the Depositary Shares evidenced by this Receipt (or such shares of Common
Stock, as the case may be) in the name of any person other than the registered
holder hereof; provided, however, that the Depositary will, in its sole
discretion, register the transfer of such Depositary Shares or Common Stock, as
the case may be, if it has received such certifications, legal opinions and/or
other information as it has reasonably requested stating that such transfer is
being made pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act of 1933, as amended. In
addition, if the transferee is an institutional accredited investor, the holder
must furnish to the Depositary (i) a signed letter containing certain
representations and agreements relating to the restrictions on transfer of the
security evidenced hereby, and (ii) such other certifications, legal opinions or
other information as the Depositary may reasonably require stating that such
transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act of 1933, as
amended.
Dated:
Signature Guarantee:
Signature:
NOTE: The signature to this Agreement
must correspond with the name as written
upon the face of the Receipt in every
particular, without alteration or
enlargement or any change whatsoever.
<PAGE> 12
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ____________________ the within Receipt and all rights and interests
represented by the Depositary Shares evidenced thereby, and hereby irrevocably
constitutes and appoints ____________________ his attorney, to transfer the same
on the books of the within-named Depositary, with full power of substitution in
the premises.
Dated:
Signature:
NOTE: The signature on this assignment must
correspond with the name as written upon the
face of the Receipt in every particular,
without alteration or enlargement, or any
change whatsoever, and must be guaranteed by
a commercial bank, trust company, securities
broker or dealer, credit union, savings
association or other eligible guarantor
institution which is a member of or
participant in a signature guarantee program
acceptable to the Depositary.
12
<PAGE> 1
EXHIBIT 4.7
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
NUMBER SHARES
WANG LABORATORIES, INC.
FULLY PAID NON-ASSESSABLE
6 1/2% SERIES B CUMULATIVE CONVERTIBLE PREFERRED STOCK
$.01 PAR VALUE PER SHARE
This certifies that ________________________ is the registered holder of
________________________ Shares of 6 1/2% Series B Cumulative Convertible
Preferred Stock of Wang Laboratories, Inc. transferable only on the books of the
Corporation by the holder hereof in person or its duly authorized officers and
its Corporate Seal to be hereunto affixed
this ________________ day of ________________________ A.D. 19__
Richard L. Buckingham
Vice President and Treasurer Albert A. Notini
Secretary
<PAGE> 2
THE CORPORATION HAS MORE THAN ONE CLASS OF STOCK AUTHORIZED TO BE ISSUED.
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER UPON WRITTEN
REQUEST A COPY OF THE FULL TEXT OF THE PREFERENCES, VOTING POWERS,
QUALIFICATIONS AND SPECIAL AND RELATIVE RIGHTS OF THE SHARES OF EACH CLASS OF
STOCK (AND ANY SERIES THEREOF) AUTHORIZED TO BE ISSUED BY THE CORPORATION AS SET
FORTH IN THE CERTIFICATE OF INCORPORATION OF THE CORPORATION AND AMENDMENTS
THERETO FILED WITH THE SECRETARY OF STATE OF THE STATE OF DELAWARE.
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) ("INSTITUTIONAL ACCREDITED
INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE SECURITY
EVIDENCED HEREBY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT WITHIN
THREE YEARS AFTER THE ORIGINAL ISSUANCE OF THE SECURITY EVIDENCED HEREBY RESELL
OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY EXCEPT (A) TO WANG
LABORATORIES, INC. OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT,
PRIOR TO SUCH TRANSFER FURNISHES TO AMERICAN STOCK TRANSFER & TRUST COMPANY, AS
TRANSFER AGENT, A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED
HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH TRANSFER AGENT), (D)
OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT
OR (E) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY
EVIDENCED HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. IN CONNECTION WITH ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY IN
CERTIFICATED FORM WITHIN THREE YEARS AFTER THE ORIGINAL ISSUANCE OF SUCH
SECURITY, THE HOLDER MUST CHECK THE APPROPRIATE BOX BELOW RELATING TO THE MANNER
OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO AMERICAN STOCK TRANSFER & TRUST
COMPANY, AS TRANSFER AGENT. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL
ACCREDITED INVESTOR OR A PURCHASER WHO IS NOT A U.S. PERSON, THE HOLDER MUST,
PRIOR TO SUCH TRANSFER, FURNISH TO AMERICAN STOCK TRANSFER & TRUST COMPANY AS
TRANSFER AGENT, SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS IT
MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO
AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED AFTER THE
EXPIRATION OF THREE YEARS FROM THE ORIGINAL ISSUANCE OF THE SECURITY EVIDENCED
HEREBY. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
IN CONNECTION WITH ANY TRANSFER OF ANY OF THE SHARES EVIDENCED BY THIS
CERTIFICATE (OR ANY ISSUANCE OF SHARES OF COMMON STOCK UPON CONVERSION OF THE
SHARES REPRESENTED BY THIS CERTIFICATE) OCCURRING PRIOR TO THE
3
<PAGE> 3
THIRD ANNIVERSARY OF THE DATE OF ORIGINAL ISSUANCE OF THIS CERTIFICATE, THE
TRANSFEROR STATES THAT SUCH SHARES (OR SUCH SHARES OF COMMON STOCK, AS THE CASE
MAY BE) ARE BEING TRANSFERRED:
[ ] INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER PURSUANT TO
AND IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT OF 1933, AS
AMENDED;
OR
[ ] OUTSIDE THE UNITED STATES PURSUANT TO AND IN COMPLIANCE WITH RULE 904
UNDER THE SECURITIES ACT OF 1933, AS AMENDED;
OR
[ ] TO AN INSTITUTIONAL ACCREDITED INVESTOR PURSUANT TO AND IN COMPLIANCE
WITH AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933,
AS AMENDED;
OR
[ ] PURSUANT TO AND IN COMPLIANCE WITH RULE 144 UNDER THE SECURITIES ACT OF
1933, AS AMENDED (IF AVAILABLE).
UNLESS ONE OF THE BOXES ABOVE IS CHECKED, THE TRANSFER AGENT WILL REFUSE TO
REGISTER ANY OF THE SHARES EVIDENCED BY THIS CERTIFICATE (OR SUCH SHARES OF
COMMON STOCK AS THE CASE MAY BE IN THE NAME OF ANY PERSON OTHER THAN THE
REGISTERED HOLDER HEREOF.
For Value Received, ______________ hereby sell, assign and transfer unto
______________________________________________ Shares represented by the within
Certificate, and do hereby irrevocably constitute and appoint
____________________________________ Attorney to transfer the said Shares on the
books of the within named Corporation with full power of substitution in the
premises.
Dated______________19__
In presence of
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4
<PAGE> 1
EXHIBIT 5.1
HALE AND DORR
COUNSELORS AT LAW
60 STATE STREET, BOSTON, MASSACHUSETTS 02109
617-526-5000 FAX 617-526-5000
August 13, 1996
Wang Laboratories, Inc.
600 Technology Park Drive
Billerica, MA 01821-4130
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 by Wang Laboratories, Inc., a Delaware corporation (the "Company"),
of the following securities of the Company (collectively, the "Securities"): (i)
2,875,000 Depositary Shares (the "Depositary Shares") each representing a 1/20
interest in a share of 6 1/2% Series B Cumulative Convertible Preferred Stock,
(ii) 143,750 shares of 6 1/2% Series B Cumulative Convertible Preferred Stock,
$.01 par value per share (the "Series B Preferred Stock"), and (iii) 5,411,900
shares of Common Stock, $.01 par value per share. All of the Depositary Shares
are currently held by certain securityholders (the "Selling Holders") of the
Company and all of the shares of Series B Preferred Stock are currently held by
the Depositary (as defined below).
We have examined the Deposit Agreement dated as of February 21, 1996 among
the Company, American Stock Transfer & Trust Company, as Depositary (the
"Depositary"), and Lehman Brothers Inc., BT Securities Corporation and Salomon
Brothers Inc, pursuant to which the Depositary Shares were issued, as well as
the Certificate of Incorporation and By-Laws of the Company and all amendments
thereto, including the Certificate of Designations for the Series B Preferred
Stock (the "Certificate of Designations"), 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 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
Depositary Shares and the Series B Preferred Stock have been duly and validly
authorized and issued and are fully paid and non-assessable and that the shares
of Common Stock have been duly and validly authorized and when issued in
accordance with the terms of the Certificate of Designations and the Deposit
Agreement upon conversion of the Series B Preferred Stock will be validly
issued, fully paid and non-assessable.
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 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in Amendment
No. 1 to the Registration Statement (Form S-3 No. 333-06611) and related
prospectus of Wang Laboratories, Inc. for the registration of (i) 2,875,000
Depositary Shares each representing a 1/20 interest in a share of 6 1/2 % Series
B Cumulative Convertible Preferred Stock, (ii) 143,750 shares of 6 1/2 % Series
B Cumulative Convertible Preferred Stock, and (iii) 5,411,900 shares of Common
Stock and to the incorporation by reference therein of (1) our report dated July
26, 1995 with respect to the consolidated financial statements and schedule of
Wang Laboratories, Inc. included in its Annual Report on Form 10-K for the year
ended June 30, 1995, and (2) our report dated March 6, 1996 with respect to the
consolidated financial statements of Wang Laboratories, Inc., included in its
Current Report on Form 8-K dated April 4, 1996, each as filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
Boston, Massachusetts
August 12, 1996
