<PAGE> 1
As filed with the Securities and Exchange Commission on April 29, 1999.
No. 333- ________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
WANG LABORATORIES, INC.
(Exact name of issuer as specified in its charter)
DELAWARE 04-2192707
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
290 CONCORD ROAD
BILLERICA, MASSACHUSETTS 01821
(Address of Principal Executive Offices) (Zip Code)
COMMON STOCK
(Full title of the Plan)
ALBERT A. NOTINI, ESQ.
WANG LABORATORIES, INC.
290 CONCORD ROAD
BILLERICA, MASSACHUSETTS 01821
(Name and address of agent for service)
(978) 625-5000
(Telephone number, including area code, of agent for service)
----------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=====================================================================================================
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate Amount of
to be registered registered per share offering price registration fee
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 150,000 shares $19.75(1) $2,962,500(1) $823.57
par value per share
=====================================================================================================
</TABLE>
(1) All shares are issuable with fixed exercise prices or fixed purchase
prices. Pursuant to Rule 457(h)(1) under the Securities Act of 1933, the
aggregate offering price and the fee have been computed upon the basis of
the prices at which the shares may be exercised or purchased.
<PAGE> 2
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I of Form S-8 is included in
documents sent or given to the recipient of the common stock of the Registrant,
$.01 par value per share (the "Common Stock") pursuant to Rule 428(b)(1) of the
Securities Act of 1933, as amended (the "Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Wang Laboratories, Inc. (the "Registrant") is subject to the
informational and reporting requirements of Sections 13(a), 14 and 15(d) 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"). The following
documents, which are filed with Commission, are incorporated into this
Registration Statement by reference:
(1) The Registrant's latest transition report on Form
10-K filed pursuant to Sections 13(a) or 15(d) of the Exchange Act, or
the latest prospectus filed pursuant to Rule 424(b) under the
Securities Act of 1933 (the "Securities Act") that contains audited
financial statements for the Registrant for the six-month period
ended December 31, 1998 for which such statements have been filed.
(2) All other reports of the Registrant filed pursuant to
Sections 13(a) or 15(d) of the Exchange Act since the end of the fiscal
year covered by the annual report or the prospectus referred to in (1)
above.
(3) The description of the Common Stock contained in a
Registration Statement filed under the Exchange Act, including any
amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered have been
sold or which deregisters all shares of Common Stock then remaining unsold,
shall be deemed to be incorporated by reference herein and to be part hereof
from the date of the filing of such documents.
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Counsel for the Registrant, Albert A. Notini, Esq., who has
given an opinion on the validity of the securities
<PAGE> 3
being registered, is a security holder, officer and an employee of the
Registrant.
Item 6. INDEMNIFICATION
Section 145 of the General Corporate Law of Delaware provides
that a corporation has the power to indemnify a director, officer, employee or
agent of the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he or she is or is threatened
to made a party by reason of such position, if such person shall have acted in
good faith and in a manner reasonably believed to be in or not opposed to the
best interests of the corporation, and, in any criminal proceeding, if such
person had no reasonable cause to believe his or her conduct was unlawful;
provided that, in the case of actions brought by or in the right of the
corporation, no indemnification shall be made with respect to any matter as to
which such person shall have been adjudged to be liable to the corporation
unless and to the extent that the adjudicating court determines that such
indemnification is proper under the circumstances. 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 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8. EXHIBITS
The Exhibit Index immediately preceding the exhibits is
incorporated herein by reference.
Item 9. UNDERTAKINGS
1. The Registrant 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 the 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 the Registration Statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
<PAGE> 4
Registration Statement or any material change to such information in
the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (i) and (ii) do not apply
if the Registration Statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in
the 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 that 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.
2. The Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 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 the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
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 Registrant 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.
<PAGE> 5
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-8 and has duly caused this Registration
Statement to be signed on its behalf of the undersigned, thereunto duly
authorized, in the Town of Billerica, Commonwealth of Massachusetts, on this
21 day of April, 1999.
WANG LABORATORIES, INC.
By: /s/ John P. Cunningham
------------------------------
John P. Cunningham
Executive Vice President and
Chief Financial Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Wang Laboratories, Inc.
hereby severally constitute Albert A. Notini and John A. Burgess, and each of
them singly, our true and lawful attorneys with full power to them, and each of
them singly, to sign for us and in our names in the capacities indicated below,
the Registration Statement on Form S-8 filed herewith and any and all subsequent
amendments to said Registration Statement, and generally to do all such things
in our names and behalf in our capacities as officers and directors to enable
Wang Laboratories, Inc. to comply with all requirements of the Securities and
Exchange Commission, hereby ratifying and confirming our signatures as they may
be signed by said attorneys, or any of them, to said Registration Statement and
any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature Title Date
- --------- ----- ----
/s/ Joseph M. Tucci Chairman of the Board, Chief April 21, 1999
- --------------------------- Executive Officer and Director
Joseph M. Tucci (Principal Executive Officer)
/s/ John P. Cunningham Executive Vice President and April 21, 1999
- --------------------------- Chief Financial Officer
John P. Cunningham (Principal Financial Officer)
/s/ Paul F. Brauneis Vice President and Controller April 21, 1999
- --------------------------- (Principal Accounting Officer)
Paul F. Brauneis
/s/ David A. Boucher Director April 21, 1999
- ---------------------------
David A. Boucher
<PAGE> 6
/s/ Michael W. Brown Director April 21, 1999
- ---------------------------
Michael W. Brown
Director
- ---------------------------
Roberto Colaninno
Director
- ---------------------------
Sergio Erede
/s/ Marcia J. Hooper Director April 21, 1999
- ---------------------------
Marcia J. Hooper
/s/ Joseph J. Kroger Director April 21, 1999
- ---------------------------
Joseph J. Kroger
/s/ Raymond C. Kurzweil Director April 21, 1999
- ---------------------------
Raymond C. Kurzweil
/s/ Axel J. Leblois Director April 21, 1999
- ---------------------------
Axel J. Leblois
/s/ Frederick A. Wang Director April 21, 1999
- ---------------------------
Frederick A. Wang
/s/ John P. White Director April 21, 1999
- ---------------------------
John P. White
<PAGE> 7
EXHIBIT INDEX
4.1* Certificate of Incorporation of the Registrant, as amended
4.2** By-Laws of the Registrant, as amended
5.1 Opinion of Wang's General Counsel
23.1 Consent of Wang's General Counsel (included in Exhibit 5.1)
23.2 Consent of Ernst & Young, LLP
24.1 Power of Attorney (included on page 5 of the Registration Statement)
- ----------
* The Certificate of Incorporation, as amended through April 17, 1995, is
filed as an exhibit to the Registrant's Registration Statement on Form S-3
(File No. 33-58117), filed on April 19, 1995, and is incorporated herein by
reference. The Certificate of Designation with respect to the Registrant's
4 1/2% Series A Cumulative Convertible Preferred Stock is filed as an
exhibit to the Registrant's Annual Report on Form 10-K for the fiscal year
ended June 30, 1995, and is incorporated herein by reference. The
Certificate of Elimination with respect to the Registrant's 11%
Exchangeable Preferred Stock and The Certificate of Designation with
respect to the Registrant's 6 1/2% Series B Cumulative Convertible
Preferred Stock are filed as exhibits to the Registrant's Quarterly Report
on Form 10-Q for the quarterly period ended March 31, 1996 and are
incorporated herein by reference. A Certificate of Ownership and the
Certificate of Designation with respect to the Registrant's Series C Junior
Participating Preferred Stock are filed herewith.
** Filed as an Exhibit to the Registrant's Registration Statement on Form 8-A
(File No. 0-22470), filed on September 27, 1993, as amended by amendments
filed as an exhibit to the Registrant's Quarterly Report on Form 10-Q for
the quarterly period ended December 31, 1995, each of which are
incorporated herein by reference.
<PAGE> 1
FORM OF
CERTIFICATE OF DESIGNATION, PREFERENCES AND
RIGHTS OF SERIES C JUNIOR PARTICIPATING PREFERRED STOCK
of
WANG LABORATORIES, INC.
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
We, Joseph M. Tucci, Chairman of the Board, and Albert A. Notini,
Secretary, the undersigned officers of Wang Laboratories, Inc., a corporation
organized and existing under the General Corporation Law of the State of
Delaware, in accordance with the provisions of Section 103 thereof, DO HEREBY
CERTIFY:
That pursuant to the authority conferred upon the Board of Directors by
the Certificate of Incorporation of the said Corporation, the said Board of
Directors on April 22, 1998, adopted the following resolution creating a series
of 100,000 shares of Preferred Stock designated as Series C Junior Participating
Preferred Stock:
RESOLVED, that pursuant to the authority vested in the Board of
Directors of this Corporation in accordance with the provisions of its
Certificate of Incorporation, a series of Preferred Stock of the Corporation be
and it hereby is created, and that the designation and amount thereof and the
voting powers, preferences and relative, participating, optional and other
special rights of the shares of such series, and the qualifications, limitations
or restrictions thereof are as follows:
Section 1. DESIGNATION AND AMOUNT. The shares of such series shall be
designated as "Series C Junior Participating Preferred Stock" and the number of
shares constituting such series shall be One Hundred Thousand (100,000).
<PAGE> 2
Section 2. DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the prior and superior rights of the holders of any
shares of any series of Preferred Stock ranking prior and superior to the shares
of Series C Junior Participating Preferred Stock with respect to dividends, the
holders of shares of Series C Junior Participating Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of Directors out of
funds legally available for the purpose, quarterly dividends payable in cash on
the 1st day of January, April, July and October in each year (each such date
being referred to herein as a "Quarterly Dividend Payment Date"), commencing on
the first Quarterly Dividend Payment Date after the first issuance of a share or
fraction of a share of Series C Junior Participating Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the greater of (a)
$10.00 or (b) subject to the provision for adjustment hereinafter set forth,
1,000 times the aggregate per share amount of all cash dividends, and 1,000
times the aggregate per share amount (payable in kind) of all non-cash dividends
or other distributions other than a dividend payable in shares of Common Stock
or a subdivision of the outstanding shares of Common Stock (by reclassification
or otherwise), declared on the Common Stock, par value $0.01 per share, of the
Corporation (the "Common Stock") since the immediately preceding Quarterly
Dividend Payment Date, or, with respect to the first Quarterly Dividend Payment
Date, since the first issuance of any share or fraction of a share of Series C
Junior Participating Preferred Stock. In the event the Corporation shall at any
time after May 1, 1998 (the "Rights Declaration Date") (i) declare any dividend
on Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding Common Stock into a
smaller number of shares, then in each such case the amount to which holders of
shares of Series C Junior Participating Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding sentence shall
be adjusted by multiplying such amount by a fraction the numerator of which is
the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the
Series C Junior Participating
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Preferred Stock as provided in Paragraph (A) above immediately after it declares
a dividend or distribution on the Common Stock (other than a dividend payable in
shares of Common Stock); provided that, in the event no dividend or distribution
shall have been declared on the Common Stock during the period between any
Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend
Payment Date, a dividend of $10.00 per share on the Series C Junior
Participating Preferred Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series C Junior Participating Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares of Series
C Junior Participating Preferred Stock, unless the date of issue of such shares
is prior to the record date for the first Quarterly Dividend Payment Date, in
which case dividends on such shares shall begin to accrue from the date of issue
of such shares, or unless the date of issue is a Quarterly Dividend Payment Date
or is a date after the record date for the determination of holders of shares of
Series C Junior Participating Preferred Stock entitled to receive a quarterly
dividend and before such Quarterly Dividend Payment Date, in either of which
events such dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series C Junior Participating
Preferred Stock in an amount less than the total amount of such dividends at the
time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders of shares of
Series C Junior Participating Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date shall be no more
than 30 days prior to the date fixed for the payment thereof.
Section 3. VOTING RIGHTS. The holders of shares of Series C Junior
Participating Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Series C Junior Participating Preferred Stock shall entitle the holder
thereof to 1,000 votes on all matters submitted to a vote
3
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of the stockholders of the Corporation. In the event the Corporation shall at
any time after the Rights Declaration Date (i) declare any dividend on Common
Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common
Stock, or (iii) combine the outstanding Common Stock into a smaller number of
shares, then in each such case the number of votes per share to which holders of
shares of Series C Junior Participating Preferred Stock were entitled
immediately prior to such event shall be adjusted by multiplying such number by
a fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
(B) Except as otherwise provided herein or by law, the holders of
shares of Series C Junior Participating Preferred Stock and the holders of
shares of Common Stock shall vote together as one class on all matters submitted
to a vote of stockholders of the Corporation.
(C) (i) If at any time dividends on any Series C Junior
Participating Preferred Stock shall be in arrears in an amount equal to
six (6) quarterly dividends thereon, the occurrence of such contingency
shall mark the beginning of a period (herein called a "default period")
which shall extend until such time when all accrued and unpaid
dividends for all previous quarterly dividend periods and for the
current quarterly dividend period on all shares of Series C Junior
Participating Preferred Stock then outstanding shall have been declared
and paid or set apart for payment. During each default period, all
holders of Preferred Stock (including holders of the Series C Junior
Participating Preferred Stock) with dividends in arrears in an amount
equal to six (6) quarterly dividends thereon, voting as a class,
irrespective of series, shall have the right to elect two (2)
directors.
(ii) During any default period, such voting right of the
holders of Series C Junior Participating Preferred Stock may be
exercised initially at a special meeting called pursuant to
subparagraph (iii) of this Section 3(C) or at any annual meeting of
stockholders, and
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<PAGE> 5
thereafter at annual meetings of stockholders, provided that neither
such voting right nor the right of the holders of any other series of
Preferred Stock, if any, to increase, in certain cases, the authorized
number of directors shall be exercised unless the holders of ten
percent (10%) in number of shares of Preferred Stock outstanding shall
be present in person or by proxy. The absence of a quorum of the
holders of Common Stock shall not affect the exercise by the holders of
Preferred Stock of such voting right. At any meeting at which the
holders of Preferred Stock shall exercise such voting right initially
during an existing default period, they shall have the right, voting as
a class, to elect directors to fill such vacancies, if any, in the
Board of Directors as may then exist up to two (2) directors or, if
such right is exercised at an annual meeting, to elect two (2)
directors. If the number which may be so elected at any special meeting
does not amount to the required number, the holders of the Preferred
Stock shall have the right to make such increase in the number of
directors as shall be necessary to permit the election by them of the
required number. After the holders of the Preferred Stock shall have
exercised their right to elect directors in any default period and
during the continuance of such period, the number of directors shall
not be increased or decreased except by vote of the holders of
Preferred Stock as herein provided or pursuant to the rights of any
equity securities ranking senior to or PARI PASSU with the Series C
Junior Participating Preferred Stock.
(iii) Unless the holders of Preferred Stock shall, during an
existing default period, have previously exercised their right to elect
directors, the Board of Directors may order, or any stockholder or
stockholders owning in the aggregate not less than ten percent (10%) of
the total number of shares of Preferred Stock outstanding, irrespective
of series, may request, the calling of a special meeting of the holders
of Preferred Stock, which meeting shall thereupon be called by the
President, a Vice-President or the Secretary of the Corporation. Notice
of such meeting and of
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<PAGE> 6
any annual meeting at which holders of Preferred Stock are entitled to
vote pursuant to this Paragraph (C)(iii) shall be given to each holder
of record of Preferred Stock by mailing a copy of such notice to him at
his last address as the same appears on the books of the Corporation.
Such meeting shall be called for a time not earlier than 20 days and
not later than 60 days after such order or request or in default of the
calling of such meeting within 60 days after such order or request,
such meeting may be called on similar notice by any stockholder or
stockholders owning in the aggregate not less than ten percent (10%) of
the total number of shares of Preferred Stock outstanding.
Notwithstanding the provisions of this Paragraph (C)(iii), no such
special meeting shall be called during the period within 60 days
immediately preceding the date fixed for the next annual meeting of the
stockholders.
(iv) In any default period, the holders of Common Stock, and
other classes of stock of the Corporation if applicable, shall continue
to be entitled to elect the whole number of directors until the holders
of Preferred Stock shall have exercised their right to elect two (2)
directors voting as a class, after the exercise of which right (x) the
directors so elected by the holders of Preferred Stock shall continue
in office until their successors shall have been elected by such
holders or until the expiration of the default period, and (y) any
vacancy in the Board of Directors may (except as provided in Paragraph
(C)(ii) of this Section 3) be filled by vote of a majority of the
remaining directors theretofore elected by the holders of the class of
stock which elected the director whose office shall have become vacant.
References in this Paragraph (C) to directors elected by the holders of
a particular class of stock shall include directors elected by such
directors to fill vacancies as provided in clause (y) of the foregoing
sentence.
(v) Immediately upon the expiration of a default period, (x)
the right of the holders of Preferred Stock as a class to elect
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<PAGE> 7
directors shall cease, (y) the term of any directors elected by the
holders of Preferred Stock as a class shall terminate, and (z) the
number of directors shall be such number as may be provided for in the
certificate of incorporation or by-laws irrespective of any increase
made pursuant to the provisions of Paragraph (C)(ii) of this Section 3
(such number being subject, however, to change thereafter in any manner
provided by law or in the certificate of incorporation or by-laws). Any
vacancies in the Board of Directors effected by the provisions of
clauses (y) and (z) in the preceding sentence may be filled by a
majority of the remaining directors.
(D) Except as set forth herein, holders of Series C Junior
Participating Preferred Stock shall have no special voting rights and their
consent shall not be required (except to the extent they are entitled to vote
with holders of Common Stock as set forth herein) for taking any corporate
action.
Section 4. CERTAIN RESTRICTIONS.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series C Junior Participating Preferred Stock as
provided in Section 2 are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on shares of Series
C Junior Participating Preferred Stock outstanding shall have been paid in full,
the Corporation shall not
(i) declare or pay dividends on, make any other distributions
on, or redeem or purchase or otherwise acquire for consideration any
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series C Junior
Participating Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series C Junior Participating Preferred Stock, except dividends paid
7
<PAGE> 8
ratably on the Series C Junior Participating Preferred Stock and all
such parity stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all such shares
are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series C Junior Participating Preferred Stock, provided that the
Corporation may at any time redeem, purchase or otherwise acquire
shares of any such parity stock in exchange for shares of any stock of
the Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series C Junior
Participating Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any
shares of Series C Junior Participating Preferred Stock, or any shares
of stock ranking on a parity with the Series C Junior Participating
Preferred Stock, except in accordance with a purchase offer made in
writing or by publication (as determined by the Board of Directors) to
all holders of such shares upon such terms as the Board of Directors,
after consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and classes,
shall determine in good faith will result in fair and equitable
treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under Paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. REACQUIRED SHARES. Any shares of Series C Junior
Participating Preferred Stock purchased or otherwise acquired by the Corporation
in any manner whatsoever shall be retired and cancelled promptly after the
acquisition thereof. All such shares shall upon their cancellation become
authorized but unissued shares
8
<PAGE> 9
of Preferred Stock and may be reissued as part of a new series of Preferred
Stock to be created by resolution or resolutions of the Board of Directors,
subject to the conditions and restrictions on issuance set forth herein.
Section 6. LIQUIDATION, DISSOLUTION OR WINDING UP. (A) Upon any
liquidation (voluntary or otherwise), dissolution or winding up of the
Corporation, no distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series C Junior Participating Preferred Stock unless, prior
thereto, the holders of shares of Series C Junior Participating Preferred Stock
shall have received an amount equal to $1,000 per share of Series C
Participating Preferred Stock, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment (the "Series C Liquidation Preference"). Following the payment of
the full amount of the Series C Liquidation Preference, no additional
distributions shall be made to the holders of shares of Series C Junior
Participating Preferred Stock unless, prior thereto, the holders of shares of
Common Stock shall have received an amount per share (the "Common Adjustment")
equal to the quotient obtained by dividing (i) the Series C Liquidation
Preference by (ii) 1,000 (as appropriately adjusted as set forth in subparagraph
(C) below to reflect such events as stock splits, stock dividends and
recapitalizations with respect to the Common Stock) (such number in clause (ii),
the "Adjustment Number"). Following the payment of the full amount of the Series
C Liquidation Preference and the Common Adjustment in respect of all outstanding
shares of Series C Junior Participating Preferred Stock and Common Stock,
respectively, holders of Series C Junior Participating Preferred Stock and
holders of shares of Common Stock shall receive their ratable and proportionate
share of the remaining assets to be distributed in the ratio of the Adjustment
Number to 1 with respect to such Preferred Stock and Common Stock, on a per
share basis, respectively.
(B) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series C Liquidation Preference and
the liquidation preferences of all other series of preferred stock, if any,
which rank on a parity with the Series C Junior Participating Preferred Stock,
then such remaining assets shall be distributed ratably to the holders of such
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<PAGE> 10
parity shares in proportion to their respective liquidation preferences. In the
event, however, that there are not sufficient assets available to permit payment
in full of the Common Adjustment, then such remaining assets shall be
distributed ratably to the holders of Common Stock.
(C) In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the Adjustment Number in effect immediately prior to such event shall be
adjusted by multiplying such Adjustment Number by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
Section 7. CONSOLIDATION, MERGER, ETC. In case the Corporation shall
enter into any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other stock or
securities, cash or any other property, then in any such case the shares of
Series C Junior Participating Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share (subject to the provision
for adjustment hereinafter set forth) equal to 1,000 times the aggregate amount
of stock, securities, cash or any other property (payable in kind), as the case
may be, into which or for which each share of Common Stock is changed or
exchanged. In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the amount set forth in the preceding sentence with respect to the exchange or
change of shares of Series C Junior Participating Preferred Stock shall be
adjusted by multiplying such amount by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
10
<PAGE> 11
Section 8. NO REDEMPTION. The shares of Series C Junior Participating
Preferred Stock shall not be redeemable.
Section 9. RANKING. The Series C Junior Participating Preferred Stock
shall rank junior to all other series of the Corporation's Preferred Stock as to
the payment of dividends and the distribution of assets, unless the terms of any
such series shall provide otherwise.
Section 10. AMENDMENT. At any time when any shares of Series A Junior
Participating Preferred Stock are outstanding, neither the Certificate of
Incorporation of the Corporation nor this Certificate of Designation shall be
amended in any manner which would materially alter or change the powers,
preferences or special rights of the Series C Junior Participating Preferred
Stock so as to affect them adversely without the affirmative vote of the holders
of a majority or more of the outstanding shares of Series C Junior Participating
Preferred Stock, voting separately as a class.
Section 11. FRACTIONAL SHARES. Series C Junior Participating Preferred
Stock may be issued in fractions of a share which shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have the benefit of all
other rights of holders of Series C Junior Participating Preferred Stock.
IN WITNESS WHEREOF, we have executed and subscribed this Certificate
and do affirm the foregoing as true under the penalties of perjury this ______
day of _______________, 1998.
__________________________________
Chairman of the Board
Attest:
__________________________________
Secretary
11
<PAGE> 1
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
DATASERV COMPUTER MAINTENANCE, INC.
(A MINNESOTA CORPORATION)
INTO
WANG LABORATORIES, INC.
(A DELAWARE CORPORATION)
Wang Laboratories, Inc., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), does hereby certify:
FIRST: That the Corporation was incorporated on the 16th day of December,
1993, pursuant to the General Corporation Law of the State of Delaware.
SECOND: That the Corporation owns all of the outstanding shares of each
class of the stock of Dataserv Computer Maintenance, Inc., a corporation
incorporated on the 31st day of December, 1980, pursuant to the Business
Corporation Act of the State of Minnesota.
THIRD: That the Board of Directors of the Corporation, at a meeting duly
held on the 25th day of June, 1997, duly adopted the following resolutions:
VOTED: To hereby approve and adopt in all respects the proposed Plan of
Merger attached hereto as Exhibit A (the "Plan of Merger").
VOTED: To hereby authorize and direct the appropriate officers, or any
of them, to make, execute, acknowledge and file such certificates
and other agreements or documents as may be required by law with
respect to the Plan of Merger, including, but not limited to
filing a Certificate of Ownership and Merger with the Delaware
Secretary of State and Articles of Merger with the Minnesota
Secretary of State, and to take such other steps as are in their
sole judgment necessary or appropriate, to give effect to the
Plan of Merger; and that all of the actions of any of such
officers that are
<PAGE> 2
consistent with the purpose and intent of the Plan of Merger are
hereby in all respects authorized, approved, ratified and
confirmed.
IN WITNESS WHEREOF, Wang Laboratories, Inc., has caused this Certificate to
be signed by Albert A. Notini as Senior Vice President, General Counsel and
Secretary, this 25th day of June, 1997.
WANG LABORATORIES, INC.
By: /s/ Albert A. Notini
-------------------------------
Albert A. Notini
Senior Vice President, General
Counsel and Secretary
-2-
<PAGE> 3
Exhibit A
PLAN OF MERGER
--------------
ARTICLE
1.
TERMS AND CONDITIONS OF THE MERGER
1.1 MERGER. As soon as practicable following the fulfillment (or waiver,
to the extent permitted herein) of the conditions specified herein,
Dataserv Computer Maintenance, Inc., a Minnesota corporation
("Dataserv") shall be merged (the "Merger") with and into Wang
Laboratories, Inc., a Delaware corporation (the "Corporation"), and
the Corporation shall survive the Merger (the "Surviving
Corporation"). The name of the Surviving Corporation is Wang
Laboratories, Inc., and such corporation will be governed by the laws
of the State of Delaware. The Corporation and Dataserv are sometimes
referred to hereinafter as the "Constituent Corporations."
1.2 EFFECTIVE DATE. The Merger shall be effective upon the filing of this
Plan of Merger, together with appropriate Articles of Merger and a
Certificate of Ownership and Merger with respect thereto, with the
Secretaries of State of the States of Minnesota and Delaware, as
provided by the Minnesota Business Corporation Act and the Delaware
General Corporation Law (the "Effective Date").
1.3 SURVIVING CORPORATION. On the Effective Date, the Corporation, as the
Surviving Corporation, shall continue its corporate existence under
the laws of the State of Delaware and shall succeed to all of the
rights, privileges, powers and property of Dataserv in the manner of
and as more fully set forth in the Delaware General Corporation Law,
and the separate corporate existence of Dataserv, except insofar as it
may be continued by operation of law, shall cease and be terminated.
1.4 CAPITAL STOCK OF DATASERV. On the Effective Date, by virtue of the
Merger and without any further action on the part of the Constituent
Corporations or their shareholders: all shares of Capital Stock of
Dataserv (including any warrants, options and other rights to purchase
shares of Capital Stock of Dataserv) issued and outstanding
immediately prior thereto shall be canceled without payment of any
additional consideration.
-3-
<PAGE> 4
ARTICLE
2.
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 CERTIFICATE OF INCORPORATION. The Certificate of Incorporation of the
Corporation in effect on the Effective Date shall continue to be the
Certificate of Incorporation of the Surviving Corporation without
change or amendment until further amended in accordance with the
provisions thereof and applicable law.
2.2 BYLAWS. The Bylaws of the Corporation in effect on the Effective Date
shall continue to be the Bylaws of the Surviving Corporation without
change or amendment until further amended in accordance with the
provisions thereof and applicable law.
2.3 DIRECTORS. The directors of the Corporation immediately preceding the
Effective Date shall continue to be the directors of the Surviving
Corporation on and after the Effective Date to serve until their
successors are duly elected and qualified.
2.4 OFFICERS. The officers of the Corporation immediately preceding the
Effective Date shall continue to be the officers of the Surviving
Corporation on and after the Effective Date to serve until their
successors are duly elected and qualified.
ARTICLE
3.
MISCELLANEOUS
3.1 FURTHER ASSURANCES. From time to time and when required by the
Surviving Corporation or by its successors and assigns there shall be
executed and delivered on behalf of Dataserv such deeds and other
instruments and there shall be taken or caused to be taken by it such
further and other action as shall be appropriate or necessary in order
to vest or perfect in or to confirm of record or otherwise, in the
Surviving Corporation the title to and possession of all the property,
interests, assets, rights, privileges, immunities, powers, franchises
and authority of Dataserv and otherwise to carry out the purposes of
this Plan of Merger, and the officers and directors of the Surviving
Corporation are fully authorized in the name and on behalf of Dataserv
or otherwise to take any and all such action and to execute and
deliver any and all such deeds and other instruments.
-4-
<PAGE> 5
3.2 AMENDMENT. At any time before the date of filing, this Plan of Merger
may be amended in any manner as may be determined in the judgment of
the Board of Directors of the Corporation to be necessary, desirable
or expedient in order to clarify the intention of the parties hereto
or to effect or facilitate the purpose and intent of this Plan of
Merger.
3.3 ABANDONMENT OR DEFERRAL. At any time before the date of filing, this
Plan of Merger may be terminated and the Merger may be abandoned by
the Board of Directors of the Corporation, or the consummation of the
Merger may be deferred for a reasonable period of time if, in the
opinion of the Board of Directors of the Corporation, such action
would be in the best interest of the Constituent Corporations. In the
event of termination of this Plan of Merger, this Plan of Merger shall
become void and of no effect and there shall be no liability on the
part of either Constituent Corporation or its Board of Directors or
shareholders with respect thereto.
-5-
<PAGE> 1
EXHIBIT 5.1
April 29, 1999
Wang Laboratories, Inc.
290 Concord Road
Billerica, MA 01821
Re: Registration Statement on Form S-8 (Common Stock)
-------------------------------------------------
Ladies and Gentlemen:
I am General Counsel to Wang Laboratories, Inc., a Delaware corporation
(the "Company"). This opinion is furnished in connection with the preparation
and filing of a Registration Statement on Form S-8 (as amended as of the date
hereof, the "Registration Statement"), for the purpose of registering with the
Securities and Exchange Commission, under the Securities Act of 1933, as amended
(the "1933 Act") 150,000 (the "Shares") of common stock, par value $0.01 per
share (the "Common Stock"), of the Company issuable upon the exercise of options
by Alberto Fresco as compensation (the "Plan").
This opinion is being furnished in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the 1933 Act.
In this connection, I have examined and am familiar with originals or
copies, certified or otherwise identified to my satisfaction, of (i) the
Registration Statement, (ii) the Plan, (iii) the Certificate of Incorporation
and the By-Laws of the Company, each as currently in effect, (iv) a specimen
certificate representing the Common Stock and (v) certain resolutions adopted by
the Board of Directors of the Company relating to the issuance of the Shares and
certain related matters. I have also examined originals or copies, certified or
otherwise identified to my satisfaction, of such records of the Company and such
agreements, certificates of public officials, certificates of officers of the
Company and others, and such other documents, certificates and records as I have
deemed necessary or appropriate as a basis for the opinion set forth herein. In
my examination, I have assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of all documents submitted to me
as originals, the conformity to original documents of all documents submitted to
me as certified, conformed or photostatic copies and the authenticity of the
originals of such copies. As to any facts material to the opinion expressed
herein which I have not independently established or verified, I have relied
upon statements and representations of officers, counsel and other
representatives of the Company and others.
I am an attorney admitted to practice in the Commonwealth of
Massachusetts. I express no opinion herein concerning the laws of any
jurisdiction other than the laws of the United States of America and the
Commonwealth of Massachusetts and the General Corporation Law statute of the
State of Delaware with respect to matters relating to the Company's
incorporation and issuance of stock.
Based upon and subject to the foregoing, I am of the opinion that the
Shares have been duly authorized for issuance and, when the Shares have been
paid for and certificates therefor have been issued and delivered upon exercise
of options in accordance with the terms of the Plan and the corresponding Stock
Option Agreement as contemplated by the Registration Statement, the Shares will
be validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, I do not thereby admit that I am
in the category of person whose consent is required under Section 7 of the 1933
Act or the rules and regulations promulgated thereunder.
Very truly yours,
/s/ Albert A. Notini
---------------------------------
Albert A. Notini
General Counsel
<PAGE> 1
EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP
We consent to the incorporation by reference in the Registration Statement (Form
S-8) of Wang Laboratories, Inc. for the registration of 150,000 shares of its
common stock of our report dated March 22, 1999, with respect to the
consolidated financial statements and schedule of Wang Laboratories, Inc.
included in its Annual Report (Form 10-K) for the period ended December 31,
1998, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Boston, Massachusetts
April 23, 1999
