-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CJEqOQ3t0ArrTCJp3dmx/JqGepV4Nx9PJlA6R49Pp4BQAsWqUBD0Ewi0eTG0YRI0 pvULdEeBr01E7x4Ho0+IwA== 0000950135-96-003630.txt : 19960816 0000950135-96-003630.hdr.sgml : 19960816 ACCESSION NUMBER: 0000950135-96-003630 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19960814 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: WANG LABORATORIES INC CENTRAL INDEX KEY: 0000104519 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 042192707 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-3/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-06611 FILM NUMBER: 96612982 BUSINESS ADDRESS: STREET 1: 600 TECHNOLOGY PARK DRIVE CITY: BILLERICA STATE: MA ZIP: 01821-4120 BUSINESS PHONE: 5089675000 MAIL ADDRESS: STREET 1: 600 TECHNOLOGY PARK DRIVE STREET 2: MAILSTOP 014-B3C CITY: BILLERICA STATE: MA ZIP: 01821-4120 S-3/A 1 WANG LABORATORIES, INC. AMENDMENT NO. 1 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 14, 1996 REGISTRATION STATEMENT NO. 333-06611 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ AMENDMENT NO. 1 TO FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------ WANG LABORATORIES, INC. (Exact name of registrant as specified in its charter) ------------------------ DELAWARE 7372 04-2192707 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
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: 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
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. ================================================================================ 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. 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 2 4 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. 3 5 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 4 6 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 5 7 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. 6 8 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. 7 9 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 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. 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").
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 --------------- -------------- -------------- ------------------- ----- ----- ----- Ratio of earnings to combined fixed charges.................. (1) (1) 1.7 (1) (1) (1) (1) - --------------- (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.
USE OF PROCEEDS The Company will not receive any proceeds from the sale by the Selling Holders of the Securities offered hereby. 9 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. 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.
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 - ------------------------------- ------------------- ------------------ ------------------- ---------------- 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 -- --
10 12
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 - ------------------------------- ------------------- ------------------ ------------------- ---------------- 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 - --------------- (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.
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 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 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 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 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:
REDEMPTION PRICE YEAR PER SHARE ---- ---------------- 1999......................................... $1,030 2000......................................... $1,020 2001......................................... $1,010 2002 and thereafter.......................... $1,000
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 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 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 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 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 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 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 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 23 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
NATURE OF EXPENSE AMOUNT TO BE PAID ----------------- ----------------- 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
- --------------- 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
EXHIBIT NUMBER - -------- 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 - --------------- * 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.
II-1 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 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 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:
SIGNATURE TITLE --------- ----- * 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
*By: /s/ FRANKLYN A. CAINE ------------------------------------ FRANKLYN A. CAINE ATTORNEY-IN-FACT II-3 26 EXHIBIT INDEX
EXHIBIT NUMBER - -------- 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 - --------------- * 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..
EX-4.5 2 DEPOSIT AGREEMENT 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. 2 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, 2 3 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 3 4 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. 4 5 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 5 6 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 6 7 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- 7 8 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 8 9 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 9 10 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 10 11 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 11 12 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 12 13 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 13 14 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. 14 15 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. 15 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 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 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 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: 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 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 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 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 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 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 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 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 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 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 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. 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. EX-4.6 3 DEPOSITARY RECEIPT 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 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 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. 3 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 4 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 5 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. 6 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 7 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. 8 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 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 10 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. 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 EX-4.7 4 FORM OF CERTIFICATE 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 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 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 - -------------------------- -------------------------- 4 EX-5.1 5 OPINION OF HALE AND DORR 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 EX-23.1 6 CONSNET OF ERNST & YOUNG LLP 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 -----END PRIVACY-ENHANCED MESSAGE-----