exv10wh






Exhibit 10(h)




SHARE PURCHASE AND SHAREHOLDER AGREEMENT




     This Share Purchase and Shareholder Agreement (this “Agreement”), is entered into
as of April 5, 2000, by and between STRATUS COMPUTER SYSTEMS INTERNATIONAL S.A., a public
limited liability company incorporated under the laws of the Grand-Duchy of Luxembourg, with its
registered office at 10, rue Antone Jans in L-1820, Luxembourg, registered with the Luxembourg
Trade and Companies Registry under the number B 68 862 (the “Company”), and NEC
Corporation, a Japanese corporation with its principal place of business at 7-1, Shiba 5-chome,
Minato-ku, Tokyo 108-8001, Japan (the “Investor”).



     In consideration of the mutual covenants and agreements set forth in this Agreement, and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:



ARTICLE I




DEFINITIONS



     1.1 Definitions. (a) As used in this Agreement, the following defined terms shall have the
meanings indicated below:



     “Affiliate” means, as applied to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with, that Person.



     “Agreement” has the meaning ascribed to it in the forepart of this Agreement.



     “Business Day” means a day other than Saturday, Sunday or any day on which banks
located in the State of New York are authorized or obligated to close.



     “Closing” and “Closing Date” are defined in Section 2.3.



     “Common Stock” means shares of capital stock of the Company having a par value of
U.S.$1.50 per share.



     “Company” has the meaning ascribed to it in the forepart of this Agreement.



     “Contract” means any agreement (including licenses with non-governmental
Persons), lease, evidence of Indebtedness, mortgage, indenture, security agreement or other
contract whether written or oral.



     “Disclosure
Schedule” means the disclosure schedule attached hereto as
Exhibit
A prepared by or on behalf of the Company, containing all lists, descriptions,
exceptions and other information and materials as are required to be included therein by the
Company pursuant to this Agreement.



     “Financial Statements” has the meaning ascribed to it in Section 3.6.



     “GAAP” means United States generally accepted accounting principles, consistently
applied.



 









 





     “Governmental or Regulatory Authority” means any court, tribunal, arbitrator,
authority, agency, commission, official or other instrumentality of the United States, any
foreign country or any domestic or foreign state, county, city or other political subdivision.



     “Initial Public Offering” means the effectiveness of a registration statement with
respect to the Common Stock under the Securities Act.



     “Investor” has the meaning ascribed to it in the forepart of this Agreement.



     “Law” or “Laws” means all laws, statutes, rules, regulations, ordinances
and other pronouncements having the effect of law of the United States, any foreign country or
any domestic or foreign state, county, city or other political subdivision or of any
Governmental or Regulatory Authority.



     “Licenses” means all licenses, permits, certificates of authority, authorizations,
approvals registrations, franchises and similar consents granted or issued by any Governmental
or Regulatory Authority.



     “Liens” means any mortgage, pledge, assessment, security interest, lease, lien,
adverse claim, levy, charge or other encumbrance of any kind.



     “Material Adverse Effect” means any change or effect which has had or is
reasonably likely to result in a material adverse effect on the Company’s business.



     “Option” means any security, right, subscription, warrant, option or convertible
or exchangeable instrument that gives the right to purchase or otherwise receive or be issued
any shares of capital stock of the Company or any security of any kind convertible into or
exchangeable or exercisable for any shares of capital stock of such Person.



     “Order” means any writ, judgment, decree, injunction or similar order of any
Governmental or Regulatory Authority (in each such case whether preliminary or final).



     “Person” means an individual, partnership, joint venture, limited liability
company, corporation, trust, unincorporated organization or a government or any department or
agency thereof.



     “Pre-IPO Restricted Period” has the meaning specified in Section 8.1 hereof.



     “Purchased Securities” has the meaning ascribed to it in Section 2.1.



     “Repurchase Notice” has the meaning specified in Section 8.1 hereof.



     “Repurchase Right” has the meaning specified in Section 8.1 hereof.



     “Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations thereunder.



     “Subsidiary” means any Person in which the Company, directly or indirectly through
Subsidiaries or otherwise, beneficially owns at least 50% of either the equity interest in, or
the voting control of, such Person, whether or not existing on the date hereof.



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     “Transfer” means a sale, assignment, pledge, hypothecation or other encumbrance or
disposition of any Shares, whether direct or indirect, whether voluntary or involuntary and
whether for consideration or without consideration.



     “Transfer Notice” has the meaning specified in Section 8.1 hereof.



     (b) Unless the context of this Agreement otherwise requires, (i) words of any gender include
each other gender, (ii) words using the singular or plural number also include the plural or
singular number, respectively, (iii) the terms “hereof,” “herein,” “hereby” and derivative or
similar words refer to this entire Agreement, (iv) the terms “Article” or “Section” refer to the
specified Article or Section of this Agreement, (v) the phrases “ordinary course of business” and
“ordinary course of business consistent with past practice” refer to the business and practice of
the Company and (vi) the words “include,” “includes” and “including” shall be deemed to be
followed by the phrase “without limitation.” All accounting terms used herein and not expressly
defined herein shall have the meanings given to them under GAAP.



ARTICLE II




SALE OF COMMON STOCK; CLOSING



     2.1 Purchase and Sale. On the terms of this Agreement, at the Closing, the Company
shall issue and sell to Investor, and Investor shall purchase from the Company, 666,667 shares of
Common Stock of the Company (the “Purchased Securities”).



     2.2 Purchase Price. The purchase price for the Purchased Securities shall be Fifteen
Dollars ($15.00) per share. The total purchase price of the Purchased Securities is Ten Million
and Five Dollars ($10,000,005) and shall be payable on the Closing Date in immediately available
funds by wire transfer to an account designated by the Company.



     2.3 Closing. The consummation of the purchase of the Purchased Securities (the
“Closing”) will take place at the offices of Gibson, Dunn & Crutcher LLP, 200 Park
Avenue, New York, New York, or at such other place as Investor and the Company shall mutually
agree, at 10:00 A.M. local time, on April 10, 2000 or such other date and time as Investor and
the Company shall mutually agree (the “Closing Date”). At the Closing, Investor shall pay
the purchase price and the Company shall issue to Investor a stock certificate representing the
Purchased Securities.



ARTICLE III




REPRESENTATIONS AND WARRANTIES OF THE COMPANY



     The Company hereby represents and warrants to the Investor as of the date hereof as follows:



     3.1 Organization and Qualification. The Company is a societe anonyme (public limited
liability company) duly organized and validly existing under the laws of Luxembourg. The Company
is duly qualified, licensed or admitted to do business in each jurisdiction in which the
ownership, use or leasing of its assets and properties, or the conduct or nature of its business,



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makes such qualification, licensing or admission necessary, except, in each case, where the
failure to be so qualified, licensed or admitted would not have a Material Adverse Effect.




     3.2 Authority Relative to this Agreement and the Operative Agreements. The Company
has full corporate power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby. The execution,
delivery and performance by the Company of this Agreement and the consummation by the Company
of the transactions contemplated hereby have been duly and validly authorized by all necessary
corporate action of the Company. This Agreement has been duly and validly executed and
delivered by the Company and constitutes a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms.



     3.3 Capital Stock. The authorized, issued and outstanding capital stock of the
Company is set forth on Section 3.3 of the Disclosure Schedule. Except as set forth on
Section 3.3 of the Disclosure Schedule: (i) there are no outstanding Options and (ii)
there are no preemptive rights or agreements to issue preemptive rights with respect to the
issuance or sale of the Company’s capital stock. The Purchased Securities, when issued in
accordance with this Agreement, will be duly authorized, validly issued, fully paid and
nonassessable.


     3.4 Subsidiaries. Section 3.4 of the Disclosure Schedule is an accurate list of
all of the Company’s material Subsidiaries, each of which is directly or indirectly,
wholly-owned by the Company except as noted therein. Each of the material Subsidiaries is duly
organized and existing under the jurisdiction of its incorporation. No material Subsidiary has
received any notice that indicates that the Subsidiary is not duly organized, validly existing
or in good standing under the jurisdiction of its incorporation. Stratus Computer (DE), Inc. is
qualified, licensed or admitted to do business as a foreign corporation in the jurisdictions
where the nature of its activities requires such qualification, license or admission, except
where the failure to be so qualified, licensed or admitted would not have a Material Adverse
Effect.




     3.5 No Conflicts. The execution, delivery and performance by the Company of this
Agreement will not:



          (a) conflict with or result in a violation or breach of any of the terms, conditions
or provisions of the articles of association of the Company; or



          (b) except as disclosed in Section 3.5 of the Disclosure Schedule, (i) conflict
with or result in a default under (with or without notice or lapse of time or both), (ii)
require the Company or any of its Subsidiaries to obtain any consent, make any filing with or
give any notice to any Person as a result or under the terms of, or (iii) result in the
creation or imposition of any Lien upon the Company or any of its Subsidiaries or any of their
respective assets or properties under, any Law or Order applicable to the Company or any of its
Subsidiaries, or under any Contract or License to which the Company or any of its Subsidiaries
is a party or by which any of their respective assets or properties are bound, except to the
extent that the occurrence of any of the events described in clauses (i) through (iii) above
would not have a Material Adverse Effect.



     3.6 Financial Statements. The Company has previously delivered to Investor under
cover of letter dated February 14, 2000 from Bob Laufer the following financial statements: (i)
consolidated forecast for the year ended February 27, 2000, (ii) annual business plan
projections



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for the years 2000 to 2004, (iii) current and historical quarterly balance sheets and (iv)
current and historical quarterly cash flow statements (the “Financial Statements”). The
Financial Statements have been prepared in accordance with the books and records of the Company
and fairly present in all material respects the consolidated results of operations and financial
condition of the Company and its Subsidiaries in accordance with GAAP.




     3.7 Absence of Changes. Since November 28, 1999, there has not been any Material
Adverse Effect.



     3.8 Taxes. The Company has filed all tax returns required to be filed by it other than
tax returns which, if not filed, would not result in a Material Adverse Effect. The Company has
paid all taxes shown thereon as due and payable, other than taxes that are being contested in good
faith or that would not result in a Material Adverse Effect.



     3.9 Legal Proceedings. There are no actions, suits or proceedings pending or, to the
knowledge of the Company, threatened against the Company or any of its Subsidiaries other than
those which would not have a Material Adverse Effect.



     3.10 Intellectual Property Rights. Except as set forth in Section 3.10 to the
Disclosure Schedule:



          (a) To the Company’s knowledge, the Company and/or its Subsidiaries owns, or has the right to
use, all patents, trademarks, service marks, trade names, copyrights (and licenses with respect to
the foregoing) used in the conduct of its business without infringing upon or otherwise acting
adversely to the right of any Person under or with respect to any of the foregoing, other than
those that would not result in a Material Adverse Effect.



          To the Company’s knowledge, the Company and/or its Subsidiaries owns or has the right to use
all trade secrets, including know-how, inventions, designs, processes, and technical data required
for or incident to the development, manufacture, operation and sale of all products and services
sold by the Company or its Subsidiaries, free and clear of any rights or liens of all current and
former employees, consultants, officers, directors and shareholders of the Company or its
Subsidiaries, other than those that would not result in a Material Adverse Effect.



          (b) To the Company’s knowledge, substantially all employees and consultants of the Company and
its Subsidiaries have executed proprietary information agreements pursuant to which each such
employee or consultant is obligated to disclose and transfer to the Company or such Subsidiary, all
inventions, developments and discoveries which during the period of his or her employment with or
performance of services for the Company or such Subsidiary he or she make or conceives of solely or
jointly with others, that relate to any subject matter with which his or her work for the Company
or such Subsidiary may be concerned or relate to or are connected with the business, products or
projects of the Company or its Subsidiaries, or involve the use of the time, material or facilities
of the Company or any Subsidiary, other than those that would not result in a Material Adverse
Effect.



     3.11 Title to Assets. The Company and each Subsidiary has good and marketable title
to its properties and assets, and has good title to all its leasehold interests, in each case
subject to no mortgage, pledge, lien, lease, encumbrance or charge created by the Company, other
than (i) the lien of current taxes not yet due and payable, and (ii) possible liens and
encumbrances



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which do not in any case materially detract from the value of the property subject thereto or
materially impair the operation of the Company or such Subsidiary, and which have not arisen
otherwise than in the ordinary course of business, other than those that would not result in a
Material Adverse Effect.




     3.12 Business Plan Projections. The annual business plan projections for the years
2000 to 2004 delivered by the Company to Investor on or about February 14, 2000 do not include
any revenue from markets which the Company is restricted from entering pursuant to its agreements
with Ascend Communications, Inc. and Lucent Technologies Inc. during the term of such
restriction.



ARTICLE IV




REPRESENTATIONS AND WARRANTIES OF INVESTOR



     Investor hereby represents and warrants to the Company as of the date hereof as follows:



     4.1 Organization; Power and Authority. Investor is a corporation duly organized,
validly existing and in good standing under the Laws of its jurisdiction of organization.
Investor has full power and authority to execute and deliver this Agreement and to perform its
obligations hereunder and to consummate the transaction contemplated hereby. The execution and
delivery by Investor of this Agreement to which it is a party and the performance by such
Investor of its obligations hereunder has been duly and validly authorized by all necessary
corporate action on the part of Investor. This Agreement has been duly and validly executed and
delivered by Investor and constitutes a legal, valid and binding obligation of Investor
enforceable against Investor in accordance with, its terms.



     4.2 No Conflicts. The execution, delivery and performance of this Agreement and the
consummation by Investor of the transaction contemplated hereby will not conflict with, or
constitute a default under any agreement, indenture or instrument to which Investor is a party,
or results in the violation of Investor’s organization documents or any order, judgment or decree
of any court or Governmental or Regulatory Authority have jurisdiction over Investor or any of
its assets and properties and no consent, authorization or order of, or filing or registration
with, any Governmental or Regulatory Authority or other person is required by Investor for the
execution, delivery and performance of this Agreement, except that pursuant to the Foreign
Exchange and Foreign Trade Law, after the Closing Investor must file a notice of its acquisition
of the Purchased Shares with the Ministry of Finance.



     4.3 Purchase for Investment. The Purchased Securities will be acquired by such
Investor for its own account for the purpose of investment and not with a view to the resale or
distribution of all or any part of the Purchased Securities. Investor represents and warrants
that it is an “accredited investor” as such term is defined in Rule 501 of Regulation D of the
Securities Act. Investor understands that the Purchased Securities have not been registered under
the Securities Act in reliance on an exemption therefrom based in part on the accuracy of
Investor’s representations and warranties hereunder, and that the certificates for the Purchased
Securities shall bear the following legends:


THE
SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (A) AN








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CERTIFICATE AND THE CORPORATION (THE “SHAREHOLDERS AGREEMENT”). IN ADDITION,
AS SPECIFIED IN THE SHAREHOLDERS AGREEMENT, THE SALE AND TRANSFERABILITY OF
THESE SECURITIES ARE SUBJECT TO RESTRICTION. ANY ATTEMPTED SALE OR TRANSFER OF
THESE SECURITIES WHICH DOES NOT COMPLY WITH APPLICABLE PROVISIONS OF THE
SHAREHOLDERS AGREEMENT SHALL BE VOID.



The Company shall remove the first of such legends upon receipt of an opinion from counsel to
any Investor, reasonably satisfactory in form and substance to counsel to the Company, that the
requirements for such legend have terminated. The Company shall remove the second of such
legends upon the date of the Initial Public Offering.




     4.3 Brokers. No agent, broker, finder, investment banker, financial advisor or other
similar Person will be entitled to any fee, commission or other compensation in connection with
any of the transactions contemplated by this Agreement on the basis of any act or statement made
by Investor.



ARTICLE V




COVENANTS OF THE COMPANY



     The Company covenants and agrees with Investor that, except to the extent such Investor may
otherwise consent in writing:



     5.1 Financial Statements and Reports. Until the Initial Public Offering, the Company
shall, within sixty (60) days after the close of its second and fourth fiscal quarters
provide Investor with unaudited financial statements for the Company and its Subsidiaries for the
period then completed and within one hundred twenty (120) days after the close of each fiscal
year provide Investor with audited financial statements for the Company and its Subsidiaries for
the fiscal year then completed.



     5.2 Piggyback Registration Rights.



          (a) In connection with the Initial Public Offering, Investor shall be entitled to
participate as a selling shareholder (on a pro rata basis with other shareholders) in such
offering; provided, however, that if the managing underwriter of such registration limits the
number of shares of selling shareholders permitted in such registration, the shares that Investor
seeks to sell shall be reduced on a pro rata basis with those of the other selling shareholders.
Such participation shall be on customary terms and conditions.



          (b) Until such time as Investor may sell the Purchased Securities pursuant to Rule 144 (K)
promulgated under the Securities Act, Investor shall also be entitled to participate, on
customary terms and conditions, as a selling shareholder (on a pro rata basis with other
shareholders) in any registration effected by the Company under the Securities Act; provided,
however, that if the managing underwriter of such registration limits the number of shares of
selling shareholders permitted in such registration, the shares that Investor seeks to sell shall
be reduced on a pro rata basis with those of the other selling shareholders.



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     5.3 Current Reports. Following the Initial Public Offering, the Company shall file
all required reports under the Securities Act and/or the Securities Exchange Act of 1934, as
amended, on a timely basis and, if requested, shall provide written confirmation of such timely
filings to Investor.



ARTICLE VI




CONDITIONS TO CLOSING



     6.1 Conditions to Closing by Investor. Investor’s obligation to purchase the
Purchased Securities at the Closing is subject to the fulfillment of the following conditions:



          (a) The representations and warranties of the Company made herein shall be true and
correct when made, and shall be true and correct on the Closing Date, other than those that
would not have a Material Adverse Effect.



          (b) The Board of Directors of Investor shall have approved the purchase of the Purchased
Securities.



          (c) The Company shall have obtained all permits and qualifications required by any state for
the offer and sale of the Purchased Securities or an exemption therefrom shall be available.



          (d) Investor shall have received an opinion from counsel to the Company, dated the Closing
Date, in form and substance reasonably acceptable to the Investor, to the effect that:



               (1) The Company is a corporation duly organized, validly existing and in good standing under
the laws of Luxembourg; and the Company has the requisite corporate power and authority to own
its properties and to conduct its business.



               (2) The Company is duly qualified to do business as a foreign corporation in the
following jurisdictions where the nature of its activities requires such qualification;



               (3) The Company has the requisite corporate power and authority to execute, deliver and
perform this Agreement.



               (4) The authorized capitalization of the Company is as set out in Section 3.3 of the
Disclosure Schedule to the Agreement; upon issuance and payment therefore, the Purchased
Securities will be duly authorized, validly issued, fully paid and nonassessable.



               (5) Based in part upon the representations and warranties of the Investor in the Agreement,
the offer and sale of the Purchased Securities to the Investor hereunder are exempt from the
registration requirements of Section 5 of the Securities Act by virtue of Section 4(2) thereof.



     6.2 Conditions to Closing by the Company. The Company’s obligation to sell the
Purchased Securities at the Closing is subject to the fulfillment of the following conditions:



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               (3) The authorized capitalization of the Company is as set out in Section 3.3 of the
Disclosure Schedule to the Agreement; upon issuance and payment therefore, the Purchased
Securities will be duly authorized, validly issued, fully paid and nonassessable.



               (4) Based in part upon the representations and warranties of the Investor in the Agreement,
the offer and sale of the Purchased Securities to the Investor hereunder are exempt from the
registration requirements of Section 5 of the Securities Act by virtue of Section 4(2) thereof.



     6.2 Conditions to Closing by the Company. The Company’s obligation to sell the
Purchased Securities at the Closing is subject to the fulfillment of the following conditions:



          (a) The representations and warranties of the Investor made herein shall be true and
correct in all material respects when made, and shall be true and correct in all material
respects on the Closing Date.



          (b) The Board of Directors of the Company shall have approved the sale of the Purchased
Securities.



          (c) The Company shall have obtained all permits and qualifications required by any state
for the offer and sale of the Purchased Securities or an exemption therefrom shall be
available.



ARTICLE VII




INDEMNIFICATION



     7.1 Indemnification. The Company shall indemnify the Investor in respect of all
losses incurred by the Investor in connection with any breach of any representation or warranty
contained herein of the Company.



ARTICLE VIII




TRANSFER RESTRICTIONS AND OTHER TRANSFER PROVISIONS



     8.1 Transfer Restrictions.



          (a) Transfer Restrictions. During the period beginning on the date hereof and
ending on the date of the Initial Public Offering (the “Pre-IPO Restricted Period”),
Investor shall not Transfer any of the Purchased Securities, unless: (i) Investor has complied
with the requirements specified in Section 8.1(b) hereof, (ii) the Company has not delivered to
Investor a Repurchase Notice pursuant to Section 8.1(c) hereof within the time period specified
therein and (iii) the proposed transferee signs and delivers to the Company and the Investor,
prior to the Transfer of any Purchased Securities to such proposed transferee, an agreement in
such form as the Company may reasonably specify pursuant to which such proposed transferee shall
agree to be bound by the terms of this Agreement as if such transferee were the Investor.



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          (b) Transfer Notice. If Investor desires to Transfer any Purchased Securities during
the Pre-IPO Restricted Period, Investor shall provide the Company with written notice (the
“Transfer Notice”) of the proposed Transfer containing the following information:



               (i) number of shares proposed to be transferred;



               (ii) the proposed purchase price per share; and



               (iii) a statement confirming that the proposed transferee has agreed to
be bound by the terms and conditions of this Agreement.



          (c) Repurchase Right. In the event of any proposed Transfer of Purchased Securities
during the Pre-IPO Restricted Period, the Company shall have the right (the “Repurchase
Right”) to purchase all, but not less than all, of the shares subject to such proposed
Transfer. The purchase price for such shares shall be equal to the price specified in the
Transfer Notice. The Repurchase Right shall be exercisable by giving a written notice (the
“Repurchase Notice”) to Investor within Thirty (30) Days of receiving the Transfer
Notice. In the case of any involuntary Transfer of Purchased Securities, the Repurchase Right
shall be exercisable at any time by giving a Repurchase Notice to the holder of the Purchased
Securities. If the Company has given a Repurchase Notice in a timely manner, Investor shall sell
and the Company shall purchase the Purchased Securities covered thereby at such time and place,
within Twenty (20) Business Days after the giving of the Repurchase Notice, as the Company shall
designate. At such time and place, the Company shall pay the purchase price for such shares and
Investor shall deliver endorsed certificates to the Company. If the Company does not purchase the
Purchased Securities, the Purchased Securities may be transferred in accordance with this Section
8.1; provided however that if the Purchased Securities are not transferred within Ninety (90)
Days of the date of the Repurchase Notice, the Purchased Securities must again be offered to the
Company under the terms of this Section 8.1 before Investor transfers any of the Purchased
Securities.



     8.2. Drag-Along Rights and Tag-Along Rights. The Purchased Securities shall be
subject to the provisions set forth on Exhibit B attached hereto and hereby
incorporated by reference herein.



     8.3. Transfer of Shares; Void Transfers of Shares. In connection with any purchase
and sale of shares under Sections 8.1 or 8.2 hereof, Investor shall transfer the Purchased
Securities to the purchaser free and clear of all Liens.



ARTICLE IX




SURVIVAL OF REPRESENTATIONS AND WARRANTIES



     9.1 Survival of Representations and Warranties. The representations and warranties
of the Company contained in this Agreement will terminate and be of no further effect on the
first anniversary of the Closing Date.



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ARTICLE X




MISCELLANEOUS



     10.1 Notices. All notices, requests and other communications hereunder must be
in writing and will be deemed to have been duly given only if delivered personally against
written receipt or by fax transmission against fax confirmation or mailed by prepaid first
class certified mail, return receipt requested, or dispatched by reputable overnight courier
prepaid, to the parties at the following addresses or fax numbers:


If to Investor, to:



NEC Corporation

1st Engineering Department, WAS Division, NEC Solutions

1-10, Nisshincho, Fuchu City

Tokyo 183-8501, Japan

Attention: Yukio Ito

Fax: 81-42-333-1924



with copies to:




	 	 	 

	NEC USA, Inc.

	 	Steinhart & Falconer, LLP
	10080 North Wolfe Road, Suite SW3-300

	 	333 Market Street, 32nd Floor
	Cupertino, CA 95014-2515

	 	San Francisco, CA 94105
	Attention: Harumi Kato

	 	Attention: John M. Salmanowitz
	Fax: (408) 366-3099

	 	Fax: (415)442-0856





If to the Company to:



Stratus Computer Systems International S.A.

10, rue Antone Jans

L-1820 Luxembourg

Attention: Hans de Graaf



with copies to:




	 	 	 

	Gibson, Dunn & Crutcher LLP

	 	Stratus Computer (DE), Inc.
	200 Park Avenue

	 	111 Powdermill Road
	New York, New York 10166

	 	Maynard, Massachusetts 01754
	Attention: E. Michael Greaney

	 	Attention: Frederick Prifty
	Fax: (212) 351-4065

	 	Fax (978) 461-3690





All such notices, requests and other communications will (i) if delivered personally to the
address as provided in this Section, be deemed given upon delivery, (ii) if delivered by fax
transmission to the fax number as provided for in this Section, be deemed given upon fax
confirmation, (iii) if delivered by mail in the manner described above to the address as
provided for in this Section, be deemed given on the earlier of the seventh Business Day
following mailing or upon receipt and (iv) if dispatched by reputable overnight courier to
the address as provided in this Section, be deemed given on the earlier of the first
Business Day following the date sent by








11









 







such overnight courier or upon receipt (in each case regardless of whether such notice, request or
other communication is received by any other Person to whom a copy of such notice is to be
delivered pursuant to this Section). Any party from time to time may change its address, fax
number or other information for the purpose of notices to that party by giving notice specifying
such change to the other parties hereto.




     10.2 Entire Agreement. This Agreement supersedes all prior discussions and agreements
between the parties with respect to the subject matter hereof and contains the sole and entire
agreement between the parties hereto with respect to the subject matter hereof. In furtherance and
not in limitation of the foregoing, other than the representations and warranties expressly made
by the Company in Article III or by Investor in Article IV, neither party makes any
representations and warranties, whether express or implied. In no event will the Company’s
liability with respect to the representations and warranties set forth herein be in excess of the
aggregate purchase price for the Purchased Securities.



     10.3 Expenses. Each party will pay its own costs and expenses incurred in connection
with this Agreement and the transaction contemplated hereby.



     10.4 Confidentiality. Investor will hold in strict confidence from any Person, unless
disclosure is compelled by judicial or administrative process or by other requirements of Law, all
documents and information concerning the Company or any of its Affiliates furnished to it by or on
behalf of the Company in connection with or pursuant to this Agreement, except to the extent that
such documents or information can be shown to have been in the public domain through no fault of
Investor.



     10.5 Amendment. This Agreement may be amended, supplemented or modified only by a
written instrument duly executed by or on behalf of each party hereto.



     10.6 Third Party Beneficiaries. The terms and provisions of this Agreement are
intended solely for the benefit of each party hereto and it is not the intention of the parties to
confer third-party beneficiary rights, and this Agreement does not confer any such rights, upon
any other Person.



     10.7 Assignment. Except as and only to the extent expressly set forth herein,
Investor shall have no right to assign any of its rights or delegate any of its duties under this
Agreement without the prior written consent of the Company, and any attempt to do so shall be
void. The Company shall have the right to assign the Repurchase Right to any Person. In addition,
the Company shall have the right to assign its rights and delegate its duties under this Agreement
in connection with a transaction or series of related transactions which involve the sale or
transfer of 50% or more of the assets, business or voting control of the Company.



     10.8 Headings. The headings used in this Agreement have been inserted for
convenience of reference only and do not define or limit the provisions hereof.



     10.9 Invalid Provisions. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under any present or future Law, and if the rights or obligations of any
party hereto under this Agreement will not be materially and adversely affected thereby, (a) such
provision will be fully severable, (b) this Agreement will be construed and enforced as if such



12









 




illegal, invalid or unenforceable provision had never comprised a part hereof, (c) the
remaining provisions of this Agreement will remain in full force
and effect and will not be affected by the illegal,
invalid or unenforceable provision or by its severance therefrom and (d) in lieu of
such illegal, invalid, or unenforceable provision, there will be added automatically
as a part of this Agreement a legal, valid and enforceable provision as similar in
terms to such illegal, invalid or unenforceable provision as may be possible.




     10.10 Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of New York, without giving effect to
any choice of law or conflict of law provision or rule (whether of the State of New
York or any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of New York.



     10.11 Construction. The parties hereto agree that this Agreement is the
product of negotiation between sophisticated parties, each of whom were represented by
counsel, and each of whom had an opportunity to participate in and did participate in,
the drafting of each provision hereof. Accordingly, ambiguities in this
Agreement, if any, shall not be construed strictly or in favor of or against any party
hereto but rather shall be given a fair and reasonable construction.



     10.12 Counterparts. This Agreement may be executed in two counterparts,
each of which will be deemed an original, but all of which, together will constitute
one and the same instrument.



	 	 	 	 	 	 	 	 	 	 	 

	STRATUS COMPUTER SYSTEMS	 	 	 	NEC CORPORATION	 	 
	INTERNATIONAL S.A.	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Gary S. Long
	 	 	 	By:
	 	/s/ Yoshikazu Maruyama	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 

	 	Name: Gary S. Long
	 	 	 	 	 	Name: Yoshikazu Maruyama	 	 
	 

	 	Title:   DIRECTOR
	 	 	 	 	 	Title:   General Manager	 	 
	 

	 	 	 	 	 	 	 	            Workstations and Servers Division	 	 
	 

	 	 	 	 	 	 	 	            NEC Solutions	 	 






13









 




For the purposes of article 1 of the Protocol annexed to the Convention on Jurisdiction and
Enforcement of Judgments in Civil and Commercial Matters, signed at Brussels on 27th September
1968 (as amended), the Company hereby expressly and specially confirms its agreement with the
provision of Section 10.10 of this Agreement which provides that the State of New York, United
States of America, shall be the exclusive place of jurisdiction.




	 	 	 	 	 
	STRATUS COMPUTER SYSTEMS 

INTERNATIONAL S.A.

 	 	 
	By:  	/s/ Gary S. Long
 	 	 
	 	Name:  	Gary S. Long 	 	 
	 	Title:  	DIRECTOR 	 	 



14









 






	 	 	 	 	 



EXHIBIT A




DISCLOSURE SCHEDULES




	 	 	 

	Section 3.3

	 	Capital Stock of the Company
	 
	 	 
	Section 3.4

	 	Company’s Material Subsidiaries
	 
	 	 
	Section 3.5

	 	Conflicts
	 
	 	 
	Section 3.10

	 	Intellectual Property Rights
	 
	 	 
	Section 3.12

	 	Company Information










15









 








SHARE PURCHASE AND SHAREHOLDER AGREEMENT

DISCLOSURE SCHEDULE 3.3




Authorized, Issued and Outstanding Capital Stock

and

Stock Option and Restricted Stock Grants



(As of March 17, 2000)



	 	 	 	 	 	 	 	 	 
	Shareholder Group	 	Shares (Common Stock, par $1.50)	 
	 
	Total Authorized Shares
	 	 	 	 	 	 	65,000,000	 
	 
	Total Issued Shares
	 	 	 	 	 	 	48,090,154	 
	Investcorp
	 	 	45,717,350	 	 	 	 	 
	Stratus Sarl
	 	 	23,334	 	 	 	 	 
	Stratus Management/Employees
	 	 	2,349,470	 	 	 	 	 
	 
	Total Option/Restricted Stock Grants
	 	 	 	 	 	 	13,696,290	 
	Options outstanding (granted & not exercised)
	 	 	13,626,290	 	 	 	 	 
	Restricted Stock Grants
	 	 	70,000	 	 	 	 	 











16









 








SHARE PURCHASE AND SHAREHOLDER AGREEMENT

DISCLOSURE SCHEDULE 3.4




Stratus Material Subsidiary Listing



LUXEMBOURG

Stratus Computer Systems S.à r.l




	 	 	 

	IRELAND

	 	USA
	Stratus Computer Systems Ireland Ltd.

	 	Stratus Computer (DE), Inc.
	 
	 	 
	 

	 	AUSTRALIA
	 

	 	Stratus Computer Systems Pty. Ltd.
	 
	 	 
	 

	 	BELGIUM
	 

	 	Stratus Computer Systems Belgium
	 
	 	 
	 

	 	CANADA
	 

	 	Stratus Computer Systems Canada Corporation
	 
	 	 
	 

	 	FRANCE
	 

	 	Stratus Computer Systems S.A.
	 
	 	 
	 

	 	GERMANY
	 

	 	Stratus Systems GmbH
	 
	 	 
	 

	 	HONG KONG
	 

	 	Stratus Computer Systems (HK) Limited
	 
	 	 
	 

	 	ITALY
	 

	 	Stratus Computer Systems Italia S.r.L.
	 
	 	 
	 

	 	JAPAN
	 

	 	Stratus Computer Systems Japan Co., Ltd.
	 
	 	 
	 

	 	KOREA
	 

	 	Stratus Computer Systems (Korea) Ltd.
	 
	 	 
	 

	 	MEXICO
	 

	 	Stratus Computer Mexico S.A. de C.V.
	 
	 	 
	 

	 	NETHERLANDS
	 

	 	Stratus Computer Systems B.V.
	 
	 	 
	 

	 	NEW ZEALAND
	 

	 	Stratus Computer Systems (NZ) Limited






17









 






	 	 	 

	 

	 	SINGAPORE
	 

	 	Stratus Computer Systems (Singapore) Pte. Ltd.
	 
	 	 
	 

	 	SOUTH AFRICA
	 

	 	Stratus Computer Systems (Pty) Limited.
	 
	 	 
	 

	 	SPAIN
	 

	 	Stratus Computer Systems S.A.
	 
	 	 
	 

	 	SWEDEN
	 

	 	Stratus Computer Systems AB
	 
	 	 
	 

	 	UNITED KINGDOM
	 

	 	Stratus Computer Systems Ltd.










18









 








SHARE PURCHASE AND SHAREHOLDER AGREEMENT




DISCLOSURE SCHEDULE 3.5



Conflicts


NONE.








19









 








SHARE PURCHASE AND SHAREHOLDER AGREEEMENT




DISCLOSURE SCHEDULE 3.10



Intellectual Property


NONE.





20











 





EXHIBIT B




DRAG-ALONG AND TAG-ALONG RIGHTS




     1. Definitions. Capitalized terms used in this Exhibit shall have the meanings set
forth in the Agreement and as follows:



          “Approved Sale” means a transaction or a series of related transactions which
results in a bona fide, unaffiliated change of economic beneficial ownership of
the Stratus Group or its business of greater than 50%, whether pursuant to the
sale of the stock of the Company, the sale of the assets of Stratus Group (if
combined with a distribution of net proceeds to shareholders), or a merger or
consolidation (other than a sale of stock by an Investcorp Investor to another
Investcorp Investor).




          “drag-along notice” and “tag-along notice” have the meanings specified in
Section 2( a) hereof.




          “Investcoro Investor,” at any date of determination, means all of the
following who are then holders of Common Stock: Investcorp Bank E.C. and its
Affiliates and any other investor with whom Investcorp Bank E.C. or any Affiliate
thereof has an administrative relationship.




          “Pro-Rata Portion” has the meaning specified in Section 2(a) hereof.




          “Shares” means any shares of Common Stock owned by Investor at the relevant
times covered by this Exhibit.




          “Stratus Group” means the Company and its direct and indirect subsidiaries.




     2. Drag-Along Rights and Tag-Along Rights.



          (a) The Company shall promptly give a written transaction notice (the
“transaction notice”) to Investor with respect to any Approved Sale.




          (b) The Company, acting by resolution of its Board, shall have the right,
exercisable by giving written notice (the “drag-along notice”) to Investor within
thirty (30) Business Days after the giving of a transaction notice to Investor
with respect to an Approved Sale, to compel Investor to sell a Pro-Rata Portion of
its Shares (the “drag-along right”) to the party acquiring or that has acquired
control of the Stratus Group in an Approved Sale on substantially the same
material terms as those applicable to the sale of the ownership interest to such
party in the transaction that constitutes such Approved Sale; provided that the
Company may not exercise this drag-along right during the two (2) year period
following the date on which Investor
acquires the Shares unless the purchase price per share applicable to the
Shares is not




21









 







less than the price per share paid by Investor for the Shares. If the Company
does not provide the drag-along notice, Investor shall have a one-time right, exercisable by giving
written notice to the Company (the “tag-along
notice”) within ten (10) Business Days after the
expiration of such thirty (30) Business Days following the giving of the transaction notice, to
participate in the transaction that constitutes the Approved Sale and to sell a Pro-Rata Portion of
its Shares on substantially the same material terms as those applicable to the sale of the
ownership interest to the party acquiring or that has acquired control of the Stratus Group in the
Approved Sale, and the Company shall take such actions as may be necessary to accommodate such
participation or, if the Company is unable to do so, the Company shall have and shall exercise, or
shall assign to any other Person which shall exercise, the right to purchase a Pro-Rata Portion of
the Shares on substantially the same material terms. As used herein, “Pro-Rata Portion” means the
percentage of the total ownership interest in the Stratus Group being acquired by the party
acquiring or that has acquired control of the Stratus Group in the Approved Sale. Any sale of
Shares shall be deemed to be “on substantially the same material terms” if the value received by
the Investor is the same as the value received by other shareholders, even if the form of
consideration received by the Investor is cash rather than such other property as may be received
by the other shareholders.




          (c) If the Company delivers a drag-along notice or Investor delivers a
tag-along notice, Investor shall cooperate with the Company and take all such
actions as the Company may reasonably request to effect such Approved Sale as
efficiently as possible. Without limiting the generality of the foregoing, Investor
shall enter into such agreements with the Company, its shareholders and any other
parties to the transactions constituting the Approved Sale as the Company may
reasonably request.




     3. Termination. The provisions of this Exhibit shall (a) expire upon, and shall not apply to,
an Initial Public Offering and (b) have no further effect following implementation of the
provisions of this Exhibit in connection with an Approved Sale.




22