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EXHIBIT 10.59
July 1, 1998
Xx. Xxxxxx X. Xxxxxx
0 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Dear Xxxx:
You and Wang Laboratories, Inc. ("Wang") are parties to a Letter Agreement
dated January 13, 1994, pursuant to which you are employed by Wang (the
"Employment Letter"). The Employment Letter was subsequently amended, ratified
and confirmed by letter dated November 20, 1995. You and Wang have now agreed to
further amend the Employment Letter as follows:
1. Paragraph 2 of the Employment Letter, as amended by the November 20,
1995 letter, is hereby deleted in its entirety. The following paragraph is added
in substitution thereof:
The terms and conditions of this letter will be in full force and effect
for a three (3) year period commencing on July 1, 1998 and terminating on
June 30, 2001, unless otherwise terminated as set forth in paragraph 4
below. As of June 30, 2001, your employment status will be at will.
2. Paragraph 3(a) of the Employment Letter, as amended by the
November 20, 1995 letter, is hereby deleted in its entirety. The following
paragraph is added in substitution thereof:
(a) Yearly Payments
Your yearly base salary and bonus will be as authorized from time to time
by Wang's Chief Executive Officer and Organization, Compensation and
Nominating Committee, and as reflected in the minutes of that Committee's
meetings maintained in the ordinary course of business. Your salary and
bonus plan target percentages will be
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reviewed annually for possible upward adjustment at the discretion of the
Company.
3. Paragraph 4 of the Employment Letter is hereby deleted in its
entirety. The following paragraph is added in substitution thereof:
(a) In the event that your employment with the Company is involuntarily
terminated (other than "for cause" (a term which includes but is not
limited to the standards set forth in Wang's Standards of Ethics and
Business Conduct booklet) or because of your death) or (b) (i) if your work
location is moved more than thirty (30) miles from your current work
location, (ii) you cease to be Senior Vice President, General Counsel and
Secretary of the Company, as set forth in Paragraph 1 of this Agreement, or
if you cease to report directly to me as Chairman of the Board and Chief
Executive Officer of the Company, or cease to be a member of the Senior
Operations Committee of the Company, or (iii) if, during the term of this
Agreement, either or both of your annual base salary or target bonus is
decreased from the level it was at immediately before such decrease (a
"Decrease Event"), and upon the occurrence of an event specified in
subparts (i) through (iii), you resign, then (c) Wang will pay you (i)
immediately upon termination or resignation, a lump sum payment equal to
six (6) months of your salary and target bonus, plus (ii) commencing one
month after termination or resignation and ending eighteen months
thereafter, eighteen (18) monthly payments. Each monthly payment shall be
equal to one-twelfth of your annual salary plus target bonus, at 100%
performance, at the time of your termination (provided that if your
termination follows the occurrence of a Decrease Event, then the salary and
target bonus levels will be those in effect immediately prior to such
decrease), plus (iii) at such time as Wang pays executives generally under
the applicable annual management incentive plan, the pro rata share of your
target bonus (and in the case of a Decrease Event at the target level
immediately prior to such decrease), calculated at the 100% achievement for
individual objectives and at an achievement level equal to Wang's actual
performance (as used for calculating the payout to other executives
measured on the same basis) for financial targets for the year in which
your employment was terminated through the date of your termination (less
any amount thereof
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previously paid to you). During this salary continuation period, Wang will
continue to provide you with health and dental benefits pursuant to the
provisions of the Consolidated Omnibus Budget Reconciliation Act ("COBRA").
Wang shall pay the applicable COBRA premium for you during this continuance
period. Other employee benefits will not be continued during this salary
continuance period. If your work location is moved more than thirty (30)
miles from your current work location and you choose to relocate, the
company will reimburse your moving expenses in accordance with the Company
Relocation Policy-Domestic.
In the event you become employed at any time during the eighteen (18)-month
salary continuance period, all remaining salary continuance payments shall
terminate as of your date of hire by your new employer, except to the
extent that the total annual compensation for your new employment is less
than the total of your remaining salary continuance payments and, in such
event, the Company shall only pay that amount equal to the difference.
4. The following paragraph 8 is added to the Employment Letter:
8. NON-COMPETITION
By signing this letter, you agree as follows:
(a) During the period of your employment with Wang, and for a period of
eighteen (18) months following the termination of your employment, you
agree that you will not, without the prior written consent of Wang, which
shall not unreasonably be withheld, directly or indirectly, whether as a
principal, agent, employee, consultant, contractor, advisor,
representative, stockholder (other than as a holder of an interest of one
percent (1%) or less in the equity of any corporation whose stock is traded
on a public stock exchange), or in any other capacity:
(1) provide services, advice or assistance to any business, person or
entity which competes in the United States directly, as a primary focus
of its business, with Wang or any of its subsidiaries or affiliates in
the offer, sale or delivery of those desktop and network services
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which constitute more than twenty percent (20%) of Wang's revenues in
the prior twelve month period or, with respect to new product or
service offerings, those which are material to Wang and for which you
had responsibility and material and direct involvement ("Competes")
(except that this restriction shall not apply if you provide services,
advice or assistance to or within a separate division or operating
unit, of any such business, person or entity, that does not itself
Compete with Wang or any of its subsidiaries or affiliates and you have
no substantive involvement with any part of such business, person or
entity that does Compete with Wang); or
(2) intentionally entice, induce or solicit, or attempt to entice,
induce or solicit, any individual or entity having a business
relationship with Wang, whether as an employee, consultant, customer or
otherwise, to terminate or cease such relationship.
(b) If your employment is involuntarily terminated other than for cause or
as a result of your death or if you resign as the result of one of the
reasons set forth in paragraph 4(b) herein, the restrictions set forth in
subparagraph 8(a) above shall apply only during your employment and for six
(6) months thereafter.
(c) The parties represent and agree that any breach of this paragraph 8 is
likely to cause irreparable injury to Wang, and that damages for any breach
of this paragraph are difficult to calculate. Therefore, upon breach of
this paragraph Wang shall, at its election, be entitled to injunctive and
other equitable relief. However nothing in this subparagraph shall limit
Wang's right to seek any relief or remedies, including damages, to which it
may be entitled.
(d) It is the intention of the parties that the restrictions contained in
this paragraph 8 be reasonable as to time, geographic scope, and in all
other respects. The parties also intend that this paragraph be enforced to
the fullest extent
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permissible. Therefore, in the event that any provision of this paragraph
shall be determined by the court to be unreasonable, invalid or
unenforceable such determination shall not invalidate or render
unenforceable the remainder of this paragraph, and the restrictions of this
paragraph shall be enforced insofar as possible.
(e) Notwithstanding the provisions of paragraph 2 of this agreement, this
paragraph 8 shall survive the termination of this agreement.
(f) In the event of any inconsistency or conflict between the language of
this paragraph and the provisions of the Wang General Employment Agreement
signed by you on or about January 18, 1994, and in the event that this
paragraph 8 imposes obligations on you in excess of those imposed by said
General Employment Agreement, the provisions of this paragraph shall
govern.
(g) Nothing in this paragraph 8 shall be construed as a restriction on your
ability to practice law and advise or represent clients on legal matters,
including clients that may compete with the Company, to the extent such a
restriction would be deemed a violation of a statute, regulation,
disciplinary rule or other law of any jurisdiction whose law may be
applicable.
(h) This paragraph 8 shall be governed by the laws of the Commonwealth of
Massachusetts, and you agree that any suit for violation of this paragraph
may be brought in any court of competent jurisdiction located within the
Commonwealth of Massachusetts.
The Employment Letter is hereby ratified and confirmed, except as expressly
modified herein.
WANG LABORATORIES, INC.
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