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EXHIBIT 10.73
AGREEMENT
THIS AGREEMENT, dated as of April 5, 1999, is made by and
between the Company, and Xxxxxxx Xxxxxxxx (the "Executive").
WHEREAS, the Company considers it essential to the best
interests of its shareholders to xxxxxx the continuous employment of key
management personnel;
WHEREAS, the Board of Directors of Wang Laboratories, Inc.
(the "Board") recognizes that, as is the case with many publicly-held
corporations, the possibility of a Change in Control (as defined in the last
Section hereof) exists and that such possibility, and the uncertainty and
questions which it may raise among such management, may result in the departure
or distraction of management personnel to the detriment of the Company and its
shareholders; and
WHEREAS, the Board has determined that appropriate steps
should be taken to reinforce and encourage the continued attention and
dedication of members of the Company's management, including the Executive, to
their assigned duties without distraction in the face of potentially disturbing
circumstances arising from the possibility of a Change in Control;
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Company and the Executive hereby agree as
follows:
1. Defined Terms. Capitalized terms, not elsewhere defined in
this Agreement, are defined in Section 16 hereof.
2. Terms of Agreement.
(a) This Agreement shall commence as of April 5, 1999 (the
"Effective Date") and shall continue in effect while the Executive is employed
by the Company for a period of three years, provided, however, that commencing
on the third anniversary of the commencement of the term of this Agreement and
on each anniversary thereafter, the term of this Agreement shall automatically
be extended for one additional year unless, not later than ninety days prior to
any such anniversary date either party shall have given notice that it does not
wish to extend this Agreement (provided that no such notice may be given by the
Company during the pendency of or within one year following a Potential Change
in Control); provided, further, if a Change in Control shall have occurred
during the original or extended
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term of this Agreement, this Agreement shall continue in effect for a period of
thirty-six months beyond the month in which such Change in Control occurred.
(b) It is intended, and the parties hereto agree, that (i) the
benefit, if any, payable to the Executive under any other severance or
termination pay plan, arrangement or agreement of or with the Company shall be
reduced by the amount of any payment actually provided under Section 6.1 hereof
and (ii) any options to acquire shares of the Company's stock ("Options")
awarded to the Executive, any shares of the Company's stock awarded to the
Executive and subject to one or more restrictions on the Executive's full
ownership or right to transfer or enjoy the economic benefit of such shares
("Restricted Shares") or any contractual agreement with the Executive pursuant
to which the Executive will receive shares of the Company's stock, subject to
one or more restrictions (a "Restricted Stock Unit"), shall become fully
exercisable or all restrictions thereon shall terminate, as the case may be,
upon occurrence of a Change in Control during the term of this Agreement.
(c) The acceleration provisions of subparagraph (b)(ii) above
(the "Subparagraph (b)(ii) Acceleration Provisions") shall not apply (i) to
Options, Restricted Shares or Restricted Stock Units that are not fully
exercisable or are not free of restrictions until a target share price
performance has been reached if such target price has not been reached at the
time of the Change in Control or (ii) to the extent that the Subparagraph
(b)(ii) Acceleration Provisions conflict with any specific provisions related to
the accelerated exercisability of or lapse of restrictions on any Options,
Restricted Shares or Restricted Stock Units in the event of a Change in Control
set forth in agreements, plans or instruments evidencing such Options,
Restricted Shares or Restricted Stock Units (collectively, the "Grant
Instruments"), in which case the terms of the Grant Instrument shall prevail.
The definition of Change in Control set forth in this Agreement shall prevail
over any contrary definition in a Grant Instrument unless such Grant Instrument
specifically refers to this Agreement and states that the definition of Change
in Control in the Grant Instrument prevails.
3. Company's Covenants Summarized. In order to induce the
Executive to become employed by or remain in the employ of the Company as the
case may be, and in consideration of the Executive's covenant set forth in
Section 4 hereof, the Company agrees, under the conditions described herein, to
pay the Executive the "Severance Payment" described herein in the event the
Executive's employment with the Company is terminated under the circumstances
described below following a Change in Control and during the term of this
Agreement. No amount or benefit shall be payable under this Agreement unless
there shall have been
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(or under the terms hereof, there shall be deemed to have been) a termination
of the Executive's employment with the Company following a Change in Control.
4. The Executive's Covenants. The Executive agrees that,
subject to the terms and conditions of this Agreement, in the event of a
Potential Change in Control during the term of this Agreement, the Executive
will remain in the employ of the Company until the earliest of (i) a date which
is six (6) months from the date of such Potential Change in Control, (ii) the
date of a Change in Control, (iii) the date of termination by the Executive of
the Executive's employment for Good Reason (determined by treating the Potential
Change in Control as a Change in Control in applying the definition of Good
Reason), or by reason of Death, Disability or Retirement, or (iv) the
termination by the Company of the Executive's employment for any reason.
5. Compensation Other Than Severance Payment.
5.1 Following a Change in Control during the term of this
Agreement, during any period that the Executive fails to perform the Executive's
full-time duties with the Company as a result of incapacity due to physical or
mental illness, the Company shall continue to pay the Executive's full salary to
the Executive at the rate in effect at the commencement of any such period,
together with all compensation and benefits payable to the Executive under the
terms of any compensation or benefit plan, program or arrangement maintained by
the Company during such period, until the Executive's employment is terminated
by the Company for Disability.
5.2 If the Executive's employment shall be terminated for any
reason following a Change in Control and during the term of this Agreement, the
Company shall pay the Executive's full salary to the Executive through the Date
of Termination at the rate in effect at the time the Notice of Termination is
given, together with all compensation and benefits payable to the Executive
through the Date of Termination under the terms of any compensation or benefit
plan, program or arrangement maintained by the Company during such period.
5.3 If the Executive's employment shall be terminated for any
reason following a Change in Control and during the term of this Agreement, the
Company shall, except as provided in Section 2 above, pay the Executive's normal
post-termination compensation and benefits to the Executive as such payments
become due. Such post-termination compensation and benefits shall be determined
under, and paid in accordance with, the Company's retirement, insurance and
other compensation or benefit plans, programs, agreements or arrangements.
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6. Severance Payment.
6.1 Subject to Section 6.2 hereof, the Company shall pay the
Executive the payment described in this Section 6.1 (the "Severance Payment")
upon the termination of the Executive's employment following a Change in Control
during the term of this Agreement, in addition to the payments and benefits
described in Section 5 hereof, unless such termination is (i) by the Company for
Cause, (ii) by reason of the Executive's Death or Disability or (iii) by the
Executive without Good Reason. Moreover, the Executive's employment shall be
deemed to have been terminated following a Change in Control by the Company
without Cause or by the Executive with Good Reason if the Executive's employment
is terminated without Cause prior to a Change in Control at the direction of a
Person who has entered into an agreement with the Company, the consummation of
which will constitute a Change in Control, or if the Executive terminates his
employment with Good Reason prior to a Change in Control (determined by treating
a Potential Change in Control as a Change in Control in applying the definition
in Good Reason) if the circumstance or event which constitutes Good Reason
occurs at the direction of such Person. In lieu of any further salary payments
to the Executive for periods subsequent to the Date of Termination and in lieu
of any severance benefit otherwise payable to the Executive, the Company shall
pay to the Executive a lump sum severance payment, in cash, equal to 2.99 times
the average of the Executive's base salary and annual bonus paid in (i) each of
the 2 calendar years preceding the calendar year in which occurs the Date of
Termination or, (ii) in the event the Executive has been employed by the Company
for less than 2 full calendar years, such lesser number of calendar years during
any part of which the Executive has been so employed, with his base salary taken
into account at its full annual rate for any partial year or years.
6.2 Notwithstanding any other provisions of this Agreement, in
the event that any payment or benefit received or to be received by the
Executive in connection with a Change in Control or the termination of the
Executive's employment, whether pursuant to the terms of this Agreement or any
other plan, arrangement or agreement with the Company, any Person whose actions
result in a Change in Control or any Person affiliated with the Company or such
Person (all such payments and benefits, including the Severance Payments, being
hereinafter called "Total Payments"), would be subject (in whole or part), to
the excise tax imposed under section 4999 of the Code (the "Excise Tax"), then
the Severance Payments shall be reduced to the extent necessary so that no
portion of the Total Payments is subject to the Excise Tax (after taking into
account any reduction in the Total Payments provided by reason of section 280G
of the Code in such other plan, arrangement or agreement) if (A) the net amount
of such Total Payments, as so
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reduced, (and after deduction of the net amount of federal, state and local
income tax on such reduced Total Payments) is greater than (B) the excess of (i)
the net amount of such Total Payments, without reduction (but after deduction of
the net amount of federal, state and local income tax on such Total Payments),
over (ii) the amount of Excise Tax to which the Executive would be subject in
respect of such Total Payments. For purposes of determining whether and the
extent to which the Total Payments will be subject to the Excise Tax, (i) no
portion of the Total Payments the receipt or enjoyment of which the Executive
shall have effectively waived in writing prior to the Date of Termination shall
be taken into account, (ii) no portion of the Total Payments shall be taken into
account which in the opinion of tax counsel selected by the Company does not
constitute a "parachute payment" within the meaning of section 280G(b)(2) of the
Code, (including by reason of section 280G(b)(4)(A) of the Code) and, in
calculating the Excise Tax, no portion of such Total Payments shall be taken
into account which constitutes reasonable compensation for services actually
rendered, within the meaning of section 280G(b)(4)(B) of the Code, in excess of
the Base Amount allocable to such reasonable compensation, and (iii) the value
of any non-cash benefit or any deferred payment or benefit included in the Total
Payments shall be determined by the Company in accordance with the principles of
sections 280G(d)(3) and (4) of the Code. Prior to the payment date set forth in
Section 6.3 hereof, the Company shall provide the Executive with its calculation
of the amounts referred to in this Section and such supporting materials as are
reasonably necessary for the Executive to evaluate the Company's calculations.
6.3 The payment provided for in Section 6.1 hereof shall be
made not later than the fifth day following the Date of Termination, provided,
however, that if the amount of such payment, and the limitation on such payment
set forth in Section 6.2 hereof, cannot be finally determined on or before such
day, the Company shall pay to the Executive on such day an estimate, as
determined in good faith by the Company, of the minimum amount of such payment
to which the Executive is clearly entitled and shall pay the remainder of such
payment (together with interest at the rate provided in section 1274(b)(2)(B) of
the Code) as soon as the amount thereof can be determined but in no event later
than the thirtieth (30th) day after the Date of Termination. In the event that
the amount of the estimated payment exceeds the amount subsequently determined
to have been due, such excess shall constitute a loan by the Company to the
Executive, payable on the fifth (5th) business day after demand by the Company
(together with interest at the rate provided in section 1274(b)(2)(B) of the
Code). At the time that payments are made under this Section, the Company shall
provide the Executive with a written statement setting forth the manner in which
such payments were calculated and the basis for such calculations including,
without limitation, any opinions or other advice the Company has received
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from outside counsel, auditors or consultants (and any such opinions or advice
which are in writing shall be attached to the statement).
6.4 The Company also shall pay to the Executive all legal fees
and expenses incurred by the Executive as a result of or in connection with a
termination of employment following a Change in Control and during the term of
this Agreement (including all such fees and expenses, if any, incurred in good
faith in disputing any such termination or in seeking in good faith to obtain or
enforce any benefit or right provided by this Agreement or in connection with
any tax audit or proceeding to the extent attributable to the application of
section 4999 of the Code to any payment or benefit provided hereunder). Such
payments shall be made within five (5) business days after delivery of the
Executive's written requests for payment accompanied with such evidence of fees
and expenses incurred as the Company reasonably may require.
7. Termination Procedures and Compensation During Dispute.
7.1 Notice of Termination. After a Change in Control and
during the term of this Agreement, any purported termination of the Executive's
employment (other than by reason of death) shall be communicated by written
Notice of Termination from one party hereto to other party hereto in accordance
with Section 10 hereof. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated. Further, a Notice of
Termination for Cause is required to include a copy of a resolution duly adopted
by the affirmative vote of not less than three-quarters (3/4) of the entire
membership of the Board at a meeting of the Board which was called and held for
the purpose of considering such termination (after reasonable notice to the
Executive and an opportunity for the Executive, together with his counsel, to be
heard before the Board) finding that, in the good faith opinion of the Board,
the Executive was guilty of conduct set forth in the definition of Cause herein,
and specifying the particulars thereof in detail.
7.2 Date of Termination. "Date of Termination", with respect
to any termination of the Executive's employment after a Change in Control and
during the term of this Agreement, shall mean (i) if the Executive's employment
is terminated for Disability, thirty (30) days after Notice of Termination is
given (provided that the Executive shall not have returned to the full-time
performance of the Executive's duties during such thirty (30) day period), and
(ii) if the Executive's employment is terminated for any other reason, the date
specified in the Notice of Termination
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(which, in the case of a termination by the Company, shall not be less than
thirty (30) days (except in the case of a termination for Cause) and, in the
case of a termination by the Executive, shall not be less than fifteen (15) days
nor more than sixty (60) days, respectively, from the date such Notice of
Termination is given).
7.3 Dispute Concerning Termination. Notwithstanding any
provision of Section 7.2 hereof to the contrary, if within fifteen (15) days
after any Notice of Termination is received, or, if later, prior to the Date of
Termination (as determined without regard to this Section 7.3), the party
receiving such Notice of Termination notifies the other party in writing that a
dispute exists concerning the termination, the Date of Termination shall be the
date on which the dispute is finally resolved, either by mutual written
agreement of the parties or by a final judgment, order or decree of a court of
competent jurisdiction (which is not appealable or with respect to which the
time for appeal therefrom has expired and no appeal has been perfected);
provided that the Date of Termination shall be extended by a notice of dispute
only if such notice is given in good faith and the party giving such notice
pursues the resolution of such dispute with reasonable diligence. For the
purposes of the preceding sentence, a dispute concerning termination shall be
deemed finally resolved if neither party commences an action in any court within
thirty (30) days of an arbitration award concerning such dispute seeking the
modification of or other relief from such award.
7.4 Compensation During Dispute. If a purported termination
occurs following a Change in Control and during the term of this Agreement, and
such termination is disputed in accordance with Section 7.3 hereof, the Company
shall continue to pay the Executive the full compensation in effect when the
notice giving rise to the dispute was given (including, but not limited to,
salary) and continue the Executive as a participant in all compensation, benefit
and insurance plans in which the Executive was participating when the notice
giving rise to the dispute was given, until the dispute is finally resolved in
accordance with Section 7.3 hereof. Amounts paid under this Section 7.4 are in
addition to all other amounts due under this Agreement (other than those due
under Section 5.2 hereof) and shall not be offset against or reduce any other
amounts due under this Agreement.
8. No Mitigation. The Company agrees that, if the Executive's
employment by the Company is terminated during the term of this Agreement, the
Executive is not required to seek other employment or to attempt in any way to
reduce any amounts payable to the Executive by the Company pursuant to this
Agreement. Further, the amount of any payment or benefit provided for in this
Agreement shall not be reduced by any compensation earned by the Executive as
the
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result of employment by another employer, by retirement benefits, by offset
against any amount claimed to be owed by the Executive to the Company, or
otherwise.
9. Successors.
9.1 In addition to any obligations imposed by law upon any
successor to the Company, the Company will require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. Failure of the Company to obtain such assumption and agreement
prior to the effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Executive to compensation from the Company in
the same amount and on the same terms as the Executive would be entitled to
hereunder if the Executive were to terminate the Executive's employment for Good
Reason after a Change in Control, except that, for purposes of implementing the
foregoing, the date on which any such succession becomes effective shall be
deemed the Date of Termination.
10. Notices. For the purpose of this Agreement, notices and
all other communications provided for in the Agreement shall be in writing and
shall be deemed to have been duly given when delivered or mailed by United
States registered mail, return receipt requested, postage prepaid, addressed to
the respective addresses set forth below, or to such other address as either
party may have furnished to the other in writing in accordance herewith, except
that notice of change of address shall be effective only upon actual receipt:
To the Company:
Wang Laboratories, Inc.
000 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chief Executive Officer
Copy to: General Counsel
To the Executive:
Xxxxxxx Xxxxxxxx
00 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
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11. Miscellaneous. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by the Executive and such officer as may be
specifically designated by the Board. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or any prior or subsequent time. No agreements or representations, oral
or otherwise, express or implied, with respect to the subject matter hereof have
been made by either party which are not expressly set forth in this Agreement.
The validity, interpretation, construction and performance of this Agreement
shall be governed by the laws of the Commonwealth of Massachusetts. Any payments
provided for hereunder shall be paid net of any applicable withholding required
under federal, state or local law and any additional withholding to which the
Executive has agreed. The obligations of the Company and the Executive under
Sections 5, 6 and 7 shall survive the expiration of the term of this Agreement.
12. Validity. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
13. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
14. Arbitration. Any dispute or controversy arising under or
in connection with this Agreement shall be settled exclusively by arbitration
conducted before a panel of three arbitrators in Boston, Massachusetts in
accordance with the commercial rules of the American Arbitration Association
("AAA") then in effect. Unless the panel of arbitrators shall have been selected
by agreement of the parties within thirty (30) days of the initiation of
arbitration proceedings, each party shall be entitled to select one arbitrator
within ten (10) business days of the lapse of such thirty (30) day period and
the third arbitrator shall be selected by agreement of the two arbitrators so
selected within seven (7) business days after the selection of the two
arbitrators. In the event that either party does not timely designate an
arbitrator or that the two arbitrators do not timely select a third arbitrator
in accordance with the preceding sentence, then upon application of either party
to the Boston office of the AAA, the AAA shall designate such arbitrator.
Judgment may be entered on the arbitrators' award in any court having
jurisdiction, provided, however, that the Executive shall be entitled to seek
specific performance of his right to be paid until
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the Date of Termination during the pendency of any dispute or controversy
arising under or in connection with this Agreement.
15. Nondisclosure of Confidential Information. The Executive
shall keep secret and confidential and shall not disclose to any third party in
any fashion or for any purpose whatsoever, any information regarding this
Agreement, or any other information regarding the Company which is (i) not
available to the general public, and/or (ii) not generally known outside the
Company, to which he has or will have had access at any time during the course
of his employment by the Company, including, without limitation, any information
relating to: the Company's business or operations; its plans, strategies,
prospects or objectives; its products, technology, processes or specifications;
its research and development operations or plans; its customers and customer
lists; its manufacturing, distribution, sales, service, support and marketing
practices and operations; its financial condition and results of operations; its
operational strengths and weaknesses; and, its personnel and compensation
policies and procedures. Notwithstanding the foregoing provisions of this
Section 15, the Executive may discuss this Agreement with the members of his
immediate family and with his personal legal and tax advisors, provided that,
prior to disclosing any term or condition of this Agreement to any person, the
Executive shall obtain from such person for the benefit of the Company his or
her agreement to observe the foregoing provisions.
16. Definitions. For purposes of this Agreement, the following
shall have the meanings indicated below:
(A) "Affiliate" shall mean an entity that is controlled by
Wang Laboratories, Inc.
(B) "Base Amount" shall have the meaning defined in section
280G(b)(3) of the Code.
(C) "Beneficial Owner" and "Beneficial Ownership" shall have
the meaning defined in, and shall be determined pursuant to, Rule 13d-3 under
the Securities Exchange Act of 1934, as amended.
(D) "Board" shall mean the Board of Directors of Wang
Laboratories, Inc.
(E) "Cause" for termination by the Company of the Executive's
employment, after any Change in Control, shall mean the willful and continued
failure by the Executive to substantially perform the Executive's duties with
the
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Company, a substantial, and not de minimis, violation of the Company's Standards
of Ethics and Business Conduct or its Rules of Employee Conduct (and any
successor documents, however titled), as the same are in effect from time to
time, the Executive's conviction of a felony or engaging in conduct that
constitutes a violation of Section 15 hereof.
(F) A "Change in Control" shall be deemed to have occurred if any one of the
conditions set forth in any one of the following paragraphs shall have been
satisfied:
(i) any Person (other than a trustee or other fiduciary
holding securities under an employee benefit plan of the
Company) is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company (not including in the
securities beneficially owned by such Person any securities
acquired directly from the Company or its affiliates)
representing 20% or more of the combined voting power of the
Company's then outstanding securities; or
(ii) during any period of twenty-four consecutive months (not
including any period prior to the execution of this
Agreement), individuals who at the beginning of such period
constitute the Board and any new director (other than a
director whose initial assumption of office is in connection
with an actual or threatened election contest, including but
not limited to a consent solicitation, relating to the
election of directors of the company) whose election by the
Board or nomination for election by the Company's stockholders
was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at
the beginning of the period or whose election was previously
so approved, cease for any reason to constitute a majority
thereof; or
(iii) The Company or any Subsidiary or Affiliate merges or
consolidates with any other corporation, other than (i) a
merger or consolidations which would result in the voting
securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of
the surviving entity), in combination with the ownership of
any trustee or other fiduciary holding securities under an
employee benefit plan of the Company, at least 75% of the
combined voting power of the voting securities of the Company
or such surviving entity outstanding immediately after such
merger or consolidation, or (ii) a merger or consolidation
effected to implement
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a recapitalization of the Company (or similar transaction) in
which no Person acquires more than 20% of the combined voting
power of the Company's then outstanding securities, or;
(iv) the shareholders of the Company approve a plan of
complete liquidation of the Company or there is consummated
the sale or disposition by the Company of all or substantially
all of the Company's assets or the Company is dissolved and
its assets distributed in a judicial proceeding.
(G) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time. All references to the Code shall be deemed also to
refer to any successor provisions to such sections.
(H) Except with respect to Sections 16(F) and (O) hereof,
"Company" shall mean Wang Laboratories, Inc. or one of its Subsidiaries or
Affiliates, both as defined herein, and any successor to their business and/or
assets which assumes and agrees to perform this Agreement by operation of law,
or otherwise. For the purposes of Sections 16(F) and (O) hereof, "Company" shall
mean Wang Laboratories, Inc. and any and all successors thereto or any parent
thereto.
(I) "Date of Termination" shall have the meaning stated in
Sections 7.2 and 7.3 hereof.
(J) "Disability" shall be deemed the reason for the
termination by the Company of the Executive's employment, if, as a result of the
Executive's incapacity due to physical or mental illness, the Executive shall
have been absent from the full-time performance of the Executive's duties with
the Company for a period of six (6) consecutive months, the Company shall have
given the Executive a Notice of Termination for Disability, and, within thirty
(30) days after such Notice of Termination is given, the Executive shall not
have returned to the full-time performance of the Executive's duties.
(K) "Executive" shall mean the individual named in the first
paragraph of this Agreement.
(L) "Good Reason" for termination by the Executive of the
Executive's employment shall mean the occurrence (without the Executive's
express written consent) of any one of the following acts by the Company, or
failures by the Company to act, unless, in the case of any act or failure to act
described in paragraph
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(i), (iv), (v), (vi), or (vii) below, such act or failure to act is corrected
prior to the Date of Termination specified in the Notice of Termination given in
respect thereof:
(i) the assignment to the Executive of any duties
inconsistent with the Executive's status as a senior officer of the
Company;
(ii) a reduction by the Company in the Executive's
annual base salary as in effect on the date hereof or as the same may
be increased from time to time except for across-the-board salary
reductions similarly affecting all senior executives of the Company and
all senior executives of any Person in control of the Company;
(iii) the failure by the Company to pay to the
Executive any portion of the Executive's current compensation except
pursuant to an across-the-board compensation deferral similarly
affecting all senior executives of the Company and all senior
executives of any Person in control of the Company, or to pay to the
Executive any portion of an installment of deferred compensation under
any deferred compensation program of the Company, within fourteen (14)
days of the date such compensation is due;
(iv) the failure by the Company to continue in effect
any compensation plan in which the Executive participates immediately
prior to the Change in Control which is material to the Executive's
total compensation, unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan) has been made with respect to
such plan, or the failure by the Company to continue the Executive's
participation therein (or in a substitute or alternative plan) on a
basis not materially less favorable, both in terms of the amount of
benefits provided and the level of the Executive's participation
relative to other participants, as existed at the time of the Change in
Control;
(v) the failure by the Company to continue to provide
the Executive with benefits substantially similar to those enjoyed by
the Executive under any of the Company's pension, life insurance,
medical, health and accident, or disability plans in which the
Executive was participating at the time of the Change in Control, the
taking of any action by the Company which would directly or indirectly
materially reduce any of such benefits or deprive the Executive of any
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material fringe benefit enjoyed by the Executive at the time of the
Change in Control, or the failure by the Company to provide the
Executive with the number of paid vacation days to which the Executive
is entitled on the basis of years of service with the Company in
accordance with the Company's normal vacation policy in effect at the
time of the Change in Control;
(vi) any purported termination of the Executive's
employment which is not effected pursuant to a Notice of Termination
satisfying the requirements of Section 7.1; for purposes of this
Agreement, no such purported termination shall be effective; or
(vii) the failure by the Company to obtain a
satisfactory agreement from any successor to assume and agree to
perform this Agreement, as contemplated in Section 9 hereof.
The Executive's right to terminate the Executive's employment
for Good Reason shall not be affected by the Executive's incapacity due to
physical or mental illness. The Executive's continued employment shall not
constitute consent to, or a waiver of rights with respect to, any act or failure
to act constituting Good Reason hereunder.
(M) "Notice of Termination" shall have the meaning stated in
Section 7.1 hereof.
(N) "Person" shall have the meaning defined in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended.
(O) "Potential Change in Control" shall be deemed to have
occurred if any one of the conditions set forth in any one of the following
paragraphs shall have been satisfied:
(i) the Company enters into an agreement, the
consummation of which would result in the occurrence of a Change in
Control;
(ii) the Company or any other Person publicly
announces an intention to take or to consider taking actions which, if
consummated, would constitute a Change in Control;
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(iii) any Person (other than a trustee or other
fiduciary holding securities under an employee benefit plan of the
Company) who is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company representing 10% or more of
the combined voting power of the Company's then outstanding securities,
increases such Person's Beneficial Ownership of such securities by 5%
or more over the percentage so owned by such Person on the date hereof;
or
(iv) the Board adopts a resolution to the effect
that, for purposes of this Agreement, a Potential Change in Control has
occurred.
(P) "Retirement" shall mean retirement after attaining "normal
retirement age" under any pension or retirement plan maintained by the Company
in which the Executive participates.
(Q) "Severance Payment" shall mean the payment described in
Section 6.1 hereof.
(R) "Subsidiary" shall mean an entity that is controlled by
Wang Laboratories, Inc.
(S) "Total Payment" shall mean those payments described in
Section 6.2 hereof.
WANG LABORATORIES, INC.
By: _________________________
Xxxxxx X. Xxxxx
Chairman of the Board
and Chief Executive Officer
Accepted and Agreed to:
-------------------------
Xxxxxxx Xxxxxxxx
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