Consultancy Agreement
Exhibit 99.2
This Consultancy Agreement (“Agreement”) sets forth the mutual agreement of Dell Inc., for itself
and its subsidiaries (collectively, “Dell”), and Xxxxxx X. Xxxxxxxxx (“Consultant”) regarding the
provision of consultant services to Dell as described below.
Section I. Term of Agreement
1. The term of this Agreement will run from January 31, 2011 through December 31, 2011, unless
terminated earlier in accordance with the Termination Provision contained in this Agreement.
Section II. Consultant Services
2. Dell and Consultant understand and intend that the relationship created between them by this
Agreement is one of an independent contractor. Consultant specifically acknowledges that, in
providing services under this Agreement, he is not an employee of Dell and as such: (i) he has no
authority to bind Dell or any of its affiliates or subsidiaries; (ii) no agent, employee or
servant, if any, of Consultant, nor Consultant himself, will be or will be deemed to be an
employee, agent or servant of Dell; (iii) he is not entitled to participate in any benefit plans,
programs or arrangements offered, or which may in the future be provided, by Dell or any of its
affiliates to its or their employees; (iv) he will be responsible for, and agrees to pay in a
timely fashion, his own taxes and Dell will not withhold any taxes on his behalf; and (v) he is
free to engage in other business activities and may offer his services to other companies,
organizations, educational institutions or individuals, except to the extent prohibited by the
existing Protection of Sensitive Information, Noncompete and Nonsolicitation Agreement between
Consultant and Dell (the “Noncompete Agreement”). Consultant further agrees to indemnify and hold
harmless Dell and its affiliates to the full extent of any liabilities, payments or costs,
including taxes, interest, penalties and related fees, which may be assessed against Dell or any
such affiliate in connection with any payment made to or on behalf of Consultant under this
Agreement.
3. During the term of this Agreement, Consultant will provide consulting services to assist in such
projects as needed by and requested by Xxxxx Xxxxxx. It is envisioned that these services will be
principally in the area of Communications Solutions. Consultant will furnish these services
diligently and professionally, and in a manner consistent with the good public image of Dell.
Section III. Compensation
4. As compensation for Consultant’s services, Consultant will be paid a lump sum of $3,154,120, on
or before February 28, 2011, provided Consultant is in full compliance with all the terms and
conditions of this Agreement and this Consultancy has not been terminated in accordance with
Section V of this Agreement prior to the payment date. Consultant acknowledges that he is
responsible for payment of any and all income taxes, including estimated quarterly payments. Dell’s
only responsibility in this regard is the issuance of an IRS Form 1099, if applicable, and filing
thereof with the appropriate IRS office.
5. Consultant understands that during the term of this Agreement, Consultant is not eligible to
participate in Dell’s 401K plan, or any other Dell bonus, incentive, benefit, stock, or stock
option plan available to employees of Dell.
Xxxxxx X. Xxxxxxxxx
Page 1 of 5
Page 1 of 5
Section IV. Compliance Payment
6. Apart from the payment described in paragraph 5, Consultant shall not be entitled to any further
payment under the terms of this Agreement. Provided, however, that if Dell determines Consultant
has complied with the terms of the Noncompete Agreement, Dell shall pay Consultant a compliance
payment of $3,154,120 on or before December 31, 2011. Consultant and Dell specifically agree that
this payment does not represent payment for the rendition of services under this Agreement or for
the rendition of any other services.
Section V. Termination
7. For cause. Dell may terminate this Agreement at any time, with no advance notice, if
Dell determines that Consultant violated any of the terms of this Agreement, or any of the
provisions of any other agreement Consultant may have with Dell or if Consultant acts in a manner
contrary to Dell’s Code of Conduct. If this Consultancy is terminated for cause, Consultant will
not be entitled to any payments due under this Consultancy Agreement after the date of termination.
8. Under Paragraph 17 If Consultant decides to work for a Dell competitor during the term
of this Consultancy, pursuant to paragraph 17 of this Agreement, this Consultancy shall terminate
at that time and Consultant will not be entitled to any payments due under this Consultancy
Agreement after the date of termination.
Section VI. Intellectual Property
9. Except for pre-existing intellectual property (including Consultant’s Licensed Materials as
defined below) incorporated in or used in the performance of the services under this Agreement,
Consultant agrees that the deliverables produced under this Agreement (“Deliverables”) shall
constitute the work product of Dell (the “Dell Work Product”). Additionally, other than
Consultant’s Intellectual Property, Work Product shall further include without limitation: all
tools, data (including without limitation) specifications and/or methods used to design, create,
generate or otherwise develop the Deliverables and/or perform the services; and all patent,
copyright, trade secret or other proprietary or intellectual property rights developed with respect
to the creation of Deliverables or performance of the services.
10. To the extent that the Dell Work Product requires for use pre-existing works owned by or
licensed to Consultant (the “Licensed Materials”), Dell hereby acknowledges Consultant’s ownership
of the Licensed Materials; and Dell acknowledges that it does not have any ownership interest in
such Licensed Materials. Notwithstanding the foregoing, with respect to the Licensed Materials,
unless otherwise set forth in an Addendum or Schedule, Consultant hereby grants to Dell an
irrevocable, non-exclusive, worldwide, royalty-free license to: (i) use, execute, produce,
display, perform, copy, distribute (internally or externally) copies of, and prepare derivative
works based upon the Licensed Materials and their derivative works, and (ii) authorize others to do
any, some, or all of the foregoing.
11. All Dell Work Product is solely and exclusively the property of Dell. To the extent any Dell
Work Product qualifies as a “work made for hire” under applicable copyright law, it will be
considered a work made for hire and the copyright will be owned solely and exclusively by Dell.
To the extent that any Dell Work Product is not considered a “work made for hire” under applicable
copyright law, Consultant hereby assigns and transfers all of its right, title and interest in and
to the Dell Work Product to Dell. Furthermore, Consultant shall ensure that its employees,
subcontractors, representatives, agents
Xxxxxx X. Xxxxxxxxx
Page 2 of 5
Page 2 of 5
or other contractors engaged to perform Services hereunder comply with the terms of this Agreement
particularly this Section.
12. Consultant will, as part of the Dell Work Product, disclose promptly in writing to Dell all of
the Dell Work Product and document all intellectual property rights as Dell personnel may direct.
Furthermore, Consultant shall, upon request, provide to Dell any or all of the Dell Work Product.
13. Consultant will not use the name of Dell nor any Dell trademarks, trade names, service marks,
or quote the opinion of any Dell employee in any advertising, presentations or otherwise without
first obtaining the prior written consent of an officer of Dell.
Section VII. Confidentiality
14. Consultant will not use, publish, misappropriate, or disclose any Confidential or Proprietary
Information, during or after the term of this Agreement, except as required by the provision of
services under this Agreement or as authorized in writing by Dell. Any confidential information
that will be disclosed by either party related to this Agreement will be disclosed pursuant to the
terms and conditions of the Non-Disclosure Agreement between the parties, which is specifically
incorporated by reference herein. Notwithstanding anything contrary in the terms of the applicable
Non-Disclosure Agreement, any trade secrets or other proprietary information of Dell, whether oral,
visual or written, shall constitute confidential information of Dell even if not marked as such.
For written Deliverables provided pursuant to any performance of services, Consultant shall xxxx
such Deliverables, including without limitation any interim or final status reports, updates, or
presentations, exclusively as “Dell Confidential” and shall not xxxx, or jointly-xxxx, such
Deliverables as “Consultant Confidential.” Further, Consultant’s obligation to preserve the
confidentiality of such trade secrets or proprietary information shall continue in perpetuity. The
terms and conditions of this Agreement will be considered confidential.
Section VIII. Non-Disparagement
15. Consultant agrees that he will not, directly or indirectly, make any statement, oral or
written, or perform any act or omission that criticizes, denigrates, disparages or is, or could be,
detrimental to the reputation or goodwill of Dell or to the reputation (personal or professional)
or goodwill of any Executive of Dell, including without limitation any member of Dell’s Board of
Directors or Executive Leadership Team. Consultant understands that Consultant’s good faith and
truthful compliance with a subpoena or other legally compulsive process, including being required
to provide testimony as a witness in a lawsuit, will not be a violation of this provision.
However, Consultant agrees that in the event he is subject to compulsive legal process such as a
subpoena or court order to testify as a witness, within three days of receipt of said subpoena or
other legal process, he shall provide Dell notice of said legal process by faxing or emailing a
copy of the subpoena or other legal process to Dell’s General Counsel.
By way of emphasis and not limitation to any other termination reason, any breach of this Paragraph
will result in immediate termination of this Agreement and Consultant will not be entitled to any
payments due under this Consultancy Agreement after the date of termination.
Section IX. Non-Compete and Non-solicitation
16. Consultant hereby acknowledges and reaffirms that the Protection of Sensitive Information,
Noncompete and Nonsolicitation Agreement with Dell (“Noncompete Agreement”) he previously executed
with Dell remains in full force and effect. Consultant acknowledges and affirms his agreement that
his pre-existing Non-compete is reasonable, and necessary to protect Dell’s legitimate business
interests and he hereby waives any argument that he currently may have challenging the
enforceability of
Xxxxxx X. Xxxxxxxxx
Page 3 of 5
Page 3 of 5
the Noncompete Agreement. Accordingly, Consultant will fully comply with each and every provision
of his pre-existing Noncompete Agreement and understands and acknowledges that he is not entitled
to receive the payment described in paragraph 6 unless he has fully complied with the Noncompete
Agreement.
By way of emphasis and not limitation, the definition of Direct Competitor in Consultant’s
Noncompete Agreement includes any communications solutions companies which compete with Dell.
By way of emphasis and not limitation to any other termination reason, any breach of this Paragraph
will result in immediate termination of this Agreement and Consultant will not be entitled to any
payments due under this Consultancy Agreement after the date of termination.
Section X. Other Provisions
17. At all times while on Dell’s premises and while performing the services under this Agreement,
Consultant will observe Dell’s rules, policies, and practices with respect to conduct, health and
safety, and protection of persons and property, including but not limited to the Dell Code of
Conduct.
18. Consultant agrees that his name, voice, picture, and likeness may be used in Dell’s
advertising, training aids and other materials without payment of separate compensation.
19. When this Agreement terminates, Consultant will promptly deliver to a designated Dell
representative all originals and copies of all materials, documents and property of Dell which are
in Consultant’s possession or control.
20. This Agreement constitutes the entire Agreement between Consultant and Dell concerning the
topics covered herein. This document replaces completely any earlier or contemporaneous
communication or agreement with Dell about these topics, except to the extent any prior agreements
are incorporated herein as a part of this Agreement such as the Noncompete Agreement Consultant
previously executed. This Agreement may be changed only by a written document signed by Consultant
and Dell’s Chairman and Chief Executive Officer. With the exception of the terms of paragraph 6,
if any provision of this Agreement is held by a court of law to be illegal, invalid, or
unenforceable, the legality, validity and enforceability of the remaining provisions of this
Agreement will not be affected or impaired thereby. If any portion of paragraph 6 is held to be
invalid or unenforceable in any way, to any extent, or for any reason, then the entirety of
paragraph 6 shall be struck and invalidated, with the effect being that Consultant shall not be
entitled under any circumstances to the payment described in paragraph 6. Likewise, if any portion
of the Noncompete Agreement is held to be unenforceable in any way, to any extent, or for any
reason, then the entirety of paragraph 6 shall be struck and invalidated, with the effect being
that Consultant shall not be entitled under any circumstances to the payment described in
paragraph 6.
21. THIS AGREEMENT SHALL BE INTERPRETED IN ALL RESPECTS BY THE INTERNAL LAWS OF THE STATE OF
TEXAS, AND THE VENUE FOR THE RESOLUTION OF ANY DISPUTES (LOCATION OF ANY LAWSUIT) SHALL BE SOLELY
IN THE STATE AND FEDERAL COURTS OF XXXXXXXXXX COUNTY, TEXAS.
Accepted and Agreed:
Xxxxxx X. Xxxxxxxxx
Page 4 of 5
Page 4 of 5
| /s/ Xxx Xxxxxxxxx | /s/ Xxxx Xxxxxxxxxx | |||||||
| Xxxxxx X. Xxxxxxxxx | Dell Inc. | |||||||
November 14, 2010
|
By: | Xxxx Xxxxxxxxxx | ||||||
Date
|
Its: | |||||||
| Vice President, Legal | ||||||||
| Date: | November 14, 2010 | |||||||
Xxxxxx X. Xxxxxxxxx
Page 5 of 5
Page 5 of 5
