CONSULTING AGREEMENT
This Agreement is made and entered into as of the 1st day of February,
2006, by and between Xxxxxx Xxxxxxxxxxx ("Unisys), a Delaware corporation, and
Xxxxxxxx X. Xxxxxxxx ("Consultant").
WHEREAS, Unisys requires Consultant's special knowledge, skills and
abilities; and
WHEREAS, Unisys and Consultant desire to enter into a consulting agreement.
THEREFORE, in consideration of the mutual promises set forth herein and
intending to be legally bound, it is agreed by and between Unisys and
Consultant as follows:
1. Term of Agreement
This Agreement will begin on February 1, 2006 (the Effective Date), and
end on February 1, 2007, unless sooner terminated as provided for herein.
2. Statement of Work/Performance
A. Based on the terms and conditions as set forth herein, the
Consultant agrees to perform such services for Unisys as are requested by its
Board of Directors or its Chairman. Consultant shall report to
Xxxxx X. Xxxxxx, the Chairman of Unisys.
B. Progress meetings shall be conducted at times and places as may be
requested from time to time to discuss the progress of the work and other
related matters.
3. Best Effort
The Consultant agrees to apply his best efforts in providing services to
Unisys. Consultant shall put in the appropriate amount of time to perform
these services but in no event shall Consultant work more than fifty percent of
the time he worked for Unisys, on average, during the years 2003 through 2005.
4. Statement of Services/Payment/Taxes
A. Statement of Services
1. Consultant will xxxx Unisys at the rate of Eight Thousand
Dollars ($8,000) per day. The Unisys Board of Directors may, in its
discretion, pay Consultant an additional fee at the conclusion of this
Agreement based on the value of the services he provides, but in no event shall
the total amount paid to Consultant under this Agreement exceed One Million
Dollars ($1,000,000).
2. Unisys shall reimburse Consultant for reasonable and
appropriate travel and other expenses consistent with the applicable Unisys
policies.
B. Payment
1. Consultant shall submit for approval an invoice at the end of
each month for services rendered and travel and other expenses incurred during
the month. Each invoice shall include the following information:
(a) Unisys purchase order number related to this Agreement;
(b) Consultant's invoice number and date;
(c) Time period covered and work performed under the invoice;
(d) Amount billed for the services; and
(e) Travel and other expenses, if any, supported by receipts.
2. Unisys shall pay all approved invoiced amounts to Consultant
within thirty (30) days after receipt of invoice.
C. Taxes
1. Consultant shall be responsible for payment of all taxes
including Federal, State and local taxes arising out of the Consultant's
activities in accordance with this contract, including by way of illustration
but not limitation, Federal and State income taxes, Social Security tax,
Medicare tax, Unemployment Insurance taxes, and any other taxes or business
license fees as required.
2. Because the compensation (excluding authorized travel expense
reimbursements) contemplated under this Agreement will exceed $600, Unisys will
furnish Form 1099-MISC to the Consultant and the IRS by January 31 of the
following year reporting such compensation.
5. Termination/Cancellation
A. Termination for Convenience
1. Unisys and the Consultant shall have the right to terminate
this Agreement or the work to be performed hereunder in whole or in part for
convenience at any time. Any notice of termination given by Unisys or the
Consultant shall be effective thirty (30) days after transmittal by Unisys or
the Consultant, and Consultant shall terminate the work as quickly as possible
upon receiving notice. Unisys shall have no liability to Consultant based on
any such termination except to pay all amounts due Consultant up to the date of
termination in accordance with the compensation provisions of paragraph 4.
Consultant shall promptly deliver to Unisys all work product, whether or not
completed, which is in Consultant's possession on the termination date
containing information related to the work, including a final report to be
prepared by Consultant describing results of the work up to the date of
termination.
B. Cancellation for Non-Performance
1. Unisys shall have the right to cancel this Agreement in the
event of any material breach by Consultant that Consultant fails to cure within
a reasonable time not to exceed thirty days after written notice of breach from
Unisys. Any such notice of cancellation shall become effective on the date of
written notice of breach, unless the Consultant fails to cure the breach on or
before the thirtieth day after transmittal of said notice. Notice of
cancellation rightfully given by Unisys for material breach by Consultant that
is not timely cured shall excuse Unisys from paying for any work performed by
Consultant after the date of notice of material breach given by Unisys. Unisys
shall have the option upon cancellation either to obtain delivery and retain
title and license rights, as provided herein, in and to all work completed or
in preparation on the date of cancellation in exchange for payments made and
owed as of such date.
2. Consultant shall have the right to cancel this Agreement and
the rights and licenses granted to Unisys only if Unisys fails to cure any
deficiency in making any payment due Consultant, which is not in good faith
dispute between the parties, within thirty days after receiving written notice
of such deficiency.
C. Additional Rights and Remedies
Unisys and Consultant shall retain all rights and remedies
available at law or equity; to the extent they are not inconsistent with this
Agreement, in the event of any termination or cancellation of this Agreement.
6. Service For Others
During the term of this Agreement, Consultant shall not engage directly or
indirectly in any undertaking that creates any legal impediment to or conflicts
with rights granted to Unisys by Consultant under this Agreement. Consultant
shall not undertake, during the term of this Agreement, to perform similar
services for any third party which would compromise the value of the work to
Unisys without providing Unisys prior written notice.
7. Assignment
Consultant shall not assign this Agreement or any rights hereunder or
delegate the work or any of Consultant's other obligations hereunder to any
third party and any attempted assignment shall be void. Unisys shall have the
right to assign this Agreement and its rights and duties hereunder to any
successor in interest by acquisition, merger, operation of law or otherwise.
8. Administration
The principal interface with Consultant on matters concerning the work and
any other matter related to this Agreement, including modifications thereof, or
any notices, shall be Xx. Xxxxxx. All notices given by either party to the
other shall be in writing and sent by hand delivery, fax, e-mail, or first
class mail to the addresses noted above.
9. Waivers
The failure of either party to assert any claim or right against the other
party regarding its obligations hereunder, in any one or more instances, shall
not constitute a waiver of such claim or right with respect to future
performance of such obligations and other obligations under the Agreement.
10. Severability
The invalidity or unenforceability of any particular provision of this
Agreement shall not affect other provisions and the Agreement shall be
construed in all respects as if such invalid or unenforceable provisions were
omitted.
11. Headings
All article and paragraph headings are for reference only and shall not be
used in construing this Agreement.
12. Governing Law
The laws of the Commonwealth of Pennsylvania shall govern the formation,
interpretation and performance of this Agreement.
13. Entire Agreement
This Agreement sets forth the entire agreement between the parties and
supersedes all prior oral and written agreements and understandings between the
parties with respect to the subject matter hereof. This Agreement may not be
modified or the parties released from their obligations hereunder except by an
instrument in writing signed by an authorized representative of the parties.
14. Compliance with Law
Consultant shall comply with all federal, state and local laws and
regulations pertaining to the performance of this Agreement and shall indemnify
Unisys for any liability and related costs, expenses and fees incurred by
Unisys as a result of Consultant's breach of such obligation.
15. Proprietary Information/Intellectual Property
Consultant acknowledges that he has signed the Unisys Proprietary
Information, Invention and Non-Competition Agreement and the Unisys Stock
Option Agreement and he agrees and understands that these agreements apply to
his conduct as Consultant as though fully set forth herein.
16. Business Practice Guidelines
Consultant acknowledges that he has received and will comply with the
Unisys Code of Ethics and Business Conduct, including, without limitation, that
he will not participate in any situation that would involve a conflict of
interest, or appearance of a conflict, with Unisys or its stockholders.
17. Arbitration
1. Any controversy or claim related to or arising from this Agreement
and/or the contracted services to be provided by Consultant shall be settled by
arbitration conducted on a confidential basis under the U.S. Arbitration Act
and the then current Commercial Arbitration Rules of the American Arbitration
Association, strictly in accordance with the terms of this Agreement and the
substantive law of the Commonwealth of Pennsylvania.
2. Neither party shall institute an arbitration proceeding unless, at
least sixty-(60) days prior thereto, such party shall have furnished to the
other written notice by registered mail of its intent to do so. Notice to
Unisys shall be addressed to Xxxxx Xxxxxxxx, its General Counsel, Xxxxxx
Xxxxxxxxxxx, Xxxxxx Xxx, Xxxx Xxxx, Xxxxxxxxxxxx 00000-0000.
3. Arbitration shall be conducted by three arbitrators, at least one of
whom shall be knowledgeable in data processing and business information systems
and one of whom shall be an attorney. The arbitrators shall have no authority
to award punitive damages or any other form of non-compensatory damages.
Judgment upon the arbitrators' award may be entered and enforced in any court
of competent jurisdiction.
4. Neither party shall be precluded from seeking provisional remedies
in the court of any jurisdiction to protect its rights and interests, but such
shall not be sought as a means to avoid or stay arbitration.
18. Insurance
Consultant agree(s) to maintain comprehensive liability insurance for all
operations necessary and incidental to the conduct of this Agreement and any
purchase orders issued pursuant to this Agreement, including coverage of all
automobile exposure, all property liability exposure and contractual liability
exposure to at least the following minimum amounts:
A. Comprehensive Automobile Liability Insurance, with a combined single
limit of $500,000 for bodily injury, death or property damage arising from any
one occurrence;
B. Comprehensive General Liability including Broad Form Contractual and
Completed Operations and Umbrella Liability, with a combined single limit of $1
million for bodily injury, death or property damage arising from any one
occurrence.
Such policies shall not be cancelled without ten (10) days prior written
notice to Unisys. Such insurance shall not be deemed a limitation of any
liability of the Consultant, but Consultant shall furnish Unisys with
certificates of insurance in form acceptable to Unisys.
Such insurance shall be primary, not contributing with, and not in excess
of, coverage which Unisys may carry. The insurance afforded by these policies
applies separately to each insured against whom claim is made or suit is
brought, in the same manner as such insured would be covered if the policy
insured only such party. The inclusion of such additional insured shall not
increase the policy limits.
19. Relationship of Parties
In performing the work, Consultant is acting as an independent contractor
and not as an employee, agent, or representative of Unisys. Consultant hereby
acknowledges that neither Consultant nor its personnel, if any, are entitled to
any of the benefits provided by Unisys to Unisys employees, including, but not
limited to workers compensation, medical benefits, and group life insurance
benefits, and Consultant expressly waives and releases any claims thereto other
than the benefits available as a retired executive officer of Unisys.
CONSULTANT XXXXXX XXXXXXXXXXX
By: /s/ Xxxxxxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxxxx
------------------------ --------------------
Xxxxxxxx X. Xxxxxxxx Xxxxx X. Xxxxxx
Chairman
Date: February 13, 2006 Date: February 9, 2006
