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 Xxxxxxx X. Xxxxxx (“Consultant”) regarding the
provision of consultant services to Dell as described below.
Term of Agreement
1. The Term of this Agreement will run from February 1, 2009 until January 31, 2011, unless
terminated earlier in accordance with the Termination provisions contained in this Agreement.
Consultant Services
2. Dell and Consultant understand and intend that the relationship created between them by this
Agreement is one of an independent contractor. No agent, employee or servant, if any, of
Consultant, nor Consultant himself, will be or will be deemed to be the employee, agent or servant
of Dell.
3. During the Term of this Agreement, Consultant will provide consulting services to Dell in the
operations area and will perform such duties as will be determined by Dell’s Vice Chairman, Global
Operations, or his designee.
4. Consultant will furnish services diligently and professionally, and in a manner consistent with
the good public image of Dell. Consultant will not directly or indirectly make any statement, oral
or written, or perform any act or omission which is or could be detrimental in any material respect
to the reputation or goodwill of Dell, either while consulting for Dell or thereafter.
Payment and Expenses
5. Consultant will be paid pursuant to the following schedule:
a. $1,500,000 will be paid within 15 business days of January 31, 2010.
6. Dell will also reimburse Consultant for any reasonable expenses actually incurred in the
furtherance of Dell business and pursuant to this Agreement, if accompanied by appropriate
documentation, and if approved in advance by Dell or otherwise in accordance with Dell’s
reimbursement policy.
7. 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.
8. 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, benefit, stock, or stock option plan
available to employees of Dell.
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Protection of Sensitive Information, Noncompetition and Nonsolicitation Agreement
9. Dell will provide consultant with confidential and/or proprietary information and trade secrets
during the term of this Agreement. In consideration of Dell’s promises in this Agreement, and so
as to protect Dell’s confidential and proprietary information, trade secrets and goodwill, the term
of the Protection of Sensitive Information, Noncompetition and Nonsolicitation Agreement which
Consultant has previously signed with Dell is extended to include the period of this Consultancy.
In addition, the Protection of Sensitive Information, Noncompetition and Nonsolicitation Agreement
is modified as follows:
10. Paragraph 4 a through e of the Protection of Sensitive Information, Noncompetition and
Nonsolicitation Agreement is amended to now read as follows:
a. Prior to February 1, 2011, Executive will not, except as required to perform Executive’s
duties for Dell, in any geographic region for which Executive had direct or indirect responsibility
on behalf of Dell or in any geographic region for which Executive had Sensitive Information,
perform duties or services for a Direct Competitor, whether as an employee, consultant, principal,
advisor, board member or any other capacity, that are substantially similar to the duties or
services Executive performed for Dell at any time during the last twenty-four months of Executive’s
relationship with Dell. Executive further agrees that because of Executive’s comprehensive
knowledge regarding Dell’s business relationships with its vendors and suppliers, Executive will
not, prior to February 1, 2011, without Dell’s express written consent, perform duties or services
in any capacity for a supplier, business partner, or vendor of Dell with whom Executive had any
business dealings on behalf of Dell.
b. Prior to February 1, 2011, Executive will not, except as required to perform Executive’s
duties for Dell, directly or indirectly, solicit (or assist another in soliciting) (i) any of
Dell’s customers or prospective customers with whom Executive had contact on behalf of Dell during
the last twelve months of Executive’s relationship with Dell; or (ii) any of Dell’s customers or
prospective customers about whom Executive had any Sensitive Information during the last
twenty-four months of Executive’s relationship with Dell.
c. Prior to February 1, 2011, Executive will not, except as required to perform Executive’s
duties for Dell, encourage (or assist another in encouraging) any supplier, business partner, or
vendor of Dell with whom Executive had any contact on behalf of Dell within the last twenty-four
months of Executive’s relationship with Dell or about whom Executive had any Sensitive Information
to terminate or diminish its relationship with Dell.
d. Prior to February 1, 2011, Executive will not, except as required to perform Executive’s
duties for Dell, directly or indirectly solicit (or assist another in soliciting) for employment,
consulting, or other service engagement any employee, contractor, or consultant of Dell or any
person who was an employee, contractor, or consultant of Dell at any time during the last
twenty-four months of Executive’s relationship with Dell.
e. Prior to February 1, 2011, Executive will not, except as required to perform Executive’s
duties for Dell, directly or indirectly advise, assist, attempt to influence or otherwise induce or
persuade (or assist another in advising, attempting to influence or otherwise inducing
or persuading) any person employed by Dell to end his or her employment relationship with
Dell.
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11. All other provisions of Consultant’s Protection of Sensitive Information, Noncompetition and
Nonsolicitation Agreement shall remain in full force and effect. All confidential information,
proprietary information and trade secrets provided to Consultant pursuant to this Agreement are
subject to the provisions of Consultant’s Protection of Sensitive Information, Noncompetition and
Nonsolicitation Agreement, including but not limited to Consultant’s promise not to disclose or
misuse such information.
Termination
12. With 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 Dell’s Code of Conduct, or other
policies. If Dell terminates this Agreement with Cause, Consultant will not be entitled to the
payment referenced in paragraph 5a above.
13. Without Cause. Dell may terminate this Agreement at any time without cause. If Dell
terminates this Agreement without Cause, Consultant shall be entitled to the payment referenced in
paragraph 5a above.
Intellectual Property
14. Except for pre-existing intellectual property (including Consultant’s Intellectual Property 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 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.
15. 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.
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16. 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 or other contractors engaged to perform Services hereunder
comply with the terms of this Agreement particularly this Section.
17. 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.
18. Consultant agrees to take any action and fully cooperate with Dell, as Dell may request to
effect the provisions of this Section.
19. 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.
Other Provisions
20. 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.
21. 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. Dell will
notify Consultant and obtain his consent before any use occurs under this paragraph.
22. 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.
23 Except as otherwise provided in this Agreement, the provisions of Consultant’s Dell Employment
Agreement, any performance-based stock unit agreements, stock option agreements, restricted stock
agreements, and confidentiality or non-competition agreements (as modified herein) that Consultant
previously entered into with Dell, and that are intended to survive Consultant’s termination,
remain in full force and effect. Moreover, as a material inducement to Dell to enter into this
Agreement, Executive reaffirms Executive’s intent to comply with Executive’s post-employment
obligations to Dell under the aforementioned agreements.
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24. The laws of the State of Texas govern this Agreement and all disputes will be resolved in
Xxxxxxxxxx County, Texas. This Agreement may be changed only by a written document signed by
Consultant and the Chief Executive officer of Dell. 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.
Accepted and Agreed: |
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[Printed name] | Dell Inc. | |||||||
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