September 23, 1997
Xx. Xxxxxxxx X. Xxxxxxxx
c/o Xxxxxx Xxxxxxxxxxx
P. O. Box 500
Township Line and Xxxxx Xxxxxxx Xxxxx
Xxxx Xxxx, Xxxxxxxxxxxx 00000
Dear Xx. Xxxxxxxx:
I am pleased to offer you the position of Chairman of the Board,
President and Chief Executive Officer of Xxxxxx Xxxxxxxxxxx (the
"Corporation" or "Unisys"). This letter agreement (the "Agreement")
describes the terms and conditions of your employment with the
Corporation:
1. Base Salary. You will serve as Chairman of the Board, President and
Chief Executive Officer of the Corporation at a base salary at the annual
rate of not less than $1,200,000 per year. Your base salary level will
be reviewed periodically, but no less frequently than annually, by the
Compensation and Organization Committee (the "Committee") of the Board of
Directors or its successor.
2. Annual Bonus. (a) You will participate in the Executive Variable
Compensation ("EVC") Plan (or any successor bonus plan) and your target
will not be less than 100% of your annual paid salary. The actual EVC
paid to you, if any, will be determined by the Committee in its sole
discretion and will be based on such factors as it deems appropriate.
Your actual EVC payments, if any, will be made in cash at the time of the
award, subject to your election to defer receipt of all or any portion of
the EVC award in accordance with the terms of the Deferred Compensation
Plan for Officers of Xxxxxx Xxxxxxxxxxx (or any successor deferred
compensation program).
(b) For the 1997 EVC award year you will be guaranteed a minimum EVC
payout equal to 100% of the base salary amounts paid to you in 1997,
provided that you continue to be employed by the Corporation through the
1997 EVC payout date. For the 1998 and 1999 EVC award years, you will be
guaranteed a minimum EVC payout equal to 100% of the base salary paid to
you in each year, provided that you continue to be employed by the
Corporation through the applicable EVC payout date for each of those
years.
(c) Promptly after your first day of employment with the Corporation,
you will receive a one-time bonus of $1,500,000, payable to you in cash.
3. Long-Term Incentive Awards. (a) You will be eligible to receive
stock option awards under the terms of the 1990 Long-Term Incentive Plan
(or any successor stock option plan) and will receive stock option awards
in each year in which such awards are made to other executive officers
generally. You will also be eligible to receive long-term performance
awards and restricted share awards under the terms of the 1990 Long-Term
Incentive Plan (or any successor thereto) in each year in which such
awards are made to executive officers generally.
(b) Effective as of your first day of employment, you will be awarded
a stock option grant under the terms of the 1990 Long-Term Incentive Plan
for 1,000,000 shares of Unisys common stock, which grant will vest 25%
(of the original grant) after one year, 50% (of the original grant) after
two years, 75% (of the original grant) after three years and 100% (of the
original grant) after four years from the effective date of the grant.
The exercise price for the grant will be the Fair Market Value (as
defined in the 1990 Long-Term Incentive Plan) of Unisys common stock on
the date of grant.
(c) Effective as of your first day of employment, you will receive a
restricted share grant for a number of shares of Unisys common stock
having a value of $2,000,000, based on the Fair Market Value (as defined
in the 1990 Long-Term Incentive Plan) of Unisys common stock on your
first day of employment. The restricted share grant will be made under
the terms of the 1990 Long-Term Incentive Plan and will vest 25% on your
first day of employment, 50% (of the original grant) after one year, 75%
(of the original grant) after two years, and 100% (of the original grant)
after three years from your first day of employment. Unless otherwise
provided in this Agreement, you will forfeit any remaining unvested
portion of the restricted share grant upon your termination of employment
or in the event that you do not continue to own a number of unrestricted
shares of Unisys common stock equal to the "Purchased Shares" (as defined
in Section 4). You agree that you will not sell the shares that become
unrestricted as a result of the vesting of the restricted share grant
made under this Section 3(c) before the earlier of (i) six months
following the date on which the shares become unrestricted or (ii) your
termination of employment, provided that such sale is in compliance with
applicable law.
(d) In each year in which you recognize income as a result of the
total or partial vesting of the restricted share grant made under Section
3(c), you will be entitled to receive an additional payment (a "Section 3
Gross-Up Payment") in an amount such that after payment by you of all
federal, state and local taxes, including any income taxes imposed upon
the Section 3 Gross-Up Payment, you retain an amount of the Section 3
Gross-Up Payment equal to the federal, state and local taxes imposed on
the income, including the Section 3 Gross-Up Payment, so recognized in
such year.
4. Stock Purchase Obligation. On your first day of employment, you will
pay to the Corporation $1,000,000 in cash in exchange for shares of
Unisys common stock having a value of $1,000,000 (based on the Fair
Market Value (as defined in the 1990 Long-Term Incentive Plan) of Unisys
common stock on such date). The number of shares purchased by you under
this Section 4 will be referred to as the "Purchased Shares".
5. Benefit Programs; Perquisites. (a) You will receive all the
supplemental executive benefits associated with the position of Chairman,
President and Chief Executive Officer, including a company car allowance
of $900 per month. You also will be eligible for a membership in two
approved luncheon clubs, an annual executive physical, supplemental life
insurance equal to four times annual base salary plus target EVC (in
addition to the Corporation's Group Term Life Insurance), post-retirement
life insurance of $1,000,000, umbrella personal liability insurance up to
$5,000,000 and contribution toward financial counseling services of
$12,000 for the first year and $7,200 per year thereafter. In addition,
you and your eligible dependents will be eligible to participate in all
basic retirement, welfare (including post-retirement medical) and other
benefit arrangements generally applicable to executive officers, in
accordance with the terms of such arrangements. You will be entitled to
receive four weeks of vacation each year. Reasonable expenses associated
with the performance of the duties of your position will be reimbursed in
accordance with normal Unisys policies. You are also eligible to join a
country club of your choice and Unisys will pay your initiation fees and
annual dues. Unisys shall reimburse you for reasonable legal expenses
incurred by you in negotiating this Agreement.
6. Relocation. You agree to establish a residence in the Philadelphia
area and you will be eligible for the benefits provided under the Unisys
Moving and Relocation Policy. In addition, Unisys will reimburse you for
the reasonable cost of a temporary residence in the Philadelphia area for
up to one year and for the reasonable cost of commuting to and from New
York once a week for up to one year. Notwithstanding anything in the
Unisys Moving and Relocation Policy to the contrary, Unisys agrees that
(i) you will be eligible for relocation marketing and housing sale
assistance with respect to either your Weston, Connecticut residence or
your New York City apartment (but not both); (ii) you will be eligible to
move household goods from either the Connecticut residence or the New
York City apartment (or both) to the Philadelphia area; (iii) you will be
eligible to make a reasonable number of house-hunting trips in connection
with your relocation; and (iv) relocation amounts payable to you pursuant
to this Section 6 shall be grossed-up for federal, state and local income
taxes in amounts such that after payment by you of all such taxes on the
reimbursement amount and the gross-up payment, you retain an amount equal
to the reimbursement.
7. Supplemental Pension.
(a) You will be entitled to a pension benefit for your life that will
be fully vested as of your first day of employment determined as follows:
Full Years of Service Annual Accrued Benefit
0-3 $ 350,000
4 $ 570,000
5 $ 710,000
6 $ 860,000
7 or more $1,000,000
Anything herein to the contrary notwithstanding, if at any time prior to
the second anniversary of your first day of employment (i) you are
terminated for "cause" (as defined in Section 10(c)) or (ii) you
terminate your employment for other than "good reason" (as defined in
Section 10(c)), you will forfeit the benefit accrued under the schedule
above, and you will not be entitled to receive any benefit under the
Unisys Elected Officer Pension Plan.
(b) If you die prior to commencement of your benefit under Section 7,
your spouse will be entitled to a life annuity under this Section 7 equal
to 50% of the pension to which you would have been entitled (less any
amounts due alternate payees under any qualified domestic relations
orders) assuming you had retired and had been receiving retirement
payments at the time of your death based on your credited service to that
date. Such survivor's benefit shall be offset by any other survivor's
pension benefit provided to your spouse under any other Unisys pension
plan.
(c) Except as otherwise provided in this Section 7, your pension
benefit shall be determined in accordance with the provisions of the
Unisys Elected Officer Pension Plan as in effect on the date of this
Agreement, provided, however, that (i) service on the board of directors
of other companies will not cause a suspension or forfeiture of benefits
under Section 6.04 of the Unisys Elected Officer Pension Plan; (ii)
service as an employee of or consultant to an entity a unit of which is
in competition with Unisys will not cause a suspension or forfeiture of
benefits under Section 6.04 of the Unisys Elected Officer Pension Plan,
provided that it can be demonstrated to the reasonable satisfaction of
the Committee that procedures are in place to assure that the unit that
is in competition with Unisys and any director, officer, employee,
consultant or other representative of such unit cannot directly or
indirectly avail itself of your services, (iii) service as an employee of
or consultant to an entity that provides consulting services to other
entities, one or more of which are in competition with Unisys, will not
cause a suspension or forfeiture of benefits under Section 6.04 of the
Unisys Elected Officer Pension Plan, provided that it can be demonstrated
to the reasonable satisfaction of the Committee that procedures are in
place to assure that no entity that is in competition with Unisys nor any
director, officer, employee, consultant or other representative of such
unit can directly or indirectly avail itself of your services, (iv)
"cause" in Section 6.04(b) shall be deemed to be defined as provided in
this Agreement; and (v) no activity in which you engage while employed
under this Agreement which you have undertaken in the good faith belief
that it is in the best interests, or that it is not opposed to the best
interests of Unisys, shall be deemed the basis for suspending or
forfeiting your benefits under Section 6.04 of the Unisys Elected Officer
Pension Plan.
(d) Notwithstanding anything to the contrary, if any provision of this
Agreement is inconsistent with any term of the Unisys Elected Officer
Pension Plan, including without limitation Section 6.04, the terms of
this Agreement shall prevail, and if such plan is terminated, it shall be
deemed to continue for purposes of providing the benefit in this Section
7.
8. Service on Other Boards. During the term of your employment
hereunder, you will render substantially all of your business time to the
business affairs of the Corporation. You may serve on the board of
directors of other companies and non-profit organizations as expressly
approved by the Board of Directors in its discretion.
9. Death or Disability. If you die or your termination of employment is
due to your becoming "disabled", you or your estate will be entitled to
the following:
(a) All restrictions on any outstanding restricted stock grant will
immediately lapse;
(b) An EVC award for the year in which you terminate employment in an
amount equal to a pro rata portion, based on the period of service
rendered in such year, of (i) the EVC amount paid for the previous
year or (ii) the guaranteed EVC described in Section 2(b) if
termination occurs in 1997 or 1998;
(c) Any benefits available under the retirement, welfare, incentive,
fringe benefit, deferred compensation and perquisite programs
generally available to executive officers upon disability or
death; and
(d) Any benefits available under Section 7, provided, however, that if
your termination is due to disability, you will continue to accrue
service for purposes of calculating your benefit under Section 7
until the earlier to occur of (i) the date on which your
disability ends or (ii) the date on which you commence receipt of
benefits under the Unisys Elected Officer Pension Plan.
You will be considered "disabled" if you meet the requirements for a
long-term disability under the terms of the Unisys Long-Term Disability
Plan, regardless of whether you participate in such plan. The
determination of whether you are disabled shall be made by the claims
administrator of the Unisys Long-Term Disability Plan in accordance with
the procedures generally applicable under such plan. If you become
disabled, you will be entitled to the benefits described in this Section
9 and not those described in Section 10.
10. Termination of Employment. (a) Your employment may be terminated
by the Corporation at any time with or without cause. In the event that
you are terminated for "cause" (as defined below) or you terminate your
employment for other than "good reason" (as defined below), no further
amounts will be paid to you hereunder except as otherwise provided under
Section 7 of this Agreement and under the normal terms of the retirement,
welfare, incentive, fringe, and perquisite programs in which you
participated at your date of termination.
(b) Upon termination by the Corporation without cause or your
termination for good reason, you will be entitled to the following:
(1) An amount equal to 100% of the base salary (at its then current
rate on the date of termination) payable for the remaining term of
employment hereunder as if you had continued to work through such
remaining term of employment, but in no event less than one year's base
salary. Such termination payments will be paid in the same manner and at
the same times as the base salary payments would have been paid during
employment and the period during which such payments are to be made will
be referred to as the "Salary Continuation Period";
(2) If termination of employment occurs prior to the EVC payout date
for the previous EVC award year, an EVC payment for such previous award
year in an amount determined under Section 2(a) or 2(b), as applicable
and notwithstanding your termination of employment prior to the EVC
payout date. Such payment will be made at the same time that such EVC
payment would have been made had you continued to be employed;
(3) An EVC payment for the year in which such termination occurs in an
amount equal to your target EVC percentage as of your date of termination
or, if such termination occurs in 1997 or 1998, 100% times the base
salary paid to you in the year in which you terminated through your
termination date. Such payment will be made promptly following your
termination of employment;
(4) An annual EVC award payable for the one-year period following your
termination of employment in an amount equal to your target EVC
percentage as of your date of termination times the payments made to you
under Section 10(b)(1) during such one-year period. Such payment will be
made promptly following the expiration of the one-year period;
(5) Continued participation, at the same costs applicable to active
employees, through the Salary Continuation Period, in the Unisys Medical
and Dental Plans (or, if such participation is prohibited by applicable
law or the terms of the plans, participation in arrangements that will
provide benefits substantially similar to those available under the
Unisys Medical and Dental Plans) for you and your eligible dependents,
subject, however, to the generally applicable terms of such plans;
(6) Immediate and full vesting in all stock options, restricted share
and other awards made under the 1990 Long-Term Incentive Plan (or under
any successor incentive plan thereto); for purposes of stock option, SAR
and other equity-based award exercise rights under the 1990 Long-Term
Incentive Plan (or any successor incentive plan thereto), you will be
treated as if you had retired on your normal retirement date as of your
date of termination; and
(7) Your benefit under the Unisys Elected Officer Pension Plan, as
modified under Section 7 of this Agreement, will be calculated as if you
had continued to be employed for one year following your date of
termination.
(c) For purposes of this Section 10, "cause" means (i) your gross
neglect of your duties or (ii) your commission of an act which the Board
of Directors determines in good faith constitutes fraud, theft or
dishonesty against the Corporation or any of its subsidiaries or
affiliates, or (iii) your commission of a felony or a crime of moral
turpitude. "Good reason" means (i) a reduction in your aggregate
compensation target (base salary plus EVC target), as such amounts may be
increased during the term of this Agreement or a material reduction of
any employee benefit enjoyed by you, unless such reduction is due to a
reduction in compensation or benefits generally applicable to executive
officers or (ii) a reduction in your duties or authority, a change in
reporting structure such that you report to someone other than the Board
of Directors, or your removal as Chairman of the Board, President or
Chief Executive Officer of the Corporation or its successor unless such
reduction, change or removal is (x) for cause, as defined above, (y) is
done with your written consent, or (z) is on account of your inability to
substantially perform your duties for an aggregate of 90 days within any
consecutive 12 month period due to your becoming "disabled" (within the
meaning of the Unisys Long-Term Disability Plan, regardless of whether
you participate in such plan and provided that such determination will be
made by the claims administrator of the Unisys Long-Term Disability Plan
after the 90-day period described in this Section 10(c)(ii)(2)), and
provided that your resignation occurs within 90 days after such
reduction, change or removal or (iii) the failure of the Corporation to
obtain the assumption in writing of its obligation to perform this
Agreement by any successor to all or substantially all of the assets of
the Corporation within 15 days after the effective date of a merger,
consolidation, sale or similar transaction, unless you consent to the
Corporation's not obtaining such assumption. Notwithstanding the
foregoing, if there is a reduction in your duties or authority, a change
in your reporting structure and/or you have been removed as Chairman,
President and/or Chief Executive Officer as a result of becoming disabled
under this Section 10(c)(ii)(2), but you do not qualify for long-term
disability benefits under the Unisys Long-Term Disability Plan
(regardless of whether you participate in such plan) after the six-month
period required in the Plan, then you shall be entitled to terminate your
employment for "good reason" provided that you make yourself available to
return to work promptly after the determination is made that you are not
"disabled" and further provided that upon your return to work, the
Corporation does not restore the duties, authority, and/or reporting
structure that were in place before you became disabled under this
Section 10(c)(ii)(2) and does not restore your position as Chairman,
President and Chief Executive Officer.
(d) The amounts payable to you under Section 10(b)(1) following your
termination of employment will be reduced by the amount of cash
compensation, if any, earned by you for services rendered to any other
entity as an employee, independent contractor, consultant, officer,
director, or in any other capacity, provided however, that (i) no such
reduction will be applied during the two-year period following your
termination of employment, and (ii) compensation earned by you for
service as a director of any corporation will not cause such a reduction
to the extent such compensation is based on the same fee structure as is
received by all other directors thereof for Board service. You will
promptly advise the Senior Vice President - Human Resources of the
Corporation of any facts that could cause such a reduction in the amounts
payable to you under Section 10(b)(1). Upon written notice from the
Corporation, you will promptly reimburse to the Corporation any
overpayments made to you as a result of your receipt of the cash
compensation described in the first sentence of this Section 10(d),
provided that the amount you are required to reimburse shall be on an
after-tax basis (that is the amount determined, after taking into account
any taxes incurred by you on such overpayment less the tax benefit, if
any, you may derive from repayment to the Corporation). Notwithstanding
anything herein to the contrary, you shall have no obligation to seek
other employment.
(e) At the time the parties enter into this Agreement, you and the
Corporation will enter into an Executive Employment Agreement. Payments
under this Agreement are not intended to duplicate payments under any
other Unisys agreement or severance program, including, without
limitation, your Executive Employment Agreement. To the extent that you
may be entitled to receive duplicate payments under this and any other
Unisys agreement or program, the provisions of that agreement or program
which is most favorable to you or provides you with the greater benefit
shall be effective.
11. Certain Additional Payments by the Corporation. (a) Anything in
this Agreement to the contrary notwithstanding, in the event it shall be
determined that any payment or distribution by the Corporation to or for
your benefit (whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise, but determined
without regard to any additional payments required under this Section 11)
(a "Payment") would be subject to the excise tax imposed by Section 4999
of the Code or any interest or penalties are incurred by you with respect
to such excise tax (such excise tax, together with any such interest and
penalties, are hereinafter collectively referred to as the "Excise Tax"),
then you shall be entitled to receive an additional payment (a "Gross-Up
Payment") in an amount such that after payment by you of all federal,
state and local taxes (including any interest or penalties imposed with
respect to such taxes), including, without limitation, any income taxes
(and any interest and penalties imposed with respect thereto) and Excise
Tax imposed upon the Gross-Up Payment, you retain an amount of the Gross-
Up Payment equal to the Excise Tax imposed upon the Payments, including
the Gross-up Payment.
(b) Subject to the provisions of Section 11(c), all determinations
required to be made under this Section 11, including whether and when a
Gross-Up Payment is required and the amount of such Gross-Up Payment and
the assumptions to be utilized in arriving at such determination, shall
be made by Ernst & Young (the "Accounting Firm") which shall provide
detailed supporting calculations both to the Corporation and you within
15 business days of the receipt of notice from you that there has been a
Payment, or such earlier time as is requested by the Corporation. In the
event that the Accounting Firm is serving as accountant or auditor for
the individual, entity or group effecting the change of control which has
caused Section 4999 of the Code to be applicable, you shall appoint
another nationally recognized accounting firm to make the determinations
required hereunder (which accounting firm shall then be referred to as
the Accounting Firm hereunder). All fees and expenses of the Accounting
Firm shall be borne solely by the Corporation. Any Gross-Up Payment, net
of any taxes (including income and excise taxes) required to be withheld,
as determined pursuant to this Section 11, shall be paid by the
Corporation to you within five days of the receipt of the Accounting
Firm's determination. If the Accounting Firm determines that no Excise
Tax is payable by you, it shall furnish you with a written opinion that
failure to report the Excise Tax on your applicable federal income tax
return would not result in the imposition of a negligence or similar
penalty. Any determination by the Accounting Firm shall be binding upon
the Corporation and you. As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the initial
determination by the Accounting Firm hereunder, it is possible that
Gross-Up Payments which will not have been made by the Corporation should
have been made ("Underpayment"), consistent with the calculations
required to be made hereunder. In the event that the Corporation
exhausts its remedies pursuant to Section 11(c) and you thereafter are
required to make a payment of any Excise Tax, the Accounting Firm shall
determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Corporation to or for your
benefit.
(c) You shall notify the Corporation in writing of any claim by the
Internal Revenue Service that, if successful, would require the payment
by the Corporation of the Gross-Up Payment. Such notification shall be
given as soon as practicable but no later than ten business days after
you are informed in writing of such claim and shall apprise the
Corporation of the nature of such claim and the date on which such claim
is requested to be paid. You shall not pay such claim prior to the
expiration of the 30-day period following the date on which the IRS gives
such notice to the Corporation (or such shorter period ending on the date
that any payment of taxes with respect to such claim is due). If the
Corporation notifies you in writing prior to the expiration of such
period that it desires to contest such claim, you shall:
(i) give the Corporation any information reasonably requested by the
Corporation relating to such claim,
(ii) take such action in connection with contesting such claim as the
Corporation shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with
respect to such claim by an attorney reasonably selected by the
Corporation,
(iii) cooperate with the Corporation in good faith in order
effectively to contest such claim, and
(iv) permit the Corporation to participate in any proceedings relating
to such claim;
provided, however, that the Corporation shall bear and pay directly all
costs and expenses (including additional interest and penalties) incurred
in connection with such contest and shall indemnify and hold you
harmless, on an after-tax basis, for any Excise Tax or income tax
(including interest and penalties with respect thereto) imposed as a
result of such representation and payment of costs and expenses including
without limitation, reasonable legal fees. Without limitation on the
foregoing provisions of this Section 11(c), the Corporation shall control
all proceedings taken in connection with such contest and, at its sole
option, may pursue or forgo any and all administrative appeals,
proceedings, hearings and conferences with the taxing authority in
respect of such claim and may, at its sole option, either direct you to
pay the tax claimed and xxx for a refund or contest the claim in any
permissible manner, and you agree to prosecute such contest to a
determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Corporation
shall determine; provided, however, that if the Corporation directs you
to pay such claim and xxx for a refund, the Corporation shall advance the
amount of such payment to you, on an interest-free basis and shall
indemnify and hold you harmless, on an after-tax basis, from any Excise
Tax or income tax (including interest or penalties with respect thereto)
imposed with respect to such advance or with respect to any imputed
income with respect to such advance; and further provided that any
extension of the statute of limitations relating to payment of taxes for
your taxable year with respect to which such contested amount is claimed
to be due is limited solely to such contested amount. Furthermore, the
Corporation's control of the contest shall be limited to issues with
respect to which a Gross-Up Payment would be payable hereunder and you
shall be entitled to settle or contest, as the case may be, any other
issue raised by the Internal Revenue Service or any other taxing
authority.
(d) If, after the receipt by you of an amount advanced by the
Corporation pursuant to Section 11(c), you become entitled to receive any
refund with respect to such claim, you shall (subject to the
Corporation's complying with the requirements of Section 11(c)) promptly
pay to the Corporation the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto). If,
after the receipt by you of an amount advanced by the Corporation
pursuant to Section 11(c), a determination is made that you shall not be
entitled to any refund with respect to such claim and the Corporation
does not notify you in writing of its intent to contest such denial of
refund prior to the expiration of 30 days after such determination, then
such advance shall be forgiven and shall not be required to be repaid and
the amount of such advance shall offset, to the extent thereof, the
amount of Gross-Up Payment required to be paid.
12. Conduct after Termination. From and after the termination of your
employment for any reason:
(a) For a period equal to the greater of three years or the Salary
Continuation Period, you shall not engage in or become employed as a
business owner, employee, agent, representative or consultant in any
activity which is in competition with any line of business of Unisys (or
its subsidiaries or affiliates) existing as of your termination date,
except with the express prior written consent of the Committee, provided,
however, you shall be deemed not to be in competition for purposes of
Section 12 of this Agreement, (i) if you are an employee of or a
consultant to an entity a unit of which is in competition with Unisys,
provided that it can be demonstrated to the reasonable satisfaction of
the Committee that procedures are in place to assure that any unit that
is in competition with Unisys and any director, officer, employee,
consultant or other representative of such unit cannot directly or
indirectly avail itself or themselves of your services, (ii) if you are
an employee of or a consultant to an entity that provides consulting
services to other entities, one or more of which are in competition with
Unisys, provided that it can be demonstrated to the reasonable
satisfaction of the Committee that procedures are in place to assure that
no entity that is in competition with Unisys nor any director, officer,
employee, consultant or other representative of such unit can directly or
indirectly avail itself or themselves of your services, or (iii) if you
invest in securities which are listed for trading on a national exchange
or NASDAQ and your investment does not exceed 1% of the issued and
outstanding shares of stock;
(b) You shall not negatively comment publicly or privately about
Unisys (or its subsidiaries or affiliates), any of its products, services
or other businesses, its present or past Board of Directors, its
officers, or employees, nor shall you in any way discuss the
circumstances of your termination of employment, except that you may give
truthful testimony before a court or governmental agency;
(c) For a period of two years, you shall not induce or attempt to
induce any employee of Unisys (or any of its subsidiaries or affiliates)
to render services for any other person, firm or business entity;
(d) You shall not use, furnish or divulge to any other person, firm or
business entity any confidential information relating to Unisys business
(or that of any of its subsidiaries or affiliates), or any trade secrets,
processes, contracts or arrangements involved in any such business,
except when required to do so by a court of law, by any governmental
agency having supervisory authority over the business of Unisys or by any
administrative or legislative body (including a committee thereof) with
apparent jurisdiction to order you to divulge, disclose or make
accessible such information.
From and after the termination of your employment for any reason, Unisys
agrees not to negatively comment publicly or privately about you or the
circumstances of your termination of employment. You and Unisys mutually
agree that the obligations contained in this Section 12 are reasonable
and necessary for each party's mutual protection and that one party
cannot be reasonably or adequately compensated in damages in an action at
law in the event that the other party breaches such obligations. You and
Unisys expressly agree that, in addition to any other rights or remedies
which each may possess, each shall be entitled to injunctive and other
equitable relief to prevent a breach of this Section 12 by the other
party, including a temporary restraining order or temporary injunction
from any court of competent jurisdiction restraining any threatened or
actual violation, and you and Unisys each consents to the entry of such
an order and injunctive relief and waives the making of a bond as a
condition for obtaining such relief. Such right shall be cumulative in
addition to any other legal or equitable rights and remedies the parties
may have. In addition, in the event that you should materially breach
your obligations under Section 12(b) or you should breach any other
obligation described in this Section 12, Unisys shall have the right to
terminate any remaining payments due under Section 10(b)(1) and (4).
13. Term; Extension of Term. The term of this Agreement is five years
commencing on September 23, 1997. On September 23, 2002 and on each
succeeding September 23, the term of employment hereunder shall be
extended by one additional year unless the Corporation provides to you or
you provide to the Corporation, at least six months prior to the
expiration of the then remaining term of the Agreement, written notice
that the term will not be further extended, in which case the term of
employment hereunder will end at the expiration of the then remaining
term of employment hereunder, including any previous extension, and will
not be further extended except by agreement of the Corporation and you.
14. Plan Documents; Code of Ethical Conduct. Each of the above-
described benefits which are more fully described in an applicable Unisys
plan document are subject to the terms of such plan document (as may be
amended by Unisys from time to time) and, except as expressly provided in
this agreement, each such plan document will govern the benefit payable
hereunder and thereunder. In addition, you agree that the Unisys
policies and procedures applicable to all Unisys employees, including,
without limitation, the Unisys Code of Ethical Conduct, shall be
applicable to you.
15. Successors. This agreement shall be binding upon Unisys and its
successors and assigns.
16. Indemnification. You will be entitled to the indemnification rights
contained in the Restated Certificate of Incorporation of Xxxxxx
Xxxxxxxxxxx, dated July 25, 1997, as such may be amended from time to
time. Unisys agrees to maintain directors and officers liability
insurance covering you to the extent that Unisys provides such coverage
for its other directors and officers.
17. Miscellaneous. Except for your Executive Employment Agreement of
even date, this agreement constitutes the entire agreement between you
and Unisys relating to your employment and additional matters provided
for herein. This agreement supersedes all prior agreements, whether
written or oral, between you and Unisys relating to your employment and
additional matters provided for herein. 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 you and the Chairman of
the Committee or his designee. The validity, interpretation,
construction and performance of this agreement shall be governed by the
laws of the Commonwealth of Pennsylvania without giving effect to the
provisions thereof relating to conflicts of laws.
18. 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.
19. Arbitration. Any dispute or controversy arising under or in
connection with this agreement shall be settled exclusively by
arbitration in Philadelphia, Pennsylvania in accordance with the rules of
the American Arbitration Association. Any arbitration award will be
final and conclusive upon the parties, and a judgment enforcing such
award may be entered in any court of competent jurisdiction. Costs of
arbitration shall be borne by Unisys. Unless the arbitrator determines
that you did not have a reasonable basis for asserting your position with
respect to the dispute in question, Unisys shall also reimburse you for
your reasonable attorneys' fees incurred with respect to any arbitration.
20. Corporate Authority. Unisys represents and warrants that it is
fully authorized and empowered to enter into this Agreement. This
Agreement has been authorized by the Board and approved by the Committee.
If the foregoing sets forth our agreement with you, please sign and
return to us the enclosed copy of this Agreement.
Very truly yours,
XXXXXX XXXXXXXXXXX The foregoing is accepted:
By: __________________________ ___________________________
Xxxxxxx X. Xxxxx; Chairman Xxxxxxxx X. Xxxxxxxx
Compensation and Organization
Committee
Board of Directors
