January 15, 2008
Mr. Brian T. Maloney
22 Starview Drive
Flemington, NJ 08822
Dear Brian,
This Letter Agreement, Release and Waiver of Claims will outline the terms of
your separation from Unisys:
1. This correspondence will confirm that your employment with Unisys has
been terminated without cause as defined in your April 26, 2006 offer letter
thereby entitling you to the separation benefits described therein.
Additionally, and in exchange for the mutual promises contained in this Letter
Agreement, Unisys will also provide you with the benefits described herein.
For purposes of this Letter Agreement, Release and Waiver of Claims, your last
day of work will be January 15, 2008 ("Departure Date"). The effective date of
your termination will be up to October 15, 2008 as described further herein
("Continuation Period"). You will not be required to report to the office
after the Departure Date. In the event you obtain full-time employment <F1>
prior to June 30, 2008, Unisys will pay you any remaining salary payments up
until said date, in a lump sum, less lawful deductions. The salary you receive
after the Departure Date will not be considered program compensation for
purposes of any employee benefit plan, including, but not limited to, the
Unisys Savings Plan. You will not be eligible for any vacation accrual after
the Departure Date and your accrued and unused vacation balance will be paid to
you in your final paycheck.
2. During the Continuation Period, your current health and welfare benefits
will be continued pursuant to the terms of the applicable plan documents. You
will remain eligible for your 2007 Financial Counseling in the amount of up to
$5,000 and your 2007 Executive Physical, such services to be performed in 2008
for the 2007 tax year. Also, you will be entitled to exercise the stock
options and restricted share units previously granted to you in accordance with
the terms of the 2003 Long-Term Incentive and Equity Compensation Plan ("Stock
Option Plans").<F2> Your participation in the Unisys Short-Term and Long-Term
Disability Plans, the Executive Death Benefit Only Program, the Personal
Liability Umbrella Insurance, and the 2005 Deferred Compensation Plan will
terminate on the Departure Date.
3. You will be eligible to participate in the Right Associates Executive
Outplacement Program for six months. We have made the necessary arrangements
for you and you should contact Mr. James Clontz @ 717.290.7050 to begin the
outplacement process no later than February 15, 2008. As you know, you have a
duty to mitigate the termination payments provided hereunder and you agree to
exercise your best efforts toward obtaining new employment. This provision is
a material condition of this agreement.
4. In the event that you remain unemployed on June 30, 2008, Unisys will
continue your employment under the terms described herein until up to October
15, 2008, in 30 day increments, or until you obtain suitable, full-time
employment, or cease actively seeking employment, whichever first occurs. You
should call me at least two weeks in advance to request each one of these
extensions.
5. You recognize that this Agreement is in the form of a personal services
contract that cannot be assigned. Accordingly, the payments and benefits
provided to you during the Continuation Period are not susceptible to descent
or devise to your heirs or successors, except as may be provided by the terms
of the applicable plan documents.
6. As an additional condition of your continued employment, you specifically
agree that you will conduct yourself in a manner consistent with Unisys work
rules, Code of Ethical Conduct and the highest professional standards. Both
parties agree that neither party will negatively comment about the other,
publicly or privately, about you or, in the case of Unisys (or its subsidiaries
or affiliates), about any of its products, services or other businesses, its
present or past Board of Directors, its officers, or employees, except that you
may give truthful testimony before a court or governmental agency, if duly
subpoenaed to testify.
7. You agree that the meaning, effect and terms of this Letter Agreement,
Release and Waiver of Claims have been fully explained to you to your
satisfaction and that you understand that this Letter Agreement, Release and
Waiver of Claims settles, bars, and waives any and all Claims (as defined
below) that you have or could possibly have against, among others, Unisys and
any of its employees, agents or assigns as of the date of this Letter
Agreement, Release and Waiver of Claims.
8. You have up to twenty-one (21) days from receipt of this Letter
Agreement, Release and Waiver of Claims to decide whether to agree to it. We
advise you to consult with an attorney of your choice, and at your cost, if you
so desire.
9. You have seven (7) days from the day you sign this Letter Agreement,
Release and Waiver of Claims to revoke your acceptance of it, and the terms and
conditions of this Letter Agreement, Release and Waiver of Claims shall not
become effective or enforceable until this revocation period has expired.
10. Notwithstanding any provision of this Agreement to the contrary, Unisys
shall administer this Agreement in a manner that is consistent with the
requirements of Section 409A of the Internal Revenue Code of 1986, as amended.
In consideration for the foregoing promises, which you acknowledge are adequate
and satisfactory to you, and intending to be legally bound, you knowingly and
voluntarily agree as follows:
A. You agree to release and forever discharge Unisys Corporation and its
parents, subsidiaries, affiliates and associated benefit and compensation
plans, and its and their officers, directors, employees and agents, as well as
all predecessors, successors and assigns, heirs, executors, fiduciaries,
trustees, attorneys, and administrators of the foregoing, (collectively,
"Releasees") from any and all causes of action, suits, debts, claims and
demands in law or in equity (collectively, "Claims") which you have ever had,
now have or hereafter may have or which your heirs, executors or administrators
may have, by reason of any matter, cause, or thing whatsoever at any time in
the past up to the date of your signature below, and particularly but without
limitation, any Claims arising from or relating in any way to your employment
relationship with Unisys or the termination thereof, including but not limited
to, any Claims for alleged violations of Title VII of the Civil Rights Act of
1964, 42 U.S.C. 2000e et seq., as amended, the Civil Rights Act of 1866, 42
U.S.C. 1981, as amended (including, but not limited to, 42 U.S.C. 1981a), the
Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et seq., as amended,
the Age Discrimination in Employment Act, 29 U.S.C. 621 et seq., as amended,
the Federal Health Insurance Portability and Accountability Act of 1996, as
amended, the Employee Retirement Income Security Act of 1974, 29 U.S.C. 1001 et
seq., as amended, the Family Medical Leave Act, 29 U.S.C. 2601 et seq., as
amended, as well as any Claims for breach of any employment contract or
agreement (written, oral, or implied), wrongful discharge, breach of the
covenant of good faith and fair dealing, promissory and/or equitable estoppel,
tort claims of any nature, and any Claims which may have been asserted under
the common law or any other federal, state or local law, as well as all claims
for counsel fees and costs. Provided, however, that this provision ("Release")
shall not discharge in any way your right to contest any claimed breach of this
Letter Agreement, Release and Waiver of Claims. Provided further that this
Release shall not apply to any Claims that by law may not be waived or released
or for which any waiver or release is null and void.
B. You further agree and covenant that neither you, nor any person,
organization, or other entity on your behalf, will file, charge, claim, sue, or
cause or permit to be filed, charged, or claimed, any civil action, suit, or
legal proceeding seeking any type of personal relief, or share in any remedy
against any of the Releasees, involving any matter occurring at any time in the
past up to the date of your signature on this Letter Agreement, Release and
Waiver of Claims, or involving any continuing effects of any actions or
practices which may have arisen or occurred on or prior to the date of your
signature on this Letter Agreement, Release and Waiver of Claims.
C. You further agree that Unisys Corporation and all other Releasees have
satisfied in full all obligations they had from the first date of your
association with any of them through the date of your signature below regarding
your wages, bonuses, commissions, or other compensation of any kind (including,
but not limited to, salaries, stock options, benefits, pensions, vacations,
overtime, expense reimbursements, sick and personal days, and relocation
expenses). Provided, however, that this provision shall not discharge in any
way your right to receive a reimbursement of business expenses from American
Express. A final reconciliation of your business expense account will be
completed in March and the ending balance, if any, will be distributed to you
by March 31, 2008.
D. You also agree that as of the date of your signature below, Unisys
Corporation and all other Releasees have satisfied in full all obligations they
ever had regarding leaves of absence and other time off of any kind (including,
but not limited to, short-term disability leave, family medical leave, military
leave, vacations, meal and rest periods, sick and personal days, and personal
leave), and that you have not suffered any adverse employment action as a
result of seeking or taking any such leave of absence or time off.
E. The parties agree that they will keep the contents of this Agreement and
all discussions leading up to it as confidential. The parties agree that they
can disclose that this agreement exists and can discuss the general contents of
the agreement but will not disclose specifics of the agreement to any third
party, except as may be required by law. You are permitted, however, to
discuss the full terms of this Agreement with your family, attorney and
financial advisor.
F. You understand and agree that neither this Letter Agreement, Release and
Waiver of Claims, nor the furnishing of the consideration for the Release, nor
the negotiations leading up to this Letter Agreement, Release and Waiver of
Claims shall be deemed or construed at any time for any purpose as an admission
by Unisys of liability or responsibility for any wrongdoing of any kind.
G. You acknowledge that you have previously signed an Employee Proprietary
Information, Invention and Non-Competition Agreement, and you understand that
your duties and obligations under that Agreement continue beyond your
employment termination. Without prejudice to the Employee Proprietary
Information, Invention and Non-Competition Agreement, any Stock Option
Agreements and any Restricted Stock Unit Agreements which you previously
signed, you agree to the following Confidentiality Provisions:
1. You acknowledge that, by reason of the position which you held within
Unisys that you have become familiar with highly confidential and/or
proprietary information relating to the business of Unisys such as various
customer lists, sales and marketing strategies and plans, bids, projections,
costs, financial data, personnel information developments, improvements,
processes, methods, tools and customer relationships. You further recognize
that the business of Unisys is highly competitive, and that Unisys has a
legitimate business interest in preserving the highly unique and specialized
skills that you have developed, as well as any and all trade secrets and other
highly confidential and/or proprietary information that you may acquire from
them, which are essential to the continued success of Unisys, and that Unisys
will suffer irreparable harm should such skills or confidential information be
utilized by a competitor. You further acknowledge that all such confidential
and/or proprietary information and trade secrets acquired through your
employment are owned and shall continue to be owned by Unisys.
2. You also agree that you will not, at any time, whether during your term of
employment or thereafter, disclose to any unauthorized person, firm or
corporation any information acquired by you in confidence through your
employment with Unisys, it being understood that all such confidential and/or
proprietary information constitutes trade secrets that are material to the
successful conduct of Unisys and belong exclusively to Unisys. By way of
example and not limitation, such confidential and/or proprietary information
and trade secrets include any and all information, not otherwise available to
the public, concerning: (a) marketing plans, business plans, strategies,
forecasts, unpublished financial statements, budgets, bids, projections and
costs; (b) personnel information; (c) customer lists, customer and supplier
transaction histories, identities, contacts, volumes, characteristics,
agreements and prices; (d) information regarding promotional, operational,
program management, sales, marketing, research and development techniques,
methods and reports and (e) other trade secrets. You specifically acknowledge
that such confidential and/or proprietary information and trade secrets have
commercial value to Unisys, the unauthorized disclosure of which could be
detrimental to the interests of Unisys, whether or not such information is
specifically identified as "Confidential" and/or "Proprietary" information by
Unisys. Provided, however, that the restrictions of this paragraph shall not
extend to any information or materials that are either known to the public or
that can be derived, compiled or learned by a third party without significant
effort or expense.
3. You further acknowledge that the restrictions contained in these
Confidentiality Provisions, in view of the nature of the work performed by
Unisys, are reasonable and necessary in order to protect the legitimate
interests of Unisys, and that any violation thereof may result in irreparable
injuries to Unisys, and you therefore acknowledge that, in the event of any
violation of any of these restrictions, Unisys shall be entitled to obtain from
any court of competent jurisdiction preliminary and permanent injunctive relief
as well as damages and an equitable accounting of all earnings, profits and
other benefits arising from such violation, which rights shall be cumulative
and in addition to any other rights or remedies to which Unisys may be entitled.
H. You represent that you have returned or will on or before the end of the
Continuation Period return to Unisys all company information including and
without limitation, company-related reports, files, memoranda, records,
software, lap top computers, credit cards, computer access codes, disk and
instructional manuals, I.D. badges, keys, library books, and other physical or
personal property which you have received or prepared or helped prepare in
connection with your employment with Unisys; and you have not retained and will
not retain any copies, duplicates or reproductions or excerpts thereof.
I. Except for the provisions of the Employee Proprietary Information,
Invention and Non-Competition Agreement, any Stock Option Agreements, and any
Restricted Stock Unit Agreements, whose terms survive the termination of your
employment, this Letter Agreement, Release and Waiver of Claims supersedes all
prior agreements, whether written or oral, between you and Unisys relating to
your employment, the termination of your employment and the additional matters
provided for herein. No provision of this Letter Agreement, Release and Waiver
of Claims may be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing and signed by you and an
authorized representative of Unisys. The validity, interpretation,
construction and performance of this Letter Agreement, Release and Waiver of
Claims shall be governed by the laws of the Commonwealth of Pennsylvania
without giving effect to the provisions thereof relating to conflicts of laws.
It is further agreed that if, for any reason, any part or provision hereof is
determined to be illegal, void, or unenforceable, the remainder shall remain
binding and in effect.
J. In the event that Unisys is contacted by any of your prospective
employers, we will provide them with a positive reference in an agreed upon
form. You agree to direct any such prospective employers to me, at extension
5221, and I will provide them with this reference letter.
K. If in connection with any contemplated or filed litigation involving
Unisys, you are called upon to assist Unisys; to provide evidence; or to
testify in any manner, you agree to cooperate fully with Unisys. If requested
by Unisys, you agree to be present and participate in the trial of any such
matter. You will, to the extent permitted by applicable law, be reimbursed for
your reasonable costs and expenses, including lost salary. You will to the
extent permitted by law, be reimbursed for your attorneys' fees. In addition,
if you are sued or threatened with suit because of any lawful conduct,
undertaken within your course and scope of employment, Unisys will defend and
hold you harmless from any such claims, to the extent permitted by the Articles
of Incorporation and the bylaws of Unisys and Delaware Corporation Law.
If you agree to the terms set forth above, please sign and date this Letter
Agreement, Release and Waiver of Claims in the space provided below and return
it to me. Should you have any further questions regarding this matter, please
do not hesitate to contact me.
Yours truly,
Patricia A. Bradford
Senior Vice President
Worldwide Human Resources and Training
Agreed: ____________________________ Date: _____________
Brian T. Maloney
<FN>
<F1> For purposes of this Agreement, a consulting arrangement that provides for
employment for less than 20 hours per week and for a term of not more than 6
weeks will not be considered full-time employment.
<F2> Please consult your Plan documents for rules governing the exercise of
your stock options and restricted share units.