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July 20, 2010
United States Securities and Exchange Commission
Division of Corporation Finance
100 F Street, N.E.
Washington, D.C. 20549
Attention: Patrick Gilmore, Accounting Branch Chief
Re: Unisys Corporation
Form 10-K for Fiscal Year Ended December 31, 2009
Filed February 24, 2010
Form 10-Q for the Fiscal Quarter Ended March 31, 2010
Filed April 30, 2010
File No. 001-08729
Dear Mr. Gilmore:
On behalf of Unisys Corporation (the "Company"), set forth below are the
Company's responses to the comments of the Staff of the Securities and Exchange
Commission regarding the above referenced filings set forth in the Staff's
letter dated July 6, 2010. For your convenience, we have repeated each of the
comments set forth in the Staff's letter and followed each comment with the
Company's response.
FORM 10-K FOR THE FISCAL YEAR ENDED DECEMBER 31, 2009
ITEM 1. BUSINESS
BACKLOG, PAGE 2
COMMENT 1
Please tell us what portion of the backlog orders expected to be filled in 2010
was generated by funded government contracts and tell us what considerations
you gave to disclosing this information, if material.
RESPONSE TO COMMENT 1
At December 31, 2009, the amount of backlog expected to be filled in 2010 was
$2.6 billion, of which $.3 billion was generated by funded government contracts.
The Company did not disclose the $.3 billion given the relative amounts
involved.
ITEM 1A. RISK FACTORS (INCORPORATED BY REFERENCE FROM THE UNISYS 2009 ANNUAL
REPORT TO STOCKHOLDERS. EXHIBIT 13)
GENERAL
COMMENT 2
Please revise the subcaptions in future filings to adequately describe the risk
discussed in the risk factor, as well as how each risk impacts you. See Item
503(c) of Regulation S-K. Please note that this comment also applies to your
filings on Form 10-Q.
RESPONSE TO COMMENT 2
In future filings, the Company will review the subcaptions to determine if they
adequately describe the risk in accordance with Item 503(c) and if a subcaption
does not adequately describe the risks discussed in that particular risk factor,
the Company will revise the subcaption to more fully describe the risk and how
it affects the Company.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA (INCORPORATED BY REFERENCE
FROM THE UNISYS 2009 ANNUAL REPORT TO STOCKHOLDERS, EXHIBIT 13)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
REVENUE RECOGNITION, PAGE 23
COMMENT 3
We note your disclosures on page 16 regarding your contracts with governmental
entities. You discuss certain provisions related to these contracts that
appear to constitute fiscal funding clauses. Please describe the nature of
your contracts with governmental entities, including the products and/or
services generally sold pursuant to these agreements. Additionally, please
tell us how these contract provisions impact revenue recognition, and how you
considered ASC 985-605-25-38 through 25-40 and any other guidance, as
applicable.
RESPONSE TO COMMENT 3
The Company's contracts with governmental agencies generally include all of the
Company's service and product offerings, with the most significant amounts
being recognized under the Company's services offerings of outsourcing and
systems integration. Many of the contracts are subject to fiscal funding
clauses; however, the Company does not provide products or services, nor does
it recognize revenue, until funding is authorized for the specified items. As
such, the Company believes that it is in compliance with ASC 985-605-25-38
through 25-40.
COMMENT 4
We note your disclosure on page 16 which states that your outsourcing agreements
require that prices be benchmarked and provide for a downward adjustment to
those prices if the pricing for similar services in the market has changed.
This appears to suggest that uncertainties exist regarding your ability to
maintain fixed pricing on these contracts. Please explain to us how you
determine that the prices on your outsourcing contracts are fixed or
determinable and the impact this has on revenue recognition.
RESPONSE TO COMMENT 4
As set forth in the Company's MD&A, certain of the Company's outsourcing
agreements have benchmarking provisions. These provisions require the Company
to participate in a benchmarking study of its prices if the customer requests
such a study. The purpose of the benchmarking study is to evaluate whether
market pricing assumptions determined at the outset of the contract are still
valid during later years of the contract. In the benchmarking study, an
independent third party compares contractual rates to a range of market rates
for comparable services. Depending on the results of the study, the parties
may then negotiate adjusted pricing. In the Company's experience, such
adjustment is rare. If an adjustment is made the impact to an individual
contract is prospective and has no effect on previously recognized revenue.
Amounts recognized prior to a completed benchmarking study are non-refundable.
Because (1) a benchmarking study would only be performed in the event of a
customer request, (2) any benchmarking study that is done may not result in a
price adjustment, and (3) the impact of any price adjustment that does result
from a study is prospective, revenue previously recognized is not contingent
upon future events. The Company therefore believes that pricing in its
outsourcing contracts is fixed and determinable.
ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE (INCORPORATED
BY REFERENCE FROM PROXY STATEMENT FILED MARCH 18, 2010)
RISK OVERSIGHT, PAGE 15
COMMENT 5
Your disclosure does not appear to address whether your compensation policies
relate to risk-taking incentives. See Item 402(s) of Regulation S-K. Please
advise us of the basis for your conclusion that disclosure is not necessary and
describe the process you undertook to reach that conclusion.
RESPONSE TO COMMENT 5
Item 402(s) of Regulation S-K requires a company to discuss its policies and
practices of compensating its employees, including non-executive officers, as
they relate to risk management practices and risk-taking incentives if the
risks arising from those compensation policies and practices are reasonably
likely to have a material adverse effect on the company. The Unisys 2010 proxy
statement did not include this discussion because the Company concluded that
its compensation policies and practices do not create risks that are reasonably
likely to have a material adverse effect on it.
In assessing whether any disclosure would be required in the 2010 proxy
statement, the Company first prepared a summary of all of its compensation
plans, including the plan name, the purpose of the plan, eligibility criteria,
any applicable performance measures, projected annualized cost of the plan at
target and the like. The Company then prepared a qualitative program review
document that assessed the risks, including financial and operational risks, of
the Company's executive compensation plans. This compensation risk assessment
document discussed and evaluated the structure and philosophy, design
characteristics, and performance measurement features of these plans, including
(1) the mix between fixed and variable compensation, short- and long-term
compensation, cash and equity-based compensation, and the mix of long-term
incentive vehicles, (2) design characteristics such as whether caps and
thresholds exist, whether overlapping, as opposed to end-to-end, multi-year
performance periods exist, whether claw backs are in place, and the length and
nature of vesting periods for equity awards and (3) performance measurement
features such as the extent to which incentives are determined formulaically,
the extent to which incentives are based on achieving performance at multiple
levels such as corporate, business unit and individual, whether the expected
range of performance is within acceptable risk-taking parameters and whether
performance metrics support the Company's business strategy and creation of
long-term shareholder value. The assessment also noted any checks and balances
and other controls, such as stock ownership guidelines, the Company has put in
place that mitigate risks that could be associated with any particular
compensation design feature. The Company also considered and evaluated the
overall risk profile and reward structure for non-executive employees.
Finally, the Company considered that no one business unit (1) carries a
significant portion of the Company's risk, (2) has compensation that is
structured differently from that of other business units, (3) is significantly
more profitable than other units, or (4) has incentive compensation expense
that is a significant percentage of its revenues. Based on the above, the
Company concluded that its compensation policies and practices do not create
risks that are reasonably likely to have a material adverse effect on the
Company.
ITEM 11. EXECUTIVE COMPENSATION (INCORPORATED BY REFERENCE FROM PROXY
STATEMENT FILED MARCH 18, 2010)
EXECUTIVE COMPENSATION
COMPENSATION DISCUSSION AND ANALYSIS
PRINCIPAL COMPONENTS OF EXECUTIVE OFFICER COMPENSATION
VARIABLE SHORT-TERM INCENTIVE COMPENSATION, PAGE 35
COMMENT 6
Your disclosure on pages 32 and 35 indicates that individual performance is an
element of the amounts awarded to your named executive officers under your
executive variable compensation plan. In your response letter, please describe
how you evaluated individual performance and how it impacted the amounts
awarded to each of your named executive officers under your executive variable
compensation plan during the last fiscal year. Include similar disclosure in
future filings, if applicable.
RESPONSE TO COMMENT 6
While the Company's executive variable compensation plan gives the Compensation
Committee of the Board of Directors discretion to consider individual
performance and to make awards accordingly, for 2009 awards to the named
executive officers under the plan were determined entirely by formula. Each of
the named executive officers received his or her proportionate share of the
amount funded. There was no adjustment to awards to take individual
performance into account. If this is the case in future years, the Company
will so state in future filings. In addition, to the extent that individual
performance of a named executive officer is taken into account in the future,
the Company will describe the elements of individual performance and/or
contribution that are considered.
COMMENT 7
We note your disclosures on page 37 that you have not quantified business unit
performance metrics because you do not report publicly the results of your
various business units and do not believe that disclosing the actual
performance measures used would be meaningful. Items 402(b)(2)(v) and (vi) of
Regulation S-K require appropriate disclosure of the specific items of
performance that are taken into consideration in setting compensation policies
and making compensation decisions and how specific forms of compensation are
structured and implemented to reflect these performance items. Please tell us
whether you are relying on Instruction 4 to Item 402(b) of Regulation S-K to
omit the performance targets and, if so, tell us whether you have a competitive
harm analysis that supports your reliance on that instruction. In addition, if
you are relying on Instruction 4, please tell us how you considered discussing
the level of difficulty associated with achieving the undisclosed target
levels, as required by the Instruction.
RESPONSE TO COMMENT 7
The Company did not disclose quantitative performance targets relating to
business unit performance because it believes, for the reasons set forth below
under "Materiality to an Understanding of the Company's Compensation Policies",
that this is not material information that is necessary to an understanding of
the Company's compensation policies and its decisions regarding the
compensation of the named executive officers. The Company also believes, for
the reasons discussed below under "Competitive Harm", that it is permitted to
omit this information under Instruction 4 because it involves confidential
commercial information, the disclosure of which would result in substantial
competitive harm to it.
COMPETITIVE HARM
Instruction 4 to Item 402(b) of Regulation S-K provides that registrants are
not required to disclose target levels for specific quantitative performance-
related factors, the disclosure of which would result in competitive harm for
the registrant. The standard for determining whether disclosure would cause
competitive harm is the same standard that applies when a registrant requests
confidential treatment of confidential trade secrets or confidential commercial
or financial information pursuant to Securities Act Rule 406 and Exchange Act
Rule 24b-2, each of which incorporates the criteria for non-disclosure under
Exemption 4 of the Freedom of Information Act ("FOIA") and Rule 80(b)(4)
thereunder.
Exemption 4 of FOIA exempts from the class of material that public agencies
must disclose "[t]rade secrets and commercial or financial information obtained
from a person and privileged or confidential." The standards for determining
what constitutes confidential commercial or financial information, the
disclosure of which would cause competitive harm, have largely been addressed
in case law. Under the case law criteria, commercial or financial information
will be deemed "confidential" if disclosure thereof would be likely "to cause
substantial harm to the competitive position of the person from whom the
information was obtained." See e.g., National Parks and Conservation
Association v. Morton, 498 F.2d765 (D.C. Cir.1974). Another test of whether
information is confidential is whether the information is of the type that
would not customarily be released to the public by the person from whom it was
obtained. Sterling Drug, Inc. v. Federal Trade Commission, 450 F.2d 698, 709
(D.C. Cir. 1971). Over the years, courts have frequently characterized
information relating to business, commerce or trade as confidential.
For the reasons set forth below, the Company believes that disclosure of
quantitative business unit performance targets would cause it significant
competitive harm.
If the Company were to disclose the performance targets for its business units,
it would effectively be disclosing its confidential internal operating plans.
For 2009, the annual performance metrics for the business units were based on
these operating plans, with target annual performance levels that would result
in funding at 100%, if achieved, being the same as in the plan. The operating
plans represent management's operating targets for the year, and the Company
does not disclose this information. Doing so by disclosing business unit
performance targets would harm the Company's competitive position for the
following reasons:
* The business unit operating plans are based not only on historical
performance, economic factors and industry trends but also on the Company's
confidential strategic plans with regard to investments, divestitures, shifts
in business focus, cost reduction actions and the like. This is highly
sensitive, proprietary data that the Company does not disclose publicly and
that competitors could use to the Company's disadvantage. For example,
providing the Company's competitors with information that potentially reveals,
or from which competitors might infer or deduce, the Company's current and
longer-term corporate strategies and pricing plans could be damaging to the
execution of those plans because it would provide competitors with information
from which they could anticipate the Company's strategies and counter the
Company's efforts to execute them.
* Disclosure of business unit performance targets, even though historical,
would also allow the Company's competitors to discern the Company's historical
forecasting models, which they could use as a paradigm for forecasting or
extrapolating to future periods. In addition, because the performance targets
will necessarily show the Company's expectations as to operational results
relating to each business unit, and in turn on a relative basis to one another,
competitors would be able to use this information to determine which of the
Company's lines of business are most vulnerable to competition. For example,
if a competitor were to see that a business unit's orders or revenue targets
were trending lower whereas its profitability targets were trending higher, the
competitor could infer, rightly or wrongly, that the Company was intending
further cost-cutting measures, including employee layoffs. Competitors could
be encouraged by this to solicit the business unit's employees and could point
to this as a reason why the employee should leave Unisys and work for the
competitor instead.
* Disclosure of these targets could also provide the Company's competitors with
insight into its areas of key strategic focus. For example, a trend of lower
business unit profitability and revenue targets could lead customers and
competitors to conclude (potentially erroneously) that the Company is de-
emphasizing that business. This could lead customers to question the wisdom of
continuing to purchase the related products and services and cause them to look
for new suppliers. It could also encourage competitors to not only go after
the business of these customers even more aggressively but also to aggressively
recruit the business unit's employees. Lower profitability targets could also
indicate, rightly or wrongly, that the Company is not succeeding in a
particular market, which could damage its strategies for turning around
business in a difficult market.
* If competitors have knowledge of business unit revenue and profit targets
they could unfairly engage in pricing and negotiation tactics with respect to
customers that are detrimental to the Company's business. For example, if
revenue and profitability targets were to be disclosed, Company competitors
would gain insight into the components of the Company's costs and anticipated
profit margins with respect to its various lines of business and could use this
information to offer more favorable terms to potential customers, thus gaining
a competitive advantage over the Company. This is particularly the case in the
Company's services business, which is highly competitive and where there is a
high sensitivity to rates companies charge for their services delivery
personnel. Similarly, customers could use this information to negotiate prices
more aggressively.
Concerning the level of difficulty associated with achieving the business unit
targets, as set forth above, for 2009, target levels were the same as the
business units' operating plans. This means that the targets were intended to
be reasonably achievable with strong management performance, given the
Company's strategic objectives and the economic and market conditions at the
time the operating plan was put into place. The Company will include
disclosure of the level of difficulty in achieving business unit targets in
future proxy statements.
MATERIALITY TO AN UNDERSTANDING OF THE COMPANY'S COMPENSATION POLICIES
Item 402(b) of Regulation S-K and Instruction 1 state that the purpose of the
Compensation Discussion and Analysis is to explain "all material elements of
the registrant's compensation of the named executive officers" and to provide
to investors "material information that is necessary to an understanding of the
registrant's compensation policies and decisions regarding the named executive
officers." Accordingly, quantitative disclosure regarding business unit
performance targets need only be included in the Compensation Discussion and
Analysis if such information is material and necessary to an understanding of
the Company's compensation policies and decisions for its named executive
officers. For the reasons set forth below, Unisys believes that quantitative
disclosure of business unit metrics is not necessary to an understanding of the
Company's compensation policies and its decisions regarding the compensation of
the named executive officers.
The 2010 proxy statement disclosed quantitative Company-wide performance
targets, which allows an investor to see the relationship between targets and
the Company's publicly reported results both for the current year and
historically. It also included (1) an identification of the specific elements
of business unit performance used as targets (pre-tax profit and revenue or
orders), (2) the extent to which the business unit met those performance
targets, and (3) the total amount of funding made available (as a percentage of
total target awards) to plan participants with respect to those targets. With
respect to those named executive officers whose awards were based in part on
business unit performance, the 2010 proxy statement also disclosed the amount
paid to the named executive officer by both dollar amount and as a percentage of
the target for the performance metric. In so doing, the proxy statement
reflected whether the individual received more than, less than, or the
individual's proportionate share of the amount funded. As is shown in the 2010
proxy statement, all named executive officers received their proportionate
share of the amounts funded with respect to the various performance metrics for
2009. If, in the future, a named executive officer receives more or less than
his or her proportionate share of the amount funded, the Company will disclose
the reasons for this. The Company believes that this disclosure, combined with
the additional disclosure the Company plans to make in future filings regarding
the level of difficulty in achieving the targets, provides the information that
is necessary to an understanding of the Company's compensation policies and its
decisions regarding the compensation of the named executive officers and that
it is fully responsive to the requirements of Item 402(b) of Regulation S-K and
Instruction 1.
Based on the above considerations, the Company believes that the risk of
substantial competitive harm to it that is likely to result from the disclosure
of specific business unit targets far outweighs the utility of such disclosure
and that business unit-specific information is not material to the analysis of
the Company's compensation policies and decisions. Consequently, the Company
respectfully submits that disclosure of the specific targets is not required.
LONG-TERM INCENTIVE AWARDS, PAGE 38
COMMENT 8
In your response letter, please include a more detailed explanation of how you
determined the amount and type of equity awarded to each named executive
officer during the last fiscal year. Include similar disclosure in future
filings, if applicable.
RESPONSE TO COMMENT 8
As set forth in the 2010 proxy statement, in 2009 equity-based awards generally
took the form of stock options, and from 2006 to 2008 they generally took the
form of restricted stock units, primarily performance-based restricted stock
units. In 2009, the Company was in the midst of an aggressive turnaround
program to enhance its financial results and strengthen its balance sheet.
Because of the difficulty of setting multi-year performance targets in a
turnaround situation, the Company determined that equity-based awards for 2009
should be in the form of stock options, rather than performance-based
restricted stock units. In addition, because 2009 was a critical year for the
turnaround, the Company determined that the vesting schedule for the 2009 stock
options should be set so that the options would vest 50% on the first
anniversary of the date of grant and 25% on each of the second and third
anniversaries of the date of grant, thus providing plan participants with a
meaningful incentive to drive results as soon as possible. In previous years,
options had typically vested one third each year, beginning on the first
anniversary of the date of grant.
As set forth in the 2010 proxy statement, the value of the 2009 stock option
grant was below the median at the benchmark companies even though the Company
intends for each element of executive compensation to be generally consistent
with the median. As set forth in the proxy statement, the Company did not want
to incur the additional compensation expense that would have been required to
be recorded if the stock option grants had been made at that level. The number
of stock options granted, therefore, was primarily a function of the amount of
expense that the Company believed it could reasonably afford, given its
financial condition at the time, as well as the number of shares available for
grant.
If applicable, the Company will include disclosure similar to the above in
future filings.
ITEM 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
EXHIBITS 31.1 AND 31.2
COMMENT 9
Paragraph 4(d) of the certification omits the parenthetical "(the registrant's
fourth fiscal quarter in the case of an annual report)." The certifications
may not be changed in any respect from the language of Item 601(b)(31) of
Regulation S-K, even if the change would appear to be inconsequential in nature.
See Section II.B.4 of SEC Release No. 33-8124. Please note that this comment
also applies to your quarterly report on Form 10-Q for the fiscal quarter ended
March 31, 2010. Please confirm that you will use the language specified in
Item 601(b)(31) in future filings.
RESPONSE TO COMMENT 9
The Company confirms that it will use the language specified in Item 601(b)(31)
in future filings.
FORM 10-Q FOR THE FISCAL QUARTER ENDED MARCH 31, 2010
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
NOTE B., PAGE 7
COMMENT 10
We that you recorded a $20 million charge in the first quarter of 2010 as a
result of the adoption of highly inflationary accounting and the devaluation of
the Bolivar Fuerte that occurred in January 2010. Please expand your
disclosure and your MD&A discussion in future filings to provide a more
comprehensive discussion of your Venezuelan operations that provides a greater
level of detail regarding the monetary and nonmonetary assets and liabilities
that are exposed to exchange rate changes as well as providing the disclosures
required under ASC 830-30-S99.
RESPONSE TO COMMENT 10
At June 30, 2010, the Company had a net asset position of approximately $24
million associated with its operations in Venezuela, which included net
monetary assets of approximately $16 million (principally cash) and net
nonmonetary assets of approximately $8 million. For the six months ended June
30, 2010, revenue for the Company's Venezuelan operations represented less than
one-half of one percent of total Company revenue. Since the amounts involved
are not significant to MD&A, the Company does not believe that it currently
needs to expand its disclosures beyond those set forth in its Form 10-Q for the
quarter ended March 31, 2010. If the amounts in question become more
significant, however, the Company will expand its disclosure and its MD&A
discussion in future filings to provide a more comprehensive discussion of its
Venezuelan operations.
NOTE M., PAGE 13
COMMENT 11
We note that effective January 1, 2010 you adopted the guidance in ASC 860-10
pursuant to which you have determined that the U.S. trade accounts receivable
facility no longer meets the requirements to be treated as a sale, and will
therefore be accounted for as a secured borrowing. Please provide us with your
analysis under ASC 860-10 that supports the conclusions reached.
RESPONSE TO COMMENT 11
The Company concluded that sales of participating interests in accounts
receivable under its U.S. trade accounts receivable facility no longer meet the
requirements to be accounted for as sales due to the change in the definition
of a participating interest, whereby all cash flows received from the entire
financial asset must be divided proportionally among the participating interest
holders in an amount equal to their share of ownership. Since in the Company's
U.S. trade accounts receivable facility, the Company's retained interest is
subordinated to the other holders, the transaction does not meet the definition
of the sale of a participating interest. In addition, it should be noted that
in note m of the Company's Form 10-Q for the quarterly period ended March 31,
2010, the Company disclosed that as of March 31, 2010 it had not sold any
receivables under this facility.
ITEM 4. CONTROLS AND PROCEDURES, PAGE 24
COMMENT 12
We note that your principal executive officer and principal financial officer
have concluded that your disclosure controls and procedures were effective for
"gathering, analyzing and disclosing the information the Company is required to
disclose in the reports it files under the Securities Exchange Act of 1934,
within the time periods specified in the SEC's rules and forms." Please
confirm, if true, that your principal executive officer and principal financial
officer concluded that information required to be disclosed by you in the
reports that you file or submit under the Exchange Act is recorded, processed,
summarized and reported, within the time periods specified in the Commission's
rules and forms. In addition, confirm, if true, that your officers concluded
that your disclosure controls and procedures are also effective to ensure that
information required to be disclosed in the reports that you file or submit
under the Exchange Act is accumulated and communicated to your management,
including your chief executive officer and chief financial officer, to allow
timely decisions regarding required disclosure. Please provide us with a
representation that in future filings, where you include the definition of
disclosure controls and procedures, you will include disclosure conforming to
Exchange Act Rule 13a-15(e). Note also that in lieu of providing the entire
definition of disclosure controls and procedures, you may include a reference
Rule 13a-15(e) without including any part of the definition.
RESPONSE TO COMMENT 12
We confirm that our principal executive officer and principal financial officer
concluded that information required to be disclosed in the reports that we file
or submit under the Exchange Act is recorded, processed, summarized and
reported, within the time periods specified in the Commission's rules and forms.
In addition, we confirm that our officers concluded that our disclosure
controls and procedures are also effective to ensure that information required
to be disclosed in the reports that we file or submit under the Exchange Act is
accumulated and communicated to our management, including our chief executive
officer and chief financial officer, to allow timely decisions regarding
required disclosure. In future filings, where we include the definition of
disclosure controls and procedures, we will include disclosure conforming to
Exchange Act Rule 13a-15(e).
* * * *
In addition, the Company acknowledges that:
* the Company is responsible for the adequacy and accuracy of the disclosure in
the filings;
* staff comments or changes to disclosure in response to Staff comments do not
foreclose the Commission from taking any action with respect to the filings; and
* the Company may not assert staff comments as a defense in any proceeding
initiated by the Commission or any person under the federal securities laws of
the United States.
The Company hopes that the above is responsive to the Staff's comments.
Very truly yours,
UNISYS CORPORATION
Janet Brutschea Haugen
Senior Vice President and Chief Financial Officer
cc: Jennifer Fugario
Evan Jacobson
Maryse Mills-Apenteng