Exhibit 10.15
MONDAY
SENIOR EXECUTIVE EMPLOYMENT AGREEMENT
This Employment Agreement, dated as of June __, 2002 (as amended from
time to time, this "AGREEMENT") between PwCC LP, a subsidiary of BermudaCo (as
defined below) which will become Monday Consulting US, Inc. in connection with
the transaction described in the recitals below (together with its successors
and assigns, the "EMPLOYER"), and Xxxxxx X. X'Xxxxx.
R E C I T A L S:
In connection with the worldwide reorganization of the business and
operations of PricewaterhouseCoopers Consulting ("MONDAY") into a unified
holding company structure with Monday Ltd ("BERMUDACO") as the top-tier holding
company and Monday SCA ("LUXCO") as the second-tier holding company, the
Employer and you acknowledge and agree:
1. Generally.
(a) Agreement to Employ. Upon the terms and subject to the
conditions of this Agreement, the Employer hereby employs you and you
hereby accept employment with the Employer.
(b) Term of Employment. Except as otherwise provided in
Section 5, the Employer will employ you for the period commencing on
the Commencement Date (as defined below) and ending on the third
anniversary of the Commencement Date; provided that your employment
will thereafter be automatically extended, upon the terms and
conditions of this Agreement, for additional 1-year terms, unless
either party terminates such employment pursuant to Section 5. For the
avoidance of doubt, this Agreement will be conditioned on the closing
of the IPO and, in any case, will only become effective and enforceable
as of the Commencement Date. Notwithstanding the foregoing, this
Agreement may be terminated by the Employer or you as described further
in Section 5.
2. Compensation.
(a) Compensation. As the Chairman of the Board of Directors of
BermudaCo, you will receive compensation in accordance with the
policies of the Employer. Such policies will themselves be in
accordance with the policies of BermudaCo and its affiliates.
Notwithstanding the foregoing, while you remain employed by the
Employer hereunder, you will be entitled to receive a base salary of
not less than $900,000 per annum and a target annual bonus opportunity
of not less than one-third of
base salary. In addition, you will be eligible for periodic grants of
equity based awards in accordance with the equity compensation plans of
BermudaCo, as such plans exist from time to time.
(b) Withholding. Any amounts due to you under this Agreement
will be subject to any deduction or withholding authorized or required
by applicable law or authorized by you.
(c) Offset. To the extent permitted by applicable law, the
Employer may, in its sole discretion, offset from any amounts due to
you under this Agreement an amount sufficient to satisfy any obligation
that you owe to the Employer or its affiliates.
3. Benefits; Expense Reimbursement. You will be invited to participate
in all incentive, welfare, fringe, retirement and other employee benefit plans
and arrangements maintained by the Employer or its affiliates for Monday's
similarly situated partners. The Employer and such affiliates reserve the right
to establish, terminate, amend, substitute, suspend or otherwise modify any such
plan or arrangement, subject to any contractual rights accrued by you and
subject to the requirements of any applicable law. In addition, the Employer
will reimburse you for appropriately documented, reasonable expenses you incur
in connection with and while working on Employer business, in accordance with
its normal business expense reimbursement policies then in effect.
4. Duties and Responsibilities. You agree that you will devote
substantially all of your working time and attention to the performance of your
duties as required, and will not, without the prior written consent of the
Employer, engage, directly or indirectly, in any other employment, business or
professional activity for compensation, profit or financial gain. You also agree
that you will obtain the written consent of the Board (as defined below) or the
Compensation Committee (or analogous body) thereof prior to assuming any paid or
unpaid directorships, other than for non-client charitable, civic, educational,
social or other similar nonprofit organizations where your activities will not
conflict with the Employer's policies as may be in effect from time to time.
5. Termination of Employment.
(a) Termination by the Employer.
(i) This Agreement may be terminated at any time by
the Employer by giving written notice to you; provided that no
such termination will be effective unless it has been
initiated or authorized by the Board. The length of the notice
period for any such termination will be at the sole discretion
of the Employer. The Employer, in its sole discretion, may (x)
require you to use
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any accrued but unused vacation time during any such notice
period (in which case any vacation time that remains unused
(up to 3 months) will be paid out in cash) or (y) pay out any
accrued but unused vacation time in cash. For the avoidance of
doubt, any vacation time that is required to be used or is
paid out in cash will be limited to 3 months, and any excess
vacation time will be forfeited without payment.
(ii) If your employment is terminated by the Employer
for reasons other than for Cause (as defined below), you will
be entitled to continue to receive from the Employer (x)
continued payment of the sum of (A) your monthly base salary
as in effect at the time of such termination plus (B) the
product of your target annual bonus opportunity for the fiscal
year in which such termination occurs multiplied by
one-twelfth (such sum, your "REFERENCE COMPENSATION") each
month for 24 months (the "RELEVANT PERIOD") (such payment to
commence on the closest payroll date after the effective date
of such termination) and (y) for the Relevant Period,
continued benefits under any health and welfare employee
benefit plans of the Employer or its affiliates in which you
participated at the date of such termination. Notwithstanding
the foregoing, any further payment or provision of benefits to
you under this Section 5(a)(ii) will immediately cease and be
no longer due if you breach any of the provisions of Sections
6 or 8. In addition, any unvested equity awards that have been
granted to you prior to such date of termination will become
fully vested and exercisable, and any restrictions applicable
to any such award (other than any transfer restrictions
imposed by the Voting Agreement, as defined below) will
automatically lapse. Further, you will be entitled to the use
of outplacement services for a reasonable period of time
following such termination. The cost for such services will
not exceed $25,000 and the provider of such services will be
mutually and reasonably agreed upon prior to such use.
(iii) For purposes of this Agreement, your employment
shall be deemed to have been terminated by the Employer for
reasons other than Cause if you voluntarily terminate your
employment for Good Reason (as defined below).
(iv) In the event it shall be determined that any
payment by or benefit from BermudaCo or its affiliates to you
or for your benefit, whether pursuant to the terms of this
Agreement or otherwise (collectively, the "CIC PAYMENT"),
would be subject to the excise tax imposed by Section 4999 of
the U.S. Internal
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Revenue Code of 1986, as amended (the "CODE"), or any similar
provision or any interest or penalties with respect to such
excise tax (such excise tax, together with any such interest
and penalties, are collectively referred to as the "EXCISE
TAX"), you will be entitled to receive an additional payment
(a "GROSS-UP PAYMENT") in an amount determined by BermudaCo's
outside auditors such that after payment by you of all taxes
(including any interest or penalties imposed with respect to
such taxes), including any 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 Payment; provided,
however, that if the aggregate value of the CIC Payment is
less than 115% of the product of three times your "base
amount" (as defined in Section 280G(b)(3) of the Code) (such
product, the "GOLDEN PARACHUTE THRESHOLD"), then you shall not
be entitled to any Gross-Up Payment and, instead, the CIC
Payment shall be reduced to an amount equal to $1.00 less than
the Golden Parachute Threshold.
(b) Termination by You. This Agreement may be terminated at
any time by you by giving written notice to the Employer; provided that
if you terminate your employment for any reason other than as a result
of your death or Disability (as defined below) or other than as
provided in Section 5(a)(iii), you will give at least 3 months prior
written notice to the Employer. The notice from you is intended to be
for the benefit of the Employer, and you agree that the Employer may
accept your notice in whole or in part without any further obligation.
The Employer, in its sole discretion, may require you to use any
accrued but unused vacation time (up to 3 months) during the notice
period, and any vacation time that remains unused will be forfeited
without payment. You further agree that, you will promptly (and, in any
case, prior to your departure) provide the Employer with the name of
your subsequent employer or other professional affiliation and the
position you intend to assume. In addition, you will forfeit any
unvested equity awards that have been granted to you prior to such date
of termination, unless your termination is for Good Reason.
(c) Any payment or provision of benefits under this Section 5
shall be conditioned, to the extent permitted by applicable law, upon
your execution of a release and waiver of claims in favor of and in
form satisfactory to the Employer.
6. Confidential and Proprietary Information.
(a) Confidential Information. At all times during your
employment with the Employer or its affiliates and thereafter, you will
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hold in strictest confidence and not use or disclose to any person,
firm, corporation or any other organization or entity or in any medium
or forum (including, without limitation, the media and any Internet
chat rooms or other websites), including any representative or agent of
the foregoing, without prior written authorization of BermudaCo any
Confidential Information (as defined below). Because Confidential
Information is extremely valuable, BermudaCo and its affiliates take
measures to maintain its confidentiality and guard its secrecy.
Confidential Information may be copied, disclosed or used by you during
your employment only as necessary to carry out Employer business and,
where applicable, only as required or authorized under the terms of any
agreements between BermudaCo and its affiliates and their clients,
licensors and suppliers. You agree not to take or keep any Confidential
Information when you leave BermudaCo and its affiliates. If you are
ever asked to disclose any information or materials that are subject to
these confidentiality restrictions, pursuant to legal process or
otherwise, you must contact the Employer or the Office of General
Counsel (and, if the disclosure is not pursuant to legal process, you
must seek the Office of General Counsel's written consent) prior to any
such disclosure. These confidentiality restrictions are permanent and
do not lapse or cease upon your departure from BermudaCo and its
affiliates.
(b) Third-Party Information. You recognize that BermudaCo and
its affiliates have received and in the future will receive from third
parties their confidential or proprietary information subject to a duty
on their part to maintain the confidentiality of such information and
to use it only for certain limited purposes. You agree to hold all such
confidential or proprietary information in the strictest confidence and
not to disclose it to any person, firm, corporation or other
organization or to use it, except as necessary to carry out Employer
business and, where applicable, only as required or authorized under
the terms of any agreement between BermudaCo or its affiliates and such
third party.
7. Insider Information.
You are prohibited from using or sharing information not publicly
disclosed, which you obtain during the course of your work for the Employer, for
your personal gain or advantage in securities transactions, or for the personal
gain or advantage of anyone with whom you improperly share this information.
This restriction applies to such information related to any company, and not
just the clients (and their affiliates) of BermudaCo and its affiliates.
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8. Non-Competition; Non-Solicitation; No-Hire.
(a) Covenants. In consideration of your employment by the
Employer, you agree that you shall not, for a period ending on the
later of 3 years following the Commencement Date or 12 months following
the termination of your employment with BermudaCo and its affiliates
(the "RESTRICTED PERIOD"):
(i) associate (including, without limitation,
association as a sole proprietor, owner, employer, director,
partner, principal, investor, joint venturer, shareholder,
associate, employee, member, consultant, contractor or
otherwise) with any Competitive Enterprise (as defined in the
Redemption Agreement, as defined below) or any of the
affiliates, related entities, successors or assigns of any
Competitive Enterprise or in connection with such association
engage in competition with the Consulting Business (as defined
in the Redemption Agreement); provided, however, that with
respect to the equity of any Competitive Enterprise that is or
becomes publicly traded, your ownership as a passive investor
of less than 1% of the outstanding publicly traded stock of a
Competitive Enterprise shall not be deemed a violation of this
Section 8(a)(i);
(ii) directly or indirectly solicit, or assist any
other person in soliciting, any Client (as defined below) or
Prospective Client (as defined below) for the purpose of
seeking an engagement to perform or provide any services in
competition with the Consulting Business to such Client or
Prospective Client; perform or provide, or assist any other
person in performing or providing, services in competition
with the Consulting Business for any Client or Prospective
Client; or interfere with or damage (or attempt to interfere
with or damage) any relationship and/or agreement between
BermudaCo or its affiliates and a Client or Prospective
Client; or
(iii) directly or indirectly, solicit, hire, employ
or retain (or assist any other person in soliciting, hiring,
employing or retaining) any employee or representative or
other agent of BermudaCo or its affiliates, including, without
limitation, any former employee or representative or other
agent of BermudaCo or its affiliates or any of their
predecessors (including, without limitation, PwC Consulting
and its affiliates) who ceased working for BermudaCo or its
affiliates (or any of their predecessors, including
PricewaterhouseCoopers LLP in the United States and
PricewaterhouseCoopers Associates in Canada) within the
12-
6
month period before or after the date on which your employment
with BermudaCo or its affiliates terminated, in connection
with or for the purpose of bringing about a termination of an
existing employment or service relationship (or, in the case
of former employees or representatives or other agents,
seeking to engage such persons to perform or provide services
in competition with the Consulting Business).
You acknowledge that your covenants under this Section 8 are a
condition precedent to your employment under this Agreement. In addition, in
light of your education, skills, abilities and financial resources, you agree
that you will not assert, and it should not be considered, that any provisions
of this Section 8 prevent you from earning a living or otherwise are void,
voidable or unenforceable or should be voided or held unenforceable.
The Board is authorized to waive any or all of the foregoing
restrictions, or any portion thereof.
(b) Remedies Upon Breach.
(i) Liquidated Damages. You agree that if you were to
breach any provision of this Section 8, BermudaCo and its
affiliates would suffer damages that are not readily
ascertainable. Accordingly, in addition to and without
limiting any remedies in law or in equity that may be
available to BermudaCo and its affiliates for the breach of
this Section 8, including, without limitation, injunctive and
other equitable relief, you agree that in the event of a
breach of this Section 8 by you prior to the third anniversary
of the Commencement Date, as reasonably determined by the
Partners Committee, you shall pay to BermudaCo (or a
designated affiliate) within 30 days following such
determination and a written demand therefor, a cash payment in
an amount equal to your aggregate cash compensation paid by
BermudaCo or its affiliates (and, where applicable, their
predecessors) in your last full year of employment with
BermudaCo and its affiliates (or, where applicable, employment
or service with PwC) (or such lesser amount as may be
designated by the Partners Committee in its sole and absolute
discretion), as and for liquidated damages ("LIQUIDATED
DAMAGES"). You acknowledge and agree that the payment required
by this Section 8 is a reasonable forecast of the damages
likely to result from such breach and is not a penalty of any
kind.
You agree that the Liquidated Damages shall be secured by any shares
received by you pursuant to Section 2.04A of the Redemption Agreement,
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pursuant to a pledge agreement, which is incorporated in this Agreement by
reference and made a part of this Agreement. You agree that the payment of
Liquidated Damages shall not be construed as a release or waiver by BermudaCo or
its affiliates of the right to prevent the continuation of any such breach of
this Section 8 in equity or otherwise and shall not preclude or be construed to
preclude BermudaCo or its affiliates from making a showing of irreparable injury
or any other element that may be necessary to secure injunctive relief.
(ii) Injunctive Relief. You acknowledge and agree
that any remedy at law available to BermudaCo and its
affiliates for any breach of the covenants contained in this
Section 8 would be inadequate and that for any breach of such
covenants, BermudaCo and its affiliates shall, in addition to
other remedies as may be available to it at law or in equity,
or as provided for in this Agreement, be entitled to an
injunction, restraining order or other equitable relief,
without the necessity of posting a bond, restraining you from
committing or continuing to commit any violation of the
covenants. You agree that proof shall not be required, that
monetary damages for breach of the provisions of this
Agreement would be difficult to calculate and that remedies at
law would be inadequate.
(c) Non-Application. The provisions of this Section 8 shall
not apply if your employment is terminated by the Employer for reasons
other than for Cause within 12 months following a Change in Control (as
defined below) or if you voluntarily terminate your employment for Good
Reason.
9. Minimum Ownership Guidelines. You agree to abide by all mandatory
minimum ownership guidelines with respect to (x) shares in the capital of a
Canadian corporation owned directly or indirectly by LuxCo that are exchangeable
for BermudaCo shares, (y) Luxco shares and/or (z) BermudaCo shares, to be
established from time to time by the Employer.
10. Data Privacy. The Employer will hold and process any personal
information which you provide to it in connection with your employment. The
Employer may, from time to time, make your personal information available to
other entities within or outside the Employer, including outside of the United
States (or any other jurisdiction in which you may reside or be employed). You
acknowledge and consent to such transfer (including by electronic transfer)
and/or processing of such personal information within or outside the Employer,
including outside of the United States (or any other jurisdiction in which you
may reside or be employed).
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11. Assignability. You may not assign any of your rights or obligations
under this Agreement. This Agreement shall be binding upon and inure to the
benefit of the Employer's successors and assigns and your legal representatives.
Without limiting the generality of the foregoing, the Employer may assign its
rights and delegate its duties under this Agreement in whole or in part to any
affiliate of the Employer or to any transferee of all or a portion of the assets
or business to which this Agreement relates.
12. Severability. If any term or condition set forth in this Agreement
is found by a court to be unenforceable, then the remaining terms and conditions
will remain in full force and effect. Terms and conditions found to be
unenforceable, if any, will be modified by the court to conform to a provision
that most closely expresses the intent of the unenforceable term or condition.
Without limiting the generality of the foregoing, if, at the time of any
enforcement of Section 8, an arbitrator or court holds that the duration, scope
or area restrictions stated in such Section 8 are unreasonable under
circumstances then existing, the parties agree that the maximum duration, scope
or area deemed reasonable under such circumstances will be substituted for the
stated duration, scope or area and that the court will be allowed to so revise
the restrictions contained in such Section 8.
13. Applicable Law; Dispute Resolution.
(a) BermudaCo is a global entity, including offices throughout
the United States and having executive offices in New York City;
accordingly, this Agreement is governed by the laws of the State of New
York regardless of your practice location and irrespective of the
principles of conflicts of law.
(b) Any dispute or controversy arising under or in connection
with this Agreement will be settled exclusively by arbitration in New
York City, in accordance with the rules of the American Arbitration
Association then in effect. Notwithstanding the foregoing, the Employer
may bring an action or special proceeding in any court of competent
jurisdiction for the purpose of compelling you to arbitrate, seeking
temporary or preliminary relief pending resolution of a dispute between
the Employer and you and/or enforcing an arbitration award, and, for
the purposes of this Section 13(b), you expressly consent to the
application of Section 13(a) to any such action or proceeding. You
agree that proof shall not be required that monetary damages for breach
of the provisions of the Agreements would be difficult to calculate and
that remedies at law would be inadequate, and you irrevocably appoint
the General Counsel of BermudaCo, Monday Ltd, 00 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, X.X.X. (or, if different, the then-current
principal business address of the duly appointed General Counsel of
BermudaCo) as your agent for service of process in connection
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with any such action or proceeding and agree that service of process
upon such agent, who shall promptly advise you of any such service of
process, will be deemed in every respect effective service of process
upon you in any such action or proceeding.
14. Representations.
(a) You acknowledge that you have not relied on any
representations or statements, whether oral or written, regarding your
employment with the Employer, other than as contained in this
Agreement.
(b) You acknowledge that you have executed a redemption and
non-competition agreement attached as Exhibit A (the "REDEMPTION
Agreement"), a voting agreement attached as Exhibit B ("VOTING
AGREEMENT") and an intellectual property agreement attached as Exhibit
C ("INTELLECTUAL PROPERTY AGREEMENT"), and agree that the terms of all
such agreements are incorporated by reference in this Agreement and
remain in full force and effect.
(c) In accepting employment with the Employer, you represent
that you have not taken, and will not take in connection with such
employment, any action that would violate any contractual or other
restriction or obligation that is binding on you or any continuing duty
you may owe to others.
15. Notices. Any communication, demand or notice to be given under this
Agreement will be duly given (and shall be deemed to be received) when delivered
in writing by hand or first class mail or by facsimile to a party at its address
as indicated below:
If to you,
Xxxxxx X. X'Xxxxx
Monday Consulting US, Inc.
c/o Monday Ltd
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Facsimile: 000-000-0000
Attention: General Counsel
(or, if different, the then-current principal business address
of the duly appointed General Counsel of BermudaCo)
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If to the Employer,
Monday Consulting US, Inc.
c/o Monday Ltd
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Facsimile: 000-000-0000
Attention: General Counsel
(or, if different, the then-current principal business address
of the duly appointed General Counsel of BermudaCo)
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
X.X.X.
Facsimile: 212-450-3800
Attention: Xxxxxxx Xxxxx, Esq.
Unless otherwise provided to the contrary in this Agreement, any notice which is
required to be given in writing pursuant to the terms of this Agreement may be
given by facsimile or electronic mail.
16. Entire Agreement; Modifications. You acknowledge that this
Agreement (together with the Redemption Agreement, the Voting Agreement and the
Intellectual Property Agreement) contains the entire agreement between the
parties with respect to the subject matter in this Agreement (and therein),
supersedes all prior oral or written agreements or understandings with the
Employer and its affiliates (and their predecessors, including
PricewaterhouseCoopers LLP in the United States and PricewaterhouseCoopers
Associates in Canada) (including the employment agreement dated as of April 30,
2002 between PwC Consulting LLC and you) and may be modified only by a writing
signed by the Employer. If there is a conflict or inconsistency between your
covenants contained in this Agreement and those contained in the Redemption
Agreement (other than with respect to the duration of such covenants), then
those in the Redemption Agreement will govern, unless an arbitrator or court
holds that the covenants contained in the Redemption Agreement are unreasonable,
in which case the covenants contained in the Agreement will govern.
17. Definitions.
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(a) "BOARD" means the Board of Directors (or analogous body)
of BermudaCo.
(b) "CAUSE" means any of the following conduct by you: (i)
embezzlement, misappropriation of corporate funds or other material
acts of dishonesty; (ii) commission or conviction of any felony, or of
any misdemeanor involving moral turpitude, or entry of a plea of guilty
or nolo contendere to any felony or misdemeanor (other than a minor
traffic violation or other minor infraction); (iii) engagement in any
activity that you know or should know could harm the business or
reputation of BermudaCo or its affiliates; (iv) material failure to
adhere to the Employer's corporate codes, policies or procedures; (v) a
breach of any covenant in this Agreement or the Redemption Agreement,
the Voting Agreement or the Intellectual Property Agreement, or a
material breach of any other provision of this Agreement, in any case
if the breach is not cured to the Employer's satisfaction within a
reasonable period after you are provided with notice of the breach (no
notice and cure period is required if the breach cannot be cured); or
(vi) violation of any statutory, contractual or common law duty or
obligation to the Employer, including without limitation the duty of
loyalty.
(c) "CHANGE IN CONTROL" means the first to occur of:
(i) an individual, corporation, partnership, group,
association or other entity or person, other than BermudaCo or
any employee benefit plan(s) sponsored by BermudaCo or its
affiliates, is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the U.S. Securities and Exchange Act of
1934, as amended), directly or indirectly, of 40% or more of
the combined voting power of BermudaCo's outstanding
securities ordinarily having the right to vote at elections of
directors;
(ii) individuals who constitute the Board as of the
date of the IPO (the "INCUMBENT BOARD") cease for any reason
to constitute at least a majority thereof; provided that any
Approved Director (as defined below) shall be, for purposes of
this subsection (ii), considered as though such person were a
member of the Incumbent Board. An "APPROVED DIRECTOR" means
any person becoming a director subsequent to the date of the
IPO whose election, or nomination for election by BermudaCo's
shareholders, was approved by a vote of at least
three-quarters of the directors comprising the Incumbent Board
(either by a specific vote or by approval of the proxy
statement of BermudaCo, in which such person is named as
nominee of BermudaCo, for director), but shall not include any
such individual whose initial
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assumption of office occurs as a result of either an actual or
threatened election contest or other actual or threatened
solicitation of proxies or consents by or on behalf of an
individual corporation, partnership, group, association or
other entity or person, other than the Board;
(iii) the consummation of the transactions
contemplated by a plan or agreement providing (A) for an
amalgamation, merger or consolidation of BermudaCo, other than
with a wholly-owned subsidiary and other than an amalgamation,
merger or consolidation that would result in the voting
securities of BermudaCo outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving
entity) more than 65% of the combined voting power of the
voting securities of BermudaCo or such surviving entity
outstanding immediately after such merger or consolidation, or
(B) for a sale, exchange or other disposition of all or
substantially all of the assets of BermudaCo; provided that if
any of the transactions enumerated in this subsection (iii)
occurs, the Board shall determine the effective date of the
Change in Control resulting therefrom for purposes of the Plan
(and if no such determination is made, the date on which the
transaction in question is closed); or
(iv) the approval by the shareholders of BermudaCo of
a complete liquidation or dissolution of BermudaCo.
Notwithstanding the foregoing, a Change in Control shall not be deemed to have
occurred with respect to you if you are part of the purchasing group that
consummates the Change in Control transaction. You shall be deemed "part of a
purchasing group" for purposes of the preceding sentence if you are an equity
participant in the purchasing entity or group (except for: (x) passive ownership
of less than 1% of the shares of the purchasing entity; or (y) ownership or
equity participation in the purchasing entity or group which is otherwise not
significant, as determined prior to the Change in Control by a majority of the
directors who are not such participants).
(d) "CLIENT" means any person, firm, corporation or any other
organization or entity for whom BermudaCo or its affiliates or any of
their predecessors (including, without limitation, member firms of PwC
and their affiliates) provided services in the Consulting Business
within the 12-month period before or after the date on which your
employment with BermudaCo and its affiliates terminated.
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(e) "COMMENCEMENT DATE" means the later of the closing date of
the transactions contemplated by the Redemption Agreement or the
closing date of the IPO.
(f) "CONFIDENTIAL INFORMATION" means, with respect to
BermudaCo and its affiliates, any non-public information regarding
BermudaCo and its affiliates and any proprietary information, technical
data, trade secrets and know-how (including, without limitation,
research, product plans, products, services, customer lists and
customers), markets, software, developments, inventions, processes,
formulas, technology, designs, drawings, engineering, hardware
configuration information, marketing, finances, employee data and any
other information relating to employees, memoranda and other materials
prepared for internal purposes, Lotus Notes and any other business
information disclosed to you by BermudaCo or its affiliates either
directly or indirectly in writing, orally or by drawings or
observation. You further understand that "CONFIDENTIAL INFORMATION"
will not include any of the foregoing items which has become publicly
known and made generally available through no wrongful act of yours or
of others who were under confidentiality obligations as to the item or
items involved.
(g) "DISABILITY" means your becoming entitled to receive
benefits under the Employer's long-term disability plan applicable to
you as may be in effect from time to time (or if there is no such plan,
your inability to perform in all material respects your duties and
responsibilities under this Agreement for a period of 6 consecutive
months or for an aggregate of 9 months in any 24 consecutive month
period by reason of a physical or mental incapacity). Any determination
regarding "DISABILITY" made by the Employer will be final and
conclusive for all purposes of this Agreement.
(h) "GOOD REASON" means (i) at any time, a material breach by
the Employer of its contractual obligations to you under this Agreement
or under any material employee benefit plan of the Employer or its
affiliates in which you participate or (ii) within 12 months following
a Change in Control, a reduction in your compensation, a material
diminution in your position and responsibilities or a relocation of
your office without your consent (resulting in a commute that would
exceed your then-current commute), in each case as compared to your
situation immediately prior to such Change in Control.
(i) "IPO" means the initial public offering of the Class A
common shares of BermudaCo.
14
(j) "PROSPECTIVE CLIENT" means any person, firm, corporation
or any other organization or entity for whom BermudaCo or its
affiliates or any of their predecessors (including, without limitation,
member firms of PwC and their affiliates) have had any negotiations or
discussions regarding the possible performance of services in the
Consulting Business within the 12-month period preceding your
termination of employment with BermudaCo and its affiliates.
18. Headings. Section headings are used herein for convenience of
reference and shall not affect the meaning of any provision of this Agreement.
19. Counterparts. This Agreement may be signed in counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Employment
Agreement to be executed and delivered on the date first above written.
PwCC LP
----------------------------------------
By:
Title:
ACCEPTED AND AGREED
Name: Xxxxxx X. X'Xxxxx
Signature:
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