Managing Director Agreement - KPMG Consulting LLC, KPMG Consulting Inc.
MANAGING DIRECTOR AGREEMENT This Agreement ("Agreement") is between KPMG Consulting, LLC ("LLC"), KPMG Consulting, Inc. ("KCI" and together with LLC, "Consulting") and __________________ ("You" and all similar references) as of _______________ (the "Effective Date"): 1. EMPLOYMENT. You accept employment on the terms of this Agreement from the Effective Date until the end of your employment with Consulting in accordance with Section 6. By signing this Agreement, you agree to: (a) devote your professional time and effort to Consulting's business and to refrain from professional practice other than on account of or for the benefit of Consulting; (b) perform any and all work assigned to you by Consulting faithfully and to the best of your ability at such times and places as Consulting designates; (c) abide by all policies of Consulting, current and future, including the Equal Employment Opportunity policy attached as Exhibit A; (d) abide by the Confidentiality and Intellectual Property Agreement attached as Exhibit B; and (e) abide by and take all requested action to support the Independence Policy and the auditor independence rules attached as Exhibit C, for as long as they apply to Consulting. You also confirm that you are not currently bound by any agreement that could prohibit or restrict you from being employed by Consulting or from performing any of your duties under this Agreement 2. COMPENSATION AND BENEFITS. As of the Effective Date, Consulting will pay you a base salary, less required and authorized withholding and deductions, payable in installments in accordance with Consulting's normal payroll practices. From time to time, Consulting may adjust your salary and other compensation in its discretion. During your employment, you will be eligible to participate in any employee compensation or benefit plans (including group medical and 401(k)), incentive award programs, and stock option plans (and, in the event of an initial public offering of Consulting common stock ("IPO"), any applicable employee stock purchase plan that Consulting may adopt) and to receive other fringe benefits that Consulting may decide to make generally available to employees in your position. Consulting may amend or discontinue any of its plans, programs, policies and procedures at any time for any or no reason with or without notice. You agree that in order to receive any stock options, you will be required to enter into a separate stock option agreement which will provide (among other things) for the termination of your stock options and a payment to KCI or its designee of some or all of your gain if you violate Sections 1(d), 3, 6(b), or Exhibit B. 3. COVENANTS. In consideration of your employment and eligibility for stock options, you agree to the following obligations which are reasonably designed to protect Consulting's legitimate business interests without unreasonably restricting your ability to earn a living after leaving Consulting. The wishes or preferences of a Client or Prospective Client (defined below) are not relevant to or admissible in any dispute under Sections 3 or 4: (a) While employed with Consulting and until the later of February 1, 2003 or 1 year after your termination or resignation, you cannot enter a relationship or venture to provide Consulting Services anywhere in the world for the benefit of an entity other than Consulting. A relationship or venture is defined as an association with (i) another management group member of Consulting (or other comparable individual), or (ii) any individual who was a management group member of Consulting (or other comparable individual) within 12 months before your termination or resignation or 12 months before you seek to perform Consulting Services with such an individual, whichever is later. (b) If your employment with Consulting terminates and you do not perform any Consulting Services whatsoever for a one year period after your termination or resignation, you may request to be released from Section 3(a) by submitting written certification of this nonperformance to Consulting's General Counsel. Consulting will release you from Section 3(a) if such certification is sufficient. (c) While employed with Consulting and for 2 years after your termination or resignation, you shall not, directly or indirectly: (i) perform, provide or assist any entity in performing or providing Consulting Services for any Client or Prospective Client; or (ii) solicit or assist any entity in soliciting any Client or Prospective Client for the purpose of performing or providing any Consulting Services. (d) While employed with Consulting and for 2 years after your termination or resignation, you shall not, directly or indirectly solicit, employ or retain (or assist another entity in doing so) any employee of Consulting or any <PAGE> 2 former employee who left Consulting within 12 months before or after your termination or resignation to perform Consulting Services with you or any person associated with you. 4. REMEDIES. In addition to any other remedies that may be available to Consulting for breach of this Agreement, you agree to the following obligations and accept the following consequences for breaching Section 3. You agree that Consulting will suffer damages as a result of your breach of Section 3 that are difficult to calculate and that the payments required by Section 4 are a reasonable forecast of the damages likely to result and are not a penalty of any kind. In particular, you agree that your total compensation is based on your value to Consulting, and that it reflects your efforts at developing and maintaining client and employee relationships on behalf of Consulting. (a) If you breach Section 3(a) on or before February 1, 2003, you will pay KCI or its designee an amount equal to 100% of the total compensation (including salary and bonus) paid or payable to you on an annualized basis by Consulting during the fiscal year in which your breach occurs. These payments will be made in not less than quarterly cash installments over the 24 months following your breach. (b) If you breach Section 3(c)(i) or (ii), you will, in addition to any payments under Sections 4(a) or 4(c), pay KCI or its designee 50% of the gross fees and other amounts paid or payable during the 3 years after the breach to you or any other entity associated with you, by any Client or Prospective Client that was solicited or provided with services in violation of Section 3(c)(i) or (ii). These payments will be made in cash within thirty days after payment by the Client or Prospective Client. (c) If you breach Section 3(d), you will, in addition to any payments under Sections 4(a) or 4(b), pay KCI or its designee 100% of the total compensation (including salary and bonus) paid or payable by Consulting to the solicited, employed or retained employee during: (i) the 12 months before your breach of Section 3(d); or (ii) in the case of a former employee, the 12 months before the employee left Consulting. These payments will be made in not less than quarterly cash installments over the 24 months following such breach. 5. CERTAIN DEFINITIONS. "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; (III) engagement in any activity that you know or should know could harm the business or reputation of Consulting; (IV) material failure to adhere to Consulting's corporate codes, policies or procedures; (V) continued failure to meet performance standards as determined by Consulting over two consecutive performance review periods; (VI) a breach or threatened breach of any provision of Sections 1(d), 3 or Exhibit B, or a material breach of any other provision of this Agreement if the breach is not cured to Consulting's satisfaction within a reasonable period after Consulting provides you with notice (to your address on Consulting's records) of the breach (no notice and cure period is required if the breach cannot be cured); or (VII) violation of any statutory, contractual, or common law duty or obligation to Consulting, including without limitation the duty of loyalty. "CLIENT" means any entity that is or was a client of Consulting (which includes any subsidiary of Consulting throughout this definition) at or within 12 months before the time you seek to solicit or perform services for such client and that, within 2 years before your termination or resignation, you: (I) performed Consulting Services for or on behalf of Consulting, or (II) had contact with, knowledge of, or access to Proprietary Information (as defined in Exhibit B) or other information concerning the client, in connection with your Consulting employment. "CONSULTING" as used throughout this Agreement includes any subsidiary of Consulting with which you become employed or associated (except as more broadly defined elsewhere in this Agreement). "CONSULTING SERVICES" means the management and information technology consulting services conducted and provided by Consulting during your employment. "PROSPECTIVE CLIENT" means any entity that is not a Client but with respect to whom, within 1 year before your termination or resignation, you: (I) conducted, prepared or submitted, or assisted in conducting, preparing or submitting, any proposal or client development or marketing efforts on behalf of Consulting (which includes any subsidiary of Consulting throughout this definition) or (II) had contact with, knowledge of, or access to Proprietary Information or other information concerning the prospective client, in connection with your Consulting employment. <PAGE> 3 6. TERMINATION AND RESIGNATION. (a) Your employment is terminable at will. Consulting may terminate your employment for Cause effective immediately upon written notice (to your address on Consulting's records). You will be entitled to earned and unpaid base salary and payment for any earned and unused personal days through the termination date (in the case of performance deficiencies, you also will receive an additional payment as provided below). Consulting also may terminate your employment other than for Cause or for no reason, effective upon written notice (to your address on Consulting's records) or any later date specified in the notice. In this case, or if Consulting terminates your employment due to deficient performance by you, you will be entitled to all earned and unpaid base salary through the termination date. Consulting will also pay you for any earned and unused personal days and an additional amount of severance pay which, when added to your personal days payment (if any), totals 6 months pay at your then current base salary. All of the payments in this Section 6(a) are less required and authorized withholding and deductions. (b) You may voluntarily terminate your employment with Consulting upon 180 days prior written notice directed to Consulting's Human Resources Department unless the Chief Executive Officer of Consulting ("CEO") waives this notice in writing. Without limiting any other remedies, if you breach this Section 6(b) before the later of (i) August 1, 2001 or (ii) 12 months after an IPO, you will pay KCI or its designee 50% of the total compensation (including salary and bonus) paid or payable to you on an annualized basis by Consulting during the fiscal year in which your breach occurs. These payments will be made in not less than quarterly cash installments over the 24 months following your breach. (c) You agree to provide all assistance requested by Consulting in transitioning your duties, responsibilities and client and other Consulting relationships to other Consulting personnel, both during your employment and after your termination or resignation. 7. ARBITRATION. All disputes between you and Consulting (which includes any subsidiary of Consulting throughout this Section 7) shall be resolved by arbitration in New York or Virginia at the election of Consulting. Arbitrable disputes include without limitation employment and employment termination claims and claims by you for employment discrimination, harassment, retaliation, wrongful termination, or violations under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans With Disabilities Act, the Family and Medical Leave Act, or the Employee Retirement Income Security Act, under any other federal, state, foreign or local law, regulation, ordinance, executive order, constitution, or under common law. Arbitrations shall take place before a panel of three arbitrators which shall consist of one person selected by each of the two sides to the dispute and the third person jointly selected by the other two arbitrators. The arbitration panel shall have no authority to modify this Agreement (except pursuant to Section 12) or to award punitive or exemplary damages. Consulting may, without waiving its right to compel arbitration, and without securing or posting any bond, seek injunctive or other provisional relief from a court of competent jurisdiction in aid of arbitration, to prevent any arbitration award from being rendered ineffectual, to protect Consulting's confidential information or intellectual property or for any other purpose in the interests of Consulting. The courts of New York or Virginia or any court of competent jurisdiction in any other state will have jurisdiction over any proceeding relating to arbitrations, and may enter judgment on any arbitration award rendered or grant judicial recognition of the award or an order of enforcement. You agree to reimburse Consulting upon demand for any and all costs (including, without limitation, attorneys' fees and court costs) incurred by Consulting in enforcing any of its rights under this Agreement. 8. SURVIVAL. Sections 1(d), 1(e), 2 through 14, and Exhibits B and C shall survive any termination of this Agreement or your employment (including your resignation). This Agreement shall continue despite any liquidation or dissolution of LLC. 9. ENTIRE AGREEMENT. This Agreement is the entire agreement between you and Consulting regarding these matters and supersedes any verbal and written agreements on such matters. In the event of a conflict between the main body of this Agreement and the Exhibits, the main body of the Agreement shall control. This Agreement may be modified only by written agreement signed by you and the CEO or his or her designee. All Section headings are for convenience only and do not modify or restrict any of this Agreement's terms. 10. CHOICE OF LAW. This Agreement shall be governed by New York state law. You and Consulting consent to the jurisdiction and venue of any state or federal court in the State of Virginia or the Borough of Manhattan, New York, <PAGE> 4 New York and agree that any permitted lawsuit may be brought to such courts or other court of competent jurisdiction. Each party hereby waives, releases and agrees not to assert, and agrees to cause its affiliates to waive, release and not assert, any rights such party or its affiliates may have under any foreign law or regulation that would be inconsistent with the terms of this Agreement as governed by New York law. 11. WAIVER. Any party's waiver of any other party's breach of any provision of this Agreement shall not waive any other right or any future breaches of the same or any other provision. The CEO may, in his or her sole discretion, waive any of the provisions of Sections 1(d), 3, 4, 6, or Exhibit B. 12. SEVERABILITY. If any provision of this Agreement is held invalid or unenforceable for any reason, the invalidity shall not nullify the validity of the remaining provisions of this Agreement. If any provision of this Agreement is determined by a court or arbitration panel to be overly broad in duration, geographical coverage or scope, or unenforceable for any other reason, such provision will be narrowed so that it will be enforced as much as permitted by law. 13. ASSIGNMENT AND BENEFICIARIES. This Agreement only benefits and is binding on the parties and their respective affiliates, successors and permitted assigns (to include KPMG LLP to the extent provided in this Agreement) provided that you may not assign your rights or duties under this Agreement without the express prior written consent with the other parties. KCI/LLC/KPMG LLP each may assign any rights or duties that it has, in whole or in part, to either of the other entities or their affiliates and subsidiaries without your consent. 14. COUNTERPARTS. For convenience of the parties, this Agreement may be executed in one or more counterparts, each of which shall be deemed an original for all purposes. THE PARTIES STATE THAT THEY HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THIS AGREEMENT AND THAT THEY HAVE HAD THE OPPORTUNITY TO SEEK THE ADVICE OF LEGAL COUNSEL BEFORE SIGNING IT AND HAVE EITHER SOUGHT SUCH COUNSEL OR HAVE VOLUNTARILY DECIDED NOT TO DO SO: KPMG CONSULTING, INC. and LLC EMPLOYEE By: ------------------------------ ------------------------------- (Signature) Title: --------------------------- ------------------------------- (Print Employee's Full Name) Dated: --------------------------- ------------------------------- (Employee's ID) Dated: ------------------------