Member Agreement for KPMG Consulting Non-Eligible Employees - KPMG Consulting LLC, KPMG Consulting Inc. and KPMG LLP
MEMBER AGREEMENT
BY AND AMONG
KPMG CONSULTING, LLC,
KPMG CONSULTING, INC.,
KPMG LLP
AND
THE INDIVIDUAL LISTED ON
THE SIGNATURE PAGE HERETO
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TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS AND INTERPRETATIONS.....................................................2
Section 1.1. Definitions...........................................................2
Section 1.2. Rules of Construction.................................................6
ARTICLE II
AUDITOR INDEPENDENCE................................................................6
Section 2.1. Independence Requirement..............................................7
ARTICLE III
AGREEMENT TO WITHDRAW...............................................................7
Section 3.1. Withdrawal............................................................7
Section 3.2. Consequences of Withdrawal............................................7
Section 3.3. Severance.............................................................7
Section 3.4. Release...............................................................8
Section 3.5. Policies and Procedures...............................................9
ARTICLE IV
POWER OF ATTORNEY...................................................................9
Section 4.1. Power of Attorney.....................................................9
ARTICLE V
ADDITIONAL AGREEMENTS..............................................................10
Section 5.1. Non-Competition and Non-Solicitation of Personnel....................10
Section 5.2. Application..........................................................11
Section 5.3. Remedy for Breach....................................................11
Section 5.4. Proprietary Information..............................................13
Section 5.5. Inventions...........................................................13
Section 5.6. Termination..........................................................15
Section 5.7. Waiver...............................................................16
Section 5.8. No Employment Agreement..............................................16
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ARTICLE VI
ARBITRATION........................................................................16
Section 6.1. Arbitration..........................................................16
Section 6.2. Reimbursement........................................................17
ARTICLE VII
MISCELLANEOUS......................................................................18
Section 7.1. Survival.............................................................18
Section 7.2. Entire Agreement.....................................................18
Section 7.3. Choice of Law........................................................18
Section 7.4. Amendment; Waiver....................................................18
Section 7.5. Severability.........................................................18
Section 7.6. Counterparts; Signatures.............................................19
Section 7.7. Beneficiaries........................................................19
Section 7.8. Notices..............................................................19
Section 7.9. Schedules............................................................20
Section 7.10. Assignability.......................................................20
Section 7.11. Specific Performance................................................20
Section 7.12. Legal Counsel.......................................................21
Schedules
Schedule 5.5 - California Code
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MEMBER AGREEMENT
MEMBER AGREEMENT (this "Agreement"), effective as of the
Effective Date (as hereinafter defined), by and among KPMG Consulting, Inc., a
Delaware corporation ("Consulting, Inc."), KPMG Consulting, LLC, a Delaware
limited liability company ("LLC" and collectively with Consulting, Inc.,
"Consulting"), KPMG LLP, a Delaware limited liability partnership ("KPMG"), and
the individual named on the signature page hereto (the "Employee").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Board of Directors of KPMG has determined that it
would be advisable and in the best interests of KPMG and its principals and
partners for KPMG to separate its Consulting Business (as hereinafter defined)
from its other businesses so that from and after the Effective Date the
Consulting Business will be held indirectly by Consulting, Inc. through its
Subsidiaries (the "Separation") and in connection therewith for Consulting, Inc.
to sell shares of its common stock, par value $.01 per share (the "Consulting
Common Stock"), or its preferred stock to one or more strategic investors (the
"Private Placement");
WHEREAS, KPMG has agreed to contribute, and cause to be
contributed, to LLC (i) certain of the operating assets, properties and
liabilities related to the Consulting Business held by KPMG and certain
Subsidiaries of KPMG, (ii) the partners, principals and employees of KPMG
related to the Consulting Business, including the Employee, and (iii) all of the
issued and outstanding shares of capital stock and other equity interests owned
by KPMG in certain of KPMG's Subsidiaries and other entities in and through
which the Consulting Business is conducted (the "Contribution");
WHEREAS, in connection with the Contribution, (i) Consulting
or one or more of its Subsidiaries will assume certain liabilities and
obligations arising out of or relating to the Consulting Business, (ii) LLC will
issue Membership Units (as hereinafter defined) of LLC to KPMG and to certain
partners and principals of KPMG, other than the Employee, and (iii) KPMG will
make a memorandum entry on the capital account of certain partners and
principals of KPMG, other than the Employee;
WHEREAS, each partner and principal of KPMG who receives
Membership Units will exchange each such Membership Unit for one share of
Consulting Common Stock, and KPMG has agreed to exchange all Membership Units
held by it (except approximately one-half of one percent of the total
outstanding Membership Units) for Consulting Common Stock and one or more notes
issued by Consulting (the" Exchange");
WHEREAS, the Employee was, prior to the Separation and
Exchange, a partner or principal of KPMG and, concurrent with the Contribution,
Separation and Exchange, will become an employee of Consulting; and
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WHEREAS, the Employee, KPMG, LLC and Consulting, Inc. have
determined that it is in the mutual best interests of each of them to set forth
certain agreements and understandings among them.
NOW, THEREFORE, in consideration of the mutual undertakings
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Employee, KPMG, Consulting
Inc. and LLC agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATIONS
SECTION 1.1. DEFINITIONS. As used in this Agreement, the
following terms shall have the meanings set forth below.
"AFFILIATE" means any Person controlling, controlled by, or
under direct or indirect common control with a Party hereto, it being understood
that KPMG International, KPMG Americas and other KPMG International member
(either directly or indirectly as a subsidiary of a member), licensee or
sublicensee firms are not Affiliates of the Parties hereto. It is further
understood that, for the purpose of this definition, after the Separation,
Consulting and its Subsidiaries shall not be deemed Affiliates of KPMG. For the
purpose of this definition, the term "control" means the power to direct the
management of an entity, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"AGREEMENT" has the meaning specified in the Preamble.
"AUDITOR INDEPENDENCE RULES" means the auditor independence
rules, as defined or interpreted by the American Institute of Certified Public
Accountants, the Securities and Exchange Commission, the ISB, the state boards
of accountancy and any other regulatory authority exercising competent
jurisdiction over KPMG, as the same may be amended from time to time.
"CHIEF EXECUTIVE OFFICER" means the Chief Executive Officer or
Co-Chief Executive Officer of Consulting, Inc.
"CISCO" has the meaning specified in Section 5.1.
"CISCO ALLIANCE" has the meaning specified in Section 5.1.
"CLIENT" means any individual, person, firm or other entity
that is a client of Consulting or any of its Subsidiaries at the time, in each
case, the Employee seeks to solicit or perform services for such client as a
former employee of Consulting or any of its Subsidiaries or
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was a client of Consulting or any of its Subsidiaries (or,
prior to the Separation, a client of KPMG) within twelve (12) months prior to
such time and with respect to whom, the Employee: (i) performed Consulting
Services on behalf of Consulting or any of its Subsidiaries (or, prior to the
Separation, KPMG), or (ii) had substantial contact or acquired or had access to
Proprietary Information or other substantial information as a result of or in
connection with the Employee's employment with Consulting or any of its
Subsidiaries (or, prior to the Separation, as a result of or in connection with
the Employee's association with KPMG) each at any time during the two (2) year
period preceding the date on which the Employee's employment with Consulting or
any of its Subsidiaries terminates for any or no reason.
"CONSULTING" has the meaning specified in the Preamble (except
as otherwise specifically defined in particular provisions of this Agreement).
"CONSULTING BUSINESS" means, for purposes of this Agreement
only, the management and information technology consulting business as conducted
by Consulting or any of its Subsidiaries from time to time.
"CONSULTING, INC." has the meaning specified in the Preamble.
"CONSULTING COMMON STOCK" has the meaning specified in the
Recitals.
"CONSULTING SERVICES" means the Consulting Business services
provided by (a) Consulting or (b) any Subsidiary of Consulting with which the
Employee becomes employed or otherwise associated, either (i) as of the date
hereof, (ii) during the Employee's employment with Consulting, and (iii) as of
any date on which the Employee's employment with Consulting terminates for any
or no reason.
"CONTRIBUTION" has the meaning specified in the Recitals.
"DISPUTES" has the meaning specified in Section 6.1.
"EFFECTIVE DATE" means the close of business on the date on
which the closing of the Separation, Contribution and Exchange occur.
"EFFECTIVE TIME" means the time on the Effective Date at which
the closing of the Separation shall occur.
"EXCHANGE" has the meaning specified in the Recitals.
"INDEPENDENCE CONFLICT" has the meaning specified in Section
2.1.
"ISB" means the Independence Standards Board.
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"IPO" means an initial public offering of Consulting Common
Stock pursuant to an effective registration statement under the Securities Act.
"KPMG" has the meaning specified in the Preamble.
"KPMG PARTNERSHIP AGREEMENT" means the Partnership Agreement
of KPMG as currently in force or as may be amended from time to time.
"KPMG PLANS AND POLICIES" has the meaning specified in Section
3.5(b).
"MEMBERSHIP UNITS" means Membership Units in LLC representing
an equity interest of a member in the LLC.
"NOTIFICATION" means all notices permitted or required to be
given to any Person hereunder.
"PARTY" means KPMG, Consulting, Inc., LLC or the Employee.
"PERSON" shall mean an individual, corporation, partnership,
limited liability company, unincorporated syndicate, unincorporated
organization, entity, trust, trustee, executor, administrator or other legal
representative, governmental authority or agency, or any group of Persons acting
in concert.
"PRIVATE PLACEMENT" has the meaning specified in the recitals.
"PROPRIETARY INFORMATION" means all information or material
disclosed to or known by the Employee as a consequence of the Employee's
employment or engagement by Consulting, any of its Subsidiaries or KPMG,
including, without limitation, third party information that Consulting, any of
its Subsidiaries or KPMG treats as confidential and any information disclosed to
or developed by the Employee or embodied in or relating to the Works.
Proprietary Information includes, but is not limited to, the following types of
information and other information of a similar nature (whether or not reduced to
writing): discoveries, ideas, inventions, concepts, software in various states
of development and related documentation, designs, drawings, specifications,
techniques, methodologies, models, data, source code, object code,
documentation, diagrams, flow charts, research, development, processes, training
materials, templates, procedures, "know-how," tools, client identities, client
accounts, web design needs, client advertising needs and history, client
reports, client proposals, product information and reports, accounts, billing
methods, pricing, data, sources of supply, business methods, production or
merchandising systems or plans, marketing, sales and business strategies and
plans, finances, operations, and information regarding employees.
Notwithstanding the foregoing, information publicly known that is generally
employed by the trade at or after the time Employee first learns of such
information (other than as a result of the Employee's breach of this Agreement),
shall not be deemed part of the Proprietary Information.
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"PROSPECTIVE CLIENT" means any individual, person, firm or
other entity that is not a Client but with respect to whom, the Employee: (i)
conducted, prepared or submitted, or assisted in conducting, preparing or
submitting, any proposal or client development or marketing efforts on behalf of
Consulting, any of its Subsidiaries or, prior to the Separation, KPMG, or (ii)
had substantial contact or acquired or had access to Proprietary Information or
other substantial information as a result of or in connection with the
Employee's employment with Consulting or any of its Subsidiaries (or, prior to
the Separation, as a result of or in connection with the Employee's association
with KPMG) each at any time during the one (1) year period preceding the date on
which the Employee's employment with Consulting or any of its Subsidiaries
terminates for any or no reason.
"RELEASED PARTIES" means (i) KPMG and its past, present, and
future parents, divisions, subsidiaries, partnerships, affiliates, benefit plans
and other related entities (whether or not such entities are wholly owned); (ii)
the past, present, and future owners, trustees, fiduciaries, administrators,
shareholders, directors, officers, partners, principals, members, agents,
representatives, employees, and attorneys of each entity listed in (i); and
(iii) the predecessors, successors, and assigns of each entity listed in (i) and
(ii).
"SEPARATION" has the meaning specified in the Recitals.
"SUBSIDIARY" means, when used with reference to any Party, any
corporation, partnership, limited liability company, or other entity, a majority
of the outstanding voting power of which is owned directly or indirectly by such
Party, provided, however, that for purposes of this definition, after the
Separation, neither Consulting nor any of its Subsidiaries (including any
Subsidiaries transferred pursuant to the Separation) shall be deemed
Subsidiaries of KPMG.
"WORKS" means (i) any inventions, trade secrets, ideas or
original works of authorship that the Employee conceives, develops, discovers or
makes in whole or in part during the Employee's employment or engagement by
Consulting or any of its Subsidiaries, or which the Employee conceived,
developed, discovered or made in whole or in part during the Employee's
relationship with KPMG which relate to the business of Consulting or any of its
Subsidiaries or Consulting's or any of its Subsidiaries' actual or demonstrably
anticipated research or development, (ii) any inventions, trade secrets, ideas
or original works of authorship that the Employee conceives, develops, discovers
or makes in whole or in part during or after the Employee's employment or
engagement by Consulting or any of its Subsidiaries, or conceived, developed,
discovered or made in whole or in part during Employee's relationship with KPMG,
either of which are made through the use of any of Consulting's, any of its
Subsidiaries' or KPMG's equipment, facilities, supplies, trade secrets or time,
or which result from any work the Employee performs or performed for Consulting,
any of its Subsidiaries or KPMG, and (iii) any part or aspect of any of the
foregoing.
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SECTION 1.2. RULES OF CONSTRUCTION.
(a) In this Agreement, unless a clear contrary intention
appears:
(i) the singular number includes the plural number and vice
versa;
(ii) a reference to any Person includes such Person's
successors and assigns but, if applicable, only if such successors and assigns
are permitted by this Agreement;
(iii) a reference to any gender includes the other gender;
(iv) a reference to any Section or Schedule means such
Section of this Agreement or Schedule to this Agreement, as the case may be, and
references in any Section or definition to any clause means such clause of such
Section or definition;
(v) "herein," "hereunder," "hereof, " "hereto" and words of
similar import shall be deemed references to this Agreement as a whole and not
to any particular Section or other provision hereof or thereof;
(vi) "including" (and with correlative meaning "include")
means including without limiting the generality of any description preceding
such term;
(vii) relative to the determination of any period of time,
"from" means "from and including," "to" means "to but excluding" and "through"
means "through and including";
(viii) accounting terms used herein shall have the meanings
historically attributed to them by KPMG and its Subsidiaries prior to the
Separation;
(ix) in the event of any conflict between the provisions of
the body of this Agreement and the Schedules hereto, the provisions of the body
of this Agreement shall control; and
(x) the headings contained in this Agreement have been
inserted for convenience of reference only and are not to be used in construing
this Agreement.
(b) The Schedules to this Agreement may be amended prior to
the Effective Date upon the mutual consent of the Parties.
(c) Any rule of construction or interpretation otherwise
requiring this Agreement to be construed or interpreted against either Party
shall not apply to any construction or interpretation hereof.
ARTICLE II
AUDITOR INDEPENDENCE
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SECTION 2.1. INDEPENDENCE REQUIREMENT. The Employee
acknowledges that Consulting is, and for an indefinite period of time after the
Separation may continue to be, subject to the Auditor Independence Rules. The
Employee agrees to abide at all times (including after any termination of
employment with Consulting) by the Auditor Independence Rules applicable to KPMG
and to take any and all action requested by the Board of Directors of KPMG in
connection with such Auditor Independence Rules. The Employee agrees and
understands that the breach of the covenant in the immediately preceding
sentence may impair the independence of KPMG (an "Independence Conflict").
ARTICLE III
AGREEMENT TO WITHDRAW
SECTION 3.1. WITHDRAWAL. The Employee agrees that, effective
as of the Effective Date, this Agreement will serve as written notice pursuant
to Section 10.1 of the KPMG Partnership Agreement of the Employee's voluntary
withdrawal from KPMG. The Employee acknowledges that pursuant to the Separation
Agreement, KPMG has agreed to waive the enforcement of the requirement pursuant
to Section 10.1 of the KPMG Partnership Agreement that the Employee provide
notice one hundred eighty (180) days prior to the effectiveness of such
resignation and consequently that such withdrawal will be effective immediately
as of the Effective Date; provided that (i) the Employee commences employment
with Consulting or any of its Subsidiaries and (ii) the Employee complies with
the Employee's obligations hereunder, including, but not limited to, those set
forth in Section 5.6.
SECTION 3.2. CONSEQUENCES OF WITHDRAWAL.
(a) The Employee acknowledges that upon such withdrawal, (i)
the Employee will forfeit his or her right to vote on matters affecting KPMG;
(ii) KPMG will terminate with respect to the Employee; (iii) the Employee will
no longer be a partner or principal of KPMG; and (iv) except as specifically
provided in the KPMG Partnership Agreement or in the By-Laws of KPMG, the
Employee will not be entitled to any further rights under the KPMG Partnership
Agreement or By-Laws.
(b) Notwithstanding any provision herein to the contrary, the
Employee shall receive the distributions provided for in Section 11 of the KPMG
Partnership Agreement.
(c) The Employee further acknowledges that KPMG has agreed,
pursuant to Section 6.12 of the Separation Agreement, to waive a breach of
Section 12 of the KPMG Partnership Agreement in the event that, and only to the
extent that, (i) such breach is also a breach of the covenants of the Employee
set forth in Article V of this Agreement and (ii) Consulting or any of its
Subsidiaries pursues its remedies under Article V of this Agreement.
SECTION 3.3. SEVERANCE. The Employee agrees and acknowledges
that the Employee is not entitled to any severance payments from KPMG,
Consulting or otherwise in connection with the Employee's withdrawal from KPMG
or acceptance of employment with Consulting or any Subsidiary of Consulting,
under any provision of the KPMG Partnership Agreement, common law, contract or
otherwise.
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SECTION 3.4. RELEASE.
(a) The Employee and anyone else claiming by or through the
Employee agree not to sue and further agree to release KPMG and the other
Released Parties with respect to any and all claims, whether currently known or
unknown, that the Employee now has, has ever had, or may ever have, against KPMG
or any of the other Released Parties arising from or related to the Employee's
association with KPMG, compensation, benefits, other terms and conditions of
association with KPMG, or the termination of such association, including,
without limitation, any such claims that were or could have been asserted by the
Employee or on the Employee's behalf: (x) in any federal, state, or local court,
commission, or agency; (y) under any common law theory; or (z) under any
employment, contract, tort, federal, state, or local law, regulation, ordinance,
constitution or executive order.
Notwithstanding the foregoing, nothing herein shall affect:
(I) any rights to indemnification that the Employee may have under the KPMG
Partnership Agreement, the KPMG Bylaws, or otherwise, or (II) any vested rights
that the Employee may have under the Retirement Allowance Plan (as amended),
under the Supplemental Retirement Allowance Plan (as amended), or under any
other plan or policy providing retirement benefits to the Employee. The Employee
represents and warrants that: the Employee is the sole owner of the actual or
alleged claims, demands, rights, causes of action, and other matters that are
released in Sections 3.4(a) and (b); the same have not been transferred or
assigned or caused to be transferred or assigned to any other person, firm,
corporation or other legal entity; and the Employee has the full right and power
to grant, execute, and deliver the releases, undertakings, and agreements
contained in this Agreement.
(b) In the event that the Employee is or has been associated
with KPMG in the State of California, the Employee has read and understands the
following language contained in Section 1542 of the California Civil Code:
A general release does not extend to claims which the
creditor does not know or suspect to exist in his
favor at the time of executing the release, which if
known by him must have materially affected his
settlement with the debtor.
Having reviewed this provision, the Employee nevertheless hereby voluntarily
waives any and all rights under this statutory provision and releases KPMG and
each of the other Released Parties with respect to any and all unknown or
unsuspected claims arising from or related to the Employee's association with
KPMG, compensation, benefits, other terms and conditions of association with
KPMG, or the termination of such association, including, without limitation, all
such claims that were or could have been asserted by the Employee or on the
Employee's behalf: (x) in any federal, state, or local court, commission, or
agency; (y) under any common law theory; or (z) under any employment, contract,
tort, federal, state or local law, regulation, ordinance, constitution or
executive order.
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SECTION 3.5. POLICIES AND PROCEDURES.
(a) The Employee acknowledges, understands and agrees that,
effective upon the date of the Separation, the Employee shall be covered by and
shall be eligible to participate in such employee benefit and other plans,
policies and procedures of Consulting and its Subsidiaries (including without
limitation all plans, policies and procedures concerning or relating to
retirement benefits, medical and dental coverage, and life insurance) as
Consulting and its Subsidiaries may make available generally to their employees
(collectively, "Consulting Plans and Policies"), subject to all terms and
conditions of such Consulting Plans and Policies (as in effect or amended from
time to time). Consulting and its Subsidiaries reserve the right in their sole
discretion to alter, suspend, amend or discontinue any and all Consulting Plans
and Policies, in whole or in part, at any time for any or no reason with or
without notice.
(b) The Employee acknowledges, understands and agrees that,
except as provided below in this Section, any and all benefit and other plans,
policies and procedures of KPMG and its Subsidiaries (including without
limitation all plans, policies and procedures concerning or relating to
retirement benefits, medical and dental coverage, and life insurance)
(collectively, "KPMG Plans and Policies") that applied to the Employee during
the Employee's association with KPMG shall no longer apply to the Employee
effective upon the Effective Date, provided that any KPMG Plans and Policies
that by their terms provide for continued application to the Employee after the
termination of the Employee's association with KPMG shall continue to apply to
the Employee in accordance with the terms and conditions of such KPMG Plans and
Policies (as in effect or amended from time to time), and provided further that
the Employee's participation (if any) in and rights (if any) under any KPMG
Plans and Policies concerning retirement, medical or other benefits shall be
determined in accordance with the terms and conditions of such KPMG Plans and
Policies. KPMG reserves the right in its sole discretion to alter, suspend,
amend, or discontinue any and all KPMG Plans and Policies, in whole or in part,
at any time for any or no reason with or without notice.
(c) Notwithstanding anything to the contrary in the foregoing,
and except as provided in Section 3.2(c), nothing in this Section 3.5 shall or
shall be construed to restrict, limit or otherwise affect any rights that
Consulting or KPMG or their Affiliates may have or any obligations that the
Employee may have under any provision of the KPMG Partnership Agreement, the
By-Laws of KPMG or otherwise, it being understood and agreed that the provisions
of the KPMG Partnership Agreement and the By-Laws of KPMG (as in effect or
amended from time to time) shall continue in full force and effect in accordance
with their terms.
ARTICLE IV
POWER OF ATTORNEY
SECTION 4.1. POWER OF ATTORNEY. The Employee hereby appoints
the Chief Executive Officer as the Employee's attorney-in-fact for the purpose
of executing, swearing to, acknowledging and delivering any and all
certificates, agreements, documents and other instruments as may be necessary,
appropriate or advisable in the sole judgment of such Chief Executive Officer in
furtherance of the Separation, the Contribution, the IPO and compliance with the
Auditor Independence Rules including, but not limited to, the agreements and
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instruments contemplated by Article II. This power of attorney is irrevocable
and coupled with an interest. On the request of the Chief Executive Officer, the
Employee shall confirm his or her grant of this power of attorney or any use
thereof by the Chief Executive Officer and shall execute, swear to, acknowledge
and deliver any such certificate, agreement, document or other instrument
related thereto. The Employee hereby grants unto such attorney-in-fact full
power of substitution, delegation and revocation.
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.1. NON-COMPETITION AND NON-SOLICITATION OF
PERSONNEL. The Employee acknowledges, understands and agrees that the
extraordinary transactions contemplated by the Separation, the Private
Placement, the associated alliance (the "Cisco Alliance") of Consulting with
Cisco Systems, Inc. ("Cisco"), and the anticipated IPO present KPMG, Consulting
(which term shall include throughout the remainder of this Article V, except to
the extent specifically provided otherwise herein, the Subsidiaries of
Consulting with which the Employee becomes employed or otherwise associated) and
the Employee with a unique and unprecedented opportunity to receive significant
benefits and value that will materially and substantially benefit KPMG,
Consulting, the Employee, and the other employees of Consulting, which benefits
and value include, without limitation, the enhancement of Consulting's overall
competitive position and the establishment of a significant compensation
structure. The Employee further acknowledges, understands and agrees that the
full realization of these enhanced benefits and value critically depends on
continued cooperation and mutual reliance among the Employee and the other
employees of Consulting in pursuit of Consulting's competitive objectives
following the Separation, the Private Placement, the Cisco Alliance and the
anticipated IPO, including after the end of the Employee's association with
Consulting. The Employee further acknowledges, understands and agrees that,
during the Employee's employment and as a result of the Separation, the Employee
will have access to and will develop relationships with clients and employees
and other agents of Consulting, and that Consulting's relationships with its
clients, employees and other agents are extremely valuable assets in which
Consulting will continue to invest substantial time, effort and expense.
Accordingly, the Employee acknowledges, understands and agrees that the Employee
bears an enhanced duty of the utmost loyalty to Consulting and to the other
employees of Consulting (each of whom is assuming an identical duty that will
inure to the Employee's benefit), which duty includes, without limitation, a
responsibility to act only in furtherance of, and not contrary to, Consulting's
business objectives upon which the Separation, the Private Placement, the Cisco
Alliance and the anticipated IPO are premised. In furtherance of these
objectives and this enhanced duty, the Employee also agrees to undertake the
obligations in this Article V which the Employee acknowledges are reasonably
designed to protect the legitimate business interests of Consulting and the
benefits, value and opportunity accruing to Consulting, the Employee, and
Consulting's other employees as a result of the Separation, the Private
Placement, the Cisco Alliance and the anticipated IPO, without unreasonably or
unnecessarily restricting the Employee's remunerative opportunities should the
Employee leave Consulting:
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(a) Except in furtherance of the Employee's services for
Consulting, the Employee shall not, during the Employee's employment with
Consulting and for two (2) years after the date on which the Employee's
employment with Consulting terminates for any or no reason (including, without
limitation, voluntary resignation by the Employee or termination at the request
of Consulting), directly or indirectly (whether as a sole proprietor, owner,
employer, partner, principal, investor, joint venturer, shareholder, associate,
employee, member, consultant, or otherwise): (i) perform or provide or assist
any other individual, person, firm or other entity in performing or providing
Consulting Services for any Client or Prospective Client; or (ii) solicit or
assist any other individual, person, firm or other entity in soliciting any
Client or Prospective Client for the purpose of performing or providing any
Consulting Services.
(b) Except in furtherance of the Employee's services for
Consulting, the Employee shall not, during the Employee's employment with
Consulting and for two (2) years after the date on which the Employee's
employment with Consulting terminates for any or no reason (including, without
limitation, voluntary resignation by the Employee or termination at the request
of Consulting), directly or indirectly (whether as a sole proprietor, owner,
employer, partner, investor, principal, joint venturer, shareholder, associate,
employee, member, consultant, or otherwise) solicit, employ or retain, or assist
any other individual, person, firm or other entity in soliciting, employing or
retaining, any employee or other agent of Consulting (including, without
limitation, any former employee or other agent who separated from Consulting
(or, prior to the Separation, any partner, principal or employee of KPMG) within
a twelve (12) month period before or after the date on which the undersigned
Employee's employment with Consulting terminates) to perform Consulting Services
for or on behalf of, or in affiliation in any manner with, the Employee or any
individual, person, firm or other entity with which the Employee is or becomes
employed, retained or otherwise associated.
SECTION 5.2. APPLICATION. In applying this Article V, the
wishes or preferences of a Client or Prospective Client as to who shall perform
its Consulting Services, or the fact that the Client or Prospective Client may
also be a client of a third party with whom the Employee is or becomes
associated, shall neither be relevant nor admissible as evidence in any dispute
arising under this Article V.
SECTION 5.3. REMEDY FOR BREACH. In addition to and without in
any way limiting any remedies at law or in equity that may be available to
Consulting for any breach of this Agreement (including, without limitation, any
remedies under Section 6.1(e) or 7.11 of this Agreement), and without in any way
precluding or being construed to preclude Consulting from making a showing of
irreparable injury or any other element that may be necessary to secure
injunctive relief, the Employee agrees to undertake the following obligations
and accept the following consequences in the event that the Employee breaches
Sections 5.1(a) or 5.1(b):
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(a) In the event of a breach of Section 5.1(a), the Employee
shall, in addition to and without limiting any payments required under Section
5.3(b), pay to Consulting, Inc. (it being understood and agreed that the
Employee shall deliver any amounts payable pursuant to this Section 5.3 to
Consulting, Inc. and not to any of its Subsidiaries, and it being further
understood that Consulting, Inc. shall take responsibility for apportioning any
amounts paid hereunder among itself, LLC and their respective Subsidiaries as
may be appropriate under the circumstances) an amount in cash equal to fifty
percent (50%) of the gross fees and other amounts paid or payable during the
three (3) year period following such breach to the Employee, or to any other
individual, person, firm or other entity with which the Employee is or becomes
directly or indirectly employed, retained or otherwise associated at the time of
any breach, by any Client or Prospective Client that was solicited or provided
with services in violation of Section 5.1(a). Payments to Consulting, Inc.
pursuant to this Section 5.3(a) shall be due within thirty (30) days after any
payment of fees or other amounts is made by the Client or Prospective Client.
The Employee acknowledges, understands and agrees that Consulting will suffer
damages as a result of the Employee's breach of Section 5.1(a) that are
difficult to calculate, and that the payment required by this Section 5.3(a) is
a reasonable forecast of the damages likely to result from such breach.
(b) In the event of a breach of Section 5.1(b), the Employee
shall, in addition to and without limiting any payments required under Section
5.3(a), pay Consulting, Inc. an amount in cash equal to one hundred percent
(100%) of the compensation (including, without limitation, base salary, any
other base pay and incentive compensation) paid or payable by Consulting (which
includes, for purposes of this calculation, any such compensation paid or
payable by KPMG during the relevant twelve (12) month period described in this
Section 5.3(b)) to the solicited, employed or retained employee or other agent
during:
(i) The twelve (12) month period preceding the breaching
Employee's breach of Section 5.1(b); or
(ii) In the case of a solicited, employed or retained employee
or agent who neither was a current employee or agent of Consulting nor
was associated with KPMG at the time of the Employee's breach, the
twelve (12) month period preceding the later of the employee's or
agent's (I) termination from employment with Consulting for any or no
reason, or (II) separation from KPMG for any or no reason.
Payments to Consulting, Inc. pursuant to this Section 5.3(b) shall be made
ratably in quarterly installments over the twenty-four (24) month period
following such breach. The Employee acknowledges, understands and agrees that
Consulting will suffer damages as a result of the Employee's breach of Section
5.1(b) that are difficult to calculate, and that the payment required by this
Section 5.3(b) is a reasonable forecast of the damages likely to result from
such breach.
(c) The Employee acknowledges, understands and agrees that the
payment obligations and other provisions set forth in this Section 5.3 are not,
and are not intended to be, a penalty of any kind.
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SECTION 5.4. PROPRIETARY INFORMATION.
(a) The Employee acknowledges, understands and agrees that the
successful marketing, development and rendering of Consulting's professional
services and products require substantial time and expense. Such efforts
generate for Consulting valuable and proprietary information and materials that
give Consulting a business advantage over others who do not have such
information.
(b) The Employee will, both during the Employee's work for
Consulting and thereafter, hold in confidence and not directly or indirectly
reveal, report, publish, disclose or transfer any of the Proprietary Information
to any person or entity, or utilize any of the Proprietary Information for any
purpose, except in the course of the Employee's work for Consulting for
Consulting's sole benefit. In addition, the Employee will not remove, reproduce,
summarize or copy any Proprietary Information except as expressly required by
Consulting to enable the Employee to perform the Employee's duties, and the
Employee will return immediately to Consulting all Proprietary Information in
the Employee's possession or control, including duplicates, when the Employee
leaves his or her employment or whenever Consulting may otherwise require that
such Proprietary Information be returned.
(c) The Employee will not knowingly use for the benefit of, or
disclose to any person employed by, Consulting confidential information of any
of the Employee's former employers or of any other third party or otherwise
knowingly infringe any proprietary right of any third party. The Employee
represents and warrants that no contract, agreement or other obligation between
or among the Employee and any third party will interfere in any manner with the
Employee's complete performance of the Employee's duties to Consulting or with
the Employee's compliance with the terms and conditions hereof.
(d) The Employee understands that this Article V is effective
as of the commencement of the Employee's employment with Consulting (or
relationship with KPMG, as the case may be) or, if earlier, the date the
Employee first acquired knowledge of any Proprietary Information.
SECTION 5.5. INVENTIONS.
(a) All Works shall belong exclusively to Consulting whether
or not fixed in a tangible medium of expression. Without limiting the foregoing,
to the maximum extent permitted under applicable law, all Works shall be deemed
to be "works made for hire" under the United States Copyright Act, and
Consulting shall be deemed to be the author thereof.
(b) If and to the extent any Works are determined not to
constitute "works made for hire," or if any rights in the Works do not accrue to
Consulting as a work made for hire, the Employee hereby irrevocably assigns and
transfers to Consulting to the maximum extent permitted by law all right, title
and interest in the Works, including all copyrights, patents, trade secret
rights, and other proprietary rights in or relating to the Works. Without
limiting the foregoing, the Employee hereby irrevocably assigns and transfers to
Consulting all economic rights to the Works, including the rights to reproduce,
manufacture, use, adapt, modify, publish,
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<PAGE> 17
distribute, sublicense, publicly perform and communicate, translate, lease,
import and otherwise exploit the Works.
(c) The Employee shall have no right to exercise any economic
rights to the Works. Without limiting the foregoing, the Employee will not have
the right to and will not reproduce, adapt, modify, publish, distribute,
sublicense, publicly perform or communicate, translate, lease, import or
otherwise exploit the Works, except as expressly authorized by Consulting.
(d) The Employee expressly acknowledges and agrees that the
Employee wishes to remain anonymous and not to have the Employee's name or any
pseudonym used in connection with the Works.
(e) The Employee hereby approves any and all modifications,
uses, publications and other exploitation of the Works that Consulting or any
successor or transferee thereof may elect to make, and the Employee expressly
agrees that no such modifications, uses, publications or exploitations will or
may cause harm to the Employee's honor or reputation. The Employee agrees that
no modification, use or publication of the Works by Consulting or any successor
or transferee thereof will be deemed to constitute a distortion or mutilation of
the Works.
(f) Consulting shall have the unrestricted right to transfer
and convey any or all of Consulting's rights in or relating to the Works to any
person or entity.
(g) This Agreement shall be construed in accordance with the
provisions of Section 2870 of the California Labor Code (the text of which is
included in Schedule 5.5) relating to inventions made by an employee.
Accordingly, this Agreement is not intended and shall not be interpreted to
assign to or invest in Consulting any of the Employee's rights in any inventions
developed entirely on the Employee's own time without using Consulting's
equipment, supplies, facilities, or trade secret information, except for those
inventions that either relate at the time of conception or reduction to practice
of the inventions to the Consulting Business or the actual or demonstrably
anticipated research or development of Consulting, or result from any work the
Employee performed for Consulting.
(h) Employee shall keep and maintain adequate and current
written records of all inventions, original works of authorship, trade secrets
or other Works in which rights vest in or are assigned to Consulting hereunder.
The records will be in the form of notes, sketches, drawings, and any other
format that may be specified by Consulting. The records will be available to and
remain the sole property of Consulting at all times.
(i) Employee shall provide any assistance reasonably requested
by Consulting to obtain United States or foreign letters patent and copyright
registrations covering inventions, original works of authorship and other Works
belonging or assigned hereunder to Consulting. Employee shall execute any
transfers of ownership of letters patent or assignments of copyrights or other
proprietary rights transferred or assigned hereunder (including short form
assignments intended for recording with the U.S. Copyright Office, the U.S.
Patent and Trademark Office, or any other entity). Employee's obligations under
this Section shall survive any termination or expiration of this Agreement in
perpetuity, provided that Consulting shall compensate Employee
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at a reasonable rate for time actually spent performing such obligations at
Consulting's request after such termination or expiration. If Consulting is
unable for any reason whatsoever, including Employee's mental or physical
incapacity, to secure Employee's signature to apply for or to pursue any
application for any United States or foreign letters patent or copyright
registrations or on any document transferring or assigning any patent, copyright
or other proprietary right that Employee is obligated hereunder to transfer or
assign, Employee hereby irrevocably designates and appoints Consulting and its
duly authorized officers and agents as Employee's agent and attorney in fact, to
act for and on its behalf and in its stead to execute and file any such
applications and documents and to do all other lawfully permitted acts to
further the prosecution and issuance of letters patent or copyright
registrations or transfers or assignments thereof or of any other proprietary
rights with the same legal force and effect as if executed by Employee. This
appointment is coupled with an interest in and to the inventions, works of
authorship, trade secrets and other Works to which any proprietary rights may
apply and shall survive Employee's death or disability.
(j) Throughout this Section 5.5, the term Consulting shall
mean (i) Consulting, Inc. for any period of time during which the Employee is
employed by Consulting, Inc., (ii) LLC for any period of time during which the
Employee is employed by LLC and (iii) any Subsidiary of Consulting, Inc. or LLC
for any period of time during which the Employee is employed by such Subsidiary.
SECTION 5.6. TERMINATION.
(a) The Employee may voluntarily terminate the Employee's
employment with Consulting upon one hundred eighty (180) days' prior written
notice unless such notice shall be waived in writing by the Chief Executive
Officer. In the event that the Employee breaches this Section 5.6(a) prior to
the later of (i) the date which is eighteen (18) months after the Effective Date
or (ii) the date which is twelve (12) months after the consummation of an IPO,
the Employee shall pay Consulting, Inc. (it being understood and agreed that the
Employee shall deliver any amounts payable pursuant to this Section 5.6(a) to
Consulting, Inc. and not to any of its Subsidiaries, and it being further
understood that Consulting, Inc. shall take responsibility for apportioning any
amounts paid hereunder among itself, LLC and their respective Subsidiaries as
may be appropriate under the circumstances) an amount in cash equal to fifty
percent (50%) of the average Annual Compensation paid or payable on an
annualized basis to the Employee by Consulting over the course of the completed
fiscal year of Consulting immediately preceding the Consulting fiscal year in
which the Employee's breach occurs. Solely for the purpose of this Section
5.6(a), any period of time during which the Employee was associated with KPMG,
and any amounts paid or to be paid by KPMG (whether as base compensation,
incentive compensation or other compensation) during such period, shall be
deemed to be included in determining the fiscal years during which the Employee
was employed by Consulting and the amount of the Annual Compensation paid or
payable by Consulting to the Employee for such fiscal years. The amount payable
hereunder shall be in addition to and without in any way limiting any remedies
at law or in equity that may be available to Consulting for any breach of this
Agreement (including, without limitation, any remedies under Section 6.1(e) or
7.11 of this Agreement), and without in any way precluding or being construed to
preclude Consulting from making a showing of irreparable injury or any other
element that may be necessary to secure
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injunctive relief. Any and all payments made pursuant to this Section 5.6(a)
shall be made ratably in quarterly installments over the twenty-four (24) month
period following such breach.
(b) The Employee agrees to provide all assistance requested by
Consulting, whether before, upon, or after the termination of the Employee's
employment with Consulting for any or no reason (including voluntary resignation
by the Employee or termination at the request of Consulting), in transitioning
the Employee's duties, responsibilities and client and other Consulting
relationships to other Consulting personnel in connection with any such
termination of the Employee's employment with Consulting.
SECTION 5.7. WAIVER.
(a) The Chief Executive Officer may, in his or her sole
discretion, waive any of the provisions of Sections 5.1 through 5.6.
(b) Notwithstanding Section 5.7(a), and except as provided in
Section 3.2(c), no provision herein shall or shall be construed to restrict,
limit or otherwise affect any rights that Consulting or KPMG or their Affiliates
may have or any obligations that the Employee may have under any provision of
the KPMG Partnership Agreement, the By-Laws of KPMG or otherwise, it being
understood and agreed that the provisions of the KPMG Partnership Agreement and
the By-Laws of KPMG (as in effect or amended from time to time) shall continue
in full force and effect in accordance with their terms.
SECTION 5.8. NO EMPLOYMENT AGREEMENT. The Employee understands
that this Agreement is not intended to and shall not be construed to constitute
an express or implicit employment contract for any purpose, including for a
specific duration of time. The Employee acknowledges and understands that,
unless Consulting and the Employee otherwise clearly and expressly agree in
writing, the Employee is employed at will, which means that either the Employee
or Consulting may terminate the employment relationship at any time, for any
reason or for no reason, with or without notice, except for such notice as
required of the Employee pursuant to Section 5.6.
ARTICLE VI
ARBITRATION
SECTION 6.1. ARBITRATION
(a) To the extent permitted by law, all claims or disputes
arising out of or relating to the construction, meaning or effect of any
provision of this Agreement, to the Employee's employment relationship with
Consulting (which term shall include for purposes of this entire Article VI, the
Subsidiaries of Consulting), or to the termination of this Agreement or
cessation of such employment relationship:
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(i) that the Employee may have against or with Consulting,
any of its Affiliates, partnerships, other related entities,
successors, or permitted assigns, or any director, officer, trustee,
fiduciary, administrator, employee, owner, shareholder, partner,
principal, member, attorney, agent, or representative of any of the
foregoing entities; or
(ii) that Consulting may have against or with the Employee
(collectively, "Disputes"), shall be submitted for resolution by arbitration in
accordance with the procedures set forth in this Section 6.1. Disputes subject
to arbitration hereunder include, but are not limited to, claims by the Employee
for employment discrimination, harassment, retaliation, wrongful termination, or
other 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, or local law, regulation, ordinance, executive
order, or constitution, or under common law. All arbitrations hereunder shall be
held in the State of Virginia or the State of New York, at the election of
Consulting.
(b) Arbitrations shall take place before a panel of three
arbitrators (the "Arbitration Panel"), which shall consist of one person
selected by each of the two sides to the Dispute and the third person to be
jointly selected by the two arbitrators previously selected.
(c) The Arbitration Panel shall have no authority to amend or
modify the terms of this Agreement (except pursuant to Section 7.5) or to award
punitive or exemplary damages.
(d) Judgment on any award rendered pursuant to this Section
6.1 may be entered in the courts of the State of Virginia or the State of New
York, at the election of Consulting, or in any other court having jurisdiction,
or application may be made to such court for a judicial recognition of the award
or an order of enforcement thereof, as the case may be.
(e) Notwithstanding anything in this Section 6.1 to the
contrary, Consulting may seek provisional relief, including, but not limited to,
temporary restraining orders and preliminary injunctions, from a court of
competent jurisdiction in aid of the arbitration, to prevent any award from
being rendered ineffectual, to protect Consulting's Proprietary Information or
Works or for any other purpose in the interests of Consulting. Seeking any such
relief shall not be deemed a waiver of Consulting's right to compel arbitration.
The courts of the State of Virginia or the State of New York, at the election of
Consulting, as well as any other court of competent jurisdiction, shall have
jurisdiction over any proceeding relating to arbitrations under this Section
6.1.
SECTION 6.2. REIMBURSEMENT. The Employee agrees to reimburse
Consulting upon demand for any and all costs, expenses and other amounts
(including, without limitation, attorneys' fees and court costs) incurred by
Consulting in enforcing any of its rights under this Agreement (except to the
extent inconsistent with the enforcement of Section 6.1).
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ARTICLE VII
MISCELLANEOUS
SECTION 7.1. SURVIVAL. The provisions of this Agreement shall
remain in full force and effect in accordance with their terms notwithstanding
any termination of the Employee's employment with Consulting or any of its
Subsidiaries for any or no reason or any dissolution or liquidation of LLC.
SECTION 7.2. ENTIRE AGREEMENT. This Agreement and the
Schedules hereto constitute the only agreements between the Parties with respect
to the subject matter hereof, there being no prior written or oral promises or
representations not incorporated herein or therein.
SECTION 7.3. CHOICE OF LAW. This Agreement shall be governed
by and construed and enforced in accordance with the laws of the State of New
York and the federal laws of the United States of America applicable therein, as
though all acts and omissions related hereto occurred in New York. Any lawsuit
arising from or related to this Agreement may be brought, to the extent any such
lawsuit is permitted pursuant to Article VI, in any state court in the State of
Virginia or in the State of New York, at the election of Consulting, and in the
United States District Courts located in the State of Virginia or the Borough of
Manhattan, New York, New York, at the election of Consulting. To the extent
permissible by law, the Parties hereby consent to the jurisdiction and venue of
such courts. Notwithstanding anything to the contrary in the foregoing, nothing
in this Section 7.3 shall prevent any Party or any of such Party's Affiliates
from bringing a lawsuit, to the extent any such lawsuit is permitted pursuant to
Article VI, in any other federal or state court of full and 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.
SECTION 7.4. AMENDMENT; WAIVER. No amendment or modification
of the terms of this Agreement shall be binding on any Party unless reduced to
writing and signed by an authorized representative of the Party to be bound. The
waiver by any Party of any particular default by any other Party shall not
affect or impair the rights of the Party so waiving with respect to any
subsequent default of the same or a different kind; nor shall any delay or
omission by any Party to exercise any right arising from any default by any
other Party affect or impair any rights which the nondefaulting Party may have
with respect to the same or any future default.
SECTION 7.5. SEVERABILITY. If any provision of this Agreement
including, without limitation, any provision of Article V, is held invalid or
unenforceable for any reason, the invalidity shall not affect the validity of
the remaining provisions of this Agreement, and the parties shall substitute for
the invalid provision a valid provision which most closely approximates the
intent and economic effect of the invalid provision. Without limiting the
generality of the foregoing, if any provision of this Agreement shall be
determined, under applicable law, to be overly broad in duration, geographical
coverage or substantive scope, or
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otherwise unreasonable or unenforceable such provision shall be deemed narrowed
to the broadest term permitted by applicable law and shall be enforced as so
narrowed.
SECTION 7.6. COUNTERPARTS; SIGNATURES.
(a) 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.
(b) Each Party hereto acknowledges that it and each other
Party hereto may execute this Agreement, and any other agreement, certificate or
document contemplated herein or therein or related hereto by facsimile, stamp or
mechanical signature. Each Party hereto expressly adopts and confirms each such
facsimile, stamp or mechanical signature made in its respective name as if it
were a manual signature, agrees that it will not assert that any such signature
is not adequate to bind such Party to the same extent as if it were signed
manually and agrees that at the reasonable request of any other Party hereto at
any time it will as promptly as reasonably practicable cause this Agreement, and
any other agreement, certificate or document contemplated herein or therein or
related hereto to be manually executed (any such execution to be as of the date
of the initial date thereof).
SECTION 7.7. BENEFICIARIES. This Agreement is solely for the
benefit of the Parties and their respective Affiliates, successors and permitted
assigns and shall not confer upon any other Person any remedy, claim, liability,
reimbursement or other right in addition to those existing without reference to
this Agreement.
SECTION 7.8. NOTICES. All notices which any Party may be
required or desire to give to another Party shall be in writing and shall be
given by personal service, telecopy, registered mail or certified mail (or its
equivalent), or overnight courier to the other parties at their respective
address or telecopy telephone number set forth below. Mailed notices and notices
by overnight courier shall be deemed to be given upon actual receipt by the
Party to be notified. Notices delivered by telecopy shall also be confirmed in
writing by the sending Party by overnight courier and shall be deemed to be
given upon actual receipt of the overnight courier package by the Parties to be
notified.
If to Consulting, Inc.:
KPMG Consulting, Inc.
Three Chestnut Ridge Road
Montvale, New Jersey 07645
Attention: Chief Financial Officer
Facsimile: (201) 307-7227
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If to LLC:
KPMG Consulting, LLC
Three Chestnut Ridge Road
Montvale, New Jersey 07645
Attention: Chief Financial Officer
Facsimile: (201) 307-7227
If to KPMG:
KPMG LLP
Three Chestnut Ridge Road
Montvale, New Jersey 07645
Attention: Chief Financial Officer
Facsimile: (201) 307-7227
If to the Employee, to the address listed on the records of Consulting. A Party
may change its address or addresses set forth above by giving the other parties
notice of such change in accordance with the provisions of this Section 7.8.
SECTION 7.9. SCHEDULES. All Schedules referred to herein are
intended to be and hereby are specifically made a part of this Agreement.
SECTION 7.10. ASSIGNABILITY. This Agreement shall be binding
upon and inure to the benefit of the Parties hereto, respectively, and their
respective Affiliates, successors and permitted assigns; provided, however, that
the Employee may not assign its rights or delegate its obligations under this
Agreement without the express prior written consent of the other parties hereto.
Without limiting the foregoing, the rights of LLC hereunder may be assigned in
whole or in part to Consulting, Inc. or KPMG or their respective Subsidiaries,
the rights of Consulting, Inc. hereunder may be assigned in whole or in part to
LLC or KPMG or their respective Subsidiaries and the rights of KPMG hereunder
may be assigned in whole or in part to LLC, Consulting, Inc. or their respective
Subsidiaries, each without the consent of the Employee.
SECTION 7.11. SPECIFIC PERFORMANCE. In the event of any actual
or threatened default in, or breach of, any of the terms, conditions and
provisions of this Agreement, the Party or Parties or their respective
Affiliates who are or are to be thereby aggrieved shall have the right to
specific performance and injunctive or other equitable relief of its rights
under this Agreement, in addition to any and all other rights and remedies at
law or in equity, and all such rights and remedies shall be cumulative. The
Parties agree that the remedies at law for any breach or threatened breach,
including, without limitation, monetary damages, are inadequate compensation for
any loss and that any defense in any action for specific performance that a
remedy at law would be adequate is waived. Any requirements for the securing or
posting of any bond with such remedy are waived.
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SECTION 7.12. LEGAL COUNSEL. The Employee acknowledges,
represents and warrants to Consulting that the Employee has received a copy of
this Agreement, that the Employee has read and understood this Agreement, that
the Employee has had the opportunity to seek the advice of legal counsel before
signing this Agreement and that the Employee has either sought such counsel or
has voluntarily decided not to do so.
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IN WITNESS WHEREOF, the Parties hereto have caused this
Agreement to be executed as of and deemed effective as of the Effective Date.
KPMG CONSULTING, LLC
By:
-----------------------------------
Name:
Title:
KPMG CONSULTING, INC.
By:
-----------------------------------
Name:
Title:
KPMG LLP
By:
-----------------------------------
Name:
Its:
[Employee Name]
----------------------------------------
Signature Page
to the
Member Agreement