Consulting Agreement - Morgan Stanley & Co. Inc. and Kanbay Inc.
CONSULTING AGREEMENT
This Agreement ("Agreement") effective as of this 28th day of July, 2000,
by and between MORGAN STANLEY & CO. INCORPORATED, a Delaware corporation
("COMPANY") with its principal place of business at 1585 Broadway, New York, NY
10036, and KANBAY INCORPORATED ("CONSULTANT"), with its principal place of
business at 6400 Shafer Court, Suite 100, Rosemont, Illinois 60018.
WHEREAS, the COMPANY and CONSULTANT desire to enter into an agreement
whereby CONSULTANT will perform certain services for COMPANY;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
recited, the parties agree as follows:
1. TERM AND TERMINATION
The term of this Agreement shall commence as of the date first written
above, and shall continue until terminated in accordance with the provisions of
paragraph 13 hereof. On termination, COMPANY's obligation to pay any
compensation, except for services and expenses already agreed and incurred,
shall cease and terminate.
2. MASTER AGREEMENT; TASK ORDERS
This Agreement is a master agreement consisting of individual Task Orders
("Task Orders"). COMPANY desires that CONSULTANT shall perform, and CONSULTANT
agrees to perform, such systems analysis and design services, computer
programming services and/or other consulting services the "Services" as are set
forth in the initial Task Order attached hereto as SCHEDULE A, and each future
Task Order executed by the parties (the "Services"). Each Task Order will be
attached as an additional SCHEDULE A to this Agreement. The terms and conditions
of this Agreement shall govern with respect to the Services, in accordance with
each Task Order. Should the terms of this Agreement conflict with the terms of
any Task Order, the terms of the Task Order will control.
3. TECHNICAL DIRECTION
CONSULTANT shall report to and receive technical direction only from such
COMPANY employees or officers as are listed in the applicable Task Order or as
shall be designated by such employees or officers.
4. PRICE
COMPANY agrees to pay CONSULTANT for the Services rendered in accordance
with the Payment Schedule specified in each Task Order. The parties can add
additional personnel and rates to any Task Order by mutual written agreement.
- 1 -
<Page>
5. REIMBURSEMENT OF EXPENSES
COMPANY shall not be liable to CONSULTANT for any expenses paid or incurred
by CONSULTANT unless agreed to in writing. CONSULTANT shall provide COMPANY with
appropriate documentation evidencing all approved expenses. CONSULTANT agrees to
abide by the policies set forth in COMPANY's Information Technology Division's
"Expense Reimbursement Policy for Consultants," attached hereto as Exhibit 1.
6. PAYMENTS; TAXES
Each invoice shall be due and payable in U.S. dollars within forty five
(45) calendar days after receipt of such invoice. In addition, COMPANY shall be
responsible for paying any applicable sales, use, value added, or similar taxes,
specified in the applicable invoice and imposed upon the Services rendered or
products provided hereunder by any federal, state, local, or foreign government
authority, exclusive of any taxes based upon CONSULTANT's income or payroll.
7. INDEPENDENT CONTRACTOR
CONSULTANT acknowledges that it is acting as an independent contractor,
that CONSULTANT is solely responsible for its actions or inactions, and that
nothing in this Agreement shall be construed to create an employment
relationship between the parties. CONSULTANT is not authorized to enter into
contracts or agreements on behalf of COMPANY or to otherwise create obligations
of COMPANY to third parties. CONSULTANT shall be responsible for and shall
maintain adequate records of expenses it shall incur in the course of performing
Services hereunder and shall be solely responsible for and shall file, on a
timely basis, tax returns and payments required to be filed with or made to any
federal or state or local tax authority with respect to its performance of
Services hereunder. Neither federal, nor state nor local income tax of any kind
shall be withheld or paid by COMPANY with respect to any amount paid to
CONSULTANT pursuant to this Agreement. CONSULTANT agrees that CONSULTANT is
responsible for payment of all applicable workers' compensation, disability
benefits and unemployment insurance, and for withholding and paying such
employment taxes and income withholding taxes as required, with respect to
CONSULTANT or any employee of CONSULTANT.
8. CONSULTANT'S PERSONNEL
The Services provided by CONSULTANT may be performed, as the case may be,
by CONSULTANT (if CONSULTANT is an individual) or by personnel who may be either
employees of CONSULTANT or, with COMPANY's consent as required below, of
independent subcontractors of CONSULTANT. CONSULTANT agrees that, with respect
to Services provided hereunder, neither CONSULTANT nor any personnel supplied by
CONSULTANT or a subcontractor thereof are COMPANY employees for any purpose,
including, without limitation by specification: (i) for federal, state or local
tax, employment, withholding or reporting purposes; or (ii) for eligibility or
entitlement to any benefit under any of the COMPANY's employee benefit plans
(including, without limitation, those that are subject to the Employee
Retirement Income Security Act of 1974, as amended), incentive, compensation or
other employee programs or policies
- 2 -
<Page>
(each, a "Benefit Plan"). CONSULTANT agrees that all such personnel shall be
informed that they are employees solely of CONSULTANT, or subcontractor if
applicable, and not eligible to participate in any Benefit Plan.
In the event that any federal, state or local government or administrative
agency, or other regulatory entity, or any court, determines that CONSULTANT or
any personnel of CONSULTANT, or of a subcontractor thereof, acted as an employee
of COMPANY in performing Services, CONSULTANT: (i) waives any and all claims
that CONSULTANT may have as a result of any such determination and acknowledges
that CONSULTANT agreed to render Services under this Agreement with the
understanding that neither CONSULTANT nor any employee of CONSULTANT (nor any
employee of any subcontractor of CONSULTANT) has any right or entitlement to any
such benefit; and (ii) agrees to indemnify and hold COMPANY harmless from all
liabilities, costs and expenses (including, but not limited to, attorney's fees)
incurred by COMPANY as a result of, or related to, such a determination.
In the event that any personnel performing Services hereunder are found to
be reasonably unacceptable to COMPANY, COMPANY shall notify CONSULTANT and
CONSULTANT shall promptly take appropriate corrective actions or remove said
personnel from performing Services hereunder and, if requested by COMPANY,
provide a qualified replacement.
In the event that CONSULTANT provides replacement personnel, CONSULTANT
shall not charge COMPANY for the number of hours required to train the
replacement until such personnel are familiar with the particular project and
all work done prior thereto, so that such replacement personnel are capable of
performing the Services as efficiently as the replaced personnel at the time of
departure.
CONSULTANT acknowledges that, in the course of providing Services,
CONSULTANT and personnel performing Services hereunder may have access to, or
acquire, knowledge of confidential, proprietary and/or sensitive information
regarding COMPANY, COMPANY's clients or other parties with whom COMPANY has a
relationship. CONSULTANT agrees that all such personnel will be advised of the
standards imposed upon them with respect to Services they render and of their
not being employees or agents of COMPANY for any purpose. Accordingly,
CONSULTANT agrees that with respect to personnel providing Services, it shall
institute for such personnel a Standard of Conduct (attached hereto as Exhibit
2) and shall obligate any subcontractor to do the same with respect to its
personnel providing Services hereunder. In addition, prior to performing any
Services hereunder, all personnel utilized by CONSULTANT (or by a subcontractor
of CONSULTANT) in connection with the Services will be provided with a copy of
such Standard of Conduct and will agree in writing to be bound by all of the
restrictions and covenants set forth therein; as well as agreeing that they are
employees of CONSULTANT or its subcontractor. If CONSULTANT is an individual he
or she shall execute an Individual Consultant Addendum and Exhibit 2 shall not
be applicable.
Notwithstanding any other provision of this Agreement, CONSULTANT may not
assign or subcontract to another party any of the Services to be performed
hereunder without the express written consent of COMPANY. If such consent is
obtained, CONSULTANT agrees to indemnify COMPANY with respect to any liability,
cost, or expense (including, but not limited to, attorney's
- 3 -
<Page>
fees) relating to any Services provided by subcontractor or with respect to any
personnel of subcontractor.
Upon execution of this Agreement, CONSULTANT shall provide to COMPANY the
following documents:
(a) if CONSULTANT is incorporated, a certificate of good standing of
CONSULTANT as a corporation under the laws of the state of CONSULTANT's
incorporation; and
(b) evidence of CONSULTANT's federal employer identification number.
Failure by CONSULTANT to provide COMPANY any documents required under this
Section 8 shall be grounds for withholding payments of CONSULTANT's invoices.
9. CONFIDENTIAL INFORMATION
(a) As used herein, "COMPANY Confidential Information" shall mean the
COMPANY Properties (as defined in Section 11(c) of this Agreement) and all
information of the COMPANY to which CONSULTANT has had access in connection with
performance of this Agreement, whether in oral, written, graphic or
machine-readable form, including without limitation, specifications, user,
operations or systems manuals, diagrams, graphs, models, sketches, technical
data, research, business or financial information, plans, strategies, forecasts,
forecast assumptions, business practices, marketing information and material,
customer names, proprietary ideas, concepts, know-how, methodologies and all
other information related to COMPANY's business. COMPANY Confidential
Information shall also include confidential information of a similar nature
received by COMPANY from a third party.
(b) As used herein, "CONSULTANT Confidential Information" shall mean
CONSULTANT Properties (as defined in Section 12(a) of this Agreement) furnished
by CONSULTANT to COMPANY in written, graphic or machine-readable form.
(c) The COMPANY Confidential Information and CONSULTANT Confidential
Information shall hereinafter be referred to as the "Confidential Information".
Notwithstanding anything to the contrary contained in this Agreement,
Confidential Information shall not include information which: (a) is in the
public domain at the time of disclosure; (b) was in the possession of or
demonstrably known by the recipient prior to its receipt from the disclosing
party; (c) is independently developed by recipient without use of the
Confidential Information; or (d) becomes known to recipient from a source other
than disclosing party without breach of this Agreement.
(d) Each party agrees to maintain the confidentiality of the Confidential
Information using procedures no less rigorous than those used to protect and
preserve the confidentiality of its own similar proprietary information (and in
any event not less than a reasonable degree of care) and shall not, directly or
indirectly; (a) transfer or disclose any Confidential Information to any third
party, except that the each party shall be permitted to disclose the
Confidential Information of the other party to its employees and independent
consultants to the extent necessary for the
- 4 -
<Page>
performances of the Services hereunder; (b) use any Confidential Information
other than as contemplated under this Agreement or (c) take any other action
with respect to the Confidential Information inconsistent with the confidential
and proprietary nature of such information.
(e) If the receiving party is requested or required to disclose
Confidential Information pursuant to a subpoena, court order or other similar
process ("Court Order"), it is agreed that the receiving party shall provide the
disclosing party with notice of such request(s) so that the disclosing party may
seek an appropriate protective order. In the event that the disclosing party is
not successful in obtaining a protective order and the receiving party is, in
the opinion of its counsel, compelled to disclose the Confidential Information
under pain of liability for contempt of court or other censure or penalty, the
receiving party may disclose such information in accordance with and for the
limited purpose of compliance with the Court Order, without liability hereunder.
(f) CONSULTANT agrees not to disclose the identity of COMPANY as a
customer or prospective customer of CONSULTANT or the existence or nature of the
relationship contemplated by this Agreement, except as such disclosure may be
required for CONSULTANT to comply with regulatory or other legal requirements.
10. DISCLOSURE OF INVENTIONS; INNOVATIONS:
CONSULTANT agrees to disclose promptly in writing to COMPANY any and all
inventions, improvements, discoveries and copyrightable material, computer
programs, processes, manufacturing techniques, trade secret formula or knowhow,
patentable or unpatentable, copyrightable or uncopyrightable, protectable or
unprotectable under any form of legal protection afforded to intellectual
property, that during the term of this Agreement, and in relation to the
performance of this Agreement, CONSULTANT may conceive, make, develop, author or
work on in whole or in part solely or jointly with others. COMPANY agrees to
hold all such disclosures in confidence as Confidential Information unless the
invention, improvement, discovery or work is or becomes COMPANY's property as
provided in Section 11.
11. INVENTIONS, PATENTS, TRADE-MARKS AND COPYRIGHTS:
(a) DEFINITIONS.
(i) The term "work" means any and all writings, designs, models,
drawings, photographs, physical property, reports, formulas, patterns,
devices, compilations, etc., whether or not protectable under Title 17 of
the U.S. Code, and that are created for COMPANY by CONSULTANT, whether
alone or with others, and whether they be created by independent
contractors, employees or agents of CONSULTANT.
(ii) The term "trademark" means any name, word, phrase, logo, design
or other graphic depiction generated during the performance of this
Agreement that is or can be used to describe either a product or service of
COMPANY, and that is created for COMPANY by CONSULTANT, whether alone or
with others, and whether they be created by independent contractors,
employees or agents of CONSULTANT.
- 5 -
<Page>
(iii) The term "invention" means any designs, processes, inventions or
discoveries, whether or not patentable or otherwise protectable under Title
35 of the U.S. Code, that are created for COMPANY by CONSULTANT, whether
alone or with others, and whether they be created by independent
contractors, employees or agents of CONSULTANT.
(b) WORK MADE FOR HIRE. In relation to the performance of this Agreement
CONSULTANT may create certain works for COMPANY that may be copyrighted or
copyrightable under the laws of the United States. To the extent that any such
works are created, CONSULTANT will be considered to have created a "Work Made
for Hire" as defined in 17 U.S.C. Section 101, and COMPANY shall have the sole
right to the copyright. In the event that any such work created by CONSULTANT
does not qualify as a Work Made for Hire, CONSULTANT hereby assigns its
copyright and all rights, throughout the world, in and to the work to COMPANY,
as provided for in Section 11(c) below.
(c) TITLE TO WORKS, TRADE-MARKS, AND INVENTIONS PRODUCED. It is understood
and agreed that the entire right, title and interest throughout the world to all
works, trademarks, and/or inventions that are conceived of, prepared, procured,
generated or produced, whether or not reduced to practice, by CONSULTANT, either
solely or jointly with others during the course of, in connection with, or as
related to the performance of this Agreement, shall be and hereby are vested and
assigned by CONSULTANT to Company (collectively, the "COMPANY Properties").
CONSULTANT agrees, at COMPANY's expense, to execute any and all documents
prepared by COMPANY, and to do all other lawful acts as may be necessary, useful
or convenient for COMPANY to establish, document, and protect such rights.
CONSULTANT has acquired or shall acquire from each of its employees,
consultants, and subcontractors, if any, the necessary rights to all such works,
trademarks, and inventions produced by such employees, consultants, and
subcontractors, within the scope of their employment by CONSULTANT in performing
Services under this Agreement. CONSULTANT shall obtain the cooperation of each
such party to secure to COMPANY or its nominees the rights COMPANY may acquire
in accordance with the provisions of this Section 11.
12. OWNERSHIP CONSULTANT PROPERTIES; AND RESIDUALS
(a) CONSULTANT Properties. Proprietary computer software, methodologies,
techniques, software libraries, tools, algorithms, materials, products, ideas,
designs, and know-how used by CONSULTANT in providing Services (including all
copies, enhancements, modifications, revisions, and derivative works of any of
the foregoing, other than the foregoing that results from or is related to the
Services) that: (a) existed prior to the effective date, or (b) are developed by
CONSULTANT independently of providing the Services hereunder shall be the
property of CONSULTANT ("CONSULTANT Properties"). As between CONSULTANT and
COMPANY, CONSULTANT shall at all times be and remain the sole and exclusive
owner of the CONSULTANT Properties. Except as expressly authorized in this
Agreement or a Task Order hereunder, COMPANY will not copy, modify, distribute
or transfer (by any means),
- 6 -
<Page>
display, sublicense, rent, reverse engineer, decompile, or disassemble the
CONSULTANT Properties.
(b) LICENSE TO USE CONSULTANT PROPERTIES. CONSULTANT hereby grants to
COMPANY a perpetual, world-wide, royalty-free, non-exclusive license to use,
execute, reproduce, transmit, display, perform, and create derivative works from
any CONSULTANT Properties incorporated into or made a part of the COMPANY
Properties hereunder or provided as part of the Services, only in connection
with the use, sale, licensing, modification, enhancement, or further development
of such COMPANY Properties or Deliverables.
(c) USE OF RESIDUALS. Notwithstanding anything to the contrary in this
Section 12, CONSULTANT, and its employees, shall be free to use and employ their
existing skills, and general ideas, general concepts, general knowledge, general
experience, general processes, and general know-how gained or learned during the
course of the Task Order (the "Residual Information"), to develop,
independently, materials similar to those of materials developed or prepared
hereunder, so long as CONSULTANT develops the same independently and without the
use or disclosure of any Confidential Information of the COMPANY. For the
avoidance of doubt, CONSULTANT may use or disclose the Residual Information that
may be incorporated in or result from development of the Deliverables (as
defined in Section 20) without restriction.
13. TERMINATION
(a) Either party may discontinue the use of Services, or provision of
Services, as the case may be without reason or cause, at any time upon one
hundred twenty (120) days prior written notice to the other party.
Notwithstanding the foregoing, for a termination without cause by CONSULTANT
such termination date shall not be prior to CONSULTANT's completion of all
Services that CONSULTANT shall have agreed to perform.
(b) If a party ( the "Defaulting Party") is in material breach of this
Agreement or any Task Order, and the Defaulting Party does not remedy that
breach or default within thirty (30) calendar days after receipt from the other
party of written notice of breach, the non-defaulting party shall after the
expiration of such thirty (30) calendar day period have the right to terminate
the applicable Task Order. To the extent that the breach or default is of a
nature, which goes beyond the relevant Task Order, the non-defaulting party may
also terminate this Agreement. Termination of a Task Order or this Agreement
shall be without prejudice to any other rights or remedies, which the
non-defaulting party may have.
(c) In the event of any such termination, COMPANY shall make payments to
CONSULTANT for all work performed in accordance with the terms and conditions
herein up to the date of termination, and CONSULTANT shall immediately return or
provide to COMPANY, without limitation, all documents, drawings and other items
of whatever nature supplied to CONSULTANT by COMPANY or developed by CONSULTANT
in accordance with this Agreement.
- 7 -
<Page>
14. CONFLICTS OF INTEREST:
CONSULTANT hereby warrants that there is no conflict of interest (as
determined in accordance with applicable industry standards) between
CONSULTANT's other employment, if any, or other CONSULTANT contracts, if any,
and the activities to be performed hereunder. CONSULTANT shall advise COMPANY if
a conflict of interest arises in the future.
15. REPRESENTATIONS AND WARRANTIES
(a) REPRESENTATIONS AND WARRANTIES OF COMPANY. COMPANY hereby represents
and warrants that it has all rights, titles, or interests in the COMPANY
Properties required for the performance of its obligations hereunder and has the
authority and the legal right to permit CONSULTANT to perform the Services
described herein and contemplated hereby.
(b) REPRESENTATIONS AND WARRANTIES OF CONSULTANT.
(1) RIGHTS AND TITLES. CONSULTANT hereby represents and warrants
that: (i) it has all rights, titles or interests in the CONSULTANT
Properties required for the performance of its obligations hereunder and
has the authority and the legal right to perform the Services described
herein and contemplated hereby; and (ii) it will not infringe or
misappropriate any copyrights, patents, trademarks, trade secrets or other
proprietary rights of any third party in connection with CONSULTANT's
performance of the Services hereunder.
(2) SERVICES. CONSULTANT further represents and warrants that the
Services provided under this Agreement will be: (i) performed in a good
workmanlike manner by skilled, knowledgeable and experienced personnel in
the subject matter of the applicable Services; and (ii) of commercially
reasonable quality and will be performed in accordance with industry
standards.
(3) NO VIRUSES. CONSULTANT further represents and warrants that the
Deliverables shall not contain any computer code (i) designed to disrupt,
disable, harm, or otherwise impede in any manner, including aesthetical
disruptions or distortions, the operation of the Deliverables, or any of
COMPANY's other associated software, firmware, hardware, computer system or
network (sometimes referred to as "viruses" or "worms"), (ii) that would
disable the Deliverables or impair in any way its operation based on the
elapsing of a period of time, exceeding an authorized number of copies,
advancement to a particular date or other numeral (sometimes referred to as
"time bombs", "time locks", or "drop dead" devices) or (iii) that would
permit the CONSULTANT or others to access the Deliverables to cause such
disablement or impairment (sometimes referred to as "traps", "access codes"
or "trap door" devices), or any other similar harmful, malicious or hidden
procedures, routines or mechanisms which would cause such programs to cease
functioning or to damage or corrupt data, storage media, programs,
equipment or communications, or otherwise interfere with operations.
- 8 -
<Page>
(c) NO OTHER WARRANTY. EXCEPT AS PROVIDED IN THIS AGREEMENT, CONSULTANT
MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
16. LIMITATION OF LIABILITY
Each party's liability to the other for claims relating to this Agreement,
whether for breach or in tort, shall be limited to the greater of three million
($3,000,000) dollars or the aggregate amount paid to CONSULTANT hereunder.
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGE OF THE OTHER PARTY IN CONNECTION
WITH OR ARISING OUT OF THIS AGREEMENT (INCLUDING LOST PROFITS). HOWEVER IT
ARISES, WHETHER FOR BREACH OF THIS AGREEMENT, INCLUDING BREACH OF WARRANTY, OR
IN TORT, EVEN IF THAT PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF
SUCH DAMAGE.
The limitations of liability set forth in this paragraph 16 shall not apply
with respect to any indemnity set forth above, or to any claims (i) for personal
injury or property damage (including, without limitation, all costs associated
with the recovery or replacement of lost or damaged software and data), or (ii)
for breach of any confidentiality provision contained herein, or (iii) based on
either party's willful misconduct or gross negligence.
17. REPORTS
CONSULTANT, when directed at COMPANY'S expense, shall provide written
reports with respect to the Services rendered hereunder.
18. LAWS AND REGULATIONS
Each party and their employees shall comply with all applicable laws, rules
and regulations, as well as all applicable securities laws and/or compliance
regulations and procedures of the parties. In particular, and without limiting
the foregoing, if CONSULTANT is performing any services on behalf of COMPANY's
municipal finance business the following paragraph shall apply:
COMPANY and CONSULTANT confirm that CONSULTANT is being retained solely to
provide technical and analytical services in connection with the matters
contemplated hereby and not for the purpose of obtaining or retaining municipal
finance business for COMPANY. Without limiting the generality of the foregoing,
CONSULTANT agrees that (a) neither it nor any of its officers, directors,
partners, and non-clerical employees will make any political contributions or
other payments, directly or indirectly, for the purposes of obtaining or
retaining municipal finance business, (b) it will not enter into any arrangement
with any third party to share in any of the fees payable hereunder without
COMPANY's prior written consent, (c) it will comply with all applicable laws,
rules and regulations including ethics rules governing conflicts of interest,
and (d)
- 9 -
<Page>
it will certify annually during the term of this Agreement to the effect set
forth in the next succeeding sentence. CONSULTANT represents to COMPANY that
neither it nor any of its officers, directors, partners and non-clerical
employees during the past two years has made or solicited any political
contribution to a state or local official in excess of $250 per candidate per
year in the jurisdiction in which CONSULTANT has been retained to work on behalf
of COMPANY pursuant to this Agreement.
19. INSURANCE TO BE CONFIRMED BY MORGAN STANLEY AS TO COVERAGES
CONSULTANT shall, at its own cost and expense, obtain and maintain in full
force and effect with sound and reputable insurers during the term of this
Agreement, the insurance coverage in the minimum amounts described as follows:
(a) Worker's Compensation in such form, and in such amounts, as may be
required by law from time to time;
(b) Broad Form Commercial General Liability Insurance (including
Products/Completed Operations, Contractual, and Broad Form Property Damage
coverage) in an amount of at least five million dollars ($5,000,000) combined
single limit written on an occurrence basis, and naming COMPANY and its
affiliates and subsidiaries as additional named insureds;
(c) Employer's Liability at no less than five hundred thousand dollars
($500,000);
(d) Non-Occupation Disability Insurance;
(e) Comprehensive crime coverage in the minimum amount of one million
dollars ($1,000,000); and
Commercial Automobile Liability Insurance, covering owned, non-owned and
hired vehicles, providing bodily injury and property damage, having limits of
liability, per occurrence, of at least one million dollars ($1,000,000), and
naming COMPANY and its affiliates and subsidiaries as additional named insureds.
All insurance required hereunder to be carried by CONSULTANT (or its
subcontractors or agents) shall be with a company or companies and on forms
reasonably satisfactory to COMPANY. No such insurance shall be deemed to be in
effect until such time as satisfactory certificates evidencing coverage are
provided to the non-insuring party at the inception of the contract and prior to
expiration of any insurance. The certificates should stipulate that if the
policies are canceled, non-renewed or materially changed during the policy term,
written notice will be submitted to the COMPANY within thirty (30) days.
Certificates are to be delivered to the COMPANY at the address set forth
below prior to commencement any Services hereunder, and at least thirty (30)
days prior to any expiration of each insurance policy:
- 10 -
<Page>
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
Attn: Richard Schultz
CONSULTANT shall require all policies of insurance that are in any way
related to the Services to be provided by CONSULTANT hereunder and that are
secured and maintained by CONSULTANT (or any subcontractor or agent) to include
clauses providing that every underwriter shall waive all of its rights of
recovery under subrogation or otherwise, against COMPANY, CONSULTANT,
subcontractors and/or agents. CONSULTANT waives all rights of recovery against
COMPANY, subcontractors and/or agents which CONSULTANT may have or acquire
because of deductible clauses in or inadequacy of limits of any policies of
insurance that are secured and maintained by CONSULTANT. CONSULTANT shall
require all subcontractors and agents to waive the rights of recovery (as the
aforesaid waiver by CONSULTANT) against COMPANY, CONSULTANT and other
subcontractors or agents and deliver evidence of such waiver to COMPANY before
such subcontractors and agents perform any services.
Nothing in this Paragraph shall be construed as limiting CONSULTANT's (or
any subcontractor's or agent's) liability to COMPANY or any third party.
CONSULTANT shall promptly make a full written report to COMPANY as to all
accidents or claims for damage arising from or in connection with (i) this
Agreement; (ii) the discharge of CONSULTANT's duties hereunder; or (iii) the
presence of CONSULTANT or CONSULTANT's agents or employees on the premises.
CONSULTANT shall cooperate fully with COMPANY and with any insurance carrier in
the investigation and defense of all such accidents and claims, such obligation
to survive the termination or expiration of this Agreement.
The mere purchase and existence of insurance does not reduce or release
CONSULTANT from liability incurred and/or assumed within the scope of this
Agreement. CONSULTANT's failure to maintain insurance shall not relieve it of
liability under this Agreement.
20. YEAR 2000 COMPLIANCE
CONSULTANT represents, warrants and covenants that the products and
services provided under this Agreement, including the CONSULTANT Properties and
any hardware, software, data or other deliverables and any derivative works
thereof (hereinafter "Deliverables") are year 2000 compatible and compliant
(i.e., will correctly calculate, compare, sort, extract, sequence, store and
otherwise process, in accordance with the Deliverables' intended use and
applicable specifications, date related information and associated date
calculations for dates before, during and after the year 2000, and will display
date information in ways that are unambiguous as to the determination of the
- 11 -
<Page>
century). CONSULTANT further represents, warrants and covenants that prior to
delivering any deliverables to COMPANY hereunder, CONSULTANT shall successfully
test the Deliverables to ensure that there will be no adverse effect by virtue
of date changes at any time from the delivery date thereof through the end of
year 2002, and will demonstrate that the Deliverables are year 2000 compatible
and compliant to COMPANY using test dates specified by COMPANY. In addition to
any other damages for any breach of such representations, warranties and
covenants, CONSULTANT agrees to assign immediately fully trained senior
engineering staff, reasonably acceptable to COMPANY, to work continuously to
correct such Deliverables at no additional cost or expense to COMPANY, and
without interruption to COMPANY's ongoing business, time being of the essence,
and CONSULTANT further agrees that in the event CONSULTANT fails immediately to
assign acceptable staff until such Deliverables are corrected, COMPANY shall
immediately be entitled to seek injunctive relief, as a court may deem
appropriate, to enforce such remedy, money damages being insufficient to make
COMPANY whole.
21. INDEMNIFICATION
(a) INTELLECTUAL PROPERTY. If either party (the ("Indemnitee") promptly
notifies the other (the "Indemnitor") in writing of a claim (the "Claim")
against the Indemnitee that any portion of the Indemnitor's software or other
intellectual property used or subject to this Agreement (including, but not
limited to, COMPANY Properties or CONSULTANT Deliverables, as the case may be)
infringes a proprietary right of a third party, the Indemnitor shall, with
respect to and to the extent of the portion of the Claim pertaining to the
Indemnitor's software or other intellectual property, at its sole expense,
defend, indemnify and hold harmless the Indemnitee with respect to such Claim
and shall pay any costs or damages (including reasonable attorneys' fees) that
may be incurred or finally awarded against the Indemnitee.
(b) USE OF COMPANY MATERIALS. COMPANY shall indemnify, defend and
reimburse CONSULTANT for, and hold CONSULTANT harmless from, any and all
third-party Claims and any resulting costs (including reasonable attorneys'
fees), and damages awarded against CONSULTANT, based on the use by CONSULTANT of
any material provided by the COMPANY in connection with CONSULTANT's performance
of Services. At COMPANY'S direction, CONSULTANT shall immediately cease use of
the materials provided to CONSULTANT by COMPANY forming the basis of an
infringement Claim. COMPANY shall have no obligation to indemnify CONSULTANT for
damages awarded against CONSULTANT for use after such notice. COMPANY shall have
the sole right to conduct the defense of any Claim or action and all
negotiations for settlement or compromise. Notwithstanding foregoing, in the
event that COMPANY shall fail to appoint an attorney within ten (10) calendar
days after CONSULTANT has notified COMPANY of any such Claim, CONSULTANT shall
have the right to select and appoint an alternative attorney and the reasonable
cost and expenses thereof shall be paid by the COMPANY.
(c) INFRINGEMENT BY DELIVERABLES. CONSULTANT shall have the sole right to
conduct the defense of any Claim and all negotiations for its settlement or
compromise, provided that any such settlement shall not adversely affect
COMPANY'S use of the Deliverables. Notwithstanding the foregoing, in the event
that CONSULTANT shall fail to
- 12 -
<Page>
appoint an attorney within ten (10) calendar days after COMPANY has notified
CONSULTANT of any such Claim, COMPANY shall have the right to select and appoint
an alternative attorney and the reasonable cost and expense thereof shall be
paid by CONSULTANT. If a Deliverable becomes or in CONSULTANT's reasonable
opinion is likely to become the subject of any such Claim, then, CONSULTANT
shall either: (i) procure for COMPANY the right to continue using the
Deliverable as contemplated hereunder; (ii) modify the Deliverable to render
same non-infringing (provided such modification does not adversely affect
COMPANY's use as reasonably determined by COMPANY) or (c) replace same with
equally suitable, functionally equivalent, compatible non-infringing
Deliverable. If none of the foregoing is possible and if such Deliverable is
found to infringe, COMPANY shall have the right to return the Deliverable to
CONSULTANT and CONSULTANT shall promptly refund to COMPANY all amounts paid by
COMPANY for the applicable Deliverable. In the event that COMPANY returns a
Deliverable to CONSULTANT in accordance with the foregoing and as a result
thereof any other Deliverable(s) can no longer be effectively used, as
reasonably determined by COMPANY, COMPANY shall be entitled to return such other
Deliverable(s) to CONSULTANT and CONSULTANT shall also refund to COMPANY all
amounts paid by COMPANY for such other Deliverable(s).
(d) SOLE CONTROL. To the extent of the portion of the Claim pertaining to
its own properties, the Indemnitor under any of the indemnities set forth in
this Section 21 shall have sole control of the defense of any such claim and all
negotiations for settlement.
22. EMPLOYEE SOLICITATION/HIRING
During the term of this Agreement, and for one year thereafter, neither
COMPANY nor CONSULTANT shall solicit, hire or knowingly engage any of the other
party's employees engaged in the subject matter of this Agreement for one year
following the termination of such employee's employment with the other party,
without such other party's prior written consent.
23. ASSIGNMENT
Neither party may assign or delegate any or all of its rights (other than
the right to receive payments) or its duties or obligations hereunder without
the consent of the other party, which consent shall not be unreasonably
withheld; provided, however, that either party may assign this Agreement,
without the need to obtain consent of the other party, to an affiliate of such
party or to a successor in interest to substantially all of the business of that
party, provided that in all cases the assignee agrees in writing to all the
obligations and liabilities under this Agreement and has the financial ability
to do so. An assignee of either party authorized hereunder shall be bound by the
terms of this Agreement and shall have all of the rights and obligations of the
assigning party set forth in this Agreement. If any assignee shall fail to agree
to be bound by all of the terms and obligations of this Agreement, then such
assignment shall be deemed null and void and of no force or effect. In addition
to the foregoing, and notwithstanding anything to the contrary, the COMPANY's
Affiliates shall be permitted to request Services and CONSULTANT shall perform
such Services under this Agreement. CONSULTANT agrees that all of its
obligations to COMPANY under this Agreement shall apply equally to all such
Affiliates. "Affiliate" is defined as Customer's parent corporation ("Parent")
and all entities controlled by Parent.
- 13 -
<Page>
24. SUBCONTRACTING
Subject to Section 8, CONSULTANT shall have the right to subcontract, in
its own discretion, all or any portion of the Services to be provided hereunder
to any Affiliate of CONSULTANT.
25. NO THIRD-PARTY BENEFIT
Except as set forth to the contrary herein, the provisions of this
Agreement are for the sole benefit of the parties hereto. This Agreement confers
no rights, benefits, or claims upon any person or entity not a party hereto.
26. NOTICES
All notices, consents and demands hereunder shall be in writing and shall
be personally delivered or sent by certified or registered mail, return receipt
requested, addressed to the other party at its address set forth in this
Agreement, and shall be deemed given upon receipt. Notices to COMPANY shall be
addressed to the attention of one of the COMPANY employees listed in the related
Task Order and a copy thereof shall be addressed Attn.: Legal Dept., Technology
Unit. Notices to CONSULTANT shall be addressed to the attention of the President
and a copy thereof shall be addressed to Mark L. Gordon, Gordon & Glickson, LLC,
444 North Michigan Avenue, Chicago, Illinois 60611.
27. COMPLETE AGREEMENT
This Agreement supersedes all prior oral or written agreements and
understandings between the parties relating to the subject matter hereof,
constitutes the entire agreement between the parties, and cannot be changed
unless mutually agreed upon in writing by both parties.
28. ENFORCEABILITY
In the event any provision of this Agreement is found to be legally
unenforceable, such unenforceability shall not prevent the enforcement of any
other provision.
29. NO WAIVER
The failure by either party to insist upon strict performance of any of the
provisions contained in this Agreement on any occasions shall not be deemed a
waiver of its rights under that or any other provisions hereof.
30. GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York, without regard to choice of law rules.
- 14 -
<Page>
31. HEADINGS AND SUBSECTIONS
Section headings are provided for convenience of reference and do not
constitute part of this Agreement. Any references to a particular section of
this Agreement shall be deemed to include reference to any and all subsections
thereof.
32. FORCE MAJEURE
Either party shall be excused from performance and shall not be liable for
any delay in whole or in part, caused by the occurrence of any contingency
beyond the reasonable control either of the excused party or its subcontractors
or suppliers. These contingencies include, but are not limited to, war,
sabotage, insurrection, riot or other act of civil disobedience, act of public
enemy, failure or delay in transportation, act of any government or any agency
or subdivision thereof affecting the terms hereof, accident, fire, explosion,
flood, severe weather or other act of God, or shortage of labor or fuel or raw
materials. In the event of a delay in excess of thirty (30) days caused by the
foregoing, the party whose performance has not been delayed shall have the right
to immediately terminate this Agreement or the applicable Task Order.
33. SURVIVAL
The provisions of Sections 1, 2, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16,
18, 20, 21, 22, 23, 25, 26, 27, 28, 29, 30, 31, 32, and 33 shall survive
termination of this Agreement.
- 15 -
<Page>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
KANBAY INCORPORATED MORGAN STANLEY & CO. INCORPORATED
By: /s/ William Weissman By: /s/ James A. Tilley
------------------------------- ---------------------------------
Signature Signature
Name: WILLIAM WEISSMAN Name: James A. Tilley
----------------------------- -------------------------------
Printed Printed
Title: VP & CFO Title:
---------------------------- ------------------------------
- 16 -
<Page>
AMENDMENT NO. 1 TO CONSULTING AGREEMENT
Amendment No. 1 (the "Amendment") dated as of June 25, 2002 to the
Consulting Agreement dated as of July 28, 2000 (the "Agreement") between Morgan
Stanley & Co. Incorporated ("Company") and Kanbay Incorporated (the
"Consultant").
WITNESSTH:
WHEREAS, the parties hereto have previously entered into the Agreement; and
WHEREAS, the parties hereto wish to amend the Agreement in certain respects
as set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained in this Amendment the parties agree as follows:
SECTION 1. DEFINITIONS; REFERENCES. Unless otherwise defined herein, each
term used herein which is defined in the Agreement shall have the meaning set
forth in the Agreement. Each reference to "hereof", "hereunder", "herein" and
"hereby" and each other similar reference and each reference to the "Agreement"
shall from and after the date hereof refer to the Agreement as amended hereby.
SECTION 2. AMENDMENTS. The Agreement is amended as follows:
(a) Section 2 of the Agreement is amended by adding the following language
at the end thereof:
"Each Task Order shall be substantially in the form of Exhibit A
hereto, or as otherwise agreed by the parties, and shall include a
description of the Services to be performed, shall include the Payment
Schedule and, to the extent different from the Agreement, the
termination provisions with respect to the Services provided under
such Task Order."
(b) Section 8 of the Agreement is amended by adding the following new
paragraph at the end thereof:
"Consultant shall provide to Company weekly a report which shall
identify each programmer or other staff of Consultant currently
providing Services to Company (the "Staff") and shall specify whether
those Services are related to projects, outsourced matters or
co-sourced matters (the "Site Report"). The Site Report will be in a
form reasonably satisfactory to Company. The Site Report shall also
indicate all Eligible Staff (as defined in Section 13(a)).
(c) Section 13 (a) of the Agreement is amended by deleting the words "one
hundred and twenty (120)" and replacing them with the words "sixty
(60)" and by adding the following proviso at the end of the first
sentence of such paragraph:
<Page>
"PROVIDED that, with respect to any Staff currently providing Services
who are not Eligible Staff (as provided in the Site Report), Company
may immediately discontinue the use of any or all of such Staff's
Services at any time upon thirty (30) days written notice to
Consultant unless a specific Task Order covering the Staff at issue
has an end date which is earlier than such notice period. Company's
right to terminate Staff upon thirty (30) days written notice, as set
forth in the preceding sentence, does not apply to Staff providing
Services pursuant to Task Orders priced on a fixed fee basis. As used
herein, "Eligible Staff" means Staff of the Consultant who (i) are
currently providing Services to Company and (ii) as of the date on
which notice is given under this paragraph, have provided Services to
Company for 180 or more consecutive calendar days (counting all time
off for weekends, holidays, and all other approved absences, such as
vacations)."
(d) Section 30 of the Agreement is hereby amended by adding the following
language at the end thereof:
"The parties hereby consent to the exclusive jurisdiction of, and
venue in, the federal or state courts with proper jurisdiction over
the Borough of Manhattan, New York City for the purposes of
adjudicating any matter arising from or in connection with the
performance of this Agreement. THE PARTIES HEREBY UNCONDITIONALLY
WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THE PERFORMANCE OF THIS
AGREEMENT."
SECTION 4. COUNTERPARTS. This Amendment 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.
SECTION 5. EFFECTIVENESS. This Amendment shall become effective as of its
date immediately upon execution hereof by Company and the Consultant.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first above written.
KANBAY INCORPORATED MORGAN STANLEY & CO. INCORPORATED
By: /s/ William Weissman By: /s/ Scott R. Grafland
------------------------------- -------------------------------
Signature Signature
Name: William Weissman Name: Scott R. Grafland
----------------------------- -----------------------------
Printed Printed
Title: VP & CFO Title: Managing Director
---------------------------- ----------------------------
[SEAL]
2
<Page>
Exhibit A
TASK ORDER
This is a Task Order under the Consulting Agreement dated July 28, 2000 (the
"Consulting Agreement") between Kanbay Incorporated (the "Consultant") and
Morgan Stanley & Co. Incorporated ("Company"). If any of the terms and
conditions of the Consulting Agreement conflict with any of the terms and
conditions of this Task Order, the terms and conditions of this Task Order shall
control solely with respect to the Services performed by Consultant under this
Task Order. Capitalized terms used herein, unless otherwise defined, shall have
the meanings assigned to such terms in the Consulting Agreement.
I. DESCRIPTION OF SERVICES TO BE PERFORMED OR PERSONNEL TO BE PROVIDED, AND
DELIVERABLES (IF ANY):
II. PAYMENT SCHEDULE
Personnel Rate
Maximum Fee (if any): ______________
Fixed Fee: ______________
Maximum Authorized Expense Amount for reimbursement (if any): ________________
Manager:
Sr. Manager:
Cost Center:
Start Date:
End Date:
Location:
MER #:
Approved By:
3
<Page>
III. AUTHORIZED COMPANY EMPLOYEES
The above personnel will accept direction only from the following Company
employees or officers, or such other Company personnel, as they will designate:
----------------------
----------------------
Special Conditions (if any):
IV. COMPANY RESPONSIBILITIES (IF ANY):
KANBAY INCORPORATED: MORGAN STANLEY & CO. INCORPORATED:
By: By:
------------------------------ ------------------------------
Name: Name:
---------------------------- ----------------------------
Title: Title:
--------------------------- ---------------------------
Date: Date:
---------------------------- ----------------------------
4
<Page>
AMENDMENT NO. 2 TO CONSULTING AGREEMENT
Amendment No. 2 ("Amendment") dated as of December 11, 2002 to the
Consulting Agreement dated as of July 28, 2000 (the "Agreement") between Morgan
Stanley & Co. Incorporated ("Company") and Kanbay Incorporated (the
"Consultant").
WITNESSTH:
WHEREAS, the parties hereto have previously entered into the Agreement; and
WHEREAS, the parties hereto wish to amend the Agreement in certain respects
as set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained in this Amendment the parties agree as follows:
SECTION 1. DEFINITIONS; REFERENCES. Unless otherwise defined herein, each
term used herein which is defined in the Agreement shall have the meaning set
forth in the Agreement. Each reference to "hereof", "hereunder", "herein" and
"hereby" and each other similar reference, and each reference to the
"Agreement," shall refer to the Agreement, the Exhibits thereto, any Task
Orders, and any amendments to any of the foregoing. "Affiliate" means Company's
parent and any entity controlled, directly or indirectly, by Company's parent.
SECTION 2. ADDITIONS. The Agreement is amended by the addition of the
following provisions:
(a) DISASTER RECOVERY. Consultant has implemented a number of disaster
recovery measures, including, but not limited to: redundant
communication links between Consultant's facilities; maintaining
critical spare parts for network facilities; implementing daily
automatic backups of all data stored on its facilities; the
acquisition of offsite storage facilities for backup tapes; the use of
devices to identify intrusions on Consultant's systems, as well as
security reviews of all network devices and systems; detailed action
plans in the event of a breach; the implementation of current virus
protection; and the installation of backup power sources.
Notwithstanding the foregoing, the parties will coordinate with each
other to define, implement and integrate reasonable disaster recovery
and contingency plans for the Services provided hereunder. This will
include the development of improved recovery strategies, and the
development and implementation of new preventative measures designed
to minimize the impact of various business interruptions and
disasters.
Upon Company's request, Consultant shall provide Company copies of and
access to any such disaster recovery measures for their review.
<Page>
(b) PERSONNEL INDEMNITY. Consultant shall indemnify, defend and hold
harmless Company from any and all Employment Liabilities arising out
of any act or omission of Consultant in its capacity as the employer
or prospective employer of any person. As used herein, "Employment
Liabilities" means claims, suits, demands, damages or other losses and
damages arising in the course of the employment relationship,
including claims of harassment, discrimination, wrongful discharge,
payment of compensation, benefits or salary, non-payment of taxes,
failure to withhold, or claims arising under workers compensation
laws, unemployment compensation laws, occupational health and safety
laws, disability laws, ERISA, or any other applicable federal, state,
or local laws or regulations.
(c) THIRD PARTY SOFTWARE. Unless it obtains Company's prior written
approval, in performing the Services, Consultant will not use any
third party software or other third party work (including any software
or work subject to an open source license (including the GNU Public
License) or any "copyleft" restrictions): (i) to which a license is
required in order to use any deliverables; (ii) the terms of which
impose any restrictions on the use of any deliverables, or (iii) the
terms of which in any way limit Company's intellectual property rights
in any works, trademarks and/or inventions (as such terms are defined
in Section 11 of the Agreement).
(d) AUDIT. Company (or its designee) may, on ten (10) days notice, conduct
audits and reviews of Consultant on Consultant's premises with respect
to the Services, including monitoring, supervising and examining
Consultant's work, communications procedures (including e-mail and
telephone), security, data protection processes, systems and
procedures, and contractual compliance. Consultant will inform its
Representatives that such monitoring, supervision and examination may
occur. "Representatives" means Consultant's officers, directors,
employees, consultants, attorneys, accountants, agents and independent
subcontractors (and their employees) and other representatives.
Company may provide Consultant with an audit report and Consultant
will promptly make all reasonable efforts to correct any deficiencies
identified in such audit report. Consultant will maintain business and
financial records regarding any expenses in providing the Services for
which it seeks reimbursement and upon reasonable notice Company may
also audit Consultant concerning such expenses and records thereof.
(e) ACCEPTANCE TESTING.
(i) ACCEPTANCE TESTING. The parties may perform Acceptance Testing
of the Services including any and all deliverables. The term
"Acceptance Testing" means testing performed by or on behalf of
Company to determine whether the relevant Services or
deliverables comply with any requirements and specifications
set forth in the Task Order. Acceptance Testing criteria and
procedures, if any, shall be specified in the Task Order or
subsequently agreed by the parties in writing under the Task
Order.
2
<Page>
Payment by Company of any fees or other consideration to
Consultant or use of the Services or any deliverables by
Company prior to Acceptance will not constitute Company's
Acceptance of such Services or deliverables.
(ii) FAILURE OF ACCEPTANCE TESTING. If Company notifies Consultant
that the relevant Services or deliverables or any portion
thereof fail to pass any material requirement of Acceptance
Testing, Consultant will correct all such deficiencies within
such time as is reasonable in light of the nature of the defect
or non-conformity and its effect on Company's operations, as
reasonably determined by the parties, or as otherwise set forth
in the Task Order, but no less than (10) calendar days after
receipt of Company's notice of such failure. Except as agreed
by the parties in writing, no more than ten (10) calendar days
after such corrections have been made, Company will retest the
relevant Services or deliverables. If the Services or
deliverables still fail any material requirement of Acceptance
Testing, Company may, in its sole discretion: (A) grant
Consultant additional time to correct the outstanding
deficiencies; or (B) without prejudice to any of Company's
other rights and remedies under the Agreement or at law or in
equity, terminate the relevant Task Order or the Agreement and
receive a refund from Consultant of any fees paid to Consultant
for work which has been rejected under this Section..
(f) CONFIDENTIAL INFORMATION.
(i) CONFIDENTIAL INFORMATION. Company Confidential Information
shall include all information of a third party to which Company
or any of its Affiliates have access (including any Personal
Information, as defined in Exhibit A of this Amendment below)
and to which Consultant has had or will have access, and all
notes, analyses and studies prepared by Consultant or any of
its Representatives, during the term of the Agreement or
anytime thereafter, incorporating any of the Company
Confidential Information. Confidential Information also
includes the terms and conditions of the Agreement.
(ii) NONPUBLIC PERSONAL INFORMATION AND FOREIGN DATA PROTECTION. For
purposes of compliance with (i) Title V of the
Gramm-Leach-Bliley Act of 1999 (the "Act") or any successor
federal statute to the Act, and the rules and regulations
thereunder, all as may be amended or supplemented from time to
time, (ii) the European Commission Data Protection Directive
(95/46/EC) or Data Protection Act 1998 or any implementing or
related legislation of any member state in the European
Economic Area (the "Data Protection Laws") and (iii) any other
applicable laws concerning persona] information, Consultant
will comply with the terms and conditions set forth in Exhibit
A attached hereto.
3
<Page>
(g) INDEMNIFICATION.
(i) INDEMNIFICATION. For purposes of any Consultant indemnification
obligations in the Agreement, the term "Company" shall include
Company and its Affiliates and any of their officers,
directors, employees, agents, consultants and other
representatives. For purposes of any Company indemnification
obligations in the Agreement, the term "Consultant" shall
include Consultant and its Affiliates and any of their
officers, directors, employees, agents, consultants and other
representatives.
(ii) COMPANY'S RIGHT TO PARTICIPATE. Notwithstanding anything to the
contrary in Section 21(c) of the Agreement, Consultant may not,
without Company's prior written consent, settle, compromise or
consent to the entry of any judgment in any commenced or
threatened Claim or action which relates to Consultant's
indemnity obligations, unless such settlement, compromise or
consent: (A) includes an unconditional release of Company from
all liability arising out of such commenced or threatened Claim
or action; and (B) is solely monetary in nature and does not
include a statement as to, or an admission of fault,
culpability or failure to act by or on behalf of, Company or
otherwise adversely affect Company's use of the Deliverables.
If the attorney appointed by Consultant to defend any such
commenced or threatened Claim or action, is, in Company's
reasonable judgment, not suitably qualified to represent
Company, Company will have the right to select and appoint an
alternative attorney and the reasonable cost and expense
thereof will be paid by Consultant.
(iii) EXCEPTION. Notwithstanding Section 16 of the Agreement, the
limitations of liability set forth therein shall not apply with
respect to a party's indemnification obligations under the
Agreement.
(h) AFFILIATES. Any Company Affiliate may execute a Task Order hereunder
and, by the act of such execution, thereby agrees to become a party to
the Agreement as if it had been named as an original party thereto and
(a) is entitled to all related services and all other rights and
protections provided to Company thereunder with respect to such Task
Order, and (b) is bound by the same terms and conditions contained in
the Agreement with respect to such Task Order. In furtherance of the
foregoing, for purposes of any Task Order submitted by a Company
Affiliate, the name of such submitting entity shall be read in place
of the words "Company" in the Agreement only wherever necessary to
implement such Task Order, provided, however, that all parties agree
that the limitation of liability contained in Section 16 of the
Agreement shall be applied such that each of (i) Consultant's
aggregate liability to Company and its Affiliates, and (ii) the
aggregate liability of Company and its Affiliates to Consultant
(excluding Services fees and expenses incurred and properly due
hereunder), is limited to the greater of three million dollars
($3,000,000) or the aggregate amount paid to Consultant under the
4
<Page>
Agreement in the twelve (12) month period immediately preceding the
month in which the event occurred upon which liability is predicated,
and provided, further, that a Company Affiliate may exercise a remedy
for any breach or alleged breach of this Agreement by Consultant only
to the extent that such Affiliate has actually been adversely affected
by such breach or alleged breach. Without limiting the generality of
the foregoing, Consultant agrees that all of its obligations related
to Consultant's performance of Services under the Agreement will apply
equally to each Company Affiliate that is a party to a Task Order.
Company hereby guarantees the payment obligations of each Company
Affiliate provided that such obligations are not subject to a good
faith dispute. Furthermore, the parties acknowledge and agree that
Consultant is providing Services to such Company Affiliates in
reliance on the effectiveness of this Section in making such Company
Affiliates parties to the Agreement.
SECTION 3. COUNTERPARTS. This Amendment 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.
SECTION 4. EFFECTIVENESS. This Amendment shall become effective as of its
date immediately upon execution hereof by Company and the Consultant.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first above written.
KANBAY INCORPORATED MORGAN STANLEY & CO. INCORPORATED
By: /s/ William Weissman By: /s/ Scott R. Grafland
------------------------------- -------------------------------
Signature Signature
Name: William Weissman Name: Scott R. Grafland
----------------------------- -----------------------------
Printed Printed
Title: VP & CFO Title: Managing Director
---------------------------- ----------------------------
[SEAL]
<Page>
EXHIBIT A: COMPLIANCE WITH GRAMM-LEACH-BLILEY AND NON- U.S. DATA PROTECTION
For purposes of compliance with (i) Title V of the Gramm-Leach-Bliley Act of
1999 (the "Act") or any successor federal statute to the Act, and the rules and
regulations thereunder, all as may be amended or supplemented from time to time,
(ii) the European Commission Data Protection Directive (95/46/EC) or Data
Protection Act 1998 or any implementing or related legislation of any member
state in the European Economic Area (the "Data Protection Laws") and (iii) any
other applicable laws concerning personal information, Consultant represents,
warrants and covenants that:
- it will process, use, maintain and disclose Personal Information only
as necessary for the specific purpose for which this Information was
disclosed to it and only in accordance with the Agreement;
- it will not disclose any Personal Information to any third party
(including to the subject of such Information) or any Representative
who does not have a need to know such Information, except where
required by law to disclose such Information;
- it will implement and maintain an appropriate security program that is
designed to (a) ensure the security and confidentiality of all
Personal Information provided to it by Morgan Stanley, (b) protect
against any threats or hazards to the security or integrity of such
Information, including unlawful destruction or accidental loss,
alteration and any other form of unlawful processing and (c) prevent
unauthorized access to, use or disclosure of such Information;
- it will immediately notify Morgan Stanley in writing if it becomes
aware of (a) any disclosure or use of any Personal Information by it
or any of its Representatives in breach of this Exhibit, (b) any
disclosure of any such Information to it or its Representatives where
the purpose of such disclosure is not known, and (c) any request for
disclosure or inquiry regarding such Information from a third party;
- it will cooperate with Morgan Stanley and the relevant supervisory
authority in the event of litigation or a regulatory inquiry
concerning the Personal Information and shall abide by the advice of
Morgan Stanley and the relevant supervisory authority with regard to
the processing of such Information;
- it will enter into further agreements as requested by Morgan Stanley
if reasonably necessary to comply with data protection or privacy laws
from time to time;
- it has no reason to believe that any applicable law will prevent it
from fulfilling its obligations under this Exhibit;
- at Morgan Stanley's direction at any time, and in any event upon any
termination or expiration of the Agreement, it will immediately return
to Morgan Stanley any or all Personal Information and will destroy all
records of such Information, provided,
6
<Page>
however, that Kanbay may retain such Information as may be necessary
by law or regulation for tax and regulatory purposes, and that this
return or destruction of such Information at the direction of Morgan
Stanley shall not be deemed a material breach of this Agreement or any
Task Order;
- it will cause its Representatives to act in accordance with this
Exhibit;
- upon completion of any Task Order, it will return to Morgan Stanley
any or all applicable Personal Information which is not necessary for
the performance of another pending Task Order or destroy all records
of such Information, provided, however, that Kanbay may retain such
Information as may be necessary by law or regulation for tax and
regulatory purposes; and
- to the extent that the Personal Information is subject to the Data
Protection Laws, data subjects may enforce the provisions of this
Exhibit as a third-party beneficiary against it with respect to their
Personal Information but only in cases where Morgan Stanley has
factually disappeared or has ceased to exist in law. The Consultant
and Morgan Stanley do not object to the data subjects being
represented by an association or other body if they so wish and if
permitted by national law.
Morgan Stanley reserves the right to review Consultant's policies and procedures
used to maintain the security and confidentiality of information, including
auditing Consultant and its Representatives concerning such policies and
procedures. The provisions of this Exhibit supplement, are in addition to, and
will not be construed to limit any other confidentiality obligations under the
Agreement [or any Task Order]. Any exclusion from the definition of Confidential
Information contained in the Agreement will not apply to Personal Information
provided by Morgan Stanley under the Agreement or a Task Order.
"Personal Information" means: (i) personally identifiable information about or
relating to any former, current or prospective clients (or representatives of
clients), employee of Morgan Stanley or any other party with respect to whom
Morgan Stanley maintains information, in each case, which the Consultant
receives or otherwise has access to (the "Covered Parties"); and (ii) any list,
description, or other grouping of information of Covered Parties (and publicly
available information pertaining to them) that is derived using any personally
identifiable information. "Morgan Stanley" means Morgan Stanley & Co.
Incorporated and/or its Affiliates, as the context requires.
7
<Page>
AMENDMENT NO. 3 TO CONSULTING AGREEMENT
Agreement: Consulting Agreement dated July 28, 2000, as
amended from time to time, including
(without limitation) by Amendment No. 1
dated June 25, 2002 and Amendment No. 2
dated December 11, 2002 (the "Agreement")
Morgan Stanley contracting entity: Morgan Stanley & Co. Incorporated ("MS
Entity")
Consultant: Kanbay Incorporated ("Provider")
This Amendment No. 3 ("Amendment"), effective as of May 1, 2003 ("Effective
Date"), supplements and amends the terms and conditions of the above referenced
Agreement by and between the identified MS Entity and Provider. In consideration
of the following and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the MS Entity and Provider hereby
agree to amend the Agreement as follows:
1. The parties acknowledge and agree that: (a) the Agreement exists and is in
effect as of the Effective Date; and (b) pursuant to the Agreement (or a portion
thereof), Provider provides services, goods or other materials to office
locations and facilities of the MS Entity and/or certain of its Affiliates (as
defined below) located in the State of New Jersey from time to time.
2. A new Affiliate of the MS Entity has been incorporated under the name Morgan
Stanley Management Services, Inc. ("MSMSI") and, as of the Effective Date, MSMSI
hereby assumes from the MS Entity and/or certain of its Affiliates their normal
business operations within the State of New Jersey. For purposes of this
Amendment, the term "Affiliate" means any entity that controls, is controlled
by, or is under common control with Morgan Stanley & Co. Incorporated. As used
in this paragraph 2, the term "control" means possessing, directly or
indirectly, the power to direct or cause the direction of the management,
policies or operations of an entity, whether through ownership of voting
securities, by contract or otherwise.
3. As of the Effective Date, the portion of the Agreement through which the MS
Entity and/or certain of its Affiliates receive services, goods or other
materials in the State of New Jersey is hereby assigned by the MS Entity to
MSMSI. Provider hereby consents to such assignment as provided herein. Without
limiting the foregoing, as of the Effective Date, all services, goods and other
materials provided by Provider in the State of New Jersey to the MS Entity
and/or certain of its Affiliates pursuant to a Task Order shall be delivered to
and provided for the benefit of MSMSI as if MSMSI was the signatory to the Task
Order for such services; goods or other materials. MSMSI is the assignee of all
such rights and obligations related thereto. For the avoidance of doubt: (i)
services shall be deemed to be provided by Provider within the State of New
Jersey only if such services are performed by Provider within the State of New
Jersey; and (ii) goods or other materials shall be deemed to be provided by
Provider within the State of New Jersey only if such goods or materials are
delivered by (or on behalf of) Provider to office locations or facilities of the
MS Entity or its Affiliates located in the State of New Jersey.
4. For Task Orders entered into following the execution of this Amendment,
Provider and the MS Entity (or its Affiliate, if applicable) shall jointly use
good faith efforts to identify in advance any Task Orders under which all or any
portion of Provider's goods, materials or services will be provided in the State
of New Jersey ("New Jersey Task Orders"). In accordance with the Agreement, New
Jersey Task Orders shall be executed by Provider and MSMSI. In the event that a
New Jersey Task Order is executed by Provider and the MS Entity or any Affiliate
(excluding MSMSI), goods, materials or services provided by Provider pursuant to
such New Jersey Task Order shall be deemed to be delivered to and provided for
MSMSI as set forth in this Amendment. Unless otherwise set forth in the
applicable New Jersey Task Order, invoices in connection with New Jersey Task
Orders shall be submitted for payment to, and paid by, MSMSI in accordance with
the terms of the New Jersey Task Order and the Agreement. Notwithstanding
anything in this Amendment or the Agreement, Provider shall not be liable under
any circumstances for any liability (including but not limited to tax liability)
incurred by the MS Entity or any of its Affiliates (including but not limited to
MSMSI) as a result of the failure of Provider or the MS Entity (or its
Affiliate, as applicable) to correctly identify MSMSI as the signatory of any
New Jersey Task Order, or Provider's failure to submit invoices directly to
MSMSI under a New Jersey Task Order. In the event that Provider submits an
invoice for a New Jersey Task Order to the MS Entity or any Affiliate (excluding
MSMSI), the MS Entity or any Affiliate (excluding MSMSI) shall: (i) not be
liable for such invoice (except as a guarantor to the extent provided in the
Agreement); and (ii) shall notify Provider of such error. Upon such
notification, Provider shall re-deliver said invoice to MSMSI.
5. Notwithstanding anything to the contrary herein or in the Agreement, MSMSI,
the MS Entity and its Affiliates may access and use the services, goods and
other materials assigned hereunder, as well as the services, goods and other
materials provided by Provider pursuant to a New Jersey Task Order, in order to
support their ordinary business
1
<Page>
requirements. Provider hereby affirms that, as set forth in the Agreement, the
MS Entity or any of its Affiliates (including, without limitation, MSMSI) may
execute Task Order(s) to the Agreement to obtain services, goods or other
materials directly from Provider subject to and in accordance with the
Agreement.
6. In the event of a conflict between the terms and conditions of this Amendment
and the terms and conditions of the Agreement, the terms and conditions of this
Amendment shall control. Unless amended in this Amendment, all terms and
conditions contained in the Agreement shall remain in effect and are hereby
affirmed in their entirety. To the extent that the services, goods or other
materials are not provided to MSMSI pursuant to the Agreement as amended herein,
the Agreement remains in full force and effect between Provider and the MS
Entity and/or certain of its Affiliates as the case may be.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed and do
each hereby warrant and represent that their respective signatory whose
signature appears below has been and is on the Effective Date duly authorized by
all necessary and appropriate corporate action to execute this Amendment.
PROVIDER: MS ENTITY:
KANBAY INCORPORATED MORGAN STANLEY & CO. INCORPORATED
By: /s/ William Weissman By: /s/ Richard Anfang
----------------------------------- -------------------------------------
Name: WILLIAM WEISSMAN Name: RICHARD ANFANG
Title: VP & CHIEF FINANCIAL OFFICER Title: Managing Director
Date: 11/20/03 Date: 11/26/03
[SEAL]
ACKNOWLEDGED AND AGREED ON BEHALF OF
MORGAN STANLEY MANAGEMENT SERVICES, INC.
By: /s/ Richard Anfang
-------------------------------------
Name: RICHARD ANFANG
Title: Managing Director
Date: 11/26/03
[SEAL]
2