Exhibit 10.19
MONDAY
SENIOR EXECUTIVE EMPLOYMENT AGREEMENT
This Employment Agreement, dated as of July __, 2002 (as amended from
time to time, this "AGREEMENT") between PwCC LP, a subsidiary of BermudaCo (as
defined below) which will become Monday Consulting US, Inc. in connection with
the transaction described in the recitals below (together with its successors
and assigns, the "EMPLOYER"; provided; however, that prior to the IPO Date, as
defined below, the "EMPLOYER" means PricewaterhouseCoopers LLP), and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇.
R E C I T A L S:
In connection with the worldwide reorganization of the business and
operations of PricewaterhouseCoopers Consulting ("MONDAY") into a unified
holding company structure with Monday Ltd ("BERMUDACO") as the top-tier holding
company and Monday SCA ("LUXCO") as the second-tier holding company, the
Employer and you acknowledge and agree:
1. Generally.
(a) Agreement to Employ. This Agreement hereby confirms your
employment as a "managing director" of PricewaterhouseCoopers LLP in
accordance with the terms and subject to the conditions of the Original
Employment Agreement (as defined below), except as modified by this
Agreement. Within 30 days after the IPO Date, you will be eligible for
elevation to "partner" status effective on such date.
(b) Term of Employment. Except as otherwise provided in
Section 5, the Employer will employ you for the period ending on the
third anniversary of the IPO Date; provided that your employment will
thereafter be automatically extended, upon the terms and conditions of
this Agreement, for additional 1-year terms, unless either party
terminates such employment pursuant to Section 5. Notwithstanding the
foregoing, this Agreement may be terminated by the Employer or you as
described further in Section 5.
2. Compensation.
(a) Compensation. As the Chief Financial and Administrative
Officer of BermudaCo reporting to the Chief Executive Officer of
BermudaCo, you will receive compensation in accordance with the
policies of the Employer. Such policies will themselves be in
accordance with the policies of BermudaCo and its affiliates.
Notwithstanding the foregoing, while you remain employed by the
Employer hereunder, you
will be entitled to receive a base salary of not less than $810,000 per
annum and a target annual bonus opportunity of not less than one-third
of base salary, based on objectives set out and agreed with the Chief
Executive Officer of BermudaCo and Monday's performance. Your
compensation ordinarily will be reviewed once each fiscal year for the
purpose of determining whether any adjustment is appropriate. In
addition, following the IPO, you will be eligible for periodic grants
of equity based awards in accordance with the equity compensation plans
of BermudaCo, as such plans exist from time to time. Without limiting
the generality of the foregoing, in respect of fiscal year 2004, you
will be eligible to receive an option to purchase Common Shares (as
defined below) with a target value of $720,000 using BermudaCo's
Black-Scholes option valuation methodology in effect at such time. Such
option will granted after the end of fiscal year 2003 based on your
performance during such fiscal year, will vest pro rata over 3 years
commencing on the first anniversary of the grant date and will have an
exercise price equal to the fair market value of a Common Share on the
grant date
(b) Cash Income Guarantee. Notwithstanding Section 2(a), you
will receive a first-year guarantee for your total cash income of
$1,200,000 ("CASH INCOME GUARANTEE") in respect of fiscal year 2003,
comprised of your base salary of $810,000, a minimum cash bonus of
$270,000 and a sign-on bonus of $120,000 (as further described in
Section 2(d), the "SIGN-ON BONUS"). For the avoidance of doubt, this
guarantee will not carry forward. This guarantee is in consideration of
your service from the date on which you joined PricewaterhouseCoopers
LLP.
(c) Equity Awards. Notwithstanding Section 2(a):
(i) Immediately after the IPO, you will be eligible
to receive an equity award ("IPO SHARES") in the form of
restricted Common Shares which will vest pro rata over 3 years
commencing on the date that is 1 year after the IPO Date and
will be valued at $1,500,000. Such Common Shares will be
transferable as follows:
(A) Commencing on the date that is 1 year
after the IPO Date, Transfer an aggregate (together
with all other Transfers made pursuant to this
Section 2(c)(i)) of up to 20% of the aggregate number
of Common Shares underlying the IPO Shares;
(B) Commencing on the date that is 2 years
after the IPO Date, Transfer an aggregate (together
with all other Transfers made pursuant to this
Section 2(c)(i)))
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of up to 40% of the aggregate
number of Common Shares underlying the IPO Shares;
(C) Commencing on the date that is 3 years
after the IPO Date, Transfer an aggregate (together
with all other Transfers made pursuant to this
Section 2(c)(i))
of up to 60% of the aggregate number of Common Shares
underlying the IPO Shares; and
(D) Commencing on the date that is 4 years
after the IPO Date, Transfer an aggregate (together
with all other Transfers made pursuant to this
Section 2(c)(i)) of up to 75% of the aggregate number
of Common Shares underlying the IPO Shares.
You may not Transfer any of the remaining 25% of the Common Shares underlying
the IPO Shares until the date you cease to be an employee of BermudaCo and its
affiliates. The IPO Shares will be forfeited in its entirety if you voluntarily
terminate your employment on or prior to April 25, 2003, unless your termination
is for Good Reason (as defined below) or is pursuant to Sections 5(c) or 5(d).
(ii) 30 days after the IPO Date, you will be eligible
to receive a one-time grant of an option to purchase Common
Shares. Such option will be valued at $3,600,000 (based on the
fair market value of a Common Share on the grant date) and
will vest pro rata over 3 years commencing on the first
anniversary of the grant date and will have an exercise price
equal to the fair market value of a Common Share on the grant
date.
(d) Sign-On Bonus. Within 30 days after the IPO Date, you will
be eligible to receive the Sign-On Bonus, which will be a one-time cash
payment in an amount equal to $120,000. Subject to Section 5(c)(iv),
you agree to repay the Sign-On Bonus in full to the Employer if you
voluntarily terminate your employment on or prior to April 25, 2003.
The Employer will ensure that in either case (receipt or repayment),
the appropriate tax arrangements are in place.
(e) Withholding. Any amounts due to you under this Agreement
will be subject to any deduction or withholding authorized or required
by applicable law or authorized by you.
(f) Offset. To the extent permitted by applicable law, the
Employer may, in its sole discretion, offset from any amounts due to
you
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under this Agreement an amount sufficient to satisfy any obligation
that you owe to the Employer or its affiliates.
3. Benefits; Expense Reimbursement. You will be invited to participate
in all incentive, welfare, fringe, retirement and other employee benefit plans
and arrangements maintained by the Employer or its affiliates for Monday's
similarly situated partners. The Employer and such affiliates reserve the right
to establish, terminate, amend, substitute, suspend or otherwise modify any such
plan or arrangement, subject to any contractual rights accrued by you and
subject to the requirements of any applicable law. Without limiting the
generality of the foregoing, the Employer (or its designee) will provide you
with a corporate apartment, as required, and at a mutually agreed cost, in the
metropolitan area of either New York City or Philadelphia as may be appropriate.
In addition, the Employer will reimburse you for appropriately documented,
reasonable expenses you incur in connection with and while working on Employer
business, in accordance with its normal business expense reimbursement policies
then in effect.
4. Duties and Responsibilities. Your responsibilities will include
establishing and managing all aspects of Monday's global financial function,
including financial and managerial accounting, controls, accounting policy,
treasury operations and external reporting, and various other Monday functions,
including investor relations, strategic planning, information systems and legal.
You agree that you will devote substantially all of your working time
and attention to the performance of your duties as required, and will not,
without the prior written consent of the Employer, engage, directly or
indirectly, in any other employment, business or professional activity for
compensation, profit or financial gain. You also agree that you will obtain the
written consent of the Chief Executive Officer of BermudaCo or an appropriate
representative of PricewaterhouseCoopers LLP (as applicable) prior to assuming
any paid or unpaid directorships, other than for non-client charitable, civic,
educational, social or other similar nonprofit organizations where your
activities will not conflict with the Employer's policies (including
PricewaterhouseCoopers LLP's independence policy to the extent applicable) as
may be in effect from time to time.
5. Termination of Employment.
(a) Termination by the Employer.
(i) This Agreement may be terminated at any time by
the Employer by giving written notice to you; provided that no
such termination will be effective unless it has been
initiated or authorized by the Chief Executive Officer of
BermudaCo. The length of the notice period for any such
termination will be at the
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sole discretion of the Employer. The Employer, in its sole
discretion, may (x) require you to use any accrued but unused
vacation time during any such notice period (in which case any
vacation time that remains unused (up to 22 days) will be paid
out in cash) or (y) pay out any accrued but unused vacation
time in cash. For the avoidance of doubt, any vacation time
that is required to be used or is paid out in cash will be
limited to 22 days, and any excess vacation time will be
forfeited without payment.
(ii) If your employment is terminated by the Employer
for reasons other than for Cause (as defined below), you will
be entitled to continue to receive from the Employer (x)
continued payment of the sum of (A) your monthly base salary
as in effect at the time of such termination plus (B) the
product of your target annual bonus opportunity for the fiscal
year in which such termination occurs multiplied by
one-twelfth (such sum, your "REFERENCE COMPENSATION") each
month for 18 months (the "RELEVANT PERIOD") (such payment to
commence on the closest payroll date after the effective date
of such termination) and (y) for the Relevant Period,
continued benefits under any health and welfare employee
benefit plans of the Employer or its affiliates in which you
participated at the date of such termination. Notwithstanding
the foregoing, any further payment or provision of benefits to
you under this Section 5(a)(ii) will immediately cease and be
no longer due if you breach any of the provisions of Sections
6 or 8. In addition, any unvested equity awards that have been
granted to you prior to such date of termination will become
fully vested and exercisable, and any restrictions applicable
to any such award (other than any transfer restrictions
imposed by the Voting Agreement or the Transfer Rights
Agreement, each as defined below) will automatically lapse.
Further, you will be entitled to the use of outplacement
services for a reasonable period of time following such
termination. The cost for such services will not exceed
$25,000 and the provider of such services will be mutually and
reasonably agreed upon prior to such use.
(iii) For purposes of this Agreement, your employment
shall be deemed to have been terminated by the Employer for
reasons other than Cause if you voluntarily terminate your
employment for Good Reason.
(iv) In the event it shall be determined that any
payment by or benefit from BermudaCo or its affiliates to you
or for your benefit, whether pursuant to the terms of this
Agreement
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or otherwise (collectively, the "CIC PAYMENT"), would be
subject to the excise tax imposed by Section 4999 of the U.S.
Internal Revenue Code of 1986, as amended (the "CODE"), or any
similar provision or any interest or penalties with respect to
such excise tax (such excise tax, together with any such
interest and penalties, are collectively referred to as the
"EXCISE TAX"), you will be entitled to receive an additional
payment (a "GROSS-UP PAYMENT") in an amount determined by
BermudaCo's outside auditors such that after payment by you of
all taxes (including any interest or penalties imposed with
respect to such taxes), including any Excise Tax, imposed upon
the Gross-Up Payment, you retain an amount of the Gross-Up
Payment equal to the Excise Tax imposed upon the Payment;
provided, however, that if the aggregate value of the CIC
Payment is less than 115% of the product of three times your
"base amount" (as defined in Section 280G(b)(3) of the Code)
(such product, the "GOLDEN PARACHUTE THRESHOLD"), then you
shall not be entitled to any Gross-Up Payment and, instead,
the CIC Payment shall be reduced to an amount equal to $1.00
less than the Golden Parachute Threshold.
(b) Termination by You. This Agreement may be terminated at
any time by you by giving written notice to the Employer; provided that
if you terminate your employment for any reason other than as a result
of your death or Disability (as defined below) or other than as
provided in Sections 5(a)(iii), 5(c) or 5(d), you will give at least 3
months prior written notice to the Employer. The notice from you is
intended to be for the benefit of the Employer, and you agree that the
Employer may accept your notice in whole or in part without any further
obligation. The Employer, in its sole discretion, may require you to
use any accrued but unused vacation time (up to 22 days) during the
notice period, and any vacation time that remains unused will be
forfeited without payment. You further agree that, you will promptly
(and, in any case, prior to your departure) provide the Employer with
the name of your subsequent employer or other professional affiliation
and the position you intend to assume. In addition, you will forfeit
any unvested equity awards that have been granted to you prior to such
date of termination, unless your termination is for Good Reason within
12 months following a Change in Control.
(c) Special Termination. Notwithstanding Sections 5(a) or
5(b), if, on or prior to November 30, 2002, (x) your employment is
terminated by the Employer without Cause, (y) for reasons other than
for Cause, your responsibilities and duties are significantly reduced
or the terms and conditions of your employment are significantly and
adversely modified or (z) your primary office is relocated outside of
the metropolitan area of either New York City or Philadelphia,
resulting in a
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commute that would exceed your current commute from Warren, New Jersey
to either New York City or Philadelphia, and, as consequence, you
terminate your employment, you will be entitled to receive the
following in lieu of any payment or benefit under Sections 5(a) or
5(b), as applicable:
(i) Within 30 days of the occurrence of such event, a
lump sum payment from the Employer in cash in an amount equal
to $1,080,000;
(ii) Any unvested equity awards that have been
granted to you prior to the occurrence of such event will
become fully vested and exercisable, and any restrictions
applicable to any such award (other than any transfer
restrictions imposed by the Voting Agreement or the Transfer
Rights Agreement) will automatically lapse;
(iii) For 12 months following the occurrence of such
event, continued benefits under any employee benefit plans of
the Employer or its affiliates in which you participated at
the date of such event;
(iv) Retention of the Sign-On Bonus; and
(v) Access to appropriate and suitable office space
and the use of outplacement services for a reasonable period
of time following the occurrence of such event as necessary.
(d) Failure of Independence Relief On or Prior to December 31,
2002. If Monday is unable to obtain relief from the independence
obligations imposed by the U.S. Securities and Exchange Commission on
the member firms of PwC and their affiliates (i.e., the professional
principle and obligation that must be observed by a firm providing
public accounting services) through an IPO or otherwise on or prior to
December 31, 2002, you may, at any time during the 30-day period
immediately following December 31, 2002, terminate your employment with
the Employer. Upon such termination, which will not constitute a
termination of employment under Sections 5(a), 5(b) or 5(c), the
provisions of Section 8 shall not apply. Notwithstanding the foregoing,
this Section 5(d) shall cease to be operative if a Change in Control
(as defined below) occurs prior to Monday's obtaining of independence
relief and such relief is not obtained on or prior to December 31,
2002, Monday does not obtain such relief but you remain employed during
the 30-day period described above or Monday obtains such relief.
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(e) Any payment or provision of benefits under this Section 5
shall be conditioned, to the extent permitted by applicable law, upon
your execution of a release and waiver of claims in favor of and in
form satisfactory to the Employer.
6. Confidential and Proprietary Information.
(a) Confidential Information. At all times during your
employment with the Employer or its affiliates and thereafter, you will
hold in strictest confidence and not use or disclose to any person,
firm, corporation or any other organization or entity or in any medium
or forum (including, without limitation, the media and any Internet
chat rooms or other websites), including any representative or agent of
the foregoing, without prior written authorization of BermudaCo any
Confidential Information (as defined below). Because Confidential
Information is extremely valuable, BermudaCo and its affiliates take
measures to maintain its confidentiality and guard its secrecy.
Confidential Information may be copied, disclosed or used by you during
your employment only as necessary to carry out Employer business and,
where applicable, only as required or authorized under the terms of any
agreements between BermudaCo and its affiliates and their clients,
licensors and suppliers. You agree not to take or keep any Confidential
Information when you leave BermudaCo and its affiliates. If you are
ever asked to disclose any information or materials that are subject to
these confidentiality restrictions, pursuant to legal process or
otherwise, you must contact the Employer or the Office of General
Counsel (and, if the disclosure is not pursuant to legal process, you
must seek the Office of General Counsel's written consent) prior to any
such disclosure. These confidentiality restrictions are permanent and
do not lapse or cease upon your departure from BermudaCo and its
affiliates.
(b) Third-Party Information. You recognize that BermudaCo and
its affiliates have received and in the future will receive from third
parties their confidential or proprietary information subject to a duty
on their part to maintain the confidentiality of such information and
to use it only for certain limited purposes. You agree to hold all such
confidential or proprietary information in the strictest confidence and
not to disclose it to any person, firm, corporation or other
organization or to use it, except as necessary to carry out Employer
business and, where applicable, only as required or authorized under
the terms of any agreement between BermudaCo or its affiliates and such
third party.
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7. Insider Information.
You are prohibited from using or sharing information not publicly
disclosed, which you obtain during the course of your work for the Employer, for
your personal gain or advantage in securities transactions, or for the personal
gain or advantage of anyone with whom you improperly share this information.
This restriction applies to such information related to any company, and not
just the clients (and their affiliates) of BermudaCo and its affiliates.
8. Non-Competition; Non-Solicitation; No-Hire.
(a) Covenants. In consideration of your employment by the
Employer, you agree that you shall not, for a period ending 18 months
following the termination of your employment with BermudaCo and its
affiliates (the "RESTRICTED PERIOD"):
(i) associate (including, without limitation,
association as a sole proprietor, owner, employer, director,
partner, principal, investor, joint venturer, shareholder,
associate, employee, member, consultant, contractor or
otherwise) with any Competitive Enterprise (as set forth in
Exhibit A) or any of the affiliates, related entities,
successors or assigns of any Competitive Enterprise; provided,
however, that with respect to the equity of any Competitive
Enterprise that is or becomes publicly traded, your ownership
as a passive investor of less than 1% of the outstanding
publicly traded stock of a Competitive Enterprise shall not be
deemed a violation of this Section 8(a)(i);
(ii) directly or indirectly solicit, or assist any
other person in soliciting, any Client (as defined below) or
Prospective Client (as defined below) for the purpose of
seeking an engagement to perform or provide any services in
competition with the Consulting Business (as defined in the
Redemption Agreement, as defined below) to such Client or
Prospective Client; perform or provide, or assist any other
person in performing or providing, services in competition
with the Consulting Business for any Client or Prospective
Client; or interfere with or damage (or attempt to interfere
with or damage) any relationship and/or agreement between
BermudaCo or its affiliates and a Client or Prospective
Client; or
(iii) directly or indirectly, solicit, hire, employ
or retain (or assist any other person in soliciting, hiring,
employing or retaining) any employee or representative or
other agent of BermudaCo or its affiliates, including, without
limitation, any
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former employee or representative or other agent of BermudaCo
or its affiliates or any of their predecessors (including,
without limitation, PwC Consulting and its affiliates) who
ceased working for BermudaCo or its affiliates (or any of
their predecessors, including PricewaterhouseCoopers LLP)
within the 12-month period before or after the date on which
your employment with BermudaCo or its affiliates terminated,
in connection with or for the purpose of bringing about a
termination of an existing employment or service relationship
(or, in the case of former employees or representatives or
other agents, seeking to engage such persons to perform or
provide services in competition with the Consulting Business).
You acknowledge that your covenants under this Section 8 are a
condition precedent to your employment under this Agreement. In addition, in
light of your education, skills, abilities and financial resources, you agree
that you will not assert, and it should not be considered, that any provisions
of this Section 8 prevent you from earning a living or otherwise are void,
voidable or unenforceable or should be voided or held unenforceable.
The Partners Committee (as defined in the Voting Agreement) is
authorized to waive any or all of the foregoing restrictions, or any portion
thereof; provided, however, that the Partners Committee must first obtain the
written consent to such waiver of the Chief Executive Officer of BermudaCo (or
his or her designee), who may grant or withhold such consent in his or her sole
and absolute discretion.
(b) Remedies Upon Breach.
(i) Liquidated Damages. You agree that if you were to
breach any provision of this Section 8, BermudaCo and its
affiliates would suffer damages that are not readily
ascertainable. Accordingly, in addition to and without
limiting any remedies in law or in equity that may be
available to BermudaCo and its affiliates for the breach of
this Section 8, including, without limitation, injunctive and
other equitable relief, you agree that in the event of a
breach of this Section 8 by you prior to the third anniversary
of the IPO Date, as reasonably determined by the Partners
Committee, you shall pay to BermudaCo (or a designated
affiliate) within 30 days following such determination and a
written demand therefor, a cash payment in an amount equal to
100% of the Cash Income Guarantee (or such lesser amount as
may be designated by the Partners Committee in its sole and
absolute discretion), as and for liquidated damages
("LIQUIDATED DAMAGES"). You acknowledge and agree that the
payment
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required by this Section 8 is a reasonable forecast of the
damages likely to result from such breach and is not a penalty
of any kind.
You agree that the payment of Liquidated Damages shall not be construed
as a release or waiver by BermudaCo or its affiliates of the right to prevent
the continuation of any such breach of this Section 8 in equity or otherwise and
shall not preclude or be construed to preclude BermudaCo or its affiliates from
making a showing of irreparable injury or any other element that may be
necessary to secure injunctive relief.
(ii) Injunctive Relief. You acknowledge and agree
that any remedy at law available to BermudaCo and its
affiliates for any breach of the covenants contained in this
Section 8 would be inadequate and that for any breach of such
covenants, BermudaCo and its affiliates shall, in addition to
other remedies as may be available to it at law or in equity,
or as provided for in this Agreement, be entitled to an
injunction, restraining order or other equitable relief,
without the necessity of posting a bond, restraining you from
committing or continuing to commit any violation of the
covenants. You agree that proof shall not be required, that
monetary damages for breach of the provisions of this
Agreement would be difficult to calculate and that remedies at
law would be inadequate.
(c) Non-Application. The provisions of this Section 8 shall
not apply if your employment is terminated by the Employer for reasons
other than for Cause within 12 months following a Change in Control or
if you voluntarily terminate your employment for Good Reason.
9. Minimum Ownership Guidelines. You agree to abide by all mandatory
minimum ownership guidelines with respect to LuxCo shares and/or BermudaCo
shares, to be established from time to time by the Employer.
10. Data Privacy. The Employer will hold and process any personal
information which you provide to it in connection with your employment. The
Employer may, from time to time, make your personal information available to
other entities within or outside the Employer, including outside of the United
States (or any other jurisdiction in which you may reside or be employed). You
acknowledge and consent to such transfer (including by electronic transfer)
and/or processing of such personal information within or outside the Employer,
including outside of the United States (or any other jurisdiction in which you
may reside or be employed).
11. Independence. Independence is a professional principle and
obligation that must be observed by employees of a firm providing public
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accounting services. Independence obligations prohibit, among other things, you,
your spouse/cohabitant and your dependents from holding certain positions with
or investing in certain audit/attest clients of the member firms of PwC and
their affiliates and such clients' affiliates. Similarly, a non-dependent close
relative's position with or material investment in an audit/attest client of the
member firms of PwC and their affiliates may impair your compliance with PwC's
independence rules. Your position, job description, office location and client
associations determine the applicability of specific provisions of
PricewaterhouseCoopers LLP's independence policy to you. Because it is important
that you become familiar and comply with PricewaterhouseCoopers LLP's
independence policy, you agree to review PricewaterhouseCoopers LLP's policies
and materials regarding independence. Before joining PricewaterhouseCoopers LLP
and periodically thereafter, you will be required to confirm your compliance
with PricewaterhouseCoopers LLP's independence policy.
In connection with your independence obligations,
PricewaterhouseCoopers LLP and/or the U.S. Securities and Exchange Commission
may request, and you agree to provide, relevant financial and tax information
and up-to-date records of your investment portfolio. You may also be required to
maintain a current record of your financial holdings (but not their value) in a
PricewaterhouseCoopers database. If an impairment of PricewaterhouseCoopers
LLP's independence or a conflict of interest exists or is likely to occur, you
may be required to dispose of securities or resolve other independence issues on
short notice and on terms that are disadvantageous to you. You also may be
required to relocate to another PricewaterhouseCoopers LLP office or even to
leave PricewaterhouseCoopers LLP.
This Section 11 shall cease to be operative if Monday is able to obtain
relief from the independence obligations imposed on the members firms of PwC and
their affiliates through an IPO or otherwise
12. Assignability. You may not assign any of your rights or obligations
under this Agreement. This Agreement shall be binding upon and inure to the
benefit of the Employer's successors and assigns and your legal representatives.
Without limiting the generality of the foregoing, the Employer may assign its
rights and delegate its duties under this Agreement in whole or in part to any
affiliate of the Employer or to any transferee of all or a portion of the assets
or business to which this Agreement relates.
13. Severability. If any term or condition set forth in this Agreement
is found by a court to be unenforceable, then the remaining terms and conditions
will remain in full force and effect. Terms and conditions found to be
unenforceable, if any, will be modified by the court to conform to a provision
that most closely expresses the intent of the unenforceable term or condition.
Without limiting the generality of the foregoing, if, at the time of any
enforcement of Section 8, an
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arbitrator or court holds that the duration, scope or area restrictions stated
in such Section 8 are unreasonable under circumstances then existing, the
parties agree that the maximum duration, scope or area deemed reasonable under
such circumstances will be substituted for the stated duration, scope or area
and that the court will be allowed to so revise the restrictions contained in
such Section 8.
14. Applicable Law; Dispute Resolution.
(a) BermudaCo is a global entity, including offices throughout
the United States and having executive offices in New York City;
accordingly, this Agreement is governed by the laws of the State of New
York regardless of your practice location and irrespective of the
principles of conflicts of law.
(b) Any dispute or controversy arising under or in connection
with this Agreement will be settled exclusively by arbitration in New
York City, in accordance with the rules of the American Arbitration
Association then in effect. Notwithstanding the foregoing, the Employer
may bring an action or special proceeding in any court of competent
jurisdiction for the purpose of compelling you to arbitrate, seeking
temporary or preliminary relief pending resolution of a dispute between
the Employer and you and/or enforcing an arbitration award, and, for
the purposes of this Section 14(b), you expressly consent to the
application of Section 14(a) to any such action or proceeding. You
agree that proof shall not be required that monetary damages for breach
of the provisions of the Agreements would be difficult to calculate and
that remedies at law would be inadequate, and you irrevocably appoint
the General Counsel of BermudaCo, Monday Ltd, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇. (or, if different, the then-current
principal business address of the duly appointed General Counsel of
BermudaCo) as your agent for service of process in connection with any
such action or proceeding and agree that service of process upon such
agent, who shall promptly advise you of any such service of process,
will be deemed in every respect effective service of process upon you
in any such action or proceeding.
15. Representations.
(a) You acknowledge that you have not relied on any
representations or statements, whether oral or written, regarding your
employment with the Employer, other than as contained in this
Agreement.
(b) You acknowledge that you have executed or will promptly
execute a transfer rights agreement attached as Exhibit A (the
"TRANSFER RIGHTS AGREEMENT"), a voting agreement attached as Exhibit B
("VOTING
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AGREEMENT") and an intellectual property agreement attached as Exhibit
C ("INTELLECTUAL PROPERTY AGREEMENT"), and agree that the terms of all
such agreements are incorporated by reference in this Agreement and
remain in full force and effect.
(c) In accepting employment with the Employer, you represent
that you have not taken, and will not take in connection with such
employment, any action that would violate any contractual or other
restriction or obligation that is binding on you or any continuing duty
you may owe to others.
(d) You agree and acknowledge that no one (including, without
limitation, PricewaterhouseCoopers LLP, BermudaCo and their respective
affiliates) has offered or agreed to indemnify or hold you harmless as
to and/or against any risk(s) that you may currently have or that you
may hereafter incur with respect to any of your former clients,
employers or partnerships of which you were a member.
16. Notices. Any communication, demand or notice to be given under this
Agreement will be duly given (and shall be deemed to be received) when delivered
in writing by hand or first class mail or by facsimile to a party at its address
as indicated below:
If to you,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Monday Consulting US, Inc.
c/o Monday Ltd
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: General Counsel
(or, if different, the then-current principal business address
of the duly appointed General Counsel of BermudaCo)
14
If to the Employer,
Monday Consulting US, Inc.
c/o Monday Ltd
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: General Counsel
(or, if different, the then-current principal business address
of the duly appointed General Counsel of BermudaCo)
with a copy to:
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇.▇.▇.
Facsimile: 212-450-3800
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Unless otherwise provided to the contrary in this Agreement, any notice which is
required to be given in writing pursuant to the terms of this Agreement may be
given by facsimile or electronic mail.
17. Entire Agreement; Modifications. You acknowledge that this
Agreement (together with the Transfer Rights Agreement, the Voting Agreement and
the Intellectual Property Agreement) contains the entire agreement between the
parties with respect to the subject matter in this Agreement (and therein),
supersedes all prior oral or written agreements or understandings with the
Employer and its affiliates (and their predecessors, including
PricewaterhouseCoopers LLP) (including the offer letter dated April 25, 2002
from ▇▇▇ ▇. ▇'▇▇▇▇▇, the Original Employment Agreement and the side letter dated
June 6, 2002 from ▇▇▇ ▇. ▇'▇▇▇▇▇) and may be modified only by a writing signed
by the Employer.
18. Definitions.
(a) "CAUSE" means any of the following conduct by you: (i)
embezzlement, misappropriation of corporate funds or other material
acts of dishonesty; (ii) commission or conviction of any felony, or of
any misdemeanor involving moral turpitude, or entry of a plea of guilty
or nolo contendere to any felony or misdemeanor (other than a minor
traffic violation or other minor infraction); (iii) engagement in any
activity that you know or should know could harm the business or
reputation of
15
BermudaCo or its affiliates; (iv) material failure to adhere to the
Employer's corporate codes, policies or procedures; (v) a breach of any
covenant in this Agreement, the Voting Agreement, the Transfer Rights
Agreement or the Intellectual Property Agreement, or a material breach
of any other provision of this Agreement, in any case if the breach is
not cured to the Employer's satisfaction within a reasonable period
after you are provided with notice of the breach (no notice and cure
period is required if the breach cannot be cured); or (vi) violation of
any statutory, contractual or common law duty or obligation to the
Employer, including without limitation the duty of loyalty.
(b) "CHANGE IN CONTROL" means the first to occur of:
(i) an individual, corporation, partnership, group,
association or other entity or person, other than BermudaCo or
any employee benefit plan(s) sponsored by BermudaCo or its
affiliates, is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the U.S. Securities and Exchange Act of
1934, as amended), directly or indirectly, of 40% or more of
the combined voting power of BermudaCo's outstanding
securities ordinarily having the right to vote at elections of
directors;
(ii) individuals who constitute the Board of
Directors (or analogous body) of BermudaCo (the "BOARD") as of
the date of the IPO (the "INCUMBENT BOARD") cease for any
reason to constitute at least a majority thereof; provided
that any Approved Director (as defined below) shall be, for
purposes of this subsection (ii), considered as though such
person were a member of the Incumbent Board. An "APPROVED
DIRECTOR" means any person becoming a director subsequent to
the date of the IPO whose election, or nomination for election
by BermudaCo's shareholders, was approved by a vote of at
least three-quarters of the directors comprising the Incumbent
Board (either by a specific vote or by approval of the proxy
statement of BermudaCo, in which such person is named as
nominee of BermudaCo, for director), but shall not include any
such individual whose initial assumption of office occurs as a
result of either an actual or threatened election contest or
other actual or threatened solicitation of proxies or consents
by or on behalf of an individual corporation, partnership,
group, association or other entity or person, other than the
Board;
(iii) the consummation of the transactions
contemplated by a plan or agreement providing (A) for an
amalgamation, merger or consolidation of BermudaCo, other than
16
with a wholly-owned subsidiary and other than an amalgamation,
merger or consolidation that would result in the voting
securities of BermudaCo outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving
entity) more than 65% of the combined voting power of the
voting securities of BermudaCo or such surviving entity
outstanding immediately after such merger or consolidation, or
(B) for a sale, exchange or other disposition of all or
substantially all of the assets of BermudaCo; provided that if
any of the transactions enumerated in this subsection (iii)
occurs, the Board shall determine the effective date of the
Change in Control resulting therefrom for purposes of the Plan
(and if no such determination is made, the date on which the
transaction in question is closed); or
(iv) the approval by the shareholders of BermudaCo of
a complete liquidation or dissolution of BermudaCo.
Notwithstanding the foregoing, a Change in Control shall not be deemed to have
occurred with respect to you if you are part of the purchasing group that
consummates the Change in Control transaction. You shall be deemed "part of a
purchasing group" for purposes of the preceding sentence if you are an equity
participant in the purchasing entity or group (except for: (x) passive ownership
of less than 1% of the shares of the purchasing entity; or (y) ownership or
equity participation in the purchasing entity or group which is otherwise not
significant, as determined prior to the Change in Control by a majority of the
directors who are not such participants).
(c) "CLIENT" means any person, firm, corporation or any other
organization or entity for whom BermudaCo or its affiliates or any of
their predecessors (including, without limitation, member firms of PwC
and their affiliates) provided services in the Consulting Business
within the 12-month period before or after the date on which your
employment with BermudaCo and its affiliates terminated.
(d) "COMMON SHARES" means BermudaCo's Class A common shares.
(e) "CONFIDENTIAL INFORMATION" means, with respect to
BermudaCo and its affiliates, any non-public information regarding
BermudaCo and its affiliates and any proprietary information, technical
data, trade secrets and know-how (including, without limitation,
research, product plans, products, services, customer lists and
customers), markets, software, developments, inventions, processes,
formulas, technology, designs, drawings, engineering, hardware
configuration information,
17
marketing, finances, employee data and any other information relating
to employees, memoranda and other materials prepared for internal
purposes, Lotus Notes and any other business information disclosed to
you by BermudaCo or its affiliates either directly or indirectly in
writing, orally or by drawings or observation. You further understand
that "CONFIDENTIAL INFORMATION" will not include any of the foregoing
items which has become publicly known and made generally available
through no wrongful act of yours or of others who were under
confidentiality obligations as to the item or items involved.
(f) "DISABILITY" means your becoming entitled to receive
benefits under the Employer's long-term disability plan applicable to
you as may be in effect from time to time (or if there is no such plan,
your inability to perform in all material respects your duties and
responsibilities under this Agreement for a period of 6 consecutive
months or for an aggregate of 9 months in any 24 consecutive month
period by reason of a physical or mental incapacity). Any determination
regarding "DISABILITY" made by the Employer will be final and
conclusive for all purposes of this Agreement.
(g) "GOOD REASON" means (i) at any time, a material breach by
the Employer of its contractual obligations to you under this Agreement
or under any material employee benefit plan of the Employer or its
affiliates in which you participate or (ii) within 12 months following
a Change in Control, a reduction in your compensation, a material
diminution in your position and responsibilities or a relocation of
your office without your consent (resulting in a commute that would
exceed your then-current commute), in each case as compared to your
situation immediately prior to such Change in Control.
(h) "IPO" means the initial public offering of the Common
Shares.
(i) "IPO DATE" means the closing date of the IPO.
(j) "ORIGINAL EMPLOYMENT AGREEMENT" means the employment
agreement dated as of April __, 2002 between PricewaterCoopers LLP and
you.
(k) "PROSPECTIVE CLIENT" means any person, firm, corporation
or any other organization or entity for whom BermudaCo or its
affiliates or any of their predecessors (including, without limitation,
member firms of PwC and their affiliates) have had any negotiations or
discussions regarding the possible performance of services in the
Consulting Business
18
within the 12-month period preceding your termination of employment
with BermudaCo and its affiliates.
(l) "REDEMPTION AGREEMENT" means the Redemption and
Non-Competition Agreement dated as of April 30, 2002 among BermudaCo,
Luxco, the member firm(s) signatory thereto and the Covered Persons
signatory thereto (as amended from time to time).
(m) "TRANSFER" means any sale, transfer, pledge, hypothecation
or other disposition, whether direct or indirect, whether or not for
value, and includes any disposition of the economic risks of ownership,
including short sales of BermudaCo's securities, option transactions
(whether physical or cash settled) with respect to BermudaCo's
securities, use of equity or other derivative financial instruments
relating to BermudaCo's securities and other hedging arrangements with
respect to BermudaCo's securities, in each such case other than
Permitted Basket Transactions (as defined in the Voting Agreement).
19. Headings. Section headings are used herein for convenience of
reference and shall not affect the meaning of any provision of this Agreement.
20. Counterparts. This Agreement may be signed in counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
19
IN WITNESS WHEREOF, the parties hereto have caused this Employment
Agreement to be executed and delivered on the date first above written.
PwCC LP
----------------------------------------
By:
Title:
PRICEWATERHOUSECOOPERS LLP
----------------------------------------
By:
Title:
ACCEPTED AND AGREED
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Signature:
---------------------------