Form of Directorship Agreement - Accenture Corp. and Masakatsu Mori
The following Exhibit No. 10.5 constitutes a fair and accurate English
translation of the original copy of this document.
/s/ Douglas G. Scrivner
Douglas G. Scrivner
General Counsel and Secretary of Accenture Ltd
THIS AGREEMENT is made the 1st day of June, 2001, between Accenture
Corporation whose registered office is at 7-1-16 Akasaka, Minato-ku, Tokyo 107
("the Company") and ____________________________ of ___________________________
___________________________________________________________ ("the Director").
WHEREAS, the Company, a wholly-owned subsidiary of Accenture BV (the
"Shareholder"), wishes to employ Director to perform services on its behalf,
WHERAS, the Director is willing and able to perform such services on behalf of
the Company, and
NOW, THEREFORE, the parties hereto agree as follows:
Term and Termination
1. The term of service pursuant to this Agreement shall commence on the later
of (i) the day upon which Director is appointed director of the Company by
resolution of the Shareholder or (ii) the day upon which this Agreement is
executed by the parties, and shall terminate upon the Director's
resignation or removal from his position as director of the Company or upon
expiration of his term of office as director of the Company as set forth in
the Company's Articles of Incorporation ("Articles"); provided that, if the
Director is reappointed to a further term or terms of office as director of
the Company, this contract shall be automatically extended and shall
terminate upon the Director's resignation or removal from his position as
director of the Company or upon expiration of such further term or terms of
office as director of the Company.
2. Except as otherwise provided herein, this Agreement shall continue until
the Company terminates it by giving to the Director not less than four (4)
months prior notice, or until the Director terminates it by giving to the
Company not less than one (1) month prior notice. Notice may be given at
anytime with reasonable cause. The Company reserves the right to remove the
Director from office without prior notice by paying salary in lieu notice.
In connection with Directors resignation or removal pursuant to this clause
2, the Company and Director agree to comply with all applicable procedures
and requirements under the Japanese Commercial Code ("JCC"). based on any
of causes set forth in the clause 1.
3. The Director shall serve the Company in the role of director (and
representative director as the case may be) and shall at all times comply
with the lawful and reasonable directions of the Board.
4. The Director shall (a) devote his full time and attention to the business
and affairs of the Company for whom he is required to perform duties; and
(b) shall not without the prior written consent of the Board directly or
indirectly carry on or be engaged concerned or interested in any other
business trade or occupation.
5. The Director's normal place of work shall be the Company's offices or such
other place of business as the Company may reasonably determine from time
to time]. As a consequence of project assignments, the Director may be
required and hereby agrees to perform duties at premises of clients of the
Company when so reasonably requested or directed.
6. The Director shall comply with all laws, rules or codes of conduct in force
from time to time required by any regulatory body in relation to the
business of the Company or the status of the Director or which the Company
shall reasonably determine are necessary for the proper functioning of its
business. The Director shall also comply with all Accenture policies which
are applicable from time to time and as amended from time to time.
7. The Director hereby acknowledges that, in the event the Director gives or
receives notice to resign if required by the Company to protect the
business and commercial interests of the Company, the Company may require
the Director to remain away for a period not exceeding the period of notice
from the premises of the Company or any client, provided always that during
any such period the Company shall continue to pay salary and provide all
benefits referred to in clause 8 of this Agreement and the Director hereby
agrees (a) that the Company shall be under no obligation to provide the
Director with any work to perform or duties to discharge during such
period; and (b) that all the Director's obligations under this Agreement,
except for his obligation under clause 4.(a) remain in full force and
effect during such period.
Remuneration and benefits
8. The Company shall pay the Director during the term of this Agreement annual
base salary and other forms of compensation and benefits in the amounts and
form determined by the resolution of the Shareholder (and if applicable,
the Board) from time to time at its sole discretion. Pursuant to the
resolution of the Shareholder (and if applicable the Board), the Company
may revise Director's annual base salary taking into consideration the
Director's performance and ability.
9. Pursuant to the resolution of the Shareholder (and if applicable the
Board), the Company may pay the Director during the term of this Agreement
a bonus at its absolute discretion at such times and of such amounts as it
may decide from time to time if at all.
10. The Director will be eligible to enroll in retirement benefit programs that
Shareholder may provide at its sole discretion at such times and in such
amounts it may decide from time to time pursuant to Shareholder resolution.
11. The Company shall provide the Director during the term of this Agreement
with social insurance as required by law.
12. The Director is entitled to paid vacation amounting to twenty (20) working
days during the calendar year beginning 1 September each year (the "Year").
This entitlement accrues at the rate of 1.67 days for each complete
calendar month of service. If at the conclusion of the Year, the Director's
accrued entitlement to paid vacation exceeds 40 days, then that entitlement
to paid vacation in excess of 40 days (which may be carried forward) shall
be forfeited and no payment shall be due in respect of that forfeiture.
Notwithstanding the foregoing, any unused vacation that the Director has
accrued as of May 31, 2001 (as a partner of Accenture, a Japan
partnership), and hereafter accrues through August 31, 2001 (FY 2001),
shall be handled in accordance with the current existing partner vacation
policy. For the avoidance of doubt, this means that the Director can carry
up to 320 hours of unused vacation on June 1, 2001, and carry up to 160
hours of unused FY 2001 vacation into FY 2002 on September 1, 2001. Any
unused FY 2001 vacation will expire on August 31, 2002. If the Director
leaves the Company, the Director shall not receive any compensation for any
unused vacation. In addition, Director shall not receive any compensation
for any unused FY 2001 vacation that expires on August 31, 2002.
13. Upon the termination of this Agreement, the Director will receive payment
in respect of any paid vacation entitlement which has accrued but which has
not been taken. In the event that the Director has taken paid vacation in
excess of accrued entitlement, then the appropriate deduction will be made
from Remuneration or from other sums due to the Director.
14. The Director is entitled to take national holidays stipulated and in force
in the National Holidays Law and other holidays as designated by the
Company without deduction from Remuneration. The Director may on exception
be required to work on a national or other holiday. Reasonable notice of
this requirement will be given.
15. The Director is required to give prior notice in writing of the intention
to take paid vacation. Written notice should be given to the Director's
16. For the avoidance of doubt, details relating to the accrual of paid
vacations shall be covered in the Work Rules.
17. In the event that the Director is unable to carry out his duties by reason
of sickness or injury he shall be entitled to sick pay in accordance with
the relevant Company policy and insurance, if applicable.
18. Subject always to the Company's policies, the Director will be reimbursed
for all reasonable out-of-pocket expenses incurred as a result of, and in
the course of, this service and is provided with an expense account for
this purpose. The Company reserves the right to correct an adverse expense
account balance by making the necessary deductions from any amounts due to
the Director from the Company.
Company Property and Confidentiality
19. The Director must not make use of, divulge or communicate to any person
(other than with proper authority) any of the trade secrets or other
confidential information of or relating to the business and the financial
affairs of the Company or Associated Company (as defined in paragraph 42
below) or any of their clients or suppliers, including (but not limited to)
details of clients, product details, technical information and data,
prices, discounts, or terms of business which the Director may receive or
become aware of as a result of being director. This obligation of
confidentiality will continue to apply without limit of time after the
termination (for whatever reason) of this Agreement. Further, the Director
will also be required to comply with the terms of any Accenture Policies
relating to the protection of confidential information from time to time.
20. Any proprietary rights whatsoever, including without limitation, patents,
copyright, utility rights and design rights in the results of, the
development and the application of all work produced by the Director during
or in consequence of his services, whether alone or in conjunction with
others and whether during normal working hours or not, including (but not
limited to) any invention, design, discovery or improvement, computer
program, documentation, confidential information, copyright work or other
material which the Director conceives, discovers or creates during or in
consequence of his services on behalf of the Company shall belong to the
Company absolutely. The Director agrees, at the Company's expense, to
provide, during and after the term of this Agreement, all such assistances
as the Company reasonably considers necessary, to secure the vesting of
such rights in the Company or its nominees. Further, the Director will also
be required to comply with the terms of any Accenture Policies relating to
the protection of intellectual property from time to time. The provisions
of this clause 20 are without prejudice to Article 35 of Patent Law and
Article 15 of Copyright Law.
21. The Director acknowledges that he/she has read the current Accenture Data
processing of personal data relating to the Director in accordance with the
22. In particular, the Director consents to:
22.1 the processing of sensitive personal data about him or her to the
limited extent, and for the purposes described in the Policy; and
22.2 the transfer worldwide of personal data held about him or her by
Accenture to other Directors and offices of Accenture's global
organisation and to third parties where disclosure to such third
parties is required in the normal course of business or by law.
23. The references to information "about him or her" include references to
information about third parties such as a spouse and children (if any)
which are provided to Accenture by the Director on their behalf. The
reference to "sensitive personal data" is to the various categories of
personal data identified by European data privacy laws as requiring special
treatment, including in some circumstances the need to obtain explicit
consent. These categories comprise personal data about racial or ethnic
origin, political opinions, religious or other similar beliefs, trade union
membership, physical or mental health, sexual life or criminal record.
24. In addition, the Director agrees to treat any personal data relating to
other Directors of the Company or Associated Company to which he or she has
access in the course of his services, in accordance with the Data Privacy
Policy and all legal requirements. In particular, the Director will not use
any such data other than in connection with and to the extent necessary for
the purposes of his services. Any infringement will result in the invoking
of the Accenture Disciplinary Policy.
Standards of Conduct and Behaviour
25. The Director is required to comply with all the Company's current Accenture
policies relating to conduct and behavior which are applicable to him/her
from time to time and as amended and from time to time.
26. The Director is not authorised to enter into any contract or similar
commitment or sign any document in the name of or on behalf of the Company
and is excluded from doing so unless expressly authorised to do so by the
representative director of the Company. Notwithstanding the foregoing, in
the event the Director is appointed representative director of the Company,
the Director shall generally represent the Company in dealings with third
parties in accordance with guidelines and instructions of the Board and the
Japanese Commercial Code.
27. The Director must return to the Company on request and, in any event, on
termination of his services, all documents and tangible items, including
books, records, tapes, magnetic media, photos, correspondence and other
papers or electronic records of whatsoever nature, kept or made by
Directors relating to the business of the Company or Associated Company or
its clients (without taking copies or extracts thereof) which belong to the
Company or Associated Company or which contain or refer to any confidential
information relating to the Company or Associated Company and which are in
the Director's possession or control.
28. The Director hereby agrees that the designation director confers no
authority to bind the Company or Associated Company and such authority will
not be inferred in any statement or representation made to third parties by
the Director, unless the Director is appointed representative director of
Working Overseas on behalf of the Company
29. The Director may be required by Company to perform services outside Japan.
In such event, the Director shall perform services overseas in accordance
with the provisions of the Company Inter and Intra Area Assignment Policies
as applicable to him/her from time to time and as amended from time to
30. The Director agrees that, in order to make tax equalisation payments during
the assignment, the normal Japanese tax withholding may be replaced with
hypothetical tax withholding and the Director hereby authorises the Company
to withhold hypothetical tax (as defined in the Tax Equalisation Policy)
from the Director's salary on a monthly basis.
31. The Company may introduce a non-contractual disciplinary procedure, which
will apply to Director, a copy of which will be made available to the
Director on request.
32. The Director's term shall terminate with immediate effect when the Director
reaches the retirement age established by Accenture Policy as amended from
time to time.
33. If the services of the Director is terminated by reason of the liquidation
of the Company for the purposes of reconstruction or amalgamation or as
part of any arrangement for the amalgamation or reconstruction of the
Company not involving insolvency and the Director is offered employment
with any concern or undertaking resulting from such reconstruction or
amalgamation on terms and conditions which taken as a whole are not less
favourable than the terms of this Agreement the Director shall have no
claim against the Company in respect of such termination.
34. On termination the Director shall:
(a) at the request of the Board (as defined in paragraph 42 below)
immediately resign any directorship or office the Director may hold by
virtue of the Director's performance hereunder (without prejudice to
any claims he may have for damages for breach of this Agreement); and
(b) immediately repay all outstanding debts and loans due to the Company;
(c) The Director must return to the Company on request and, in any event,
on termination of this Agreement, all documents and tangible items as
more particularly described in paragraph 27.
Post termination undertakings
35. In paragraph 36, "Restricted Client" means any client of the Company or
Associated Company or any business in which the Company or Associated
Company has a shareholding with whom the Director had dealings or recorded
time to a job number relating to that Client within a period of 2 years
immediately prior to the termination of this Agreement, and a "Restricted
Employee" shall mean any senior or professional employee or any employee in
possession of confidential information relating to the Company or
Associated Company and in all cases that such employee was employed by the
Company or Associated Company at the date of cessation of services of the
Director and was an employee with whom the Director had dealings or
36. The Director hereby agrees that for a period of 2 years following the
termination of his services the Director shall not in the last city or town
and its adjacent cities or towns where the Director worked immediately
prior to the termination;
36.1 In competition with the Company or Associated Company render services
which are the same or similar to those services offered by the Company
or Associated Company of a kind performed by the Director during the
12 months immediately prior to the termination of this Agreement to
any Restricted Client except where the Director offers such services
under a contract of service as a director or employee of the
36.2 Solicit the business of, or endeavour to solicit the business of, any
Restricted Client in competition with the business or services offered
by the Company or Associated Company;
36.3 Solicit, entice away, or endeavour to entice away or assist any third
party to solicit, entice away or endeavour to entice away from the
Company or Associated Company any Restricted Employee.
37. The periods during which paragraphs 36.1, 36.2 and 36.3 are expressed to
operate shall each be reduced by such period as the Director shall have
complied with a direction to perform no duties and/or not to enter all or
any premises of the Company or any Associated Company in accordance with
38. The undertakings contained in paragraphs 36.1, 36.2 and 36.3 are intended
to be separate and severable and enforceable as such.
39. The Director warrants that he has lawful authority to perform services in
Japan and that by entering into this Agreement he is not and will not be in
breach of any express or implied term of any contract court order or any
other legal obligation.
40. The Company shall be entitled at any time during the term of this Agreement
to set off and/or make deductions from the Director's salary or other sums
due to him monies due to the Company or any Associated Company in respect
of any overpayment debt or other monies due from him.
Variation of Contract
41. The Company reserves the right on giving reasonable notice to and obtaining
the consent of the Director to vary the terms of this Agreement.
Definitions and interpretation
42. In this Agreement unless the context otherwise requires:
"Associated Company" means Accenture Limited, a company incorporated in
Bermuda, Accenture SCA, a company incorporated in Luxembourg, and their
Subsidiaries. "Subsidiaries" means, in relation to an Entity, any other
Entity: (a) in which the first Entity owns or controls 80% or more of the
voting rights (being the rights conferred upon shareholders in respect of
their shares; or, in the case of an Entity not having a share capital, on
members, to vote at general meetings of that entity on all, or
substantially all, matters); or (b) in which the first Entity has the right
under the constitution of that Entity or by reason of the operation of an
agreement among the members of that Entity to direct the overall policy of
that undertaking or to alter the terms of its constitution. "Entity" means
any body corporate or partnership or unincorporated association carrying on
any trade, business or other activity, with or without a view to profit.
Associated Company shall not extend to cover any Entity of which the
Director does not carry out material duties in the period of 12 months
prior to the termination of the services;
"Board" means the Board of Directors of the Company including any duly
appointed committee thereof or the directors present at a meeting of the
directors of the Company at which a quorum is present but excluding the
43. In this Agreement the headings are for convenience only and shall not
affect its construction or interpretation. References to clauses are
references to clauses in this Agreement and references to a person shall
where the context permits include reference to a corporate body or an
unincorporated body of persons. Any word which denotes the singular shall
where the context permits include the plural and vice versa and any word
which denotes the masculine gender shall where the context permits include
the feminine and/or the neuter genders and vice versa. Any reference to a
statutory provision shall be deemed to include a reference to any statutory
amendment modification or re-enactment.
Governing Law and Arbitration
44. This Agreement contains the entire understanding between the parties and
supersedes all (if any) subsisting agreements arrangements and
understandings (written or oral) relating to the services of the Director
and all such agreements arrangements and understandings shall be deemed to
have been terminated by mutual consent. Any dispute arising out of the
Director's services with the Company (or the termination thereof) other
than a dispute in relation to the Article 268(1) of the JCC and the
provisions of clause 35, 36, 37 or 38 shall be referred to and finally
resolved by confidential arbitration under the Rules of Arbitration of the
Japan Commercial Arbitration Association. The arbitral tribunal shall
consist of three arbitrators, one of whom shall be nominated by the
Director and another of whom shall be nominated by the Company. The third
shall be the Chairman who shall
be jointly nominated jointly by the Director and the Company or, in the
event they are unable to agree within a reasonable period, by the other two
arbitrators. The arbitrators, including the Chairman, may be of any
nationality. The place and seat of any arbitration shall be Tokyo, Japan.
Judgement on any award may be entered in any court of competent
45. This Agreement is governed by and shall be construed in accordance with
SIGNED on behalf of the Company by
SIGNED by the Director