Exhibit 10.2


 


***Text
Omitted and Filed Separately


with
the Securities and Exchange Commission.


Confidential
Treatment Requested


Under
17 C.F.R. Sections 200.80(b)(4)


and
240.24b-2.


 


RATE SCHEDULE


 


THIS RATE SCHEDULE IS MADE THIS 19th DAY OF APRIL 2005


 


Between:


 


HSBC Holdings plc whose registered office is 8 Canada Square, London,
E14 5HQ (Registered Number 617987) which shall hereinafter be referred to as “HSBC”;
and:


 


Kanbay Europe Ltd. of Compass House, Vision Park, Histon Cambridge, CB4
9AD UK (Registered Number 3282049) which shall hereinafter be referred to as “Consultant”.


 


WHEREAS


 


This Rate Schedule establishes
the rates applicable to the Services to be delivered by Consultant and/or
Consultant Affiliates to HSBC and/or HSBC Group Members during the Term hereof.


 


1              Introduction


 


1.1             Unless otherwise
mutually agreed by the parties in writing, the Services affected by this Rate Schedule shall
be delivered under the Consultancy Services Global Supply Agreement dated April 19th,
2005 between the parties (the “Terms and Conditions”).  Unless otherwise stated herein, all
capitalized terms appearing in this Rate Schedule shall have the meanings
ascribed to them in the Terms and Conditions.


 


1.2             For the on-going
management of this Rate Schedule, Consultant shall procure that Kanbay
Incorporated Inc. (“Kanbay”) will undertake the responsibilities assigned to
Kanbay hereunder.


 


1.3             The interpretation and construction of this Rate Schedule shall
be subject to the following:


 


(a)              reference to:


 


(i)                  a document or agreement, or a provision of a
document or agreement, is to that document, agreement or provision as amended,
supplemented, replaced or novated; and


 


(ii)               a party to this Rate Schedule or to any
other document or agreement includes a permitted substitute or a permitted
assign of that party;


 


(b)              a singular word includes the plural, and vice
versa;


 


(c)               if an example is given of anything (including a
right, obligation or concept), such as by saying it includes something else,
the example does not limit the scope of that thing; and


 


(d)              the headings to clauses are for reference
purposes only and shall not affect the interpretation or construction of the
clauses.


 





















 


2              Term


 


2.1             The term of this Rate
Schedule (the “Term”) shall commence on April 1, 2005 (the “Effective
Date”) and expire on December 31, 2007 (the “Expiration Date”).


 


2.2             HSBC and Kanbay shall
commence good faith negotiations regarding the renewal or replacement of this
Rate Schedule no later than six months before the Expiration Date.  Consultant shall procure that Kanbay will
commence such negotiations.


 


3              Commercial
Terms


 


3.1             All Charges shall be
as specified in the applicable SoW. 
Unless otherwise mutually agreed the Charges for any Services to be performed
by Consultant Personnel on a time and materials basis shall be determined using
the rates and terms specified in this Rate Schedule and in particular,
those rates and terms set out in Exhibit A to this Rate Schedule.


 


3.2             HSBC and Consultant
shall procure that when HSBC and/or HSBC Group Members and Consultant and/or
Consultant Affiliates enter into SoWs, such SoWs shall be made in accordance
with the rates and terms specified in this Rate Schedule.


 


4              Confidentiality


 


4.1             The signatories of this Rate Schedule shall
and shall procure that their employees, agents and contractors and in the case
of Consultant, the Consultant Affiliates and in the case of HSBC, the HSBC
Group Members to, at all times, maintain strict confidentiality of the
provisions of this Rate Schedule except (a) where required by law or
regulation (including by the Financial Services Authority) to disclose such
information; or (b) with the prior written consent of the other
party.  If a party should be required by
law or regulation to make a disclosure of this Rate Schedule as referred
to in clause 4.1(a), the disclosing party shall
so far as lawful promptly inform the other party in writing of such a
requirement and provide reasonable assistance if that other party wishes to
challenge the requirement to make the disclosure.


 


4.2 HSBC and
Consultant shall be permitted to disclose this Rate Schedule to HSBC Group
Members and Consultant Affiliates provided such disclosure is strictly
necessary for the purposes of or in connection with this Rate Schedule and/or
the Terms and Conditions and/or a SoW and provided that HSBC and Consultant
shall each ensure that HSBC Group Members and Consultant Affiliates respectively comply with the confidentiality requirements of this Rate Schedule as
if they were parties to it.


 


4.3             Each party acknowledges
that damages will not be an adequate remedy for any breach of Clause 4 and
shall not seek to resist an application for an injunction in respect of any
breach or threatened breach of Clause 4 on the grounds that there is an alternative
adequate remedy in damages.


 


5              Termination


 


5.1    This Rate Schedule shall terminate:


 


5.1.1   immediately on the exercise by HSBC of any
right in Clause 18.1 of the Terms and


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Conditions;


 


5.1.2   subject to Clause 5.1.3, immediately on
written notice by HSBC to Consultant if Consultant fails to cure any material
or persistent default of any provision of this Rate Schedule within thirty
(30) days of written notice requiring the default to be remedied;


 


5.1.3   immediately on written notice by HSBC to
Consultant if Consultant commits a breach of Clauses 4, 6 or 8 of this Rate
Schedule; or


 


5.1.4   upon HSBC providing to Consultant at least
one hundred and eighty days (180) prior written notice of the termination of
this Rate Schedule for any reason whatsoever (including for HSBC’s convenience).


 


5.2             For the avoidance of doubt, termination of this Rate Schedule shall
subject to Clause 11.3, terminate the obligations in this Rate Schedule of
Consultant and HSBC respectively.  Notwithstanding
the foregoing, in the event that HSBC terminates this Rate Schedule pursuant
to Clause 5.1.4 above, HSBC’s payment obligations (if any) under Attachment 1
shall survive such termination, and HSBC shall make any such payments as described
therein.


 


6              Publicity


 


6.1             Consultant shall not
and shall procure that all Consultant Affiliates and Consultant Personnel do
not, disclose the making of this Rate Schedule in any journal magazine or
publication or any other medium or otherwise use HSBC’s or the HSBC Group
Members’ names or logos (including any trade marks) in any of its advertising
or publicity material without HSBC’s prior written consent which may be
withheld or given in HSBC’s absolute discretion.


 


6.2             Notwithstanding
Clause 6.1 however, Consultant and Consultant Affiliates may include a
reference to the name of HSBC Holdings plc and/or the specific legal entity
name of any HSBC Group Member which uses their Services (and not, for the
avoidance of doubt, any of HSBC’s logos or trade marks or any reference to
other HSBC Group Members) on their lists of clients.


 


7             Disputes


 


7.1             If at any time a
dispute arises out of or in connection with this Rate Schedule, HSBC and the
Consultant shall in the first instance meet in good faith with a view to resolving
the dispute within a period of ten (10) Business Days from the day the
dispute first arises.


 


7.2             Should the parties
not be able to resolve the dispute within the ten (10) Business Days, then
both parties shall refer the matter to their own appropriate level of senior
management respectively for resolution.


 


7.3             If the relevant
senior management are unable to resolve the dispute within a further ten (10) Business
Days, then the parties will attempt to settle the dispute by mediation in
accordance with the Centre for Dispute Resolution (CEDR) Model Mediation Procedure.
To initiate mediation the initiating party must give notice in writing to the
other party and send a copy of the notice to CEDR.  The mediation will start not later than ten (10) Business
Days after the


 


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notice.  Subject
to clause 7.5, the parties agree not to commence any court proceedings in
relation to the dispute until they have attempted to settle the dispute by
mediation and that mediation has either terminated or failed.


 


7.4             Unless otherwise
agreed in writing, the costs of any mediation carried out pursuant to this
clause 7 shall be shared equally between the parties.


 


7.5             Nothing in this Rate Schedule shall
prevent either party from taking such action as it deems appropriate (including
any application to a relevant court) for injunctive or other emergency or
interim relief.


 


8              Assignment


 


8.1             Consultant shall not
without the prior written consent of HSBC assign, sub-contract, transfer or
part with any right or obligation under this Rate Schedule nor any part
thereof nor delegate any of its responsibilities or obligations hereunder.


 


8.2             HSBC may assign,
transfer, part with or sub-contract any of its rights, responsibilities or
obligations under this Rate Schedule without the prior consent of the
Consultant.


 


9              Variation


 


No variation to this Rate
Schedule shall be effective unless in writing and signed by a duly
authorised officer of each of HSBC and Consultant.


 


10        Counterparts


 


This Rate Schedule may
be executed in any number of counterparts, each of which, when executed and
delivered, shall be an original, and all the counterparts together shall
constitute one and the same instrument.


 


11       General


 


11.1                  Entire Rate
Schedule


 


The provisions of this
Rate Schedule, as amended, shall constitute the entire agreement and
understanding between the parties with respect to its subject matter and,
unless otherwise expressly provided, supersede all prior agreements, representations,
statements, negotiations and undertakings (other than representations made
fraudulently).


 


11.2                  Severability


 


If any provision of this
Rate Schedule is held by a court to be invalid or unenforceable and can be
deleted without altering the essence of the Rate Schedule, the unlawful
provision will be severed and the remaining provisions will remain in full
force or effect.


 


11.3                  Survival


 


Clauses 4, 5, 6, 7, 8,
and 11 and all other provisions of this Rate Schedule intended to survive
termination shall survive termination as the context requires.


 


11.4                  Waiver


 


No relaxation,
forbearance, delay or negligence by either party in enforcing any of the terms
and conditions of this Rate Schedule or the granting of time by either
party to the


 


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other shall prejudice
affect or restrict the rights and powers of that party.  No waiver of any terms or conditions of this
Rate Schedule shall be effective unless made in writing and signed by the
party against which enforcement of the waiver is sought.  The waiver of any breach of any term or
condition of this Rate Schedule shall not be construed as a waiver of any
subsequent breach of any term or condition whether of the same or different
nature.  Except where otherwise
explicitly agreed all remedies in this Rate Schedule are cumulative and
not exclusive of any other remedy or right in this Rate Schedule or at
law.


 


11.5                  Third Parties


 


Except as set forth in
this Rate Schedule and throughout the Rate Schedule in relation to
HSBC Group Members and Consultant Affiliates, nothing in this Rate Schedule is
intended to, nor shall create any right enforceable by any third party or
person not a party to this Rate Schedule and the Contracts (Rights of
Third Parties) Act 1999 shall not otherwise apply to this Rate Schedule.  The consent of a third party (including an
HSBC Group Member or a Consultant Affiliate other than Kanbay) shall not be
required for the amendment, variation or termination of this Rate Schedule.


 


11.6                  No Partnership


 


No part of this Rate Schedule is
intended to create or record any employment, partnership, joint venture, agency
or other such relationship between HSBC, HSBC Group Members and the Consultant
or Consultant Affiliates or Consultant Personnel).  For the avoidance of doubt all Consultant
Personnel shall remain employees or suppliers to the Consultant or Consultant
Affiliates, and shall not be regarded as employees, agents, contractors or representatives
of any HSBC or HSBC Group Member.


 


11.7                  Governing Law


 


This Rate Schedule shall
be governed in all respects by the Laws of England and Wales and the parties
submit to the exclusive jurisdiction of the English Courts


 


 


IN WITNESS WHEREOF, the
parties have executed this Rate Schedule as of the dates accompanying the
signatures of their respective authorized representatives below.


 


	
  KANBAY EUROPE LIMITED

  	
  HSBC HOLDINGS plc

  
	
   

  	
   

  
	
  Signed 

  	
   

  	
   

  	
  Signed 

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name 

  	
   

  	
   

  	
  Name

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title 

  	
   

  	
   

  	
  Title 

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date

  	
   

  	
   

  	
  Date 

  	
   

  	
   

  
													



 


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ATTACHMENT
1


 


 


1.                   FTE and
Contract Year Definitions.


 


For purposes of this Rate
Schedule, a Full Time Equivalent (“FTE”) means a minimum of [***] of billable
Services provided by Consultant Personnel during a Contract Year (defined
below).


 


Consultant Personnel
working onsite at HSBC’s and/or HSBC Group Member’s facilities outside of India
are referred to herein as “Onsite FTEs”. 
Consultant Personnel working offshore at the Kanbay’s India facilities
or HSBC’s and/or HSBC Group Member’s India facilities are referred to herein as
“Offshore FTEs”, [***].


 


FTEs, which shall be
assigned to provide Services under SoWs, shall include personnel possessing a
mix of experience and skill levels as required to provide the Services.  HSBC and/or HSBC Group Members shall advise Consultant
and/or any Consultant Affiliate of their need for Services, and Kanbay shall
manage all staffing of the FTEs in consultation and agreement with HSBC or the
relevant HSBC Group Member.


 


[***]


 


A “Contract Year” shall
mean a period of twelve months between the 1st of January and
the 31st December for any year. 
In relation to this Rate Schedule, the following specific Contract Years
shall refer to each of the three following periods:


 


Contract Year 1 shall
mean the period from April 1, 2005 through December 31, 2005;


Contract Year 2 shall
mean the period from January 1, 2006 through December 31, 2006; and Contract
Year 3 shall mean the period from January 1, 2007 through December 31,
2007.


 


2.                   Rates and
Conditions.


 


Subject to the conditions
set forth in this Rate Schedule, Consultant and/or any Consultant Affiliate
shall provide Offshore FTEs and Onsite FTEs to HSBC and or the relevant HSBC
Group Members at the hourly rates set forth on Exhibit A, which is
attached hereto and incorporated herein. Rates for locations or designations
other than as stated in Exhibit A will be negotiated on a case-by-case
basis, at which time the parties will also classify the applicable positions as
either Offshore FTEs or Onsite FTEs (based on the principles stated in Section 1
above) for purposes of this Rate Schedule.


 


In consideration of the
rate stated on Exhibit A for [***], HSBC and/or HSBC Group Members intend
to acquire, via qualifying SoWs, an aggregate of Services from Consultant
and/or any Consultant Affiliate totaling [***] or more FTEs (comprising either
Onsite or Offshore) during Contract Years 1, 2 and 3 of this Rate Schedule,
subject to the following provisions:


 


a)                  The [***] FTE
covered by the Existing SoWs (stated in Section 3 below) shall be paid by
[***] irrespective of the FTE utilized by HSBC and the HSBC Group Members
during Contract Years 1, 2 and 3.


 


b)                 If HSBC and/or
HSBC Group Members do not acquire, via qualifying SoWs, a total of [***] or
more FTEs  (including the [***] FTE
provided to HTSU via the Existing SoWs) by the end of


 


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Contract Year 3,
[***] provided to HTSU by the Existing SoWs and the number of all Onsite and
Offshore FTE hours actually invoiced under qualifying SoWs for Contract Years
1, 2 and 3 (referred to as “A” in Formula 1 below).  Such invoice shall be based on [***] per
Contract Year per FTE.


 


Formula 1: Invoice amount
= [***]


 


c)                  If HSBC and/or
HSBC Group Members acquire, via qualifying SoWs, [***] or more FTEs (including
the [***] FTE provided to HTSU via the Existing SoWs ), but less than [***]
FTEs, by the end of Contract Year 3, [***]. 
This additional payment shall not apply to the [***] FTE provided to
HTSU via the Existing SoWs.


 


Formula 2: Invoice amount
= [***]


 


However, if the amount of
any invoice resulting from Formula 2 exceeds the amount that would have paid
for [***], then HSBC (or at HSBC’s direction any one or more of the HSBC Group
Members) shall have the option to pay this [***] amount instead [***] rather
than pay the amount determined from the calculation using Formula 2. [***].


 


Invoice amount = [***]


 


Where [***] Total number
of FTE (both Onsite and Offshore) hours actually invoiced by Consultant and
Consultant Affiliates under qualifying SoWs during Contract Years 1, 2 and 3.


 


d)                 It is the parties’ intent
to achieve an average leverage ratio of [***] by the end of the Term
of this Rate Schedule. The parties will review leverage ratios (both to date
and forecast) during the quarterly reviews described in Clause 7 below, and if
it appears that the minimum leverage ratio will not be achieved by the end of
the Term of this Rate Schedule, the parties will conduct good faith discussions
regarding a rate increase for future Services or another mutually acceptable
resolution.


 


e)                  If during a
Contract Year any particular SoW is cancelled, then the parties will promptly
meet and conduct good faith discussions regarding the inclusion of the FTE
within the SoW towards the aggregate total of [***] FTE or a reduction in the
aggregate total of [***] FTE.


 


f)                    If an
aggregate of [***] or more FTEs has been acquired through qualifying SoWs
during Contract Years 1, 2 and 3, then the parties will promptly meet and
conduct good faith discussions regarding a new rate schedule for future Services
upon mutually acceptable terms.  For the
avoidance of doubt, the rates established herein shall continue to apply during
the Term until the parties agree otherwise.


 


3.                   Existing SoWs.


 


The parties specifically
agree that, as of January 1, 2005, the FTEs currently being provided by
Kanbay to HTSU [***] under the five existing SoWs specified below (the “Existing
SoWs”) shall count toward the FTE utilization commitment.  The five Existing SoWs that count toward the
FTE commitment are as follows:


 


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  1.

  	
  SoW with Effective Date
  of February 1, 2003 and having a Three (3) Year Initial Term (as
  amended) covering [***] FTE per annum.

  
	
   

  	
   

  
	
  2.

  	
  SoW with Effective Date
  of February 1, 2003 and having a Four (4) Year Initial Term (as
  amended) covering [***] FTE per annum.

  
	
   

  	
   

  
	
  3.

  	
  SoW No. 2004-2YR
  (Effective Date of January 1, 2004) covering [***] FTE per annum.

  
	
   

  	
   

  
	
  4.

  	
  SoW No. 2004-3YR
  (Effective Date of January 1, 2004) covering [***] FTE per annum.

  
	
   

  	
   

  
	
  5.

  	
  SoW No. 2004-4YR
  (Effective Date of January 1, 2004) covering [***] FTE per annum.

  



 


For purposes of
calculating FTE utilization during the Term the above Existing SoWs shall
account for [***] FTE comprising:


 


Contract Year 1 - [***];
Contract Year 2 - [***]; and Contract Year 3 - [***].


 


For purposes of
calculating FTE utilization during Contract Year 1, all Services acquired
during the period from January 1, 2005 through March 31, 2005 under
the Existing SoWs (as defined above) shall be included in the numbers of FTEs utilized
during Contract Year 1, except that the rates stated in the Existing SoWs shall
remain unaltered.  For purposes of these
FTE commitments, [***] to determine the number of Offshore FTEs utilized during
the applicable Contract Year.


 


The parties specifically
agree that any statement of work in existence between Consultant and/or any
Consultant Affiliate and HSBC and/or any HSBC Group Member as at the Effective
Date of this Rate Schedule shall also qualify to be counted towards the
FTE utilization commitment pursuant to this Rate Schedule. [***].  Any statement of work entered into subsequent
to the Effective Date and not subject to the Terms and Conditions shall also
qualify to be counted towards the FTE utilization commitment pursuant to this
Rate Schedule.


 


4.                   [***]


 


[***]


 


5.                   Early
Payment Discount Option.


 


Consultant and/or any
Consultant Affiliate shall provide HSBC and/or HSBC Group Members with a [***]
early payment discount option on all fees for Onsite FTE time and materials
Services only.  Consultant and/or any
Consultant Affiliate will provide such discount, provided that the invoice
containing such fees (less the discount and any associated taxes) is paid by
HSBC or the relevant HSBC Group Member [***] after the date of invoice.  Consultant and/or any Consultant Affiliate
will, on each invoice that includes fees for Onsite FTE, state the amount of
the early payment discount for that invoice and give HSBC or the relevant HSBC
Group Member the option to either (i) accept the discount by paying the
invoice early as stated herein, or (ii) not accept the discount and pay
the full invoice amount as stated.


 


6.                   Special
Projects.


 


Kanbay and HSBC agree
that the rates and commitments set forth herein shall not apply to Consultant’s
and/or any Consultant Affiliate’s performance of special projects requested by
HSBC and/or HSBC Group Members that require Consultant and/or any Consultant
Affiliate to


 


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provide personnel
possessing special skills distinct from those skills generally possessed by
Consultant’s Personnel providing the Services under this Rate Schedule (“Special
Projects”).  Special Projects must be
designated as such on the applicable SoWs. 
Special Projects performed on a time and materials basis will be paid
based on hourly rates which shall be agreed upon by the parties.  HSBC and/or any HSBC Group Member and
Consultant and/or any Consultant Affiliate may also agree to perform Special
Projects as Fixed-price Engagements or Not-to-exceed Engagements.


 


In the event that the
parties enter into any SoWs for a Special Project, the applicable SoW will
indicate whether the parties have agreed to a “FTE equivalent” number for such
project which will qualify to be counted towards the commitments set forth in Section 3
above.


 


7.                   Project
Managers, Status Reports and Quarterly Reviews.


 


HSBC and Kanbay will each
designate one Project Manager to monitor and manage the activities of the
parties under this Rate Schedule who shall meet quarterly to review and discuss
current utilization, leverage ratio and future forecasts in order to evaluate
the status of the total commitment and take any action necessary.


 


The Kanbay Project
Manager shall deliver to the HSBC Project Manager a Quarterly Status Report
detailing the number of Offshore FTEs and Onsite FTEs utilized by over the
preceding months along with the respective leverage ratios.  If any Status Report reveals excessive under-
or over-utilization of Consultant Personnel, the parties will negotiate in good
faith regarding an appropriate adjustment to the schedule of Services to
be performed, the number of FTEs to be utilized, and/or the fees to be paid for
the Services.


 


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EXHIBIT A


 


Rate
Table


 


[***]


 


Rates for locations or
designations other than as stated above will be negotiated on a case-by-case
basis, at which time the parties will also classify the applicable positions as
either Offshore FTEs or Onsite FTEs for purposes of this Rate Schedule.


 


The parties agree and
Consultant shall procure Kanbay to agree that in respect of the UK rates for
Offshore FTE, and any future countries where it is necessary to invoice in a
currency other than US Dollars, the invoice amount shall be converted to the
specified currency using the conversion rate as at the close of business for
such currency from U.S. Dollars as published in the last U.S. edition of the
Wall Street Journal of the month for which the invoices are applicable.


 


The parties agree and
Consultant shall procure Kanbay to  agree
that the above rates will be increased or decreased by a reasonable percentage,
as agreed to by the parties before the beginning of each new Contract Year,
based upon reliable national salary data for the U.S., India and any other
relevant location, i.e. Hong Kong, United Kingdom, etc.  The parties shall mutually agree as to the
survey, index or method to be used for the purpose of calculating yearly
adjustments to the rates.


 


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