Managing Director Agreement - BearingPoint Inc.
[LOGO] BearingPoint
Managing Director Agreement Page 1 of 13
MANAGING DIRECTOR AGREEMENT
This Agreement ("Agreement") is between BearingPoint ("BearingPoint") and
("You" and all similar references) as of (the
------------------ ---------------
"Effective Date"):
1. Employment. You accept employment on the terms of this Agreement from the
Effective Date until the end of your employment with BearingPoint in accordance
with Section 6. By signing this Agreement, you agree to: (a) devote your
professional time and effort to BearingPoint's business and to refrain from
professional practice other than on account of or for the benefit of
BearingPoint; (b) perform any and all work assigned to you by BearingPoint
faithfully and to the best of your ability at such times and places as
BearingPoint designates; (c) abide by all policies of BearingPoint, current and
future, including the Equal Employment Opportunity policy attached as Exhibit A;
and the Anti-Harassment policy attached as Exhibit B, (d) abide by the
Confidentiality and Intellectual Property Agreement attached as Exhibit C, and
(e) abide by the terms of the Consent Form, concerning personal data, attached
as Exhibit D. You also confirm that you are not currently bound by any agreement
that could prohibit or restrict you from being employed by BearingPoint or from
performing any of your duties under this Agreement
2. Compensation and Benefits. As of the Effective Date, BearingPoint will pay
you a base salary, less required and authorized withholding and deductions,
payable in installments in accordance with BearingPoint's normal payroll
practices. From time to time, BearingPoint may adjust your salary and other
compensation in its discretion. During your employment, you will be eligible to
participate in any employee compensation or benefit plans (including group
medical and 401(k)), incentive award programs, and stock option plans, any
applicable employee stock purchase plan and to receive other fringe benefits
that BearingPoint may decide to make generally available to employees in your
position. BearingPoint may amend or discontinue any of its plans, programs,
policies and procedures at any time for any or no reason with or without notice.
You agree that in order to receive any stock options, you will be required to
enter into a separate stock option agreement which will provide (among other
things) for the termination of your stock options and a payment to BearingPoint
or its designee of some or all of your gain if you violate Sections 1(d), 3,
6(b), or Exhibit C.
3. Covenants. In consideration of your employment and eligibility for stock
options, you agree to the following obligations which are reasonably designed to
protect BearingPoint's legitimate business interests without unreasonably
restricting your ability to earn a living after leaving BearingPoint. The wishes
or preferences of a Client or Prospective Client (defined below) are not
relevant to or admissible in any dispute under Sections 3 or 4:
(a) While employed with BearingPoint and until 1 year after your
termination or resignation, you cannot enter a relationship or venture to
provide BearingPoint Services anywhere in the world for the benefit of an entity
other than BearingPoint. A relationship or venture is defined as an association
with (i) another management group member of BearingPoint (or other comparable
individual), or (ii) any individual who was a management group member of
BearingPoint (or other comparable individual) within 12 months before your
termination or resignation or 12 months before you seek to perform BearingPoint
Services with such an individual, whichever is later.
(b) While employed with BearingPoint and for 2 years after your termination
or resignation, you shall not, directly or indirectly: (i) perform, provide or
assist any entity in performing or providing BearingPoint Services for any
Client or Prospective Client; or (ii) solicit or assist any entity in soliciting
any Client or Prospective Client for the purpose of performing or providing any
BearingPoint Services.
<PAGE>
Managing Director Agreement 2 of 13
(c) While employed with BearingPoint and for 2 years after your termination
or resignation, you shall not, directly or indirectly solicit, employ or retain
(or assist another entity in doing so) any employee of BearingPoint or any
former employee who left BearingPoint within 12 months before or after your
termination or resignation to perform BearingPoint Services with you or any
person associated with you.
4. Remedies. In addition to any other remedies that may be available to
BearingPoint for breach of this Agreement, you agree to the following
obligations and accept the following consequences for breaching Section 3. You
agree that BearingPoint will suffer damages as a result of your breach of
Section 3 that are difficult to calculate and that the payments required by
Section 4 are a reasonable forecast of the damages likely to result and are not
a penalty of any kind. In particular, you agree that your total compensation is
based on your value to BearingPoint, and that it reflects your efforts at
developing and maintaining client and employee relationships on behalf of
BearingPoint.
(a) If you breach Section 3(a) on or before February 1, 2003, you will pay
BearingPoint or its designee an amount equal to 100% of the total compensation
(including salary and bonus) paid or payable to you on an annualized basis by
BearingPoint during the fiscal year in which your breach occurs. These payments
will be made in not less than quarterly cash installments over the 24 months
following your breach.
(b) If you breach Section 3(b)(i) or (ii), you will, in addition to any
payments under Sections 4(a) or 4(c), pay BearingPoint or its designee 50% of
the gross fees and other amounts paid or payable during the 3 years after the
breach to you or any other entity associated with you, by any Client or
Prospective Client that was solicited or provided with services in violation of
Section 3(b)(i) or (ii). These payments will be made in cash within thirty days
after payment by the Client or Prospective Client.
(c) If you breach Section 3(c), you will, in addition to any payments under
Sections 4(a) or 4(b), pay BearingPoint or its designee 100% of the total
compensation (including salary and bonus) paid or payable by BearingPoint to the
solicited, employed or retained employee during: (i) the 12 months before your
breach of Section 3(c); or (ii) in the case of a former employee, the 12 months
before the employee left BearingPoint. These payments will be made in not less
than quarterly cash installments over the 24 months following such breach.
5. Certain Definitions.
"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; (III) engagement in any activity that you know or should know could
harm the business or reputation of BearingPoint; (IV) material failure to adhere
to BearingPoint's corporate codes, policies or procedures; (V) continued failure
to meet performance standards as determined by BearingPoint over two consecutive
performance review periods; (VI) a breach or threatened breach of any provision
of Sections 1(d), 3 or Exhibit C, or a material breach of any other provision of
this Agreement if the breach is not cured to BearingPoint's satisfaction within
a reasonable period after BearingPoint provides you with notice (to your address
on BearingPoint's records) of the breach (no notice and cure period is required
if the breach cannot be cured); or (VII) violation of any statutory,
contractual, or common law duty or obligation to BearingPoint, including without
limitation the duty of loyalty.
"Client" means any entity that is or was a client of BearingPoint (which
includes any subsidiary of BearingPoint throughout this definition) at or within
12 months before the time you seek to solicit or perform services for such
client and that, within 2 years before your termination or resignation, you: (I)
performed BearingPoint Services for or on behalf of BearingPoint, or a related
or affiliated entity, or (II) had contact with, knowledge of, or access to
Proprietary Information (as defined in Exhibit C) or other information
concerning the client, in connection with your BearingPoint employment.
"BearingPoint" as used throughout this Agreement includes any successor to,
or subsidiary of BearingPoint with which you become employed or associated
(except as more broadly defined elsewhere in this Agreement).
<PAGE>
Managing Director Agreement 3 of 13
"BearingPoint Services" means the management and information technology
BearingPoint services conducted and provided by BearingPoint during your
employment.
"Prospective Client" means any entity that is not a Client but with respect
to whom, within 1 year before your termination or resignation, you: (I)
conducted, prepared or submitted, or assisted in conducting, preparing or
submitting, any proposal or client development or marketing efforts on behalf of
BearingPoint (which includes any subsidiary of BearingPoint throughout this
definition), or a related or affiliated entity, or (II) had contact with,
knowledge of, or access to Proprietary Information or other information
concerning the prospective client, in connection with your BearingPoint
employment.
6. Termination and Resignation. (a) Your employment is terminable at will.
BearingPoint may terminate your employment for Cause effective immediately upon
written notice (to your address on BearingPoint's records). You will be entitled
to earned and unpaid base salary and payment for any earned and unused personal
days through the termination date (in the case of performance deficiencies, you
also will receive an additional payment as provided below).
BearingPoint also may terminate your employment other than for Cause or for no
reason, effective upon written notice (to your address on BearingPoint's
records) or any later date specified in the notice. In this case, or if
BearingPoint terminates your employment due to deficient performance by you, you
will be entitled to all earned and unpaid base salary through the termination
date. BearingPoint will also pay you for any earned and unused personal days and
an additional amount of severance pay which, when added to your personal days
payment (if any), totals 6 months pay at your then current base salary. All of
the payments in this Section 6(a) are less required and authorized withholding
and deductions. BearingPoint, in its sole discretion, may elect any method or
manner of payment under this provision, and may also require you to perform
services, as detailed in Section 1 of this Agreement, during the period of time
prior to your specified termination date.
(b) You may voluntarily terminate your employment with BearingPoint upon
180 days prior written notice directed to BearingPoint's Human Resources
Department unless the Chief Executive Officer of BearingPoint ("CEO") waives
this notice in writing. Without limiting any other remedies, if you breach this
Section 6(b), you will pay BearingPoint or its designee 50% of the total
compensation (including salary and bonus) paid or payable to you on an
annualized basis by BearingPoint during the fiscal year in which your breach
occurs. These payments will be made in not less than quarterly cash installments
over the 24 months following your breach.
(c) You agree to provide all assistance requested by BearingPoint in
transitioning your duties, responsibilities and client and other BearingPoint
relationships to other BearingPoint personnel, both during your employment and
after your termination or resignation.
7. Arbitration. All disputes between you and BearingPoint (which includes any
subsidiary of BearingPoint throughout this Section 7) shall be resolved by
arbitration in Virginia. Arbitrable disputes include without limitation
employment and employment termination claims and claims by you for employment
discrimination, harassment, retaliation, wrongful termination, or violations
under Title VII of the Civil Rights Act of 1964, the Age Discrimination in
Employment Act, the Americans With Disabilities Act, the Family and Medical
Leave Act, or the Employee Retirement Income Security Act, under any other
federal, state, foreign or local law, regulation, ordinance, executive order,
constitution, or under common law.
Arbitrations shall take place before a panel of three arbitrators which shall
consist of one person selected by each of the two sides to the dispute and the
third person jointly selected by the other two arbitrators. The arbitration
panel shall have no authority to modify this Agreement (except pursuant to
Section 12) or to award punitive or exemplary damages. BearingPoint may, without
waiving its right to compel arbitration, and without securing or posting any
bond, seek injunctive or other provisional relief from a court of competent
jurisdiction in aid of arbitration, to prevent any arbitration award from being
rendered ineffectual, to protect BearingPoint's confidential information or
intellectual property or for any other purpose in the interests of BearingPoint.
The courts of Virginia or any court of competent jurisdiction in any other state
will have jurisdiction over any proceeding relating to arbitrations, and may
enter judgment on any arbitration award rendered or grant judicial recognition
of the award or an order of enforcement. You agree to reimburse BearingPoint
upon demand for
<PAGE>
Managing Director Agreement 4 of 13
any and all costs (including, without limitation, attorneys'
fees and court costs) incurred by BearingPoint in enforcing any of its rights
under this Agreement.
Survival. Sections 1(d), 1(e), 2 through 14, and Exhibits C and D shall survive
any termination of this Agreement or your employment (including your
resignation).
9. Entire Agreement. This Agreement is the entire agreement between you and
BearingPoint regarding these matters and supersedes any verbal and written
agreements on such matters. In the event of a conflict between the main body of
this Agreement and the Exhibits, the main body of the Agreement shall control.
This Agreement may be modified only by written agreement signed by you and the
CEO or his or her designee. All Section headings are for convenience only and do
not modify or restrict any of this Agreement's terms.
10. Choice of Law. This Agreement shall be governed by the laws of the
Commonwealth of Virginia. You and BearingPoint consent to the jurisdiction and
venue of any state or federal court in the State of Virginia and agree that any
permitted lawsuit may be brought to such courts or other court of competent
jurisdiction. Each party hereby waives, releases and agrees not to assert, and
agrees to cause its affiliates to waive, release and not assert, any rights such
party or its affiliates may have under any foreign law or regulation that would
be inconsistent with the terms of this Agreement as governed by Virginia law.
11. Waiver. Any party's waiver of any other party's breach of any provision of
this Agreement shall not waive any other right or any future breaches of the
same or any other provision. The CEO may, in his or her sole discretion, waive
any of the provisions of Sections 1(d), 3, 4, 6, or Exhibit C.
12. Severability. If any provision of this Agreement is held invalid or
unenforceable for any reason, the invalidity shall not nullify the validity of
the remaining provisions of this Agreement. If any provision of this Agreement
is determined by a court or arbitration panel to be overly broad in duration,
geographical coverage or scope, or unenforceable for any other reason, such
provision will be narrowed so that it will be enforced as much as permitted by
law.
13. Assignment and Beneficiaries. This Agreement only benefits and is binding on
the parties and their respective affiliates, successors and permitted assigns
provided that you may not assign your rights or duties under this Agreement
without the express prior written consent with the other parties. BearingPoint
may assign any rights or duties that it has, in whole or in part, to other
affiliated or subsidiary entities without your consent.
14. Counterparts. For convenience of the parties, this Agreement may be executed
in one or more counterparts, each of which shall be deemed an original for all
purposes.
The parties state that they have read, understood and agree to be bound by this
Agreement and that they have had the opportunity to seek the advice of legal
counsel before signing it and have either sought such counsel or have
voluntarily decided not to do so:
BEARINGPOINT EMPLOYEE
By:
------------------------------------- -----------------------------------
(Signature)
Title:
---------------------------------- -----------------------------------
(Print Employee's Full Name)
Dated:
---------------------------------- -----------------------------------
(Employee's ID)
Dated:
----------------------------