EXHIBIT F MANAGING DIRECTOR AGREEMENT
Exhibit 10.54
EXHIBIT F
This Agreement (“Agreement”) is between BearingPoint, Inc., (“BearingPoint”) and Xxxx Xxxxxx (“You”
and all similar references) as of July 1, 2005 (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, restricted
stock units and other equity rights, 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 “Competing Entity” as that
term is defined in Section 5 below, 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. Without limitation
whatsoever to the foregoing, you expressly acknowledge and agree that for the purpose of providing,
or assisting any Competing Entity in providing, BearingPoint Services, your calling upon, meeting
with, making presentations to, having business related discussions with Clients and Prospective
Clients of BearingPoint, within such 2 years of ceasing, for whatever reason, to serve as the Chief
Accounting Officer (CAO) or Chief Financial Officer (CFO) of BearingPoint will necessarily
constitute a violation of this Subsection 3.(b), immediately entitling BearingPoint to pursue all
legal and equitable remedies available.
(c) While employed with BearingPoint and for 2 years after your termination or resignation, you
shall not, directly or indirectly, accept employment or a contract for the provision of services,
with any Competing Entity.
(d) 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(b)(i) or (ii), you will, in addition to any payments under Sections
4(b), 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.
(b) If you breach Section 3(d), you will, in addition to any payments under Sections 4(a), 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(d); 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
represent a competitive enterprise or entity, or 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).
“BearingPoint Services” means the managed services, business strategy consulting services, systems
integration and information technology operations services, conducted and provided by BearingPoint.
“Competing Entity” means any of the following entities, their affiliates, subsidiaries, and
successors: Accenture Ltd., Answerthink, Xxxx Xxxxx, Cambridge Technology Partners (CTP), Computer
Sciences Corporation (CSC), Deloitte Consulting, EDS, Cap Gemini Ernst & Young, KPMG LLP, Anteon,
SAP, Hewlett-Packard, IBM, Lucent Technologies, Oracle, PricewaterhouseCoopers, Unisys, US Web, and
Ernst & Young.
“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, yon 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, 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
3 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. In the event you qualify for payment under any of the provisions of the
employment letter entered into by you and BearingPoint on March 17, 2005 (the “Employment Letter”)
as a result of your termination or resignation of employment, you shall not be eligible to receive
any payment under the provisions of this Managing Director Agreement.
(b) You may voluntarily terminate your employment with BearingPoint upon 3 months prior written
notice directed to BearingPoint’s Human Resources Department. Without limiting any other remedies,
if you breach this Section 6(b), you will pay BearingPoint or its designee 25% 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 any and all costs (including, without
limitation, attorneys’ fees and court costs) incurred by BearingPoint in enforcing any of
its rights under this Agreement.
8. 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. All Section headings are
for convenience only and do not modify or restrict any of this Agreement’s terms.
10. Choice of Law/Conflicts. 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. In the event of a conflict between the provisions of this Managing Director
Agreement and the provisions of the Employment Letter accepted by you and which resulted in
your employment with BearingPoint, the terms of the Employment Letter shall control.
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.
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:
For BearingPoint, Inc.:
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For Employee: | |||||
| /s/ Xxxx Xxxxxx | ||||||
Xxxxx X. You |
Xxxx Xxxxxx | |||||
Chief Executive Officer
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Date: June 22, 2005 | |||||
BearingPoint, Inc
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