MANAGING DIRECTOR AGREEMENT
Exhibit 10.39
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 for 1 year 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.
(b) 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)(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(a)(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(b). 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(b); 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).
“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 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.
(b) You may voluntarily terminate your employment with BearingPoint upon 3 months prior
written notice directed to the BearingPoint People Department unless the Chief Executive Officer of
BearingPoint or his designee waives this notice in writing. 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.
Survival. Sections 1(d), (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:
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