Separation and Release of Claims Agreement
Exhibit 10.7
This Separation and Release of Claims Agreement (“Agreement”),
dated as of May 12, 2008, is made by and between BearingPoint, Inc.
(“BearingPoint” or the “Company”), and Xxxx Xxxxxx (“Employee”) (collectively,
the “Parties”).
Recitals
1. Employee is presently employed by BearingPoint and serves as
Managing Director, Executive Vice President and Chief Financial Officer.
2. The Parties desire for Employee to separate from her
employment with BearingPoint and to set forth the mutually agreed terms
and conditions of Employee’s separation.
In consideration of the mutual acts, payments and promises set forth in this Agreement,
BearingPoint and Employee agree as follows:
Agreement and Releases
1. Separation from Employment. Effective July 31, 2008 (the
“Separation Date”), Employee shall separate from employment with the
Company and terminate all employment positions and titles she may hold
with BearingPoint and its affiliates, including, without limitation, her positions
as Managing Director, Executive Vice President, Chief Financial Officer and/or
Chief Accounting Officer of BearingPoint. The parties waive any contractual
notice obligations that may otherwise exist in connection with the Separation
Date.
2. Scope of Duties Prior to Separation Date. Employee will
continue to serve in her current role as Chief Financial Officer until the earlier
of (a) the date when another person assumes the position of Chief Financial
Officer, or (b) July 1, 2008 (in either case, the “Transition Date”). At such
time, Employee shall serve in a non-executive officer position through the
Separation Date. As of the Transition Date, Employee shall also resign from
all other executive officer positions she holds with the Company, including
that of Chief Accounting Officer, or any of its subsidiaries or affiliates.
Subject to the foregoing, through the Separation Date, Employee will work at
the direction of, and report to, Xx Xxxxxxx and perform such duties as may
be assigned by him. Employee shall complete and/or relinquish her
assignments in a cooperative and orderly manner as may be requested by
the Company and diligently assist with the transition of those duties and
matters for which she is presently responsible. From the date hereof through
the Separation Date, the Company shall ensure that Employee has access to
such information as is necessary or advisable for her to perform her duties
and obligations hereunder. Notwithstanding the foregoing, the Company
acknowledges and agrees that Employee will be telecommuting during the
month of July 2008 and she will not be required to work out of the Company’s offices in July 2008
except for the first one-week period in July 2008, during which week Employee shall, at the
Company’s discretion, either engage in business travel as directed by the Company or work at one
of the Company’s offices.
3. Payment of Salary and Expenses; Benefits. Through the
Separation Date, BearingPoint shall continue to pay Employee her salary at
its current level and provide her with the benefits which she currently
receives. BearingPoint shall pay to Employee any earned, but unpaid portion
of her salary, as of the Separation Date, no later than the date on which such
salary would normally be paid. Any outstanding reimbursable expenses as of
the Separation Date will be paid to Employee upon submission and approval
of those expenses in accordance with the Company’s policies and customary
practices (with such approval to not be unreasonably withheld). Except as
otherwise specified in this Agreement, all compensation and benefits shall
cease as of the Separation Date.
4. Annual Bonus. On or before July 15, 2008, BearingPoint shall
pay to Employee a lump sum amount of TWO HUNDRED SIXTY THOUSAND
AND FORTY-SEVEN AND 00/100 DOLLARS ($260,047.00), less required and
authorized withholdings and deductions, representing Employee’s 2007
annual bonus; provided, however, that in the event the Company pays 2007
bonuses to other employees in the Company prior to that time, Employee
shall be paid her bonus at such earlier date.
5. Vacation and Personal Days. No later than the date of
Employee’s final salary payment following the Separation Date, BearingPoint
shall pay to Employee the sum of SEVENTY THOUSAND AND 00/100
DOLLARS ($70,000.00), in settlement of Employee’s personal and vacation
days that may remain accrued but unused as of the Separation Date.
6. Severance Payment. Subject to and contingent upon
Employee’s execution of a supplemental release of claims on or immediately
following the Separation Date in the form attached hereto as Exhibit A (the
“Supplemental Release”), on February 2, 2009, BearingPoint shall pay to
Employee a lump sum cash amount of ONE MILLION AND FORTY THOUSAND
AND 00/100 ($1,040,000.00), less required and authorized withholdings and
deductions, representing the sum of Employee’s annual base salary and
current Target Bonus (“Severance Payment”). In connection therewith, the
Company shall also execute the Supplemental Release on or immediately
following the Separation Date.
7. COBRA. For a period of up to eighteen (18) months following
the Separation Date, BearingPoint shall provide Employee and her spouse
continued coverage under the Company’s group health plan without any
premium cost to Employee or her spouse, which continued coverage will
count towards and be treated in satisfaction of BearingPoint’s obligation to
provide Employee and her spouse with continuation health care coverage under the Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”); provided, however, that
BearingPoint’s obligations under this Paragraph 7 with respect to Employee and/or her
spouse, as applicable, shall cease at such time as Employee and/or her spouse, as applicable,
obtain other employer-sponsored health insurance coverage, except that to the extent required by
COBRA, Employee and/or her spouse, as applicable, shall be entitled to elect to continue coverage
at their own expense under the Company’s group health plan pursuant to COBRA for the remainder of
the eighteen (18) month period prescribed by this Paragraph 7 (or such other period of
time as prescribed by COBRA). Employee agrees to notify BearingPoint in a prompt and timely manner
of the commencement date of such other employer-sponsored health insurance coverage. For
clarification, if Employee’s spouse obtains employer-sponsored health insurance coverage, the
Company shall no longer be obligated to provide coverage to the Employee’s spouse under the
Company’s group health plan but it shall remain obligated to continue to provide coverage to
Employee until such time as Employee obtains other employer-sponsored health coverage and vice
versa.
8. Restricted Stock Units and Stock Options.
a. Restricted Stock Units (“RSUs”). The Parties agree that, notwithstanding
anything contained in either of the RSU Agreements between the Company and Employee dated
September 19, 2006 (the “RSU Agreements”), Employee shall vest, on July 1, 2008, in the
RSUs otherwise scheduled to vest on July 1, 2009 and shall therefore, as of July 31, 2008,
be vested in all 386,000 RSUs granted in Employee’s two RSU Agreements. With respect to
Employee’s 52,700 RSUs scheduled for settlement on July 1, 2008, the Parties agree that the
Company’s tax withholding obligations in connection therewith shall be satisfied by the
withholding of such number of whole shares of Common Stock otherwise deliverable to
Employee in settlement of such RSUs having a fair market value, as determined by the
Company as of July 1, 2008, not in excess of the amount of such tax withholding obligations
determined by the applicable minimum statutory withholding rate (“Net-Share Delivery”).
With respect to all Employee’s RSUs scheduled for settlement after July 1, 2008, the
Parties agree that such RSUs shall be settled on such dates as the RSU Agreements
prescribe, as modified below, and the tax withholding obligations for such RSUs will not be
subject to Net-Share Delivery but instead must be satisfied by Employee either (i) by
advance payment in cash to the Company of such withholding taxes or (ii) through the
Company’s “sell-to-cover” program with Xxxxxx Xxxxxxx. Employee acknowledges and agrees
that, notwithstanding any provision of the RSU Agreements to the contrary, all RSUs vested
but not yet settled as of the Separation Date shall be settled in the Company’s next
available quarterly RSU liquidity window following each settlement
date set forth in paragraph 5(b) of the RSU Agreements. The Parties agree that Employee
shall not be deemed subject to the restrictions set forth in paragraph 5(d) of Employee’s
RSU Agreements. The Parties further agree that paragraph 5(e) of the RSU Agreements shall
remain in effect without modification until August 31, 2008, and consistent with the
Company’s xxxxxxx xxxxxxx policy, until that date, Employee shall not be entitled to sell
or transfer any shares of Common Stock acquired pursuant to the RSU Agreements without the
Company’s prior written approval. Thereafter, Employee may, during the Company’s quarterly
RSU liquidity windows (whether or not during a blackout period), and subject to Employee’s
compliance with applicable law, sell or transfer shares of Common Stock received upon the
settlement of RSUs pursuant to Section 5(a) of the RSU Agreements without the necessity of
further approval by the Company in the same manner and to the same extent as other holders
of the Company’s RSUs. The Company agrees to cooperate in good faith to have any
restrictive legend removed from any certificate representing such shares of Common Stock at
such time as such shares of Common Stock may be sold without registration by a
non-affiliate pursuant to paragraph (b) of Rule 144 under the Securities Act of 1933, as
amended. Paragraph 6(c) of the RSU Agreements is hereby deleted and of no further force or
effect; provided, however, that if the Company offers the “sell-to-cover” program with
Xxxxxx Xxxxxxx or similar transaction program for holders of its RSUs generally, then
Employee shall be permitted to participate on the same basis and subject to the same terms
as all other holders of RSUs. Except as set forth herein, the terms and conditions of the
RSU Agreements shall continue to apply following the Separation Date.
b. Stock Options. The Parties agree that Employee shall vest, on July 1,
2008, in 150,000 stock options otherwise scheduled to vest on July 1, 2009 pursuant to the
BearingPoint Stock Option Agreement and the terms of Employee’s September 19, 2006 Award
Notice and shall thereafter be exercisable until the expiration of three (3) months
following the Separation Date, or October 31, 2008. Except as set forth herein, the terms
and conditions contained in the Stock Option Agreement and the September 19, 2006 Award
Notice shall continue to apply following the Separation Date.
9. Further Consideration. In consideration of Employee’s continued service through
July 31, 2008, her assistance in the orderly transition of her responsibilities, the termination
of the Special Termination Agreement, the covenants set forth in Paragraphs 17 and 18 and
the release of claims in Paragraph 15, and subject to Employee’s execution of the
Supplemental Release, BearingPoint shall provide Employee with the further consideration set forth
in this Paragraph 9 that exceeds anything of value to which she is currently entitled.
a. Additional Consideration Payment. On February 2, 2009,
BearingPoint shall pay to Employee an additional lump sum payment in
the amount of SEVEN HUNDRED THOUSAND AND 00/100 DOLLARS
($700,000.00), less required and authorized withholdings and
deductions (The “Additional Consideration Payment”).
b. Special Termination Agreement. The parties stipulate and
agree that the July 2005 Special Termination Agreement between
BearingPoint and Employee (the “Special Termination Agreement”) is
hereby terminated in its entirety and of no further force and effect.
c. Change of Control. In the event a Change of Control (as
defined below) shall have occurred on or before January 31, 2009,
BearingPoint shall, on (A) February 2, 2009 or (B) within ten (10)
business days following the date on which the Change of Control is
deemed to have occurred, whichever is later, pay to Employee an
additional lump sum amount of ONE MILLION FOUR HUNDRED
THOUSAND AND 00/100 DOLLARS ($1,400,000.00).
For purposes of this Agreement, a “Change of Control” of the Company shall have occurred if any of
the following events occur:
i. a consolidation, merger or other reorganization of
the Company in which the Company is merged, consolidated or reorganized into or with
another corporation or other legal person or pursuant to which shares of the Company’s
stock are converted into cash, securities or other property, other than a merger of the
Company in which the holders of the Company’s common stock immediately prior to the
merger own more than 50.1% of the common stock of the surviving corporation or its
ultimate parent immediately after the merger;
ii. any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all of the
assets of the Company, where the holders of the Company’s common stock immediately prior
to the transaction own less than 50.1% of the common stock of such transferee or its
ultimate parent immediately after such transaction;
iii. any liquidation or dissolution of the Company or
any approval by the stockholders of the Company of any plan or proposal for the
liquidation or dissolution of the Company;
iv. any person (including any “person” as such term is
used in Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934 but
not including the Company, any subsidiary of the Company, any employee benefit plan of the
Company or any subsidiary of the Company, or any person holding the Company’s common stock
for or pursuant to the terms of any such plan) has become the beneficial owner of 20% or
more of the Company’s outstanding common stock;
v. if at any time the directors who either serve on the
Company’s board of directors on the date of this Agreement or subsequently become
directors with the approval of at least two-thirds of the directors serving on the board
of directors on the date of this Agreement, cease for any reason to constitute at least a
majority thereof; or
vi. any occurrence that would be required to be
reported in response to Item 6 of Schedule 14A of Regulation 14A under the Securities
Exchange Act of 1934 or any successor rule or regulation;
provided, however, that a Change of Control of the Company shall not be deemed to have occurred as
a result of any transaction having one or more of the effects specified in clauses (i)-(vi) above
if such transaction is proposed by, and includes a significant equity participation {i.e., an
aggregate of at least 25% of the outstanding common equity securities of the Company immediately
after such transaction which are entitled to vote to elect any class of directors) of, the
executive officers of the Company as constituted immediately prior to the occurrence of the
transaction or any Company employee stock ownership plan or pension plan.
d. Covenants. The Parties hereby amend the Managing Director Agreement between
BearingPoint and Employee dated July 1, 2005 (the “Managing Director Agreement”) by modifying the
definition of “Competing Entity” as follows:
“Competing Entity” means any of the following entities, their affiliates,
subsidiaries, and successors: Accenture, IBM, Answerthink, Anteon, Booz Allen,
Bain, Cambridge Technology Partners, Fujitsu, Maximus, Unisys, US Web and Lucent
Technologies.
The Parties agree that Employee shall not be entitled to payment of severance pursuant to
paragraph 6 of the Managing Director Agreement.
10. Provisions Relating to Payments.
a. Manner of Payment. All payments to be made hereunder by BearingPoint shall be
delivered pursuant to the direct deposit instructions currently on file with the Company. In
the event of
Employee’s death prior to the payment of any amounts due hereunder, the Company shall pay
all such amounts to Employee’s estate upon the estate’s execution of a release, if
applicable.
b. Repayment. Except as to claims asserted under the Age Discrimination in
Employment Act of 1967, as amended, Employee agrees that, should Employee contend in any
litigation, arbitration or other adversary proceeding that this Agreement, or any portion
of it, is invalid or unenforceable, then as a precondition to making such contention,
Employee shall first refund in full to the Company all amounts received under
Paragraph 9.
11. Taxes. All amounts paid to Employee pursuant to this
Agreement (other than reimbursed expenses) and all amounts withheld by
BearingPoint for the account of Employee, pursuant to the next sentence,
will, for income tax purposes, be includible in the gross taxable income of
Employee for the appropriate tax year. To the extent required by applicable
law, BearingPoint shall withhold or cause to be withheld from the Payment
the amount of any applicable federal, state or local taxes. Employee will be
solely responsible for all personal taxes, interest and penalties, if any, which
are or may become due on amounts paid to her under this Agreement and
agrees to defend, indemnify and hold BearingPoint harmless for any tax
claims due on such amounts as a result of any action, inaction or omission by
Employee.
12. Indemnification.
a. Prior to and following the Transition Date, the Company shall indemnify Employee to
the fullest extent permitted by law, including without limitation, under the Delaware
General Corporation Law, if Employee is a party to (or witness in), or is threatened to be
made a party to (or witness in) any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than an action
by or in the right of the Company) by reason of the fact that Employee is or was a director
or officer of the Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of or in any other capacity with respect to another
corporation, partnership, limited liability company, joint venture, trust or other
enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by Employee in connection with such action,
suit or proceeding if Employee acted in good faith and in a manner she reasonably believed
to be in or not opposed to the best interest of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe her conduct was unlawful.
Expenses (including attorneys’ fees) incurred in defending a civil, criminal,
administrative or investigative action, suit or proceeding by reason of Employee’s
service as a director or officer of the
Company shall be paid by the Company in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of Employee to repay
such amount if it shall ultimately be determined that she is not entitled to be
indemnified by the Company. The indemnification provided to Employee shall be the same as
in effect immediately prior to the Transition Date and on terms and conditions no less
favorable than those provided to directors and executive officers of the Company
generally.
b. For a period of six years following the Separation Date,
each member of the Company Control Group shall include Employee as
a named insured in any director or officer liability insurance on terms
provided to then current directors and executive officers of such entity
generally if this may be done at no additional cost. Employee shall
continue to receive director and officer liability insurance coverage on
terms no less favorable than those provided to former directors or
executive officers of the Company, or any of its direct and indirect
subsidiaries or other entities controlled by the Company, generally
(without giving effect to any lapsing of such coverage with respect to
any particular director or executive officer due to passage of time or
for any other reason whatsoever during such period).
c. BearingPoint will indemnify Employee for any failure to
comply with Section 409A of the Internal Revenue Code of 1986, as
amended, including a tax gross-up payment to cover all applicable
taxes relating thereto, including any such taxes attributable to
payment under the terms specified herein.
13. Costs. The Parties shall each bear their own costs and
attorneys’ fees incurred in connection with this Agreement.
14. No Further Compensation. Employee acknowledges and agrees
that she is not entitled to receive any further monetary compensation, in the
form of cash, equity or otherwise, from the Company and that the only future
payments, equity and benefits she is entitled to receive from the Company
are those specified in this Agreement.
15. Complete Release of Claims.
a. Release by Employee. Except as set forth below, Employee agrees that the
consideration provided for herein represents settlement in full of all outstanding
obligations that are, or could be argued to be, owed to Employee by BearingPoint. Except
as set forth below, Employee, on behalf of herself and her respective heirs, family
members, executors and assigns, hereby fully and forever releases BearingPoint, including
its present and future officers, employees, agents, directors, executives, investors,
shareholders, administrators,
affiliates, divisions, subsidiaries, parents, assigns, predecessor and successor corporations,
from any and all claims, whether presently known or unknown, suspected or unsuspected, she may
possess arising from any omissions, acts, events or facts that have occurred up until and
including the date on which the Parties execute this Agreement including, without limitation:
i. any and all claims relating to or arising from Employee’s employment relationship
with the Company and the termination of that relationship;
ii. any and all claims of wrongful discharge of employment; constructive discharge;
termination of employment following a change of control; termination of employment in
anticipation of a change of control; termination in violation of public policy;
discrimination; retaliation; breach of contract, both express and implied; breach of the
covenant of good faith and fair dealing; promissory estoppel; negligent or intentional
infliction of emotional distress; negligent or intentional misrepresentation; negligent or
intentional interference with contract or prospective economic advantage; defamation;
libel; slander; negligence; personal injury; assault; battery; invasion of privacy; false
imprisonment; conversion, and any other claim for tort or wrongful treatment;
iii. any and all claims for violation of any federal, state or municipal statute,
including, but not limited to, Title VII of the Civil Rights Act of 1964 (“Title VII”), the
Civil Rights Act of 1991, the Age Discrimination in Employment Act of 1967 (“ADEA”), the
Americans with Disabilities Act of 1990 (“ADA”), the Rehabilitation Act of 1973, the
Employee Retirement Income Security Act of 1974 (“ERISA”), the Uniformed Services
Employment and Reemployment Rights Act of 1994 (“USERRA”), the Vietnam Era Veterans’
Readjustment Assistance Act of 1974 (“VEVRAA”), any federal or state False Claims Act, the
Xxxxxxxx-Xxxxx Act of 2002, the Worker Adjustment and Retraining Notification Act (“WARN”),
the Family and Medical Leave Act (“FMLA”), the Fair Labor Standards Act (“FLSA”) and all
amendments to each Act as well as the regulations issued thereunder;
iv. any and all claims arising out of any other federal, state or local laws and
regulations relating to employment or employment discrimination;
v. any and all claims relating to, or arising from, Employee’s right to receive or
purchase, or actual receipt or purchase, of shares of stock of the Company, including,
without
limitation, any claims of fraud, misrepresentation, breach of fiduciary duty,
breach of duty under applicable state corporate law, and securities fraud under
any state or federal law;
vi. any and claims for violation of the federal, or any state,
constitution; and
vii. any and all claims for attorneys’ fees and costs.
b. Release by Company. BearingPoint hereby fully and
forever releases Employee, her heirs, executors and assigns, from any
and all claims, whether presently known or unknown, suspected or
unsuspected, that BearingPoint may possess arising from any
omissions, acts, events or facts that have occurred up until and
including the date on which the Parties execute this Agreement,
including, without limitation, any and all claims relating to or arising
from Employee’s employment relationship with the Company and the
termination of that relationship; provided, however, that such released
claims shall not include any claims in connection with any fraud, willful
misconduct, gross negligence or criminal act on Employee’s part. The
Company hereby represents and warrants to Employee that it is not
presently aware of any fraud, willful misconduct, gross negligence or
criminal acts on Employee’s part or any facts or circumstances which
might give rise to a claim with respect thereto.
c. The releases set forth in this Paragraph 15 shall remain in
effect in all respects as complete general releases as to the matters
released herein. Notwithstanding anything to the contrary contained
in this Paragraph 15, the Parties agree that the releases provided for
herein do not extend to: (i) any claims related to breach of this
Agreement or the Supplemental Release, (ii) any obligations of the
Parties pursuant to the two RSU Agreements, the Stock Option
Agreement, the Stock Option Award Letter or the Managing Director
Agreement not modified by this Agreement that otherwise survive
termination of Employee’s employment with the Company; (iii) any
rights to indemnification as set forth in Paragraph 12 above; or (iv)
any claims that Employee may have under any ERISA plans
maintained by the Company and in which Employee participates or
participated in during her employment with the Company, other than
the Special Termination Agreement and the Employment Letter
between BearingPoint and Employee dated June 22, 2005, both of
which are hereby terminated.
16. Acknowledgement of Waiver of Claims under ADEA. Employee expressly acknowledges
she is waiving and releasing any rights she may have under the Age Discrimination in Employment
Act of 1967 (“ADEA”) and that this waiver and release is knowing and voluntary. Employee
acknowledges the consideration given for this waiver of claims under the
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Separation and Release of Claims Agreement
Separation and Release of Claims Agreement
ADEA is in addition to anything of value to which she was already entitled. Employee further
acknowledges: (a) she has been advised by this writing to consult with an attorney prior to
executing this Agreement and has done so; (b) she has carefully read and fully understands all of
the provisions of this Agreement; (c) she is, through this Agreement, releasing the Company from
any and all claims she may have against it; (d) she understands and agrees that this waiver and
release does not apply to any claims that may arise under the ADEA after the date she executes
this Agreement; (e) she has at least twenty-one (21) days within which to consider this Agreement;
(f) she has seven (7) days following her execution of this Agreement to revoke the Agreement (the
“Revocation Period”); and (g) this Agreement shall not be effective until the Revocation Period
has expired. Any revocation should be in writing and delivered to the attention of: Xxxxxxx X.
Xxxx, BearingPoint, Inc., X’Xxxx Plaza, 0000 X. Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx, 00000.
17. Confidential Information.
a. Employee acknowledges that she has learned and may continue to learn “Confidential
Information” (as defined below) relating to BearingPoint. In consideration of this
Agreement, Employee agrees she will not disclose or use, or authorize any third party to
disclose or use, any such Confidential Information, without prior written approval of the
Company. As used in this Paragraph 17 and throughout this Agreement, “Confidential
Information” shall mean information, including trade secrets, disclosed or known to
Employee during her employment with the Company, about BearingPoint and/or its affiliates,
the Company’s methods, business plans, operations, products, processes and services,
including, but not limited to, information relating to research, development, inventions,
programs, systems, finances and financial statements, marketing plans and strategies,
merchandising, pricing strategies, merchandise sources, clients sources, system designs,
procedure manuals, automated data programs, financial projections, computer software, terms
and conditions of business arrangements with clients or suppliers, personnel procedures,
supply and service resources, names and addresses of clients, names of professional
advisors, and all other information pertaining to clients and suppliers of the Company,
including, but not limited to assets, business interests, personal data and all other
information pertaining to the Company, clients or suppliers whatsoever, including all
accompanying documentation therefor. All information disclosed to Employee, or to which
Employee had access or will have access during the period of her employment with the
Company, for which there is any reasonable basis to believe is, or which appears to be,
treated by the Company as Confidential Information, shall be presumed to be Confidential
Information hereunder. The provisions of this Paragraph 17 shall not apply to a
particular portion of the Confidential Information when: (a) it enters the public domain
through no fault of Employee, (b) it is in Employee’s
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Separation and Release of Claims Agreement
Separation and Release of Claims Agreement
possession free of any confidentiality obligation, or (c) it was developed independently
of and without reference to any Confidential Information or other information disclosed in
confidence to any third party.
b. The Company acknowledges and agrees that Employee
has been in the accounting, audit and tax business for over 25 years,
including over 23 years in the business prior to joining the Company,
and as a result, Employee has accumulated information and knowledge
regarding the accounting, audit and tax industry. Therefore, for
clarification, nothing in this Agreement shall restrict Employee from
using information or knowledge regarding the accounting, audit and tax
industry that Employee possessed prior to her employment with the
Company. Except as expressly provided for in Employee’s Managing
Director Agreement, as amended herein, nothing contained in this
Agreement shall preclude or limit Employee from performing services
which may be similar to those performed by Employee on behalf of the
Company without reliance on the Company’s Confidential Information.
c. Employee agrees that all documents of any nature
pertaining to activities of the Company or its affiliates, or that include
any Confidential Information, in her possession now or at any time
during the term of her employment with the Company, including
without limitation, memoranda, notebooks, notes, data sheets, records
and computer programs (however stored), are and shall be the
property of the Company (“BearingPoint Property”).
18. Return of BearingPoint Property. Employee agrees that she will
return all Confidential Information to the Company prior to the Separation
Date (including all copies of Confidential Information no matter how stored),
and all other property of the Company, including, but not limited to, keys,
access cards, computers, electronic equipment, notebooks, files, policies,
papers, furniture and corporate credit cards.
19. Remedies for Breach. Employee hereby acknowledges that a
violation of any of the covenants set forth in Paragraph 17 and 18 of this
Agreement will cause irreparable damage to BearingPoint and, accordingly,
agrees that BearingPoint, in addition to liquidated damages in an amount
equal to five (5) percent of the amount of the payments made pursuant to
Paragraph 9(a) above, for each occurrence of a proven breach, shall be
entitled as a matter of right to an injunction, issued by any court of
competent jurisdiction, restraining any violation or further violation of such
covenants by Employee; such right to an injunction, however, shall be in
addition to the liquidated damages provided for above. Notwithstanding the
foregoing, in no event shall the cumulative liquidated damages payable
pursuant to this Paragraph 19 exceed the total, aggregate amount paid to
Employee pursuant to Paragraph 9(a) above.
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Separation and Release of Claims Agreement
Separation and Release of Claims Agreement
20. No Admission. Each of Employee and the Company understands
and acknowledges that by entering into this Agreement, neither Employee
nor the Company admits to any unlawful conduct or wrongdoing in
connection with Employee’s employment by the Company or the termination
thereof.
21. No Pending Lawsuits. Employee represents she has no lawsuits,
claims, complaints, charges, actions, or administrative filings pending in her
name, or on behalf of any other person or entity, against BearingPoint or any
other person or entity referred to herein.
22. Nature of Agreement. This Agreement and all its provisions are
contractual, not mere recitals, and shall continue in permanent force and
effect unless revoked as provided herein.
23. Cooperation. For the six (6) month period following the
Separation Date, Employee agrees to make herself available and cooperate
with the Company’s reasonable requests for assistance regarding matters
about which Employee has relevant personal information or knowledge
acquired during her employment with BearingPoint for up to 10 hours
(including travel time, if needed) per month or, in the event of actual or
threatened legal proceedings, for such additional time as may be reasonably
required; provided, however, that if in any given month the Company does
not use all or part of such 10 hours, the remaining time shall not carry over
to a subsequent month.
24. No Right to Future Employment. Employee agrees not to seek
further employment or any other working relationship with BearingPoint and
acknowledges she does not possess any rights or claims to any future
employment with the Company.
25. Notices. Any notice, demand or request required or permitted
to be given or made under this Agreement shall be in writing and shall be
deemed to be given or made when delivered in person, when sent by United
States registered or certified mail, or postage prepaid, or when faxed or
emailed to a party at the address, facsimile number or email address
specified below:
If to the Company:
|
BearingPoint, Inc. Attention: Xxxxxxx X. Xxxx X’Xxxx Plaza 0000 X. Xxxxxxx Xxxx Xxxxxxx, XX 00000 Fax Number: (000) 000-0000 Email: xxxxxxx.xxxx@xxxxxxxxxxxx.xxx |
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Separation and Release of Claims Agreement
Separation and Release of Claims Agreement
If to Employee:
|
To the address provided by the Employee to the Company in writing simultaneously herewith | |
With a copy to:
|
Xxxxxxxx Xxxxxx Xxxxx Xxxx LLP Xxx Xxxxxxxxxxxx Xxxxxx, Xxxxx 0000 Xx. Xxxxx, Xxxxxxxx 00000 Fax Number: 000 000 0000 Email: xxxxxxxx.xxxxxx@xxxxxxxxx.xxx |
Either Party may change the notice address by providing notice to the other Party in
accordance with the terms of this Paragraph.
26. Paragraph Headings. All Paragraph headings are for
convenience only and do not modify or restrict any terms or conditions set
forth in this Agreement.
27. Governing Law. This Agreement shall be governed by the laws
of the Commonwealth of Virginia, without regard to conflicts of law
principles.
28. Drafter of Agreement. This Agreement shall be construed
without respect to its drafter, and shall be construed as though the Parties
both participated equally in the drafting of this Agreement.
29. Assignment. The obligations and duties of the Parties set forth
in this Agreement may not be assigned or delegated; provided however, that
nothing in this Agreement shall preclude the Company from consolidating or
merging with, or transferring all or substantially all assets to, another
corporation, person or entity (“Entity”). The Company will require any
successor and any corporation or other legal person which is in control of
such successor to all or substantially all of the business and/or assets of the
Company (by purchase, merger, consolidation or otherwise) to expressly
assume and agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform it if no
succession had taken place. The obligations and duties of Employee
hereunder shall be personal and not assignable or delegable by Employee in
any manner whatsoever.
30. Entire Agreement. Except for the two RSU Agreements as
modified by Paragraph 8(a) hereof, the Stock Option Agreement and the
Award Notice as modified by Paragraph 8(b) hereof, and the Managing
Director Agreement, as modified by Paragraph 9(d) hereof, this Agreement
constitutes the entire and final agreement and understanding between the
Parties on the subject matters hereof and supersedes or negates all prior or
other written and/or verbal agreements, representations, statements,
inducements or understandings pertaining to this Agreement and/or the
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Separation and Release of Claims Agreement
Separation and Release of Claims Agreement
subject matters hereof, including without limitation the Employment Letter between BearingPoint and
Employee dated June 22, 2005 and the Special Termination Agreement, both of which are hereby
terminated by agreement and shall be of no further force or effect. Notwithstanding any rule of law
to the contrary, this Agreement shall not be — and shall not otherwise be deemed to be — amended,
supplemented, revised, altered or modified in any other way, whether orally, by conduct, through
informal writings, or by any combination thereof. This Agreement may be amended, supplemented,
revised, altered or modified only as set forth in Paragraph 31 of this Agreement; provided,
however, that notwithstanding any provision contained in Paragraphs 30 or 31 to the
contrary, the Parties agree that BearingPoint shall have the right to amend any of the agreements
referenced herein to comport with the requirements of Section 409A of the Internal Revenue Code of
1986, as amended. In the event the terms of this Agreement are inconsistent or conflict with the
terms of any other writing regarding the subject matter hereof, the terms of this Agreement shall
control.
31. Amendments. This Agreement may not be orally modified. This
Agreement may only be modified in a writing signed by both Parties. As to
BearingPoint, only its President or General Counsel is authorized to modify
this Agreement.
32. No Representations. By executing this Agreement, Employee
represents and acknowledges that she does not rely, and has not relied,
upon any representation or statement not set forth in this Agreement with
regard to the subject matter, basis, or effect of this Agreement or otherwise.
33. Severability. Should it be determined that any provision or part
of this Agreement or any documents executed in connection herewith is
invalid or unenforceable, then such invalidity or unenforceability shall not
affect the validity or enforceability of any other provision or part of this
Agreement or the documents attendant to same.
34. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed as effective as the signed
original. Photographic or facsimile copies of such signed counterparts may
be used in lieu of the originals and shall have the same effect as the original
for all purposes.
35. Authority to Execute. The Parties agree the undersigned are
fully authorized to execute this Agreement. Employee represents and
warrants that she has the capacity to act on her own behalf and on behalf of
all who might claim through Employee to bind them to the terms and
conditions of this Agreement. BearingPoint represents and warrants that all
corporate formalities attendant to the execution of this Agreement have been
satisfied. The Company further represents and warrants as of the date
hereof that the execution by the Company of this Agreement will not result in
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Separation and Release of Claims Agreement
Separation and Release of Claims Agreement
a breach of, or constitute a default under, any provision of any credit agreement to which the
Company is a party.
36. Voluntary Execution of Agreement. The Parties acknowledge they have carefully read
and fully understand all of the terms of this Agreement, including the releases contained herein,
have had sufficient time to consult with counsel of their choice, and that they enter into this
Agreement voluntarily and without any duress or undue influence on the part or behalf of the
Parties hereto, with the full intent of releasing all claims.
EMPLOYEE AFFIRMS SHE HAS CONSULTED WITH HER ATTORNEY, OR HAD AN OPPORTUNITY TO DO SO, PRIOR TO
SIGNING THIS AGREEMENT AND THAT SHE IS EXECUTING THE AGREEMENT VOLUNTARILY AND WITH FULL
UNDERSTANDING OF ITS CONSEQUENCES.
SIGNATURES CONTAINED ON FOLLOWING PAGE
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Separation and Release of Claims Agreement
Separation and Release of Claims Agreement
IN WITNESS WHEREOF, the Parties have executed this Agreement on the respective dates set
forth below:
BearingPoint, Inc.:
By:
|
/s/ F. Xxxxx Xxxxxxx | Dated: | ||||||||
| F. Xxxxx Xxxxxxx
|
||||||||||
Title:
|
Chief Executive Officer
|
Xxxx Xxxxxx:
/s/ Xxxx Xxxxxx
|
Dated: | May 29, 2008
|
||||||
Xxxx Xxxxxx |
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Separation and Release of Claims Agreement
Separation and Release of Claims Agreement
