BEARINGPOINT, INC. RESTRICTED STOCK UNIT AGREEMENT
Exhibit
10.97
BEARINGPOINT, INC.
RESTRICTED STOCK UNIT AGREEMENT
RESTRICTED STOCK UNIT AGREEMENT
THIS
RESTRICTED STOCK UNIT AGREEMENT (this “Agreement”), dated September 19, 2006 (the “Grant
Date”), evidences an award of restricted stock units made by BearingPoint, Inc., a Delaware
corporation (the “Company”), to Xxxx Xxxxxx (the “Executive”), each of which represents the right
to receive on settlement cash or one (1) share of common stock, $0.01 par value of the Company
(the “Common Stock”).
WHEREAS, the Executive will be the Executive Vice President — Finance and Chief Accounting
Officer of the Company, and her services will be of vital importance to the business success of
the Company; and
WHEREAS, the Company has determined that it is in the best interests of the Company and its
stockholders to grant the Executive the restricted stock units, as provided in this Agreement, as
a material inducement for the Executive to join the Company and to contribute to its business
success.
NOW, THEREFORE, the Company makes an award of restricted stock units to the Executive,
subject to the following terms and conditions:
1. Grant of Restricted Stock Units.
a. On September 19, 2006 (the “Grant Date”), the Executive shall acquire,
subject to the provisions of this Agreement, 94,000 restricted stock units (the “Restricted
Stock
Units”), subject to adjustment as provided in Section 8. Each Restricted Stock Unit consists
of a
bookkeeping entry representing the right to receive on a date determined in accordance with
this
Agreement either (i) one share of Common Stock or (ii) cash equal to the Fair Market Value of
one share of Common Stock.
b. The Executive is not required to make any monetary payment (other than
applicable tax withholding, if any, and payment of the par value of the Common Stock, if
required by law) as a condition to receiving cash or shares of Common Stock issued upon
settlement of the Restricted Stock Units. The consideration for the Restricted Stock Units
shall
be future services to be rendered to the Company or for its benefit.
2. Vesting of Restricted Stock Units.
a. Except as provided in Sections 2(b), 4 and 7(a), the Restricted Stock Units shall become
100% vested and nonforfeitable (i) on each date (the “Vesting Date”) set forth below, provided the
Executive remains continuously employed through the Vesting Date:
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| Vesting Date | Number of Restricted Stock Units | |||
Grant Date |
23,500 | |||
July 1, 2007 |
23,500 | |||
July 1, 2008 |
23,500 | |||
July 1, 2009 |
23,500 | |||
or (ii) notwithstanding clause (i), on the death or Disability of the Executive.
“Disability” shall mean the inability of the Executive to perform substantially her duties and
responsibilities for a continuous period of at least six months, as determined solely by the
Compensation Committee of the Board of Directors of the Company (the “Committee”).
b. Notwithstanding the provisions of Section 2(a), vesting of the Restricted Stock Units that
is scheduled to occur on July 1 in each of the years 2007 — 2009 shall be subject to the
achievement of the following goals:
i. all of the Company’s SEC filings (beginning with the Company’s 2005 Form
10-K) being filed on a timely basis as of such Vesting Date or the Executive
having exerted her reasonable best efforts to have the Company’s SEC filings
materially complete as of such date, and
ii. the Executive having exerted her reasonable best efforts to move the
Company forward on a path to becoming a “world class financial
organization.” For these purposes, a “world class financial organization”
shall mean an organization that satisfies the criteria mutually established
by the Executive and the Chief Executive Officer of the Company.
3. Termination of Employment. In the event that the Executive’s employment
terminates for any reason or no reason, with or without “Cause”, the Executive shall forfeit
and
the Company shall automatically reacquire all Restricted Stock Units which are not, as of time
of
such termination, vested, and the Executive shall not be entitled to any payment or other
consideration therefore, provided, however, that on the termination of the
Executive’s
employment by the Company without Cause or by the Executive for Good Reason, the portion of
the Restricted Stock Units that is scheduled to vest on the next anniversary of the Grant Date
shall vest on the date of the Executive’s termination. “Good Reason” shall have the meaning
set
forth in the employment letter entered into by the Executive and the Company as of June 22,
2005 (the “Employment Letter”).
4. Termination of Restricted Stock Units and Forfeiture of Restricted Stock Units
Gain.
a. If the Executive:
i. breaches any covenant concerning confidentiality or intellectual property or
concerning noncompetition or nonsolicitation of clients, prospective clients or
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personnel of
the Company and its Affiliates to which the Executive is or may become a party in the future;
ii. fails (A) to complete on a timely basis all current and future training relating to
the Company’s policies and procedures, including financial reporting and timekeeping training, (B)
to consistently follow all Company policies and procedures and to confirm that the employees the
Executive supervises are following such Company policies and procedures, (C) to meet such cash
collection goals, if any, as are established for the Executive by the Company from time to time or
(D) to participate in the Company’s variable compensation program; or
iii. is terminated for “Cause;”
then, in addition to and without in any way limiting any remedies under any of the covenants
described above in this Section 4(a) or otherwise:
(A) any unvested Restricted Stock Units and any vested Restricted
Stock Units that have not settled as provided in Section 5(a) shall be forfeited automatically on
the date the Executive commits such breach as is specified in clause (i), fails to act as specified
in clause (ii) or is terminated for “Cause;” and
(B) in the event of a breach described in Section 4(a)(i), the
Executive shall pay the Company, within five business days of receipt by the Executive of a written
demand therefor, an amount in cash equal to the aggregate of (i) cash received in settlement of
Restricted Stock Units and (ii) the amount determined by multiplying the number of shares of Common
Stock issued in settlement of Restricted Stock Units prior to the date the Executive breaches such
covenant (without reduction for any shares of Common Stock delivered by the Executive or withheld
by the Company pursuant to Section 6(c)) by the Fair Market Value of a share of Common Stock on the
date the shares of Common Stock were issued to the Executive; and
(C) in the event of a breach described in Section 4(a)(ii) or if the
Executive is terminated for Cause other than for a breach referenced in Section 4(a)(i), the
Executive shall pay the Company, within five business days of receipt by the Executive of a written
demand therefor, an amount in cash equal to 50% of the aggregate of (i) cash received in settlement
of Restricted Stock Units and (ii) the amount determined by multiplying the number of shares of
Common Stock issued in settlement of Restricted Stock Units prior to the date of the breach
described in Section 4(a)(ii) or the date the Executive is terminated for Cause other than for a
breach referenced in Section 4(a)(i) (without reduction for any shares of Common Stock delivered by
the Executive or withheld by the Company pursuant to Section 6(c)) by the Fair Market Value of a
share of Common Stock on the date the shares of Common Stock were issued to the Executive; and
(D) the Executive shall pay any damages in excess of the amounts
paid to the Company under clauses (B) or (C) above.
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b. The Executive agrees that by executing this Agreement, the Executive
authorizes the Company and its Affiliates to deduct any amount or amounts owed by the
Executive pursuant to Section 4(a) from any amounts payable by the Company or any Affiliate
to the Executive, including, without limitation, any amount payable to the Executive as
salary,
wages, vacation pay or bonus. This right of setoff shall not be an
exclusive remedy, and the Company’s or an Affiliate’s election not to exercise this right of setoff with respect to any
amount payable to the Executive shall not constitute a waiver of this right of setoff with
respect
to any other amount payable to the Executive or any other remedy.
c. “Cause” shall mean the occurrence, failure to cause the occurrence or
failure to cure after the occurrence (when a cure is permitted), as the case may be, of any of
the
following circumstances after the Executive’s receipt of written notification from the General
Counsel which includes a detailed description of the claimed circumstance: (i) the Executive’s
embezzlement, misappropriation of corporate funds, or the Executive’s material acts of
dishonesty; (ii) the Executive’s commission or conviction of any felony or of any misdemeanor
involving moral turpitude, or entry of a plea of guilty or nolo contendre to any felony or
misdemeanor involving moral turpitude; (iii) the Executive’s engagement, without a reasonable
belief that her action was in the best interests of the Company, in any activity that could
harm the
business or reputation of the Company in a material manner; (iv) the Executive’s willful
failure
to adhere to the Company’s material corporate codes, policies or procedures that have been
communicated to her; (v) the Executive’s material breach of any provision of the managing
director agreement entered into by the Executive and the Company effective July 1, 2005 (the
“Managing Director Agreement”) or the Employment Letter; or (vi) the Executive’s violation
of any statutory or common law duty or obligation to the Company, including, without
limitation, the duty of loyalty, provided, however, that in the case of subsections
(iii), (iv), (v)
and (vi), the Company shall provide the Executive with the opportunity to cure any Cause event
during the 15-day period after her receipt of written notice describing the Cause event,
provided, however, that a Cause event shall be considered to be cured only if all adverse
consequences of
the Cause event have been fully remedied.
5. Settlement of the Restricted Stock Units.
a. Issuance of Shares of Common Stock or Cash. Subject to the provisions of Sections 5(c) -
(e), the Company shall issue to the Executive (i) cash, (ii) the number of shares of Common Stock
that is equal to the number of vested Restricted Stock Units after any adjustments under Section 8
or (iii) a combination of cash or shares of Common Stock, provided, however, that it shall
be in the Company’s sole discretion whether the issuance shall be in the form specified in clause
(i), (ii) or (iii) and provided further that any Restricted Stock Units that vest as a
result of the death or Disability of the Executive shall be settled in full on the next Vesting
Date that occurs after the death or Disability of the Executive. Notwithstanding the foregoing,
the Executive may defer payment of any vested Restricted Stock Units, provided any such election
to defer and deferral agreement comply in all respects with Section 409A of the Internal Revenue
Code of 1986, as amended (the “Code”) and, at the request of the Executive, the Company shall
amend this Agreement to the extent necessary for the deferral to comply with Code Section 409A.
If the Company elects to pay the Executive in cash, the payment shall equal the Fair Market Value
of the number of shares of Common Stock on the Settlement Date, as
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defined below, that is equal to the number of vested Restricted Stock Units after any adjustments
under Section 8. For purposes of this Agreement, “Fair Market Value” shall mean the last sale
price of a share of Common Stock as reported on the New York Common Stock Exchange on the date as
of which such value is being determined or, if there shall be no reported transactions on such
date, on the next preceding date for which a transaction was
reported; provided, however,
that if the Common Stock is not traded on the New York Common Stock Exchange, Fair Market
Value may be determined by the Committee by whatever means or method as the Committee, in the good
faith exercise of its discretion, shall at such time deem appropriate.
b. Settlement Schedule. Except for any deferred amounts, and subject to any restriction on
transfer pursuant to Sections 5(c)—(e), the Restricted Stock Units shall be settled as provided in
Section 5(a), and any Common Stock that is issued at settlement may be sold, in accordance with
the following schedule (the “Settlement Schedule).
| Settlement of RSUs | ||||
| and Permissible | ||||
| Sale Dates | Number of RSUs | |||
Grant Date
|
23,500 | |||
July 1, 2007
|
23,500 | |||
July 1, 2008
|
23,500 | |||
July 1, 2009
|
23,500 | |||
c. Restrictions on Grant of the Restricted Stock Units and Issuance of
Shares. The grant of the Restricted Stock Units and issuance of shares of Common Stock upon
settlement of the Restricted Stock Units shall be subject to and in compliance with all
applicable
requirements of federal, state or foreign law with respect to such securities. No shares of
Common Stock may be issued hereunder if the issuance of such shares would constitute a
violation of any applicable federal, state or foreign securities laws or other law or
regulations or
the requirements of any stock exchange or market system upon which the Common Stock may
then be listed. The inability of the Company to obtain from any regulatory body having
jurisdiction the authority, if any, deemed by the Company’s legal counsel to be necessary to
the
lawful issuance of any shares subject to the Restricted Stock Units shall relieve the Company
of
any liability in respect of the failure to issue such shares as to which such requisite
authority
shall not have been obtained. As a condition to the settlement of the Restricted Stock Units,
the
Company may require the Executive to satisfy any qualifications that may be necessary or
appropriate, to evidence compliance with any applicable law or regulation and to make any
representation or warranty with respect thereto as may be requested by the Company.
d.
Restrictions upon Certain Terminations of Employment. If the
Executive terminates her employment, other than for Good Reason or on account of death or
Disability, then (i) the Company shall not issue to the Executive any additional shares of Common
Stock underlying outstanding vested Restricted Stock Units pursuant to Section 5(a) of this
Agreement until July 1, 2015, at which time any outstanding vested Restricted Stock Units shall be
settled as provided in Section 5(a), and (ii) the Executive shall not sell, assign,
alienate,
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pledge, attach or otherwise transfer or encumber any shares of Common Stock previously
issued to the Executive pursuant to Section 5(a) until July 1, 2015.
e. Restrictions on Sale of Shares. Until July 1, 2015, the Executive shall
not transfer any shares of Common Stock received upon the settlement of Restricted Stock Units
pursuant to Section 5(a) except (i) in sales, redemptions or other transactions, underwritten
public offerings or share repurchases, in each case as approved in writing by the Company
either
specifically or by general policy, or (ii) to estate and/or tax planning vehicles, family
members
and charitable organizations that become bound hereby by express agreement, in each case as
approved in writing by the Company (which approval may be subject to such other conditions,
including the requirement that any transferee become bound by any other agreement, as the
Company may, in its sole discretion, require). The Company shall use its reasonable efforts
to
facilitate the sales, redemptions or other transactions, underwritten public offerings or
share
repurchases referred to in clause (i) of the preceding sentence, at the Company’s expense,
promptly after each settlement of the Restricted Stock Units. The Executive agrees that, in
the
Company’s sole discretion, and until July 1, 2015, all of his or her shares of Common Stock
shall
either (i) bear legends that reflect the restrictions imposed by this Section 5 or (ii) be
held in
custody by a custodian designated by the Company.
f. Registration of Shares. Shares issued in settlement of the Restricted
Stock Units shall be registered in the name of the Executive, or, if applicable, in the names
of the
heirs of the Executive. Such shares may be issued either in certificated or book entry form.
In
either event, the certificate or book entry account shall bear such restrictive legends or
restrictions as the Company, in its sole discretion, shall require.
g. Fractional Shares. The Company shall not be required to issue fractional
shares upon the settlement of the Restricted Stock Units.
h. Dividend Equivalents. As of each dividend payment date for each cash dividend on the Common
Stock, the Company shall award the Executive additional restricted stock units, which shall be
subject to the same terms and conditions as the Restricted Stock Units granted pursuant to this
Agreement. The number of additional restricted stock units to be granted shall equal: (i) the
product of (x) the per-share cash dividend payable with respect to each share of Common Stock on
that date, multiplied by (y) the total number of Restricted Stock Units which have not been paid or
forfeited as of the record date for such dividend, divided by (ii) the Fair Market Value of one
share of Common Stock on the payment date of such dividend. The number of additional Restricted
Stock Units to be granted if the dividend is paid in the form of Common Stock shall be determined
in accordance with Section 8 of this Agreement.
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6. Withholding Taxes.
a. In General. Unless Section 6(b) or 6(c) applies, the Executive shall pay
to the Company, or make provision satisfactory to the Company for payment of, any federal,
state, local or foreign taxes required by law to be withheld with respect to the issuance of
shares
of Common Stock in settlement thereof, no later than the date on which such withholding is
required under applicable law. The Company shall have no obligation to deliver shares of
Common Stock until the tax withholding obligations of the Company have been satisfied by the
Executive.
b. Payment in Cash. The Company shall withhold from any payment under
Section 5 the amount of any federal, state, local or foreign taxes required by law to be
withheld
with respect to the settlement of the Restricted Stock Units in cash.
c. Payment in Shares. The Executive may satisfy all or any portion of the
Company’s tax withholding obligations by requesting the Company to withhold a number of
whole shares of Common Stock otherwise deliverable to the Executive in settlement of the
Restricted Stock Units having a fair market value, as determined by the Company as of the date
on which the tax withholding obligations arise, not in excess of the amount of such tax
withholding obligations determined by the applicable minimum statutory withholding rates. Any
adverse consequences to the Executive resulting from the procedure permitted under this
Section
6(c), including, without limitation, tax consequences, shall be the sole responsibility of the
Executive.
7. Change in Control.
a. In addition to the provisions of the Special Termination Agreement
entered into by the Executive and the Company effective July 1, 2005, in the event of a Change
in Control, as defined in Section 7(b), of the Company, the Restricted Stock Units shall
become
100% vested and nonforfeitable effective as of the date of the Change in Control. The
Restricted
Stock Units shall be settled in accordance with Section 4 on the date of the Change in Control
to
the extent that the Restricted Stock Units are neither assumed nor continued in connection
with
the Change in Control.
b.
For purposes of this Agreement, “Change in Control” means:
(A) a sale or transfer of all or substantially all of the assets of the Company
on a consolidated basis in any transaction or series of related transactions;
(B) any merger, consolidation or reorganization to which the Company is a
party, except for a merger, consolidation or reorganization in which the Company is the
surviving corporation and, after giving effect to such merger, consolidation or
reorganization, the holders of the Company’s outstanding equity (on a fully diluted
basis)
immediately prior to the merger, consolidation or reorganization will own in the
aggregate
immediately following the merger, consolidation or reorganization the Company’s
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outstanding equity (on a fully diluted basis) either (i) having the ordinary voting power to
elect a majority of the members of the Company’s board of directors to be elected by the
holders of Common Stock and any other class which votes together with the Common Stock as a
single class or (ii) representing at least 50% of the equity value of the Company as
reasonably determined by the Committee;
(C) individuals who, as of the date hereof, constitute the Board (the “Incumbent
Board”) cease for any reason to constitute at least a majority of such Board;
provided, however, that any individual who becomes a director of the Company
subsequent to the date hereof whose election, or nomination for election by the holders of
the Company’s equity, was approved by the vote of at least a majority of the directors then
comprising the Incumbent Board shall be deemed to have been a member of the Incumbent Board;
and provided further, that no individual who was initially elected as a director of the
Company as a result of an actual or threatened solicitation by any individual, entity or
group (a “Person”) other than the Board, including any “person” within the meaning of Section
13(d) of the Exchange Act, for the purpose of opposing a solicitation by any other Person
with respect to the election or removal of directors, or any other actual or threatened
solicitation of proxies or consents by or on behalf of any Person other than the Board shall
be deemed to have been a member of the Incumbent Board; or
(D) any Person acquires beneficial ownership of 30% or more of the outstanding equity
of the Company generally entitled to vote on the election of directors.
8. Adjustments for Changes in Capital Structure. In the event of any Common
Stock split, reverse Common Stock split, Common Stock dividend,
recapitalization,
reorganization, merger, consolidation, combination, exchange of shares, liquidation, spin-off
or
other similar change in capitalization or event, or any distribution to holders of Common
Stock
other than a regular cash dividend, the number and class of securities subject to the
Restricted
Stock Units shall be appropriately adjusted by the Committee. If any adjustment would result
in
a fractional share being subject to the Restricted Stock Units, the Company shall pay the
Executive, in connection with the first vesting of the Restricted Stock Units occurring after
such
adjustment, an amount in cash determined by multiplying (i) the fraction of such share
(rounded
to the nearest hundredth) by (ii) the Fair Market Value on the vesting date. The decision of
the
Committee regarding any such adjustment shall be final, binding and conclusive.
9. Rights as a Shareholder. The Executive shall have no rights as a stockholder
with respect to any shares which may be issued in settlement of the Restricted Stock Units
until
the date of the issuance of a certificate for such shares (as evidenced by the appropriate
entry on
the books of the Company or of a duly authorized transfer agent of the Company). No
adjustment shall be made for dividends, distributions or other rights for which the record
date is
prior to the date such certificate is issued, except as provided in Sections 5(h) and 8.
10. No Employment Rights. The Executive understands and acknowledges that,
except as otherwise provided in the Employment Letter or the Managing Director Agreement, as
the case may be, the Executive’s employment is “at will” and is for no specified term. Nothing
in this Agreement shall confer upon the Executive any right to continue in the employment of
the
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Company or interfere in any way with any right of the Company to terminate the Executive’s
employment at any time.
11. Legends. The Company may at any time place legends referencing any applicable
federal, state or foreign securities law restrictions on all certificates representing shares
of
Common Stock issued pursuant to this Agreement. The Executive shall, at the request of the
Company, promptly present to the Company any and all certificates representing shares acquired
pursuant to this Agreement in the possession of the Executive in order to carry out the
provisions
of this Section.
12. Nontransferability of Restricted Stock Units. Prior to the issuance of shares of
Common Stock on the Settlement Date, neither this Agreement nor any of the Restricted Stock
Units subject to this Agreement shall be subject in any manner to anticipation, alienation,
sale,
exchange, transfer, assignment, pledge, encumbrance, or garnishment by creditors of the
Executive or the Executive’s beneficiary, except transfer by will or by the laws of descent
and
distribution. All rights with respect to the Agreement shall be exercisable during the
Executive’s
lifetime only by the Executive or the Executive’s guardian or legal representative.
13. Amendment. The Committee may amend this Agreement at any time; provided,
however, that no such amendment may adversely affect the Participant’s rights under this
Agreement without the consent of the Participant, except to the extent such amendment is
reasonably determined by the Committee in its sole discretion to be necessary to comply with
applicable law. No amendment or addition to this Agreement shall be effective unless in
writing.
14. Administration of this Agreement. All questions of interpretation concerning
this Agreement shall be determined by the Committee. All determinations by the Committee
shall be final and binding upon all persons having an interest in this Agreement.
15. Binding Effect. This Agreement shall inure to the benefit of the successors and
assigns of the Company and, subject to the restrictions on transfer set forth herein, be
binding
upon the Executive and the Executive’s heirs, executors, administrators, successors and
assigns.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Virginia, other than the conflict of laws
principles thereof.
17. Construction. Captions and titles contained herein are for convenience only and
shall not affect the meaning or interpretation of any provision of this Agreement. Except when
otherwise indicated by the context, the singular shall include the plural and the plural shall
include the singular. Use of the term “or” is not intended to be exclusive, unless the
context
clearly requires otherwise.
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18. Employment Letter. In the event of a conflict between the provisions of this Agreement and
the provisions of the Employment Letter, this Agreement shall control as to the number of the
Restricted Stock Units granted, the date of grant, the vesting schedule, and the settlement
schedule, but the Employment Letter shall control as to all other terms.
IN WITNESS WHEREOF, the Company has caused this Agreement to be exercised by its duly
authorized officer effective as of the Grant Date.
| BEARINGPOINT, INC. | ||||
| Xxxxx X. You | ||||
| Chief Executive Officer |
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Acknowledgement, Acceptance and Agreement:
By signing below and returning this Restricted Stock Unit Agreement to Xxxxxx X. Xxxx, General
Counsel and Secretary, BearingPoint, Inc., I hereby acknowledge receipt of the Agreement, accept
the RSUs granted to me, and agree to be bound by the terms and conditions of the Agreement.
/s/ Xxxx Xxxxxx
|
10/3/06
|
|||||
Xxxx Xxxxxx
|
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