Amendment to BearingPoint, Inc. Performance Share Unit Award Agreement
Exhibit 10.56
Amendment to
BearingPoint, Inc. Performance Share Unit Award Agreement
In accordance with the Sections 12 and 19 of the BearingPoint, Inc. Performance Share Unit
Award Agreement (the “Agreement”), the Compensation Committee of the Board of Directors of
BearingPoint, Inc. hereby amends the Agreement in order to comply with the requirements of Section
409A of the Internal Revenue Code of 1986, as amended and related regulations or Treasury
pronouncements (collectively, “Section 409A”). This amendment shall apply to all previously awarded
and outstanding Performance Share Unit Awards which amendment shall be incorporated as “Exhibit A”
to the Agreement (the “Amendment”) and shall become effective upon the close of business on
December 31, 2008.
1. Section 4(c) of the Agreement shall be amended by adding the following sentence at the end
of section: “Notwithstanding the foregoing, in no event shall the Settlement Date be a date later
than December 31 of the calendar year in which an installment payment is scheduled to be paid.”
2. Section 5(a) is amended by deleting the second sentence thereof.
3. Section 5(e) shall be replaced with the following paragraph:
Upon the Award Recipient’s termination by the Company due to Death or Disability prior to December
31, 2009, but after December 31, 2007, the Committee shall determine the level of vesting of the
Award Recipient’s Performance Share Units under Section 3(b), provided that the conditions of 3(a)
have been met, for all completed fiscal years during the Performance Period prior to the Award
Recipient’s termination due to Death or Disability. A pro rata portion of the vested percentage of
Performance Share Units shall be determined based on the number of completed months (including the
month of termination) during the Performance Period prior to the date of the Award Recipient’s
Death or Disability. Amounts vested due to Death shall be paid within 30 days of the Committee’s
determination that the Performance Measures were achieved for the year of the Award Recipient’s
Death but in no event later than the December 31 of the year following the year of Award
Recipient’s Death. Amounts vested due to Award Recipient’s Disability shall be settled at the
times provided in Section 4(c).
4. Sections 7(c) and 7(d) shall be eliminated and Section 7(b) shall be replaced with the
following paragraph:
General. In the event of a Change in Control, the Consolidated Business Unit Contribution
Performance Measure set forth in Section 3(a) shall be waived. In the event of a Change in Control
constituting (1) 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 to a single Person, or (2)
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 outstanding equity (on a fully diluted basis) either (i) having the
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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 Company’s board of directors, the Performance Units shall remain
outstanding on their original terms and the Company or Acquiring Entity, as applicable, shall
remain responsible for the settlement of vested Performance Share Units in accordance with the
existing terms and conditions of the Performance Share Units.
Notwithstanding the foregoing or any other provision of this Agreement or the Plan, in the
event of a Change in Control constituting 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
to two or more unaffiliated Persons wherein the Company continues in existence after such Change in
Control and actively continues the conduct of its ongoing business, the Consolidated Business Unit
Contribution Performance Measure set forth in Section 3(a) shall not be waived, the Performance
Share Units shall remain outstanding on their original terms and the Company shall remain
responsible for the settlement of vested Performance Share Units in accordance with the existing
terms and conditions of the Performance Share Units. If the Performance Share Units shall remain
outstanding and remain the responsibility of the Company after the occurrence of any such Change in
Control and, as a result of such Change in Control, the Company shall cease to own, immediately
following such Change in Control, total assets equal to at least 50% of the total assets of the
Company immediately prior to the transaction that resulted in such Change in Control, the
Performance Share Units shall immediately become 100% vested and nonforfeitable effective as of the
date of such change in total assets, and valued based on Company relative TSR performance as of
that date.
In the case of a Change in Control, any vested Performance Share Units shall be settled by the
Company or Acquiring Entity, as applicable, on the date determined in accordance with Section 4(c),
or if earlier (1) upon the occurrence of a Change in Control which also constitutes a “change in
ownership or effective control of a corporation or a change in the ownership of a substantial
portion of the assets of a corporation” as defined in Section 409A, or (2) upon the Plan’s
termination and liquidation in accordance with U.S. Treasury Regulation Section 1.409A-3(j)(4)(ix).
5. Section 19 shall be amended by adding the following paragraphs before the paragraph:
Section 409A Compliance.
This Agreement is intended to comply with Section 409A of the Code and ambiguous provisions, if
any, shall be construed in a manner that is compliant with or exempt from the application of
Section 409A, as appropriate. This Agreement shall not be amended in a manner that would cause the
Agreement or any amounts payable under the Agreement to fail to comply with the requirements of
Section 409A, to the extent applicable, and, further, the provisions of any purported amendment
that may reasonably be expected to result in such non-compliance shall be of no force or effect
with respect to the Agreement.
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BearingPoint shall neither cause nor permit any payment, benefit or consideration to be substituted
for a benefit that is payable under this Agreement if such action would result in the failure of
any amount that is subject to Section 409A to comply with the applicable requirements of Section
409A.
Notwithstanding any provision of this Agreement to the contrary, if the Award Recipient is a
“specified employee” within the meaning of Section 409A as of the date of the Award Recipient’s
termination of employment and BearingPoint determines, in good faith, that immediate payment of any
amounts or benefits would cause a violation of Section 409A, then any amounts or benefits which are
payable under this Agreement upon the Award Recipient’s “separation from service” within the
meaning of Section 409A which
| (i) | are subject to the provisions of Section 409A; | |
| (ii) | are not otherwise excluded under Section 409A; and | |
| (iii) | would otherwise be payable during the first six-month period following such separation from service |
shall be paid on the first business day next following the earlier of (1) the date that is six
months and one day following the date of termination or (2) the date of Award Recipient’s death.
For purposes of Section 409A, each payment under this Agreement shall be deemed to be a separate
payment.
6. Adjustment or Amendment.
Notwithstanding anything in the Agreement or in the Plan to the contrary, no adjustment or
substitution pursuant to Section 7.7 of the Plan and no amendment to the Agreement pursuant to
Section 7.2 of the Plan or Section 10 of the Agreement, as applicable, shall be made in a manner
that results in noncompliance with the requirements of Section 409A. The foregoing rule shall apply
to the extent a Performance Share Award is subject to Section 409A or to the extent a Performance
Share Award becomes subject to Section 409A as a result of the adjustment, substitution or
amendment described herein.
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