Exhibit 10.87
MANAGING DIRECTOR
AGREEMENT
This Agreement (“Agreement”) is
between BearingPoint, Inc., (“BearingPoint”) and Harry
L. You (“You” and all similar references) as of
March 21, 2005 (the “Effective Date”):
1. Employment. You accept employment on the terms of this
Agreement from the Effective Date until the end of your employment
with BearingPoint in accordance with Section 6. By signing
this Agreement, you agree to: (a) devote your professional
time and effort to BearingPoint’s business and to refrain
from professional practice other than on account of or for the
benefit of BearingPoint; (b) perform any and all work assigned
to you by BearingPoint faithfully and to the best of your ability
at such times and places as BearingPoint designates; (c) abide
by all policies of BearingPoint, current and future, including the
Equal Employment Opportunity policy attached as Exhibit A, and the
Anti-Harassment policy attached as Exhibit B, (d) abide by the
Confidentiality and Intellectual Property Agreement attached as
Exhibit C, and (e) abide by the terms of the Consent Form,
concerning personal data, attached as Exhibit D. You also confirm
that you are not currently bound by any agreement that could
prohibit or restrict you from being employed by BearingPoint or
from performing any of your duties under this Agreement.
2. Compensation and Benefits.
As of the Effective Date,
BearingPoint will pay you a base salary, less required and
authorized withholding and deductions, payable in installments in
accordance with BearingPoint’s normal payroll practices. From
time to time, BearingPoint may adjust your salary and other
compensation in its discretion. During your employment, you will be
eligible to participate in any employee compensation or benefit
plans (including group medical and 401(k)), incentive award
programs, and stock option plans, any applicable employee stock
purchase plan and to receive other fringe benefits that
BearingPoint may decide to make generally available to employees in
your position. BearingPoint may amend or discontinue any of its
plans, programs, policies and procedures at any time for any or no
reason with or without notice.
You agree that in order to receive any stock
options, you will be required to enter into a separate stock option
agreement which will provide (among other things) for the
termination of your stock options and a payment to BearingPoint or
its designee of some or all of your gain if you violate Sections
1(d), 3, 6(b), or Exhibit C.
3. Covenants. In consideration of your employment and
eligibility for stock options, restricted stock units and other
equity rights, you agree to the following obligations which are
reasonably designed to protect BearingPoint’s legitimate
business interests without unreasonably restricting your ability to
earn a living after leaving BearingPoint. The wishes or preferences
of a Client or Prospective Client (defined below) are not relevant
to or admissible in any dispute under Sections 3 or 4:
(a) While employed with BearingPoint and until 1
year after your termination or resignation, you cannot enter a
relationship or venture to provide BearingPoint Services
anywhere in the world for the benefit of an
entity other than BearingPoint. A relationship or venture is
defined as an association with (i) another management group
member of BearingPoint (or other comparable individual), or
(ii) any individual who was a management group member of
BearingPoint (or other comparable individual) within 12 months
before your termination or resignation or 12 months before you seek
to perform BearingPoint Services with such an individual, whichever
is later.
(b) While employed with BearingPoint and for 2
years after your termination or resignation, you shall not,
directly or indirectly: (i) perform, provide or assist any
“Competing Entity” as that term is defined in
Section 5 below, in performing or providing BearingPoint
Services for any Client or Prospective Client; or (ii) solicit
or assist any entity in soliciting any Client or Prospective Client
for the purpose of performing or providing any BearingPoint
Services. Without limitation whatsoever to the foregoing, you
expressly acknowledge and agree that for the purpose of providing,
or assisting any Competing Entity in providing, BearingPoint
Services, your calling upon, meeting with, making presentations to,
or having business related discussions with, Clients and
Prospective Clients of BearingPoint, within such 2 years of
ceasing, for whatever reason, to serve as the CEO of BearingPoint
will necessarily constitute a violation of this Subsection 3.(b),
immediately entitling BearingPoint to pursue all legal and
equitable remedies available.
(c) While employed with BearingPoint and for 2
years after your termination or resignation, you shall not,
directly or indirectly, accept employment or a contract for the
provision of services, with any Competing Entity.
(d) While employed with BearingPoint and for 2
years after your termination or resignation, you shall not,
directly or indirectly solicit, employ or retain (or assist another
entity in doing so) any employee of BearingPoint or any former
employee who left BearingPoint within 12 months before or after
your termination or resignation to perform BearingPoint Services
with you or any person associated with you.
4. Remedies. In addition to any other remedies that may be
available to BearingPoint for breach of this Agreement, you agree
to the following obligations and accept the following consequences
for breaching Section 3. You agree that BearingPoint will
suffer damages as a result of your breach of Section 3 that
are difficult to calculate and that the payments required by
Section 4 are a reasonable forecast of the damages likely to
result and are not a penalty of any kind. In particular, you agree
that your total compensation is based on your value to
BearingPoint, and that it reflects your efforts at developing and
maintaining client and employee relationships on behalf of
BearingPoint.
(a) If you breach Section 3(b)(i) or (ii),
you will, in addition to any payments under Sections 4(b), pay
BearingPoint or its designee 50% of the gross fees and other
amounts paid or payable during the 3 years after the breach to you
or any other entity associated with you, by any Client or
Prospective Client that was solicited or provided with services in
violation of Section 3(b)(i) or (ii). These payments will be
made in cash within thirty days after payment by the Client or
Prospective Client.
(b) If you breach Section 3(d), you will,
in addition to any payments under Sections 4(a), pay BearingPoint
or its designee 100% of the total compensation (including salary
and bonus) paid or payable by BearingPoint to the solicited,
employed or retained employee during: (i) the 12 months before
your breach of Section 3(d); or (ii) in the case of a
former employee, the 12 months before the employee left
BearingPoint. These payments will be made in not less than
quarterly cash installments over the 24 months following such
breach.
5. Certain Definitions.
“Cause” means any of the following conduct by you:
(I) embezzlement, misappropriation of corporate funds, or
other material acts of dishonesty; (II) commission or conviction of
any felony, or of any misdemeanor involving moral turpitude, or
entry of a plea of guilty or nolo contendere to any felony or
misdemeanor; (III) engagement in any activity that you know or
should know could harm the business or reputation of BearingPoint;
(IV) material failure to adhere to BearingPoint’s corporate
codes, policies or procedures; (V) continued failure to meet
performance standards as determined by BearingPoint over two
consecutive performance review periods; (VI) a breach or threatened
breach of any provision of Sections 1(d), 3 or Exhibit C, or a
material breach of any other provision of this Agreement if the
breach is not cured to BearingPoint’s satisfaction within a
reasonable period after BearingPoint provides you with notice (to
your address on BearingPoint’s records) of the breach (no
notice and cure period is required if the breach cannot be cured);
or (VII) violation of any statutory, contractual, or common law
duty or obligation to BearingPoint, including without limitation
the duty of loyalty.
“Client” means any entity that is or was a client of
BearingPoint (which includes any subsidiary of BearingPoint
throughout this definition) at or within 12 months before the time
you seek to represent a competitive enterprise or entity, or
solicit or perform services for such client and that, within 2
years before your termination or resignation, you
(I) performed BearingPoint Services for or on behalf of
BearingPoint, or a related or affiliated entity, or (II) had
contact with, knowledge of, or access to Proprietary Information
(as defined in Exhibit C) or other information concerning the
client, in connection with your BearingPoint employment.
“BearingPoint”
as used throughout this Agreement
includes any successor to, or subsidiary of BearingPoint with which
you become employed or associated (except as more broadly defined
elsewhere in this Agreement).
“BearingPoint Services”
means the managed services, business
strategy consulting services, systems integration and information
technology operations services, conducted and provided by
BearingPoint.
“Competing Entity”
means any of the following entities,
their affiliates, subsidiaries, and successors: Accenture Ltd.,
Answerthink, Booz Allen, Cambridge Technology Partners (CTP),
Computer Sciences Corporation (CSC), Deloitte Consulting, EDS,
Cap
Gemini Ernst & Young, KPMG LLP, Anteon,
SAP, Hewlett-Packard, IBM, Lucent Technologies, Oracle,
PricewaterhouseCoopers, Unisys, US Web, and Ernst &
Young.
“Prospective Client”
means any entity that is not a
Client but with respect to whom, within 1 year before your
termination or resignation, you (I) conducted, prepared or
submitted, or assisted in conducting, preparing or submitting, any
proposal or client development or marketing efforts on behalf of
BearingPoint (which includes any subsidiary of BearingPoint
throughout this definition), or a related or affiliated entity, or
(II) had contact with, knowledge of, or access to Proprietary
Information or other information concerning the prospective client,
in connection with your BearingPoint employment.
6. Termination and Resignation.
(a) Your employment is
terminable at will. BearingPoint may terminate your employment for
Cause effective immediately upon written notice (to your address on
BearingPoint’s records). You will be entitled to earned and
unpaid base salary and payment for any earned and unused personal
days through the termination date (in the case of performance
deficiencies, 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, you will be
entitled to all earned and unpaid base salary through the
termination date. BearingPoint will also pay you for any earned and
unused personal days and an additional amount of severance pay
which, when added to your personal days payment (if any), totals 3
months pay at your then current base salary. All of the payments in
this Section 6(a) are less required and authorized withholding
and deductions. BearingPoint, in its sole discretion, may elect any
method or manner of payment under this provision, and may also
require you to perform services, as detailed in Section 1 of
this Agreement, during the period of time prior to your specified
termination date. In the event you qualify for payment under any of
the provisions of the employment letter entered into by you and
BearingPoint on March 17, 2005 (the “Employment
Letter”) as a result of your termination or resignation of
employment, you shall not be eligible to receive any payment under
the provisions of this Managing Director Agreement.
(b) You may voluntarily terminate your
employment with BearingPoint upon 3 months prior written notice
directed to BearingPoint’s Human Resources Department.
Without limiting any other remedies, if you breach this
Section 6(b), you will pay BearingPoint or its designee 25% of
the total compensation (including salary and bonus) paid or payable
to you on an annualized basis by BearingPoint during the fiscal
year in which your breach occurs. These payments will be made in
not less than quarterly cash installments over the 24 months
following your breach.
(c) You agree to provide all assistance
requested by BearingPoint in transitioning your duties,
responsibilities and client and other BearingPoint relationships to
other
BearingPoint personnel, both during your
employment and after your termination or resignation.
7. Arbitration. All disputes between you and BearingPoint (which
includes any subsidiary of BearingPoint throughout this
Section 7) shall be resolved by arbitration in Virginia.
Arbitrable disputes include without limitation employment and
employment termination claims and claims by you for employment
discrimination, harassment, retaliation, wrongful termination, or
violations under Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act, the Americans With Disabilities
Act, the Family and Medical Leave Act, or the Employee Retirement
Income Security Act, under any other federal, state, foreign or
local law, regulation, ordinance, executive order, constitution, or
under common law.
Arbitrations shall take place before a panel of
three arbitrators which shall consist of one person selected by
each of the two sides to the dispute and the third person jointly
selected by the other two arbitrators. The arbitration panel shall
have no authority to modify this Agreement (except pursuant to
Section 12) or to award punitive or exemplary damages.
BearingPoint may, without waiving its right to compel arbitration,
and without securing or posting any bond, seek injunctive or other
provisional relief from a court of competent jurisdiction in aid of
arbitration, to prevent any arbitration award from being rendered
ineffectual, to protect BearingPoint’s confidential
information or intellectual property or for any other purpose in
the interests of BearingPoint. The courts of Virginia or any court
of competent jurisdiction in any other state will have jurisdiction
over any proceeding relating to arbitrations, and may enter
judgment on any arbitration award rendered or grant judicial
recognition of the award or an order of enforcement. You agree to
reimburse BearingPoint upon demand for any and all costs
(including, without limitation, attorneys’ fees and court
costs) incurred by BearingPoint in enforcing any of its rights
under this Agreement.
8. Survival. Sections 1(d), 1(e), 2 through 14, and Exhibits
C and D shall survive any termination of this Agreement or your
employment (including your resignation).
9. Entire Agreement. This Agreement is the entire agreement between
you and BearingPoint regarding these matters and supersedes any
verbal and written agreements on such matters. In the event of a
conflict between the main body of this Agreement and the Exhibits,
the main body of the Agreement shall control. This Agreement may be
modified only by written agreement. All Section headings are for
convenience only and do not modify or restrict any of this
Agreement’s terms.
10. Choice of Law/Conflicts.
This Agreement shall be governed by
the laws of the Commonwealth of Virginia. You and BearingPoint
consent to the jurisdiction and venue of any state or federal court
in the State of Virginia and agree that any permitted lawsuit may
be brought to such courts or other court of competent jurisdiction.
Each party hereby waives, releases and agrees not to assert, and
agrees to cause its affiliates to waive, release and not assert,
any rights such party or its affiliates may have under any foreign
law or regulation that would be inconsistent with the terms of this
Agreement as
governed by Virginia law. In the event of a
conflict between the provisions of this Managing Director Agreement
and the provisions of the Employment Letter accepted by you and
which resulted in your employment with BearingPoint, the terms of
the Employment Letter shall control.
11. Waiver. Any party’s waiver of any other
party’s breach of any provision of this Agreement shall not
waive any other right or any future breaches of the same or any
other provision.
12. Severability. If any provision of this Agreement is held
invalid or unenforceable for any reason, the invalidity shall not
nullify the validity of the remaining provisions of this Agreement.
If any provision of this Agreement is determined by a court or
arbitration panel to be overly broad in duration, geographical
coverage or scope, or unenforceable for any other reason, such
provision will be narrowed so that it will be enforced as much as
permitted by law.
13. Assignment and Beneficiaries.
This Agreement only benefits and is
binding on the parties and their respective affiliates, successors
and permitted assigns provided that you may not assign your rights
or duties under this Agreement without the express prior written
consent with the other parties. BearingPoint may assign any rights
or duties that it has, in whole or in part, to other affiliated or
subsidiary entities without your consent.
14. Counterparts. For convenience of the parties, this Agreement
may be executed in one or more counterparts, each of which shall be
deemed an original for all purposes.
The parties state that they have read,
understood and agree to be bound by this Agreement and that they
have had the opportunity to seek the advice of legal counsel before
signing it and have either sought such counsel or have voluntarily
decided not to do so:
|
|
|
For
BearingPoint, Inc.:
|
|
|
|
/s/ Rod McGeary
|
|
Rod McGeary
|
|
Chief Executive Officer
|
|
|
|
|
|
Harry L. You:
|
|
/s/
Harry L. You
|
EXHIBIT A
Equal Employment
Opportunity
It is the policy of BearingPoint
(“BearingPoint”) to provide equal employment
opportunity for all applicants and employees. BearingPoint does not
unlawfully discriminate on the basis of race, color, religion, sex,
national origin, age, disability, Vietnam veteran status, or any
other legally protected classification. BearingPoint also makes
reasonable accommodations for disabled employees. An employee who
believes he or she has a disability and requires an accommodation
should inform his/her Human Resources Consultant so that the
employee’s request can be evaluated. BearingPoint prohibits
the harassment of any individual and further prohibits the
harassmen