MANAGING DIRECTOR
AGREEMENT
This Agreement
(“Agreement”) is between BearingPoint, Inc.,
(“BearingPoint”) and Laurent Lutz (“You”
and all similar references) as of February 24, 2006 (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. The parties hereto confirm that they believe you
are not currently bound by any agreement that could prohibit or
restrict you from being employed by BearingPoint to perform any of
your duties that are contemplated to be performed 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 2 years 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 General Counsel 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
entity or 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.
“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 February 24,
2006 (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. 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.
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.
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:
Harry L.
You
Chief Executive Officer
Laurent Lutz:
___________________________
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
furth
|
