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Exhibit 10.92
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.
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
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:
For BearingPoint, Inc.:
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 further
prohibits the harassment of any i
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