INDEPENDENT CONTRACTOR
AGREEMENT
THIS
INDEPENDENT CONTRACTOR AGREEMENT (“Agreement”),
effective as of January 1, 2009, is between BEARINGPOINT,
INC. , a Delaware corporation with its principal place of
business at 1676 International Drive, McLean, VA 22102
(“BearingPoint” or “Company”), and
LAURENT C. LUTZ , an individual having his principal place
of business at 2724 W. Sunnyside Avenue Chicago, IL 60625
(“Contractor”).
1. PURPOSE OF ENGAGEMENT . BearingPoint agrees to
retain Contractor to perform the services described in
Exhibit A hereto (“Services”) and Contractor
agrees to furnish the Services to BearingPoint subject to the terms
and conditions set forth in this Agreement. BearingPoint will make
its facilities and equipment available to Contractor to the extent
necessary to perform the Services as the parties may mutually
agree.
2. TERM. The term of this Agreement shall begin on
January 1, 2009, and shall continue until February 15,
2009, or termination pursuant to Paragraph 4
hereof.
3. CONTRACTOR’S FEES AND EXPENSES. During the
Term of this Agreement, BearingPoint agrees to compensate
Contractor for Fees and Expenses as set forth in
Exhibit A.
(a)
BearingPoint may terminate this Agreement with immediate effect, at
its convenience, with or without any prior breach by Contractor,
and without any liability other than to pay amounts due, by
providing Contractor with written notice of termination.
(b)
Either party may terminate this Agreement upon fourteen
(14) days written notice to the other in the event the other
party breaches a material term of this Agreement and, where such
breach is susceptible of being cured, fails to cure such breach
within the fourteen (14) day notice period.
5. COMPLIANCE WITH BEARINGPOINT POLICIES AND BUDGETS.
Contractor agrees to perform the Services to the best of
Contractor’s abilities in accordance with
BearingPoint’s policies and applicable budgets. Without
limiting the foregoing, Contractor shall perform the Services in a
timely and professional manner in accordance with applicable
professional standards.
6. BEARINGPOINT CONFIDENTIAL AND PRIVILEGED
INFORMATION. All information, documents, reports, work product,
data, records, forms and other materials developed by Contractor
for BearingPoint or obtained by or disclosed to Contractor in the
course of performing the Services are and will remain confidential
and privileged in nature and are expressly subject to protection
under the attorney-client and attorney work product privileges.
Contractor will deliver to BearingPoint all tangible forms of such
proprietary confidential, attorney-client privileged and trade
secret information and all copies thereof (and all other property
obtained from or through BearingPoint) when BearingPoint requests
the same or promptly upon termination of this Agreement, whichever
occurs earlier. Contractor agrees during the Term of this Agreement
and thereafter that he will take all steps reasonably necessary to
hold BearingPoint’s confidential and privileged information
in trust and confidence. Contractor shall not use or disclose to
any person, firm or entity any proprietary, confidential,
attorney-client privileged or trade secret information of
BearingPoint without BearingPoint’s express, prior written
permission.
Page 1
7. INSURANCE AND INDEMNIFICATION.
(a)
During the Term, BearingPoint will provide indemnification and
advancement of expenses to Contractor to the fullest extent of the
provisions of Article 9 of the Amended and Restated
Certificate of Incorporation and to the fullest extent permitted by
law.
(b)
During the Term, Contractor shall remain a named insured under
BearingPoint’s Executive Protection Policy (“D&O
Liability Insurance”) and BearingPoint’s Corporate
Counsel Premier – Professional Liability Insurance for
Corporate Counsel Policy (“Employed Lawyers
Insurance”).
8. INDEPENDENT CONTRACTOR. It is expressly understood
that Contractor is an independent contractor of BearingPoint and
that Contractor shall use his professional discretion in
determining the best means by which to perform the Services.
Contractor agrees that nothing in this Agreement shall be construed
as creating a partnership, joint venture or employer-employee
relationship. Contractor shall not be entitled to any of the
benefits which BearingPoint may make available to its employees,
such as group insurance, profit-sharing, vacation pay, sick leave,
workers’ compensation, disability, unemployment insurance
benefits, retirement benefits or any other employee benefits.
Contractor shall be solely responsible for complying with all
applicable local, state and federal laws governing self-employed
individuals, including but not limited to obligations such as
payment of federal, state and local taxes, social security,
disability and other contributions attributable to the rendition of
Services hereunder to BearingPoint.
9. NON-ASSIGNABILITY. Contractor shall not assign,
transfer, or subcontract this Agreement or any of its obligations
hereunder without BearingPoint’s express, prior written
permission.
10. ARBITRATION. Any Claim arising out of or relating
to this Agreement, or the breach thereof, shall be settled by
binding arbitration administered in Virginia. 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 prot
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