Exhibit 10.4
BEARINGPOINT, INC.
STOCK OPTION AGREEMENT
FOR NON-U.S. EMPLOYEES
BearingPoint,
Inc., a Delaware corporation (the “ Company ”),
hereby grants to the individual (the “ Optionee
”) named in the award notice attached hereto (the “
Award Notice ”) as of the date set forth in the Award
Notice (the “ Option Date ”), pursuant to the
provisions of the BearingPoint, Inc. 2000 Long-Term Incentive Plan
(the “ Plan ”), a non-statutory stock option to
purchase from the Company the number of shares of its common stock,
$0.01 par value (“ Stock ”), set forth in the
Award Notice (the “ Option ”), at the price per
share set forth in the Award Notice, upon and subject to the terms
and conditions set forth below, in the Award Notice and in the
Plan. Capitalized terms not defined herein shall have the meanings
specified in the Plan.
1.
Option Subject to Acceptance of Agreement . The Option shall
be null and void unless the Optionee shall accept this Agreement by
executing the Award Notice in the space provided therefore and
returning an original execution copy of the Award Notice to the
Company.
2.
Time and Manner of Exercise of Option .
2.1.
Maximum Term of Option . In no event may the Option be
exercised, in whole or in part, after the expiration date set forth
in the Award Notice (the “ Expiration Date
”).
2.2.
Exercise of Option. (a) The Option shall become exercisable in
accordance with the vesting schedule set forth in the Award Notice
(the “ Vesting Schedule ”).
(b) If
the Optionee’s employment with the Employer terminates by
reason of Disability, the Option shall be exercisable only to the
extent it is exercisable on the effective date of the
Optionee’s termination of active employment and may
thereafter be exercised by the Optionee or the Optionee’s
Legal Representative until and including the earlier to occur of
(i) the date which is one year after the effective date of the
Optionee’s termination of active employment and (ii) the
Expiration Date.
(c) If
the Optionee’s employment with the Employer terminates by
reason of Retirement, the Option shall continue to vest in
accordance with the Vesting Schedule set forth in the Award Notice
and may thereafter be exercised by the Optionee or the
Optionee’s heir or Legal Representative until and including
the earlier to occur of (i) the date which is one year after
the Optionee’s date of death, provided the Optionee dies
following termination of active employment by reason of Retirement,
and (ii) the Expiration Date.
(d) If
the Optionee’s employment with the Employer terminates by
reason of death, the Option shall be exercisable only to the extent
it is exercisable on the date of death and may thereafter be
exercised by the Optionee’s heir or Legal Representative
until and including
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the
earlier to occur of (i) the date which is one year after the
date of death and (ii) the Expiration Date.
(e) If
the Optionee’s employment with the Employer terminates for
any reason other than Disability, Retirement or death, the Option
shall be exercisable only to the extent it is exercisable on the
effective date of the Optionee’s termination of active
employment and may thereafter be exercised by the Optionee or the
Optionee’s Legal Representative until and including the
earlier to occur of (i) the date which is three months after
the effective date of the Optionee’s termination of active
employment and (ii) the Expiration Date.
(f) If
the Optionee dies during the period set forth in
Section 2.2(b) following termination of active employment by
reason of Disability, or if the Optionee dies during the period set
forth in Section 2.2(e) following termination of active
employment for any reason other than Disability, the Option shall
be exercisable only to the extent it is exercisable on the date of
death and may thereafter be exercised by the Optionee’s heirs
or Legal Representative until and including the earlier to occur of
(i) the date which is one year after the date of death and
(ii) the Expiration Date.
2.3.
Method of Exercise . Subject to the limitations set forth in
this Agreement and the Plan, the Option may be exercised by the
Optionee (a) by giving written notice to the Company
specifying the number of whole shares of Stock to be purchased and
by accompanying such notice with payment therefor in full and
payment of any withholding taxes due, as described in
Section 3.3, (or by arranging for such payment to the
Company’s satisfaction) either (i) in cash (including
checks or wire transfers as permitted by the Committee), or
(ii) in cash by a broker-dealer acceptable to the Company to
whom the Optionee has submitted an irrevocable notice of exercise
and (b) by executing such documents as the Company may
reasonably request. The Company shall have sole discretion to
disapprove of an election pursuant to clause (ii). Any fraction of
a share of Stock which would be required to pay such purchase price
shall be disregarded and the remaining amount due shall be paid in
cash by the Optionee. No certificate representing a share of Stock
shall be delivered and no title or ownership with respect to shares
of Stock shall be transferred to the Optionee until the full
purchase price therefore and any withholding taxes thereon, as
described in Section 3.3, have been paid.
2.4.
Termination of Option . (a) In no event may the Option
be exercised after it terminates as set forth in this
Section 2.4. The Option shall terminate, to the extent not
earlier terminated pursuant to Section 2.2 or exercised
pursuant to Section 2.3, on the Expiration Date.
(b) In
the event that rights to purchase all or a portion of the shares of
Stock subject to the Option expire or are exercised, cancelled or
forfeited, the Optionee shall, upon the Company’s request,
promptly return this Agreement to the Company for full or partial
cancellation, as the case may be; provided , however
, that such cancellation shall be effective regardless of whether
the Optionee returns this Agreement. If the Optionee continues to
have rights to purchase shares of Stock hereunder, the Company
shall, within 10 days of the Optionee’s delivery of this
Agreement to the Company, either (i) mark this Agreement to
indicate the extent to which the Option has expired or been
exercised, cancelled or forfeited or (ii) issue
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to the
Optionee a substitute option agreement applicable to such rights,
which agreement shall otherwise be substantially similar to this
Agreement in form and substance.
3.
Additional Terms and Conditions of Option .
3.1.
Nontransferability of Option . The Option may not be
transferred by the Optionee other than by will or the laws of
descent and distribution. During the Optionee’s lifetime, the
Option is exercisable only by the Optionee or the Optionee’s
Legal Representative. The Option may not be sold, transferred,
assigned, pledged, hypothecated, encumbered or otherwise disposed
of (whether by operation of law or otherwise) or be subject to
execution, attachment or similar process. Upon any attempt to so
sell, transfer, assign, pledge, hypothecate, encumber or otherwise
dispose of the Option, the Option and all rights hereunder shall
immediately become null and void. Notwithstanding the foregoing
provisions of this Section 3.1, the Company understands that
Optionee proposes to transfer the Option to a trust or similar
entity to be formed for Optionee’s estate and/or tax planning
purposes. Prior to such any such transfer, Optionee shall
demonstrate such purpose to the satisfaction of the Committee (in
the exercise of its discretion) by providing such documentation and
information requested by the Committee, and the Committee shall
have the sole discretion in approving any such transfer. In
addition, any such transfer (i) shall be made pursuant to an
Assignment of Stock Options, substantially in the form of
Exhibit A hereto, with such further changes or
modifications thereto as directed by the Committee and
(ii) shall be subject to such other terms and conditions and
to the execution of such other agreements and documents as the
Committee may require. The Committee shall have no obligation
whatsoever to consent to any other or subsequent transfer of the
Option proposed to be made by the Optionee or any other person or
entity.
3.2.
Investment Representation . The Optionee hereby represents
and covenants that (a) any shares of Stock purchased upon exercise
of the Option will be purchased for investment and not with a view
to the distribution thereof within the meaning of the Securities
Act unless such purchase has been registered under the Securities
Act and any applicable state securities laws; (b) any subsequent
sale of any such shares shall be made either pursuant to an
effective registration statement under the Securities Act and any
applicable state securities laws, or pursuant to an exemption from
registration under the Securities Act and such state securities
laws; and (c) if requested by the Company, the Optionee shall
submit a written statement, in a form satisfactory to the Company,
to the effect that such representation (x) is true and correct
as of the date of any purchase of any shares hereunder or
(y) is true and correct as of the date of any sale of any such
shares, as applicable. As a further condition precedent to any
exercise of the Option, the Optionee shall comply with all
regulations and requirements of any regulatory authority having
control of or supervision over the issuance or delivery of the
shares and, in connection therewith, shall execute any documents
which the Board or the Committee shall in its sole discretion deem
necessary or advisable.
3.3.
Withholding Taxes . (a) Prior to the exercise of the
Option, the Optionee shall pay or make adequate arrangements
satisfactory to the Company and/or the Employer to satisfy all
withholding and payment on account obligations of the Company
and/or the Employer In this regard, the Optionee authorizes the
Company and/or the Employer to withhold all applicable income tax,
social insurance, payroll tax, payment on account or other
tax-related
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withholding (the “ Required Tax Payments ”)
legally payable by the Optionee from the Optionee’s wages or
other cash compensation paid to the Optionee by the Company and/or
the Employer or from proceeds of the sale of the shares. The
Company may refuse to honor the exercise and refuse to deliver the
shares and to transfer title or ownership with respect to the
shares if the Optionee fails to comply with the Optionee’s
obligations in connection with the Required Tax Payments as
described in this Section 3.3.
(b) If
permissible by local law, the Optionee may elect to satisfy his or
her obligation to advance the Required Tax Payments by any of the
following means: (1) a cash payment to the Company (including
checks or wire transfers as permitted by the Committee), or
(2) authorizing the Company to withhold whole shares of Stock
which would otherwise be delivered to the Optionee upon exercise of
the Option having an aggregate Fair Market Value, determined as of
the Tax Date, equal to the Required Tax Payments, (3) a cash
payment by a broker-dealer acceptable to the Company to whom the
Optionee has submitted an irrevocable notice of exercise or
(4) any combination of (1) and (2). The Company shall
have sole discretion to disapprove of an election pursuant to any
of clauses (2) - (4). Shares of Stock to be withheld may not have a
Fair Market Value in excess of the minimum amount of the Required
Tax Payments. Any fraction of a share of Stock which would be
required to satisfy any such obligation shall be disregarded and
the remaining amount due shall be paid in cash by the Optionee. No
certificate representing a share of Stock shall be delivered and no
title or ownership with respect to shares of Stock shall be
transferred to the Optionee until the Required Tax Payments have
been satisfied in full.
3.4.
Tax Reporti
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