Exhibit 10.90
BEARINGPOINT, INC.
STOCK OPTION
AGREEMENT
BearingPoint, Inc., a Delaware
corporation (the “ Company ”), hereby grants to
Harry L. You (the “ Optionee ”), pursuant to the
award notice attached hereto (the “ Award Notice
”) as of the date set forth in the Award Notice (the “
Option Date ”), a non-statutory Common Stock option to
purchase from the Company the number of shares of its common stock,
$0.01 par value (“ Common 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 and in the Award
Notice.
1. Option Subject to Acceptance
of Agreement . The Option shall be null and void unless the
Optionee accepts this Agreement by executing the Award Notice in
the space provided therefor 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
exercise schedule set forth in the Award Notice (the “
Exercise Schedule ”).
(b) If the Optionee’s
employment with the Company terminates by reason of Disability, the
Option shall be exercisable in full and may thereafter be exercised
by the Optionee or the Optionee’s Legal Representative until
and including the Expiration Date.
(c) If the Optionee’s
employment with the Company 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 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 Company terminates by reason of death, the
Option shall be exercisable in full and may thereafter be exercised
by the Optionee’s Legal Representative or Permitted
Transferees, as the case may be, until and including the Expiration
Date.
(e) If the Optionee’s
employment with the Company 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 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 employment and (ii) the
Expiration Date , provided , however , that
on
the termination of the Optionee’s
employment by the Company without Cause or by the Optionee for Good
Reason, the next portion of the Option that is scheduled to vest
shall vest on the date of the Executive’s
termination.
(f) If the Optionee dies during the
period set forth in Section 2.2(b) following termination of
employment by reason of Disability, or if the Optionee dies during
the period set forth in Section 2.2(e) following termination
of employment for any reason other than Disability or Retirement,
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 Legal Representative or Permitted Transferees,
as the case may be, 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.
(g) Notwithstanding Sections 2.1 and
2.4 and the exercise periods set forth in the Award Notice and in
subsections (b), (c), (d), (e) and (f) of this
Section 2.2, in the event the Company is involved in a
business combination, including a business combination which is
intended to be treated as a pooling of interests for financial
accounting purposes (a “ Pooling Transaction ”),
in connection with which the Optionee receives a substitute option
to purchase securities of any entity, including an entity directly
or indirectly acquiring the Company:
(1) if the acquisition of the
substitute option by the Optionee may be treated as a purchase for
purposes of Section 16(b) of the Exchange Act and the
Optionee’s employment with the Company is terminated for any
reason during the nine-month period beginning three months prior to
the consummation of such business combination, then the Option (or
option in substitution thereof) shall be exercisable to the extent
set forth in the Award Notice and above in this Section 2.2
until and including the latest to occur of (i) the date
determined pursuant to the then applicable subsection (b), (c),
(d), (e) or (f) of this Section 2.2, (ii) the
date which is seven months after the consummation of such business
combination and (iii) the Expiration Date; or
(2) if the Optionee is restricted
from disposing of a security (or security underlying a security)
issued in connection with the Pooling Transaction and the purpose
of such restriction is to ensure that the Pooling Transaction is
accounted for as a pooling of interests (the “ Pooling
Restriction ”) and the Optionee’s employment with
the Company is terminated for any reason during the nine-month
period beginning three months prior to the consummation of such
business combination, then the Option (or option in substitution
thereof) shall be exercisable to the extent set forth in the Award
Notice and above in this Section 2.2 until and including the
latest to occur of (i) the date determined pursuant to the
then applicable subsection (b), (c), (d), (e) or (f) of
this Section 2.2, (ii) the date which is one month after
the date of expiration of the Pooling Restriction and
(iii) the Expiration Date.
(h) Change in Control
(1) In the event of a Change in
Control in connection with which the holders of Common Stock
receive shares of common stock that are registered under
Section 12 of the Exchange Act, this Option shall immediately
become exercisable in full and there shall be substituted for each
share of Common Stock available under this Option, the
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number and class of shares into
which each outstanding share of Common Stock shall be converted
pursuant to such Change in Control. In the event of any such
substitution, the purchase price per share shall be appropriately
adjusted by the Compensation Committee of the Board (the
“Committee”) whose determination shall be final,
binding and conclusive, such adjustments to be made without an
increase in the aggregate purchase price or base price.
(2) In the event of any Change in
Control other than a Change in Control in connection with which the
holders of Common Stock receive shares of common stock that are
registered under Section 12 of the Exchange Act, the Option
shall immediately become exercisable in full and shall be
surrendered to the Company by the Optionee, the Option shall
immediately be cancelled by the Company, and the Optionee shall
receive, within 10 days of the occurrence of a Change in Control, a
cash payment from the Company in an amount equal to the number of
shares of Common Stock then subject to the Option, multiplied by
the excess, if any, of the greater of (A) the highest per
share price offered to Common Stockholders of the Company in the
transaction whereby the Change in Control took place or
(B) the Fair Market Value of a share of Common Stock on the
date of occurrence of the Change in Control, over the purchase
price per share of Common Stock subject to the Option. The Company
shall cooperate with the Optionee to assure that any cash payment
in accordance with the foregoing is made in compliance with
Section 16 of the Exchange Act and the rules and regulations
thereunder.
(3) “Change in Control”
shall mean:
(A) a sale or transfer of all or
substantially all of the assets of the Company on a consolidated
basis in any transaction or series of related
transactions;
(B) any merger, consolidation or
reorganization to which the Company is a party, except for a
merger, consolidation or reorganization in which the Company is the
surviving corporation and, after giving effect to such merger,
consolidation or reorganization, the holders of the Company’s
outstanding equity (on a fully diluted basis) immediately prior to
the merger, consolidation or reorganization will own in the
aggregate immediately following the merger, consolidation or
reorganization the Company’s outstanding equity (on a fully
diluted basis) either (i) having the ordinary voting power to
elect a majority of the members of the Company’s board of
directors to be elected by the holders of Common Stock and any
other class which votes together with the Common Stock as a single
class or (ii) representing at least 50% of the equity value of
the Company as reasonably determined by the Board;
(C) individuals who, as of the date
hereof, constitute the Board (the “ Incumbent Board
”) cease for any reason to constitute at least a majority of
such Board; provided , however , that any individual
who becomes a director of the Company subsequent to the date hereof
whose election, or nomination for election by the holders of the
Company’s equity, was approved by the vote of at least a
majority of the directors then comprising the Incumbent Board shall
be deemed to have been a member of the Incumbent Board; and
provided further, that no individual who was initially elected as a
director of the Company as a result of an actual or threatened
solicitation by any
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individual, entity or group (a
“ Person ”) other than the Board, including any
“person” within the meaning of Section 13(d) of
the Exchange Act , for the purpose of opposing a solicitation by
any other Person with respect to the election or removal of
directors, or any other actual or threatened solicitation of
proxies or consents by or on behalf of any Person other than the
Board shall be deemed to have been a member of the Incumbent Board;
or
(D) any Person acquires beneficial
ownership of 30% or more of the outstanding equity of the Company
generally entitled to vote on the election of directors.
2.3. Method of Exercise .
Subject to the limitations set forth in this Agreement, the Option
may be exercised by the Optionee (a) by giving written notice
to the Company specifying the number of whole shares of Common
Stock to be purchased and by accompanying such notice with payment
therefore in full (or by arranging for such payment to the
Company’s satisfaction) either (i) in cash, (ii) by
delivery to the Company (either actual delivery or by attestation
procedures established by the Company) of Mature Shares having an
aggregate Fair Market Value, determined as of the date of exercise,
equal to the aggregate purchase price payable pursuant to the
Option by reason of such exercise, (iii) in cash by a
broker-dealer acceptable to the Company to whom the Optionee has
submitted an irrevocable notice of exercise or (iv) by a
combination of (i) and (ii), 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 any
of clauses (ii) - (iv). Any fraction of a share of Common 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 Common Stock
shall be delivered 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) Subject to Section 2.2(g), 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 Sections 2.2 or 2.5 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 Common 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 Common 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 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.
2.5. Termination of Option and
Forfeiture of Option Gain . (a) If the
Optionee:
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(1)
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breaches any covenant concerning
confidentiality or intellectual property or concerning
noncompetition or nonsolicitation of clients,
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prospective clients or personnel
of the Company and its affiliates to which the Optionee is or may
become a party in the future; or
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(2)
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is terminated
for “Cause,” as defined in Section 4.3;
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then, in addition to and without in any way
limiting any remedies under any of the covenants described above in
this Section 2.5(a) or otherwise and any other provable
damages, the Option shall terminate automatically (if not
previously terminated) on the date the Optionee commits such breach
or is terminated for “Cause” and the Optionee shall pay
the Company, within five business days of receipt by the Optionee
of a written demand therefore, an amount in
