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Exhibit 10.94
SPECIAL TERMINATION AGREEMENT
THIS SPECIAL TERMINATION AGREEMENT
(the "Agreement") is made as of the 24 th day of
February 2006, between BearingPoint, Inc., a Delaware
corporation (the "Company"), and Laurent Lutz (the "Executive")
(collectively referred to as the "parties").
WHEREAS, the Company wishes to
retain the Executive as its General Counsel; and
WHEREAS, the Executive will
develop an intimate knowledge of the business and affairs of the
Company, its policies, methods, personnel and plans for the future
and has contacts of considerable value to the Company; and
WHEREAS, the Board of Directors of
the Company (the "Board") recognizes that the Executive’s
contribution to the success of the Company will be substantial and
wishes to offer an inducement to the Executive to enter into and
remain in the employ of the Company;
NOW, THEREFORE, in consideration
of the foregoing and of the respective covenants and agreements of
the parties herein contained, the parties agree as follows:
1. Term . The term of
this Agreement (the "Term") shall continue until the earlier of (i)
the expiration of the third anniversary of this Agreement (or if a
Change of Control occurs during the Term, the second anniversary of
the occurrence of a Change of Control), (ii) the
Executive’s death, or (iii) the Executive’s
earlier voluntary termination (except for a termination as a result
of any of the events described in Section 3(a)(3)); provided,
however, that, on each anniversary date of this Agreement or any
extension thereof, this Agreement, the Term and the periods
referenced in Section 3 shall automatically be extended for an
additional year unless, not later than 90 calendar days prior to
such anniversary date, the Company shall have given written notice
to the Executive that it does not wish to have the Term
extended.
2. Definitions .
(a) Acquiring Person
: An "Acquiring Person" shall mean any person (as defined in
Section 2(d)(iv)) that, together with all Affiliates and
Associates of such person (as defined in Section 2(b)), is the
beneficial owner of 20% or more of the outstanding common stock,
par value $.01 per share, of the Company ("Common Stock"). The term
"Acquiring Person" shall not include the Company, any subsidiary of
the Company, any employee benefit plan of the Company or any
subsidiary of the Company, or any person holding Common Stock for
or pursuant to the terms of any such plan. For the purposes of this
Agreement, a person who becomes an Acquiring Person by acquiring
beneficial ownership of 20% or more of the Common Stock at any time
after
the date of this Agreement shall continue to be an Acquiring
Person whether or not such person continues to be the beneficial
owner of 20% or more of the outstanding Common Stock.
(b) Affiliate and
Associate . "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of
the General Rules and Regulations under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), in effect on the date of
this Agreement.
(c) Cause . For
"Cause" shall mean that, during the Term, the Executive shall
have:
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(i)
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committed an intentional material act of fraud or
embezzlement in connection with his duties or in the course of his
employment with the Company;
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(ii)
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committed an intentional wrongful material damage
to property of the Company;
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(iii)
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committed an intentional wrongful disclosure of
material secret processes or material confidential information of
the Company; or
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(iv)
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been convicted of a felony criminal
offense.
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For the purposes of this Agreement, no act, or
failure to act, on the part of the Executive shall be deemed
"intentional" unless done, or omitted to be done, by the Executive
in bad faith or with no reasonable belief that his act or omission
was in the best interests of the Company.
(d) Change of Control
. A "Change of Control" of the Company shall have occurred if at
any time during the Term of this Agreement any of the following
events shall occur:
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(i)
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any consolidation, merger or other reorganization
of the Company in which the Company is merged, consolidated or
reorganized into or with another corporation or other legal person
or pursuant to which shares of the Company’s stock are
converted into cash, securities or other property, other than a
merger of the Company in which the holders of the Company’s
Common Stock immediately prior to the merger own more than 50.1% of
the common stock of the surviving corporation or its ultimate
parent immediately after the merger;
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(ii)
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any sale, lease, exchange or other transfer (in
one transaction or a series of related transactions) of all or
substantially all of the assets of the Company, and as a result of
such transaction the holders of
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the Company’s Common Stock immediately
prior thereto own less than 50.1% of the common stock of such
transferee or its ultimate parent immediately after such
transaction;
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(iii)
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any liquidation or dissolution of the Company or
any approval by the stockholders of the Company of any plan or
proposal for the liquidation or dissolution of the
Company;
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(iv)
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any person (including any "person" as such term
is used in Section l3(d)(3) or Section l4(d)(2) of the Exchange
Act) has become an Acquiring Person;
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(v)
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if at any time the Continuing Directors then
serving on the Board cease for any reason to constitute at least a
majority thereof; or
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(vi)
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any occurrence that would be required to be
reported in response to Item 6(e) of Schedule 14A of
Regulation 14A under the Exchange Act, or any successor rule
or regulation.
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provided, however, that a Change of Control of
the Company shall not be deemed to have occurred as the result of
any transaction having one or more of the effects specified in
clauses (i)-(vi) above if such transaction is proposed by, and
includes a significant equity participation (i.e., an aggregate of
at least 25% of the outstanding common equity securities of the
Company immediately after such transaction which are entitled to
vote to elect any class of Directors) of, the executive officers of
the Company as constituted immediately prior to the occurrence of
such transaction or any Company employee stock ownership plan or
pension plan.
(e) Code . The "Code"
shall mean the Internal Revenue Code of 1986, as amended.
(f) Continuing
Director . A "Continuing Director" shall mean a Director of the
Company who (i) is not an Acquiring Person, an Affiliate or
Associate of an Acquiring Person, a representative of an Acquiring
Person or a person who was nominated for election by an Acquiring
Person, and (ii) was either a member of the Board of Directors of
the Company on the date of this Agreement or subsequently became a
Director of the Company and whose initial election or initial
nomination for election by the Company’s stockholders was
approved by at least two-thirds of the Continuing Directors then on
the Board of Directors of the Company.
(g) Employment Term .
The "Employment Term" shall be the period of employment under this
Agreement commencing on the day prior to a Change of Control and
continuing until the expiration of the Term of this Agreement.
(h) Severance
Compensation . The "Severance Compensation" shall be a lump sum
amount equal to 299% of the sum of (A) the highest annual
salary of the
Executive in effect at any time during the Employment Term or
the salary of the Executive in effect immediately prior to the
Change of Control, whichever is the larger amount, plus
(B) the bonus or incentive compensation of the Executive,
based upon the dollar amount of the largest of (i) the bonus
or incentive compensation that the Executive received from the
Company for the fiscal year preceding the year in which the Change
of Control occurred, (ii) the bonus or incentive compensation
that the Executive received from the Company for the fiscal year
preceding the year in which the Termination Date occurs,
(iii) the bonus or incentive compensation that the Executive
could have received based on his maximum bonus or incentive
compensation potential under the applicable Company plan for the
fiscal year preceding the year in which the Change of Control
occurred, (iv) the bonus or incentive compensation that the
Executive could have received based on his maximum bonus or
incentive compensation potential under the applicable Company plan
for the fiscal year preceding the year in which the Termination
Date occurs and (v) if the Executive was not employed in the
year prior to the Change of Control or the Termination Date, the
"Target Bonus" (as such term is defined in Employment Letter with
the Company dated February 24, 2006 (the "Employment
Letter")).
(i) Term . The "Term"
shall have the meaning specified in Section 1.
(j) Termination Date
. The "Termination Date" shall be the date upon which the Executive
or the Company terminates the employment of the Executive.
3. Rights of Executive
Upon Change of Control .
(a) The Company shall provide
the Executive, within 10 days following the Termination Date
(or within 10 days following a Change in Control, if later),
Severance Compensation and any remaining unpaid portion of the
Retention Bonus under the Employment Letter in lieu of compensation
to the Executive for periods subsequent to the Termination Date,
but without affecting any other rights of the Executive at law or
in equity, if any of the following events occur:
(1) the Company terminates the
Executive’s employment within two years after a Change of
Control that occurs during the Term, other than for either of the
following reasons:
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(i)
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the Executive becomes permanently disabled and is
unable to work for a period of 180 consecutive days; or
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(ii)
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for Cause;
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(2) within six
months prior to a Change of Control and in anticipation of a Change
of Control, either (i) the Executive’s employment is
involuntarily terminated by the Company (except for Cause)
(ii) the Executive is assigned duties inconsistent with his
then current position, duties, responsibilities and status with the
Company (other than as a result of a promotion or
advancement),
or there is otherwise an adverse change in the Executive’s
salary, bonus or incentive compensation, the scope or value of the
aggregate other monetary or non-monetary benefits to which the
Executive was entitled from the Company, the nature or scope of the
authorities, functions or duties attached to the position then held
by the Executive and the Executive terminates his employment,
provided, however, that the Company may cure any matter referenced
in this clause (ii) within 15 days of receipt of
Executive’s written notice to the Chief Executive Officer of
the Company that a matter referenced in this clause (ii) has
occurred, which notice shall include a detailed description of the
claimed matter, or (iii) the Executive terminates his
employment with "Good Reason" as defined in and in accordance with
the Employment Letter;
(3) if the Executive
terminates his employment during the Term but after a Change of
Control for "Good Reason," as defined in the Employment Letter, or
terminates his employment during the Term but after a Change of
Control, and at least one of the following events has occurred:
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(i)
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the Executive is assigned duties inconsistent
with his position, duties, responsibilities and status with the
Company immediately prior to the Change of Control (other than as a
result of a promotion or advancement), or there is otherwise an
adverse change in the nature or scope of the authorities, functions
or duties attached to the position that the Executive held
immediately prior to the Change of Control;
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(ii)
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any reduction (a) in the Executive’s
salary, bonus or incentive compensation (based upon the dollar
amount of salary, bonus or incentive compensation that the
Executive received from the Company for the fiscal year preceding
the year in which the Change of Control occurred or for the fiscal
year preceding the year in which the Termination Date occurs,
whichever is the larger amount), (b) in the maximum bonus or
incentive compensation potential of the Executive under the
applicable Company plan for the fiscal year preceding the year in
which the Change of Control occurred or for the fisc
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