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Exhibit 10.93
SPECIAL TERMINATION AGREEMENT
THIS SPECIAL TERMINATION AGREEMENT
(the "Agreement") is made as of the ___ day of ______ 2006, between
BearingPoint, Inc., a Delaware corporation (the "Company"), and
____________ (the "Executive") (collectively referred to as the
"parties").
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 in Control occurs during the Term, the second
anniversary of the occurrence of a Change in Control),
(ii) the Executive’s death, (iii) the
Executive’s earlier voluntary termination (except for a
termination as a result of any of the events described in
Section 3(a)(2)) or a termination of Executive’s
employment by the Company for Cause or due to a Disability (as
defined herein) or (iv) the date of any other termination of
the Executive’s employment prior to a Change in Control;
provided, however, that on each expiration date of this Agreement,
the Agreement, Term and periods referenced in Section 3 shall
automatically be extended for an additional year unless, not later
than 90 calendar days prior to such expiration 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 (as defined in Rule 13d-3 under the Exchange
Act) of 20% or more of the outstanding common stock, par value $.01
per share, of the Company or such other securities that may cast a
vote for the election of directors of the Company ("Common Stock").
The term "Acquiring Person" shall not include; (i) the
Company, (ii) any subsidiary of the Company, (iii) 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, (iv) any entity owned, directly or
indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of Common Stock of the Company,
or (v) any surviving entity described in Section 2(d)(i)(A)
below. 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 under
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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caused by intentional act or omission 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 in Control
. A "Change in Control" of the Company shall have occurred if at
any time during the Term of this Agreement any of the following
events shall have been consummated:
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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) a consolidation, merger or other reorganization 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 (or such other securities that may cast a vote for the
election of directors of the entity) of the surviving entity or its
ultimate parent immediately after the merger or (B) a
consolidation, merger or reorganization of the Company as a result
of which no person (as defined in Section 2(d)(iv)) becomes an
Acquiring Person;
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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 the Company’s Common Stock
immediately prior thereto own less than 50.1% of the common stock
(or such other securities that may cast a vote for the election of
directors of the entity) 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 13(d)(3) or Section 14(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 in 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
serving on the Board 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
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 but
shall not include, in any event, any individual whose initial
assumption of office occurs as a result of either an actual or
threatened election or other action or threatened solicitation of
proxies or consents by or on behalf of a person other than the
Board.
(g) Exchange Act .
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
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(h) Severance
Compensation . The "Severance Compensation" shall be a lump sum
amount equal to: (i) one times the Executive’s annual
salary plus (ii) one times the Executive’s
potential bonus or incentive compensation, as communicated by or at
the direction of the Chief Executive Officer, in effect as of the
date of a Change in Control.
(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
Following a Change in Control .
(a) The Company shall provide
the Executive, within 10 business days following the applicable
Termination Date, Severance Compensation 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 in
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 (a
"Disability"); or
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(ii)
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for Cause;
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(2) the Executive
terminates his employment during the Term, but after a Change in
Control, by providing written notice to the Company (which shall
indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for such termination)
within sixty (60) days after the Executive’s base salary
is decreased by twenty (20) percent or more within two years
after a Change in Control that occurs during the Term.
(b) Continued
Benefits . If any of the events specified in
Sections 3(a)(1) or (2) occur and Executive is entitled to
Severance Compensation, then until the earlier of the second
anniversary of the Termination Date or the date on which the
Executive becomes employed by a new employer, the Company shall, at
its expense, provide the Executive with medical, dental, life
insurance, disability, accidental death and dismemberment benefits
and other welfare benefits ("Insurance Benefits") at the highest
level provided to the Executive immediately prior to the Change in
Control, provided, however, that if the Executive becomes employed
by a new employer which maintains Insurance Benefits that either
(i) do not cover the Executive with respect to a pre-existing
condition which was covered under the Company’s Insurance
Benefits, or (ii) do not cover the Executive for a designated
waiting period, the Executive’s coverage under the
Company’s Insurance Benefits shall continue, without
limitation, until the earlier of the
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end of the applicable period of noncoverage under the new
employer’s Insurance Benefits or the second anniversary of
the Termination Date.
(c) Outplacement
Counseling . If any of the events specified in
Sections 3(a)(1) or (2) occur and Executive is entitled
to Severance Compensation, the Company shall reimburse all
reasonable expenses incurred by the Executive over the one year
period following the Termination Date for professional outplacement
services by qualified consultants selected by the Executive, in an
amount not to exceed $50,000.
(d) Payment of Earned But
Unpaid Amounts . Within 10 business days after any of the
events specified in Sections 3(a)(1) or (2) has occurred,
the Company shall pay the Executive any earned but unpaid portion
of his salary, bonus or incentive compensation or other
compensation.
(e) Other Rights and
Benefits . The payment of Severance Compensation by the Company
to the Executive shall not affect any other rights and benefits of
the Executive provided by the Company, prior to the Termination
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