Exhibit 10.64
SPECIAL TERMINATION AGREEMENT
THIS SPECIAL TERMINATION AGREEMENT
(the “Agreement”) is made as of the 31st day of
December, 2007, between BearingPoint, Inc., a Delaware corporation
(the “Company”), and F. Edwin Harbach (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)(ii)) 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.
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(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:
(i)
committed an intentional material act of fraud or embezzlement in
connection with his duties or in the course of his employment with
the Company;
(ii)
caused by intentional act or omission material damage to property
of the Company;
(iii)
committed an intentional wrongful disclosure of material secret
processes or material confidential information of the Company;
or
(iv)
been convicted of a felony criminal offense.
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:
(i)
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;
(ii)
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;
(iii)
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)
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;
(v)
if at any time the Continuing Directors then serving on the Board
cease for any reason to constitute at least a majority thereof;
or
(vi)
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.
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.
(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 Chairman of the Board, 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.
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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:
(i)
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:
(A)
the Executive becomes permanently disabled and is unable to work
for a period of 180 consecutive days (a “Disability”);
or
(B)
for Cause;
(ii)
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)(i) or (ii) occurs 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 end of the
applicable period of non coverage 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)(i) or (ii) 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)(i) or
(ii) has occurred, the Company shall pay the Executive any
earned but unpaid portion of his salary, bonus or incentive
compensation or other compensation.
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(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 Date, which rights shall be governed by
the terms of the agreements governing such rights or
benefits.
(f)
No Set-Off or Counterclaim . Except as otherwise
specifically provided herein, the Company shall have no right of
set-off or counterclaim in
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