SPECIAL TERMINATION AGREEMENT AMENDMENT
Exhibit 10.49
AMENDMENT
BearingPoint, Inc. (the “Company”) and certain employees (the “Executives”) have entered into
individual Special Termination Agreements (the “Agreements”), pursuant to which the Company has
agreed to make severance payments in the event of the termination of the Executive’s employment as
a result of a change in control of the Company. The Agreements provide that the Company has the
right to amend the provisions of the Agreements in order to avoid the imposition of the additional
tax required by Section 409A of the Internal Revenue Code of 1986, as amended. The Company has
determined that it is in the best interest of the Company and Executive to provide that the
benefits payable under the Agreements shall satisfy the requirements of Section 409A. The Company
therefore amends each Agreement, effective as of December 31, 2008, as follows:
| 1. | The introductory clause of Section 3(a) is deleted and is replaced by the following: |
The Company shall provide the Executive, within 10 business days following
the applicable Termination Date (but in any event by March 15 of the year
following such 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:
| 2. | Section 3(a)(ii) of the Agreement is amended by adding the following after the last sentence: |
Notwithstanding the foregoing, in the event that the Executive provides such
notice of his termination of employment, the Company shall have a period of
30 days in which to remedy the condition.
| 3. | Section 3(c) of the Agreement is deleted and is replaced by the following: |
(c) Outplacement Counseling. If any of the events specified in Section
3(a)(i) or (ii) occurs and Executive is entitled to Severance Compensation,
the Company shall reimburse all reasonable expenses for professional
outplacement services by qualified consultants selected by the Executive, in
an amount not to exceed $50,000.00; provided, however, that the
reimbursement of such expenses is limited to expenses incurred on or before
the last day of the second year following the year in which the termination
of the Executive’s employment takes place and payment shall be made on or
before the last day of the second year following the year in which such
termination takes place.
| 4. | Section 4 of the Agreement is amended by adding the following as a new subsection (f): |
(f) Notwithstanding any provision of this Agreement to the contrary, the
reimbursement of any excise taxes imposed under Section 4999 of the Code
shall take place by the end of the year following the year in which such
taxes are remitted.
| 5. | Section 17 of the Agreement is amended by adding the following after the last sentence: |
This Agreement shall not be amended or terminated in a manner that would
cause the Agreement or any amounts payable under the Agreement to fail to
comply with the requirements of Section 409A, to the extent applicable, and,
further, the provisions of any purported amendment that may reasonably be
expected to result in such non-compliance shall be of no force or effect
with respect to the Agreement. The Company shall neither cause nor permit
any payment, benefit or consideration to be substituted for a benefit that
is payable under this Agreement if such action would result in the failure
of any amount that is subject to Section 409A to comply with the applicable
requirements of Section 409A. For purposes of Section 409A, each payment
under this Agreement shall be deemed to be a separate payment.