exv10w3






Exhibit 10.3




			
	 	 	 
	
	 	Chicago Dallas Detroit Düsseldorf London Los Angeles

Milan Munich New York Paris San Francisco Shanghai Tokyo






November 10, 2008




F. Edwin Harbach

Chief Executive Officer

BearingPoint, Inc.

3 World Financial Center

200 Vesey Street

New York, NY 10281




Re: Agreement for Interim Management Services




Dear Ed:




This letter, together with the attached Schedule(s) and General Terms and Conditions, sets forth
the agreement (“Agreement”) between AlixPartners, LLP, a Delaware limited liability partnership
(“AlixPartners”), and BearingPoint, Inc. (“BearingPoint” or the “Company”), for the engagement of
AlixPartners to provide interim management, financial advisory and consulting services to the
Company.



All defined terms shall have the meanings ascribed to them in this letter and in the attached
Schedule(s) and General Terms and Conditions.



Generally, the engagement of AlixPartners shall be under the supervision of the Board of Directors
of the Company and the direct supervision of its Chief Executive Officer.



Objectives and Tasks




AlixPartners will provide Kenneth A. Hiltz to serve as the Company’s Chief Financial Officer
(“CFO”), reporting to the Company’s Chief Executive Officer. Working collaboratively with the
senior management team, the Board of Directors and other Company professionals, Mr. Hiltz will
perform the services and carry out the duties that a CFO of a similar company would perform or
carry out and any other services or duties as may be requested from time to time by the Chief
Executive Officer.



Timing, Fees and Retainer




AlixPartners will commence this engagement on or about November 11, 2008 after receipt of a copy of
the Agreement executed by the Company.



The Company shall compensate AlixPartners for its services, and reimburse AlixPartners for
expenses, as set forth on Schedule 1.



2000 Town Center | Suite 2400 | Southfield, MI | 48075 | 248.358.4420 | 248.358.1969 fax | www.alixpartners.com




 









 










F. Edwin Harbach

November 10, 2008

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If these terms meet with your approval, please sign and return the enclosed copy of the Agreement.



We look forward to working with you.



Sincerely yours,




AlixPartners, LLP




/s/ Kenneth A. Hiltz




Kenneth A. Hiltz

Managing Director




	 	 	 	 	 
	Acknowledged and Agreed to:	 	 
	 
	 	 	 	 
	BEARINGPOINT, INC.	 	 
	 
	 	 	 	 
	By: 

Its:

	 	/s/ F. Edwin Harbach
 

Chief Executive Officer
	 	 
	Dated:

	 	November 10, 2008	 	 






 









 










Schedule 1




Fees and Expenses





	1.	 	Fees: AlixPartners’ fees will be based on the hours worked by Kenneth A. Hiltz at his
standard hourly rate of $750.
	 
	 	 	AlixPartners reviews and revises its billing rates on January 1 of each year.
	 
	2.	 	Success Fee: AlixPartners does not seek a Success Fee in connection with this engagement.
	 
	3.	 	Expenses: In addition to the fees set forth herein, the Company shall pay directly, or
reimburse AlixPartners upon receipt of periodic billings, for all reasonable out-of-pocket
expenses incurred in connection with this assignment, such as travel, lodging, postage and a
communications charge of $4.00 per billable hour to cover telephone and facsimile charges.
	 
	4.	 	Break Fee: AlixPartners does not seek a Break Fee in connection with this engagement.
	 
	5.	 	Retainer: The Company shall pay AlixPartners a retainer of $250,000.00 to be applied against
Fees and Expenses as set forth in this Schedule and in accordance with Section 2 of the
attached General Terms and Conditions.





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AlixPartners, LLP

General Terms and Conditions




These General Terms and Conditions (“Terms”) are incorporated into the letter agreement
(“Agreement”) between the Company and AlixPartners to which these Terms are attached. In case of
conflict between the wording in the letter agreement and these General Terms and Conditions, the
wording of the letter agreement shall prevail.



Section 1. Company Responsibilities




The Company will undertake responsibilities as set forth below:




	1.	 	Provide reliable and accurate detailed information, materials, documentation and
	 
	2.	 	Make decisions and take future actions, as the Company determines in its sole discretion, on
any recommendations made by AlixPartners in connection with this Agreement.





AlixPartners’ delivery of the services and the fees charged are dependent on (i) the Company’s
timely and effective completion of its responsibilities; and (ii) timely decisions and approvals
made by the Company’s management. The Company shall be responsible for any delays, additional
costs or other deficiencies caused by not completing its responsibilities.



Section 2. Retainer, Billing and Payments




Retainer and Billing. AlixPartners will submit semi-monthly invoices for services rendered and
expenses incurred and will offset such invoices against the Retainer. Payment will be due upon
receipt of the invoices to replenish the Retainer to the agreed-upon amount. Any unearned portion
of the Retainer will be returned to the Company at the termination of the engagement.



Payments. All payments to be made by the Company to AlixPartners shall be payable upon receipt of
invoice via wire transfer to AlixPartners’ bank account, as follows:




	 	Receiving Bank:	 	 [redacted]
	 
	 	Receiving Account:	 	 [redacted]





Section 3. Relationship of the Parties




The parties intend that an independent contractor relationship will be created by the Agreement.
As an independent contractor, AlixPartners will have complete and exclusive charge of the
management and operation of its business, including hiring and paying the wages and other
compensation of all its employees and agents, and paying all bills, expenses and other charges
incurred or payable with respect to the operation of its business. Of course, employees of
AlixPartners will not be entitled to receive from the Company any vacation pay, sick leave,
retirement, pension or social security benefits, workers’ compensation, disability, unemployment
insurance benefits or any other employee benefits. AlixPartners will be responsible for all
employment, withholding, income and other taxes incurred in connection with the operation and
conduct of its business.



The parties also agree not to solicit, recruit, or hire any employees or agents of the other party
during the term of the Agreement and for a period of one year subsequent to the completion and/or
termination of the Agreement.



Section 4. Confidentiality




AlixPartners shall use reasonable efforts to keep confidential all non-public confidential or
proprietary information obtained from the Company during the performance of its services hereunder
(the “Information”), and neither AlixPartners nor its personnel will disclose any Information to
any other person or entity. “Information” includes non-public confidential and proprietary data,
plans, reports, schedules, drawings, accounts, records, calculations, specifications, flow sheets,
computer programs, source or object codes, results, models or any work product relating to the
business of the Company, its subsidiaries, distributors, affiliates, vendors, customers, employees,
contractors and consultants.



The foregoing is not intended to prohibit, nor shall it be construed as prohibiting, AlixPartners
from disclosure pursuant to a valid subpoena or court order, but AlixPartners shall not encourage,
suggest, invite or request, or assist in securing, any such subpoena or court order; and
AlixPartners shall promptly give notice of any such subpoena or court order by fax transmission to
the Company. AlixPartners may make reasonable disclosures of Information to third parties in
connection with the performance of AlixPartners’ obligations and assignments hereunder. In
addition, AlixPartners will have the right to disclose to prospective clients on an individual
basis (e.g., not as part of any marketing materials or a general solicitation) only that it
provided services to the Company, but shall not provide any other information about its involvement
with the Company.



The Company acknowledges that all information (written or oral), including advice and Work Product
(as defined in Section 5), generated by AlixPartners in connection with this engagement is intended
solely for the benefit and use of the Company (limited to its management and its Board of
Directors) in connection with the transactions to which it relates. The Company agrees that no
such information shall be used for any other purpose or reproduced, disseminated, quoted or
referred to with attribution to AlixPartners at any time in any manner or for any purpose without
AlixPartners’ prior approval except as required by law.



Section 5. Intellectual Property




All methodologies, processes, techniques, ideas, concepts, know-how, procedures, software, tools,
writings and other intellectual property that AlixPartners has created, acquired or developed prior
to the date of this Agreement are, and shall remain, the sole and exclusive property of
AlixPartners, and the Company shall not acquire any interest therein. AlixPartners shall be free
to use all methodologies, processes, techniques, ideas, concepts, know-how, procedures, software,
tools, writings and other intellectual property that AlixPartners may create or develop in
connection with this engagement, subject to its duty of confidentiality to the extent that the same
contain information or materials furnished to AlixPartners by the Company that constitute
Information referred to in Section 4 above. Except as provided above, all information, reports,
materials, software and other work product that AlixPartners creates or develops specifically for
the Company as part of this engagement (collectively known as “Work Product”) shall be owned by the
Company and shall constitute Information referred to in Section 4 above. AlixPartners may retain
copies of the Work Product subject to its obligations under Section 4 above.



Section 6. Framework of the Engagement




The Company acknowledges that it is retaining AlixPartners solely to assist and advise the Company
as described in the Agreement. This engagement shall not constitute an audit, review or
compilation, or any other type of financial statement reporting engagement.



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AlixPartners, LLP

General Terms and Conditions




Section 7. Indemnification and Other Matters




The Company shall indemnify, hold harmless and defend AlixPartners and its affiliates and its and
their partners, directors, officers, owners, employees and agents (collectively, the “indemnitees”)
from and against all claims, liabilities, losses, expenses and damages arising out of or in
connection with the engagement of AlixPartners that is the subject of the Agreement. The Company
shall pay damages and expenses as incurred, including reasonable legal fees and disbursements of
counsel and the costs of AlixPartners’ professional time (AlixPartners’ professional time will be
reimbursed at AlixPartners’ rates in effect when such future time is required), relating to or
arising out of the engagement, including any legal proceeding in which an indemnitee may be
required or agree to participate but in which it is not a party. The indemnitees may, but are not
required to, engage a single firm of separate counsel of their choice in connection with any of the
matters to which this indemnification agreement relates.



In addition to the above indemnification, AlixPartners employees serving as directors or officers
of the Company or affiliates will be entitled to the benefit of the most favorable indemnities and
advancement of expenses provisions provided by the Company to its directors and officers, whether
under the Company’s charter or by-laws, by contract or otherwise.



AlixPartners is not responsible for any third-party products or services. The Company’s sole and
exclusive rights and remedies with respect to any third party products or services are against the
third-party vendor and not against AlixPartners, whether or not AlixPartners is instrumental in
procuring the third-party product or service.



AlixPartners shall not be liable to the Company except for actual damages resulting from bad faith,
self-dealing, intentional misconduct or gross negligence.



Section 8. Governing Law and Arbitration




The Agreement is governed by and shall be construed in accordance with the laws of the State of
Michigan with respect to contracts made and to be performed entirely therein and without regard to
choice of law or principles thereof.



Any controversy or claim arising out of or relating to the Agreement, or the breach thereof, shall
be settled by arbitration. Each party shall appoint one non-neutral arbitrator. The two party
arbitrators shall select a third arbitrator. If within 30 days after their appointment the two
party arbitrators do not select a third arbitrator, the third arbitrator shall be selected by the
American Arbitration Association (AAA). The arbitration shall be conducted in Southfield, Michigan
under the AAA’s Commercial Arbitration Rules, and the arbitrators shall issue a reasoned award.
The arbitrators may award costs and attorneys’ fees to the prevailing party. Judgment on the award
rendered by the arbitrators may be entered in any court having jurisdiction thereof.



Section 9. Termination and Survival




The Agreement may be terminated at any time by written notice by one party to the other; provided,
however, that notwithstanding such termination AlixPartners will be entitled to any fees and
expenses due under the provisions of the Agreement, including Success Fee and Break Fee in
accordance with Schedule 1. Such payment obligation shall inure to the benefit of any successor or
assignee of AlixPartners.



Additionally, unless the Agreement is terminated by the Company for Cause (as defined below) or due
to circumstances described in the Success Fee provision in the Agreement, AlixPartners shall remain
entitled to the Success Fee(s) that otherwise would be payable for the greater of 12 months from
the date of termination or the period of time that that has elapsed from the date of the Agreement
to the date of termination. Cause shall mean:



(a) an AlixPartners employee acting on behalf of the Company is convicted of a felony, or




(b) it is determined in good faith by the Board of Directors of the Company after 30 days notice
and opportunity to cure, that either (i) an AlixPartners employee is engaging in misconduct
injurious to the Company, or (ii) an AlixPartners employee is breaching any of his or her material
obligations under this Agreement, or (iii) an AlixPartners employee is willfully disobeying a
lawful direction of the Board of Directors or senior management of the Company.



Sections 2, 4, 5, 7, 8, 9 and 10 of these Terms, the provisions of Schedule 1 and the obligation to
pay accrued fees and expenses shall survive the expiration or termination of the Agreement.



Section 10. General




Severability. If any portion of the Agreement shall be determined to be invalid or unenforceable,
the remainder shall be valid and enforceable to the maximum extent possible.



Entire Agreement. These Terms, the letter agreement into which they are incorporated and the
Schedule(s) to such letter agreement contain the entire understanding of the parties relating to
the services to be rendered by AlixPartners and may not be amended or modified in any respect
except in a writing signed by the parties. AlixPartners is not responsible for performing any
services not specifically described in the Agreement or in a subsequent writing signed by the
parties.



Joint and Several. If more than one company signs this Agreement, the liability of each company
shall be joint and several.



Limit of Liability. AlixPartners shall not be liable for incidental or consequential damages under
any circumstances, even if it has been advised of the possibility of such damages. AlixPartners’
liability, whether in tort, contract, or otherwise, is limited to the amount of fees paid to
AlixPartners for services on this engagement.



Notices. All notices required or permitted to be delivered under the Agreement shall be sent, if
to AlixPartners, to:


AlixPartners, LLP

2000 Town Center, Suite 2400

Southfield, MI 48075

Attention: General Counsel




and if to the Company, to the address set forth in the Agreement, to the attention of the Company’s
General Counsel, or to such other name or address as may be given in writing to the other party.
All notices under the Agreement shall be sufficient if delivered by facsimile or overnight mail.
Any notice shall be deemed to be given only upon actual receipt.




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