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ordinary voting power to elect a majority of the members of the Company’s board of directors to beelected by the holders of Common Stock and any other class which votes together with the CommonStock as a single class or (ii) representing at least 50% of the equity value of the Company asreasonably determined by the Company’s board of directors, the Performance Units shall remainoutstanding on their original terms and the Company or Acquiring Entity, as applicable, shallremain responsible for the settlement of vested Performance Share Units in accordance with theexisting terms and conditions of the Performance Share Units.     Notwithstanding the foregoing or any other provision of this Agreement or the Plan, in theevent of a Change in Control constituting a sale or transfer of all or substantially all of theassets of the Company on a consolidated basis in any transaction or series of related transactionsto two or more unaffiliated Persons wherein the Company continues in existence after such Change inControl and actively continues the conduct of its ongoing business, the Consolidated Business UnitContribution Performance Measure set forth in Section 3(a) shall not be waived, the PerformanceShare Units shall remain outstanding on their original terms and the Company shall remainresponsible for the settlement of vested Performance Share Units in accordance with the existingterms and conditions of the Performance Share Units. If the Performance Share Units shall remainoutstanding and remain the responsibility of the Company after the occurrence of any such Change inControl and, as a result of such Change in Control, the Company shall cease to own, immediatelyfollowing such Change in Control, total assets equal to at least 50% of the total assets of theCompany immediately prior to the transaction that resulted in such Change in Control, thePerformance Share Units shall immediately become 100% vested and nonforfeitable effective as of thedate of such change in total assets, and valued based on Company relative TSR performance as ofthat date.In the case of a Change in Control, any vested Performance Share Units shall be settled by theCompany or Acquiring Entity, as applicable, on the date determined in accordance with Section 4(c),or if earlier (1) upon the occurrence of a Change in Control which also constitutes a “change inownership or effective control of a corporation or a change in the ownership of a substantialportion of the assets of a corporation” as defined in Section 409A, or (2) upon the Plan’stermination and liquidation in accordance with U.S. Treasury Regulation Section 1.409A-3(j)(4)(ix).     5. Section 19 shall be amended by adding the following paragraphs before the paragraph:**Section 409A Compliance.This Agreement is intended to comply with Section 409A of the Code and ambiguous provisions, ifany, shall be construed in a manner that is compliant with or exempt from the application ofSection 409A, as appropriate. This Agreement shall not be amended in a manner that would cause theAgreement or any amounts payable under the Agreement to fail to comply with the requirements ofSection 409A, to the extent applicable, and, further, the provisions of any purported amendmentthat may reasonably be expected to result in such non-compliance shall be of no force or effectwith respect to the Agreement.
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BearingPoint shall neither cause nor permit any payment, benefit or consideration to be substitutedfor a benefit that is payable under this Agreement if such action would result in the failure ofany amount that is subject to Section 409A to comply with the applicable requirements of Section409A.Notwithstanding any provision of this Agreement to the contrary, if the Award Recipient is a“specified employee” within the meaning of Section 409A as of the date of the Award Recipient’stermination of employment and BearingPoint determines, in good faith, that immediate payment of anyamounts or benefits would cause a violation of Section 409A, then any amounts or benefits which arepayable under this Agreement upon the Award Recipient’s “separation from service” within themeaning of Section 409A which(i) are subject to the provisions of Section 409A; (ii) are not otherwise excluded under Section 409A; and (iii) would otherwise be payable during the first six-month period following such separation fromserviceshall be paid on the first business day next following the earlier of (1) the date that is sixmonths and one day following the date of termination or (2) the date of Award Recipient’s death.For purposes of Section 409A, each payment under this Agreement shall be deemed to be a separatepayment.     6. Adjustment or Amendment.Notwithstanding anything in the Agreement or in the Plan to the contrary, no adjustment orsubstitution pursuant to Section 7.7 of the Plan and no amendment to the Agreement pursuant toSection 7.2 of the Plan or Section 10 of the Agreement, as applicable, shall be made in a mannerthat results in noncompliance with the requirements of Section 409A. The foregoing rule shall applyto the extent a Performance Share Award is subject to Section 409A or to the extent a PerformanceShare Award becomes subject to Section 409A as a result of the adjustment, substitution oramendment described herein.
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