EX-10.46






Exhibit 10.46




MANAGING DIRECTOR AGREEMENT




          This Agreement (“Agreement”) is between BearingPoint, Inc. (“BearingPoint”) and
                     (“You” and all similar references), effective as of                      (the “Effective
Date”):




	1.	 	Employment/Exclusive Services. You accept employment as of the Effective Date on the terms
and conditions of this Agreement. You agree to: (a) devote your professional time and best
effort to BearingPoint’s business and to refrain from professional practice other than on
BearingPoint’s behalf; (b) perform all assigned work faithfully and to the best of your
ability at such times and places as BearingPoint designates; (c) abide by all policies of
BearingPoint, current and future, including the EEO policy attached as Exhibit A, and the
Anti-Harassment policy attached as Exhibit B; (d) comply with the Confidentiality and
Intellectual Property Agreement attached as Exhibit C; (e) abide by the terms of the Consent
Form, concerning personal data, attached as Exhibit D; (f) agree to, and abide with, the list
of Competitive Businesses, attached as Exhibit E; (g) abide by the Drug-Free Workplace policy
attached as Exhibit F, and the Information Technology Use policy attached as Exhibit G; and
(h) comply with the Corporate Sponsored Credit Card Agreement attached as Exhibit H.
	 
	 	 	By executing this Agreement, you represent and confirm that you are not bound by any
covenant restricting you from being employed at BearingPoint or from performing your duties
as an employee and Managing Director under this Agreement.
	 
	2.	 	Compensation and Benefits. As of the Effective Date, BearingPoint will pay you a base salary,
less withholding and deductions, payable in accordance with BearingPoint’s normal payroll
practices. From time to time, BearingPoint may adjust your salary and other compensation in
its discretion. During your employment, you will be eligible to participate in employee
compensation or benefit plans (including group medical and 401(k)), incentive award programs,
and employee stock option or purchase plans and to receive other fringe benefits that
BearingPoint makes generally available to employees in your position. BearingPoint may amend
or discontinue any of its plans, programs, policies and procedures at any time for any or no
reason with or without notice.
	 
	 	 	As a condition of receiving any stock options, restricted stock or other equity awards, you
will be required to enter into a separate stock option, restricted stock or other agreement
that will provide (among other things) for the termination of your stock options or other
equity awards and a payment to BearingPoint or its designee of some or all of your gain if
you violate Sections 1(d), 3, 4, 5, and/or Exhibit C of this Agreement. You also agree and
authorize BearingPoint to deduct or withhold from your base salary or other compensation
amounts which are owed to BearingPoint or for any other lawful purpose.
	 
	3.	 	Duty of Loyalty. You acknowledge and agree that you owe a fiduciary duty of loyalty, fidelity
and allegiance to act at all times in the best interests of BearingPoint and to do no




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	 	 	act that would injure the business, interests, or reputation of BearingPoint. You understand
and agree that you will not divert business from BearingPoint to a Competitive Business,
prepare for a future competitive venture or engage in self-dealing while in BearingPoint’s
employ. In keeping with these duties, you shall make full disclosure to BearingPoint of all
business opportunities pertaining to BearingPoint’s business and shall not appropriate for
your future benefit business opportunities of BearingPoint.
	 
	4.	 	Conflicts of Interest. You understand and agree that any direct or indirect interest in,
connection with, or benefit from any outside activities, particularly commercial or consulting
activities, which interest might in any way adversely affect BearingPoint, involves a possible
conflict of interest. Consistent with your fiduciary duties to BearingPoint, you agree that
you shall not knowingly become involved in a conflict of interest with BearingPoint or upon
discovery of such a conflict, permit it to continue. You also agree to disclose promptly to
BearingPoint’s General Counsel any facts which might involve such a conflict of interest that
has not been approved by BearingPoint’s Board of Directors.
	 
	5.	 	Covenants. In consideration of your employment, special training, access to Proprietary
Information and eligibility for stock options, restricted stock or other equity awards, you
agree to the following obligations that you acknowledge are reasonably designed to protect
BearingPoint’s legitimate business interests without unreasonably restricting your ability to
earn a living after leaving BearingPoint.






	 	a.	 	Non-Disclosure. To assist you in performing your duties, BearingPoint agrees to provide
you special training regarding its business methods and access to certain confidential and
proprietary information and materials belonging to BearingPoint and to third parties,
including its Clients and Prospective Clients who have furnished information to
BearingPoint. You will be entrusted with business opportunities of BearingPoint and placed
in a position to use and develop business goodwill on BearingPoint’s behalf. You agree that
all of this non-public information, including the identities of BearingPoint’s Clients and
Prospective Clients and their key decision makers or other client or prospect lists, is
“Proprietary Information” as defined in Exhibit C. In keeping with the obligations imposed
by Exhibit C, you agree that you will not, at any time during or after your employment at
BearingPoint, make any unauthorized disclosure of BearingPoint’s Proprietary Information to
any third party or otherwise use such Proprietary Information to BearingPoint’s competitive
disadvantage.
	 
	 	b.	 	Non-Competition. While employed with BearingPoint and for 18 months after your
termination or resignation, for whatever reason, you will not, directly or indirectly, on
your own behalf or on behalf of a Competitive Business (as specified in Exhibit E), in any
geographic area or market where you (or a direct report of your business unit) provided
BearingPoint Services during the preceding 12 months: (i) engage in or be employed by or
affiliated with a Competitive Business in which you perform the same or similar duties or
responsibilities or provide comparable services that you performed or provided while
employed as a




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	 	 	 	Managing Director of BearingPoint; (ii) offer to provide to any Client or Prospective
Client similar services in the same line of business to those which you conducted,
provided or offered to provide while employed by BearingPoint; (iii) render advice or
services to, or otherwise assist, any Competitive Business in rendering advice or
services similar to that advice or services offered or provided by BearingPoint
through you or your business unit to any Client or Prospective Client; (iv) divert or
attempt to divert any Client or Prospective Client from BearingPoint to a Competitive
Business; (v) transact any business with any Client or Prospective Client which, in
any manner, would have, or is likely to have, an adverse effect upon BearingPoint’s
existing or prospective business relationships; and/or (vi) develop, acquire or
maintain an ownership interest in a Competitive Business, provided that ownership
interest of less than 5% of the outstanding capital stock of a publicly traded
Competitive Business shall not be a violation of this provision. If BearingPoint
abandons a particular aspect of its business (i.e., ceases providing such services
with the intention to permanently refrain from such aspect of the business), then this
covenant shall not apply to such former aspect of BearingPoint’s business.
	 
	 	c.	 	 Non-Solicitation of Clients and Prospective Clients. During your employment with
BearingPoint and for a period of 18 months after your termination or resignation, for
whatever reason, you agree not to take any action to, or do anything reasonably intended to,
solicit any Client or Prospective Client on your own behalf or on behalf of a Competitive
Business (as specified in Exhibit E) or otherwise influence or attempt to influence any
Client or Prospective Client to cease or refrain from doing business, or reduce the Client’s
business, with BearingPoint. The term “solicit” includes any direct or indirect approach,
verbal or written, to a Client or Prospective Client containing an offer, announcement,
request, petition, solicitation or other entreaty that asks, urges, encourages, invites,
moves or otherwise persuades a Client or Prospective Client to contact or respond to you or a
Competitive Business for business purposes. You understand and agree that impermissible
solicitation includes, but is not limited to, informing any Client or Prospective Client of
your intent to form or join a Competitive Business or announcing to any Client or Prospective
Client your departure from BearingPoint or your forming or joining a Competitive Business.
You also agree not to make any public or private false, derogatory or disparaging comments
about BearingPoint (or its employees) to any Clients or Prospective Clients or act in any
manner that could reasonably be expected to result in damage to the goodwill or business
reputation of BearingPoint.
	 
	 	d.	 	Non-Solicitation of Employees. While employed with BearingPoint and for 18 months after
your termination or resignation, for whatever reason, you agree not to hire, employ, solicit
for employment or attempt to hire or assist a Competitive Business (as specified in Exhibit
E) in doing so any employee of BearingPoint or any former employee who left BearingPoint
within 12 months before or after your termination or resignation. This prohibition applies to
any direct or indirect, written or verbal, contact for employment purposes and includes, but
is not limited to, notice of alternative job opportunities, responses to employee inquiries,




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	 	 	 	referrals to hiring managers or providing employee identity, contact, performance or
compensation information to a Competitive Business or its representative.
Impermissible solicitation also includes any direct or indirect offer to engage or
retain a BearingPoint employee or former employee as an employee, agent, consultant,
independent contractor or in any other capacity to perform services for a person or
entity other than BearingPoint.






	6.	 	Remedies. In addition to and without limiting any remedies in law or in equity that may be
available to BearingPoint for breach of this Agreement, including, but not limited to,
injunctive and other equitable relief, you also agree to the following obligations and accept
the following consequences:






	 	a.	 	Compensation Forfeiture. If BearingPoint determines that you have breached
Sections 3 or 4, you agree to forfeit or repay all salary and other compensation
that you have earned or would otherwise be entitled to from BearingPoint during any
period of disloyalty or conflicting interest. This compensation forfeiture shall be
absolute and not subject to any apportionment for properly performed services during
any period when disloyal acts were committed. By executing this Agreement, you
authorize BearingPoint to engage in self-help and deduct or withhold from any
compensation otherwise due or owing to you in order to satisfy such forfeiture;
provided, however, that any such deduction or withholding shall occur only at the
time when payment of such compensation would otherwise have been made under the
terms of the applicable policy or plan. You also agree to forfeit and pay to
BearingPoint all gains realized from the disloyal or conflicting acts and to
reimburse BearingPoint for all losses incurred as a result of the disloyalty,
including costs and attorney’s fees.
	 
	 	b.	 	Injunctive Relief. You acknowledge and agree that BearingPoint’s remedy at law for any
breach of the covenants or other provisions contained in Sections 3, 4, 5 or Exhibit C would
be inadequate and that BearingPoint shall, in addition to any other remedies, be entitled to
a temporary restraining order, a preliminary and permanent injunction, or other equitable
relief, restraining and enjoining you from committing or continuing to commit any violation
of these covenants. For purposes of any enforcement action, you stipulate and agree that
money damages would be difficult to ascertain and calculate and an inadequate remedy.
	 
	 	c.	 	Competitive Injuries. In addition to injunctive relief, if you breach Sections 3, 4,
5(a), (b) or (c) and/or Exhibit C, BearingPoint will be entitled to recover its
actual and consequential damages, including its lost profits, attorney’s fees and
costs. In addition, you agree to: (i) repay to BearingPoint the sign-on bonus you
received under your employment offer, if any; (ii) forfeit all stock options,
restricted stock and any other equity or cash awards you have received from
BearingPoint; and (iii) pay to BearingPoint an amount equal to the profits you have
realized upon the exercise of any stock options, sale of any restricted stock or
disposition of any other equity interest received under an equity award from
BearingPoint. These payments shall be tendered to BearingPoint, in cash or by
certified check, within




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	 	 	 	30 days of your receipt of written notice and demand for payment from BearingPoint.
	 
	 	d.	 	Employee Solicitation. In addition to injunctive relief, if you breach Section 5(d),
BearingPoint will be entitled to recover its actual and consequential damages, attorney’s
fees and costs. You agree that actual damages shall include, but not be limited to, and you
agree to pay to BearingPoint, (i) the costs incurred in hiring a replacement (i.e.,
advertising costs, headhunter fees, sign-on bonuses and training costs); (ii) the excess
salary differential, if any, between the replacement and departed employee for a period of 2
years; (iii) the sign-on bonus the departed employee received under his or her offer letter,
if any; (iv) the training expenses incurred by BearingPoint in the preceding 24 months on
behalf of the departed employee; (v) all compensation that the departing employee earned or
was paid during any period of disloyalty or conflicting interest; and (vi) all lost profits
sustained as a result of the employee’s departure from BearingPoint. These payments will be
tendered to BearingPoint upon demand, in cash or by certified check, in not less than
quarterly installments over the 24 months following such breach.






	7.	 	Certain Definitions.
	 
	 	 	“Cause” means any of the following conduct by you: (i) embezzlement or misappropriation of
corporate funds; (ii) breach of fiduciary duty or other material acts of dishonesty; (iii)
conviction of, or plea of guilty or nolo contendere to, any felony or misdemeanor involving
moral turpitude; (iv) engaging in conduct that you know or should know could harm the
business or reputation of BearingPoint; (v) material failure to adhere to BearingPoint’s
corporate codes, policies or procedures; (vi) continued failure to meet performance
standards as determined by BearingPoint over two consecutive performance review periods;
(vii) a breach or threatened breach of any provision of Sections 1(d), 3, 4, 5 or Exhibit C,
or a material breach of any other provision of this Agreement if the breach is not cured to
BearingPoint’s satisfaction within a reasonable period after BearingPoint provides you with
notice (to your address on BearingPoint’s records) of the breach (no notice and cure period
is required if the breach cannot be cured); or (viii) violation of any statutory,
contractual, or common law duty or obligation to BearingPoint, including without limitation
the duty of loyalty.
	 
	 	 	“Client” means any person, firm, corporation, partnership, association or other entity that
is or was a client of BearingPoint and with which you had direct or indirect contact by
virtue of and in the course of your employment with BearingPoint or with respect to which
you possess information that is proprietary or confidential to BearingPoint or the client.
	 
	 	 	“Prospective Client” means any person, firm, corporation, partnership, association or other
entity that is not a Client but with respect to whom, within 1 year before your termination
or resignation, you: (i) conducted, prepared or submitted, or assisted in conducting,
preparing or submitting, any proposal or client development or marketing efforts on behalf
of BearingPoint (which includes any subsidiary of BearingPoint




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	 	 	throughout this definition), or a related or affiliated entity, (ii) had contact with,
knowledge of, or access to Proprietary Information or other information concerning the
prospective client, in connection with your BearingPoint employment; or (iii) dealt with
while the person was employed by a Client but who has since changed employers or become
employed by a non-Client firm, corporation, partnership, association or other entity in a
business decision making role.
	 
	 	 	“BearingPoint” as used throughout this Agreement means BearingPoint, Inc. and includes any
successor to, and/or subsidiary or related or affiliated entity of BearingPoint, Inc. with
which you become employed or associated.
	 
	 	 	“BearingPoint Services” means any services conducted and provided by BearingPoint during
your employment including, without limitation, management and information technology
services.
	 
	 	 	“Competitive Business” means any person, firm, corporation, partnership, association or
other entity that offers services competitive to BearingPoint Services. For purposes of
Sections 5(b) and 5(c) above “Competitive Business” means one or more of those entities, and
their successors in interest, specified in Exhibit E.
	 
	8.	 	Termination and Resignation.






	 	a.	 	Your employment is terminable at will and may be terminated with or without cause and
effective immediately upon written notice to your address on BearingPoint’s records.






	 	(i)	 	Upon termination by BearingPoint and subject to the terms and conditions of this
Agreement, you will be entitled to: (1) all earned and unpaid base salary through
your termination date, and (2) any earned and unused personal days (“Personal Days
Payment”).
	 
	 	(ii)	 	If you are terminated without cause, BearingPoint will pay you an additional
amount of severance pay (“Severance Pay”) in an amount equal to the difference, if
any, between (1) three months’ pay at your then-current base salary and (2) your
earned and unused Personal Days Payment; provided, however, that the payment of such
Severance Pay is contingent upon your timely execution and delivery to BearingPoint
of a Separation and Release Agreement (a “Release”). The Release shall be on the
form designated for such purpose by BearingPoint and shall constitute your binding
unilateral release of all claims that you may have against BearingPoint, any of its
officers, employees, subsidiaries or the officers and employees of a subsidiary
arising from or associated with your employment. In order to be effective, the
Release must be signed by you and returned to BearingPoint no earlier than the date
of the termination of your employment with BearingPoint and no later than the
thirtieth day following such termination of employment. At any time during the
seven-day period following the date on which BearingPoint




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	 	 	 	receives your Release (the “Revocation Period”), you may revoke the Release by
delivering a written notice of revocation to BearingPoint. If you do not
revoke your Release during the Revocation Period, the Release will become
irrevocable upon the expiration of the Revocation Period.
	 
	 	(iii)	 	Your Severance Payment will be made within a period of months equal to the total
number of months’ pay to which you are entitled as Severance Pay, but, in any event,
no later than March 15 of the year following your termination of employment.
	 
	 	(iv)	 	All of the payments in this Section 8(a) shall be reduced by any required and
authorized withholding, deductions or other offsets authorized by this Agreement.






	 	b.	 	You may voluntarily terminate your employment with BearingPoint upon 3 months’ prior
written notice directed to the BearingPoint People Department.
You hereby agree that this notice is required in order to permit an orderly and
responsible transition of your duties and responsibilities. You will not be eligible
for severance compensation, pay in lieu of written notice, or any other compensation
in the event of a voluntary termination of employment. Unless the notice period is
accelerated by BearingPoint or waived, in part or in whole, in writing by the Chief
Executive Officer (“CEO”), or his or her designee, your resignation shall be effective
at the end of the 3-month notice period. If BearingPoint elects to accelerate the
effective date of your resignation, you shall not be entitled to any severance
compensation or pay in lieu of written notice compensation. Without limiting any
other remedies, if you breach this Section 8(b), you will pay BearingPoint or its
designee 25% of the total compensation (including salary and bonus) paid or payable to
you on an annualized basis by BearingPoint during the fiscal year in which your breach
occurs. These payments will be made in not less than quarterly cash installments over
the 24 months following your breach. You will not be eligible for severance or any
other payments.
	 
	 	c.	 	You agree to provide all assistance requested by BearingPoint in transitioning your
duties, responsibilities and Client and other BearingPoint relationships to other
BearingPoint personnel, both during your employment and after your termination or
resignation. You understand and agree that all announcements or other communications
regarding your termination or departure from BearingPoint and the transition of your work
shall be made and handled exclusively by BearingPoint.
	 
	 	d.	 	During the term of your employment and for 18 months after your termination or resignation
from BearingPoint, you agree to notify BearingPoint immediately, in writing, of all offers of
employment received by you from any Competitive Business to perform services or other duties
similar to those which you provide or provided to BearingPoint. In providing this notice, you
shall disclose the identity of the Competitive Business, the location of the prospective job
opportunity and




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	 	 	 	your proposed duties and responsibilities. You also agree to provide such notice and
consult in good faith with BearingPoint before accepting, directly or indirectly
through an agent or representative, any such offer to ensure compliance with the
covenants contained in Sections 3, 4 and 5 and Exhibit C of this Agreement. You also
agree to provide any prospective employer with timely written notice that you are
under a written employment agreement with BearingPoint which contains
post-employment restrictive covenants restricting competitive activities.






	9.	 	Mediation and Arbitration. The parties agree that any and all legally cognizable disputes,
claims or controversies arising out of or relating to this Agreement or causes of action
arising from your employment or termination therefrom (including individual or collective
claims for employment discrimination, harassment, retaliation, wrongful termination, or
violations of Title VII, ADEA, ADA, EPA, FMLA, FLSA, PDA, SARBANES-OXLEY or ERISA or other
federal, state, foreign or local law) shall be submitted to JAMS, or its successor, for
mediation, and if the matter is not resolved through mediation, then it shall be submitted to
JAMS, or its successor, for final and binding arbitration in Virginia before one arbitrator.
Mediation may be commenced by providing JAMS and the other party a written request for
mediation, setting forth the subject of the dispute and the relief requested. Arbitration with
respect to the matters submitted to mediation may be initiated by filing a written demand for
arbitration at any time following the first mediation session or 45 days after the date of
filing the written request for mediation, whichever occurs first. Either party may seek
equitable relief prior to the mediation or arbitration to preserve the status quo or to seek
relief under Sections 3, 4, 5 and/or Exhibit C of this Agreement. Unless otherwise agreed by
the parties, the mediator shall be disqualified from serving as arbitrator. The arbitration
shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures.
Judgment on the Award may be entered in any court having jurisdiction. The arbitrator may, in
the Award, allocate all or part of the costs of the arbitration, including the fees of the
arbitrator and the reasonable attorneys’ fees of the prevailing party.
	 
	10.	 	Survival. Sections 1(d), 1(e), 2 through 16, and Exhibits C and D shall survive any termination
of this Agreement or your employment (including your resignation).
	 
	11.	 	Entire Agreement. This Agreement, including Exhibits, is the entire agreement between you and
BearingPoint regarding these matters and supersedes any verbal and written agreements on such
matters. In the event of a conflict between the main body of this Agreement and the Exhibits, the
main body of the Agreement shall control. This Agreement may be modified only by written agreement
signed by you and the CEO or his or her designee. All Section headings are for convenience only and
do not modify or restrict any of this Agreement’s terms.
	 
	12.	 	Choice of Law. This Agreement shall be governed by the laws of the Commonwealth of Virginia.
You and BearingPoint consent to the jurisdiction and venue of any state or federal court in the
Commonwealth of Virginia and agree that any permitted lawsuit may be brought to such courts or
other court of competent jurisdiction. Each party hereby waives, releases and agrees not to assert,
and agrees to cause its affiliates to waive,




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	 	 	release and not assert, any rights such party or its affiliates may have under any foreign
law or regulation that would be inconsistent with the terms of this Agreement as governed by
Virginia law.
	 
	13.	 	Waiver. Any party’s waiver of any other party’s breach of any provision of this Agreement shall
not waive any other right or any future breaches of the same or any other provision. The CEO may,
in his or her sole discretion, waive any of the provisions of Sections 1(d), 3, 4, 6, or Exhibit C.
	 
	14.	 	Severability. If any provision of this Agreement is held invalid or unenforceable for any
reason, the invalidity shall not affect or nullify the validity of the remaining provisions of this
Agreement. If any provision of this Agreement is determined to be overly broad in duration,
geographical coverage or scope, or unenforceable or unreasonable for any other reason, the parties
intend for the restriction to be modified or reformed so as to be reasonable and enforceable and,
as so modified, to be fully enforced.
	 
	15.	 	Assignment and Beneficiaries. This Agreement only benefits and is binding on the parties and
their respective affiliates, successors and permitted assigns provided that you may not assign your
rights or duties under this Agreement without the express prior written consent with the other
parties. BearingPoint may assign any rights or duties that it has, in whole or in part, to other
affiliated or subsidiary entities without your consent.
	 
	16.	 	Section 409A. This Agreement is intended to comply with Section 409A of the Internal
Revenue Code of 1986, as amended, and ambiguous provisions, if any, shall be construed in a
manner that is compliant with or exempt from the application of Section 409A, as
appropriate. 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.
	 
	17.	 	Counterparts. For convenience of the parties, this Agreement may be executed in one or more
counterparts, each of which shall be deemed an original for all purposes.





          The parties state that they have read, understood and agree to be bound by this Agreement and
that they have had the opportunity to seek the advice of legal counsel before signing it and have
either sought such counsel or have voluntarily decided not to do so:



	 	 	 	 	 	 	 
	BEARINGPOINT	 	EMPLOYEE	 	 
	 
	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 

	 	 

	 	 

	 	 
	 
	 	 	 	 	 	 
	Title:
	 	 	 	 	 	 
	 

	 	 

	 	 

	 	 
	 
	 

	 	 	 	(Print Employee’s Full Name)	 	 
	 
	Dated:
	 	 	 	 	 	 
	 

	 	 

	 	 

	 	 
	 
	 

	 	 	 	(Employee’s ID)	 	 






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