Exhibit 10.1
FTI CONSULTING,
INC.
DEFERRED COMPENSATION
PLAN
FOR KEY EMPLOYEES AND
NON-EMPLOYEE DIRECTORS
[Amended and Restated Effective
as of May 14, 2008]
1. Establishment and Objectives
of the Plan
FTI Consulting, Inc., a Maryland
corporation ( “FTI” or the
“Company” ), hereby establishes this FTI
Consulting, Inc. Deferred Compensation Plan for Key Employees and
Non-Employee Directors (the “ Plan ”) for the
benefit of non-employee directors and key employees of FTI and its
Affiliates. The Plan is intended to advance the interests of the
Company by providing the Company an advantage in attracting and
retaining such persons and by providing such persons with
additional incentive to serve the Company by increasing their
proprietary interest in the success of the Company.
2. Definitions
As used in the Plan, the following
definitions apply to the terms indicated below.
(a) “Account
” means, with respect to each participant, a separate
bookkeeping reserve account, which may include separate
sub-accounts for Restricted Stock Units, Stock Units or cash
amounts credited under the Plan to such participant.
(b) “Affiliate
” means any entity, whether now or hereafter existing,
which controls, is controlled by, or is under common control with,
the Company (including, but not limited to, joint ventures, limited
liability companies, and partnerships), as determined by the
Committee.
(c) “Award
” means any Restricted Stock Unit or Stock Unit relating
to the Common Stock or other securities of the Company granted
pursuant to the provisions of the Plan, or any cash-based awards
granted pursuant to the provisions of the Plan.
(d) “Board
” means the Board of Directors of the Company.
(e) “Bonus
” means the incentive compensation bonus payment, if any,
awarded to an Eligible Employee pursuant to a Performance Based
Incentive Compensation Plan that an Eligible Employee may receive
with respect to a Plan Year.
(f) “Bonus Payment
Date ” means the date on which the Bonus becomes
payable with respect to a Plan Year, without regard to any Deferral
Election respecting such Bonus.
(g) “Change in
Control ” shall have the meaning ascribed thereto
under Section 409A(a)(2)(A)(v) of the Code with respect to a
change in the ownership or effective control of the Company, or in
the ownership of a substantial portion of the assets of the
Company.
Last Amended and Restated as of May 14,
2008
1
(h) “Code
” means the Internal Revenue Code of 1986, as amended,
and any regulations promulgated thereunder. A reference to any
provision of the Code shall include reference to any successor
provision of the Code.
(i) “Committee
” means the Compensation Committee of the Board (or any
successor Board committee as may be designated by the Board from
time to time), comprised of directors who are independent directors
as defined in the New York Stock Exchange’s Listed Company
Manual, who are “outside directors” within the meaning
of Code Section 162(m), and who are “non-employee
directors” within the meaning of Rule 16b-3 promulgated by
the Securities and Exchange Commission under the Exchange
Act.
(j) “Common Stock
” means shares of common stock, par value of $0.01 per
share, of the Company.
(k) “Deferrable
Bonus ” means 33.33% of an Eligible Employee’s
Bonus (or such other amount or percentage of the Bonus that the
Committee determines from time to time is eligible to be deferred
under the Plan), provided that any Bonus (or portion thereof) that
is paid to an Eligible Employee after his termination of employment
shall not constitute a Deferrable Bonus under the Plan.
(l) “Deferral
Election ” means a written election made in
accordance with the provisions of Section 4 to defer receipt
of an Eligible Employee’s Deferrable Bonus (or a portion
thereof) pursuant to this Plan.
(m) “Disability
” or “ Disabled ” shall have the
meaning ascribed thereto under Code
Section 409A(a)(2)(C).
(n) “Elected Payment
Date ” shall have the meaning ascribed to it under
Section 4 of the Plan.
(o) “Eligible
Employee ” means a person who is an employee of the
Company or of an Affiliate and who holds the position of Senior
Managing Director or higher, or such other highly-compensated
position, as may be determined by the Committee from time to time
to be eligible to participate in the Plan. No person shall be
considered an Eligible Employee before the Effective Date. Once an
Eligible Employee, a person shall continued to be an Eligible
Employee until determined by the Committee to be ineligible to
participate in the Plan (or such person’s employment with the
Employer ceases). Notwithstanding the foregoing, officers
designated as executive or Section 16 officers by the Board
shall not be permitted to participate in the Plan.
(p) “Employer
” means the Company and each of its
Affiliates.
(q) “Exchange Act
” means the Securities Exchange Act of 1934, as amended,
and any successor thereto.
Last Amended and Restated as of May 14,
2008
2
(r) “Fair Market
Value ” means, with respect to a share of the Common
Stock on the relevant date, the closing price, regular way,
reported on the New York Stock Exchange or if no sales of the
Common Stock are reported on the New York Stock Exchange for that
date, the closing price for the last previous day for which sales
were reported on the New York Stock Exchange. If the Common Stock
is no longer listed on the New York Stock Exchange, the Committee
may designate such other exchange, market or source of data as it
deems appropriate for determining such value for the purposes of
the Plan. For all purposes under the Plan, the term “relevant
date” as used in this Section 2(r) means either the date
as of which Fair Market Value is to be determined or the next
preceding date on which public trading of the Common Stock occurs,
as determined in the Committee’s discretion.
(s) “Grant Agreement
” means a written or electronic document memorializing
the terms and conditions of an Award granted pursuant to the
provisions of the Plan.
(t) “Grant Date
” means a date authorized by the Committee for the award
of Restricted Stock Units or Stock Units under this Plan to a
participant.
(u) “Payment
Election ” means a written election made in
accordance with the provisions of Section 4 to select an
Elected Payment Date with regard to an award of Stock Units granted
under this Plan to an Eligible Employee.
(v) “Performance-Based
Compensation ” means performance-based compensation
payable to an Eligible Employee based on services performed over a
period of at least 12 months, determined in accordance with
Section 409A.
(w) “Performance Based
Incentive Compensation Plan ” means any plan, policy
or program (or portion thereof) that provides for Performance-Based
Compensation or bonuses, and which plan, policy or program (or
portion thereof) is designated by the Company to be a Performance
Based Incentive Compensation Plan for purposes of this Plan. The
Company may add or eliminate such designation for any plan, policy
or program (or portion thereof) at any time in its discretion. No
Performance-Based Compensation or bonus shall be eligible for
deferral under this Plan unless the plan, policy or program (or
portion thereof) that provides for such payment is designated by
the Company as a Performance Based Incentive Compensation
Plan.
(x) “Plan
” means this FTI Consulting, Inc. Deferred Compensation
Plan, as amended from time to time.
(y) “Plan Year
” means the 12-month period coinciding with the calendar
year.
(z) “Restricted Stock
Unit ” means the expression on the Company’s
books of a unit which is equivalent to one share of Common Stock,
which unit is subject to any restrictions that the Committee, in
its discretion, may impose.
Last Amended and Restated as of May 14,
2008
3
(aa) “Section 409A
” means Section 409A of the Code and Department of
Treasury regulations and other interpretive guidance issued
thereunder, including, without limitation, any regulations or other
interpretive guidance as may be issued after the Effective
Date.
(bb) “Separation from
Service ” means an Eligible Employee’s
“separation from service” with respect to the Employer,
within the meaning of Code
Section 409A(a)(2)(A)(i).
(cc) “Specified
Employee ” means an Eligible Employee who meets the
applicable requirements set forth in Section 7.2.
(dd) “Stock Unit
” means the expression on the Company’s books of a
unit which is equivalent to one share of Common Stock.
(ee) “Unforeseeable
Emergency ” shall have the meaning described thereto
under Code Section 409A(a)(2)(B)(ii).
3. Administration of the
Plan
(a) Administrator . Except as
otherwise provided herein or as the Board may determine from time
to time, the Plan shall be administered by the
Committee.
(b) Powers of the Committee .
The Committee shall have all the powers vested in it by the terms
of the Plan, such powers to include authority, in its sole and
absolute discretion, to grant Awards under the Plan, prescribe
Grant Agreements evidencing such Awards and establish programs for
granting Awards.
The Committee shall have full power
and authority to take all other actions necessary to carry out the
purpose and intent of the Plan, including, but not limited to, the
authority to: (1) determine the eligible persons to whom, and
the time or times at which Awards shall be granted;
(2) determine the types of Awards to be granted;
(3) determine the number of shares to be covered by or used
for reference purposes for each Award; (4) impose such terms,
limitations, restrictions and conditions upon any such Award as the
Committee shall deem appropriate, to the extent not inconsistent
with the terms of the Plan; (5) modify, amend, extend or renew
outstanding Awards, or accept the surrender of outstanding Awards
and substitute new Awards ( provided however , that, except
as specifically provided otherwise in the Plan, any modification
that would materially adversely affect any outstanding Award shall
not be made without the consent of the holder); and
(6) determine conclusively whether (and, if applicable, when)
an Eligible Employee is a Specified Employee or Disabled, or has
experienced a Separation from Service or Unforeseeable Emergency,
and shall make such determination consistent with
Section 409A.
The Committee shall have full power
and authority, in its sole and absolute discretion, to administer
and interpret the Plan, Grant Agreements and all other documents
relevant
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2008
4
to the Plan and Awards issued hereunder, and to
adopt and interpret such rules, regulations, agreements, guidelines
and instruments for the administration of the Plan and for the
conduct of its business as the Committee deems necessary or
advisable. Without limiting the foregoing, the Committee may
delegate certain administrative or ministerial duties to a
subcommittee of the Committee or to one or more employees of the
Company or an Affiliate, but shall retain the ultimate
responsibility for the interpretation of the Plan. The Committee
may appoint accountants, actuaries, counsel, advisors and other
persons that it deems necessary or desirable in connection with the
administration of the Plan.
(c) Effect of Committee
Decisions . All actions taken and decisions and determinations
made by the Committee on all matters relating to the Plan pursuant
to the powers vested in it hereunder shall be in the
Committee’s sole and absolute discretion and shall be
conclusive and binding on all parties concerned, including the
Company, its stockholders, any participants in the Plan and any
other employee, consultant, or director of the Company, and their
respective successors in interest.
(d) Limited Liability and
Indemnification . To the maximum extent permitted by law, no
member of the Committee shall be liable for any action taken or
determination made in good faith relating to the Plan. To the
maximum extent permitted by law and by the Company’s charter
and by-laws, the members of the Committee shall be indemnified by
the Company in respect of all their activities under the
Plan.
(e) Non-Uniform
Determinations . The Committee’s determinations under the
Plan (including, without limitation, determinations of the persons
to receive Awards, the form, amount and timing of such Awards, the
terms and provisions of such Awards and the Grant Agreements
evidencing such Awards) need not be uniform and may be made by the
Committee selectively among persons who receive, or are eligible to
receive, Awards under the Plan, whether or not such persons are
similarly situated.
4. Deferral and Payment
Elections
4.1 Initial Deferral
Elections . For any Plan Year, an Eligible Employee may elect,
on or before June 30th of such Plan Year (or such other
date as the Committee designates, provided that such date is in
accordance with Section 409A), to irrevocably defer payment of
all or a specified part of the Eligible Employee’s Deferrable
Bonus earned during such Plan Year (and, to the extent set forth in
Section 4.2, in any succeeding Plan Years until the Eligible
Employee ceases to be a Eligible Employee). Any person who shall
become an Eligible Employee during any Plan Year, may elect, no
later than thirty (30) days after the Eligible Employee
becomes eligible to participate in the Plan, to irrevocably defer
payment of all or a specified part of such Deferrable Bonus (as
adjusted for any limitations imposed by Section 409A) payable
with respect to services rendered during the remainder of such Plan
Year (and, to the extent set forth in Section 4.2, for any
succeeding Plan Years until the Eligible Employee ceases to be an
Eligible Employee). Any Deferrable Bonuses deferred pursuant to
this Plan shall be paid to the Eligible Employee at the time and in
the manner specified in Section 7.
Last Amended and Restated as of May 14,
2008
5
4.2 Subsequent Deferral
Elections . Deferral Elections may not be revoked or modified
with respect to a Bonus to be earned during any Plan Year after
June 30th of such Plan Year (or such other date as the
Committee may have designated pursuant to the first parenthetical
in Section 4.1). Deferral Elections will remain in effect from
Plan Year to Plan Year unless modified by the Eligible Employee for
a subsequent Plan Year as indicated in the following sentence (or
until such person ceases to be an Eligible Employee). Modifications
to an Eligible Employee’s current Deferral Election for any
subsequent Plan Year may be made by filing a new Deferral Election
form by June 30th of such Plan Year (or such other date as the
Committee may have designated pursuant to the first parenthetical
in Section 4.1).
4.3 Performance-Based
Compensation . Notwithstanding any provision of the Plan to the
contrary, to the extent that any Bonus does not constitute
Performance—Based Compensation, the Deferral Election and
Payment Election timing for such Bonuses shall be as provided in
Sections 4.1, 4.2, 4.4, and 4.5 except substituting “December
31st of the Plan Year preceding such Plan Year” for
“June 30th of such Plan Year”.
4.4 Payment Elections . For
any Plan Year in which an Eligible Employee elects pursuant to the
preceding sub-sections to irrevocably defer payment of all or a
specified part of the Eligible Employee’s Deferrable Bonus
earned during such Plan Year, an Eligible Employee, on or before
June 30th of such Plan Year (or such other date as the
Committee designates, provided that such date is in accordance with
Section 409A), may select a payment date for the resulting
award of Stock Units granted (the “Elected Payment
Date”). For any person who shall become an Eligible Employee
during any Plan Year who irrevocably defers payment of all or a
specified part of such Deferrable Bonus earned during such Plan
Year as provided above, such Eligible Employee may select the
Elected Payment Date no later than thirty (30) days after the
Eligible Employee becomes eligible to participate in the Plan. An
Eligible Employee may select an Elected Payment Date that is on or
after January 1st of the second calendar year after the
applicable Grant Date of the resulting award of Stock Units. To the
extent that an Eligible Employee does not make a valid Payment
Election with respect to an award of Stock Units, there shall be no
Elected Payment Date for such award (and no subsequent Payment
Election under Section 4.6 shall be permitted with respect to
such award).
4.5 Subsequent Payment
Elections . Except as specifically provided in
Section 4.6, Payment Elections may not be revoked or modified
with respect to a Bonus to be earned during any Plan Year after
June 30th of such Plan Year (or such other date as the
Committee may have designated pursuant to the first parenthetical
in Section 4.4). A Payment Election will only be valid for the
Plan Year to which it applies, and Eligible Employees will need to
make a separate Payment Election for each Plan Year in accordance
with Section 4.4 above.
4.6 Change in Payment
Elections . A Payment Election with regard to an award of Stock
Units may be changed only if the following is satisfied:
(i) the subsequent Payment Election shall not take effect
until at least 12 months after the date on which the subsequent
Payment Election is made; (ii) the Elected Payment Date under
the
Last Amended and Restated as of May 14,
2008
6
subsequent Payment Election must be at least
five years after the Elected Payment Date of the current Payment
Election; and (iii) the subsequent Payment Election is made at
least 12 months prior to the Elected Payment Date of the current
Payment Election.
4.7 Deferral Election and Payment
Election Forms . An Eligible Employee’s Deferral
Elections and Payment Elections shall be made in a form and manner
prescribed by the Committee.
5. Deferred Compensation
Accounts
5.1 Accounts . The Company
shall maintain a separate Account for the Deferrable Bonuses
deferred by each Eligible Employee.
5.2 Grant of Stock Units .
For each Plan Year with respect to which an Eligible Employee has a
valid Deferral Election in force, provided that
sufficient shares are then available for award under the Plan and
subject to the determinations and adjustments provided in
Section 5.3, the Eligible Employee’s Account shall be
credited, on the Grant Date with respect to the applicable Bonus
Payment Date, with a number of Stock Units equal to the quotient,
rounded down to the nearest whole share, obtained by dividing
(a) the amount of the Deferrable Bonus for such Plan Year that
the Eligible Employee has elected to defer, by (b) the Fair
Market Value of one share of Common Stock on the applicable Grant
Date. Notwithstanding the foregoing, no Stock Units will be
credited to the Eligible Employee’s Account unless the
Eligible Employee is employed with the Employer on the Grant Date.
The crediting of Stock Units to the Eligible Employee’s
Account shall not entitle the Eligible Employee to voting or other
rights as a stockholder until shares of Common Stock are issued
upon distribution of the Eligible Employee’s Account, but
shall entitle the Eligible Employee to receive dividend equivalents
under Section 5.4.
5.3 Cash Credit in lieu of Stock
Units . In the event that the Committee determines, in its sole
discretion, that there are insufficient shares of Common Stock
available for award under the Plan as of a Bonus Payment Date or
applicable Grant Date to make awards of Stock Units in accordance
with Section 5.2 of the Plan to all Eligible Employees who
have valid Deferral Elections in force, the Commi
