Exhibit 10.89
EMPLOYMENT
AGREEMENT
EMPLOYMENT AGREEMENT (“
Agreement ”) made as of the date the parties have
signed this Agreement below, by and between FD U.S. Communications
Inc., a New York Corporation (“ FD US ”), FTI
Consulting, Inc., a Maryland corporation (“ FTI
Consulting ”), and the individual named on Schedule
1 (“ Employee ”). FD US, FTI Consulting, and
all of their respective subsidiaries, affiliates and entities, are
hereinafter referred to collectively as the “ Company
.”
1. Employment Agreement . FD
US will employ Employee and Employee accepts such employment upon
the terms and conditions set forth in this Agreement.
2. Term of Employment .
Employee’s employment under this Agreement will be for a term
of five (5) years from the Effective Date (the “
Initial Term ”), and the term of this Agreement will
automatically extend for an additional year from year to year (with
each year being an “ Extended Term ”), unless
either party provides written notice of non-renewal to the other
party at least ninety (90) days prior to the date of the
expiration of the Initial Term or any Extended Term of this
Agreement, or unless this Agreement is otherwise terminated
pursuant to the provisions of Section 9 of this Agreement. The
effective date of this Agreement is the date of execution of this
Agreement (“ Effective Date ”).
3. Position and Duties .
Employee will be employed as President and CEO of Financial
Dynamics-USA with such duties and responsibilities that are
consistent with that position as may from time to time be assigned
to Employee by the CEO of FTI Consulting in consultation with the
CEO of Financial Dynamics International (Holdings) Ltd., and will
have such authority as may be reasonably necessary for Employee to
carry out his or her duties and responsibilities. Moreover Employee
shall be a member of the Board of Directors of an appropriate
Financial Dynamics International Holdings Ltd., governing company
and a member of FTI Consulting’s Executive Management
Committee. Employee will undertake such travel within or without
the United States necessary to the performance of Employee’s
duties and responsibilities.
Employee will work full-time and
devote all of Employee’s business time, attention, and
energies to, on behalf of, and for the benefit of the Company.
Employee will not, without the written consent of the Company:
(i) render service to others not affiliated with the Company
for compensation, or (ii) serve on any board or governing body
of another for profit entity not affiliated with the Company.
Employee will not engage in any activity which conflicts or
materially interferes with the performance of Employee’s
duties and responsibilities hereunder. Employee may engage in
personal, charitable, and professional activities, (i) subject
to compliance with the Company’s normal conflicts procedures,
and (ii) provided such activities do not conflict or
materially interfere with the ability of Employee to perform the
duties and responsibilities hereunder. If an outside activity
subsequently creates a conflict with the Company’s business
or prospective business, Employee agrees to cease engaging in such
activity at such time.
Employee will observe and adhere to
all applicable written Company policies and procedures adopted from
time to time, including, without limitation, the Company’s
Policy on Ethics and Business Conduct, Policy on Conflicts of
Interest, Acceptable Use Policy and Policy on Inside Information
and Insider Trading, such as they now exist or hereafter are
supplemented, amended, modified or restated.
4. Salary and Compensation
.
(a) Salary . Employee’s
annual rate of salary (“ Salary ”) is set forth
on Schedule 1 . The Company agrees to annually evaluate
Employee’s performance and Salary. The Company, in its sole
discretion, may increase or decrease Employee’s Salary at any
time, provided that the Company shall on an annual basis evaluate
in good faith whether Employee should be awarded a salary increase,
taking into account, among other factors, whether other similarly
situated Company executives have been awarded salary increases, and
further provided that Employee’s Salary may not be decreased
to less than the Salary listed on Schedule 1 .
Employee’s Salary will be paid in accordance with the
Company’s customary payroll practices (including, but not
limited, to practices regarding timing and withholding).
(b) Bonus Plan(s) . Employee
shall be entitled to receive annual bonuses in amounts reasonably
determined by the office of Chief Executive of Financial Dynamics
International (Holdings) Ltd. and approved by the Board of
Directors of Financial Dynamics International (Holdings) Ltd. or a
compensation committee constituted by such Board.
(c) Equity Awards . On or as
soon as practicable after the Effective Date, Employee shall
receive the equity awards listed on Schedule 1. Employee shall be
eligible for such additional equity awards as the Company may from
time to time determine in accordance with the policies, practices
and programs it adopts from time to time with respect to the
issuance of equity awards to senior executives of the
Company.
5. Employee Benefit Programs and
Perquisites .
(a) General . Employee will
be eligible to participate in such qualified and nonqualified
employee pension plans, group health, long term disability and
group life insurance plans generally maintained or provided by the
Company from time to time to or for the benefit of its employees
generally (“ Benefit Plans ”), at a level
commensurate with Employee’s position and Company policy
regarding other similarly situated Company employees, provided that
Employee meets the prerequisites and eligibility factors
established by the Company for participation in the Benefit Plans.
Employee will also be eligible to participate in any other welfare
and fringe benefit plans, arrangements, programs and perquisites,
including equity-based incentive compensation plans or deferred
compensation plans (“ Fringe Benefit Plans ”),
provided that Employee meets the prerequisites and eligibility
factors established by the Company for participation in the Fringe
Benefit Plans. The Company in its discretion may from time to time
adopt, modify, interpret, or discontinue such plans or
policies.
(b) Paid Time Off . Employee
will be eligible to take (i) the number of weeks of paid time
off (“ PTO ”) set forth on Schedule 1 for
each calendar year (pro-rated for partial calendar years) subject
to the Company’s policies on use and retention of such PTO in
effect from time to time, plus (ii) any paid Company
holidays.
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(c) Reimbursement of Business
Expenses . Employee is authorized to incur reasonable expenses
in carrying out Employee’s duties and responsibilities under
this Agreement, and the Company will promptly pay or reimburse
Employee for all such expenses that are so incurred upon
presentation of appropriate vouchers or receipts, subject to the
Company’s expense reimbursement policies in effect from time
to time with respect to employees of the Company.
(d) Car Allowance . The
Company shall provide Employee with benefits and payments
sufficient to cover his costs in full for his use of a company car,
including but not limited to lease payments, parking, insurance,
and all other incidental costs and fees, as applicable on an annual
basis for the duration of Employee’s employment.
6. No Other Employment
Restrictions . Employee represents to the Company that Employee
is not subject to any agreement, commitment, or policy of any third
party that would prevent Employee from entering into or performing
or continuing to perform the duties of Employee’s employment
under this Agreement. Employee will not enter into any agreement or
commitment or agree to any policy that would prevent or hinder the
performance of Employee’s duties or obligations under this
Agreement. Employee will not use in working for the Company and
will not disclose to the Company any trade secrets or other
information Employee does not have the right to use or disclose and
that the Company is not free to use without liability of any
kind.
7. No Payments to Governmental
Officials . Employee will not knowingly pay or authorize
payment of any remuneration to or on behalf of any governmental
official which would constitute a violation of applicable law. The
Company will neither request nor require Employee to offer to make
or make a payment of any remuneration to or on behalf of any
governmental official other than those required or expressly
permitted by applicable law.
8. Professional Licenses . If
Employee’s duties or responsibilities hereunder require
Employee to maintain licenses, certifications or memberships,
either now or at any time in the future, in order to perform
Employee’s duties or responsibilities hereunder, or to remain
in compliance with the law or the Company’s policies and
procedures related to professional licensure, Employee will procure
and maintain all such licenses, certifications or memberships, the
costs of which, if incurred by Employee, will be reimbursed by the
Company. If applicable, such licenses, certification or memberships
encompassed by this Section 8 are listed in Schedule 1
.
9. Termination of Employment
.
(a) Resignation . Employee
may resign his or her employment under this Agreement at any time
upon at least 45 days prior written notice to the Company. The
Company, at its sole discretion, may relieve Employee of his or her
active duties during this 45 day notice period and may require
Employee to use any accrued and unused paid time off,
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including vacation, during the notice period.
The Company and the Employee may also mutually agree to waive such
notice, and/or set an earlier termination date upon receipt of such
notice, in which event Employee’s employment will terminate
on the earlier termination date, and no pay in lieu of notice will
be due.
(b) Termination by the Company
for Cause . The Company may terminate Employee’s
employment for “Cause” if Employee:
(i) is convicted of or pleads nolo
contendre to a felony;
(ii) commits fraud or a material act
or omission involving dishonesty with respect to a matter of
material importance to the Company or any of its respective
employees, customers or affiliates, as reasonably determined by the
Company;
(iii) willfully fails or refuses to
carry out the material responsibilities of Employee’s
employment by the Company, as reasonably determined by the
Company;
(iv) engages in gross negligence or
willful misconduct in connection with the performance of his duties
hereunder which causes material injury to the Company, as
reasonably determined by the Company;
(v) willfully engages in any act or
omission which is in material violation of the FTI Consulting, Inc.
Policy on Ethics and Business Conduct, Policy on Conflicts of
Interest, Acceptable Use Policy or Policy on Inside Information and
Insider Trading, such as they now exist or hereafter are
supplemented, amended, modified or restated, including but not
limited to engaging in insider transactions, disclosing a proposed
or pending business transaction, receiving preferential treatment
or gifts, failing to disclose conflicts of interest, disseminating
inside information, and/or taking advantage of corporate
opportunities for personal benefit; or
(vi) commits a material breach of
Employee’s material obligations under this Agreement,
including but not limited to Sections 7 or 8 above, as reasonably
determined by the Company.
The Company may terminate
Employee’s employment under this Agreement for Cause (as
defined in subparagraphs (i) through (vi) above) at any
time, provided, however, that if the act or omission giving rise to
the termination for Cause is curable by Employee, the Company will
provide 30 days written notice to Employee of its intent to
terminate Employee for Cause, with an explanation of the reason(s)
for the termination for Cause, and if Employee cures the act or
omission within the 30 day notice period, the Company will rescind
the notice of termination and Employee’s employment will not
be terminated for Cause at the end of the 30 day notice period.
Notwithstanding the foregoing, if Employee has previously been
afforded the opportunity to cure and successfully cured under this
provision, the Company will have no obligation to provide Employee
with notice and an opportunity to cure prior to a termination for
Cause. Unless Employee receives 30 days notice and an opportunity
to cure under this Section, Employee’s termination for Cause
will be effective immediately upon the Company mailing or
transmitting written notice of such termination to
Employee.
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(c) Termination by the Company
Without Cause . The Company may terminate Employee’s
employment under this Agreement without Cause at any time upon 45
days prior written notice to Employee. The Company, at its sole
discretion, may relieve Employee of his or her active duties and
require Employee to use any accrued and unused paid time off,
including vacation, during the notice period. The Company may also
provide 45 days pay in lieu of notice. Employee’s termination
without Cause will be effective on the date of termination
specified by the Company.
(d) Termination Due to
Disability . If Employee becomes “Disabled” (as
defined below), the Company may terminate Employee’s
employment. For the purposes hereof, Employee and the Company agree
that Employee will be considered “Disabled” if Employee
is unable to substantially perform the customary duties and
responsibilities of Employee’s employment for 180 consecutive
calendar days or 180 or more calendar days during any 365 calendar
day period by reason of a physical or mental incapacity. Employee
agrees that if Employee becomes “Disabled” under the
definition of this Section 9(d), Employee will be unable to
perform the essential functions of Employee’s position and
that there would be no reasonable accommodation which would not
constitute an undue hardship to the Company. Therefore, as Employee
would not be qualified for Employee’s position, the Company
would have the right to terminate Employee’s employment under
this Section 9(d). Employee’s termination due to
Disability will be effective immediately upon the Company mailing
or transmitting written notice of such termination to
Employee.
(e) Termination Due to Death
. If Employee dies during the term of this Agreement, this
Agreement will terminate on the date of Employee’s
death.
(f) Termination Due to
Non-Renewal by Employee or the Company . Either Employee or the
Company may terminate this Agreement by providing written notice of
intent not to renew this Agreement, as described in Section 2
of this Agreement. Employee’s termination due to non-renewal
will be effective at the end of the applicable initial or extended
term.
(g) Termination by Employee for
Good Reason . Employee may terminate employment for “Good
Reason” if, without Employee’s prior consent, the
Company: (1) reduces Employee’s Salary below that listed
on Schedule 1 ; (2) reduces Employee’s
compensation or compensation opportunities contrary to
Section 4 of this Agreement and/or reduces Employee’s
benefits or benefits opportunities contrary to section 5(b), (c),
or (d) of this Agreement; (3) materially breaches the
first paragraph of Section 3 of this Agreement;
(4) assigns the Employee material duties or responsibilities
that are materially and substantially inconsistent with, or a
diminution of, Employee’s duties and responsibilities as of
the Effective Date; or (5) relocates Employee’s office
and/or his primary place of employment to a location outside of New
York City’s Borough of Manhattan. Before terminating
employment for Good Reason, Employee must specify in writing to the
Company the nature of the act or omission that Employee deems to
constitute Good Reason and provide Company 30 days after receipt of
such notice to correct the situation (and thus prevent
Employee’s termination for Good Reason), but only if the
circumstance justifying the termination for “Good
Reason” is curable by Employer.
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10. Payments in the Event of
Termination of Employment .
(a) Termination of Employment by
Resignation, Notice of Non-Renewal of the Agreement by Employee,
Disability or Death . In the event of termination of
Employee’s employment with the Company due to resignation by
Employee pursuant to Section 9(a), due to notice of
non-renewal of the Agreement by Employee pursuant to Sections 2 and
9(f), or due to death or Disability, the Company will pay to
Employee: (i) the unpaid amount, if any, of Employee’s
Salary plus the value of Employee’s contractual benefits
through the date of termination (provided that Employee shall have
no right to any bonus which would be paid to Employee on a date
subsequent to the date of termination), (ii) the amount of any
substantiated but previously unreimbursed business expenses
incurred prior to the date of termination, and (iii)
any additional payments or benefits, regardless of when such
payments or benefits accrue, which Employee is eligible to receive
under the terms of any Benefit Plan or any Fringe Benefit Plan
(collectively, “ Accrued Compensation
”).
Employee will be eligible to
exercise his or her rights to COBRA coverage for Employee, and,
where applicable, Employee’s spouse and eligible dependents,
at Employee’s expense, upon termination of Employee’s
employment.
(b) Termination of Employment by
the Company for Cause . In the event of termination of
Employee’s employment with the Company due to the
Company’s termination of Employee for Cause pursuant to
Section 9(b), the Company will pay to Employee the Accrued
Compensation (as defined in Section 10(a)).
(c) Termination of Employment by
the Company Without Cause, Termination of Employment by Notice of
Non-Renewal of the Agreement by the Company, or Termination of
Employment by Employee for Good Reason . In the event of
termination of Employee’s employment with the Company due to
the Company’s termination of Employee without Cause pursuant
to Section 9(c) during an Extended Term, due to notice of
non-renewal of the Agreement by the Company pursuant to Sections 2
and 9(f), or due to termination by Employee for Good Reason
pursuant to Section 9(g) during an Extended Term, the Company
will pay Employee (i) severance in the form of continued
payments equal to his Salary plus the value of his contractual
benefits for a period of one year; and (ii) should Employee
elect COBRA, all COBRA premiums on Employee’s behalf for
Employee and Employee’s dependants for a period of one year,
provided (i) Employee and the Company execute mutual releases
satisfactory in form and substance to the Company and the Employee,
and (ii) Employee observes the requirements of
Sections 12 through 17 of this Agreement. In the event of
termination of Employee’s employment with the Company due to
the Company’s termination of Employee without Cause pursuant
to Section 9(c) during the first two years of the Initial
Term, or due to termination by Employee for Good Reason pursuant to
Section 9(g) during the first two years of the Initial Term,
the Company shall pay Employee severance in the form of continued
payments equal to his salary plus the value of all his contractual
benefits for a period of three years plus the Company shall pay
Employee the COBRA premiums which he would have received under
this
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paragraph, subject to the conditions specified
under this paragraph, had he been terminated without Cause during
an Extended Term pursuant to Section 9(c). In the event of
termination of Employee’s employment with the Company due to
the Company’s termination of Employee without Cause pursuant
to Section 9(c) during the last three years of the Initial
Term, or due to termination by Employee for Good Reason pursuant to
Section 9(g) during the last three years of the Initial Term,
the Company shall pay Employee severance in the form of continued
payments equal to his salary plus the value of all his contractual
benefits for the period which he would have received such salary
and benefits had he remained employed throughout the remainder of
the Initial Term, provided that at a minimum Employee shall receive
such payments for a period of one year, plus the Company shall pay
Employee the COBRA premiums which he would have received under this
paragraph, subject to the conditions specified under this
paragraph, had he been terminated without Cause during an Extended
Term pursuant to Section 9(c).
Employee will be eligible to
exercise his or her rights to COBRA coverage for Employee and,
where applicable, Employee’s spouse and eligible dependents
upon termination of Employee’s employment.
11. Restrictive Covenants
.
(a) Sufficiency of
Consideration . Employee acknowledges that the consideration
that Employee will receive pursuant to this Agreement serves as
sufficient consideration for Employee’s promises to abide by
the restrictive covenants set forth in sections 12 through 17 of
this Agreement.
(b) Survival Post-Termination
. The rights and obligations set forth in Sections 12 through 17 of
this Agreement will survive termination of this Agreement and of
Employee’s employment with the Company.
12. Non-Competition Covenants
.
Employee acknowledges that during
the Restricted Period (defined below), Employee will not, directly
or indirectly, be employed by (where Employee’s employment
would involve any level of strategic, advisory, technical,
creative, sales, or other similar input), lend money to, invest in,
or engage in a Competing Business (defined below) in any Market
Area (defined below). That prohibition includes, but is not limited
to, acting, either singly or jointly or as agent for, or as an
employee of or consultant or independent contractor to, any one or
more persons, firms, entities, or corporations directly or
indirectly (as a director, independent contractor, representative,
consultant, member, or otherwi
