Exhibit 10.88
EXECUTION
VERSION
AMENDMENT NO. 1 TO EMPLOYMENT
AGREEMENT
THIS AMENDMENT NO. 1 TO EMPLOYMENT
AGREEMENT (this “ Amendment ”) is made
and entered into as of December 31, 2008, by and between FTI
Consulting, Inc., a Maryland corporation (“
Company ”), and Dominic DiNapoli (“
Executive ”).
W I T N E S
S E T H :
WHEREAS, Company and Executive
entered into an Employment Agreement dated November 1, 2005
(the “ Agreement ”); and
WHEREAS, Company and Executive
desire to further amend certain terms and conditions of the
Agreement as set fort herein.
NOW, THEREFORE, in consideration of
the mutual covenants set forth in this Amendment, Company and
Executive hereby agree as follows:
1. Sections 10(b)(iv) and 10(b)(v)
of the Agreement are hereby deleted in their entireties and
replaced with new Sections 10(b)(iv) and (v) to read as set
forth below.
“(iv) an additional amount
equal to $800,000, payable in a lump-sum within ten days following
the date of termination;
(v) intentionally
omitted;”
2. [RESERVED]
3. Section 10(e)(iii) of the
Agreement is hereby amended and restated to read as
follows:
“(iii) a pro rated incentive
bonus for the calendar year of termination based on the actual
results achieved by the Company as certified by the Compensation
Committee (without regard to any reduction that may apply due to
any subjective performance goal) determined by multiplying the
amount of such bonus which would be due for the full calendar year
by a fraction, the numerator of which is the number of days during
the calendar year of termination that Executive is employed by the
Company and the denominator of which is 365, which amount shall be
paid in a lump sum at the same time as such bonus would otherwise
have been paid for such year; and”
4. The second sentence of
Section 11(b) of the Agreement is hereby amended and restated
to read as follows:
“Any Gross-Up Payment, as
determined pursuant to this Section 11, shall be paid by
Company to Executive within five days of receipt of the Accounting
Firm’s determination, but in no event later than the end of
the taxable year following the taxable year in which the related
taxes are remitted by Executive.”
5. Section 409A
Compliance . Section 17 of the Agreement is hereby deleted
in its entirety and in its place a new Section 17 is added to
the Agreement to read in full as follows:
“17. Section 409A
Compliance .
(a) General . The intent of
the parties is that payments and benefits under this Agreement
comply with Internal Revenue Code Section 409A and the
regulations and guidance promulgated thereunder (collectively
“Code Section 409A”) and, accordingly, to the
maximum extent permitted, this Agreement shall be interpreted to be
in compliance therewith. If Executive notifies the Company (with
specificity as to the reason therefor) that Executive believes that
any provision of this Agreement (or of any award of compensation or
benefits) would cause Executive to incur any additional tax or
interest under Code Section 409A and the Company concurs with
such belief or the Company (without any obligation whatsoever to do
so) independently makes such determination, the Company shall, with
the consent of Executive, reform such provision to attempt to
comply with Code Section 409A through good faith modifications
to the minimum extent reasonably appropriate to conform with Code
Section 409A. To the extent that any provision hereof is
modified in order to comply with Code Section 409A, such
modification shall be made in good faith and shall, to the maximum
extent reasonably possible, maintain the
