Exhibit 10.91
FD U.S. COMMUNICATIONS,
INC.
FTI CONSULTING,
INC.
Second Amendment to Employment
Agreement
Declan
Kelly
D ATED :
D ECEMBER 16, 2008
WHEREAS, FD U.S. Communications, Inc., a New York
corporation, and FTI Consulting, Inc., a Maryland corporation
(collectively referred to herein as the “ Company
”), and Declan Kelly (the “ Employee ”),
entered into an employment agreement on October 3, 2006, which
was subsequently amended on August 1, 2008 (collectively, the
employment agreement and the amendment thereto are referred to
herein as the “ Agreement ”); and
WHEREAS, the Company and Employee now wish to amend the
Agreement to comply with the requirements of Section 409A of
the Internal Revenue Code of 1986, as amended, and the treasury
regulations and other official guidance promulgated thereunder in
accordance with the provisions of Section 22 of the
Agreement.
NOW, THEREFORE
, in consideration of the foregoing,
of the mutual promises contained herein and of other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree to amend the
Agreement as set forth herein.
FIRST : The Agreement is hereby amended by deleting
Section 30 of the Agreement in its entirety and substituting
in its place a new Section 30 to read in full as
follows:
“30. Section 409
Compliance .
“(a) It is intended that any
income to Employee provided pursuant to this Agreement or other
agreements or arrangements contemplated by this Agreement will not
be subject to interest and additional tax under Section 409A
of the Internal Revenue Code of 1986, as amended (“ Code
Section 409A ”). The provisions of this Agreement
and such other agreements or arrangements will be interpreted and
construed in favor of its meeting any applicable requirements of
Code Section 409A. The Company, in its reasonable discretion,
may amend (including retroactively) this Agreement and any such
other agreements or arrangements in order to conform with Code
Section 409A, including amending to facilitate the ability of
Employee to avoid the imposition of interest and additional tax
under Code Section 409A. The preceding provisions shall not be
construed as a guarantee by the Company of any particular tax
effect for any income to Employee provided pursuant to this
Agreement or other agreements or arrangements contemplated by this
Agreement. In any event, the Company will have no responsibility
for the payment of any applicable taxes on income to Employee
provided pursuant to this Agreement or other agreements or
arrangements contemplated by this Agreement.
(b) A termination of employment
shall not be deemed to have occurred for purposes of any provision
of this Agreement providing for the payment of any amounts or
benefits upon or following a termination of employment unless such
termination is also a “separation from service” within
the meaning of Code Section 409A and, for purposes of any such
provision of this Agreement, references to a
“termination,” “termination of employment”
or like terms shall mean “separation from service.” If
Employee is deemed on the date of termination to be a
“specified employee” within the meaning of that term
under Code Section 409A(a)(2)(B), then with regard to any
payment or the provision of any benefit that is considered
“nonqualified deferred compensation” under Code
Section 409A payable on account of a “separation from
service,” such payment or benefit shall be made or provided
at the date which is the earlier of (i) the expiration of the
six (6)-month period measured from the date of such
“separation from service” of Employee, and
(ii) the date of Employee’s death (the “ Delay
Period ”). Upon the expiration of the Delay Period, all
payments and benefits delayed pursuant to this Section (whether
they would have otherwise been payable in a single sum or in
installments in the absence of such delay) shall be paid or
reimbursed to Employee in a lump sum, and any remaining payments
and benefits due under this Agreement shall be paid or provided in
accordance with the normal payment dates specif
