EXHIBIT 10.5
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as of
November 5, 2002 (the "Effective Date"), by and between FTI Consulting, Inc., a
Maryland corporation with its principal offices in Annapolis, Maryland
("Company"), and Xxxxxxx X. Xxxx ("Executive").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Executive is a member of the Board of Directors and President
and Chief Operating Officer of Company; and
WHEREAS, Company desires to insure the continued availability to
Company of Executive's services, and Executive is willing to render such
services, all upon and subject to the terms and conditions contained in this
Agreement;
NOW, THEREFORE, in consideration of the mutual covenants set forth in
this Agreement, Company and Executive agree as follows:
1. Employment. Company employs Executive and Executive accepts
such employment upon the terms and conditions set forth in this Agreement.
2. Term of Employment.
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(a) Employment Term. Executive's full-time employment
under this Agreement will begin as of the Effective Date and, unless otherwise
terminated as provided in SECTION 9, will continue for an initial term (the
"Initial Term") of three years through the day before the third anniversary of
the Effective Date in 2005. Effective at the close of business on the day before
the first anniversary of the Effective Date in 2003, the term of Executive's
employment under this Agreement, if not otherwise terminated as provided in
SECTION 9, will be extended for an additional one-year period unless either
party has, before the close of business on the day on which the additional
one-year extension would otherwise become effective, given notice to the other
of his or its intention not to further extend the term. The Initial Term,
together with the additional one-year extension that becomes effective pursuant
to the preceding sentence, is referred to in this Agreement as the "Employment
Term." The period remaining from time to time in the Employment Term will
fluctuate from three years (as of, for example, the Effective Date or, absent
notice, the first anniversary thereof) to two years (as of, for example, the day
before the first anniversary of the Effective Date in 2003, the day on which,
absent notice before the close of business on that day, the Employment Term will
be extended for an additional year) or less once no additional extensions are
applicable.
(b) Transition Period. Upon expiration of the Employment
Term or its earlier termination pursuant to SECTION 9 other than as a result of
Executive's death or Disability (as defined in SECTION 9(D)) or termination of
Executive's employment by the Company for Cause (as defined in SECTION 9(B)),
Executive shall continue to provide services to Company as described in SECTION
3(B), but in the capacity of a part-time employee, for a period of three years
(the "Transition Period").
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(c) Contract Term. The Employment Term, together with the
Transition Period, is referred to in this Agreement as the "Contract Term."
3. Position and Duties.
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(a) During the Employment Term. During the Employment
Term, Executive will (i) be employed to serve as, and have the title of,
President and Chief Operating Officer, with overall charge and responsibility
for Company's operations and to perform such duties consistent with such
positions as Executive shall reasonably be directed to perform by the Chief
Executive Officer or the Board of Directors of Company commensurate with
Executive's positions or as may be specified in Company's By-Laws, if
applicable, (ii) have such authority as may be reasonably necessary or
appropriate in order to enable Executive to carry out the duties and
responsibilities of Executive's employment under this Agreement, (iii) have
Executive's principal office located at Company's offices in New York, New York,
and (iv) be entitled to office services and support commensurate with
Executive's position, duties and responsibilities. During the Employment Term,
Executive will devote substantially all of Executive's business time, attention,
and energies to the performance of Executive's duties and responsibilities under
this Agreement, provided that Executive may engage in personal, charitable,
professional and investment activities to the extent such activities do not
conflict or materially interfere with the ability of Executive to perform said
duties and responsibilities; provided, further, that service on the board of
directors or other governing body of another for-profit business entity is
subject to the consent of the Chief Executive Officer.
(b) During the Transition Period. During the Transition
Period, Executive will (i) be employed by Company as a part-time employee
providing, at the request and direction of the Chief Executive Officer or the
Board of Directors of Company, not more than 500 hours of service per 12-month
period at the Company's offices in New York, New York, such services to be
commensurate with the general nature of services performed by Executive or other
executive-level employees of Company during the Employment Term or of a nature
that the Chief Executive Officer or the Board of Directors of Company determines
is necessary or desirable to transition Executive's position to his successor,
and (ii) have such title, or no title, as shall be determined by the Chief
Executive Officer or the Board of Directors of Company in his or its discretion.
(c) Service on Board of Directors. Executive shall serve
on Company's Board of Directors during the Employment Term, and whenever during
the Employment Term, Executive's term on Company's Board of Directors is due to
expire, Company shall include Executive as a nominee for reelection in Company's
Proxy Statement for the annual meeting of stockholders for the year in which
such expiration is to occur.
4. Annual Salary and Transition Payment.
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(a) During the Employment Term. During the Employment
Term, Company will pay or cause to be paid to Executive an annual base salary
("Base Salary") equal to $900,000 for each year of the Employment Term, payable
in cash on a periodic basis in accordance with Company's normal payroll
practices applicable to its executive officers, but not less often than monthly.
Executive's Base Salary will be subject to annual review by the Compensation
Committee of the Board of Directors of Company (the "Committee") and may be
adjusted upwards (but not downwards) in such amounts as the Committee may
determine in its sole discretion. The term "Base Salary" as used in this
Agreement refers to the Base Salary as so increased.
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(b) During the Transition Period. During the Transition
Period, in lieu of payment of a Base Salary, Company will pay or cause to be
paid to Executive in cash, in periodic installments not less frequently than
monthly, an amount equal to $500,000 (the "Transition Payment") for each year of
the Transition Period; provided, however, that Company's obligation to pay such
Transition Payment during the Transition Period shall terminate immediately upon
any breach by Executive of his duties under SECTION 3(B) or of the restrictive
covenant provisions of SECTION 12. Notwithstanding such cessation of payment
upon a breach of the restrictive covenant provisions of SECTION 12, Company
shall retain the right to fully enforce the restrictive covenant provisions. In
the event that a Change of Control occurs after the Transition Period has
commenced, the aggregate amount of the unpaid Transition Payment payable for the
period measured from the date of the Change of Control through the end of the
Transition Period will be paid to Executive by Company in a single sum payment
on the date that the Change of Control occurs, but Executive's obligations under
SECTION 3(B) shall remain intact and Company shall retain the right to fully
enforce the restrictive covenant provisions of SECTION 12. In the event that the
Transition Period commences on or after a Change of Control (as defined in
SECTION 10(C)) as a result of a termination of employment under the
circumstances described in SECTION 10(C), Executive shall receive the amounts
and benefits set forth in SECTION 10(C) in lieu of the amounts set forth in this
SECTION 4(B), but Executive's obligations under SECTION 3(B) shall remain intact
and Company shall retain the right to fully enforce the restrictive covenant
provisions of SECTION 12.
5. Annual Incentive Bonus. With respect to each fiscal year
during the Employment Term, Executive will be entitled to participate in
Company's Incentive Compensation Plan (or any successor thereto) and any other
bonus plan(s) adopted by the Board of Directors or Committee for one or more of
the executive officers of Company and its subsidiaries, other than any such
bonus arrangement specific to another individual executive. Executive will be
eligible to receive a bonus each year in such amount, if any, as determined by
the Committee in accordance with the terms of Company's Incentive Compensation
Plan (or any successor thereto).
6. Employee Benefit Programs and Perquisites.
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(a) General. During the Employment Term and the
Transition Period, Executive will be entitled to participate in such qualified
and nonqualified employee pension plans, group health, long-term disability and
group life insurance plans, and any other welfare and fringe benefit plans,
arrangements, programs and perquisites generally maintained or provided by
Company from time to time to or for the benefit of its executive employees or
employees generally ("Benefit Plans"), at a level commensurate with Executive's
position. The preceding sentence does not, however, entitle Executive to
participate in any plans specific to other individual executives or employees.
Executive's participation in any Benefit Plans will be subject to the terms of
the applicable plan documents and Company's generally applied policies and
procedures. Company in its discretion may from time to time adopt, modify,
interpret, or discontinue such plans, policies and procedures in a manner
generally applicable to Company's executives or employees. During the Employment
Term and the Transition Period, Executive will be entitled to the payment by
Company of the cost of life, health and dental benefits and long-term disability
insurance for himself and, as applicable, his dependents, at the same percentage
level of Company contribution as in effect on the Effective Date and in
accordance with Company policies and procedures. During the Employment Term,
Executive will be entitled to at least six weeks of paid vacation for each
calendar year (pro-rated for partial calendar years), subject to Company's
policies and procedures on use and retention of such vacation in effect from
time to time, but with no payment for unused vacation. During the Employment
Term and the Transition Period, Executive will be entitled to lease and use, for
business or personal purposes, two automobiles of his choice at Company's
expense, one for use with respect to the performance of services and personal
purposes in and around his principal place of
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employment and one for such use in and around Annapolis, Maryland or such other
location at which Company maintains its principal executive office.
(b) Stock Options. In connection with this Agreement,
Company has granted Executive an option (the "Option") to purchase 90,000 shares
of Common Stock of Company under and subject to the terms of Company's 1997
Stock Option Plan. The Option vests in three equal installments, beginning on
the Effective Date and continuing on the first and second anniversaries of the
Effective Date, provided that Executive is employed with Company on each such
date, so that the Option will be fully vested on the second anniversary of the
Effective Date. The Option and all outstanding past and future stock options and
other equity-based awards granted to Executive will vest in full immediately
before the occurrence of a Change of Control (as defined in SECTION 10(C)) or
upon the termination of Executive's employment (i) by Company without Cause (as
defined in SECTION 9(B)), (ii) by Executive with Good Reason (as defined in
SECTION 9(E)), or (iii) due to Executive's death or Disability (as defined in
SECTION 9(D)). Vesting of the Option and other stock options and equity-based
awards will continue through the Transition Period.
(c) Reimbursement of Business Expenses. Executive is
authorized to incur reasonable expenses in carrying out his duties and
responsibilities under this Agreement, and Company will promptly pay or
reimburse Executive for all such expenses that are so incurred upon presentation
of appropriate vouchers or receipts, subject to Company's expense reimbursement
policies and procedures in effect from time to time with respect to executives
of Company.
7. No Other Employment. Executive represents to Company that he
is not subject to any agreement, commitment or policy of any third party that
would prevent him from entering into or performing the duties of his employment
under this Agreement. Executive will not enter into any agreement or commitment
or agree to any policy that would prevent or hinder the performance of his
duties or obligations under this Agreement.
8. No Payments to Governmental Officials. Executive 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.
Company will neither request nor require Executive 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.
9. Termination of Employment.
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(a) Resignation. Executive may voluntarily resign his
employment under this Agreement without Good Reason (as defined in SECTION 9(E))
at any time upon at least 60 days' prior written notice to Company. Company may
waive such notice or authorize a shorter notice period. Upon the effectiveness
of any such resignation, Executive's obligations under the Transition Period
shall commence pursuant to SECTION 3(B).
(b) Termination by Company for Cause. Company may
terminate Executive's employment for "Cause" if, and only if, Executive:
(i) commits a material breach of his obligations
or agreements under this Agreement;
(ii) commits an act of gross negligence or
otherwise acts with willful disregard for the best interests of Company and its
affiliates;
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(iii) fails or refuses to perform any duties
delegated to him that are consistent with the duties of similarly-situated
executives or are otherwise required under this Agreement;
(iv) is convicted of or pleads guilty or no
contest to a felony, or violates any federal or state securities or tax laws, or
with respect to his employment, commits either a material dishonest act or
common law fraud;
(v) seizes a corporate opportunity for himself
instead of offering such opportunity to Company or its affiliates;
(vi) is absent (and not traveling on business)
for a reason other than illness, vacation, or approved leave for more than 30
consecutive days; or
(vii) commits a material violation of a material
Company policy.
Executive's termination for Cause will be effective immediately upon Company's
mailing or transmitting written notice of such termination. Before terminating
Executive for Cause under clause (i), (ii) or (iii) above, Company will specify
in writing to Executive the nature of the act, omission, refusal, or failure
that it deems to constitute Cause and if the action is curable, give Executive
at least 30 days from receipt of such notice to correct the situation (and thus
avoid termination for Cause). Executive agrees that Company's Chief Executive
Officer or Board of Directors will have the discretion, exercising good faith
judgment, to determine whether Executive's correction is sufficient.
(c) Termination by Company Without Cause. Subject to the
provisions hereof, Company may terminate Executive's employment under this
Agreement before the end of the Employment Term, without Cause, upon 60 days'
prior written notice. Upon the effectiveness of any such termination without
Cause, Executive's obligations during the Transition Period shall commence
pursuant to SECTION 3(B). If, in accordance with SECTION 2, Company furnishes
Executive with a notice of non-renewal of the Employment Term, such action and
the subsequent expiration of the Employment Term will not be considered a
termination of Executive's employment without Cause.
(d) Termination Due to Disability. If Executive becomes
"Disabled" (as defined below), Company may terminate Executive's employment. For
purposes of this Agreement, Executive will be deemed to be "Disabled" or to have
a "Disability" if Executive is determined to be totally and permanently disabled
under Company's long-term disability insurance plan in which he participates or
if Executive is unable to substantially perform the customary duties and
responsibilities of Executive's employment for a period of at least 120 days
within an 180-day period by reason of a physical or mental incapacity.
(e) Termination by Executive for Good Reason. Executive
may resign for "Good Reason" if, without Executive's prior written consent,
Company:
(i) assigns Executive duties materially and
adversely inconsistent with Executive's positions as described in this
Agreement;
(ii) materially reduces Executive's target annual
bonus level for any year below the target for the preceding year, other than as
a result of a decline in Company's results of operations or other adverse event;
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(iii) materially breaches a material provision of
this Agreement; or
(iv) changes Executive's principal place of
employment to a place more than 50 miles from Executive's principal place of
employment on the Effective Date.
Before resigning for Good Reason, Executive must specify in writing to
Company the nature of the act or omission that Executive deems to constitute
Good Reason and, if the situation can be cured, give Company at least 30 days
after receipt of such notice to correct the situation (and thus prevent
Executive's resignation for Good Reason). Upon the effectiveness of any such
termination for Good Reason, Executive's obligations during the Transition
Period shall commence pursuant to SECTION 3(B).
(f) Death. If Executive dies during the Contract Term,
the Contract Term will end as of the date of Executive's death.
10. Payments on Termination of Employment.
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(a) Termination by Company for Cause or Executive's
Resignation Without Good Reason. If, during the Employment Term, Company
terminates Executive's employment for Cause or Executive resigns without Good
Reason, Company will promptly pay to Executive: (i) the unpaid amount, if any,
of Executive's Base Salary through the date of termination, (ii) the unpaid
amount, if any, of Executive's previously earned and unpaid incentive bonus,
(iii) the amount of any substantiated but previously unreimbursed business
expenses incurred through the date of termination, and (iv) any additional
vested benefits, if any, to which Executive is entitled under the terms of any
Company employee pension or welfare benefit plan in which Executive was a
participant (the amounts specified in clauses (i) through (iv), collectively,
"Accrued Compensation"). In addition, if Executive resigns without Good Reason,
Company will pay to Executive the Transition Payment provided for under, and
subject to the terms of, SECTION 4(B). Executive agrees that if he breaches the
restrictive covenants set forth in SECTION 12, Company may cease paying
Executive amounts otherwise payable under this SECTION 10(A) and will retain its
rights to enforce the restrictive covenants and to seek any other remedies
available at law.
(b) Termination by Company Without Cause or by Executive
for Good Reason. If, during the Employment Term, Company terminates Executive's
employment without Cause or Executive resigns for Good Reason, Executive will be
entitled to receive the following payments and benefits:
(i) any Accrued Compensation;
(ii) continued payment of Base Salary (without
giving effect to any reduction in Base Salary that constitutes Good Reason) for
the remainder of the Employment Term;
(iii) payment of the Transition Payment provided
for under, and subject to the terms of, SECTION 4(B);
(iv) a pro rated incentive bonus for the year of
termination, determined by multiplying (A) the target annual incentive bonus for
the year or, if no target annual incentive bonus was established for the year or
the target annual incentive bonus for the year was materially reduced so as to
constitute Good Reason, the highest incentive bonus earned within the preceding
three years, by (B) a fraction, the numerator of which is the number of days
from the beginning of the calendar
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year through the date of termination, and the denominator of which is 365, which
amount shall be paid in a lump sum within ten days of the date of termination;
(v) an additional incentive bonus equal to
one-half of the annual incentive bonus paid to Executive on account of the
immediately preceding fiscal year, payable at the time Company would otherwise
have paid to Executive the annual incentive bonus for the year of his
termination;
(vi) full and immediate vesting of the Option and
any outstanding stock options or other equity-based awards and, in the case of
the Option and such other stock options or equity-based awards, the continued
right to exercise the options (or other awards) for at least 12 months following
the date of termination, but in no event beyond the expiration of the stated
term of such option (or other award); and
(vii) continuing group health and group life
insurance coverage for Executive and, where applicable, Executive's spouse and
eligible dependents, at the same benefit levels in effect from time to time with
respect to active senior executives of Company ("Benefit Continuation
Coverage"), for the lifetimes of Executive and his spouse and, in the case of
Executive's eligible dependents, until such dependent's attainment of the
maximum age up to which the Company's plan, as then in effect, covers dependents
of Company employees; provided that the cost of such coverage during the
Transition Period shall be split between Company and Executive in the same ratio
as the cost-sharing in effect under the Company's policies and procedures for
Company executives at that time, and the cost of such coverage after the
expiration of the Transition Period shall be borne 100% by Executive. If and to
the extent such Benefit Continuation Coverage is not permitted by the applicable
plan or by applicable law, Executive will instead be entitled to cash payments
sufficient to reimburse Executive and/or Executive's spouse and eligible
dependents, on an after-tax basis, for a proportionate amount of the reasonable
cost of comparable individual or other replacement coverage through the end of
the Transition Period.
Executive agrees that if he breaches the restrictive covenants set forth in
SECTION 12, Company may cease paying Executive amounts otherwise payable under
this SECTION 10(B) and will retain its rights to enforce the restrictive
covenants and to seek any other remedies available at law.
(c) On or After a Change of Control -- Termination by
Company Without Cause or by Executive for Good Reason. Executive will be
entitled to receive the payments and benefits set forth in this SECTION 10(C),
in lieu of the payments and benefits set forth in SECTION 10(B), if Executive's
employment is terminated during the Employment Term (1) by Executive for any or
no reason coincident with or during the 12-month period after a Change of
Control occurs, (2) by Executive for Good Reason coincident with or during the
24-month period after a Change of Control occurs, or (3) by Company without
Cause coincident with or during the 24-month period after a Change of Control
occurs:
(i) any Accrued Compensation;
(ii) a pro rated incentive bonus for the year of
termination, determined by multiplying (A) the target annual incentive bonus for
the year or, if no target annual incentive bonus was established for the year or
the target annual incentive bonus for the year was materially reduced so as to
constitute Good Reason, the highest incentive bonus earned within the preceding
three years, by (B) a fraction, the numerator of which is the number of days
from the beginning of the calendar
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year through the date of termination, and the denominator of which is 365, which
amount shall be paid in a lump sum within ten days of the date of termination;
(iii) a severance payment equal to 3 times the sum
of (A) Executive's annualized Base Salary as in effect immediately before
Executive's termination of employment (without giving effect to any reduction in
Base Salary that gave rise to Good Reason), plus (B) the greater of the target
annual incentive bonus for the year in which termination occurs or the highest
annual incentive bonus earned within the immediately prior 3 years, plus (C) the
aggregate amount of any other bonuses, including special bonuses, earned by
Executive within the immediately prior year, which severance payment shall be
paid in a lump sum within ten days of the date of termination;
(iv) full and immediate vesting of the Option and
any outstanding stock options or other equity-based awards and, in the case of
the Option and such other stock options or equity-based awards, the continued
right to exercise the options (or other awards) for at least 12 months following
the date of termination, but in no event beyond the expiration of the stated
term of such option (or other award); and
(v) Benefit Continuation Coverage for the
lifetimes of Executive and his spouse and, in the case of Executive's eligible
dependents, until such dependent's attainment of the maximum age up to which the
Company's plan, as then in effect, covers dependents of Company employees;
provided that the cost of such coverage during the Transition Period shall be
split between Company and Executive in the same ratio as the cost-sharing in
effect under the Company's policies and procedures for Company executives at
that time, and the cost of such coverage after the expiration of the Transition
Period shall be borne 100% by Executive. If and to the extent such Benefit
Continuation Coverage is not permitted by the applicable plan or by applicable
law, Executive will instead be entitled to cash payments sufficient to reimburse
Executive and/or Executive's spouse and eligible dependents, on an after-tax
basis, for a proportionate amount of the reasonable cost of comparable
individual or other replacement coverage through the end of the Transition
Period.
Executive agrees that if he breaches the restrictive covenants set forth in
SECTION 12, Company may cease paying Executive amounts otherwise payable under
this SECTION 10(C) and will retain its rights to enforce the restrictive
covenants and to seek any other remedies available at law.
For purposes of this SECTION 10(C), "Change of Control" means: (i) the
acquisition, in one or more transactions, by any Person of the beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Securities
Exchange Act of 1934, as amended) of 50% or more of (A) all shares of capital
stock of the Company to be outstanding immediately following such acquisition,
or (B) the combined voting power of all shares of capital stock of the Company
to be outstanding immediately following such acquisition that are entitled to
vote generally in the election of directors (the shares described in clauses (A)
and (B), collectively "Company Voting Stock"); (ii) the closing of a sale or
other conveyance of all or substantially all of the assets of Company; or (iii)
the effective time of any merger, share exchange, consolidation, or other
business combination involving Company if immediately after such transaction,
persons who hold a majority of the outstanding voting securities entitled to
vote generally in the election of directors of the surviving entity (or the
entity owning 100% of such surviving entity) are not persons who, immediately
prior to such transaction, held Company Voting Stock. For purposes of this
SECTION 10(C), a "Person" means any individual, entity or group within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended, other than an entity controlled by Company.
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(d) Termination Due to Death or Disability. In the event
of the termination of Executive's employment due to death or Disability during
the Employment Term or Transition Period, Executive (or Executive's estate or
other beneficiary) will be entitled to receive the following payments and
benefits:
(i) any Accrued Compensation;
(ii) only if such death or Disability occurs
during the Employment Term, a pro rated incentive bonus for the year of
termination, determined by multiplying (A) the target annual incentive bonus for
the year, or if no target annual incentive bonus was established for the year,
the highest incentive bonus earned within the preceding three years, by (B) a
fraction, the numerator of which is the number of days from the beginning of the
calendar year through the date of termination, and the denominator of which is
365, which amount shall be paid in a lump sum within ten days of the date of
termination;
(iii) full and immediate vesting of the Option and
any outstanding stock options or other equity-based awards and, in the case of
the Option and such other stock options or equity-based awards, the continued
right to exercise the options (or other awards) for at least 12 months following
the date of termination, but in no event beyond the expiration of the stated
term of such option (or other award); and
(iv) Benefit Continuation Coverage, where
applicable, for Executive and/or Executive's spouse for their lifetimes and, in
the case of Executive's eligible dependents, until such dependent's attainment
of the maximum age up to which the Company's plan, as then in effect, covers
dependents of Company employees; provided that the cost of such coverage during
the then remaining balance of the Contract Term shall be split between Company
and Executive, or as applicable his spouse and/or dependents, in the same ratio
as the cost-sharing in effect under the Company's policies and procedures for
Company executives at that time, and the cost of such coverage after the
expiration of the Contract Term shall be borne 100% by Executive, or as
applicable his spouse and/or dependents. If and to the extent such Benefit
Continuation Coverage is not permitted by the applicable plan or by applicable
law, Executive, or as applicable his spouse and/or dependents, will instead be
entitled to cash payments sufficient to reimburse Executive and/or Executive's
spouse and eligible dependents, on an after-tax basis, for a proportionate
amount of the reasonable cost of comparable individual or other replacement
coverage through the end of the Contract Term.
(e) Termination Due to Expiration of the Employment Term.
In the event of the termination of Executive's employment due to expiration of
the Employment Term, whether or not as a result of a notice of non-renewal by
either party, Executive will be entitled to receive the following payments and
benefits:
(i) any Accrued Compensation;
(ii) payment of the Transition Payment provided
for under, and subject to the terms of, SECTION 4(B);
(iii) a pro rated incentive bonus for the year of
termination, determined by multiplying (A) the target annual incentive bonus for
the year, or if no target annual incentive bonus was established for the year,
the highest incentive bonus earned within the preceding three years, by (B) a
fraction, the numerator of which is the number of days from the beginning of the
calendar year
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through the date of termination, 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
(iv) Benefit Continuation Coverage for Executive
and/or Executive's spouse for their lifetimes and, in the case of Executive's
eligible dependents, until such dependent's attainment of the maximum age up to
which the Company's plan, as then in effect, covers dependents of Company
employees; provided that the cost of such coverage during the Transition Period
shall be split between Company and Executive in the same ratio as the
cost-sharing in effect under the Company's policies and procedures for Company
executives at that time, and the cost of such coverage after the expiration of
the Transition Period shall be borne 100% by Executive. If and to the extent
such Benefit Continuation Coverage is not permitted by the applicable plan or by
applicable law, Executive will instead be entitled to cash payments sufficient
to reimburse Executive and/or Executive's spouse and eligible dependents, on an
after-tax basis, for a proportionate amount of the reasonable cost of comparable
individual or other replacement coverage through the end of the Transition
Period.
Executive agrees that if he breaches the restrictive covenants set forth in
SECTION 12, Company may cease paying Executive amounts otherwise payable under
this SECTION 10(E) and will retain its rights to enforce the restrictive
covenants and to seek any other remedies available at law.
(f) Termination Due to Expiration of the Transition
Period. Upon the expiration of the Transition Period, Executive will be entitled
to receive:
(i) the amount of any substantiated but
previously unreimbursed business expenses incurred;
(ii) any additional vested benefits to which
Executive is entitled under the terms of any Company employee pension or welfare
benefit plan in which Executive was a participant; and
(iii) Benefit Continuation Coverage for Executive
and/or Executive's spouse for their lifetimes and, in the case of Executive's
eligible dependents, until such dependent's attainment of the maximum age up to
which the Company's plan, as then in effect, covers dependents of Company
employees; provided that the cost of such coverage shall be borne 100% by
Executive.
11. Certain Additional Payments.
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(a) Notwithstanding anything in this Agreement to the
contrary, in the event it shall be determined that any payment or distribution
by Company or its affiliate to or for the benefit of Executive, whether paid,
payable, distributed or distributable pursuant to this Agreement or otherwise (a
"Payment") would be subject to the excise tax imposed by Section 4999 of the
Internal Revenue Code of 1986 (the "Code") (or any successor provision) or any
interest or penalties with respect to such excise tax (such excise tax, together
with any such interest and penalties, are collectively referred to in this
Agreement as the "Excise Tax"), then Executive shall be entitled to receive an
additional payment (a "Gross-Up Payment") in an amount such that after the
payment by Executive of all taxes (including any interest or penalties imposed
with respect to such taxes), including any Excise Tax, imposed upon the Gross-Up
Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise
Tax imposed upon the Payment.
(b) Subject to the provisions of SECTION 11(C), all
determinations required to be made under this SECTION 11, including whether and
when a Gross-Up Payment is required and the
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amount of such Gross-Up Payment and the assumptions to be utilized in arriving
at such determination, shall be made by Company's then independent auditors (the
"Accounting Firm"), which shall provide detailed supporting calculations to both
Company and Executive within 15 business days of receipt of written notice from
Executive that there has been a Payment giving rise to a Gross-Up Payment, or
such earlier time as is requested by Company. 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. All fees and
expenses of the Accounting Firm shall be borne solely by Company. Any
determination by the Accounting Firm shall be binding upon Company and
Executive. As a result of the possible uncertainty in application of Section
4999 of the Code at the time of the initial determination by the Accounting Firm
hereunder, it is possible that Gross-Up Payments will not have been made by
Company that should have been made ("Underpayment"), consistent with the
calculations required to be made hereunder. In the event that Company exhausts
its remedies pursuant to SECTION 11(C) and Executive thereafter is required to
make a payment of any Excise Tax, the Accounting Firm shall determine the amount
of the Underpayment that has occurred, and any such Underpayment shall be
promptly paid by Company to or for the benefit of Executive.
(c) Executive shall notify Company in writing of any
claim by the Internal Revenue Service that, if successful, would require the
payment by Company of the Gross-Up Payment. Such notification shall be given as
soon as practicable but no later than ten business days after Executive is
informed in writing of such claim and shall apprise Company of the nature of
such claim and the date on which such claim is to be paid. Executive shall not
pay such claim prior to the expiration of the 30-day period following the date
on which Executive gives such notice to Company (or such shorter period ending
on the date that any payment of taxes with respect to such claim is due). If
Company notifies Executive in writing prior to the expiration of such period
that it desires to contest such claim, Executive shall:
(i) give Company any information reasonably
requested by Company relating to such claim,
(ii) take such action in connection with
contesting such claim as Company shall reasonably request in writing from time
to time, including, without limitation, accepting legal representation with
respect to such claim by an attorney selected by Company and reasonably
acceptable to Executive,
(iii) cooperate with Company in good faith in
order effectively to contest such claim, and
(iv) permit Company to participate in any
proceedings relating to such claim; provided, however, that Company shall bear
and pay directly all costs and expenses (including additional interest and
penalties) incurred in connection with such contest and shall indemnify and hold
Executive harmless, on an after-tax basis, for any Excise Tax or income tax
(including interest and penalties with respect thereto) imposed as a result of
such representation and payment of costs and expenses. Without limitation on the
foregoing provisions of this Section, Company shall control all proceedings
taken in connection with such contest and, at its sole option, may pursue or
forgo any and all administrative appeals, proceedings, hearings and conferences
with the taxing authority in respect of such claim and may, at its sole option,
either direct Executive to pay the tax claimed and xxx for a refund or contest
the claim in any permissible manner, and Executive agrees to prosecute such
contest to a determination before any administrative tribunal, in a court of
initial jurisdiction and in one or more appellate courts, as Company shall
determine; provided, however, that if Company directs Executive to pay such
claim and xxx for a refund, Company shall advance the
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amount of such payment to Executive, on an interest-free basis and shall
indemnify and hold Executive harmless, on an after-tax basis, from any Excise
Tax or income tax (including interest or penalties with respect thereto) imposed
with respect to such advance or with respect to any imputed income with respect
to such advance; and further provided that any extension of the statute of
limitations relating to payment of taxes for the taxable year of Executive with
respect to which such contested amount is claimed to be due is limited solely to
such contested amount. Furthermore, Company's control of the contest shall be
limited to issues with respect to which a Gross-Up Payment would be payable
hereunder, and Executive shall be entitled in his sole discretion to settle or
contest, as the case may be, any other issue raised by the Internal Revenue
Service or any other taxing authority.
(d) If, after receipt by Executive of an amount advanced
by Company pursuant to SECTION 11(C), Executive becomes entitled to receive any
refund with respect to such claim, Executive shall (subject to Company's
complying with the requirements of such Section) promptly pay to Company the
amount of such refund (together with any interest paid or credited thereon after
taxes applicable thereto). If, after receipt by Executive of an amount advanced
by Company pursuant to SECTION 11(C), a determination is made that Executive
shall not be entitled to any refund with respect to such claim and Company does
not notify Executive in writing of its intent to contest such denial of refund
prior to the expiration of 30 days after such determination, then such advance
shall be forgiven and shall not be required to be repaid, and the amount of such
advance shall offset, to the extent thereof, the amount of Gross-Up Payment
required to be paid.
12. Restrictive Covenants; Company Inventions.
-----------------------------------------
(a) Restrictive Covenants.
---------------------
(i) Non-Competition. In consideration for
Executive's employment and continued employment by the Company, the salary and
benefits under this Agreement, including the promise of post-termination
compensation under certain circumstances, and other good and valuable
consideration provided herein, Executive acknowledges and agrees that, while the
Company employs Executive and through the end of the Restricted Period (as
defined below), Executive will not, directly or indirectly, singly or jointly,
on Executive's own behalf or on behalf of any third party, establish, create, be
employed by, serve as an officer, director, advisor or consultant to, lend money
to, invest in, provide advice to, or engage or otherwise participate in any way
in any Competitive Business (as defined below) within any Market Areas (as
defined below). Executive may own up to 5% of any class of stock that is
registered under the Securities Exchange Act of 1934 and listed or traded on a
national securities exchange or the Nasdaq National Market without violating
this covenant. The parties further agree that the foregoing shall not prevent
Executive from working for or performing services on behalf of any individual or
entity that is engaged in a Competitive Business if such individual or entity is
also engaged in other lines of business and if Executive's employment or
services are restricted to such other lines of business, and Executive will not
be providing support, advice, instruction, direction or other guidance to lines
of business that constitute the Competitive Business.
(1) For purposes of this Agreement, the
term "Competitive Business" shall mean any consulting practice in the areas of
financial restructuring, litigation consulting and engineering and scientific
investigation or any other line of business that competes with the Company or
its successors, assigns, predecessors, affiliates or subsidiaries (collectively,
the "Company Group"), but only to the extent that the Company Group either
engaged in such areas or lines of business during the Contract Term or Executive
had knowledge before termination of his
12
employment with the Company Group that the Company Group intended to or
contemplated entering such areas or lines of business.
(2) For purposes of this Agreement, the
term "Market Area" shall be defined as each location in which any member of the
Company Group has an office, manufactures products, sells products or services,
or provides services to customers or clients during the Restricted Period (as
defined below). If the location where one or more of the relevant companies has
or is engaged in business is within a "metropolitan area" as defined by the
United States Office of Management and Budget from time to time, the term
"Market Area" means that metropolitan area. In all other cases, the term "Market
Area" shall encompass an area within a thirty-five (35) mile radius of the
location where any member of the Company Group has or had an office,
manufactures or manufactured products, sells or sold products or services, or
provides or provided services to customers or clients.
(3) For purposes of this Agreement, the
term "Restricted Period" shall mean the time period running from the beginning
of Executive's employment with the Company Group through the third anniversary
of the date that Executive's employment (including the Transition Period, if
applicable) with the Company Group terminates for any reason.
(ii) Non-Interference with Clients or Vendors.
During the Restricted Period, Executive agrees that he will not intentionally:
(1) seek to reduce the amount of
business performed or engaged in by the Company or any member of the Company
Group with any person or entity who is or has been, within the Restricted
Period, a customer, client, supplier or vendor of any member of the Company
Group;
(2) solicit any person or entity who is
or has been, within the Restricted Period, a customer, client, supplier or
vendor of the Company or any member of the Company Group, to terminate their
relationship with any member of the Company Group.
(iii) Non-Solicitation of Company Group Employees
or Contractors. During the Restricted Period, Executive agrees that he will not,
directly or indirectly, whether for himself or for any other individual or
entity (other than any entity belonging to the Company Group), hire, solicit, or
endeavor to hire away or solicit away from the Company Group, or otherwise
induce to terminate their relationship with the Company Group, any person whom
the Company Group employs or otherwise engages to perform services, or has
employed or engaged for services within the 12-month period immediately prior to
the date Executive's termination of employment became effective, including, but
not limited to, any independent consultant, engineer, sales representative,
contractor, subcontractor, supplier or vendor. Executive further agrees that he
will not otherwise interfere with or disrupt the Company Group's relationship
with any of its employees, contractors, subcontractors, suppliers or vendors.
(b) Confidentiality.
---------------
(i) Confidentiality Obligation. In connection
with Executive's employment with the Company Group, Executive has been and will
continue to be given access to confidential and proprietary information and
trade secrets concerning the business, plans, operations and prospects of the
Company Group and other information not generally known outside of the Company
Group that may be of value to the Company Group. Furthermore, in connection with
Executive's employment with the Company Group, Executive has been and will in
the future be given confidential and proprietary information and trade secrets
that have been given to the Company
13
or the Company Group in confidence by third parties (the confidential and
proprietary information and trade secrets of the Company Group and third
parties, as further defined below, shall be referred to herein as "Confidential
Information"). Executive understands that employment by the Company creates a
relationship of confidence and trust with respect to any such Confidential
Information that has been or may be disclosed to Executive and that the Company
has a protectable business interest in its Confidential Information. Executive
acknowledges and agrees that using, disclosing or publishing any Confidential
Information in an unauthorized or improper manner could cause the Company or
Company Group substantial loss and damages that could not be readily calculated
and for which no remedy at law would be adequate. Accordingly, Executive
acknowledges and agrees that Executive shall not at any time, except in
performing Executive's employment duties to the Company Group under this
Agreement (except with the prior written consent of the Company's Board of
Directors), directly or indirectly, use, disclose or publish any Confidential
Information that Executive may learn or become aware of, or have learned or
become aware of because of Executive's prior or continuing employment, ownership
or association with the Company Group or any of their predecessors, or use any
such information in a manner detrimental to the interests of the Company or the
Company Group. Executive understands and agrees that the rights and obligations
set forth in this Section will continue indefinitely and will survive
termination of this Agreement and Executive's employment with the Company Group.
(ii) Confidential Information. "Confidential
Information" includes, without limitation, information not previously disclosed
to the public or to the trade by the Company or the Company Group with respect
to the Company's or any member of the Company Group's present or future
business, operations, services, products, research, inventions, discoveries,
drawings, designs, plans, processes, models, technical information, facilities,
methods, trade secrets, copyrights, software, source code, systems, patents,
procedures, manuals, specifications, any other intellectual property,
confidential reports, price lists, pricing formulas, customer lists, financial
information (including the revenues, costs, or profits associated with any of
the Company's or the Company Group's products or services), business plans,
lease structure, projections, prospects, or opportunities or strategies,
acquisitions or mergers, advertising or promotions, personnel matters, legal
matters, any other confidential and proprietary information and any other
information not generally known outside the Company or the Company Group that
may be of value to the Company or the Company Group, but excludes any
information already properly in the public domain. "Confidential Information"
also includes confidential and proprietary information and trade secrets that
third parties entrust to the Company or the Company Group in confidence.
Confidential Information shall not include any information that (i) has
been properly published in a form generally available to the public prior to the
date Executive proposes to disclose or use such information or otherwise is or
becomes public knowledge through legal means without fault by Executive, (ii) is
already public knowledge prior to the signing of this Agreement, (iii) was
available to Executive on a non-confidential basis prior to its disclosure by
the Company, (iv) was disclosed by Executive in the proper performance of
Executive's duties hereunder, or (v) must be disclosed pursuant to applicable
law or court order. Information shall not be deemed to have been published
merely because individual portions of the information have been separately
published, but only if all material features comprising such information have
been published in combination.
(iii) Preserving Third Party's Confidences.
Executive agrees not to use in working for the Company Group and not to disclose
to the Company Group any Confidential Information Executive does not have the
right to use or disclose and that the Company Group is not free to use without
liability of any kind. Executive agrees to promptly inform the Company in
14
writing of any patents, copyrights, trademarks or other proprietary rights known
to Executive that the Company or the Company Group might violate because of
information Executive provides.
(c) Exclusive Property. Executive confirms that all
Confidential Information is and must remain the exclusive property of the
relevant member of the Company Group. All business records, business papers and
business documents Executive keeps or makes in the course of Executive's
employment by the Company must be and remain the property of the relevant member
of the Company Group. Upon the termination of this Agreement with the Company or
upon the Company's or the Company Group's request at any time, Executive shall
promptly deliver to the Company or relevant member of the Company Group any
Confidential Information or other materials (written or otherwise) not available
to the public or made available to the public in a manner Executive knows or
should reasonably recognize the Company or the Company Group did not authorize,
and any copies, excerpts, summaries, compilations, records and documents
Executive made or that came into Executive's possession during Executive's
employment. Executive agrees that Executive will not, without the Company's
consent, retain copies, excerpts, summaries or compilations of the foregoing
information and materials. Executive understands and agrees that the rights and
obligations set forth in this Section will continue indefinitely and will
survive termination of this Agreement and Executive's employment with the
Company Group.
(d) Intellectual Property. Executive agrees that all
records, documents, papers, inventions, notebooks, drawings, designs, technical
information, source or object code, processes, methods, ideas, discoveries,
improvements or other copyrightable or otherwise protectable works, whether
patentable or not, in any media, Executive conceives, creates, invents or
discovers, that relates to or results from any work Executive performs or
performed for the Company or any member of the Company Group or that arises from
the use of the facilities, materials, personnel or Confidential Information of
the Company or any member of the Company Group in the course of Executive's
employment (whether or not during working hours), whether conceived, created,
discovered, or invented individually or jointly with others ("Company
Inventions"), will, together with all worldwide patent, copyright, trademark,
trade secret, mask works or other intellectual property rights in such works,
including reissues thereof, as well as the right to prosecute or xxx for
infringements or other violations of these intellectual property rights
(collectively "Intellectual Property Rights"), be and remain absolutely the
property of the Company and/or the relevant member of the Company Group.
Executive irrevocably and unconditionally waives all rights that vest in
Executive (whether before, on, or after the date of this Agreement) in
connection with Executive's authorship of any copyrightable works in the course
of Executive's employment with the Company and/or the Company Group, wherever in
the world enforceable. Executive recognizes any such works are "works for hire"
of which the Company is the author. If, for any reason, any such Company
Inventions shall not legally be a "work-for-hire" or there are rights which do
not accrue to the Company under the preceding provisions, then Executive hereby
irrevocably assigns to the Company and agrees to quitclaim any and all of
Executive's right, title and interest thereto, including, without limitation,
all Intellectual Property Rights or other rights of whatsoever nature therein,
whether now or hereafter known, existing, contemplated, recognized or developed,
and the Company shall have the right to use the same in perpetuity throughout
the universe in any manner the Company determines, all without any further
payment to Executive. Without limitation, Executive waives the right to be
identified as the author of any such works and the right not to have any such
works subjected to derogatory treatment, and irrevocably transfers and assigns
to the Company any and all moral rights that Executive may have in any Company
Invention and authorizes the Company to make any desired changes to any part of
any Company Invention and combine it with other materials in any manner desired.
15
Executive will promptly disclose, grant and assign ownership to the
Company and/or the relevant member of the Company Group for its sole use and
benefit any and all Company Inventions that Executive develops, acquires,
conceives or reduces to practice while the Company and/or the Company Group
employs Executive and will take all steps necessary to assist the Company in
obtaining and/or protecting its ownership rights therein. Executive will
promptly disclose and hereby grants and assigns ownership to the Company of all
Company Inventions, Intellectual Property Rights and any foreign equivalents
thereof that may at any time be filed or granted for or upon any such Company
Invention.
(e) Maximum Limits. If any provision of this SECTION 12
is ever deemed to exceed the time, geographic area or activity limitations the
law permits, Executive and the Company agree to reduce such limitations to the
maximum permissible limitation, and Executive and the Company authorize a court
or arbitrator having jurisdiction to reform each such provision to the maximum
time, geographic area or activity limitations the law permits, provided,
however, that such reductions shall apply only with respect to the operation of
such provision in the particular jurisdiction in which such adjudication is
made.
(f) Injunctive Relief. Without limiting the remedies
available to the Company and/or the Company Group, Executive acknowledges that a
breach of any of the covenants regarding non-competition, non-interference,
non-solicitation, confidentiality or intellectual property rights contained in
this Agreement may result in material irreparable injury to the Company Group
for which there is no adequate remedy at law and that it will not be possible to
accurately measure damages for such injuries. Executive agrees that, if there is
a breach or threatened breach of this Agreement, the Company and/or the Company
Group will be entitled to obtain a temporary restraining order and/or a
preliminary or permanent injunction restraining Executive from engaging in
activities prohibited by any provision of SECTION 12 of this Agreement, or such
other relief as may be required to specifically enforce any of the covenants
contained in SECTION 12 of this Agreement. Executive agrees that all remedies
expressly provided for in this Agreement are cumulative of any and all other
remedies now existing at law or in equity. The Company or any Company Group
member will, in addition to the remedies provided in this Agreement, be entitled
to avail itself of all such other remedies as may now or hereafter exist at law
or in equity for compensation and for the specific enforcement of the covenants
contained in this Agreement. Resort to any remedy provided for in this Section
or provided for by law will not prevent the concurrent or subsequent employment
of any other appropriate remedy or remedies, or preclude the Company or the
Company Group's recovery of monetary damages and compensation. Executive also
agrees that the Restricted Period or such longer period during which the
covenants hereunder by their terms survive will extend for any and all periods
for which a court with personal jurisdiction over Executive finds that Executive
violated the covenants contained herein.
13. Assignment and Successors. This Agreement is personal to
Executive and, shall not be assignable by Executive, except that Executive's
rights to receive any compensation or benefits under this Agreement may be
transferred or disposed of pursuant to testamentary disposition or intestate
succession. This Agreement shall inure to the benefit of and be enforceable by
the Executive's heirs, beneficiaries and/or legal representatives. This
Agreement shall inure to the benefit of and be binding upon Company and its
successors and assigns. Company shall require any successor to all or
substantially all of the business and/or assets of Company, whether direct or
indirect, by purchase, merger, consolidation, acquisition of stock, or
otherwise, by an agreement in form and substance satisfactory to Executive,
expressly to assume and agree to perform this Agreement in the same manner and
to the same extent as Company would be required to perform if no such succession
had taken place.
16
14. Severability. If the final determination of an arbitrator or a
court of competent jurisdiction declares, after the expiration of the time
within which judicial review (if permitted) of such determination may be
perfected, that any term or provision of this Agreement is invalid or
unenforceable, the remaining terms and provisions will be unimpaired, and the
invalid or unenforceable term or provision will be deemed replaced by a term or
provision that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision. Any prohibition or
finding of unenforceability as to any provision of this Agreement in any one
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
15. Amendment; Waiver. Neither Executive nor Company may modify,
amend, or waive the terms of this Agreement other than by a written instrument
signed by Executive and Company. Either party's waiver of the other party's
compliance with any provision of this Agreement shall not be deemed a waiver of
any other provision of this Agreement or of any subsequent breach by such party
of a provision of this Agreement. No delay on the part of any party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof.
16. Withholding. Company will reduce its compensatory payments to
Executive hereunder for withholding and FICA and Medicare taxes and any other
withholdings and contributions required by law.
17. Governing Law. The laws of the State of New York (other than
its conflict of laws provisions) govern this Agreement.
18. Notices. Notices may be given in writing by personal delivery,
by certified mail, return receipt requested, by telecopy or by overnight
delivery. Executive should send or deliver notices to the office of the
Secretary of Company at 000 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx 00000, fax
number: (000) 000-0000. Company will send or deliver any notice given to
Executive at Executive's address as reflected on Company's personnel records.
Executive and Company may change their addresses for notice by like notice to
the other. Executive and Company agree that notice is deemed received on the
date it is personally delivered, the date it is received by certified mail, the
date of guaranteed delivery by overnight service, or the date the fax machine
confirms receipt.
19. Superseding Effect. This agreement supersedes all prior or
contemporaneous negotiations, commitments, agreements and writings between
Executive and Company or any of its affiliates with respect to the subject
matter. All such other negotiations, commitments, agreements and writings will
have no further force or effect, and the parties to any such other negotiation,
commitment, agreement or writing will have no further rights or obligations
thereunder.
20. Arbitration.
-----------
(a) Any dispute or controversy arising under or in
connection with this Agreement or Executive's employment relationship with
Company, irrespective of whether this Agreement or Executive's employment
relationship with Company has terminated, will be settled exclusively by binding
arbitration to be held in the metropolitan area in which Executive is then
employed and conducted in accordance with the National Rules for the Resolution
of Employment Disputes of the American Arbitration Association ("AAA"), or the
corresponding rules of such other entity as may be mutually agreed upon by the
parties, as then in effect.
(b) After either party submits a request for arbitration,
AAA or such other entity mutually agreed upon by the parties (either,
hereinafter referred to as the "ADR Entity"), the ADR
17
Entity will be requested to appoint a single, neutral arbitrator from a panel of
former or retired judges, within ten business days after such request, to
preside over the arbitration and resolve the dispute. The parties agree to raise
any objections to such appointment within ten business days after it is made and
to limit those objections to the arbitrator's actual conflict of interest. The
ADR Entity, in its sole discretion, will determine within ten business days the
validity of any objection to the appointment of the arbitrator based on the
arbitrator's actual conflict of interest. The arbitrator will be directed to
render a full decision on all issues properly before the arbitrator within 60
days after being appointed to serve as arbitrator, unless the parties otherwise
agree in writing or the arbitrator makes a finding that a party has carried the
burden of showing good cause for a longer period.
(c) The parties will use their best efforts to cooperate
with each other in causing the arbitration to be held in as efficient and
expeditious a manner as practicable, including but not limited to, providing
such documents and making available such of their personnel and agents as the
arbitrator may request. The parties direct the arbitrator to take into account
their stated goal of expedited proceedings in determining whether to authorize
discovery and, if so, the scope of permissible discovery and other hearing and
pre-hearing procedures.
(d) The arbitrator will not have the authority to add to,
detract from or modify any provision of this Agreement or to award punitive
damages to any injured party. Judgment may be entered on the arbitrator's award
in any court having jurisdiction. Company will bear all expenses of any such
arbitration proceeding, except that each party will bear its own counsel fees
unless the arbitrator decides to award counsel fees to one of the parties.
(e) Notwithstanding the foregoing, each party shall be
entitled to seek injunctive or other equitable relief, as contemplated by
SECTION 12(F) above, from any court of competent jurisdiction, without the need
to resort to arbitration.
21. Indemnification and Liability Insurance. Company shall
indemnify Executive to the fullest extent permitted by applicable law and
Company's by-laws with regard to Executive's actions (or inactions) on behalf of
Company in his capacity as an officer and/or director, with advancement of legal
fees and other expenses on a current basis to the fullest extent permitted by
law. Company shall cover Executive under professional and other appropriate
liability insurance policies both during and, while any potential liability
exists, after the Contract Term; provided that the amount and extent of such
coverage shall be at least as great and extensive as such coverage on Company's
other senior executives and directors.
IN WITNESS WHEREOF, the undersigned have signed this Agreement on the date first
above written.
FTI CONSULTING, INC.
By: /s/ Xxxx X. Xxxx, XX
------------------------------------
Name: Xxxx X. Xxxx, XX
Title: Chairman and Chief Executive Officer
EXECUTIVE
/s/ Xxxxxxx X. Xxxx
------------------------------------------
Xxxxxxx X. Xxxx
18
