Exhibit A This document constitutes part of a prospectus covering securities that have been registered under the Securities Act of 1933. STOCK UNIT AGREEMENT
Exhibit
10.2
Exhibit
A
This
document constitutes part of a prospectus covering securities that have been
registered
under
the Securities Act of 1933.
THIS
AGREEMENT, dated as of January 29,
2008, between Lazard Ltd, a Bermuda exempted company (the “Company”), on behalf
of its applicable Affiliate (as defined under the definitional rules of Section
1(a) below), and Xxxxx Xxxxxxxxxxx (the “Employee”).
W
I T N E S S E T
H
WHEREAS,
in connection with the
Employee’s continued service to the Company and its Affiliates and pursuant to
Section 3 of the Amended and Restated Agreement Relating to Retention and
Noncompetition and Other Covenants between the Employee, Lazard Group LLC
and
the Company, dated as of the date hereof (the “Retention
Agreement”), the Company hereby grants the Employee 2,700,000 Stock
Units; and
WHEREAS,
in connection with the
Employee’s continued service with the Company and its Affiliates, and as an
inducement for the Company’s grant of Stock Units, the Employee is agreeing to
the restrictions set forth in Appendix A of this Agreement (the “Covenants”).
NOW
THEREFORE, in consideration of the
mutual promises and covenants made herein and the mutual benefits to be derived
herefrom, the parties hereto agree as follows:
1.
Grant
and
Vesting of Stock Units.
(a)
Subject to the provisions of this Agreement and to the provisions of the
Company’s 2005 Equity Incentive Plan (the “Plan”) (all
capitalized terms used herein, to the extent not defined, shall have the
meaning
set forth in the Plan), the Company, on behalf of its applicable Affiliate,
hereby grants to the Employee, as of the date hereof (the “Grant Date”),
2,700,000 stock units (the “Stock Units”), each
with respect to one Share, which grant shall constitute the Special Retention
Award (as defined in the Retention Agreement) and is being granted to the
Employee in full satisfaction of the Company’s and Lazard Group LLC’s
obligations under Section 3 of the Retention Agreement.
(b)
Subject to the terms and conditions of this Agreement, the Stock Units shall
vest and no longer be subject to any restriction (such period during which
restrictions apply to the Stock Units is the “Restriction Period”)
on December 31, 2012 (the “Vesting
Date”).
(c)
In the event that the Employee incurs a Termination of Employment during
the
Restriction Period for any reason not set forth in Section 1(d), all
unvested Stock Units shall be forfeited by the Employee effective immediately
upon such Termination of Employment. For all purposes under this
Agreement (including Appendix A), the determination of whether the Employee
has incurred a Termination of Employment shall be made without regard to
whether
the Employee continues to provide services in a non-employee capacity after
termination of his employment.
(d)
In the event that the Employee incurs a Termination of Employment during
the
Restriction Period by the Company without Cause (within the meaning of
Section 4(b) of the Retention Agreement) or due to the Employee’s
Disability (within the meaning of Section 4(a) of the Retention Agreement),
all
Stock Units shall, subject to
Section 1(e), remain outstanding and continue to vest on the Vesting Date. In the event that the Employee incurs a Termination of Employment during the Restriction Period due to the Employee’s death (or, subject to Section 1(e), dies during the Restriction Period subsequent to a Termination of Employment described in the preceding sentence), all Stock Units shall remain outstanding and vest on the first to occur of (x) the Vesting Date and (y) the 30th day following such death.
Section 1(e), remain outstanding and continue to vest on the Vesting Date. In the event that the Employee incurs a Termination of Employment during the Restriction Period due to the Employee’s death (or, subject to Section 1(e), dies during the Restriction Period subsequent to a Termination of Employment described in the preceding sentence), all Stock Units shall remain outstanding and vest on the first to occur of (x) the Vesting Date and (y) the 30th day following such death.
(e)
If following a Termination of Employment described in Section 1(d), the Employee
violates any of the Covenants during the applicable periods specified in
Appendix A, which is incorporated herein by reference, all outstanding Stock
Units shall be forfeited and canceled as of the date of such violation. Any
violation of the Covenants prior to the Vesting Date shall be deemed to violate
the Covenants for purposes of this Section 1(e) only if such violation occurs
during the stated duration of such Covenants.
(f)
Notwithstanding the foregoing, in the event of a Change in Control, any unvested
but outstanding Stock Units shall automatically vest as of the date of such
Change in Control; provided that, in the event
that such Change in Control does not qualify as an event described in Section
409A(a)(2)(A)(v) of the Code and the regulations thereunder, such Stock Units
shall not be settled until the Vesting Date or, if earlier, immediately
following any permissible payment event under Section 409A of the Code and
the
regulations thereunder (but shall not be subject to the forfeiture provisions
of
Section 1(e) following such Change in Control).
2.
Settlement
of Units.
Subject
to the proviso of Section 1(f),
as soon as practicable (but in no event more than 30 days) after any Stock
Unit
has vested and is no longer subject to the Restriction Period, the Company
shall, subject to Section 6, issue one Share to its applicable Affiliate
and
cause such Affiliate to deliver to the Employee one or more unlegended,
freely-transferable stock certificates in respect of such Shares issued upon
settlement of the vested Stock Units.
3.
Nontransferability of the Stock Units.
During
the Restriction Period and until
such time as the Stock Units are ultimately settled as provided in Section
2
above, the Stock Units shall not be transferable by the Employee by means
of
sale, assignment, exchange, encumbrance, pledge, hedge or
otherwise.
4.
Dividend
Equivalents.
If
the Company declares and pays
ordinary quarterly cash dividends on the Common Stock during the Restriction
Period, the Employee
shall be credited with additional
Stock Units (determined by dividing the aggregate dividend amount that would
have been paid with respect to the Stock Units if they had been actual shares
of
Common
Stock by the Fair Market Value of a
share of Common Stock on the dividend payment date), which additional Stock
Units shall vest concurrently with the underlying Stock Units and be treated
as
Stock Units for all purposes
of this Agreement (it being
understood that the provisions of this sentence shall not apply to any
extraordinary dividends or distributions).
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5.
Payment
of
Transfer Taxes, Fees and Other Expenses.
The
Company agrees to pay any and all
original issue taxes and stock transfer taxes that may be imposed on the
issuance of Shares received by an Employee in connection with the Stock Units,
together with any and all other fees and expenses necessarily incurred by
the
Company in connection therewith.
6.
Taxes
and
Withholding.
No
later than the date as of which an
amount first becomes includible in the gross income of the Employee for federal,
state, local or foreign income tax purposes with respect to any Stock Units,
the
Employee shall pay to the Company or its applicable Affiliate, or make
arrangements satisfactory to the Company or its applicable Affiliate regarding
the payment of, any federal, state, local and foreign taxes that are required
by
applicable laws and regulations to be withheld with respect to such
amount. The obligations of the Company under this Agreement shall be
conditioned on compliance by the Employee with this Section 6, and the Company
or its applicable Affiliate shall, to the extent permitted by law, have the
right to deduct any such taxes from any payment otherwise due to the Employee,
including deducting such amount from the delivery of Shares or cash issued
upon
settlement of the Stock Units that gives rise to the withholding
requirement.
7.
Effect
of
Agreement.
Except
as otherwise provided hereunder,
this Agreement shall be binding upon and shall inure to the benefit of any
successor or successors of the Company. The invalidity or
enforceability of any provision of this Agreement shall not affect the validity
or enforceability of any other provision of this Agreement. Nothing in this Agreement
or the Plan
shall confer upon the Employee any right to continue in the employ of the
Company or any of its Affiliates or interfere in any way with the right of
the
Company or any such Affiliates to terminate the Employee’s employment at any
time. Until shares of Common Stock are actually delivered to
the Employee upon settlement of the Stock Units, the Employee shall not have
any
rights as a stockholder with respect to the Stock Units, except as specifically
provided herein.
8.
Laws
Applicable to Construction; Consent to Jurisdiction.
(a)
This Agreement shall be governed by and construed in accordance with the
laws of
the State of New York (United States of America), without regard to principles
of conflict of laws which could cause the application of the law of any
jurisdiction other than the State of New York. In addition to the terms and
conditions set forth in this Agreement and Appendix A, the Stock Units are
subject to the terms and conditions of the Plan, which is hereby incorporated
by
reference. By signing this Agreement, the Employee agrees to and is bound
by the
Plan and the restrictive covenants set forth in Appendix A.
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(b)
Any controversy or claim between the Employee and the Company or its Affiliates
arising out of or relating to or concerning the provisions of this Agreement
or
the Plan shall be finally settled by arbitration in New York City before,
and in
accordance with the rules then obtaining of, the Financial Industry Regulatory
Authority (“FINRA”) or, if
FINRA
declines to arbitrate the matter, the American Arbitration Association (the
“AAA”) in
accordance with the commercial arbitration rules of the AAA.
(c)
The Employee and the Company hereby irrevocably submit to the exclusive
jurisdiction of any state or federal court located in the City of New York
over
any suit, action, or proceeding arising out of relating to or concerning
this
Agreement or the Plan that is not otherwise required to be arbitrated or
resolved in accordance with the provisions of Section 8(b). This includes
any
suit, action or proceeding to compel arbitration or to enforce an arbitration
award. The Employee and the Company acknowledge that the forum designated
by
this Section 8(c) has a reasonable relation to this Agreement, and to the
Employee’s relationship to the Company. Notwithstanding the
foregoing, nothing herein shall preclude the Company or the Employee from
bringing any action or proceeding in any other court for the purpose of
enforcing the provisions of Section 8(a) or this Section 8(c). The
agreement of the Employee and the Company as to forum is independent of the
law
that may be applied in the action, and the Employee and the Company agree
to
such forum even if the forum may under applicable law choose to apply non-forum
law. The Employee and the Company hereby waive, to the fullest extent
permitted by applicable law, any objection which the Employee or the Company
now
or hereafter may have to personal jurisdiction or to the laying of venue
of any
such suit, action or proceeding in any court referred to in this Section
8(c). The Employee and the Company undertake not to commence any
action arising out of or relating to or concerning this Agreement in any
forum
other than a forum described in this Section 8(c), or, to the extent applicable,
Section 8(b). The Employee and the Company agree that, to the fullest
extent permitted by applicable law, a final and non-appealable judgment in
any
such suit, action or proceeding in any such court shall be conclusive and
binding upon the Employee and the Company.
9.
Conflicts
and Interpretation.
In
the event of any conflict between
this Agreement and the Plan, the Plan shall control. In the event of
any ambiguity in this Agreement, or any matters as to which this Agreement
is
silent, the Plan shall govern including, without limitation, the provisions
thereof pursuant to which the Committee has the power, among others, to (i)
interpret the Plan, (ii) prescribe, amend and rescind rules and regulations
relating to the Plan and (iii) make all other determinations deemed necessary
or
advisable for the administration of the Plan.
10.
Amendment.
This
Agreement may not be modified,
amended or waived except by an instrument
in writing signed by both parties
hereto. The waiver by either party of compliance with any
provision
of this Agreement shall not operate
or be construed as a waiver of any other provision of this Agreement, or
of any
subsequent
breach by such party of a
provision of this Agreement.
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11.
Section
409A.
The
Company believes that the Stock
Units may constitute “deferred compensation” within the meaning of Section 409A
of the Code, and it is the intention and belief of the Company that the
provisions of this Agreement comply in all respects with Section 409A of
the
Code. If the Company determines after the Grant Date that an
amendment to this Agreement is necessary to ensure the foregoing, it may,
notwithstanding Section 10, make such amendment, effective as of the Grant
Date
or any later date, without the consent of the Employee (provided that any
such
amendment shall be narrowly tailored to achieve such compliance with as limited
deviation from the intent of this Agreement as of the date hereof as is
practicable).
12.
Headings.
The
headings of paragraphs herein are
included solely for convenience of reference and shall not affect the meaning
or
interpretation of any of the provisions of this Agreement.
13.
Counterparts.
This
Agreement may be executed in
counterparts, which together shall constitute one and the same
original.
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IN
WITNESS WHEREOF, as of
the date first above written, the Company has caused this Agreement to be
executed on behalf of its applicable Affiliate by a duly authorized officer
and
the Employee has hereunto set the Employee’s hand.
| LAZARD LTD | |||
|
|
By:
|
/s/ Xxxxx X. Xxxxxxx | |
| Name: Xxxxx X. Xxxxxxx | |||
| Title: Managing Director and General Counsel | |||
|
|
|
/s/ Xxxxx Xxxxxxxxxxx | |
| Xxxxx Xxxxxxxxxxx |
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Exhibit 10.2
Appendix
A
Restrictive
Covenants
The
Employee acknowledges that the
grant of the Stock Units pursuant to the Stock Unit Agreement (the “Agreement”), which
is
being entered into in connection with the execution of the Amended and Restated
Agreement Relating to Retention and Noncompetition and Other Covenants by
and
among the Company, Lazard Group LLC, and Employee dated as of the date of
the
Agreement (the “Retention
Agreement”), confers a substantial benefit upon the Employee, and agrees
to the following covenants, which are designed, among other things, to protect
the interests of the Company and its Affiliates (collectively, the “Firm”) in
confidential and proprietary information, trade secrets, customer and employee
relationships, orderly transition of responsibilities, and other legitimate
business interests. The Employee acknowledges that, pursuant to
Section 1(e) of the Agreement, some or all of the Stock Units may be forfeited
upon a violation by the Employee of the following covenants:
(a)
Confidential
Information. The Employee shall not at any time (whether prior
to or following the Employee’s Termination of Employment) disclose or use for
the Employee’s own benefit or purposes or the benefit or purposes of any other
person, corporation or other business organization or entity, other than
the
Firm, any trade secrets, information, data, or other confidential or proprietary
information relating to the customers, developments, programs, plans or business
and affairs of the Firm, provided that the
foregoing shall not apply to information that is not unique to the Firm or
that
is generally known to the industry or the public other than as a result of
the
Employee’s breach of this covenant or as required pursuant to an order of a
court, governmental agency or other authorized tribunal (provided that the
Employee shall provide the Firm prior written notice of any such required
disclosure). The Employee agrees that upon the Employee’s Termination
of Employment, the Employee or, in the event of the Employee’s death, the
Employee’s heirs or estate at the request of the Firm, shall return to the Firm
immediately all books, papers, plans, information, letters and other data,
and
all copies thereof or therefrom, in any way relating to the business of the
Firm. Without limiting the foregoing, the existence of, and any
information concerning, any dispute between the Employee and the Firm shall
be
subject to the terms of this Paragraph (a), except that the Employee may
disclose information concerning such dispute to the arbitrator or court that
is
considering such dispute, and to the Employee’s legal counsel, spouse or
domestic partner, and tax and financial advisors (provided that such persons
agree not to disclose any such information).
(b)
Non-Competition. The
Employee acknowledges and recognizes the highly competitive nature of the
businesses of the Firm. The Employee further acknowledges that the
Employee has been and shall be provided with access to sensitive and proprietary
information about the clients, prospective clients, knowledge capital and
business practices of the Firm, and has been and shall be provided with the
opportunity to develop relationships with clients, prospective clients,
consultants, employees, representatives and other agents of the Firm, and
the
Employee further acknowledges that such proprietary information and
relationships are extremely valuable assets in which the Firm has invested
and
shall continue to invest substantial time, effort and expense. The
Employee agrees that while employed by the Firm during the Employment Period
(as
defined in the Retention Agreement) and thereafter until the date that is
(i)
three months after the date of the Employee’s Termination of Employment for any
reason other than a termination by the Firm without Cause or (ii) one month
after the date of the Employee’s Termination of Employment by the Firm without
Cause (in either case, the date of such Termination of Employment, the “Date of Termination”,
and such period, the “Noncompete Restriction
Period”), the Employee shall not, directly or indirectly (other than in
respect of the activities of Xxxxxxxxxxx & Co., LP that do not involve the
direct rendering of services by the Employee), on the Employee’s behalf or on
behalf of any other person, firm, corporation, association or other entity,
as
an employee, director, advisor, partner, consultant or otherwise, provide
services or perform activities for, or acquire or maintain any ownership
interest in, a “Competitive
A-1
Enterprise.” For
purposes of this Appendix, “Competitive
Enterprise” shall mean a business (or business unit) that (x) engages in
any activity or (y) owns or controls a significant interest in any entity
that
engages in any activity, that in either case, competes anywhere with any
activity that is similar to an activity in which the Firm is engaged up to
and
including the Employee’s Date of Termination. Notwithstanding
anything in this Appendix, the Employee shall not be considered to be in
violation of this Appendix solely by reason of owning, directly or indirectly,
any stock or other securities of a Competitive Enterprise (or comparable
interest, including a voting or profit participation interest, in any such
Competitive Enterprise) if the Employee’s interest does not exceed 5% of the
outstanding capital stock of such Competitive Enterprise (or comparable
interest, including a voting or profit participation interest, in such
Competitive Enterprise). The Employee acknowledges that the Firm is
engaged in business throughout the world. Accordingly, and in view of
the nature of the Employee’s position and responsibilities, the Employee agrees
that the provisions of this Paragraph (b) shall be applicable to each
jurisdiction, foreign country, state, possession or territory in which the
Firm
may be engaged in business while the Employee is providing services to the
Firm. Notwithstanding anything contained in Paragraph (b) and (c) of
this Appendix to the contrary or in any restricted stock unit agreement between
the Employee and the Company or its affiliates entered into on, prior to
or
after the date hereof, in no event shall the Employee’s services to or
relationship with Xxxxxxxxxxx & Co., LP, to the extent consistent with his
relationship with and services to Xxxxxxxxxxx & Co., LP as of the date
hereof, be considered to be in violation of, or give rise to a violation
of,
Paragraph (b) or (c) of this Appendix (or any similar provisions in any
restricted stock unit agreement between the Employee and the Firm entered
into
on, prior to or after the date hereof).
(c)
Nonsolicitation
of
Clients. The Employee hereby agrees that while employed by the
Firm during the Employment Period and thereafter during the Noncompete
Restriction Period, the Employee shall not, in any manner, directly or
indirectly (other than in respect of the activities of Xxxxxxxxxxx & Co., LP
that do not involve the direct rendering of services by the Employee), (i)
Solicit a Client to transact business with a Competitive Enterprise or to
reduce
or refrain from doing any business with the Firm, to the extent the Employee
is
soliciting a Client to provide them with services the performance of which
would
violate Paragraph (b) above if such services were provided by the Employee,
or
(ii) interfere with or damage (or attempt to interfere with or damage) any
relationship between the Firm and a Client. For purposes of this
Appendix, the term “Solicit”
means any
direct or indirect communication of any kind whatsoever, regardless of by
whom
initiated, inviting, advising, persuading, encouraging or requesting any
person
or entity, in any manner, to take or refrain from taking any action, and
the
term “Client”
means any client or prospective client of the Firm to whom the Employee provided
services, or for whom the Employee transacted business, or whose identity
became
known to the Employee in connection with the Employee’s relationship with or
employment by the Firm, whether or not the Firm has been engaged by such
Client
pursuant to a written agreement; provided that an
entity which is not a client of the Firm shall be considered a “prospective
client” for purposes of this sentence only if the Firm made a presentation or
written proposal to such entity during the 12-month period preceding the
Date of
Termination or was preparing to make such a presentation or proposal at the
time
of the Date of Termination.
A-2
(d)
No Hire of
Employees. The Employee hereby agrees that while employed by
the Firm during the Employment Period and thereafter until the date that
is six
months after the Employee's Date of Termination for any reason (the “No Hire Restriction
Period”), the Employee shall not, directly or indirectly, for himself or
on behalf of any third party (other than the Firm) at any time in any manner,
Solicit, hire, or otherwise cause any employee who is at the associate level
or
above (including, without limitation, managing directors), officer or agent
of
the Firm to apply for, or accept employment with, any Competitive Enterprise,
or
to otherwise refrain from rendering services to the Firm or to terminate
his or
her relationship, contractual or otherwise, with the Firm, other than in
response to a general advertisement or public solicitation not directed
specifically to employees of the Firm.
(e)
Nondisparagement. The
Employee shall not at any time (whether prior to or following the Employee’s
Date of Termination), and shall instruct the Employee’s spouse, domestic
partner, parents, and any of their lineal descendants (it being agreed that
in
any dispute between the parties regarding whether the Employee breached such
obligation to instruct, the Firm shall bear the burden of demonstrating that
the
Employee breached such obligation) not to, make any comments or statements
to
the press, employees of the Firm, any individual or entity with whom the
Firm
has a business relationship or any other person, if such comment or statement
is
disparaging to the Firm, its reputation, any of its affiliates or any of
its
current or former officers, members or directors, except for truthful statements
as may be required by law.
(f)
Notice of Termination
Required. The Employee agrees to provide three months’ written
notice to the Firm prior to the Employee’s Date of Termination. The
Employee hereby agrees that, if, during the three-month period after the
Employee has provided notice of termination to the Firm or prior thereto,
the
Employee enters (or has entered into) a written agreement to provide services
or
perform activities for a Competitive Enterprise that would violate Paragraph
(b)
if performed during the Noncompete Restriction Period, such action shall
be
deemed a violation of this Paragraph (f).
(g)
Covenants
Generally. The Employee’s covenants as set forth in this
Appendix are referred to herein as the “Covenants.” If
any of the Covenants is finally held to be invalid, illegal or unenforceable
(whether in whole or in part), such Covenant shall be deemed modified to
the
extent, but only to the extent, of such invalidity, illegality or
unenforceability and the remaining such Covenants shall not be affected thereby;
provided, however,
that if any
of such Covenants is finally held to be invalid, illegal or unenforceable
because it exceeds the maximum scope determined to be acceptable to permit
such
provision to be enforceable, such Covenant shall be deemed to be modified
to the
minimum extent necessary to modify such scope in order to make such provision
enforceable hereunder. The Employee hereby agrees that prior to
accepting employment with any other person or entity during his period of
service with the Firm or during the Noncompete Restriction Period or the
No Hire
Restriction Period, the Employee shall provide such prospective employer
with
written notice of the provisions of this Appendix, with a copy of such notice
delivered no later than the date of the Employee’s commencement of such
employment with such prospective employer, to the General Counsel of the
Company. The Employee acknowledges and agrees that the terms of the
Covenants: (i) are reasonable in light of all of the circumstances,
(ii) are sufficiently limited to protect the legitimate interests of the
Firm, (iii) impose no undue hardship on the Employee and (iv) are not
injurious to the public. The Employee acknowledges and agrees that
the Employee’s breach of the Covenants will cause the Firm irreparable harm,
which cannot be adequately compensated by money damages. The Employee
further acknowledges that the Covenants and notice period requirements set
forth
herein shall operate independently of, and not instead of, any other restrictive
covenants or notice period requirements to which the Employee is subject
pursuant to other plans and agreements involving the Firm.
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