Exhibit 99.2
EMPLOYMENT
AGREEMENT
EMPLOYMENT AGREEMENT (the
“Agreement”) made as of May 21, 2009 by and
between Evercore Partners Inc. (the “Company”),
Evercore LP (the “Partnership”) (Company and
Partnership, each and collectively, “Employer”) and
Ralph L. Schlosstein (the “Executive”).
In consideration of the promises and
mutual covenants set forth herein and for other good and valuable
consideration, the parties agree as follows:
1. Term of Employment .
Subject to the provisions of Section 9 of this Agreement,
Executive shall be employed by the Employer for period commencing
upon mutual execution hereof (the “Effective Date”) and
ending on the fifth anniversary of the Effective Date (the
“Term”) on the terms and subject to he conditions set
forth in this Agreement. For purposes of this Agreement,
“Employment Term” shall mean the period of time that
Executive is employed hereunder during the Term.
2. Position .
a. During the Employment Term,
Executive shall serve as President and Chief Executive Officer of
the Company and, to the extent elected, as a member of the Board of
Directors of the Company (the “Board”). In such
positions, Executive shall have the authority and duties
commensurate with such positions, as shall be determined from time
to time by the Board. Executive will report directly to the
Board.
b. During the Employment Term,
Executive will devote Executive’s full business time and best
efforts to the performance of Executive’s duties hereunder
and will not engage in any other business, profession or occupation
for compensation or otherwise which would conflict or materially
interfere with the rendition of such services either directly or
indirectly, without the prior written consent of the Board;
provided that nothing herein shall preclude Executive
(x) from managing Executive’s personal investments,
(y) from continuing to serve on any board of directors, or as
trustee, of any business corporation or any charitable organization
on which Executive serves as of the Effective Date and which have
been previously disclosed to the Employer and serving on the boards
of directors of any portfolio companies of investment funds managed
by the Partnership or its affiliates; and (z) subject to the
prior approval of the Board (which shall not be unreasonably
withheld), from accepting appointment to or continuing to serve on
any board of directors or trustees of any business corporation or
any charitable organization; provided in each case, and in
the aggregate, that such activities do not conflict or materially
interfere with the performance of Executive’s duties
hereunder or conflict with Section 10 of this
Agreement.
c. The parties hereby acknowledge
that, while Executive is employed hereunder by both the Partnership
and the Company, it is anticipated that all of Executive’s
business time and effort will be devoted to services for the
Partnership. Consequently, subject to future adjustment as
necessary from time to time to reflect the accurate allocation of
time and effort expended by Executive for the Company and
Partnership, respectively, all of Executive’s compensation
hereunder shall be allocated as compensation for work performed on
behalf of the Partnership.
3. Base Salary . During the
Employment Term, the Employer shall pay Executive a base salary at
the annual rate of $500,000, payable in regular installments in
accordance with the Employer’s usual payment practices.
Executive shall be entitled to such increases in Executive’s
base salary, if any, as may be determined from time to time in the
sole discretion of the Board. Executive’s annual base salary,
as in effect from time to time, is hereinafter referred to as the
“Base Salary.” Executive’s Base Salary may not,
in any event, be decreased below $500,000.
4. Annual Incentive Bonus
.
a. For each calendar year ending
during the Employment Term (each a “Fiscal Year”),
Executive will be eligible to earn an annual bonus (the
“Annual Incentive Bonus”). Executive’s target
Annual Incentive Bonus will be $1,325,000 with respect to the
remainder of the 2009 calendar year. The actual amount of the
Annual Incentive Bonus with respect to the 2009 calendar year, and
any subsequent Fiscal Years, will be determined by the Compensation
Committee of the Board (the “Committee”), in their sole
discretion, with reference to Executive’s and the
Employer’s fulfillment of performance goals established by
the Committee (after consultation with Executive) with respect to
the applicable Fiscal Year.
b. Subject to Section 4(c),
below, Executive’s Annual Incentive Bonus for any Fiscal Year
shall be paid no later than the March 15th following the
completion of the applicable Fiscal Year, but will only be paid if
Executive remains continuously employed with the Employer through
such payment date; provided that, if the requirements of
Treas. Reg. § 1.409A-2(b)(7)(i) (or any successor provision)
are then met, the Employer will delay the payment of the Annual
Incentive Bonus in respect of any Fiscal Year to the extent the
Employer reasonably anticipates that the Employer’s deduction
with respect to such payment otherwise would be limited or
eliminated by application of Section 162(m) of the Internal
Revenue Code, in which case such unpaid Annual Incentive Bonus
amounts (the “Deferred Amounts”) will be made upon the
earlier of (x) the earliest date at which the Employer
reasonably anticipates that the deduction of the payment of such
Deferred Amounts will not be limited or eliminated by application
of Section 162(m) of the Internal Revenue Code or
(y) Executive’s separation from service. Deferred
Amounts shall accrue interest at the prime rate, plus
1%.
c. 50% of the Annual Incentive Bonus
(or such lesser percentage as may be determined in the sole
discretion of the Committee of the Board) will be payable in
restricted equity issued by the Company or its affiliates, subject
to vesting based on the continued service of Executive to the
Employer (which is currently contemplated to be in four annual
installments); provided that the form of award, date of grant,
vesting terms and transfer restrictions applicable to such equity
will be substantially similar to the corresponding terms of the
equity portion of annual bonuses paid to other executive officers
of the Employer with respect to the same Fiscal Year and shall be
structured in a manner intended to comply with Section 409A of
the Code.
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5. Awards Upon Effective Date
.
a. Signing Bonus . On the
Effective Date and subject to his commencement of employment at
that time, Executive will receive a cash signing bonus of
$6,100,000.
b. Grant of RSUs . On the
Effective Date and subject to his commencement of employment at
that time, Executive will receive a grant of restricted stock units
(“RSUs”), as memorialized in (and subject to the terms
of) the restricted stock unit award agreement attached hereto as
Exhibit A . Each RSU will represent the right to receive one
share of Class A common stock of the Company in the future,
following the satisfaction of specified conditions.
6. Purchase of Partnership
Units . Executive has entered into the Subscription Agreement
attached hereto as Exhibit B to effectuate the purchase of
newly issued Class B-3 Units of the Partnership, as therein
described.
7. Employee Benefits . During
the Employment Term, Executive shall be entitled to participate in
all employee benefit programs of the Employer and its affiliates
maintained for the benefit of employees of the Employer on a basis
which is no less favorable than is provided generally to other U.S.
executive officers of the Employer (collectively, the
“Employee Benefits”)
8. Business Expenses . During
the Employment Term, reasonable business expenses incurred by
Executive in the performance of Executive’s duties hereunder
shall be reimbursed by the Employer in accordance with Employer
policies, provided claims for such reimbursement (accompanied by
appropriate supporting documentation) are submitted to the Company
within 90 days following the date such expenses are
incurred.
9. Termination . The
Employment Term and Executive’s employment hereunder may be
terminated by either party at any time and for any reason; provided
that Executive will be required to give the Employer at least 90
days advance written notice of any resignation of Executive’s
employment without Good Reason (as defined in Section 9(b).
Notwithstanding any other provision of this Agreement, the
provisions of this Section 9 shall exclusively govern
Executive’s rights upon termination of employment with the
Employer and its affiliates.
a. By the Employer For Cause or
By Executive Resignation Without Good Reason .
(i) The Employment Term and
Executive’s employment hereunder may be terminated by the
Employer for Cause (as defined below) and shall terminate
automatically upon Executive’s resignation without Good
Reason.
(ii) For purposes hereof,
“Cause” shall mean: (A) a breach of any of
Executive’s material obligation under the Employee Agreement
(as defined below) or any other agreement with Employer or its
affiliates, or Executive’s breach of any duty owed to
Employer or its affiliates; (B) the conviction of, or plea of
guilty or nolo contendere by, Executive in respect of
any felony; (C) the perpetration by Executive of fraud against
the Employer; (D) the willful and continued failure by
Executive to substantially perform
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Executive’s duties with the Employer in
Executive’s position on a full-time basis (other than any
such failure resulting from Executive’s death or Disability
(as defined in Section 9(b)), provided that an act, or a
failure to act, on Executive’s part shall be deemed
“willful” only if done, or omitted to be done, by
Executive not in good faith or without a reasonable belief that
Executive’s action or omission was in or not opposed to the
best interests of the Employer; or (E) any willful misconduct
by Executive which could have, or could reasonably be expected to
have, an adverse effect in any material respect on
(i) Executive’s ability to function as an employee of
the Employer, taking into account the services required of
Executive or (ii) the business and/or reputation of the
Employer; provided, however , that in the case of clauses
(A), (D) and (E), “Cause” shall not exist if such
breach, failure or misconduct, if capable of being cured, shall
have been cured by Executive within 10 business days after receipt
of written notice thereof from the Employer.
(iii) Any termination for Cause
shall be effected by a resolution of the majority of the members of
the Board. Prior to the effectiveness of any such termination,
Executive shall be afforded an opportunity to meet with the Board,
upon reasonable notice under the circumstances, and explain and
defend any action or omission alleged to constitute grounds for a
termination for Cause, provided that the Board may suspend
Executive from his duties hereunder prior to such opportunity and
such suspension shall not constitute a breach of this Agreement by
the Employer or otherwise form the basis for a termination for Good
Reason. If Executive has, and utilizes, such opportunity to be
heard, the Board shall promptly reaffirm that grounds for a
termination for Cause exist or reinstate Executive to his position
hereunder.
(iv) If Executive’s employment
is terminated by the Employer for Cause or if Executive resigns
without Good Reason (which shall not include a termination of
employment due to Executive’s death or Disability (as such
term is defined in
