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Exhibit
10.28
[Execution
Copy]
As of June 9,
2008
Mr. Laurence A.
Tosi
388 W. Broadway
Loft B
New York, New York 10012
Dear Laurence:
We are pleased to confirm the
terms relating to your becoming a Senior Managing Director (“
SMD ”) and Chief Financial Officer of Blackstone (as
defined below) as soon as possible, but no later than
December 10, 2008 (your “ Start Date ”).
This letter agreement (this “ SMD Agreement” )
shall be effective as of the “as of” date first set
forth above (the “ Effective Date ”) and sets
forth the terms of your becoming an SMD with Blackstone (as defined
below). “ Blackstone ” or “ Blackstone
Entities ” means The Blackstone Group L.P. and its
current and future affiliates; provided , that the terms
“Blackstone” and “Blackstone Entities” do
not include any investment fund affiliated with a Blackstone Entity
or any portfolio company or underlying investment of any fund
affiliated with a Blackstone Entity. The limited liability company
agreement, limited partnership agreement or other governing
agreement of any Blackstone Entity in which you have a partnership,
membership or other participation interest, in each case now or
hereafter in existence and as amended and/or restated, is herein
called such Blackstone Entity’s “ Governing
Agreement .” “ Active Member ” of a
Blackstone Entity means a person who is (i) an SMD and
(ii) an active member or partner (excluding a withdrawn,
retaining withdrawn or deceased member or partner) of such
Blackstone Entity.
1. Title; Reporting; Key
Responsibilities .
(a) You will be Chief
Financial Officer and an SMD of Blackstone .
(b) You will report to
Hamilton E. James (“ HEJ ”), President and Chief
Operating Officer of the firm, and, if HEJ is not available, to
Stephen A. Schwarzman (“ SAS ”), Chairman and
Chief Executive Officer of the firm.
(c) You will (i) serve
on the Executive Committee of Blackstone, (ii) attend meetings
of the Management Committee and (iii) have such other duties
as are customary for the chief financial officer of a public
company.
2. Your Annual Draw;
Health and Related Benefits, Guaranteed Compensation
.
(a) Except as otherwise
provided herein, you will be paid such distributions and benefits
as may be determined by Blackstone from time to time. Effective as
of your Start Date, you will be entitled to take a draw at an
annual rate equal to the annual draw of other SMDs generally (which
rate currently is $350,000 (prorated for any portion of a calendar
year in which you are not an SMD)), payable in equal monthly
installments against your allocable share of the net pre-tax income
of certain Blackstone Entities and/or your annual bonus
compensation (including the 2008 Minimum Comp (defined below) for
purposes of the 2008 calendar year). You understand and agree that
(x) the amounts and types of your distributions remain at all
times subject to the sole discretion of Blackstone and are subject
to change at any time and (y) Blackstone may alter, amend,
modify, discontinue or supplement any and all benefits, policies
and programs at any time in its sole discretion, except in each
case for 2008 Minimum Comp as provided in Section 2(d) below
and your percentage of net management fee income and carried
interest
for 2009 as provided in
Section 2(e) below. Your annual bonus may be subject to
Blackstone’s policies regarding minimum deferral on a basis
generally consistent with other SMDs; provided that you shall not
be required by Blackstone to defer any portion of the 2008 Minimum
Comp.
(b) You will also receive
health care insurance and other benefits related to such health
care insurance comparable to those provided generally to all SMDs.
You hereby acknowledge that, as an SMD, you will be responsible for
the payment of such insurance and other benefits on the same basis
generally as other SMDs. You will also receive all other benefits
generally available to other SMDs, including five weeks of annual
vacation (prorated for any calendar year in which you are an SMD
for less than the entire calendar year).
(c) During your service at
Blackstone (in any capacity) and until the expiration of all
transfer restrictions applicable to any limited partner interests
or units you may hold of Blackstone Holdings or The Blackstone
Group L.P., respectively (collectively, the “ BX Units
”), you agree (on behalf of yourself and any and all estate
planning vehicles, partnerships or other legal entities controlled
by or affiliated with you (“ Affiliated Vehicles
”)) that all BX Units held by you and all such Affiliated
Vehicles will only be held in an account at Blackstone’s
equity plan administrator or otherwise administered by such
administrator.
(d) If (i) you are still
an SMD with Blackstone on December 31, 2008,
(ii) Blackstone terminates your services as an SMD without
Cause (as defined below, except that for purposes of this
Section 2(d), Section 3(c)(ii) and
Section 3(c)(iii), all determinations of Cause shall be made
using an objective, reasonable person standard) prior to
December 31, 2008 or (iii) Blackstone breaches its
agreement to commence your service on the terms specified in
Section 1 on or about your Start Date, you will be entitled to
guaranteed minimum aggregate compensation of $3,500,000 cash for
2008 (“ 2008 Minimum Comp ”), which amount
includes the pro rated amount of your annual draw as set forth in
Section 2(a) for services performed in 2008 and your annual
bonus (including any portion of such amounts that you may, at your
sole discretion, elect to defer). If your service as an SMD is
terminated by Blackstone without Cause prior to December 31,
2008 or Blackstone breaches its agreement to commence your service
on the terms specified in Section 1 on or about the Start
Date, your 2008 Minimum Comp shall be paid to you within 30 days of
such termination or the elapsed Start Date, as
applicable.
(e) If you are still an SMD
with Blackstone on December 31, 2009, you will be entitled to
(i) 0.215% of the net management fee income (before SMD
compensation and taxes except New York City unincorporated business
tax) from Blackstone Entities that generate
(non-performance/non-incentive) management fees from investment
funds and portfolio companies affiliated with any Blackstone
Entities and (ii) 0.2% of the profit sharing percentage in all
Blackstone carried interest vehicle transactions that close after
January 1, 2009, subject to applicable vesting. Carried
interest with respect to any transaction will be subject to
customary obligations and conditions contained in the Governing
Agreements of the Blackstone Entity (e.g., vesting, clawback,
holdback, capital commitment obligations, forfeitures, future
dilution) on the same terms applicable to other SMDs generally
working on such transaction.
3. Side-by-Side
Investment; Funds of Funds; Deferred Units .
(a) Side-by-Side
Allocations . You will also be allocated $1,250,000 for each
election period (or approximately $2,500,000 per year at a
normalized investment rate) (subject to proration for any portion
of an annual election period in which you are not an SMD) in
side-by-side investment opportunities generated through BCP V, BREP
VI, BREP International II and Blackstone Mezzanine Partners II L.P.
(and/or other side-by-side investment opportunities that become
available to SMDs generally), such aggregate amount to be allocated
among the foregoing funds for each annual
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election period in proportion, as nearly
as practicable, to the amounts of side-by-side investment
opportunities available through the respective funds for such
annual election period; provided that (i) your
allocations will provide you the opportunity, but not the
obligation, to invest personally and (ii) your allocations in
2008 shall be made available only if you can demonstrate to
Blackstone that you are a “qualified purchaser” under
the Securities Act of 1933, as amended.
(b) Funds of Funds .
You will have the opportunity, but not the obligation, to invest
personally in Blackstone’s fund of funds investment products
managed by Blackstone Alternative Asset Management L.P. (or its
successor, “ BAAM ”) as long as you serve as an
SMD, subject to the same limitations on exclusions from management
fees or incentive fees that are applicable to other SMDs generally
with respect to their BAAM investments; provided that you
invest an amount in such fund of funds investment products that is
reasonably consistent with amounts invested therein generally by
other SMDs, as determined by Blackstone.
(c) Deferred Unit
Awards
(i) Start Date Awards.
You will receive promptly after the Start Date, two equity-based
awards (the “ Start Date Awards ”) under
Section 8 of the Blackstone Group L.P. 2007 Equity Incentive
Plan (the “ Plan ”) equal, respectively,
to:
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1. |
155,764 deferred partnership units (“ Partnership
Units ”) of Blackstone Holdings (as defined in the IPO
registration statement of The Blackstone Group L.P.) (“
Deferred Units ”) (the “ Sign-On Grant
”); and |
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2. |
338,381 Deferred Units (the “ Make-Whole Grant
”), representing the forfeiture of compensation-related items
from Merrill Lynch (the “ Forfeited Equity
”). |
(ii) 2008 Equity Bonus
Award . In addition to the Start Date Awards, if (A) you
are still an SMD with Blackstone on the date in calendar year 2009
when bonuses generally are paid to other SMDs in respect of
calendar year 2008 (e.g., around January 15, 2009),
(B) Blackstone terminates your services as an SMD without
Cause prior to such payment date or (C) Blackstone breaches
its agreement to commence your service on the terms specified in
Section 1 on or about your Start Date, then you will receive
an equity-based award under Section 8 of the Plan equal to
$4,500,000 of Deferred Units, calculated using the 30-day volume
weighted average trading price of Partnership Units prior to the
date of grant (the “ 2008 Equity Bonus Grant ”
and, together with the Start Date Awards, the “ Awards
”).
(iii) Vesting . The
Deferred Units will vest as follows:
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1. |
The Deferred Units underlying the Sign-On Grant will vest 100%
on the fifth anniversary of the Start Date (with no partial period
vesting); |
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2. |
The Deferred Units underlying the Make-Whole Grant will vest
and any restrictions shall lapse in accordance with the vesting
schedule of the Forfeited Equity (as set forth on Schedule A);
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3. |
The Deferred Units underlying the 2008 Equity Bonus Grant will
vest such that 20% vest upon each of the first, second, third,
fourth and fifth anniversaries of the grant date; provided
that if the 2008 Equity Bonus Grant is granted on the date set
forth in clause (B) or clause (C) of paragraph
(ii) above, then the Deferred Units underlying the 2008 Equity
Bonus Grant shall be 100% vested on the applicable date of
grant. |
The unvested portion of your
Awards will be terminated and will be null and void (and cease to
represent a right to receive Partnership Units) once you are no
longer an SMD of Blackstone for any reason, except that the
then-outstanding, but unvested portion of your Awards will become
fully vested (and not subject to call rights or repurchase rights,
except as described in Section 3(c)(v) below or in the
Non-Competition Agreement) if (i) your service with Blackstone
is terminated by Blackstone without Cause or as a result of your
death, permanent disability or (ii) there is a Change in
Control (as defined in the partnership agreements of Blackstone
Holdings). The unvested portion of your Award (and any vested
Deferred Units which have been retained and not yet delivered to
you pursuant to Section 3(c)(iv) below) will also be
terminated and be null and void upon the termination of your
service with Blackstone for Cause.
(iv) Delivery of
Partnership Units . As of each vesting date with respect to
your Awards, the number of Partnership Units corresponding to the
vested portion of the respective Awards shall be delivered to you;
provided , however , that any such Partnership Units
that would otherwise be subject to continuing transfer and
forfeiture restrictions as described in Section 3(c)(v) shall
not be delivered to you as of the relevant vesting date and shall
instead be retained by Blackstone and delivered to you as of the
date on which the related transfer restrictions lapse and, in the
event your services as an SMD are terminated, forfeiture
restrictions lapse. Prior to the delivery of the underlying
Partnership Units, you will not be the actual owner of the
Partnership Units underlying your Awards and will not have any
voting rights or rights with respect to distributions with respect
to such Partnership Units, except as provided in
Section 3(c)(vi) below.
(v) Post-Vesting
Transferability and Forfeiture Restrictions. The Partnership
Units delivered to you under any vested portion of your Deferred
Units will generally be freely transferable after vesting (subject
to the partnership agreements of Blackstone Holdings and any
trading procedures established by Blackstone and generally
applicable to SMDs), except that (i) you may only transfer up
to 33 1/3%, 66 2/3% and 75% of the aggregate number of Deferred
Units which vested under each Award on and after the first, second
and third anniversaries, respectively, of your Start Date and
(ii) you will not be permitted to transfer more than 75% of
the aggregate number of Deferred Units which vested under your
Awards during your service with Blackstone and, following your
termination of service, during the non-compete and non-solicit
periods described in the Non-Competition Agreement. The Partnership
Units underlying your Awards which are unvested or which are not
transferable and thus remain undelivered pursuant to
Section 3(c)(iv), will also remain subject to the forfeiture
terms described under Section 3(c)(v) hereof and Section IV of
the Non-Competition Agreement until such restrictions lapse. All
transfer restrictions will lapse upon (i) your death or
permanent disability or (ii) a Change in Control.
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(vi) Dividends . To
the extent that distributions or dividends are made with respect to
Partnership Units underlying your Deferred Units (i.e., those
Partnership Units that have not yet been delivered to you), you
will receive such distributions or dividends with respect to those
Deferred Units (whether or not vested and/or delivered) related to
Blackstone earnings accruing during the periods you are associated
with Blackstone; provided that you will not be entitled to
dividends if you do not hold your vested units on any record date
(due to for example, your selling such units prior to a record
date).
4. Compliance Policies;
Non-Competition.
(a) You acknowledge and agree
that you are subject to all applicable provisions of the Blackstone
compliance policies applicable to you that have been made available
to you, including the Compliance Policies and Procedures Manual (to
the extent applicable to you), Investment Adviser Compliance
Policies and Procedures and its related supplements (each, to the
extent applicable to you), and USA Patriot Act Anti-Money
Laundering Policies, as well as Blackstone’s Code of Business
Conduct and Ethics (including the Code of Ethics for Financial
Professionals, if applicable) and the Employee Handbook and
Business Continuity Plan (or in the case of UK-based SMDs, the U.K.
AML Manual and U.K. Compliance Manual) (collectively, the “
Blackstone Compliance Policies ”).
(b) You acknowledge that you
have executed the SMD Non-Competition and Non-Solicitation
Agreement, attached hereto as Schedule B (the “
Non-Competition Agreement ”), and agree that the terms
thereof are incorporated herein by reference.
(c) Subject to
Section 5.5 of the Agreement of Limited Partnership of The
Blackstone Group L.P., you acknowledge and agree that becoming a
party to this SMD Agreement does not afford you any rights with
respect to the management and/or operation of
Blackstone.
5. Termination;
Resignation
(a) You acknowledge and agree
that Blackstone may terminate your service at any time for any
reason, or for no reason at all with or without Cause;
provided , however, that Blackstone shall provide you with
written notice at least ninety days prior to the date of the
termination of your service during which Blackstone may elect to
place you on paid leave for all or part of such ninety-day period;
provided, further, that during such ninety-day period, you
shall continue to receive your base draw and benefits, subject to
applicable law and the payment of benefits-related premiums, but
shall not receive or participate in any profit sharing or bonus
arrangements (including participation in any carried interest or
fee-sharing program).
(b) Notwithstanding the
foregoing, you acknowledge and agree that Blackstone may terminate
your services hereunder for Cause and such termination shall be
effective immediately. For purposes of this SMD Agreement, Cause
means the occurrence or existence of any of the following as
determined fairly, reasonably, on an informed basis and in good
faith by Blackstone: (i) (w) any breach by you of any
provision of the Non-Competition Agreement, (x) any material
breach of any rules or regulations of Blackstone applicable to you,
(y) your deliberate failure to perform your duties to
Blackstone, or (z) your committing to or engaging in any
conduct or behavior that is or may be harmful to Blackstone in a
material way; provided that, in the case of any of the
foregoing clauses (w), (x), (y) and (z), Blackstone has given
you written notice (a “ Notice of Breach ”)
within fifteen days after Blackstone becomes aware of such action
and you fail to cure such breach, failure to perform or conduct or
behavior within fifteen days after receipt by you of such Notice of
Breach from Blackstone (or such longer period, not to exceed an
additional fifteen days, as shall be reasonably required for such
cure, provided that you are diligently pursuing such cure);
(ii) any act of fraud, misappropriation, dishonesty,
embezzlement or
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similar conduct against Blackstone; or
(iii) conviction (on the basis of a trial or by an accepted
plea of guilty or nolo contendere ) of a felony or crime
(including any misdemeanor charge involving moral turpitude, false
statements or misleading omissions, forgery, wrongful taking,
embezzlement, extortion or bribery), or a determination by a court
of competent jurisdiction, by a regulatory body or by a
self-regulatory body having authority with respect to securities
laws, rules or regulations of the applicable securities industry,
that you individually have violated any applicable securities laws
or any rules or regulations thereunder, or any rules of any such
self-regulatory body (including, without limitation, any licensing
requirement), if such conviction or determination has a material
adverse effect on (A) your ability to function as an SMD,
taking into account the services required of you and the nature of
Blackstone’s business or (B) the business of
Blackstone.
(c) You agree to provide
Blackstone with written notice of your intention to terminate your
service with Blackstone at least ninety days prior to the date of
such termination (the “ Notice Period ”).
Written notice pursuant to this Section 5(c) shall be provided
to any of the Chief Executive Officer, Chief Operating Officer or
Chief Legal Officer of Blackstone. During the Notice Period, you
shall perform any and all duties as directed by Blackstone, in its
sole discretion.
(d) You shall be placed on
garden leave status for a period commencing on the day following
the conclusion of the ninety-day Notice Period and continuing for
ninety days thereafter (the “ Garden Leave Period
”). During the Garden Leave Period, you shall continue to
receive your base draw and benefits, subject to the payment of
related premiums, but shall not receive or participate in any
profit sharing or bonus arrangements (including participation in
any carried interest or fee-sharing program). During the Garden
Leave Period, you shall not be required to carry out any duties for
or on behalf of Blackstone. You agree that you will not enter into
any employment or other business relationship with any other
employer or otherwise prior to the conclusion of the Garden Leave
Period.
(e) The provisions of
Sections 5(c) and 5(d) shall not be applicable in instances in
which your service with Blackstone is terminated by Blackstone with
or without Cause (including if Blackstone elects to terminate your
service during the Garden Leave Period).
6. Representations,
Warranties and Covenants .
(a) Except as set forth on
Schedule 6(a) and except for the agreements, arrangements and plans
listed on Schedule 6(a) hereto (true, correct and complete copies
of which have been delivered to Blackstone prior to the date
hereof), you represent and warrant, as of the date hereof and
(except as would not materially impair your ability to perform your
duties as described herein) as of your Start Date, as
follows:
(i) This SMD Agreement and
the Non-Competition Agreement (this SMD Agreement and the
Non-Competition Agreement being herein collectively called the
“ Other Business Agreements ”), constitute valid
and binding obligations of you and your affiliates, enforceable
against you or any of your affiliates in accordance with the terms
thereof.
(ii) You are not subject
to:
1. any restrictive covenants,
including without limitation, relating to competition, solicitation
or confidentiality (other than general obligations to maintain
confidentiality consistent with your fiduciary and other executive
duties), arising from any agreement, oral, written or otherwise,
between you and any Other Person (as defined below); or
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2. any agreement, oral,
written or otherwise, between you and any Other Person, or any
common law, statutory or fiduciary duty owed to any Other Person,
that will in any way (I) materially compromise, limit or
restrict your ability to perform your duties commencing on your
Start Date on behalf of all Blackstone Entities pursuant to any
Other Business Agreement, (II) purport to bind contractually or
otherwise any of the Blackstone Entities, or (III) subject any
Blackstone Entity (or any partner, member, affiliate, officer or
employee of any of the foregoing) to any liability of any kind or
to any claim by any Other Person.
“ Other Person ”
means any corporation, partnership, limited liability company, sole
proprietorship or other person, entity or association (other than a
Blackstone Entity), including, without limitation, any
Employer-affiliated Entity (as hereinafter defined). “
Past or Present Employer ” means any corporation,
partnership, limited liability company, sole proprietorship or
other person, entity or association with which you have or have had
any employment, partnership, limited liability company, consulting
or similar business relationship or of which you are or have been
an officer or director. “ Employer-affiliated Entity
” means, collectively, any Past or Present Employer and any
corporation, partnership, limited liability company, sole
proprietorship or other person, entity or association that is an
affiliate, subsidiary, predecessor or successor of any Past or
Present Employer.
(iii) None of (A) the
execution, delivery and performance of any of the Other Business
Agreements, (B) the consummation of
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