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Exhibit 10.2
FORM
OF FIRST AMENDMENT TO AGREEMENT RELATING TO RETENTION
AND
NONCOMPETITION
AND OTHER COVENANTS
First
Amendment (the “ First
Amendment ”), dated as of May 7, 2008 (the
“ Effective
Date ”), to Agreement Relating to Retention and
Noncompetition and Other Covenants by and between Lazard Group
LLC, a Delaware limited liability company, and successor to
Lazard LLC (“ Lazard
”), on its behalf and on behalf of its subsidiaries and
affiliates (collectively with Lazard, and its and their
predecessors and successors, the “ Firm
”),
and [
] (the “ Executive
”), dated as of May 4, 2005 (the “ Agreement
”); and
WHEREAS,
the Firm and the Executive wish to amend the Agreement to (i)
make Lazard Ltd, a company incorporated under the laws of
Bermuda (“ PubliCo
”), a party to the Agreement, as amended by the First
Amendment, through PubliCo’s execution of the First
Amendment, and (ii) modify Schedule I to such Agreement to,
among other things, extend certain of the obligations
thereunder and to make such other changes to the Agreement and
Schedule I as are necessary in order for the terms thereof to
comply with Section 409A of the Internal Revenue Code of 1986,
as amended.
NOW,
THEREFORE, in consideration of the premises contained herein
and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Executive,
Lazard and PubliCo hereby agree as follows:
Effective
as of the Effective Date, PubliCo shall become a party to the
Agreement and Schedule I of the Agreement shall hereby be
amended and restated in the form attached hereto.
IN
WITNESS WHEREOF, the Executive and the Board of Directors of
each of Lazard and PubliCo have caused this First Amendment to
be executed and delivered on the date first above
written.
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LAZARD
GROUP LLC
(on
its behalf, and on behalf of its
subsidiaries
and affiliates)
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By:
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Name:
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Title:
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LAZARD
LTD
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By:
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Name:
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Title:
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SCHEDULE I
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Name
(as per Preamble):
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[ ]
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HoldCo
Interests (as per Section 2(b)):
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[ ]
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Profit
Interests (as per Section 2(d)):
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[ ]
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Effective upon the Effective Date of the First
Amendment to this Agreement, this Schedule I shall take
effect and its provisions shall constitute binding and
enforceable agreements of the Firm.
1.
Title
. Notwithstanding anything to the contrary
contained in Section 3(b) of this Agreement, from the
Effective Date through March 31, 2011, the Executive shall
serve as Managing Director and Chief Financial
Officer of PubliCo and of Lazard Group LLC.
2.
Compensation
. Notwithstanding anything to the contrary
contained in Sections 3(c)(i) and (ii) of this Agreement,
subject to the Executive’s continued employment with
the Firm during the period from the Effective Date through
March 31, 2011, the Executive shall be entitled to receive
(i) an annual base salary of not less
than [ ]
(“ Base
Salary ”) and (ii) so long as the Executive
remains employed by the Firm through the end of the
applicable fiscal year of Lazard, an annual bonus to be
determined under the terms of the applicable annual bonus
plan of Lazard on the same basis as annual bonus is
determined for other executive officers of PubliCo, with such
bonus to be paid in the same ratio of cash to equity awards
as is applicable to executives of the Firm receiving bonuses
at a level comparable to the bonus of the
Executive. For purposes hereof, the term Base
Salary shall refer to Base Salary as in effect from time to
time, including any increases. Notwithstanding
anything to the contrary contained in Section 3(c)(iv) of
this Agreement, during the portion of the Term commencing on
the Effective Date, subject to the Executive’s
continued employment, the Executive shall be eligible to
participate in the employee retirement and welfare benefit
plans and programs of the type made available to the senior
most executives of the Firm generally, in accordance with
their terms and as such plans and programs may be in effect
from time to time, including, without limitation, savings,
profit-sharing and other retirement plans or programs,
401(k), medical, dental, flexible spending account,
hospitalization, short-term and long-term disability and life
insurance plans.
3.
Severance Pay
and Benefits under Certain Circumstances
. Notwithstanding anything to the contrary
contained in Section 3(d) of this Agreement, in the event
that during the period commencing on the Effective Date and
concluding on March 31, 2011, the Executive’s
employment with the Firm is terminated by the Firm without
Cause or by the Executive for Good Reason (as defined below)
(a “ Qualifying
Termination ”), Lazard shall pay the Executive,
in a lump sum in cash within thirty (30) days after the Date
of Termination, the aggregate of the following amounts: (i)
any unpaid Base Salary through the Date of Termination; (ii)
any earned and unpaid cash bonus amounts for fiscal years of
Lazard completed prior to the Date of Termination (determined
in accordance with paragraph 2 above and with any such bonus
to be paid in full in cash); and (iii) the product of (1) the
“ Severance
Multiple ” (as defined below) and (2) the sum of
(x) the Base Salary and (y) the average
annual bonus (or, to the extent applicable, cash
distributions, and including any bonuses paid in the form of
equity awards based on the grant date value of such equity
awards in accordance with the normal valuation methodology
used by Lazard) paid or payable to the Executive for the two
completed fiscal years of Lazard immediately preceding the
fiscal year during which occurs the Date of Termination (the
“ Average
Bonus ”). In addition, (i) for a
period of months equal to the product of (1) 12 and
(2) the Severance Multiple, the Executive and his
eligible dependents shall continue to be eligible to
participate in the medical and dental benefit plans of Lazard
on the same basis as the Executive participated in such plans
immediately prior to the Date of Termination, to the extent
that the applicable plan permits such continued participation
for all or any portion of such period (it being agreed that
Lazard will use its reasonable efforts to cause such
continued coverage to be permitted under the applicable plan
for the entire period), which benefits continuation period
shall not run concurrently with or reduce the
Executive’s right to continued coverage under COBRA and
(ii) to the extent permitted under the applicable plan, the
Executive will receive additional years of age and service
credit equal to the Severance Multiple for purposes of
determining his eligibility for and right to commence
receiving benefits under the retiree health care benefit
plans of Lazard Group. For purposes of the
provision of the health care benefits as provided above, the
amount of such health care benefits provided in any given
calendar year shall not affect the amount of such benefits
provided in any other calendar year, and the
Executive’s right to the health care benefits may not
be liquidated or exchanged for any other
benefit.
In
addition, in the case of a Qualifying Termination, with
respect to the fiscal year of Lazard during which the Date of
Termination occurs, the Executive shall receive a pro-rata
annual bonus payable in cash determined as
follows:
(i) if
the Date of Termination occurs prior to or on December 31,
2008, the pro-rata annual bonus shall be determined by the
administrator of the Lazard Ltd 2005 Bonus Plan consistent
with Section 5(c) thereof on the same basis as annual bonus
is determined for other executive officers of
PubliCo;
(ii)
if (A) the Date of Termination occurs after December 31, 2008
and prior to or on December 31, 2010 and (B) with respect to
the fiscal year during which the Date of Termination occurs,
(1) the Executive was reasonably expected by Lazard to be a
“covered employee” (within the meaning of Section
162(m) of the Internal Revenue Code of 1986, as amended (the
“ Code
”)) prior to his Date of Termination, and (2) the
annual bonus that the Executive was eligible to receive for
such year was originally intended by Lazard to satisfy the
performance-based exception under Section 162(m) of the Code
(without regard to any entitlement to payment upon
termination of employment), the Executive’s pro-rata
annual bonus shall equal the product of (1) the amount
determined by the Compensation Committee based on the
Firm’s actual performance for the fiscal year of the
Firm in which the Date of Termination occurs on the same
basis as annual bonus is determined for other executive
officers of the Firm (which, subject to the limits on any
such bonus due to the level of satisfaction of the
performance goals previously established for purposes of
Section 162(m) of
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