Omnibus Agreement (2019)Full Document 

Start of Preview

EXECUTION VERSION

Omnibus Agreement Between

Wayne Cohen and OZ Management LP, OZ Advisors LP and OZ Advisors II LP

February 7, 2019

THIS OMNIBUS AGREEMENT BETWEEN WAYNE COHEN AND OZ MANAGEMENT LP, OZ ADVISORS LP AND OZ ADVISORS II LP (this "Omnibus Agreement") is entered into as of February 7, 2019, by and among Wayne Cohen (the "Limited Partner") and each of OZ Management LP ("OZM"), OZ Advisors LP ("OZA") and OZ Advisors II LP ("OZAII" and, together with OZM and OZA, the "Operating Partnerships").

WHEREAS, reference is made to (i) the Partner Agreement between OZM and the Limited Partner, dated as of February 22, 2017, the Partner Agreement between OZA and the Limited Partner, dated as of February 22, 2017, and the Partner Agreement between OZAII and the Limited Partner, dated as of February 22, 2017 (collectively, the "2017 Partner Agreements"), (ii) the Partner Agreement between OZM and the Limited Partner, dated as of April 15, 2013, the Partner Agreement between OZA and the Limited Partner, dated as of April 15, 2013, and the Partner Agreement between OZAII and the Limited Partner, dated as of April 15, 2013 (collectively, the "2013 Partner Agreements"), and (iii) the Partner Agreement between OZM and the Limited Partner, dated as of November 10, 2010, as amended on June 22, 2011 and December 13, 2011, the Partner Agreement between OZA and the Limited Partner, dated as of November 10, 2010, as amended on June 22, 2011 and December 13, 2011, and the Partner Agreement between OZAII and the Limited Partner, dated as of November 10, 2010, as amended on June 22, 2011 and December 13, 2011 (collectively, the "2010 Partner Agreements") (the 2017 Partner Agreements, the 2013 Partner Agreements and the 2010 Partner Agreements are collectively referred to herein as the "Partner Agreements"). Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to them in the 2017 Partner Agreements.

WHEREAS, this Omnibus Agreement shall be effective upon and subject to the occurrence of the closing of the recapitalization on substantially the terms as contemplated by the Term Sheet, a copy of which is attached hereto as Exhibit A (together with the additional agreements and other documentation implementing the transactions contemplated thereby, the "Term Sheet") (such closing is referred to herein as the "Closing"); provided, that if such Closing does not occur for any reason at any time prior to February 28, 2019, then this Omnibus Agreement shall be null and void and have no further force or effect.

WHEREAS, pursuant to the terms and conditions set forth in the Term Sheet, the Limited Partner shall be, among other things, (i) subject to the equity reallocation requirements in respect of the Class A common units in each of the Operating Partnerships then-held by the Limited Partner into a separate class of units in each of the Operating Partnerships, (ii) eligible to receive a grant of Class E common units in each of the Operating Partnerships (the "Class E Units") subject to the applicable vesting terms set forth therein, (iii) eligible to make a one-time election to retain an additional grant of Class E Units in place of the Class D common units in the Operating Partnerships, whether vested or unvested, held by the Limited Partner or any of his Related Trusts (if applicable), subject to the applicable vesting terms set forth therein, (iv) subject to a "Distribution Holiday" (as defined in the Term Sheet) with respect to those Class A


restricted share units of Och-Ziff ("RSUs") and Class A common units, Class D common units, Class E common units and Class P common units in each Operating Partnership, if any, that are then-held by the Limited Partner or any of his Related Trusts (if applicable), (v) subject to a reduction of certain variable compensation payable to the Limited Partner, (vi) subject to certain changes to the restrictive covenant obligations of the Limited Partner, and (vii) eligible to participate in the 2018 Partner Incentive Pool (which shall be extended during the Distribution Holiday), as may be amended or extended from time to time, in each case, with the terms and conditions of the Term Sheet incorporated by reference herein.

WHEREAS, the Limited Partner and each of the Operating Partnerships desire to enter into this Omnibus Agreement to give effect to the transactions contemplated by the Term Sheet as set forth herein.

NOW THEREFORE, in consideration of the mutual promises and agreements herein made and intending to be legally bound hereby, the parties hereto hereby agree to amend the 2017 Partner Agreements as follows, effective as of the Closing (the "Effective Date"):

1. Term. The second paragraph of the recitals to each of the 2017 Partner Agreements is hereby amended and restated in its entirety as follows:

"Term. The term of the Limited Partner’s services hereunder shall expire on the earlier to occur of (i) December 31, 2022 or (ii) the date on which the Limited Partner ceases to be an Active Individual LP (the "Term"). Unless the parties hereto otherwise agree in writing and subject to Section 13(b), if the Limited Partner continues in service as an Active Individual LP following the expiration of the Term, the Limited Partner’s service shall be on an "at-will" basis; provided, that the respective rights and obligations of the parties hereunder, to the extent expressly set forth herein, shall survive the expiration of the Term and shall be fully enforceable thereafter."

2. Withdrawal and Vesting Provisions. Section 3 of each of the 2017 Partner Agreements is hereby amended by:

(i) Adding the following clause (vii) to the end of paragraph (a) of such Section 3:

"(vii) Continuation during the Term and Thereafter. The provisions of this paragraph (a) shall continue during the Term and thereafter for so long as the Limited Partner continues in service as an Active Individual LP."

(ii) Adding the following new paragraphs (aa) through (dd) immediately after paragraph (a) of such Section 3:

"(aa) Deferred Cash Interests. During and after the Term, deferred cash interests awarded under the Och-Ziff Deferred Cash Interest Plan, as may be amended from time to time (the "DCI Plan" and such interests, the "Deferred Cash Interests") shall vest as specified in the DCI Plan and any Award Agreement (as defined in the DCI Plan) entered into by the Limited Partner with respect to the grant of such Deferred Cash Interests, and additionally the consequences with respect to the Deferred Cash Interests of any breach by the Limited Partner of any of the covenants set forth in Section 2.13(b)(i) (as modified hereunder) and Section 2.13(b)(ii) of the Limited Partnership Agreement shall be as set forth

2


in Section 3(b)(ii); provided, that any continued vesting of Deferred Cash Interests permitted under the terms of the DCI Plan or any Award Agreement after the Limited Partner ceases to be an Active Individual LP is subject to the Limited Partner’s compliance with Section 3(dd) below, and if the Limited Partner breaches any of the covenants set forth in Section 2.13(b)(i) (as modified hereunder) and Section 2.13(b)(ii) of the Limited Partnership Agreement, then the consequences shall be as set forth in Section 3(b)(ii).

(bb) RSUs. During and after the Term, thirty-three and one-third percent (33-1/3%) of the number of RSUs granted under any Annual RSU Award (as defined below) will vest on January 1 of the calendar year following the grant date of the relevant award and, thereafter, on the first and second anniversaries of such initial vesting date (each, a "Vest Date"); provided, that: (A) the Limited Partner will have no right to any unvested RSUs on any such Vest Date if the Limited Partner is not an Active Individual LP on such Vest Date, except that the unvested RSUs shall not be forfeited and shall vest on the date such RSUs would have otherwise vested if the Limited Partner ceases to be an Active Individual LP due to death or Disability, or as a result of a Termination without Cause; (B) any continued vesting of RSUs permitted under the terms of this Agreement after the Limited Partner ceases to be an Active Individual LP is subject to the Limited Partner’s compliance with Section 3(dd) below; and (C) if the Limited Partner breaches any of the covenants set forth in Section 2.13(b)(i) (as modified hereunder) and Section 2.13(b)(ii) of the Limited Partnership Agreement, then the consequences shall be as set forth in Section 3(b)(ii).

(cc) Class E-1 Common Units. In the event that the Limited Partner is subject to a Withdrawal during or after the Term, the Class E-1 Common Units (as defined below) then held by the Limited Partner shall be subject to the vesting and forfeiture terms set forth in the Class E-1 Common Unit Award Agreement and the respective Limited Partnership Agreement of each of the Operating Partnerships then in-effect.

(dd) Conditions Precedent. As a condition precedent to (i) any continued or accelerated vesting of RSUs permitted under the terms of this Agreement or any Award Document (as defined below) evidencing such RSUs after the Limited Partner ceases to be an Active Individual LP, (ii) any continued vesting of Deferred Cash Interests that may be permitted under the terms of the DCI Plan or any Award Agreement after the Limited Partner ceases to be an Active Individual LP, or (iii) any continued or accelerated vesting of Class E-1 Common Units (as permitted under the terms of the Class E-1 Common Unit Award Agreement) or any Class E-2 Common Units, in each case, pursuant to the respective Limited Partnership Agreement of each of the Operating Partnerships then in-effect after the Limited Partner ceases to be an Active Individual LP (other than due to death), in any case, the Limited Partner (or for purposes of clause (x), the Limited Partner’s legal representative or estate, as applicable) must: (x) execute a general release agreement in compliance with Section 8.3(g) of the Limited Partnership Agreement and such general release must become effective as provided therein, and (y) continue to comply with all applicable obligations and restrictions set forth in this

3


Agreement, the Limited Partnership Agreement, or any other agreement between the Limited Partner and the Partnership, including, without limitation, any restrictive covenants to which the Limited Partner is subject."

3. Non-Competition Covenant. Paragraph (i) of Section 3(b) of each of the 2017 Partner Agreements is hereby amended and restated in its entirety as follows:

"(i) Non-Competition Covenant. Notwithstanding any provisions of the Existing Partner Agreements, this Agreement or the Limited Partnership Agreement to the contrary, during and after the Term (but for the period following the Term, only with respect to the 12-month period set forth in (y) below) the Restricted Period with respect to the Limited Partner shall, solely for purposes of Section 2.13(b)(i) of the Limited Partnership Agreement, conclude on the last day of the following: (A) if the Limited Partner is subject to a Termination without Cause, the 12-month period immediately following the date of such Termination without Cause (or such lesser period as may be determined by the Board in its sole discretion), or (B) if the Limited Partner is subject to a Withdrawal for any reason other than a Termination without Cause (including, for the avoidance of doubt, due to the

End of Preview