GENPACT LIMITED PERFORMANCE SHARE AWARD AGREEMENT
Exhibit
10.1
GENPACT
LIMITED
2007
OMNIBUS INCENTIVE COMPENSATION PLAN
THIS
PERFORMANCE SHARE AWARD AGREEMENT (the “Agreement”), dated as
of ________ __, 2010 (the “Award Date”), is made
by and between Genpact Limited, an exempted limited company organized under the
laws of Bermuda (the “Company”) and _______________ (“Participant”). To
the extent not defined herein, all capitalized terms in this Agreement shall
have the meanings assigned to them in the Genpact Limited 2007 Omnibus Incentive
Compensation Plan (the “Plan”).
RECITALS:
WHEREAS,
the Company has adopted the Plan for the purpose of promoting the interests of
the Company and its shareholders by attracting and retaining exceptional
directors, officers, employees and consultants and enabling such individuals to
participate in the long-term growth and financial success of the
Company.
WHEREAS,
the Committee has determined that it is in the best interests of the Company and
its shareholders to grant to Participant a performance share award under the
Plan as provided for herein.
NOW,
THEREFORE, for and in consideration of the premises and covenants of the parties
contained in this Agreement, and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto, for themselves,
their successors and assigns, hereby agree as follows:
1. Grant of Performance Shares
Award. The
Company hereby awards to Participant, as of the Award Date, a performance share
award (the “Award”) under the
Plan entitling Participant to receive a number of Shares based on the extent, if
any, to which the applicable performance goals specified in Appendix A of this
Agreement (the “Performance Goals”)
for the performance period commencing on January 1, 2010 and ending on December
31, 2012 (the “Performance Period”)
have been attained. The initial number of Shares that shall be used
to determine Participant’s rights pursuant to this Award is «Shares_Granted»
(the “Target
Performance Shares”). The number of Target Performance Shares
shall be used solely to calculate the actual number of Shares that may be issued
to Participant under this Agreement (“Actual Performance
Shares”). The number of Actual Performance Shares to which
Participant may become entitled under this Agreement shall be calculated
following the end of the Performance Period and shall be based on the level at
which the Performance Goals for the Performance Period are determined to have
been attained. Both the number of Target Performance Shares and
Actual Performance Shares shall be subject to adjustment as set forth in the
Plan.
The
number of Actual Performance Shares to which Participant may become entitled at
the end of the Performance Period shall be calculated by multiplying the
designated number of Target Performance Shares by a performance percentage
ranging from 0% to 150%. The actual performance percentage to be used
for such purpose shall be determined in accordance with the methodology set
forth in Appendix A and shall be tied to the attained level of Company
performance for the Performance Period described in Appendix A. In no
event may the number of Actual Performance Shares exceed one hundred fifty
percent (150%) of the Target Performance Shares.
Notwithstanding
the foregoing, in the event of a Change of Control during the Performance
Period, the number of Shares issuable under this Award shall be determined as
set forth in Paragraph 4 below.
2. Performance
Goals.
(a) Committee
Determination. Following the end of the Performance Period,
the Committee shall determine whether and the extent to which the Performance
Goals have been achieved for the Performance Period and shall determine the
number of Shares, if any, issuable to Participant with respect to the level of
achievement of the Performance Goals; provided that with respect to any Award to
a “covered employee” within the meaning of Section 162(m) of the Code, the
Committee shall have certified the achievement of the Performance
Goals. The Committee’s determinations with respect to the achievement
of the Performance Goals shall be based on the Company’s audited financial
statements, subject to any adjustments made by the Committee in accordance with
Paragraph 2(c) below. If the threshold levels for the Performance
Goals are not achieved, the Award shall be cancelled and Participant shall
thereupon cease to have any right or entitlement to receive any Shares under the
Award.
(b) Committee Discretion to Reduce or
Eliminate Award. Notwithstanding satisfaction, achievement or
completion of the Performance Goals (or any adjustments thereto as provided
below), the number of Shares issuable hereunder may be reduced or eliminated by
the Committee on the basis of such further considerations as the Committee in
its sole discretion shall determine.
(c) Modification of Performance
Goals. The Committee shall have the right to adjust or modify
the calculation of the Performance Goals as permitted under the
Plan.
(d) Section 162(m). To the extent
the Committee has determined that this Award is intended to comply with the
performance-based exception to Section 162(m) of the Code and Participant is a
“covered employee” within the meaning of Section 162(m) of the Code, all actions
taken hereunder (including without limitation any adjustments of Performance
Goals) shall be made in a manner which would comply with Section 162(m) of the
Code.
3. Cessation of Employment or
Service; Disability or Death.
(a) Should
Participant cease continued employment or service with the Company or an
Affiliate for any reason prior to the end of the Performance Period, the Award
shall be immediately canceled and Participant shall thereupon cease to have any
right or entitlement to receive any Shares under the Award; provided, however,
that should a Change of Control occur during the Performance Period, then the
provisions of Paragraph 4 shall govern the number of Shares issuable under the
Award.
(b) Notwithstanding
Paragraph 3(a), in the event of Participant’s termination of continued
employment or service with the Company or an Affiliate that occurs during the
last year of the Performance Period by reason of death or Disability,
Participant shall, following the completion of the Performance Period, be
entitled to receive a number of Shares determined by multiplying the number of
Shares (if any) to which Participant would be entitled based on the actual level
at which the Performance Goals are achieved by a fraction, the numerator of
which is the number of months of service in the Performance Period prior to the
termination (rounded up to the closest whole month) and the denominator of which
is thirty-six (36).
4. Change of
Control: In
the event a Change of Control occurs during the Performance Period, the number
of Shares issuable under this Award and the date of issuance of the Shares shall
be determined as follows notwithstanding any provisions of this Agreement or the
Plan to the contrary:
(a) In the
event the Change of Control occurs within the first twelve (12) months of the
Performance Period and Participant remains in continued employment or service
with the Company or an Affiliate through the effective date of that Change of
Control, then this Award shall be converted into a right to receive the number
of Target Performance Shares without any measurement of Performance Goal
attainment to date, subject to the provisions of Paragraphs 4(c) and 4(d)
below.
(b) If the
Change of Control occurs on or after completion of the first twelve (12) months
of the Performance Period and Participant remains in continued employment or
service with the Company or an Affiliate through the effective date of that
Change of Control, this Award shall be converted into the right to receive the
number of Shares determined by multiplying (A) the number of Target Performance
Shares by (B) the applicable performance percentage (determined in accordance
with the performance percentage matrix in attached Appendix A) for the levels at
which the Performance Goals are attained over an abbreviated Performance Period
ending with the close of the Company’s fiscal quarter coincident with or
immediately preceding the effective date of the Change of Control, subject to
the provisions of Paragraphs 4(c) and 4(d) below.
(c) If this
Award is assumed, continued or substituted in connection with the Change of
Control in accordance with the Plan, then provided Participant remains in
continued employment or service with the Company or an Affiliate through the
completion of the Performance Period, the Shares, or other consideration payable
in connection with such assumption, continuation or substitution, issuable under
this Award (as determined pursuant to Paragraphs 4(a) or 4(b)) shall be issued
on January 1, 2013 or as soon as practicable thereafter but in no event later
than March 15, 2013. If Participant's continued employment or service
terminates prior to completion of the Performance Period, then except as
otherwise provided in Paragraph 4(f), the Award shall be immediately cancelled
upon such termination and Participant shall thereupon cease to have any right or
entitlement to receive any Shares or other consideration under the
Award.
(d) If this
Award is not assumed, continued or substituted in connection with the Change of
Control in accordance with the Plan, then the Shares issuable under this Award
(as determined pursuant to Paragraphs 4(a) or 4(b)) shall be issued on the
effective date of the Change of Control or as soon as administratively
practicable thereafter, but in no event more than fifteen (15) business days
after such effective date.
(e) Following
a Change of Control, Participant shall not have any right to receive any Shares
under this Award in excess of the number of Shares determined under this
Paragraph 4.
(f) Notwithstanding
anything to the contrary, in the event of an Involuntary Termination within
twenty-four (24) months following a Change of Control that occurs during the
Performance Period and in connection with which this Award is assumed, continued
or substituted, the Shares, or other consideration payable in connection with
such assumption, continuation or substitution issuable under this Award, (as
determined pursuant to Paragraphs 4(a) or 4(b) above) shall be issued
immediately upon such Involuntary Termination or as soon as practicable
thereafter, but in no event more than fifteen (15) business days after such
Involuntary Termination.
(g) Each
issuance of Shares shall be subject to the Company’s collection of any
Applicable Taxes.
(h) For
purposes of this Agreement, the following definitions shall apply:
(i) “Involuntary
Termination” shall mean the termination of Participant’s continued employment or
service with the Company or an Affiliate which occurs by reason of such
individual’s involuntary dismissal or discharge by the Company (or Affiliate)
for reasons other than Cause.
(ii) “Cause”
shall mean “Cause” as defined in any employment or consulting agreement between
Participant and the Company or an Affiliate in effect at the time of termination
or, in the absence of such an employment or consulting agreement: (A) any
conviction by a court of, or entry of a pleading of guilty or nolo contendere by
Participant with respect to, a felony or any lesser crime involving moral
turpitude or a material element of which is fraud or dishonesty; (B)
Participant’s willful dishonesty of a substantial nature towards the Company and
any of its Affiliates; (C) Participant’s use of alcohol or drugs which
materially interferes with the performance of his duties to the Company and/or
its Affiliates or which materially compromises the integrity and reputation of
Participant or the Company and/or its Affiliates; or (D) Participant’s material,
knowing and intentional failure to comply with material applicable laws with
respect to the execution of the Company’s and its Affiliates’ business
operations.
5. Issuance of Share;
Withholding.
(a) Except as
otherwise provided under Paragraph 4, the Company shall issue the Actual
Performance Shares to which Participant becomes entitled as soon as practicable
following the determination under Paragraph 2 above but in no event later than
the fifteenth (15th) day of the third (3rd) calendar month following the end of
the Performance Period, subject to the Company’s collection of any Applicable
Taxes.
(b) Any
Applicable Taxes required to be withheld with respect to the issuance of the
Shares under this Agreement shall be paid through an automatic Share withholding
procedure pursuant to which the Company will withhold, at the time of such
issuance, a portion of the Shares with a Fair Market Value (measured as of the
issuance date) equal to the amount of those taxes. Notwithstanding
the foregoing, the Company may, in its sole discretion, require that such
Applicable Taxes be paid through Participant’s delivery of his or her separate
check payable to the Company in the amount of such taxes.
(c) In no
event will any fractional shares be issued.
(d) The
holder of this Award shall not have any shareholder rights, including voting or
dividend rights, with respect to the Shares subject to the Award until
Participant becomes the record holder of those Shares following their actual
issuance after the satisfaction of the Applicable Taxes.
6. Limited
Transferability. Prior to actual receipt of the Shares which
vest and become issuable hereunder, Participant may not transfer any interest in
the Award or the underlying Shares. Any Shares which vest hereunder
but which otherwise remain unissued at the time of Participant’s death may be
transferred pursuant to the provisions of Participant’s will or the laws of
inheritance or to Participant’s designated beneficiary or beneficiaries of this
Award. Participant may make such a beneficiary designation at any
time by filing the appropriate form with the Committee or its
designee.
7. Clawback. If
Participant has breached any restrictive covenant (whether non-solicitation,
non-competition, non-disparagement or confidentiality) under any agreement
between Participant and the Company or an Affiliate during employment or during
the one (1) year period following termination of Participant’s employment or
service with the Company or an Affiliate, the Company shall have the right to
terminate this Award (and Participant shall thereupon cease to have any right or
entitlement to receive any Shares under this Award) to the extent outstanding
and to cancel any Shares issued hereunder and be paid any proceeds received by
Participant from the sale of Shares issued hereunder.
8. Section
409A. Notwithstanding
any provision to the contrary in this Agreement, to the extent this Award may be
deemed to create a deferred compensation arrangement under Code Section 409A,
then Shares or other amounts which become issuable or distributable under this
Agreement by reason of Participant’s cessation of continued
employment or service shall actually be issued or distributed to Participant
prior to the earlier of
(i) the first day of the seventh (7th) month following the date of Participant’s
Separation from Service (as determined under Code Section 409A and Treasury
Regulations thereunder) or (ii) the date of Participant’s death, if Participant
is deemed at the time of such Separation from Service to be a specified employee
under Section 1.409A-1(i) of the Treasury Regulations issued under Code Section
409A, as determined by the Committee in accordance with consistent and uniform
standards applied to all other Code Section 409A arrangements of the Company,
and such delayed commencement is otherwise required in order to avoid a
prohibited distribution under Code Section 409A(a)(2). The deferred Shares or
other distributable amount shall be issued or distributed in a lump sum on the
first day of the seventh (7th) month following the date of Participant’s
Separation from Service or, if earlier, the first day of the month immediately
following the date the Company receives proof of Participant’s
death.
9. Compliance with Laws and
Regulations. The issuance of Shares
pursuant to the Award shall be subject to compliance by the Company and
Participant with all applicable laws, rules and regulations and to such
approvals by any regulatory or governmental agency as may be
required. The Committee, in its sole discretion, may postpone the
issuance or delivery of Shares as the Committee may consider appropriate and may
require Participant to make such representations and furnish such information as
it may consider appropriate in connection with the issuance or delivery of
Shares in order to be in compliance with applicable laws, rules and
regulations.
10. Successors and
Assigns. Except to the extent otherwise provided in this
Agreement, the provisions of this Agreement shall inure to the benefit of, and
be binding upon, the Company and its successors and assigns and Participant and
Participant’s assigns, beneficiaries, executors, administrators, heirs and
successors.
11. Notices. All
notices, demands and other communications provided for or permitted hereunder
shall be made in writing and shall be by registered or certified first-class
mail, return receipt requested, telecopier, courier service or personal
delivery:
if to the
Company:
Genpact
Limited
Canon’s
Court
00
Xxxxxxxx Xxxxxx
Xxxxxxxx
XX EX
Bermuda
Attn: Secretary
with a
copy to:
Genpact
Process Solutions, LLC
000
Xxxxxxx Xxxxxx
Xxxxxx
Xxxxx
Xxx Xxxx,
XX 00000
Attn: Legal
Department
if to
Participant, at Participant’s last known address on file with the
Company.
All such
notices, demands and other communications shall be deemed to have been duly
given when delivered by hand, if personally delivered; when delivered by
courier, if delivered by commercial courier service; five (5) business days
after being deposited in the mail, postage prepaid, if mailed; and when receipt
is mechanically acknowledged, if telecopied.
12. Construction. This
Agreement and the Award evidenced hereby are made and granted pursuant to the
Plan and are in all respects limited by and subject to the terms of the
Plan. All decisions of the Committee with respect to any question or
issue arising under the Plan or this Agreement shall be conclusive and binding
on all persons having an interest in the Award.
13. Governing
Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of New York without regard to principles
of conflicts of law thereof, or principles of conflicts of laws of any other
jurisdiction which could cause the application of the laws of any jurisdiction
other than the State of New York. Each Participant and the Company
hereby waive, to the fullest extent permitted by applicable law, any right
either of them may have to a trial by jury in respect to any litigation directly
or indirectly arising out of, under or in connection with this Agreement or the
Plan.
14. No Impairment of
Rights. This Agreement shall not in any way be construed or
interpreted so as to affect adversely or otherwise impair in any way the rights
of the Company or its shareholders to remove Participant from the Board at any
time in accordance with applicable law.
15. Signature in
Counterparts. This Agreement may be signed in counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto were upon the same instrument.
IN WITNESS WHEREOF, the
parties have executed this Agreement on the day and year first indicated
above.
GENPACT
LIMITED
Signature:
Name:
Title:
PARTICIPANT
Signature:
Name:
Address:
Appendix
A
Organic Performance
Goals: The
Performance Goals to be achieved under the Award are 3-year Average Revenue
Growth and 3-year
Average EBITDA Growth for the Company for the Performance Period commencing on
January 1, 2010 and ending on December 31, 2012. For each goal there
are three designated levels of attainment – threshold, target and
outstanding.
|
Performance
Level
|
3-Year
Avg. Revenue Growth
|
3-Year
Avg. Average EBITDA Growth
|
|
Outstanding
|
20%
|
20%
|
|
Target
|
15%
|
15%
|
|
Threshold
|
10%
|
10%
|
|
·
|
For
such purpose, Revenue Growth and EBITDA Growth shall be calculated without
taking into account the effect of any acquisition or
restructuring.
|
|
·
|
The
Actual Performance Shares to which Participant may become entitled at the
end of the Performance Period shall be calculated by multiplying the
designated number of Target Performance Shares by a performance percentage
based on the level of achievement of each performance goal as follows (and
rounding down to the nearest whole
number):
|
|
Avg.
Organic Revenue Growth
|
||||||
|
10.0%
|
12.5%
|
15.0%
|
17.5%
|
20.0%
|
||
|
Avg.
EBITDA Growth
|
10.0%
|
50%
|
63%
|
75%
|
88%
|
100%
|
|
12.5%
|
63%
|
75%
|
88%
|
100%
|
113%
|
|
|
15.0%
|
75%
|
88%
|
100%
|
113%
|
125%
|
|
|
17.5%
|
88%
|
100%
|
113%
|
125%
|
138%
|
|
|
20.0%
|
100%
|
113%
|
125%
|
138%
|
150%
|
|
|
·
|
Straight
line interpolation will apply to performance levels between the ones
illustrated above.
|
|
·
|
If
performance below threshold occurs for either metric, payout on the other
metric will also be zero regardless of
performance.
|
|
·
|
The
goals will be measured based on Company-wide performance on a consolidated
basis.
|
