The Carlyle Group L.P. 2012 Equity Incentive Plan Form of Global Deferred Restricted Common Unit Agreement
Exhibit 10.26
The Carlyle Group L.P.
2012 Equity Incentive Plan
2012 Equity Incentive Plan
Participant:
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Date of Grant: | |
Number of DRUs: |
1. Grant of DRUs. The Carlyle Group L.P. (the “Partnership”) hereby grants
the number of deferred restricted Common Units (the “DRUs”) listed above to the Participant
(the “Award”), effective as of _____________(the “Date of Grant”), on the terms and
conditions hereinafter set forth in this agreement including Appendix A, which includes any
applicable country-specific provisions (together, the “Award Agreement”). This grant is
made pursuant to the terms of The Carlyle Group L.P. 2012 Equity Incentive Plan (as amended,
modified or supplemented from time to time, the “Plan”), which is incorporated herein by
reference and made a part of this Award Agreement. Each DRU represents the unfunded, unsecured
right of the Participant to receive a Common Unit on the delivery date(s) specified in Section 4
hereof.
2. Definitions. Capitalized terms not otherwise defined herein shall have the same
meanings as in the Plan.
(a) “Cause” shall mean the determination by the Administrator that the
Participant has (i) engaged in gross negligence or willful misconduct in the performance of
the Participant’s duties, (ii) willfully engaged in conduct that the Participant knows or,
based on facts known to the Participant, should know is materially injurious to the
Partnership or any of its Affiliates, (iii) materially breached any material provision of
the Participant’s employment agreement or other Restrictive Covenant Agreement with the
Partnership or its Affiliates, (iv) been convicted of, or entered a plea bargain or
settlement admitting guilt for, fraud, embezzlement, or any other felony under the laws of
the United States or of any state or the District of Columbia or any other country or any
jurisdiction of any other country (but specifically excluding felonies involving a traffic
violation), (v) been the subject of any order, judicial or administrative, obtained or
issued by the U.S. Securities and Exchange Commission (“SEC”) or similar agency or
tribunal of any country, for any securities violation involving xxxxxxx xxxxxxx, fraud,
misappropriation, dishonesty or willful misconduct (including, for example, any such order
consented to by the Participant in which findings of facts or any legal conclusions
establishing liability are neither admitted nor denied), or (vi) discussed the Partnership’s
(or its Affiliates’) fundraising efforts, or the name of any fund vehicle that has not had a
final closing of commitments, to any reporter or representative of any press or other public
media.
(b) “Qualifying Event” shall mean,
during the Participant’s Services with the
Partnership and its Affiliates, the Participant’s death or Disability.
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(c) “Restrictive Covenant Agreement” shall mean any agreement, and any
attachments or schedules thereto, entered into by and between the Participant and the
Partnership or its Affiliates, pursuant to which the Participant has agreed, among other
things, to certain restrictions relating to non-competition (if applicable),
non-solicitation and/or confidentiality, in order to protect the business of the Partnership
and its Affiliates.
(d) “Vested DRUs” shall mean those DRUs which have become vested pursuant to
Section 3 or otherwise pursuant to the Plan.
(e) “Vesting Dates” shall mean each of the vesting dates set forth in Section
4(a) hereof.
3. Vesting.
(a) Vesting — General. Subject to
the Participant’s continued Services with the
Partnership and its Affiliates, the Award shall vest on the applicable Vesting Dates as
follows:
(i) The DRUs granted hereunder shall vest in installments on each Vesting Date
as set forth in Section 4(a) hereof.
(b) Vesting — Death or Disability. Upon the occurrence of a Qualifying Event, 100% of
the DRUs granted hereunder shall vest (to the extent not previously vested) upon the date of
such Qualifying Event.
(c) Vesting —Terminations. Except as
otherwise set forth in Section 3(b), in the
event the Participant’s Services with the Partnership and its
Affiliates are terminated for
any reason, the portion of the Award that has not yet vested pursuant to Section 3(a) or
3(b) hereof (or otherwise pursuant to the Plan) shall be cancelled immediately and the
Participant shall automatically forfeit all rights with respect to such portion of the Award
as of the date of such termination.
4. Vesting and Delivery Dates.
(a) Delivery — General. The Partnership shall, on or within 30 days following a
Vesting Date, deliver to the Participant the Common Units underlying the DRUs that vest and
become Vested DRUs on such Vesting Date. The general vesting and delivery terms with
respect to the DRUs are set forth in the table below.
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| Annual Vesting / | Cumulative Vesting / | |||||||||
| Vesting Dates | Delivery | Delivery | ||||||||
(b) Delivery — Death or Disability. Upon the occurrence of a Qualifying Event, the
Partnership shall, within 30 days following the date of such event, deliver Common Units to
the Participant in respect of 100% of the DRUs which vest and become Vested DRUs on such
date.
(c) Delivery — Terminations. Except as otherwise set forth in Section 4(b) or 4(d),
in the event the Participant’s Services with the Partnership and
its Affiliates are terminated for any reason, the Partnership shall within 30 days following the date of such
termination, deliver Common Units to the Participant in respect of any then outstanding
Vested DRUs.
(d) Forfeiture — Cause Termination or Breach of Restrictive Covenants.
Notwithstanding anything to the contrary herein, upon the termination of the Participant’s
Services by the Partnership or any of its Affiliates for Cause or upon the Participant’s
breach of any of the restrictive covenants contained within an applicable Restrictive
Covenant Agreement, all outstanding DRUs (whether or not vested) shall immediately terminate
and be forfeited without consideration and no further Common Units with respect of the Award
shall be delivered to the Participant or to the Participant’s legal representative,
beneficiaries or heirs. Without limiting the foregoing, any Common Units that have
previously been delivered to the Participant or the Participant’s legal representative,
beneficiaries or heirs pursuant to the Award and which are still held by the Participant or
the Participant’s legal representative, or beneficiaries or heirs as of the date of such
termination for Cause or such breach, shall also immediately terminate and be forfeited
without consideration.
5. Change in Control. Notwithstanding anything to the contrary herein, in the event
of a Change in Control, (i) 100% of the DRUs granted hereunder which then remain outstanding shall
vest (to the extent not previously vested) upon the date of such Change in Control, and (ii) the
Partnership shall deliver Common Units to the Participant at the same times as would otherwise be
delivered pursuant to Section 4(a); provided, however, if such Change in Control
(or any subsequent Change in Control) would constitute “a change in the ownership or effective
control” or a “change in the ownership of a substantial portion of the assets” of the Partnership
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(in each case within the meaning of Section 409A of the Code), the Partnership shall instead
deliver Common Units to the Participant in respect of 100% of the then outstanding DRUs on or
within 10 days following such Change in Control.
6. Dividends. No dividends or other distributions shall accrue or become payable with
respect to any DRUs prior to the date upon which they become Vested DRUs. If on any date while
Vested DRUs are outstanding hereunder (i.e., prior to the settlement of Common Units with respect
to such Vested DRUs) the Partnership shall pay any cash distributions on the Common Units, the
Participant shall be entitled to receive, as of such distribution date, a cash payment equal to the
product of (a) the number of Vested DRUs, if any, held by the Participant as of the related
distribution date, multiplied by (b) the per Common Unit amount of such cash distribution.
7. Adjustments Upon Certain Events. The Administrator shall make certain
substitutions or adjustments to any DRUs subject to this Award Agreement pursuant to Section 9 of
the Plan.
8. Nature of Grant. In accepting the grant, the Participant acknowledges,
understands, and agrees that:
(a) the Plan is established voluntarily by the Partnership, it is discretionary in
nature and it may be modified, amended, suspended or terminated by the Partnership, at any
time, to the extent permitted by the Plan;
(b) the grant of the DRUs is voluntary and occasional and does not create any
contractual or other right to receive future grants of DRUs, or benefits in lieu of DRUs,
even if DRUs have been granted in the past;
(c) all decisions with respect to future DRUs or other grants, if any, will be at the
sole discretion of the Partnership;
(d) the granting of the DRUs evidenced by this Award Agreement shall impose no
obligation on the Partnership or any Affiliate to continue the Services of the Participant
and shall not lessen or affect the Partnership’s or its Affiliate’s right to terminate the
Services of such Participant;
(e) the Participant is voluntarily participating in the Plan;
(f) the DRUs and the Common Units subject to the DRUs are not intended to replace any
pension rights or compensation;
(g) the DRUs and the Common Units subject to the Plan, and the income and value of
same, are not part of normal or expected compensation for purposes of calculating any
severance, resignation, termination, redundancy, dismissal, end-of-service payments,
bonuses, long-service awards, pension or retirement or welfare benefits or similar payments;
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(h) the future value of the underlying Common Units is unknown, indeterminable and
cannot be predicted with certainty;
(i) no claim or entitlement to compensation or
damages shall arise from forfeiture of
the DRUs resulting from termination of the Participant’s Services as set forth in Section
3(c) or 4(c) above for any reason (whether or not later found to be invalid or in breach of
employment laws in the jurisdiction where the Participant is employed, if any, or the terms of the
Participant’s employment agreement, if any), and in consideration of the grant of the DRUs
to which the Participant is otherwise not entitled, the Participant irrevocably agrees never
to institute any claim against the Partnership or any Affiliate, waives his or her ability,
if any, to bring any such claim, and releases the Partnership and its Affiliates from any
such claim; if, notwithstanding the foregoing, any such claim is allowed by a court of
competent jurisdiction, then, by participating in the Plan, the Participant shall be deemed
irrevocably to have agreed not to pursue such claim and agrees to execute any and all
documents necessary to request dismissal or withdrawal of such claim;
(j) in the event of termination of the Participant’s
Services for any reason, except
as set forth in Sections 3(b) and 4(b) (whether or not later to be found invalid or in
breach of employment laws in the jurisdiction where the Participant is employed, if any, or the terms
of the Participant’s employment agreement, if any), unless otherwise determined by the
Partnership, the Participant’s right to vest in the DRUs under the Plan, if any, will
terminate effective as of the date that the Participant is no longer actively providing
services and will not be extended by any notice period (e.g., active services would not
include any contractual notice period or any period of “garden leave” or similar period
mandated under employment laws in the jurisdiction where the Participant is employed, if any, or the
terms of the Participant’s employment agreement, if any); the Administrator shall have the
exclusive discretion to determine when the Participant is no longer actively providing
services for purposes of the DRUs grant (including whether the Participant may still be
considered to be providing services while on an approved leave of absence); and
(k) the following provisions apply only if the Participant is providing services
outside the United States:
(i) the DRUs and the Common Units subject to the
DRUs are not part of normal
or expected compensation or salary for any purpose; and
(ii) the Participant acknowledges and agrees that neither the Partnership nor
any Affiliate shall be liable for any foreign exchange rate fluctuation between the
Participant’s local currency and the United States Dollar that may affect the value
of the DRUs or of any amounts due to the Participant pursuant to the settlement of
the DRUs or the subsequent sale of any Common Units acquired upon settlement.
9. No Advice Regarding Grant. The Partnership is not providing any tax, legal or
financial advice, nor is the Partnership making any recommendations regarding the Participant’s
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participation in the Plan, or the Participant’s acquisition or sale of the underlying Common
Units. The Participant is hereby advised to consult with his or her own personal tax, legal and
financial advisors regarding his or her participation in the Plan before taking any action related
to the Plan.
10. Data Privacy. The Participant hereby explicitly and unambiguously consents to the
collection, use and transfer, in electronic or other form, of the Participant’s personal data as
described in this Award Agreement and any other DRUs grant materials by and among, as applicable,
the Partnership and its Affiliates for the exclusive purpose of implementing, administering and
managing the Participant’s participation in the Plan.
The Participant understands that the Partnership and its Affiliates may hold certain personal
information about the Participant, including, but not limited to, the Participant’s name, home
address and telephone number, date of birth, social insurance number or other identification
number, salary, nationality, job title, any rights or interests held in the Partnership, details of
all DRUs or any other entitlement to Common Units awarded, canceled, exercised, vested, unvested or
outstanding in the Participant’s favor (“Data”), for the exclusive purpose of implementing,
administering and managing the Plan.
The Participant understands that Data will be transferred to a broker, or other service
provider as may be selected by the Partnership in the future, which is assisting the Partnership
with the implementation, administration and management of the Plan. The Participant understands
that the recipients of the Data may be located in the United States or elsewhere, and that the
recipients’ country (e.g., the United States) may have different data privacy laws and protections
than the Participant’s country. The Participant understands that if he or she resides outside the
United States, he or she may request a list with the names and addresses of any potential
recipients of the Data by contacting his or her local human resources representative. The
Participant authorizes the Partnership, the broker, and any other possible recipients which may
assist the Partnership (presently or in the future) with implementing, administering and managing
the Plan to receive, possess, use, retain and transfer the Data, in electronic or other form, for
the sole purpose of implementing, administering and managing his or her participation in the Plan.
The Participant understands that Data will be held only as long as is necessary to implement,
administer and manage the Participant’s participation in the Plan. The Participant understands if
he or she resides outside the United States, he or she may, at any time, view Data, request
additional information about the storage and processing of Data, require any necessary amendments
to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in
writing his or her local human resources representative. Further, the Participant understands that
he or she is providing the consents herein on a purely voluntary basis. If the Participant does
not consent, or if the Participant later seeks to revoke his or her consent, his or her employment
status or service and career with the Partnership or an Affiliate will not be adversely affected;
the only adverse consequence of refusing or withdrawing the Participant’s consent is that the
Partnership would not be able to grant the Participant DRUs or other equity awards or administer or
maintain such awards. Therefore, the Participant understands that refusing or withdrawing his or
her consent may affect the Participant’s ability to participate in the Plan. For more information
on the consequences of the Participant’s refusal to consent or withdrawal of consent, the
Participant understands that he or she may contact his or her local human resources representative.
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11. No Rights of a Holder of Common Units. Except as otherwise provided herein, the
Participant shall not have any rights as a holder of Common Units until such Common Units have been
issued or transferred to the Participant.
12. Restrictions. Any Common Units issued or transferred to the Participant or to the
Participant’s beneficiary pursuant to Section 4 of this Award Agreement (including, without
limitation, following the Participant’s death or Disability) shall be subject to such stop transfer
orders and other restrictions as the Administrator may deem advisable under the Plan or the rules,
regulations, and other requirements of the SEC, any stock exchange upon which such Common Units are
listed and any applicable U.S. or non-U.S. federal, state or local laws, and the Administrator may
cause a notation or notations to be put entered into the books and records of the Partnership to
make appropriate reference to such restrictions.
13. Transferability. Unless otherwise determined or approved by the Administrator, no
DRUs may be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by
the Participant other than by will or by the laws of descent and distribution, and any purported
assignment, alienation, pledge, attachment, sale, transfer or encumbrance not permitted by this
Section 13 shall be void and unenforceable against the Partnership or any Affiliate.
14. Notices. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon
receipt) by delivery in person, by courier service, by fax, or by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties at the following addresses
(or at such other address for a party as shall be specified in a notice given in accordance with
this Section 14):
(a) If to the Partnership, to:
The Carlyle Group L.P.
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
(b) If to the Participant, to the address appearing in the
personnel records of the Partnership or any Affiliate.
15. Withholding. The Participant may be required to pay to the Partnership or, if
different, an Affiliate that employs the Participant (the “Employer”), and the Partnership,
the Employer, or any Affiliate shall have the right and is hereby authorized to withhold from any
compensation or other amount owing to the Participant, applicable income tax, social insurance,
payroll tax, fringe benefits tax, payment on account or other tax-related items (“Tax-Related
Items”), with respect to any issuance, transfer, or other taxable event under this Award
Agreement or under the Plan and to take such action as may be necessary in the opinion of the
Partnership to satisfy all obligations for the payment of such Tax-Related Items. Without limiting
the foregoing, the Administrator may, from time to time, permit the Participant to make
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arrangements prior to any Vesting Date described herein to pay the applicable Tax-Related
Items in a manner prescribed by the Administrator prior to the applicable Vesting Date; provided
that, unless otherwise determined by the Administrator, any such payment or estimate must be
received by the Partnership prior to an applicable Vesting Date. Additionally, the Participant
authorizes the Partnership and/or the Employer to satisfy the obligations with regard to all
Tax-Related Items by withholding from proceeds of the sale of Common Units acquired upon settlement
of the Vested DRUs either through a voluntary sale or through a mandatory sale arranged by the
Partnership (on the Participant’s behalf pursuant to this authorization). The Participant
acknowledges that, regardless of any action taken by the Partnership, the Employer, or any
Affiliate the ultimate liability for all Tax-Related Items, is and remains the Participant’s
responsibility and may exceed the amount actually withheld by the Partnership or the Employer. The
Partnership may refuse to issue or deliver the Common Units or the proceeds from the sale of Common
Units, if the Participant fails to comply with his or her obligations in connection with the
Tax-Related Items.
16. Choice of Law. The interpretation, performance and enforcement of this Award
Agreement shall be governed by the law of the State of New York without regard to its conflict of
law provisions.
17. Subject to Plan. By entering into this Award Agreement, the Participant agrees
and acknowledges that the Participant has received and read a copy of the Plan. All DRUs and
Common Units issued or transferred with respect thereof are subject to the Plan. In the event of a
conflict between any term or provision contained herein and a term or provision of the Plan, the
applicable terms and provisions of the Plan will govern and prevail.
18. Entire Agreement. This Award Agreement contains the entire understanding between
the parties with respect to the DRUs granted hereunder (including, without limitation, the vesting
and delivery schedules described herein and in the Appendix), and hereby replaces and supersedes
any prior communication and arrangements between the Participant and the Partnership or any of its
Affiliates with respect to the matters set forth herein and any other pre-existing economic or
other arrangements between the Participant and the Partnership or any of its Affiliates,
unless otherwise explicitly provided for in any other agreement that the Participant has
entered into with the Partnership or any of its Affiliates and that is set forth on Schedule A
hereto. Unless set forth on Schedule A hereto, no such other agreement entered into prior to the
Date of Grant shall have any effect on the terms of this Award Agreement.
19. Modifications. Notwithstanding any provision of this Award Agreement to the
contrary, the Partnership reserves the right to modify the terms and conditions of this Award
Agreement, including, without limitation, the timing or circumstances of the issuance or transfer
of Common Units to the Participant hereunder, to the extent such modification is determined by the
Partnership to be necessary to comply with applicable law or preserve the intended deferral of
income recognition with respect to the DRUs until the issuance or transfer of Common Units
hereunder.
20. Signature in Counterparts; Electronic Acceptance. This Award Agreement may be
signed in counterparts, each of which shall be an original, with the same effect as if the
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signatures thereto and hereto were upon the same instrument. Alternatively, this Award
Agreement may be granted to and accepted by the Participant electronically.
21. Electronic Delivery. The Partnership may, in its sole discretion, decide to
deliver any documents related to current or future participation in the Plan by electronic means.
The Participant hereby consents to receive such documents by electronic delivery and agrees to
participate in the Plan through an on-line or electronic system established and maintained by the
Partnership or a third party designated by the Partnership.
22. Compliance with Law. Notwithstanding any other provision of this Award Agreement,
unless there is an available exemption from any registration, qualification or other legal
requirement applicable to the Common Units, the Partnership shall not be required to deliver any
Common Units issuable upon settlement of the DRUs prior to the completion of any registration or
qualification of the Common Units under any local, state, federal or foreign securities or exchange
control law or under rulings or regulations of the SEC or of any other governmental regulatory
body, or prior to obtaining any approval or other clearance from any local, state, federal or
foreign governmental agency, which registration, qualification or approval the Partnership shall,
in its absolute discretion, deem necessary or advisable. The Participant understands that the
Partnership is under no obligation to register or qualify the Common Units with the SEC or any
state or foreign securities commission or to seek approval or clearance from any governmental
authority for the issuance or sale of the Common Units. Further, the Participant agrees that the
Partnership shall have unilateral authority to amend the Plan and the Award Agreement without the
Participant’s consent to the extent necessary to comply with securities or other laws applicable to
issuance of Common Units.
23. Language. If the Participant has received this Award Agreement or any other
document related to the Plan translated into a language other than English and if the meaning of
the translated version is different than the English version, the English version will control.
24. Severability. The provisions of this Award Agreement are severable and if any one
or more provisions are determined to be illegal or otherwise unenforceable, in whole or in part,
the remaining provisions shall nevertheless be binding and enforceable.
25. Appendix. Notwithstanding any provisions in this Award Agreement, the DRUs grant
shall be subject to any special terms and conditions set forth in Appendix A to this Award
Agreement for the Participant’s country. Moreover, if the Participant relocates to one of the
countries included in Appendix A, the special terms and conditions for such country will apply to
the Participant, to the extent the Partnership determines that the application of such terms and
conditions is necessary or advisable for legal or administrative reasons. Appendix A constitutes
part of this Award Agreement.
26. Imposition of Other Requirements. The Partnership reserves the right to impose
other requirements on the Participant’s participation in the Plan, on the DRUs and on any Common
Units acquired under the Plan, to the extent the Partnership determines it is necessary or
advisable for legal or administrative reasons, and to require the Participant to sign any
additional agreements or undertakings that may be necessary to accomplish the foregoing.
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27. Waiver. The Participant acknowledges that a waiver by the Partnership of breach
of any provision of this Award Agreement shall not operate or be construed as a waiver of any other
provision of this Award Agreement, or of any subsequent breach by the Participant or any other
participant.
[Signatures on next page (if applicable).]
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IN WITNESS WHEREOF, the parties hereto have executed this Award Agreement.1
| The Carlyle Group L.P. |
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| By: | ||||
| Name: | ||||
| The Participant |
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| By: | ||||
| Name: | ||||
| 1 | If this Award Agreement is delivered to the Participant electronically, the Participant’s electronic acceptance of the Award Agreement (pursuant to instructions separately communicated to the Participant) shall constitute acceptance of the Award Agreement and shall be binding on the Participant and the Partnership in lieu of any required signatures to this Award Agreement. |
