FIRST AMENDMENT TO AGREEMENT
Exhibit 10.1
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
FIRST AMENDMENT TO
This First Amendment (the “Amendment”) entered into and effective March 23, 2009 amends that certain Agreement dated as of November 30, 2005 (as amended, modified and supplemented from time to time, the “Agreement”) by and between Genpact Global Holdings (Bermuda) Limited (as successor in business to Genpact Global Holdings SICAR S.a.r.l.), a Bermuda company with an office at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000 (the “Company”), Macro*World Research Corporation, a North Carolina corporation (“WB”) and Xxxxx Fargo & Company, a Delaware corporation (as successor in interest by merger to Wachovia Corporation) (“Guarantor”). Capitalized terms used herein and not otherwise defined have the meaning given in the Agreement.
WHEREAS, the parties to the Agreement have agreed to amend the Agreement as provided herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and of other good and valid consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
AMENDMENTS TO THE AGREEMENT
1. The definition of “2010 FTE Measurement Date” shall be deleted in its entirety and wherever the term “2010 FTE Measurement Date” is used in the Agreement, it shall be replaced by the term “2011 Revenue Measurement Date” which shall be defined to mean “December 31, 2011.”
2. The definition of “2011 Cash Payment” shall be deleted in its entirety and wherever the term “2011 Cash Payment” is used in the Agreement, it shall be replaced by the term “2012 Cash Payment” which shall be defined as “2011 Cash Payment” was defined, subject to making conforming changes to reflect the amendments of this Amendment, and a new subsection (iii) shall be added to the definition as follows:
“(iii) Notwithstanding anything herein to the contrary, at the 2011 Revenue Measurement Date, (A) if Annualized Revenue is greater than or equal to [**], then the 2012 Cash Payment shall not exceed [**] and (B) if Annualized Revenue is less than [**], then the 2012 Cash Payment shall not exceed [**].”
3. The definition of “Early Termination Cash Payment” shall be amended by adding a new subsection (iii) as follows:
“(iii) Notwithstanding anything herein to the contrary, at the MSA Termination Date, (A) if Annualized Revenue is greater than or equal to [**], then the Early Termination Cash Payment shall not exceed [**] and (B) if Annualized Revenue is less than [**], then the Early Termination Cash Payment shall not exceed [**].”
4. The definition of “Applicable FTE Level” shall be deleted in its entirety and wherever the term “Applicable FTE Level” is used in the Agreement, it shall be replaced by the term “Applicable Revenue Level” which shall be defined to mean:
“(i) when calculating the 2012 Cash Payment, the Annualized Revenue as of the 2011 Revenue Measurement Date, and (ii) when calculating the Early Termination Cash Payment, the Annualized Revenue on the MSA Termination Date.”
5. The definition of “Applicable Share Amount” shall be deleted in its entirety and replaced as follows:
(i) ““Applicable Share Amount” means [**]”
6. The following new definitions shall be added to the Agreement:
“Annualized Revenue” means (i) with respect to the 2011 Revenue Measurement Date, the actual Revenue paid under the Master Professional Services Agreement for the three month period ending on the 2011 Revenue Measurement Date multiplied by four and (ii) with respect to the MSA Termination Date, the actual Revenue paid under the Master Professional Services Agreement for the three month period ending on the MSA Termination Date multiplied by four.
“Revenue” means Charges paid under the Master Professional Services Agreement for Services (each as defined in the Master Professional Services Agreement).”
7. Exhibit A attached to the Agreement shall be deleted in its entirety and replaced with Exhibit A hereto.
8. Section 2.01 (Cash Payment) shall be amended by replacing the reference to “January 31, 2011” with “January 31, 2012”.
9. Section 3.10 (Notices) of the Agreement shall be amended by replacing the contact information for the Company and WB and Guarantor as follows:
“if to the Company
GENPACT GLOBAL HOLDING (BERMUDA) LIMITED
0000 Xxxxxx xx xxx Xxxxxxxx
Xxxxx 00
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
if to WB or Guarantor:
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WACHOVIA
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
with a copy to (which shall not constitute notice):
XXXXXX XXXXX & XXXXXXX LLP
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000”
GENERAL
10. Except as specifically amended hereby, the Agreement, and all terms contained therein, remains in full force and effect. The Agreement, as amended by this Amendment, constitutes the entire understanding of the Parties with respect to the subject matter hereof.
11. Each reference herein to a party hereto shall be deemed to include its successors and assigns, all of whom shall be bound by this Amendment and in whose favor the provisions of this Amendment shall inure. In case any one or more of the provisions contained in this Amendment shall be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.
12. The parties hereto agree to execute such other documents and instruments and to do such other and further things as may be necessary or desirable for the execution and implementation of this Amendment and the consummation of the transactions contemplated hereby and thereby.
13. This Amendment shall be governed by and construed in accordance with the laws of the State of New York.
14. This Amendment may be executed in counterparts, each of which shall constitute an original, but all of which, when taken together, shall constitute but one agreement.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by their respective duly authorized representatives, all as of the day and year first above written.
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GENPACT GLOBAL HOLDING (BERMUDA) LIMITED |
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(as successor in business to Genpact Global Holdings SICAR S.a.r.l.) |
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By: |
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/s/ Xxxxxx Xxxxxxxxxxx |
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Name: |
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Xxxxxx Xxxxxxxxxxx |
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Title: |
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Senior Vice President and General Counsel |
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MACRO*WORLD RESEARCH CORPORATION |
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By: |
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/s/ Xxxxx X. Xxxxxxx |
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Name: |
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Xxxxx X. Xxxxxxx |
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Title: |
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SVP – Director |
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XXXXX FARGO & COMPANY (successor in interest by merger to WACHOVIA CORPORATION) |
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By: |
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/s/ Xxxxx X. Xxxxxxx |
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Name: |
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Xxxxx X. Xxxxxxx |
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Title: |
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EVP & Deputy Controller |
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Exhibit A
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