Exhibit 10.8


 


AGREEMENT


 


This
Agreement, dated November 30, 2005 (this “Agreement”), is by and
between Genpact Global Holdings SICAR S.a.r.l., a Luxembourg société à responsabilité
limiteé qualifying as a Société d’investissment en capital à risque (the “Company”),
Macro*World Research Corporation, a North Carolina corporation (“WB”),
and Wachovia Corporation, a North Carolina corporation (“Guarantor”),
each of which agrees as follows:


 


RECITALS


 


WHEREAS,
concurrently with the execution and delivery of this Agreement, Genpact
International, a Luxembourg s.a.r.l. (“Genpact International”), WB and
Guarantor are entering into the Master Professional Services Agreement (as
defined herein) for the provision of services by Genpact International and
certain of its Affiliates or other subcontractors as permitted under the Master
Professional Services Agreement to WB and other Eligible Recipients (as defined
herein);


 


WHEREAS, the
Company, GE Capital International (Mauritius), a Mauritius corporation (“GE”),
Wachovia Investment Holdings, LLC, a Delaware limited liability company (“Purchaser”),
and Guarantor have entered into the Securities Purchase Agreement (as defined
herein) pursuant to which GE shall sell to Purchaser on the date hereof, and
Purchaser shall purchase from GE, 76,483 shares of Common Stock (as defined
herein) of the Company;


 


WHEREAS,
concurrently with the execution and delivery of this Agreement, the Company,
Purchaser and the existing shareholders of the Company shall enter into the
Amended and Restated Shareholders Agreement (as defined herein) which, among
other things, shall set forth WB’s rights and obligations as a shareholder of
the Company; and


 


WHEREAS, the
Company, WB and Guarantor desire to enter into this Agreement in order to set
forth the terms and conditions of their agreement with regard to certain
matters not addressed in the Master Professional Services Agreement, the
Securities Purchase Agreement or the Amended and Restated Shareholders
Agreement.


 


NOW,
THEREFORE, in consideration of the premises and mutual agreements and covenants
herein contained, and, intending to be legally bound hereby, the parties hereby
agree as follows:


 


ARTICLE I



DEFINITIONS


 


Section 1.01.  Certain Defined Terms.
 Capitalized terms used in this Agreement
shall have the meanings specified below, or elsewhere in, this Agreement;


 






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(a)           “2010 FTE
Measurement Date” means December 31, 2010.


 


(a)  “2011
Cash Payment” means the following:


 


(i)      [[[***]]]:


 


(ii)     [[[***]]]:


 


(b)           “Amended and
Restated Shareholders Agreement” means the Amended and Restated
Shareholders Agreement, dated as of the date hereof, by and among Purchaser,
the Company, Genpact Global (Lux) and the existing shareholders listed on the
signature pages thereto, as the same may be amended, modified or
supplemented from time to time in accordance with its terms.


 


(c)           “Applicable FTE
Level” means, (i) when calculating the 2011 Cash Payment, the FTEs as
of the 2010 FTE Measurement Date, and (ii) when calculating the Early
Termination Cash Payment, the FTEs on the MSA Termination Date.


 


(d)           “Applicable
Measurement Date” means (i) the 2010 FTE Measurement Date, when
calculating the 2011 Cash Payment, and (ii) the MSA Termination Date, when
calculating the Early Termination Cash Payment.


 


(e)           “Applicable Share
Amount” means [[[***]]]


 


(f)            “BPO/ITO Company”
means, as of the IPO Date and, with respect to any Replacement Company, as of
the Replacement Date, any publicly-traded company on a United States or major
international stock exchange or trading system whose primary business is the
provision of business process outsourcing or information technology outsourcing
services and that has a sufficient public float that would allow for customary
hedging transactions on the common equity securities of such company.


 


(g)           “Business Day”
means any day that is not a Saturday, a Sunday or other day on which banks are
required or authorized by law to be closed in the City of New York.


 


(h)           “Change of Control”
shall have the meaning set forth in the Amended and Restated Shareholders
Agreement.


 


(i)            “Common Stock”
shall have the meaning set forth in the Amended and Restated Shareholders
Agreement.


 


(j)            “Deemed Yield
Amount” means [[[***]]].


 


(k)           “Early Termination
Cash Payment” means the following: [[[***]]]


 


(l)            “Eligible
Recipients” shall have the meaning set forth in the Master Professional
Services Agreement.


 






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(m)          “Fair Market Value”
means the price that would be paid in an arm’s-length transaction to a willing
seller under no compulsion to sell, by a willing buyer under no compulsion to
buy.


 


(n)           “FTE” means [[[***]]].


 


(o)           “Index” means an
index consisting of a number of shares (which could be fractions of shares) of
each Index Company determined by the Company in accordance with Section 2.04(a).  The number of shares of each Index Company to
be included in the Index is subject to the adjustments set forth in Section 2.04.


 


(p)           “Index Companies”
means, as of any date, the BPO/ITO Companies that populate the Index as of such
date.


 


(q)           “Index Differential”
means [[[***]]]%.


 


(r)            “Index
Representation” means, with respect to each Index Company, the number of
shares of such Index Company in the Index as of the IPO Date (as adjusted from
time to time pursuant to Section 2.04).


 


(s)           “Index Value”
means, as of any date, the value of the Index, as determined by the Company
pursuant to Section 2.04(a) (as adjusted from time to time pursuant
to Section 2.04).


 


(t)            “Initial Index
Value” means the Index Value as of the IPO Date, as determined by the
Company pursuant to Section 2.04(a).


 


(u)           “IPO Date” means
the date of the first Qualified Initial Public Offering.


 


(v)           “IPO Price”
means the volume weighted average price per share of Common Stock (or the class
of the securities that is sold in the Qualified Initial Public Offering) for
the twenty consecutive trading days following a Qualified Initial Public
Offering.


 


(w)          “Legal Proceedings”
means any judicial, administrative or arbitral actions, suits or proceedings
(public or private, at law or in equity) by or before a governmental entity.


 


(x)            “Master
Professional Services Agreement” means the Master Professional Services
Agreement, dated as of the date hereof, between the Company, WB and the
Guarantor, as the same may be amended, modified or supplemented from time to
time in accordance with its terms.


 


(y)           “MSA Date” means
the date of the Master Professional Services Agreement.


 


(z)            “MSA Expiration
Date” means November 30, 2012.


 






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(aa)         “MSA Termination Date”
means, if, prior to the MSA Expiration Date, the Master Professional Services
Agreement is terminated by (i) WB, for any reason other than a bona fide
termination pursuant to Section 25.1(a), Section 25.5 or Section 25.7
of the Master Professional Services Agreement, or (ii) Genpact
International pursuant to Section 25 of the Master Professional Services
Agreement, the last day Genpact International is providing Services to WB (and
the other Eligible Recipients) under the Master Professional Services Agreement
(other than Termination Assistance Services) (as each term is defined in the
Master Professional Services Agreement).


 


(bb)         “Person” means any
individual, partnership, corporation, trust, limited liability company,
unincorporated organization, governmental entity and any other entity.


 


(cc)         “Purchase Price”
means $90,020,491.


 


(dd)         “Qualified Initial
Public Offering” shall have the meaning set forth in the Amended and
Restated Shareholders Agreement.


 


(ee)         “Sale Price” means
the Fair Market Value of a share of Common Stock at the time of a Change of
Control, as determined in good faith by the board of managers of the Company.


 


(ff)           “Securities Purchase
Agreement” means the Securities Purchase Agreement, dated as of November 30,
2005, by and between the Company, GE, Purchaser and Guarantor, as the same may
be amended, modified or supplemented from time to time in accordance with its
provisions.


 


(gg)         “Share Purchase Price”
means (i) the Purchase Price divided by (ii) the WB Share Amount.


 


(hh)         “Unrecovered Share
Purchase Price” means, as of any date, the excess, if any, of (i) the
sum of the Share Purchase Price plus the Deemed Yield Amount through the date
of determination over (ii) the cumulative amount of cash distributions and
the Fair Market Value (as determined in good faith by the board of managers of
the Company) of non-cash distributions distributed in respect of the WB Shares
through the date of determination, in each case calculated on a per share
basis.


 


(ii)           “WB Share Amount”
means 76,483 shares of Common Stock of the Company, as adjusted from time to
time pursuant to Section 2.06.


 


(jj)           “WB Shares”
means the equity interests in the Company and/or Genpact Global (Lux), as the
case may be, held by Purchaser (and its Permitted Transferees (as defined in
the Amended and Restated Shareholders Agreement)) as of any date.


 






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ARTICLE II



CASH PAYMENTS; INDEX


 


Section 2.01.  2011 Cash Payment.
 If a Qualified Initial Public Offering
or a Change of Control shall have occurred prior to the 2010 FTE Measurement
Date, WB shall pay, on January 31, 2011 (or the next Business Day),
subject to Section 2.04(f), the 2011 Cash Payment to the Company by wire
transfer of immediately available United States funds into an account
designated by the Company.


 


Section 2.02.  Early Termination Cash Payment.


 


(a)           If a Qualified Initial
Public Offering or a Change of Control shall have occurred prior to the MSA
Termination Date, WB shall pay on the MSA Termination Date (or the next
Business Day), subject to Section 2.04(f), the Early Termination Cash
Payment to the Company by wire transfer of immediately available United States
funds into an account designated by the Company.


 


(b)           If the MSA Termination
Date shall have occurred on or prior to the date of a Qualified Initial Public
Offering or the date of a Change of Control, on the earlier to occur of a
Qualified Initial Public Offering and a Change of Control, WB shall pay the
Early Termination Cash Payment to the Company by wire transfer of immediately
available United States funds into an account designated by the Company.


 


Section 2.03.  Qualified Initial Public Offering and
Change of Control.  If both a Qualified Initial Public Offering
and a Change of Control shall have occurred prior to any or each of the MSA
Termination Date, and/or the 2010 FTE Measurement Date, the calculations under
Sections 2.01 and 2.02 shall be based on the first to have occurred of a
Qualified Initial Public Offering and a Change of Control.


 


Section 2.04.  Index.


 


(a)           Index Population;
Index Value.  The initial population
of the Index, including the Index Representation, will be selected by the
Company in its sole discretion within ten (10) days after the IPO Date and
shall consist of no more than ten (10) BPO/ITO Companies.  The Initial Index Value shall be determined
by the Company in its sole discretion as of the date the Index is populated by
the Company pursuant to this Section 2.04(a).  The methodology for determining the Initial
Index Value shall be provided to WB by the Company promptly after its
determination.  The Index Value as of any
date shall be determined by the Company using the same methodology as was used
to calculate the Initial Index Value.


 


(b)           Removal of Index
Company.  If an Index Company ceases
to trade for more than twenty (20) consecutive trading days for any reason such
Index Company (the “Removed Company”) will be removed by the Company
from the Index as soon as practicable (the date of such removal, the “Removal
Date”) and the Company shall choose a BPO/ITO Company to replace the
Removed Company on the Removal Date 


 






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(the “Replacement Company”).  The Company shall equitably adjust the Index
Value to reflect any change in value of the Removed Company through the Removal
Date and the Replacement Company thereafter.


 


(c)           Adjustment.  The Index Representation of each Index Company
and the Index Value will be equitably adjusted from time to time by the Company
to account for any cash distributions, non-cash distributions, stock splits,
dividends or other events involving Index Companies.


 


(d)           Index Differential
Calculation.  The Company will
deliver a notice to WB promptly following the MSA Termination Date or promptly
following the 2010 FTE Measurement Date, as applicable (in each case, provided
that a Qualified Initial Public Offering shall have occurred prior thereto),
which notice shall set forth the Company’s calculation of the Index
Differential as of the Applicable Measurement Date (the “Index Differential
Calculation”).


 


(e)           Determinations
Binding.  Absent manifest error, any
determination or adjustment made by the Company pursuant to clauses (a), (b), (c) or
(d) of this Section 2.04 shall be binding on the parties hereto.


 


(f)            Dispute Notice.


 


(i)            If WB disputes the
Index Differential Calculation based on manifest error, it shall deliver
written notice (the “Dispute Notice”) to the Company within ten (10) Business
Days after receipt by WB of the Index Differential Calculation, stating that WB
objects to the Index Differential Calculation, specifying in reasonable detail
the basis for such objection and setting forth WB’s proposed modification to
the Index Differential Calculation.  WB
and the Company will attempt to resolve and finally determine and agree upon
the Index Differential Calculation as promptly as practicable.  If WB and the Company are unable to agree
upon the Index Differential Calculation within thirty (30) days after delivery
of the Dispute Notice, a nationally recognized investment banking firm
reasonably acceptable to each of WB and the Company will resolve the items set
forth in the Dispute Notice within thirty (30) days of its engagement.  The fees, costs and expenses of the
investment banking firm will be borne by the party whose positions generally
did not prevail in such determination, as determined by such investment banking
firm, or if the investment banking firm determines that neither party could be
fairly found to be the prevailing party, then such fees, costs and expenses
will be borne 50% by WB and 50% by the Company. 
If WB does not deliver the Dispute Notice to the Company within ten (10) Business
Days after receipt by WB of the Index Differential Calculation, such Index
Differential Calculation will be conclusively presumed to be true and correct
in all respects and will be final and binding upon the parties.


 


(ii)           If, as of January 31,
2011, with respect to the 2011 Cash Payment, or the MSA Termination Date, with
respect to the Early Termination Cash Payment, the Index Differential
Calculation has not yet been finally determined in accordance with this Section 2.04(f),
WB shall be required to make the 2011 Cash 


 






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Payment and the Early
Termination Cash Payment, as applicable, in accordance with Sections 2.01 and
2.02, respectively, based upon the Index Differential Calculation set forth in
the Dispute Notice.  Not later than the
third Business Day following the final determination of the Index Differential
Calculation pursuant to this Section 2.04(f), WB shall pay the excess, if
any, of the 2011 Cash Payment and the Early Termination Cash Payment, as
applicable, calculated based on the finally determined Index Differential
Calculation, over the 2011 Cash Payment and the Early Termination Cash Payment,
respectively, previously made by WB.


 


Section 2.05.  Illustration.
 Exhibit A attached hereto
sets forth an illustration of certain of the calculations referred to in this Article II.


 


Section 2.06.  WB Share Amount Adjustment.
 In the event of any merger,
reorganization, consolidation, change of control, recapitalization, stock
split, spin-off or other change in the corporate structure of the Company affecting
the equity interests in the Company and/or Genpact Global (Lux), the WB Share
Amount will be equitably adjusted in good faith by the board of managers of the
Company.


 


Section 2.07.  Sustainability.
 Without limiting WB’s rights and
remedies under the Master Professional Services Agreement, WB shall use
commercially reasonable efforts to maintain the Applicable FTE Level as of the
2010 FTE Measurement Date through March 31, 2012 as long as Genpact
International provides the Services (as defined in the Master Professional
Services Agreement) in accordance with the requirements of the Master
Professional Services Agreement and consistent with the potential expiration of
the Master Professional Services Agreement at the end of the Initial Term
thereof.


 


ARTICLE III


 


GENERAL


 


Section 3.01.  Assignment.  This Agreement shall not be assignable by the
Company without the prior written consent of WB, or by WB without the prior
written consent of the Company.  This
Agreement shall be binding upon, shall inure to the benefit of, and shall be
enforceable by the parties hereto and their permitted successors and assigns.  This Agreement shall continue to be binding
on WB following any transfer by WB of any WB Shares to any other person or
entity.


 


Section 3.02.  Entire Agreement; Amendment.
 This Agreement, including any schedules
and attachments referred to herein and attached hereto, constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof.  There are no agreements, representations,
warranties, promises, covenants, commitments or undertakings other than those
expressly set forth in this Agreement.  This
Agreement is not a part of, and shall not be integrated with, the Master
Professional Services Agreement.  This
Agreement supersedes all prior agreements, representations, warranties,
promises, covenants, commitments or undertaking, whether written or oral, with
respect to the subject matter contained in this Agreement.  No 


 






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amendment, modification,
change, waiver, or discharge hereof shall be valid unless in writing and signed
by an authorized representative of the party against which such amendment,
modification, change, waiver, or discharge is sought to be enforced.


 


Section 3.03.  No Offset.  The obligations of WB under this Agreement are
absolute and unconditional and WB shall have no right to set-off, combine,
consolidate or otherwise appropriate or apply against, or on account of, any
obligations or liabilities owed by the Company or any of its affiliates to WB
under this Agreement or otherwise, including, without limitation, any amounts
that may be owed by the Company to WB or any of its Affiliates under the Master
Professional Services Agreement.


 


Section 3.04.  Counterparts.
 This Agreement may be executed in
several counterparts, all of which taken together shall constitute one single
agreement between the parties hereto.


 


Section 3.05.  Heading.  The Article and Section headings and
used herein are for reference and convenience only and shall not be considered
in the interpretation of this Agreement.


 


Section 3.06.  Severability.
 In the event that any provision of this
Agreement conflicts with the law under which this Agreement is to be construed
or if any such provision is held invalid or unenforceable by a court with
jurisdiction over the parties hereto, such provision shall be deemed to be
restated to reflect as nearly as possible the original intentions of the
parties hereto in accordance with applicable law.  The remaining provisions of this Agreement
and the application of the challenged provision to persons or circumstances
other than those as to which it is invalid or unenforceable shall not be
affected thereby, and each such provision shall be valid and enforceable to the
full extent permitted by applicable law.


 


Section 3.07.  Waiver of Default; Cumulative Remedies.


 


(a)           Waiver of Default.
 A delay or omission by either party hereto
to exercise any right or power under this Agreement shall not be construed to
be a waiver thereof.  A waiver by either
of the parties hereto of any of the covenants to be performed by the other or
any breach thereof shall not be construed to be a waiver of any succeeding
breach thereof or of any other covenant herein contained.  All waivers must be in writing and signed by
the party waiving its rights.


 


(b)           Cumulative Remedies.
 All remedies provided for in this
Agreement shall be cumulative and in addition to and not in lieu of any other
remedies available to either party hereto at law, in equity or otherwise.  The election by a party hereto of any remedy
provided for in this Agreement or otherwise available to such party shall not
preclude such party from pursuing any other remedies available to such party at
law, in equity, by contract or otherwise.


 


Section 3.08.  Survival.  This Agreement shall survive the expiration or
termination of the Master Professional Services Agreement.


 






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Section 3.09.  Third Party Beneficiaries.
 This Agreement is for the sole benefit
of the parties to this Agreement and their permitted successors and assigns and
nothing in this Agreement, express or implied, is intended to or shall confer
upon any other person or entity any legal or equitable right, benefit or remedy
of any nature whatsoever under or by reason of this Agreement.


 


Section 3.10.  Notices.  All notices, requests, claims, demands and
other communications under this Agreement shall be in writing and shall be
given or made (and shall be deemed to have been duly given or made upon
receipt) by delivery in person, by overnight courier service, by facsimile with
receipt confirmed (followed by delivery of an original via overnight courier
service) 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 3.10):


 


if to the
Company:


 


GENPACT GLOBAL
HOLDINGS SICAR S.A.R.L.

65, Boulevard Grande Duchesse Charlotte

L - 1331

Attention:              Board
of Managers

Facsimile:               352 26 383 509


 


with a copy to
(which shall not constitute notice):


 


GENPACT GLOBAL
HOLDINGS SICAR S.A.R.L. 

1251 Avenue of the Americas

Suite 41

New York, NY 10020

Attention:              Eileen
S. Silvers, Esq.

Facsimile:               (646) 823-0467


 


and


 


PAUL, WEISS, RIFKIND,
WHARTON

& GARRISON LLP


1285 Avenue of
the Americas

New York, NY 10019

Attention:              Kenneth
M. Schneider, Esq.

Facsimile:               (212) 592-0303


 






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if to WB or
Guarantor:


 


WACHOVIA
CORPORATION 

301 South College St. NC0630 

Charlotte, NC 28288-0630

Attention:              Sterling
A. Spainhour, Esq.

Facsimile:               (704) 715-4498


 


with a copy to
(which shall not constitute notice):


 


JONES DAY

2727 North Harwood Street 

Dallas, Texas 75201-1515

Attention:              John
A. Funk, Esq.

Facsimile:               (214) 969-5100


 


Failure or
delay in delivering any notice, demand, request, consent, approval, declaration
or other communication to any Person designated to receive a copy thereof shall
in no way adversely affect the effectiveness of such notice, demand, request,
consent, approval, declaration or other communication.


 


Section 3.11.  Governing Law.


 


(a)           This Agreement and
performance under it shall be governed by and construed in accordance with the
applicable laws of the State of New York, without giving effect to the
principles thereof relating to conflicts of laws other than Section 5-1401
of the General Obligations Law of the State of New York.


 


(b)           Each of the parties by
this Agreement irrevocably and unconditionally:


 


(i)            submits for itself and
its property in any Legal Proceeding relating to this Agreement, or for
recognition and enforcement of any judgment in respect hereof, to the exclusive
jurisdiction of the Courts of the State of New York sitting in the County of
New York, the court of the United States of America for the Southern District
of New York, and appellate courts having jurisdiction of appeals from any of
the foregoing, and agrees that all claims in respect of any such Legal
Proceeding shall be heard and determined in such New York State court or, to
the extent permitted by law, in such federal court;


 


(ii)           consents that any such
Legal Proceeding may and shall be brought in such courts and waives any
objection that it may now or hereafter have to the venue or jurisdiction of any
such Legal Proceeding in any such court or that such Legal Proceeding was
brought in an inconvenient court and agrees not to plead or claim the same;


 


(iii)          waives all right to
trial by jury in any Legal Proceeding (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement, or its performance
under or the enforcement of this Agreement;


 






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(iv)          agrees that service of
process in any such Legal Proceeding may be effected by mailing a copy of such
process by registered or certified mail (or any substantially similar form of
mail), postage prepaid, to such party at its address as provided in Section 3.10;
and


 


(v)           agrees that nothing in
this Agreement shall affect the right to effect service of process in any other
manner permitted by the laws of the State of New York.


 


Section 3.12.  Further Assurances.
 Each party hereto covenants and agrees
that, subsequent to the execution and delivery of this Agreement and without
any additional consideration, each party hereto shall execute and deliver any
further legal instruments and perform any acts that are or may become necessary
to effectuate the purposes of this Agreement.


 


Section 3.13.  Guarantee.  Guarantor hereby guarantees the payment and
performance of all obligations, liabilities and indemnities of WB now existing
or hereafter arising under this Agreement (collectively, the “Obligations”).  This guarantee shall be a full,
unconditional, irrevocable, absolute and continuing guarantee of payment and
performance and not a guarantee of collection, and Guarantor shall remain
liable on the Obligations hereunder until the payment in full of the
Obligations.  Guarantor’s guarantee and
responsibility shall not be discharged, released, diminished, or impaired by
any setoff, counterclaim, defense, act or occurrence which Guarantor may have
against the Company as a result of or arising out of this Agreement.  If under applicable bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or other similar laws of
general application with respect to creditors, any payment, or any part thereof,
of any of the Obligations is rescinded or must otherwise be restored or
returned by the Company, this guarantee shall continue to be effective, or be
reinstated, as the case may be, all as though such payment had not been made.


 






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IN WITNESS
WHEREOF, each of the parties hereto has caused this Agreement to be executed on
its behalf by its officers or representatives thereunto duly authorized, as of
the date first above written.


 


	
   

  	
  GENPACT
  GLOBAL HOLDINGS SICAR

  S.A.R.L.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Eileen S. Silvers

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President, Taxes and 

  Corporate Affairs

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  MACRO*WORLD
  RESEARCH

  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Jean E. Davis

  
	
   

  	
   

  	
  Title:

  	
  Chairman

  
	
   

  	
   

  	
   

  
	
   

  	
  WACHOVIA CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Thomas K. Hoops

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  



 






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