EXHIBIT 9.1
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TRANSFER RESTRICTION AGREEMENT
AMONG
ACCENTURE LTD
and
TRANSFERORS AND TRANSFEREES SIGNATORY HERETO
Dated as of October 1, 2002
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND OTHER MATTERS..............................................................2
Section 1.1. Definitions................................................................................2
Section 1.2. Gender.....................................................................................5
Section 1.3. Application................................................................................5
ARTICLE II TRANSFER RESTRICTIONS......................................................................5
Section 2.1. Transfer and Consent.......................................................................5
Section 2.2. Transfer Restrictions......................................................................7
Section 2.3. Non-Certificated Shares; Legend............................................................9
Section 2.4. Stop Transfers.............................................................................9
Section 2.5. Release of Restrictions....................................................................9
ARTICLE III TRANSFER PROCEDURES........................................................................9
Section 3.1. Requirements for Transfer..................................................................9
Section 3.2. Subsequent Transfers......................................................................10
Section 3.3. Accenture Approved Transactions...........................................................10
Section 3.4. Reacquisition of Transferred Shares.......................................................12
ARTICLE IV VOTING OF TRANSFERRED SHARES..............................................................12
Section 4.1. Irrevocable Proxy and Power of Attorney...................................................12
Section 4.2. Shares Voted Under Voting Agreement.......................................................12
ARTICLE V CUSTODIAL ARRANGEMENTS....................................................................13
Section 5.1. Holding of Shares in Custody and/or in Nominee Name.......................................13
Section 5.2. Dividends and Distributions...............................................................13
ARTICLE VI REPRESENTATIONS AND WARRANTIES............................................................14
Section 6.1. Representations and Warranties of Transferors.............................................14
Section 6.2. Representations and Warranties of Transferees.............................................15
Section 6.3. Continuing Representations and Warranties.................................................16
ARTICLE VII OTHER AGREEMENTS OF THE PARTIES...........................................................16
Section 7.1. Standstill Provisions.....................................................................16
Section 7.2. Filing of Schedule 13D or 13G.............................................................17
Section 7.3. Adjustment upon Changes in Capitalization; Adjustments upon Changes of Control;
Representatives, Successors and Assigns.................................................18
Section 7.4. Confirmation of Agreements................................................................18
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TABLE OF CONTENTS
(continued)
Page
Section 7.5. Further Assurances........................................................................19
ARTICLE VIII INDEMNITY AND EXPENSES....................................................................19
Section 8.1. Indemnity.................................................................................19
Section 8.2. Expenses..................................................................................19
ARTICLE IX MISCELLANEOUS.............................................................................19
Section 9.1. Term of the Agreement.....................................................................19
Section 9.2. Waivers; Amendments.......................................................................19
Section 9.3. Governing Law.............................................................................20
Section 9.4. Resolution of Disputes....................................................................20
Section 9.5. Relationship of Parties...................................................................21
Section 9.6. Notices...................................................................................21
Section 9.7. Severability..............................................................................22
Section 9.8. Voting Agreement and Common Agreement.....................................................23
Section 9.9. No Third-Party Rights.....................................................................23
Section 9.10. Section Headings..........................................................................23
Section 9.11. Execution in Counterparts.................................................................23
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TRANSFER RESTRICTION AGREEMENT
This Transfer Restriction Agreement, dated as of October 1, 2002 (as
amended, supplemented, waived or otherwise modified from time to time in
accordance with its terms, the "Agreement") among Accenture Ltd, an exempted
company limited by shares organized under the laws of Bermuda (registered number
EG300900) ("Accenture Ltd"), the Transferors (as defined below) and the
Transferees (as defined below).
WITNESSETH
WHEREAS, Accenture Ltd and each of the Partners who owns Class A Common
Shares of Accenture Ltd (the "Class A Common Shares") and/or Class X Common
Shares of Accenture Ltd (collectively with the Class A Common Shares, the
"Common Shares") have entered into, and each person who becomes a Partner in the
future will be required to enter into, that certain Voting Agreement dated as of
April 18, 2001 among Accenture Ltd and the Partners from time to time party
thereto (as amended, supplemented or otherwise modified from time to time, the
"Voting Agreement").
WHEREAS, the Voting Agreement, among other things, imposes (i) certain
requirements as to the maintenance of levels of beneficial ownership of the
Class A Common Shares and (ii) transfer restrictions on certain of the Common
Shares made subject to the Voting Agreement (such shares made subject to the
Voting Agreement, as further defined in the Voting Agreement, are referred to
therein and herein as "Covered Shares," and such term shall have the meaning
ascribed to it in the Voting Agreement);
WHEREAS, certain Partners who have executed the Voting Agreement have
entered into, and other persons who become Partners in the future may be
required to enter into, that certain Common Agreement dated as of April 19, 2002
among Accenture Ltd and the Partners from time to time party thereto (as
amended, supplemented or otherwise modified from time to time, the "Common
Agreement");
WHEREAS, the Common Agreement provides that, in exchange for executing the
Common Agreement and thereby agreeing not to transfer any Covered Shares until
the date specified therein (as further defined herein, the "Common Restriction
Date"), a Partner shall have the benefit of a waiver of certain provisions of
the Voting Agreement with respect to certain transactions approved by Accenture
Ltd; and
WHEREAS, Accenture Ltd is willing to agree to and approve certain Transfers
(as defined below) by the Transferors to the Transferees of Class A Common
Shares pursuant to and subject to the terms of this Transfer Restriction
Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual agreements,
covenants and provisions herein contained, the parties agree as follows:
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ARTICLE I
DEFINITIONS AND OTHER MATTERS
Section 1.1. Definitions. The following words and phrases as used herein
shall have the following meanings, except as otherwise expressly provided or
unless the context otherwise requires:
(a) "Accenture Approved Transactions" shall have the meaning ascribed
to such term in Section 3.3(a) hereof.
(b) "Accenture Ltd" shall have the meaning ascribed to such term in
the preamble hereto.
(c) "Agreement" shall have the meaning ascribed to such term in the
preamble hereto and, in respect of each Transferor and each Transferee,
shall include the Joinder Agreement executed by such Transferor and such
Transferee.
(d) A "beneficial owner" of a security or of any other interest in an
entity includes any person who, directly or indirectly, through any
contract, arrangement, understanding, relationship or otherwise, has or
shares: (i) voting power, which includes the power to vote, or to direct
the voting of, such security or interest and/or (ii) investment power,
which includes the power to dispose, or to direct the disposition of, such
security or interest, but for purposes of this Agreement a person shall not
be deemed a beneficial owner of Common Shares (A) solely by virtue of the
application of Exchange Act Rule 13d-3(d) or Exchange Act Rule 13d-5 as in
effect on the date hereof, (B) solely by virtue of the possession of the
legal right to vote securities under applicable law (such as by proxy,
power of attorney or appointment as corporate representative) or (C) held
of record by a "private foundation" subject to the requirements of Section
509 of the Code (or equivalent in other jurisdictions as determined from
time to time by Accenture Ltd). "Beneficially own" and "beneficial
ownership" shall have correlative meanings. For purposes of the
determination of beneficial ownership only, the provisions of Article IV
hereof shall not be deemed to transfer the voting power with respect to any
Common Shares from any person that would otherwise be the beneficial owner
of such Common Shares and the provisions of Article II hereof shall not be
deemed to transfer the investment power with respect to any Common Shares.
(e) "Base Restriction Date" shall have the meaning ascribed to such
term in Section 2.2(a) hereof.
(f) "Class A Common Shares" shall have the meaning ascribed to such
term in the preamble hereto.
(g) "Common Agreement" shall have the meaning ascribed to such term in
the preamble hereto.
(h) "Common Restriction Date" shall have the meaning ascribed to such
term in Section 2.2(c) hereof.
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(i) "Common Restriction Shares" shall mean: (i) in respect of Class A
Common Shares owned by Partners, all Covered Shares other than Covered
Shares beneficially owned by a Partner as of the IPO Date, including,
without limitation, all Class A Common Shares issued to Partners pursuant
to restricted share units (RSU's) or other share awards or share options
and all Class A Common Shares acquired through the Company's Employee Share
Purchase Plan; and (ii) in respect of Transferred Shares owned by
Transferees, such shares as were Common Restriction Shares when owned by
the Transferor prior to the Transfer to the Transferee.
(j) "Common Shares" shall have the meaning ascribed to such term in
the preamble hereto.
(k) "Company" shall mean Accenture Ltd, together with its Subsidiaries
from time to time.
(l) "Covered Persons" shall mean those persons, other than Accenture
Ltd, who are from time to time parties to the Voting Agreement and whose
names are, or are required to be, listed on Appendix A thereto, in
accordance with the terms thereof.
(m) "Covered Shares" shall have the meaning ascribed to such term in
the preamble hereto.
(n) "Employee Covered Person" shall mean a Covered Person that is an
employee of the Company at the time in question, provided that if the
Company has received notice that any Covered Person intends to terminate
such Covered Person's employment with the Company (except in the case of
notice with respect to retirement or disability), such Covered Person shall
be deemed not to be an Employee Covered Person.
(o) "Exchange Act" shall mean the United States Securities Exchange
Act of 1934, as amended to date and as further amended from time to time.
(p) "Exempt Organization" shall mean (i) an organization exempt from
federal income taxation under Sections 501(c) or (d) of the Internal
Revenue Code as amended from time to time (or corresponding provisions of
subsequent superseding federal revenue laws), or (ii) an organization
organized under the laws of a jurisdiction other than the United States (or
any political subdivision thereof) which is substantially the same, in
regard to the nature and purpose of its organization and operations, as any
organization described in preceding clause (i).
(q) "Extended Restriction Date" shall have the meaning ascribed to
such term in Section 2.2(a) hereof.
(r) "Family Members" shall mean in respect of a Transferor (i) the
lawful spouse of the Transferor, (ii) the domestic partner of the
Transferor, (iii) the lineal ascendants and lineal descendants of the
grandparents of the Transferor or the grandparents of the Persons described
in the preceding clauses (i) and (ii), and the spouses or domestic partners
of any such lineal ascendants or lineal descendants, and (iv) the children,
including stepchildren and adopted children, of the Persons described in
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preceding clauses (i), (ii) and (iii). With respect to the foregoing, the
term "spouse" shall include any current lawful spouse, deceased spouse or
divorced spouse, and the term "domestic partner" shall refer to a Person
(regardless of gender) acknowledged as a domestic partner (or similar term)
through legal process in the applicable jurisdiction or by formal written
acknowledgment by the Person claiming such status, which written
acknowledgement shall be subject to a reasonable and nondiscriminatory
approval process by the Company.
(s) "IPO Date" shall mean July 24, 2001, which was the closing date of
the initial public offering of the Class A Common Shares.
(t) "Joinder Agreement" shall have the meaning ascribed to such term
in Section 3.1(a) hereof.
(u) "Non-Competition Agreement" shall mean that certain
Non-Competition Agreement dated as of April 18, 2001 among Accenture Ltd
and the Partners signatory thereto, as the same may be amended,
supplemented or otherwise modified from time to time.
(v) "Partner Matters Agreement" shall mean that certain Partner
Matters Agreement dated as of April 18, 2001 among Accenture Ltd and the
Partners signatory thereto, as the same may be amended, supplemented or
otherwise modified from time to time.
(w) "Partners" shall mean those employees of the Company who from time
to time are identified as such by the Company in accordance with the
procedures of the Company. As of the date hereof, Partners include all
those persons, other than Accenture Ltd, who from time to time are parties
to the Partner Matters Agreement.
(x) "Person" shall include, as applicable, any individual, estate,
trust, corporation, partnership, limited liability company, unlimited
liability company, foundation, association or other entity.
(y) "Pledge Agreement" shall mean that certain Pledge Agreement dated
as of April 18, 2001 among Accenture Ltd and the Partners signatory
thereto, as the same may be amended, supplemented or otherwise modified
from time to time, which agreement was given as security for the pledgors'
obligations under the Non-Competition Agreement.
(z) "Proxy Termination Date" shall have the meaning ascribed to such
term in Section 4.1(c) hereof.
(aa) "Restricted Person" shall mean any person that is not (i) an
Employee Covered Person or (ii) a director, officer or employee of the
Company acting in such person's capacity as a director, officer or
employee.
(bb) "Restriction Termination Date" shall have the meaning ascribed to
such term in Section 2.2(a) hereof.
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(cc) "Subsidiary" shall mean any Person in which Accenture Ltd owns,
directly or indirectly, at least a majority of the equity, economic or
voting interest.
(dd) "Transfer" shall mean any sale, transfer, pledge, hypothecation
or other disposition, whether direct or indirect, whether or not for value,
and shall include any disposition of the economic or other risks of
ownership of Common Shares, including short sales of securities of
Accenture Ltd, option transactions (whether physical or cash settled) with
respect to securities of Accenture Ltd, use of equity or other derivative
financial instruments relating to securities of Accenture Ltd and other
hedging arrangements with respect to securities of Accenture Ltd.
(ee) "Transferees" shall mean those Persons to whom Class A Common
Shares are Transferred subject to the terms of this Agreement, who from
time to time are parties to this Agreement and who shall execute a Joinder
Agreement in the form of Exhibit A hereto.
(ff) "Transferors" shall mean those Persons who Transfer Class A
Common Shares subject to the terms of this Agreement, who from time to time
are parties to this Agreement and who shall execute a Joinder Agreement in
the form of Exhibit A hereto. Transferors may include active, retired and
resigned Partners.
(gg) "Transferred Shares" shall have the meaning ascribed to such term
in Section 2.1(a) hereof.
Section 1.2. Gender. For the purposes of this Agreement, the words "he,"
"his" or "himself" and "it," "its" or "itself" shall be interpreted to include
the masculine, feminine and corporate or other entity or trust form, as
applicable in the particular context.
Section 1.3. Application. The provisions of this Agreement shall be applied
separately to each Transferor and each Transferee in respect of each respective
Transfer described in Schedule I to the Joinder Agreement executed by such
respective Transferor and Transferee. The obligations of the Transferors
hereunder shall be the several obligations of the respective Transferors in
respect of the respective Transfers; and the obligations of, and restrictions
upon, the Transferees shall be the several obligations of, and restrictions
upon, the respective Transferees in respect of the respective Transfers.
ARTICLE II
TRANSFER RESTRICTIONS
Section 2.1. Transfer and Consent.
(a) Consent by Accenture Ltd. Subject to the terms and conditions of
this Agreement, including, without limitation, the prior satisfaction of
the requirements of Section 3.1 hereof, Accenture Ltd, by its
countersignature to a Joinder Agreement, consents to the Transfer of Class
A Common Shares by the Transferor to the Transferee, all as described in
Schedule I to such Joinder Agreement. This consent shall be valid only with
respect to the specific Transfer, number of Class A Common Shares,
Transferor, and Transferee described in such Schedule I to Joinder
Agreement. The
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Class A Common Shares identified in such Schedule I to Joinder Agreement
and Transferred, or to be Transferred, by the Transferor to the Transferee
with the consent of Accenture Ltd pursuant hereto are referred to herein as
the "Transferred Shares."
(b) Eligible Transfers. A Transfer shall be eligible to be considered
for Accenture Ltd's consent pursuant to Section 2.1(a) only if such
Transfer is made primarily for the Transferor's estate and/or tax planning
purposes or charitable giving purposes. The Transferor shall demonstrate to
the satisfaction of Accenture Ltd (in the exercise of its discretion) that
the proposed Transfer satisfies such eligibility requirement. Subject to
such guidelines as Accenture Ltd may establish from time to time in its
sole discretion, Accenture Ltd has advised Partners that proposed Transfers
to Family Members and/or Exempt Organizations will presumptively be
considered eligible Transfers, subject, however, to final evaluation and
determination in each case by Accenture Ltd in its sole discretion.
(c) Acknowledgments by Transferor and Accenture Ltd. The Transferor
and Accenture Ltd acknowledge and agree that: (i) notwithstanding anything
to the contrary contained herein (including, without limitation, the
definition of "beneficial owner" in Section 1.1(d) hereof), the Transferred
Shares shall be deemed to continue to be the Transferor's "Partner Matters
Interests" (as defined in the Partner Matters Agreement) for purposes of
the Partner Matters Agreement at all times until the Proxy Termination Date
(as defined in Section 4.1(c) below); (ii) the respective number of
Transferred Shares indicated for a Base Restriction Date (in accordance
with Section 3.1(b) below) shall, for purposes of the Voting Agreement, be
applied against the cumulative maximum number of Covered Shares which may
be Transferred as of such date by the Transferor in accordance with the
transfer restrictions imposed by the Voting Agreement, but shall not be
charged against the cumulative maximum number of Covered Shares which may
be transferred prior to such date; and (iii) each Transferor remains
subject to the requirement under the Voting Agreement of retaining at least
25% of the Covered Shares owned by such Partner as of the IPO Date until
the later of July 24, 2009 (the eighth anniversary of the IPO Date) or the
date that such Transferor ceases to be an employee of the Company.
(d) Independent Determination by Transferor and Transferee. The
Transferor and the Transferee acknowledge and agree that: (i) they have, in
their discretion and in reliance upon such advice and counsel from third
parties as they considered appropriate, determined to effect the Transfer
of the Transferred Shares and to effect such Transfer in the manner
described in Schedule I to the Joinder Agreement; (ii) Accenture Ltd has
not, and shall not be deemed to have, recommended or endorsed or provided
advice in respect of the Transfer of the Transferred Shares; and (iii)
without limitation on the indemnity provided by Section 8.1 hereof, neither
Accenture Ltd nor any of its directors, officers, partners, employees,
agents or representatives (except with respect to a Joinder Agreement to
which any such Person is party as Transferor or Transferee) shall have any
liability whatsoever on account of or in respect of the Transfer of the
Transferred Shares.
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Section 2.2. Transfer Restrictions.
(a) Applicable Definitions. This Section 2.2 imposes restrictions on
the transfer of Transferred Shares with reference to the "Base Restriction
Date," the "Extended Restriction Date" and the "Restriction Termination
Date," which terms shall have the following meanings:
(i) "Base Restriction Date" shall mean a date specified by the
Transferor in Schedule I to the Joinder Agreement in respect of
Transferred Shares, which date shall be either (x) an anniversary of
the IPO Date not later than July 24, 2008 (the seventh anniversary of
the IPO Date) or (y) the Extended Restriction Date (which shall be
identified by the use of such defined term in Schedule I to the
Joinder Agreement); provided, however, that:
(1) The Base Restriction Date for Common Restriction Shares
shall be the Common Restriction Date (and such date shall be
identified by the use of such defined term in Schedule I to the
Joinder Agreement); and
(2) For Transfers made by Transferors who as of the date of
Transfer are resigned Partners, the Base Restriction Date shall
be July 24, 2009 (the eighth anniversary of the IPO Date).
(ii) "Extended Restriction Date" shall mean the later of (1) July
24, 2009 (the eighth anniversary of the IPO Date) or (2) the date that
the Transferor ceases to be an employee of the Company.
(iii) "Restriction Termination Date" shall mean the Base
Restriction Date as it may be accelerated to an earlier date or
deferred to a later date in accordance with the following:
(1) If the Transferor ceases to be an Employee Covered
Person subsequent to the Transfer and prior to the Base
Restriction Date, other than by reason of the Transferor becoming
a "Retired Employee" or a "Disabled Employee" (each as defined in
the Voting Agreement) or by reason of the death of the
Transferor, the Base Restriction Date in respect of Transferred
Shares other than Common Restriction Shares shall be deferred to
July 24, 2009 (the eighth anniversary of the IPO Date) if the
Extended Restriction Date was not originally specified in
Schedule I to the Joinder Agreement as the Base Restriction Date;
and
(2) If the Transferor dies prior to the Base Restriction
Date, the Base Restriction Date in respect of all Transferred
Shares (including Common Restriction Shares) shall be accelerated
to the date of the Transferor's death.
(b) No Transfers. No Transferred Shares or any direct or indirect
interest therein may be Transferred by the Transferee prior to the
Restriction Termination
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Date applicable to such Transferred Shares without the prior written
consent of Accenture Ltd, which consent shall be in the sole discretion of
Accenture Ltd to grant or withhold.
(c) Restriction by Common Agreement. Without limitation by the
provisions of Section 2.2(b), no Transferred Shares or any interest therein
may be Transferred by the Transferee (other than pursuant to Accenture
Approved Transactions as provided herein) without the written consent of
Accenture Ltd, which consent shall be in the sole discretion of Accenture
Ltd to grant or withhold, prior to the date until which any Transfer of
Covered Shares is restricted by the terms of the Common Agreement, as such
date may be modified or extended by any modification, amendment or
supplement to the Common Agreement or by any agreement entered into by
Accenture Ltd and Partners in substitution of the Common Agreement (the
"Common Restriction Date"); provided that for purposes of this Section
2.2(c) no extension of such date beyond the Restriction Termination Date
shall be applicable to the Transferred Shares. The Common Restriction Date
in effect as of the date of this Agreement is July 24, 2005.
(d) No Pledge of Shares. Without limitation on or by Section 2.2(b) or
Section 2.2(c), prior to the Restriction Termination Date, unless otherwise
agreed in writing by Accenture Ltd (which agreement shall be in the sole
discretion of Accenture Ltd to grant or withhold), the Transferee shall not
pledge, hypothecate or give as security to any Person the Transferred
Shares or any interest therein.
(e) Lock-Up Provisions. Each Transferee agrees for the benefit of
Accenture Ltd, the Transferors and each other Transferee that such
Transferee will comply with the restrictions on Transfer relating to Common
Shares imposed by the lock-up provisions of any underwriting agreement, in
respect of any offering of Common Shares, entered into by Accenture Ltd at
any time prior to the Restriction Termination Date, whether or not the
Transferee is specifically named therein, provided that Accenture Ltd shall
give to the Transferor, as agent for the Transferee, written notice
thereof; and, notwithstanding anything to the contrary contained in this
Agreement, such Transferee shall remain subject to and comply with such
lock-up provisions under any such underwriting agreement for the term of
such provisions even though such term may extend beyond the Restriction
Termination Date.
(f) Information. With respect to the determination of the Restriction
Termination Date, Accenture Ltd shall be under no obligation to provide
information to the Transferee with respect to any event or condition
accelerating or deferring the Base Restriction Date; provided, however,
that upon the specific written request of the Transferee, Accenture Ltd
shall use its reasonable efforts to advise the Transferee of the
Restriction Termination Date, to the extent then determinable under the
then applicable circumstances.
(g) Prohibited Transfers Void. Any purported Transfer of the
Transferred Shares or of any direct or indirect interest therein contrary
to the provisions of this Section 2.2 shall be null and void and of no
force or effect.
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Section 2.3. Non-Certificated Shares; Legend.
(a) Accenture Ltd shall have no obligation to issue certificated
shares in respect of the Transfer of the Transferred Shares, and the
Transferee shall have no right to receive certificated shares. In the
discretion of Accenture Ltd, the Transferred Shares may be issued in
book-entry or other non-certificated form in accordance with the policies
of Accenture Ltd.
(b) If the Transferred Shares are issued as certificated shares, each
Transferor and each Transferee understands and agrees that any share
certificate representing Transferred Shares may bear a legend noted
conspicuously on each such certificate, reading substantially as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
PROVISIONS OF A TRANSFER RESTRICTION AGREEMENT AMONG ACCENTURE LTD AND THE
PERSONS NAMED THEREIN, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICE
OF ACCENTURE LTD AND WHICH, AMONG OTHER MATTERS, PLACES RESTRICTIONS ON THE
DISPOSITION AND VOTING OF SUCH SECURITIES. THE SECURITIES REPRESENTED BY
THIS CERTIFICATE MAY BE SOLD, EXCHANGED, TRANSFERRED, ASSIGNED, PLEDGED,
PARTICIPATED, HYPOTHECATED OR OTHERWISE DISPOSED OF ONLY IN ACCORDANCE
THEREWITH."
Section 2.4. Stop Transfers. Each Transferor and Transferee agrees and
consents (i) that Accenture Ltd may refuse to register the transfer of and (ii)
to the entry of stop transfer orders against the transfer of Transferred Shares,
except in compliance with this Agreement.
Section 2.5. Release of Restrictions. At any time following the Restriction
Termination Date, upon the written request of the Transferee, the Transferred
Shares shall be released, pursuant to procedures to be determined by Accenture
Ltd in its sole discretion, free and clear of all restrictions and legends
described in this Article II.
ARTICLE III
TRANSFER PROCEDURES
Section 3.1. Requirements for Transfer
(a) As a condition to any Transfer of Transferred Shares pursuant to
this Agreement, the Transferor and the Transferee shall complete, execute
and deliver to Accenture Ltd a Joinder Agreement (with Schedule I thereto)
in the form of Exhibit A attached hereto (the "Joinder Agreement").
(b) The Transferor shall set forth in Schedule I to the Joinder
Agreement the Base Restriction Date(s) and the applicable number of
Transferred Shares with respect to such Base Restriction Date(s). The Base
Restriction Date(s) and the number of Transferred Shares to which the
respective Base Restriction Dates are applicable, as designated by the
Transferor, must be consistent with the restrictions on transfer (and the
scheduled lapsing of such restrictions) provided by the Voting
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Agreement and as applicable to the Transferor, after giving effect to any
Transfers of Covered Shares previously made by the Transferor.
(c) As a condition to granting its consent to any Transfer pursuant to
this Agreement, Accenture Ltd may require the Transferor to provide such
information and materials as Accenture Ltd may determine in its sole
discretion with respect to the proposed Transfer and Transferee, including,
without limitation, a description of the beneficial owners of any proposed
Transferee that is not a natural person, a copy of the organizational
documents of any proposed Transferee that is not a natural person, and a
copy of the relevant documents with respect to any estate and/or tax
planning vehicle to which or by means of which the proposed Transfer is to
be made.
(d) As a further condition to granting its consent to any Transfer
pursuant hereto, Accenture Ltd shall have received from legal counsel,
selected or approved by Accenture Ltd (i) approval of the documentation,
information and materials required by this Section 3.1 and (ii)
confirmation of the determination that the proposed Transfer satisfies the
eligibility requirement of Section 2.1(b).
(e) Simultaneously with the delivery of the executed Joinder Agreement
pursuant to Section 3.1(a), if the Transferred Shares are then held in
certificated form, the Transferor shall deliver or cause to be delivered to
Accenture Ltd the certificates evidencing the Transferred Shares. Accenture
Ltd will re-issue the Transferred Shares, in certificated or
non-certificated form as determined by Accenture Ltd in its sole
discretion, in the name of a nominee for the Transferee (if so elected by
Accenture Ltd), and the Transferred Shares shall be held in the custody of
a custodian as provided in Section 5.1 hereof.
Section 3.2. Subsequent Transfers. Subject to the provisions of Section
3.3, following the Transfer of the Transferred Shares to the Transferee as
consented to by Accenture Ltd pursuant to Section 2.1 hereof, Accenture Ltd
shall have no obligation whatsoever to consent to any subsequent transfer of the
Transferred Shares by the Transferee. In the event Accenture Ltd, in its
discretion, consents to any subsequent Transfer of the Transferred Shares,
Accenture Ltd may, in its discretion, impose such conditions upon such
subsequent Transfer as it considers appropriate for its purposes, including,
without limitation, that (i) the subsequent transferee execute such
documentation accepting, confirming and agreeing to be bound by the agreements,
conditions and restrictions of this Agreement (specifically including, without
limitation, the transfer restrictions set forth in Section 2.2 and the proxy and
power of attorney set forth in Section 4.1) and (ii) that the transferring
Transferee and the subsequent transferee execute such other documents and
instruments in respect of such Transfer as deemed appropriate by Accenture Ltd.
Section 3.3. Accenture Approved Transactions.
(a) It is acknowledged that, pursuant to the terms of the Common
Agreement, Accenture Ltd has made provision for participation by Partners
under certain conditions in underwritten public offerings, share
repurchases, sales or redemptions or other transactions in respect of
Covered Shares, in each case as approved in writing by
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Accenture Ltd ("Accenture Approved Transactions"). Subject to the terms of
this Section 3.3 and such procedures as may be established by it, Accenture
Ltd may, in its discretion, extend to Transferees the opportunity to
participate in any Accenture Approved Transaction, but only in respect of
Transferred Shares that are no longer subject to the restrictions of
Section 2.2(b) hereof or as otherwise agreed by Accenture Ltd in its
discretion.
(b) Accenture Ltd shall give to the Transferors notice of any
opportunity of Transferees to participate in any Accenture Approved
Transaction. If the Transferor desires to confirm for any of its
Transferees the opportunity to participate in the Accenture Approved
Transaction, the Transferor shall deliver to Accenture Ltd written notice,
in such form as may be required by Accenture Ltd, of each such Transferee's
proposed participation, including a specification of the number of
Transferred Shares selected for participation; and such participation by
such Transferee shall be effected only upon the consent of Accenture Ltd
and written confirmation thereof delivered by Accenture Ltd to the
Transferor and the Transferee. The Transferor agrees to comply with the
requirements imposed upon it pursuant to this Section 3.3 with respect to
any such participation by the Transferee.
(c) With respect to any participation by the Transferee in respect of
an Accenture Approved Transaction, Accenture Ltd shall not be obligated to
deal in any manner with the Transferee, and appropriate arrangements shall
be made between the Transferor and the Transferee giving to the Transferor
full right and authority to act on behalf of and bind the Transferee in all
respects with regard to such Accenture Approved Transaction.
(d) Accenture Ltd's consent to any such participation by the
Transferee in respect of an Accenture Approved Transaction may be made
subject to such conditions determined by Accenture Ltd in its sole
discretion, including, without limitation, that (i) the Transferee deliver
to the Transferor an irrevocable proxy and power of attorney authorizing
the Transferor to act on behalf of and to bind the Transferee in all
respects with regard to such Accenture Approved Transaction; (ii) that the
Transferor and/or the Transferee become bound by any other agreement or
instrument that Accenture Ltd may require in its sole discretion; and (iii)
that the Transferor and/or the Transferee deliver to Accenture Ltd such
opinion of counsel with respect to the authorization, validity and binding
effect of such proxy, agreements and instruments, and such other matters in
respect of such participation in the Accenture Approved Transaction, as may
be reasonably required by Accenture Ltd.
(e) Accenture Ltd expressly disclaims, and each Transferor and
Transferee acknowledges and agrees that Accenture Ltd shall not have, any
obligation, undertaking or duty to ensure that the Transferee can
effectively exercise and avail itself of any participation opportunity in
respect of any Accenture Approved Transaction; and any such participation
by the Transferee shall remain subject in all respects to third-party
requirements with regard to such transaction, including, without
limitation, satisfying all relevant third parties (such as underwriters and
their counsel) that the Transferee has the authority to participate in the
transaction.
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Section 3.4. Reacquisition of Transferred Shares. Subject to the consent of
Accenture Ltd, in the event a Transferor reacquires Transferred Shares, such
reacquired shares may be released, pursuant to procedures to be determined by
Accenture Ltd in its sole discretion, free and clear of all agreements,
conditions and restrictions of this Agreement, provided that such reacquired
shares shall again be deemed, and the Transferor shall confirm that such
reacquired shares are, Covered Shares subject to the Voting Agreement and the
Common Agreement in the same manner and to the same extent as if such shares had
never been transferred by the Transferor.
ARTICLE IV
VOTING OF TRANSFERRED SHARES
Section 4.1. Irrevocable Proxy and Power of Attorney.
(a) Each Transferee hereby gives the Transferor who has transferred
the Transferred Shares to such Transferee, with full power of substitution
and resubstitution, an exclusive and irrevocable proxy and power of
attorney to vote or otherwise act with respect to all of the Transferee's
Transferred Shares, as fully, to the same extent and with the same effect
as such Transferee might or could do under any applicable laws or
regulations governing the rights and powers of shareholders of a Bermuda
company;
(b) Each such Transferee hereby affirms to Accenture Ltd and the
Transferor that this proxy and power of attorney is given as a term of this
Agreement and as such is coupled with an interest and is irrevocable. It is
further understood and agreed by each such Transferee that this proxy and
power of attorney may be exercised by the respective Transferor with
respect to all Transferred Shares transferred by such Transferor to such
Transferee.
(c) The proxy and power of attorney given by the Transferee to the
Transferor pursuant to this Section 4.1 shall remain in effect until the
date (the "Proxy Termination Date") which is the earlier of (i) the date
that such Transferor ceases to be an Employee Covered Person and (ii) such
date, following the Restriction Termination Date, that the Transferee
transfers the Transferred Shares to a subsequent transferee.
(d) It is acknowledged and agreed by the Transferee that the
Transferred Shares may be voted, pursuant to the proxy and power of
attorney given pursuant to this Section 4.1 and in accordance with the
voting provisions of Article IV of the Voting Agreement referred to in
Section 4.2 below, in the interests of the Transferor and/or the Company,
as may be determined by the Transferor, the Company and/or the Partner
Representatives (as defined in the Voting Agreement), without any duty or
obligation to the Transferee being expressly or implicitly undertaken or
assumed by the Transferor, the Company or the Partner Representatives as a
result of the acceptance of such proxy and power of attorney.
Section 4.2. Shares Voted Under Voting Agreement. Each Transferor who is an
Employee Covered Person, notwithstanding the provisions of Section 4.1 above and
without
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limitation by the provisions of Article IV of the Voting Agreement, hereby (i)
remakes and re-gives to the Partner Representatives the irrevocable proxy and
power of attorney, as set forth in Section 4.3 of the Voting Agreement, in
respect of the Transferred Shares and (ii) agrees to and reaffirms with respect
to the Transferred Shares the voting and other provisions of Sections 4.1, 4.2
and 4.4 of the Voting Agreement, in each case for so long as such Transferor
remains an Employee Covered Person and to the same extent and with the same
effect as if the Transferred Shares were Employee Covered Shares of such
Transferor.
ARTICLE V
CUSTODIAL ARRANGEMENTS
Section 5.1. Holding of Shares in Custody and/or in Nominee Name.
(a) Each Transferee agrees, as a condition to the consent of Accenture
Ltd to the Transfer of the Transferred Shares to the Transferee, that all
Transferred Shares shall, at the sole discretion of Accenture Ltd, be
registered in the name of a nominee for such Transferee and/or shall be
held in the custody of a custodian until otherwise determined by Accenture
Ltd, and each Transferee appoints the General Counsel of Accenture Ltd
and/or his designee, with full power of substitution and resubstitution,
such Transferee's true and lawful attorney in-fact to assign, endorse and
register for transfer into such nominee's name or deliver to such custodian
any such Transferred Shares which are not so registered or so held, as the
case may be, and to enter into any custody agreement with respect to such
Transferred Shares, granting to such attorneys, and each of them, full
power and authority to do and perform each and every act and thing
whatsoever that such attorney or attorneys may deem necessary, advisable or
appropriate to carry out fully the intent of this Section 5.1 as such
Transferee might or could do personally, hereby ratifying and confirming
all acts and things that such attorney or attorneys may do or cause to be
done by virtue of this power of attorney.
(b) The Transferred Shares shall be released free and clear from the
requirements of this Section 5.1, pursuant to procedures to be developed by
Accenture Ltd, upon delivery of the written request of the Transferee at
any time following the Restriction Termination Date.
Section 5.2. Dividends and Distributions. Whenever any nominee holder shall
receive any dividend or other distribution in respect of any Transferred Shares,
satisfied otherwise than in Common Shares, Accenture Ltd will give or cause to
be given notice or direction to the applicable nominee and/or custodian referred
to in Section 5.1 to permit the prompt distribution of such dividend or
distribution to the beneficial owner of such Transferred Shares, net of any tax
withholding amounts required to be withheld by the nominee, unless the
distribution of such dividend or distribution is restricted by the terms of
another agreement between the Transferee and Accenture Ltd (or with any other
person with respect to which Accenture Ltd has expressly agreed in writing).
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.1. Representations and Warranties of Transferors. Each Transferor
severally represents and warrants with respect to the Transfer described in the
Schedule I attached to the Joinder Agreement executed by him that:
(a) the information contained in Schedule I to the Joinder Agreement
and all information and material in respect of the Transfer delivered
pursuant to Section 3.1(c) is complete and correct;
(b) the Transfer of the Transferred Shares by the Transferor satisfies
the Transfer eligibility requirement of Section 2.1(b) hereof:
(c) the Transferred Shares are not subject to, and the Transferor is
not, with respect to the Transferred Shares, a party to any other
agreement, arrangement or understanding with respect to (i) the Transfer
identified in the Schedule I to the Joinder Agreement, (ii) any other
transfer with respect to the Transferred Shares or (iii) any ownership
interest in the Transferred Shares.
(d) such Transferor has good, valid and marketable title to the
Transferred Shares, free and clear of any pledge, lien, security interest,
charge, claim, equity or encumbrance of any kind, other than pursuant to
the Voting Agreement, the Common Agreement, or any other agreement with
another person with respect to which Accenture Ltd has expressly agreed to
in writing;
(e) this Agreement and the Common Agreement constitute the legal,
valid and binding obligations of such Transferor, enforceable against such
Transferor in accordance with their respective terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally and to general equitable principles (whether considered in
a proceeding in equity or at law);
(f) there are no actions, suits or proceedings pending, or, to the
knowledge of such Transferor, threatened against or affecting such
Transferor or such Transferor's assets in any court or before or by any
federal, state, municipal or other domestic or foreign governmental
department, commission, board, bureau, agency or instrumentality; and
(g) no statement, representation or warranty made by such Transferor
in this Agreement contains or will contain any untrue statement of a
material fact or omits or will omit to state a material fact necessary in
order to make the statements, representations or warranties contained
herein or information provided therein not misleading.
Each Transferor that is not a natural person additionally severally
represents and warrants that:
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(i) such Transferor is duly organized and validly existing in good
standing under the laws of the jurisdiction of such Transferor's formation;
(ii) such Transferor has full right, power and authority to enter into
and perform this Agreement; and
(iii) the execution and delivery of this Agreement and the performance
of the transactions contemplated herein have been duly authorized, and no
further proceedings on the part of such Transferor are necessary to
authorize the execution, delivery and performance of this Agreement; and
this Agreement has been duly executed by such Transferor.
Section 6.2. Representations and Warranties of Transferees. Each Transferee
represents and warrants with respect to the Transfer described in the Schedule I
attached to the Joinder Agreement executed by it that:
(a) the information concerning the Transferred Shares and the
Transferee contained in Schedule I to the Joinder Agreement is complete and
correct;
(b) the Transferred Shares are not and will not be subject to, and the
Transferee is not and will not be, with respect to the Transferred Shares,
a party to, any other agreement, arrangement or understanding with respect
to (i) the Transfer identified in Schedule I to the Joinder Agreement, (ii)
any other Transfer with respect to the Transferred Shares, or (iii) the
beneficial ownership of the Transferred Shares;
(c) this Agreement constitutes the legal, valid and binding obligation
of such Transferee, enforceable against such Transferee in accordance with
its terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to
or affecting creditors rights generally and to general equitable principles
(whether considered in a proceeding in equity or at law);
(d) there are no actions, suits or proceedings pending, or, to the
knowledge of such Transferee, threatened against or affecting such
Transferee or such Transferee's assets in any court or before or by any
federal, state, municipal or other domestic or foreign governmental
department, commission, board, bureau, agency or instrumentality;
(e) such Transferee understands that the ability to transfer the
Transferred Shares is subject to legal and contractual restrictions and
that the Transferred Shares may not have been registered under the United
States Securities Act of 1933, and that such Transferee is holding the
Transferred Shares for its own account, for investment, and not for
distribution, assignment or resale to others, and no other person has any
direct or indirect interest in such Transferred Shares (other than
Accenture Ltd or the Transferor (to the extent provided herein) or at the
express written consent of Accenture Ltd); and
(f) no statement, representation or warranty made by such Transferee
in this Agreement, nor any information provided by such Transferee for
inclusion in a
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report filed pursuant to Section 7.2, contains or will contain any untrue
statement of a material fact or omits or will omit to state a material fact
necessary in order to make the statements, representations or warranties
contained herein or information provided therein not misleading.
Each Transferee that is not a natural person additionally severally
represents and warrants that:
(i) such Transferee is duly organized and validly existing in good
standing under the laws of the jurisdiction of such Transferee's formation;
(ii) such Transferee has full right, power and authority to enter into
and perform this Agreement; and
(iii) the execution and delivery of this Agreement and the performance
of the transactions contemplated herein have been duly authorized, and no
further proceedings on the part of such Transferee are necessary to
authorize the execution, delivery and performance of this Agreement; and
this Agreement has been duly executed by such Transferee.
Section 6.3. Continuing Representations and Warranties.
(a) The representations and warranties made by the Transferor in
Section 6.1 shall be continuing representations and warranties by the
Transferor during the term of this Agreement, and the Transferor shall take
all actions as shall from time to time be necessary to cure any breach or
violation thereof and to obtain any authorizations, covenants, approvals
and clearances in order that such representations and warranties shall be
true and correct during such period.
(b) The representations and warranties made by the Transferee in
Section 6.2 shall be continuing representations and warranties by the
Transferee during the term of this Agreement, and the Transferee shall take
all actions as shall from time to time be necessary to cure any breach or
violation thereof and to obtain any authorizations, covenants, approvals
and clearances in order that such representations and warranties shall be
true and correct during such period.
ARTICLE VII
OTHER AGREEMENTS OF THE PARTIES
Section 7.1. Standstill Provisions. Each Transferee agrees that, until the
Proxy Termination Date, such Transferee shall not, directly or indirectly, alone
or in concert with any other person, (i) make, or in any way participate in, any
"solicitation" of "proxies" (as such terms are defined in Exchange Act Rule
14a-1) relating to any securities of the Company to or with any Restricted
Person; (ii) deposit any Transferred Shares in a voting trust or subject any
Transferred Shares to any voting agreement or arrangement; (iii) form, join or
in any way participate in a group (as contemplated by Exchange Act Rule
13d-5(b)) with respect to any securities of the Company (or any securities the
ownership of which would make the owner thereof a beneficial owner of securities
of the Company (for this purpose as determined by Exchange Act Rule 13d-3 and
Exchange Act Rule 13d-5)) that includes as a party any Restricted Person; (iv)
make any
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announcement subject to Exchange Act Rule 14a-1(1)(2)(iv) to any Restricted
Person; (v) initiate or propose any "shareholder proposal" subject to Exchange
Act Rule 14a-8; (vi) together with any Restricted Person, make any offer or
proposal to acquire any securities or assets of the Company or solicit or
propose to effect or negotiate any form of business combination, restructuring,
recapitalization or other extraordinary transaction involving, or any change in
control of, Accenture Ltd, its Subsidiaries or any of their respective
securities or assets; (vii) together with any Restricted Person, seek the
removal of any directors or a change in the composition or size of the Board of
Directors of Accenture Ltd; (viii) together with any Restricted Person, in any
way participate in a call for any special meeting of the shareholders of
Accenture Ltd; or (ix) assist, advise or encourage any person with respect to,
or seek to do, any of the foregoing.
Section 7.2. Filing of Schedule 13D or 13G. In the event that a Transferee
is required to file a report of beneficial ownership on Schedule 13D or 13G with
respect to the Transferred Shares beneficially owned by him (for this purpose as
determined by Exchange Act Rule 13d-3 and Exchange Act Rule 13d-5), such
Transferee agrees that, unless otherwise directed by Accenture Ltd or its
authorized representative, such Transferee will not file a separate such report,
but will file a report together with such other persons as Accenture Ltd or its
authorized representative shall direct, containing the information required by
the Exchange Act, and such Transferee understands and agrees that such report
shall be filed on his behalf by Accenture Ltd or its authorized representative.
Such Transferee shall cooperate fully with Accenture Ltd or its authorized
representative to achieve the timely filing of any such report and any
amendments thereto as may be required, and such Transferee agrees that any
information concerning such Transferee which such Transferee furnishes in
connection with the preparation and filing of such report will be complete and
accurate.
By his acceptance of the Transferred Shares, each Transferee appoints
Accenture Ltd, or its authorized representative, with full power of substitution
and resubstitution, his true and lawful attorney-in-fact to execute such reports
and any and all amendments thereto and to file such reports with all exhibits
thereto and other documents in connection therewith with the United States
Securities and Exchange Commission and, if necessary, foreign regulators,
granting to such attorneys, and each of them, full power and authority to do and
perform each and every act and thing whatsoever that such attorney or attorneys
may deem necessary, advisable or appropriate to carry out fully the intent of
this Section 7.2 as such Transferee might or could do personally, hereby
ratifying and confirming all acts and things that such attorney or attorneys may
do or cause to be done by virtue of this power of attorney. Each Transferee
hereby further designates such attorneys as such Transferee's agents authorized
to receive notices and communications with respect to such reports and any
amendments thereto. It is understood and agreed by each such Transferee that
this appointment, empowerment and authorization may be exercised by the
aforementioned persons for the period beginning on the date hereof and
continuing during the term of this Agreement (and shall extend thereafter for
such time as is required to reflect that such Transferee is no longer a party to
this Agreement).
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Section 7.3. Adjustment upon Changes in Capitalization; Adjustments upon
Changes of Control; Representatives, Successors and Assigns.
(a) In the event of any change in the outstanding Common Shares by
reason of stock dividends, stock splits, reverse stock splits, spin-offs,
split-ups, recapitalizations, amalgamations, combinations, exchanges of
shares and the like, the term "Transferred Shares" shall refer to and
include the securities received or resulting therefrom, but only to the
extent such securities are received in exchange for or in respect of
Transferred Shares. Upon the occurrence of any event described in the
immediately preceding sentence, Accenture Ltd or its authorized
representative shall make such adjustments to or interpretations of the
provisions of this Agreement as it shall deem necessary or desirable to
carry out the intent of such provision(s). If Accenture Ltd or its
authorized representative deems it desirable, any such adjustments may take
effect from the record date, the "when issued trading date", the "ex
dividend date" or another appropriate date.
(b) In the event of any business combination, amalgamation,
restructuring, recapitalization or other extraordinary transaction directly
or indirectly involving Accenture Ltd or any of its securities or assets as
a result of which the Transferees shall hold voting securities of a
different entity, the Transferees agree that this Agreement shall also
continue in full force and effect with respect to such voting securities of
such other entity formerly representing or distributed in respect of Common
Shares, and the terms "Class A Common Shares," "Transferred Shares,"
"Common Shares", and "Accenture Ltd" and "Company" shall refer to such
voting securities formerly representing or distributed in respect of Common
Shares and such entity, respectively. Upon the occurrence of any event
described in the immediately preceding sentence, Accenture Ltd or its
authorized representative shall make such adjustments to or interpretations
of the restrictions of this Agreement as they shall deem necessary or
desirable to carry out the intent of such provision(s). If Accenture Ltd or
its authorized representative deems it desirable, any such adjustments may
take effect from the record date or another appropriate date.
(c) This Agreement shall be binding upon and inure to the benefit of
the respective legatees, legal representatives, successors and assigns of
the Transferees (and Accenture Ltd in the event of a transaction described
in Section 7.3(b) hereof); provided, however, that no Transferor or
Transferee may assign this Agreement or any of his rights or obligations
hereunder without the prior written consent of Accenture Ltd, and any
assignment without such consent by a Transferor or Transferee shall be
void; and, provided, further, that no assignment of this Agreement by
Accenture Ltd or to a successor of Accenture Ltd (by operation of law or
otherwise) shall be valid unless such assignment is made to a person which
succeeds to the business of Accenture Ltd substantially as an entirety.
Section 7.4. Confirmation of Agreements. Each Transferor hereby reaffirms his
agreement to observe and perform, and to be bound by, all terms, conditions and
provisions of the Voting Agreement, the Common Agreement, the Non-Competition
Agreement and related Pledge Agreement to which such Transferor is a party. Each
Transferor also agrees that, with
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respect to all future Transfers for estate and/or tax planning purposes or
charitable giving purposes, such Transferor will comply with the limitations and
restrictions included in the guidelines established by Accenture Ltd. as are in
effect at the time of such Transfer.
Section 7.5. Further Assurances. Each Transferor and each Transferee agrees
to execute such additional documents and take such further action upon the
request of Accenture Ltd as may be reasonably necessary to effect the provisions
of this Agreement.
ARTICLE VIII
INDEMNITY AND EXPENSES
Section 8.1. Indemnity. Each Transferor and each Transferee jointly and
severally agrees that it will indemnify and hold harmless the Company and its
directors, officers, partners, employees, agents and representatives against (i)
any federal, state or local tax and/or tax-related liability imposed by any
jurisdiction (whether in respect of any income tax, transfer tax, stamp tax,
excise tax or other tax) arising out of or in connection with the Transfer of
the Transferred Shares or any transactions involving the Transferred Shares and
(ii) any judgments, fines, losses, claims, damages, liabilities, costs and
expenses (including, without limitation, attorneys' fees and defense costs)
arising out of or in connection with (x) the Transfer of the Transferred Shares,
any transactions involving the Transferred Shares or any matters pertaining to
this Agreement in respect of such Transferor or Transferee, or (y) any action,
suit, proceeding or investigation, whether civil or criminal, administrative or
investigative, in respect of or arising out of such Transfer, transactions or
matters described in preceding clause (x).
Section 8.2. Expenses. Each Transferor or Transferee shall be responsible
for all expenses of such Transferor or Transferee incurred in connection with
the compliance by such Transferor or Transferee with his obligations under this
Agreement, including expenses incurred by Accenture Ltd or its authorized
representative in enforcing the provisions of this Agreement relating to such
obligations.
ARTICLE IX
MISCELLANEOUS
Section 9.1. Term of the Agreement. The term of this Agreement as to any
Transferor and Transferee shall continue until and terminate upon the later of
the Proxy Termination Date and the Restriction Termination Date; provided,
however, that (i) the provisions of Article II and Article V shall continue
until and terminate upon the Restriction Termination Date; (ii) the provisions
of Article IV and Sections 7.1 and 7.2 shall continue until and terminate upon
the Proxy Termination Date; and (iii) the provisions of Sections 8.1 and 8.2
shall continue indefinitely.
Section 9.2. Waivers; Amendments. Waivers and amendments with respect to a
particular Transferee that do not change the rights or obligations of any other
Transferee shall require, and may be effected by, the approval of (i) Accenture
Ltd, (ii) the affected Transferee, and (iii) the Transferor of the Transferred
Shares so long as such Transferor is an Employee Covered Person.
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(a) In connection with any amendment or waiver granted under this
Agreement, Accenture Ltd, may impose such conditions as it determines on
the entering into any such amendments or the granting of such waivers.
(b) The failure of Accenture Ltd or its authorized representative at
any time or times to require performance of any provision of this Agreement
shall in no manner affect the rights at a later time to enforce the same.
No waiver by Accenture Ltd or its authorized representatives of the breach
of any term contained in this Agreement, whether by conduct or otherwise,
in any one or more instances, shall be deemed to be or construed as a
further or continuing waiver of any such breach or the breach of any other
term of this Agreement.
Section 9.3. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF BERMUDA.
Section 9.4. Resolution of Disputes.
(a) Accenture Ltd may delegate the enforcement of the provisions of
this Agreement to any authorized representative(s) designated by it.
(b) Any and all disputes which cannot be settled amicably, including
any ancillary claims of any party, arising out of, relating to or in
connection with the validity, negotiation, execution, interpretation,
performance or non-performance of this Agreement (including the validity,
scope and enforceability of this arbitration provision) shall be finally
settled by arbitration conducted by a single arbitrator in New York in
accordance with the then-existing Rules of Arbitration of the International
Chamber of Commerce, except that the parties may select an arbitrator who
is a national of the same country as one of the parties. If the parties to
the dispute fail to agree on the selection of an arbitrator within thirty
(30) days of the receipt of the request for arbitration, the International
Chamber of Commerce shall make the appointment. The arbitrator shall be a
lawyer and shall conduct the proceedings in the English language.
Performance under this Agreement shall continue if reasonably possible
during any arbitration proceedings.
(c) Notwithstanding the provisions of paragraph (b), Accenture Ltd may
bring, on behalf of Accenture Ltd or on behalf of one or more Transferors
or Transferees, an action or special proceeding in any court of competent
jurisdiction for the purpose of compelling a party to arbitrate, seeking
temporary or preliminary relief in aid of an arbitration hereunder, and/or
enforcing an arbitration award and, for the purposes of this paragraph (c),
each Transferor and Transferee (i) expressly consents to the application of
paragraph (d) of this Section 9.4 to any such action or proceeding, (ii)
agrees that proof shall not be required that monetary damages for breach of
the provisions of this Agreement would be difficult to calculate and that
remedies at law would be inadequate, and (iii) irrevocably appoints the
General Counsel of Accenture Ltd, c/o Accenture Ltd, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (or, if different, the then-current principal business
address of the duly appointed General Counsel of
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Accenture Ltd) as such Transferor's or Transferee's agent for service of
process in connection with any such action or proceeding and agrees that
service of process upon such agent, who shall promptly advise such
Transferor or Transferee of any such service of process, shall be deemed in
every respect effective service of process upon the Transferor or
Transferee in any such action or proceeding.
(d) (i) EACH TRANSFEROR AND TRANSFEREE HEREBY IRREVOCABLY SUBMITS
TO THE JURISDICTION OF COURTS LOCATED IN NEW YORK, UNITED STATES FOR
THE PURPOSE OF ANY JUDICIAL PROCEEDING BROUGHT IN ACCORDANCE WITH THE
PROVISIONS OF PARAGRAPH (C) OF THIS SECTION 9.4, OR ANY JUDICIAL
PROCEEDING ANCILLARY TO AN ARBITRATION OR CONTEMPLATED ARBITRATION
ARISING OUT OF OR RELATING TO OR CONCERNING THIS AGREEMENT. Such
ancillary judicial proceedings include any suit, action or proceeding
to compel arbitration, to obtain temporary or preliminary judicial
relief in aid of arbitration, or to confirm an arbitration award. The
parties acknowledge that the for a designated by this paragraph (d)
have a reasonable relation to this Agreement, and to the parties'
relationship with one another.
(ii) The parties hereby waive, to the fullest extent permitted by
applicable law, any objection which they now or hereafter may have to
personal jurisdiction or to the laying of venue of any such ancillary
suit, action or proceeding brought in any court referred to in
paragraph (d)(i) of this Section 9.4 and such parties agree not to
plead or claim the same.
Section 9.5. Relationship of Parties. The terms of this Agreement are not
intended to create a separate entity for United States federal or state income
tax purposes or under the laws of any other jurisdiction. Nothing in this
Agreement shall be read to create any partnership, joint venture or separate
entity among the parties or to create any trust or other fiduciary relationship
between them. Without limitation on the foregoing, the Company shall not be
deemed to owe any duties of any kind to any Transferee under or on account of
this Agreement or the transactions contemplated hereby other than the
contractual obligations of Accenture Ltd expressly set forth herein.
Section 9.6. Notices.
(a) Any communication, demand or notice to be given hereunder will be
duly given (and shall be deemed to be received) when delivered in writing
by hand or first class mail or by telecopy to a party at its address as
indicated below or at such other address of which the respective party has
given notice in accordance with this Section 9.6:
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If to a Transferor:
c/o Accenture Ltd
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
(or, if different, the then-current principal
business address of the duly appointed General
Counsel of Accenture Ltd)
If to a Transferee:
To the address specified in the Joinder Agreement
executed and delivered by the Transferee.
If to Accenture Ltd:
Accenture Ltd
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
(or, if different, the then-current principal
business address of the duly appointed General
Counsel of Accenture Ltd)
With a copy to:
Accenture Global Partner Matters
Accenture Ltd
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Accenture Ltd shall be responsible for notifying each Transferor of
the receipt of a communication, demand or notice under this Agreement
relevant to such Transferor, in writing, at the address of such Transferor
then in the records of Accenture Ltd (and each Transferor shall notify
Accenture Ltd of any change in such address for communications, demands and
notices) or by electronic mail to the principal electronic address of such
person maintained by the Company.
(b) Unless otherwise provided to the contrary herein, any notice which
is required to be given in writing pursuant to the terms of this Agreement
may be given by telecopy.
Section 9.7. Severability. If any provision of this Agreement is finally
held to be invalid, illegal or unenforceable, the remaining terms and provisions
hereof shall be unimpaired.
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Section 9.8. Voting Agreement and Common Agreement.
(a) Nothing contained in this Agreement shall be deemed, with respect
to any Transferor, in any way to waive or amend any provision of the Voting
Agreement or the Common Agreement, including but not limited to the share
transfer restrictions therein, or to release or discharge any Transferor
from any obligation under either of said agreements, except to the extent
of the consent to transfer given by Accenture Ltd pursuant to Section 2.1
hereof.
(b) In the event of any ambiguity or inconsistency between the terms
of this Agreement and the terms of either the Common Agreement or the
Voting Agreement as applied to any Transferor, the terms of this Agreement
shall control.
(c) No Transferee shall have any rights or obligations under or in
respect of the Voting Agreement, nor is any Transferee intended to be a
beneficiary of the Voting Agreement.
(d) It is acknowledged that the Common Agreement provides that it
shall be binding upon any transferee of Covered Shares transferred by
Partners pursuant to the waiver provided thereby. Notwithstanding the
foregoing, it is further acknowledged and agreed that, with respect to the
Transferees, (i) this Agreement contains and implements all provisions of
the Common Agreement intended to be binding upon the Transferees, (ii) this
Agreement supersedes in its entirety the Common Agreement, and (iii) no
Transferee shall have any rights or obligations under or in respect of the
Common Agreement, nor is any Transferee intended to be a beneficiary of the
Common Agreement.
Section 9.9. No Third-Party Rights. Nothing expressed or referred to in
this Agreement will be construed to give any person other than the parties to
this Agreement, and the Company (and its directors, officers, partners,
employees, agents and representatives) any legal or equitable right, remedy, or
claim under or with respect to this Agreement or any provision of this
Agreement. This Agreement and all of its provisions and conditions are for the
sole and exclusive benefit of the parties to this Agreement and the Company (and
its directors, officers, partners, employees, agents and representatives) and
their successors and permitted assigns.
Section 9.10. Section Headings. The headings of sections in this Agreement
are provided for convenience only and will not affect its construction or
interpretation.
Section 9.11. Execution in Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an original, but all
such counterparts shall together constitute one agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed or caused to be
duly executed this Transfer Restriction Agreement as of the date first above
written, but with the effective date as to any Transferor and Transferee in
respect of any Transfer to be the date of the countersignature by Accenture Ltd
to the respective Joinder Agreement for such Transfer.
ACCENTURE LTD
By _________________________________
Name:
Title:
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EXHIBIT A
JOINDER AGREEMENT
ACCENTURE LTD
TRANSFER RESTRICTION AGREEMENT
The undersigned Transferor and Transferee, in consideration of and as a
condition to the consent by Accenture Ltd to the Transferor's transfer to the
Transferee of such number of Class A Common Shares of Accenture Ltd pursuant to
the Transfer described in Schedule I hereto, hereby join in and execute and
agree to be bound by that certain Transfer Restriction Agreement dated as of
October 1, 2002 (the "Transfer Restriction Agreement") effective as of the date
of the countersignature by Accenture Ltd below.
The undersigned Transferor agrees that he is a Transferor under the
Transfer Restriction Agreement and represents and warrants that he has read and
understands the provisions of the Transfer Restriction Agreement, including but
not limited to, the representations and warranties contained in Section 6.1
thereof, and the undersigned Transferor reaffirms and remakes the
representations and warranties contained in Section 6.1 of the Transfer
Restriction Agreement as if such representations and warranties were expressly
set forth in this Joinder Agreement.
The undersigned Transferee agrees that it is a Transferee under the
Transfer Restriction Agreement and represents and warrants that it has read and
understands the provisions of the Transfer Restriction Agreement, including but
not limited to, the representations and warranties contained in Section 6.2
thereof, and the undersigned Transferee reaffirms and remakes the
representations and warranties contained in Section 6.2 of the Transfer
Restriction Agreement as if such representations and warranties were expressly
set forth in this Joinder Agreement.
[NAME OF TRANSFEROR] [NAME OF TRANSFEREE]
By: By:
----------------------------------- -----------------------------------
(Signature) (Signature)
Name: Name:
----------------------------------- -----------------------------------
Title: Title:
----------------------------------- -----------------------------------
Dated: Dated:
----------------------------------- -----------------------------------
APPROVED AND AGREED TO: Address of Transferee:
ACCENTURE LTD
By: ----------------------------------- --------------------------------------------
Name: ----------------------------------- --------------------------------------------
Title: ----------------------------------- --------------------------------------------
Dated: -----------------------------------
A-1
Schedule I
To
Joinder Agreement
Accenture Ltd
Transfer Restriction Agreement
1. Name of Transferor:
2. Name of Transferee:
3. Number of Transferred Shares:
4. Base Restriction Date(s): Circle applicable date(s); if more than one
date, indicate number of Transferred Shares applicable to each date
(see Section 2.2(a) of Transfer Restriction Agreement):
Number of
Date Transferred Shares
---- ------------------
July 24, 2003 ____________________
July 24, 2004 ____________________
July 24, 2005 ____________________
July 24, 2006 ____________________
July 24, 2007 ____________________
July 24, 2008 ____________________
July 24, 2009* ____________________
Extended Restriction Date ____________________
Common Restriction Date** ____________________
*Must be used for Transfers by resigned Partners (and may be used
only for such Transfers) **Must be used for Common Restriction Shares
5. Is the Transferee an Exempt Organization? Yes _____ No _____
6. Are the Transferee and all its underlying beneficial owners (including
partners, members, beneficiaries and contingent beneficiaries)
Family Members? Yes _____ No _____
7. List or describe in detail all underlying beneficial owners (including
partners, members, beneficiaries and contingent beneficiaries) of
Transferee:
A-2
8. Describe relationship between Transferor and Transferee (and
Transferee's beneficial owners) if other than Family Members:
9. Description of transfer (e.g., out-right gift, transfer into trust,
transfer to family partnership or other estate and/or tax planning
vehicle):
10. Description of relevant documents relating to Transfer and Transferee
(include description of transfer document and list of organizational
documents of any Transferee other than a natural person):
11. Attach copies of documents referred to in Item 10 above.
A-3