EXHIBIT 1.2
EXECUTION COPY
ACCENTURE LTD
CLASS A COMMON SHARES
Underwriting
Agreement
April 28, 2004
Xxxxxx Xxxxxxx & Co. Incorporated
UBS Securities LLC
X.X. Xxxxxx Securities Inc.
Credit Suisse First Boston LLC
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Citigroup Global Markets Inc.
XX Xxxxx & Co., LLC
Banc of America Securities LLC
Wachovia Capital Markets, LLC
Bear, Xxxxxxx & Co. Inc.
Xxxxxxx & Company, Inc.
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
ABN AMRO Rothschild LLC
Xxxxxx X. Xxxxx & Co. Incorporated
Scotia Capital (USA) Inc.
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Accenture Ltd, an exempted company limited by shares registered in
Bermuda (the "COMPANY"), proposes, subject to the terms and conditions stated
herein, to issue and sell to the Underwriters named in Schedule I hereto (the
"UNDERWRITERS") an aggregate of 35,761,232 Class A Common Shares, par value
$0.0000225 per share ("COMMON SHARES"), of the Company and, at the election of
the Underwriters, up to 7,500,000 additional Common Shares, and the shareholders
of the Company named in Schedule II hereto (the "SELLING SHAREHOLDERS") propose,
subject to the terms and conditions stated herein, to sell to the Underwriters
an aggregate of 14,238,768 Common Shares. The aggregate of 50,000,000 Common
Shares to be sold by the Company and the Selling Shareholders is herein called
the "FIRM SHARES" and the aggregate of 7,500,000 additional Common Shares to be
sold by the Company is herein called
the "OPTIONAL SHARES." The Firm Shares and the Optional Shares that the
Underwriters elect to purchase pursuant to Section 2 hereof are herein
collectively called the "SHARES."
1. (a) Each of the Company and Accenture SCA, a Luxembourg societe en
commandite par actions ("SCA"), represents and warrants to, and agrees with,
each of the Underwriters that:
(i) Two registration statements on Form S-3 (File Nos.
333-104628 and 333-112854) (the "INITIAL REGISTRATION STATEMENTS") in
respect of the Shares have been filed with the Securities and Exchange
Commission (the "COMMISSION"); the Initial Registration Statements and
any post-effective amendments thereto, each in the form heretofore
delivered to you, and, excluding exhibits thereto, to you for each of
the other Underwriters, have been declared effective by the Commission
in such form; other than a registration statement, if any, increasing
the size of the offering (a "RULE 462(B) REGISTRATION STATEMENT"),
filed pursuant to Rule 462(b) under the Securities Act of 1933, as
amended (the "SECURITIES ACT"), which became effective upon filing, no
other document with respect to the Initial Registration Statements has
heretofore been filed with the Commission (other than prospectuses
filed pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Securities Act, if any, each in the form
heretofore delivered to you); and no stop order suspending the
effectiveness of the Initial Registration Statements, any
post-effective amendment thereto, or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that purpose
has been initiated or, to the Company's or SCA's knowledge, threatened
by the Commission (any preliminary prospectus included in the Initial
Registration Statements or filed with the Commission pursuant to Rule
424(a) of the rules and regulations of the Commission under the
Securities Act is hereinafter called a "PRELIMINARY PROSPECTUS"; the
various parts of the Initial Registration Statements, any
post-effective amendments thereto and the Rule 462(b) Registration
Statement, if any, including all exhibits thereto and including (i) if
applicable, the information contained in the form of final prospectus
filed with the Commission pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Securities Act in accordance
with Section 5(a) hereof and deemed by virtue of Rule 430A of the rules
and regulations of the Commission under the Securities Act to be part
of the latest Initial Registration Statement at the time it was
declared effective and (ii) the documents incorporated by reference in
the prospectus contained in the latest Initial Registration Statement
at the time such part of the Initial Registration Statement became
effective, each as amended at the time such part of the latest Initial
Registration Statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes effective,
are hereinafter collectively called the "REGISTRATION STATEMENT"; and
the final prospectus, in the form first filed pursuant to Rule 424(b)
of the rules and regulations of the Commission under the Securities Act
in accordance with Section 5(a) hereof, is hereinafter called the
"PROSPECTUS"); any reference herein to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under
the Securities Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after the date of
such Preliminary Prospectus or Prospectus, as the case may be, under
the Securities Exchange Act of 1934,
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as amended (the "EXCHANGE ACT"), and incorporated by reference in such
Preliminary Prospectus or Prospectus, as the case may be; and any
reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the Company filed
pursuant to Sections 13(a) or 15(d) of the Exchange Act after the
effective date of the latest of the Initial Registration Statements
that is incorporated by reference in the Registration Statement;
(ii) No order preventing or suspending the use of the
Registration Statement or the Prospectus has been issued by the
Commission;
(iii) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration Statement
or the Prospectus will conform, in all material respects to the
requirements of the Securities Act and the rules and regulations of the
Commission thereunder and such documents do not and will not, as of the
applicable effective date as to the Registration Statement and any
amendment thereto, and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein (as to
the Prospectus, in the light of the circumstances under which such
statements were made) not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by any Underwriter through Xxxxxx
Xxxxxxx & Co. Incorporated ("XXXXXX XXXXXXX") expressly for use therein
or by a Selling Shareholder expressly for use in the preparation of the
answers therein to Item 7 of Form S-3;
(iv) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder,
and none of such documents contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the requirements
of the Securities Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by any Underwriter through Xxxxxx Xxxxxxx expressly for
use therein;
(v) Neither the Company, SCA nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any loss or
interference with its business that is material to the Company, SCA and
its subsidiaries, taken as a whole, from fire, explosion, flood or
other calamity,
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whether or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
except as disclosed or contemplated in the Prospectus or in connection
with the Company's share incentive and employee share purchase plans or
the hiring, promotion, demotion, reassignment or termination of
employees in the ordinary course of business, (i) there has not been
any change in the share capital or capital stock, as the case may be,
of the Company or SCA, (ii) there has not been any material increase in
the consolidated long-term debt of the Company, (iii) there has not
been any adverse change in the capital stock of any of SCA's
subsidiaries that is material to the Company, SCA and its subsidiaries,
taken as a whole, and (iv) there has not been any material adverse
change, or any development involving a prospective material adverse
change, in the business, management, financial position, shareholders'
equity or results of operations of the Company, SCA and its
subsidiaries, taken as a whole;
(vi) The Company (i) has been duly continued into Bermuda as
an exempted company under Section 132C of the Companies Act 1981 of
Bermuda and is validly existing as an exempted company in good standing
under the laws of Bermuda, with corporate power and authority to own
its assets and conduct its business as described in the Prospectus and
(ii) has been duly qualified or registered as a foreign corporation for
the transaction of business and is in good standing (to the extent such
concept exists in the jurisdiction in question) under the laws of each
other jurisdiction in which it owns or leases properties or conducts
any business so as to require such qualification or registration, or is
subject to no material liability or disability by reason of the failure
to be so qualified or registered or be in good standing in any such
jurisdiction, except where the failure to be so qualified or registered
or be in good standing would not reasonably be expected to have a
material adverse effect on the business, management, financial
position, shareholders' equity or results of operation of the Company,
SCA and its subsidiaries, taken as a whole (a "MATERIAL ADVERSE
EFFECT");
(vii) The Company's only material asset is the capital stock
of SCA as described in the Prospectus;
(viii) SCA (i) has been duly organized and is validly existing
as a societe en commandite par actions under the laws of Luxembourg,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus and (ii) has been duly
qualified or registered as a foreign corporation for the transaction of
business and is in good standing (to the extent such concept exists in
the jurisdiction in question) under the laws of each other jurisdiction
in which it owns or leases properties or conducts any business so as to
require such qualification or registration, or is subject to no
material liability or disability by reason of the failure to be so
qualified or registered or in good standing in any such jurisdiction,
except where the failure to be so qualified or registered or be in good
standing would not reasonably be expected to have a Material Adverse
Effect;
(ix) Each subsidiary of SCA (i) has been duly organized and is
validly existing as a corporation or other entity in good standing (to
the extent such concept
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exists in the jurisdiction in question) under the laws of its
jurisdiction of organization, with power and authority (corporate and
other) to own its properties and conduct its business as described in
the Prospectus and (ii) has been duly qualified or registered as a
foreign corporation for the transaction of business and is in good
standing (to the extent such concept exists in the jurisdiction in
question) under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such
qualification or registration, or is subject to no material liability
or disability by reason of the failure to be so qualified or registered
or in good standing in any such jurisdiction, except where the failure
to be so duly organized or existing or have such power or authority or
be so qualified or registered or be in good standing would not
reasonably be expected to have a Material Adverse Effect;
(x) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of share capital of the
Company have been duly and validly authorized and issued, are fully
paid and non-assessable, and conform to the description thereof
contained in the Prospectus; all of the issued shares of capital stock
of SCA have been duly and validly authorized and issued, are fully paid
and non-assessable and (except for directors' qualifying shares and
except as set forth or contemplated in the Prospectus) are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims; all of the issued shares of capital
stock of each subsidiary of SCA have been duly and validly authorized
and issued, are fully paid and non-assessable and (except for
directors' qualifying shares and except as set forth or contemplated in
the Prospectus) are owned directly or indirectly by SCA, free and clear
of all liens, encumbrances, equities or claims, except where it would
not reasonably be expected to have a Material Adverse Effect; the
holders of outstanding shares of share capital of the Company are not
entitled to preemptive or other rights to acquire the Shares; and there
are no restrictions on subsequent transfers of the Shares under the
laws of Bermuda (except that the permission of the Bermuda Monetary
Authority is required, and has been obtained, for the free
transferability of the Shares);
(xi) The Shares to be issued and sold by the Company to the
Underwriters hereunder have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will
be duly and validly issued and fully paid and non-assessable and will
conform to the description of the Common Shares contained in the
Prospectus;
(xii) The issue and sale of the Shares to be sold by the
Company hereunder and the compliance by the Company and SCA with all of
the provisions of this Agreement and the consummation of the
transactions herein contemplated (i) will not result in any violation
of the provisions of the Memorandum of Continuance or Bye-laws of the
Company or the Articles of Association of SCA and (ii) except with
respect to any conflicts, breaches, violations or defaults which would
not reasonably be expected to have a Material Adverse Effect or a
material adverse effect on the offering contemplated hereby, will not
(A) conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company, SCA or any of its subsidiaries is a
party or by which the Company, SCA or any of its subsidiaries is bound
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or to which any of the property or assets of the Company, SCA or any of
its subsidiaries is subject, (B) violate any constituent documents of
any of SCA's subsidiaries or (C) violate any statute or any order, rule
or regulation of any court or governmental agency or body or any stock
exchange authorities (hereinafter referred to as a "GOVERNMENTAL
AGENCY") having jurisdiction over the Company, SCA or any of its
subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration, clearance or qualification of or
with any such Governmental Agency (hereafter referred to as
"GOVERNMENTAL AUTHORIZATIONS") is required for the due authorization,
execution and delivery by the Company and SCA of this Agreement and for
the issue and sale of the Shares to be sold by the Company hereunder or
the consummation by the Company and SCA of the transactions
contemplated by this Agreement, except (A) the registration under the
Securities Act of the Shares, (B) the listing of the Shares to be
issued and sold by the Company hereunder on the New York Stock Exchange
(the "EXCHANGE"), (C) such Governmental Authorizations as have been
duly obtained and are in full force and effect and (D) such
Governmental Authorizations as may be required under state or Blue Sky
laws in connection with the purchase and distribution of the Shares by
or for the account of the Underwriters or under any laws of
jurisdictions outside Bermuda and the United States in connection with
the purchase and distribution of the Shares by or for the account of
the Underwriters;
(xiii) The Company is not in violation of its Memorandum of
Continuance or Bye-laws; SCA is not in violation of its Articles of
Association; and except for violations or defaults that individually or
in the aggregate would not reasonably be expected to have a Material
Adverse Effect, none of SCA's subsidiaries is in violation of any of
their constituent documents and neither the Company, SCA nor any of its
subsidiaries is in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of
its properties may be bound;
(xiv) No stamp or other issuance or transfer taxes or duties
and no capital gains, income, withholding or other taxes are payable by
or on behalf of the Underwriters to Bermuda or any political
subdivision or taxing authority thereof or therein in connection with
the sale and delivery by the Company or the Selling Shareholders of the
Shares to or for the respective accounts of the Underwriters or the
sale and delivery outside Bermuda by the Underwriters of the Shares to
the initial purchasers thereof;
(xv) Except as described or contemplated in the Prospectus,
there are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with
respect to any securities of the Company or to require the Company to
include such securities with the Common Shares registered pursuant to
the Registration Statement;
(xvi) All dividends and other distributions declared and
payable on the shares of share capital of the Company may under the
current laws and regulations of Bermuda be paid in currency other than
Bermuda currency that may be freely transferred out of
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Bermuda without the necessity of obtaining any Governmental
Authorization in Bermuda, and all such dividends and other
distributions will not be subject, under current laws and regulations,
to withholding, deduction or other taxes under the laws and regulations
of Bermuda;
(xvii) The statements set forth in the Prospectus under the
caption "Description of Share Capital," insofar as they purport to
constitute a summary of the terms of the Common Shares, and under the
caption "Material Income Tax Consequences," insofar as they purport to
describe the provisions of the laws and documents referred to therein,
are accurate in all material respects;
(xviii) Other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings pending to
which the Company, SCA or any of its subsidiaries is a party or of
which any property of the Company, SCA or any of its subsidiaries is
the subject which would individually or in the aggregate reasonably be
expected to have a Material Adverse Effect; and, to the Company's and
SCA's knowledge, no such proceedings are threatened or contemplated by
any Governmental Agency or threatened by others;
(xix) The Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company,"
as such term is defined in the Investment Company Act of 1940, as
amended (the "INVESTMENT COMPANY ACT");
(xx) Except where it would not reasonably be expected to have
a Material Adverse Effect, the Company, SCA and each of its
subsidiaries have all licenses, franchises, permits, authorizations,
approvals and orders and other concessions of and from all Governmental
Agencies that are necessary to own or lease their other properties and
conduct their businesses as described in the Prospectus;
(xxi) Based on the projected composition of the Company's
income and valuation of its assets, including goodwill, the Company
does not believe that it will be a Passive Foreign Investment Company
("PFIC") within the meaning of Section 1297 of the United States
Internal Revenue Code of 1986, as amended, in 2004, and does not expect
to become a PFIC in the future;
(xxii) PricewaterhouseCoopers LLP, who have certified certain
financial statements of the Company, and KMPG LLP, who have certified
certain financial statements of the Company, are each independent
public accountants as required by the Securities Act and the rules and
regulations of the Commission thereunder; and
(xxiii) Except as described in the Prospectus, (i) to the
knowledge of the Company and SCA, the Company, SCA and its subsidiaries
own or possess valid licenses or other rights to use all patents,
trademarks, service marks, trade names, copyrights, know-how, trade
secrets and other intellectual property necessary to conduct the
business of the Company, SCA and its subsidiaries in the manner in
which it has been and is being conducted, except as would not
reasonably be expected to have a Material Adverse Effect, (ii) the
Company, SCA and its subsidiaries have not received any notice of
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infringement or of conflict with (and the Company and SCA know of no
such infringement or conflict with) asserted rights of others with
respect to any patents, trademarks, service marks, trade names,
copyrights, know-how, trade secrets or other intellectual property
which infringement or conflict would individually or in the aggregate
reasonably be expected to have a Material Adverse Effect and (iii) to
the knowledge of the Company and SCA, the inventions, products or
processes referred to in the Prospectus do not infringe any right or
patent, or any invention, product or process which is the subject of a
patent application known to the Company and SCA, which would be
reasonably likely to have a Material Adverse Effect.
(b) Each of the Selling Shareholders severally represents and
warrants to, and agrees with, each of the Underwriters, the Company and SCA
that:
(i) All Governmental Authorizations required for the sale and
delivery of the Shares to be sold by the Selling Shareholder hereunder
and for the execution and delivery by such Selling Shareholder of this
Agreement and the Power of Attorney hereinafter referred to have been
obtained, except (A) the registration under the Securities Act of the
Shares and (B) such Governmental Authorizations as may be required
under state or Blue Sky laws in connection with the purchase from such
Selling Shareholder and distribution of the Shares by or for the
account of the Underwriters or under any laws of jurisdictions outside
Bermuda and the United States in connection with the purchase from such
Selling Shareholder and distribution of the Shares by or for the
account of the Underwriters;
(ii) If such Selling Shareholder is not a natural person, such
Selling Shareholder has full right, power and authority, and if such
Selling Shareholder is a natural person, such Selling Shareholder has
full right, to enter into this Agreement and to sell, assign, transfer
and deliver the Shares to be sold by such Selling Shareholder
hereunder;
(iii) The sale of the Shares to be sold by such Selling
Shareholder hereunder and the compliance by such Selling Shareholder
with all of the provisions of this Agreement and the Power of Attorney
and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which such Selling Shareholder is a party or
by which such Selling Shareholder is bound or to which any of the
property or assets of such Selling Shareholder is subject, except that
such Selling Shareholder may need (1) a waiver of the transfer
restrictions under the Voting Agreement, dated as of April 18, 2001,
among the Company and the covered persons party thereto (as amended or
supplemented as of the date hereof, the "VOTING AGREEMENT") and/or the
Transfer Rights Agreement, dated as of April 18, 2001, among SCA and
the covered persons party thereto (as amended or supplemented as of the
date hereof, the "TRANSFER RIGHTS AGREEMENT"), (2) the approval of the
Company under the Common Agreement, dated as of April 19, 2002, among
the Company and the partners party thereto (the "COMMON AGREEMENT")
and/or (3) the approval of the Company under the Transfer Restriction
Agreement, dated as of October 1, 2002, among the Company and the
transferors and transferees party thereto; nor, in the case of Selling
Shareholders that are not natural
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persons, will such action result in any violation of the provisions of
the certificate of incorporation, by-laws or other organizational or
constituent documents of such Selling Shareholder; nor, in the case of
any Selling Shareholder, will such action result in any violation of
any statute or any order, rule or regulation of any Governmental Agency
having jurisdiction over such Selling Shareholder or the property of
such Selling Shareholder;
(iv) Immediately prior to the First Time of Delivery (as
defined in Section 4 hereof) such Selling Shareholder will have good
and valid beneficial title to the Shares to be sold by such Selling
Shareholder hereunder, free and clear of all liens (except for liens in
favor of the Company, SCA and its subsidiaries), encumbrances, equities
or claims, and, upon delivery of such Shares and payment therefor
pursuant hereto, good and valid title to such Shares, free and clear of
all liens, encumbrances, equities or claims, will pass to the several
Underwriters;
(v) Such Selling Shareholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
unlawful stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Shares;
(vi) To the extent that any statements or omissions made in
the Registration Statement, the Prospectus or any amendment or
supplement thereto are made in reliance upon and in conformity with
written information furnished to the Company by such Selling
Shareholder expressly for use therein, the Registration Statement did,
and the Prospectus and any further amendments or supplements to the
Registration Statement and the Prospectus, when they become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Securities Act and the
rules and regulations of the Commission thereunder and did not and will
not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading; and
(vii) A Power of Attorney and a Shareholder Communication, in
the form or forms heretofore furnished to you (collectively, the "POWER
OF ATTORNEY") has been duly executed and delivered by or on behalf of
such Selling Shareholder, appointing the persons indicated in such
Power of Attorney, and each of them, as such Selling Shareholder's
attorneys-in-fact (the "ATTORNEYS-IN-FACT") with authority to determine
the purchase price per share to be paid by the Underwriters as provided
in Section 2 of this Agreement, to execute and deliver this Agreement
on behalf of such Selling Shareholder, to authorize the delivery of the
Shares to be sold by such Selling Shareholder hereunder and otherwise
to act on behalf of such Selling Shareholder in connection with the
transactions contemplated by this Agreement.
(c) Each of the Selling Shareholders severally agrees with
each of the Underwriters, the Company and SCA that the appointment by such
Selling Shareholder of the Attorneys-in-Fact by the Power of Attorney, are to
that extent irrevocable; the obligations of the Selling Shareholders hereunder
shall not be terminated by operation of law, whether by the death, disability,
incompetency or incapacity of any individual Selling Shareholder or, in the case
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of an estate or trust, by the death, disability, incompetency or incapacity of
any executor or trustee or the termination of such estate or trust, or in the
case of a partnership or corporation, by the dissolution of such partnership or
corporation, or by the occurrence of any other event; if any individual Selling
Shareholder or any such executor or trustee should die or become disabled,
incompetent or incapacitated, or if any such estate or trust should be
terminated, or if any such partnership or corporation should be dissolved, or if
any other such event should occur, before the delivery of the Shares hereunder,
the Shares shall be delivered by or on behalf of the Selling Shareholders in
accordance with the terms and conditions of this Agreement; and actions taken by
the Attorneys-in-Fact pursuant to the Power of Attorney shall be as valid as if
such death, disability, incompetency, incapacity, termination, dissolution or
other event had not occurred, regardless of whether or not the
Attorneys-in-Fact, or any of them, shall have received notice of such death,
disability, incompetency, incapacity, termination, dissolution or other event.
2. Subject to the terms and conditions herein set forth, (a) the
Company and each of the Selling Shareholders agree, severally and not jointly,
to sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company and each of the Selling
Shareholders, at a purchase price per Share of $22.8420, the number of Firm
Shares (to be adjusted by you so as to eliminate fractional shares) determined
by multiplying the aggregate number of Firm Shares to be sold by the Company and
each of the Selling Shareholders as set forth opposite their respective names in
Schedule II hereto by a fraction, the numerator of which is the aggregate number
of Firm Shares to be purchased by such Underwriter as set forth opposite the
name of such Underwriter in Schedule I hereto and the denominator of which is
the aggregate number of Firm Shares to be purchased by all of the Underwriters
from the Company and all of the Selling Shareholders hereunder and (b) in the
event and to the extent that the Underwriters shall exercise the election to
purchase Optional Shares as provided below, the Company agrees to sell to each
of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, at the purchase price per Share set forth
in clause (a) of this Section 2, that portion of the number of Optional Shares
as to which such election shall have been exercised (to be adjusted by you so as
to eliminate fractional shares) determined by multiplying such number of
Optional Shares by a fraction, the numerator of which is the maximum number of
Optional Shares which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule I hereto and the denominator
of which is the maximum number of Optional Shares that all of the Underwriters
are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to 7,500,000 Optional Shares, at the purchase price per share
set forth in the paragraph above, for the sole purpose of covering sales of
shares in excess of the number of Firm Shares. Any such election to purchase
Optional Shares may be exercised only by written notice from Xxxxxx Xxxxxxx to
the Company, given within a period of 30 calendar days after the date of this
Agreement and setting forth the aggregate number of Optional Shares to be
purchased and the date on which such Optional Shares are to be delivered, as
determined by Xxxxxx Xxxxxxx but in no event earlier than the First Time of
Delivery (as defined in Section 4 hereof) or, unless Xxxxxx Xxxxxxx and the
Company otherwise agree in writing, earlier than two or later than ten business
days after the date of such notice.
10
3. Upon the authorization by Xxxxxx Xxxxxxx of the release of the Firm
Shares, the several Underwriters propose to offer the Firm Shares for sale upon
the terms and conditions set forth in the Prospectus. Each Underwriter
represents and agrees that (i) it has not offered or sold and, prior to the date
six months after the Closing Date, will not offer or sell, any Shares to persons
in the United Kingdom except to persons whose ordinary activities involve them
in acquiring, holding, managing or disposing of investments (as principal or
agent) for the purposes of their businesses or otherwise in circumstances which
have not resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities Regulations 1995;
(ii) it has complied and will comply with all applicable provisions of the
Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything
done by it in relation to the Shares in, from or otherwise involving the United
Kingdom; and (iii) it will only communicate or cause to be communicated any
invitation or inducement to engage in investment activity (within the meaning of
section 21 of the FSMA) received by it in connection with the issue or sale of
the Shares in circumstances in which section 21(1) of the FSMA does not apply to
the Company.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Xxxxxx Xxxxxxx may request upon at least forty-eight hours' prior
notice to the Company and the Attorneys-in-Fact, shall be delivered by or on
behalf of the Company and the Selling Shareholders to the account specified by
Xxxxxx Xxxxxxx, through the facilities of The Depository Trust Company ("DTC"),
for the account of such Underwriter, against payment by or on behalf of such
Underwriter of the purchase price therefor by wire transfer of Federal
(same-day) funds to the accounts specified by the Company and the
Attorneys-in-Fact to Xxxxxx Xxxxxxx at least forty-eight hours in advance. The
time and date of such delivery and payment shall be, with respect to the Firm
Shares, 9:30 a.m., New York City time, on May 4, 2004 or such other time and
date as Xxxxxx Xxxxxxx, the Company and the Attorneys-in-Fact may agree upon in
writing, and, with respect to the Optional Shares, 9:30 a.m., New York City
time, on the date specified by Xxxxxx Xxxxxxx in the written notice given by
Xxxxxx Xxxxxxx of the Underwriters' election to purchase such Optional Shares,
or such other time and date as Xxxxxx Xxxxxxx and the Company may agree upon in
writing. Such time and date for delivery of the Firm Shares is herein called the
"FIRST TIME OF DELIVERY", such time and date for delivery of the Optional
Shares, if not the First Time of Delivery, is herein called the "SECOND TIME OF
DELIVERY", and each such time and date for delivery is herein called a "TIME OF
DELIVERY".
(a) The documents to be delivered at each Time of Delivery by
or on behalf of the parties hereto pursuant to Section 7 hereof, including the
cross receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 7(u) hereof, will be delivered at the offices
of Shearman & Sterling LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"CLOSING LOCATION"), and the Shares will be delivered through the facilities of
DTC, all at such Time of Delivery. A meeting will be held at the Closing
Location at 10:00 a.m., New York City time, on the New York Business Day
immediately preceding such Time of Delivery, at which meeting the final drafts
of the documents to be delivered pursuant to the preceding sentence will be
available for review by the parties hereto. For the purposes of this Section 4,
"NEW YORK BUSINESS DAY" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close.
11
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by Xxxxxx
Xxxxxxx (such approval not to be unreasonably withheld) and to file such
Prospectus pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Securities Act not later than the Commission's close of
business on the second business day following the execution and delivery of this
Agreement, or, if applicable, such earlier time as may be required by Rule
430A(a)(3) of the rules and regulations of the Commission under the Securities
Act; during such period after the first date of the offering of the Shares as in
the opinion of counsel to the Underwriters the Prospectus is required by law to
be delivered in connection with sales by the Underwriters, to make no further
amendment or any supplement to the Registration Statement or Prospectus which
shall be reasonably disapproved by Xxxxxx Xxxxxxx promptly after reasonable
notice thereof; provided that the foregoing shall not prevent the Company from
filing reports under the Exchange Act to the extent required in the reasonable
opinion of counsel to the Company; to advise Xxxxxx Xxxxxxx promptly of any such
amendment or supplement and to furnish Xxxxxx Xxxxxxx with copies thereof; to
file promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Shares, and during such same period
to advise Xxxxxx Xxxxxxx, promptly after it receives notice thereof, (A) of the
time when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has been
filed with the Commission, (B) of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any prospectus
relating to the Shares, (C) of the suspension of the qualification of the Shares
for offering or sale in any jurisdiction, (D) of the initiation or threatening
of any proceeding for any such purpose, or (E) of any request by the Commission
for the amending or supplementing of the Registration Statement or Prospectus or
for additional information; and, in the event of the issuance of any stop order
or of any order preventing or suspending the use of any prospectus relating to
the Shares or suspending any such qualification, promptly to use its best
efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
the Shares, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(c) To use its best efforts to furnish the Underwriters with
written and electronic copies of the Prospectus in New York City prior to 5:00
P.M. New York City time, on the New York Business Day next succeeding the date
of this Agreement but in any event no later than 12:00 P.M. New York City time,
on the second New York Business Day succeeding the date of this Agreement, and
from time to time, in such quantities as you may reasonably request, and, if the
delivery of a prospectus is required at any time prior to the expiration of nine
months after the time of issue of the Prospectus in connection with the offering
or sale of the Shares and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material
12
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during such period
to amend or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply with the
Securities Act or the Exchange Act, to notify you and upon your request to file
such document and prepare and furnish without charge to each Underwriter and to
any dealer in securities as many written and electronic copies as you may from
time to time reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance, and in case any Underwriter is required to deliver a prospectus in
connection with sales of any of the Shares at any time nine months or more after
the time of issue of the Prospectus, upon your request but at the expense of
such Underwriter, to prepare and deliver to such Underwriter as many written and
electronic copies as you may reasonably request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Securities Act;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c) under
the Securities Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Securities Act
and the rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) During the period beginning from the date of the
Prospectus continuing through the date one year after the date of the
Prospectus, not to, and to cause SCA and all of its subsidiaries not to, offer,
sell, contract to sell or otherwise dispose of, except as provided hereunder,
any Common Shares or any securities of the Company that are substantially
similar to the Common Shares, including but not limited to any securities that
are convertible into or exchangeable for, or that represent the right to
receive, Common Shares or any such substantially similar securities
(collectively, the "SECURITIES"), without Xxxxxx Xxxxxxx'x prior written consent
(other than (A) pursuant to employee share incentive and employee share purchase
plans existing on the date of the Prospectus (including dispositions of Common
Shares to satisfy tax withholding obligations); (B) pursuant to equity plans
formed after the date of the Prospectus (including dispositions of Common Shares
to satisfy tax withholding obligations), so long as the recipients of any awards
under such plans are partners and are bound by the share transfer restrictions
referred to in Section 7(q) hereof, (C) upon the redemption or exchange of
Accenture SCA Class I common shares or Accenture Canada Holdings Inc.
exchangeable shares outstanding as of the date of the Prospectus; (D) upon
termination of the period from the date of the Prospectus continuing through the
date 90 days after the date of the Prospectus, to facilitate transactions
permitted under the terms of the Common Agreements, provided that the Company
does not offer or sell Securities in a firm commitment underwritten public
offering; or (E) in connection with acquisitions, provided that during the
period beginning from the date of the Prospectus continuing through the date 90
days after the date of the Prospectus, the number of Securities disposed of in
such transactions will not exceed 10% of the Common Shares to be outstanding
immediately following the offering contemplated hereby (assuming all Accenture
SCA Class I common shares and Accenture Canada Holdings Inc. exchangeable shares
not held by Accenture Ltd or any of its subsidiaries are redeemed or exchanged
for newly issued Common Shares on a one-for-one basis), and provided further,
that any recipients of such
13
Securities during such period agree to bound by this Section 5(e) for 90 days
from the date of the Prospectus);
(f) To use the net proceeds received by it from the sale of
the Shares pursuant to this Agreement in a manner consistent in all material
respects with the description in the Prospectus under the caption "Use of
Proceeds";
(g) Not to (and to cause its subsidiaries not to) take,
directly or indirectly, any action in connection with the distribution of the
Shares contemplated hereby which is designed to constitute, which constitutes,
or which might reasonably be expected to cause or result in, unlawful
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares; and
(h) If the Company elects to rely upon Rule 462(b), the
Company shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of
this Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b)
under the Act.
6. The Company and SCA, jointly and severally, covenant and agree with
the several Underwriters that the Company and SCA will pay or cause to be paid
the following: (i) the fees, disbursements and expenses of the Company's counsel
and accountants in connection with the registration of the Shares under the
Securities Act and, except as provided in Section 5(c) hereof, all other
expenses in connection with the preparation, printing and filing of the
Registration Statement and the Prospectus and amendments and supplements thereto
and the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, the Blue Sky Memorandum, closing documents
(including compilations thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the Shares; (iii) all expenses in
connection with the qualification of the Shares for offering and sale under
state securities laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey; (iv) all fees and
expenses in connection with listing the Shares on the Exchange; (v) the filing
fees incident to, and the fees and disbursements of counsel for the Underwriters
in connection with, securing any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Shares; (vi) the cost
of preparing share certificates; (vii) the cost and charges of any transfer
agent or registrar; (viii) the fees and expenses of the Attorneys-in-Fact; (ix)
the fees and expenses of the Authorized Agent (as defined in Section 14 hereof);
(x) the fees and expenses of counsels for the Selling Shareholders; (xi) all
expenses and taxes incident to the sale and delivery of the Shares to be sold by
the Selling Shareholders to the Underwriters hereunder, it being understood that
in connection with this clause (xi), Xxxxxx Xxxxxxx agrees to pay New York State
stock transfer tax, and the Company and SCA agree to reimburse Xxxxxx Xxxxxxx
for associated carrying costs if such tax payment is not rebated on the day of
payment and for any portion of such tax payment not rebated, and (xii) all other
costs and expenses incident to the performance of their obligations and the
Selling Shareholders' obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
14
provided in this Section, and Sections 8 and 11 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
stock transfer taxes (other than any imposed by Bermuda or any political
subdivision or taxing authority thereof or therein) on resale of any of the
Shares by them, and any advertising expenses connected with any offers they may
make.
7. The obligations of the Underwriters hereunder, as to the Shares to
be delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company, SCA and, in respect of the First Time of Delivery only, the Selling
Shareholders herein are, at and as of such Time of Delivery, true and correct,
the condition that the Company, SCA and, in respect of the First Time of
Delivery only, the Selling Shareholders shall have performed all of their
respective obligations hereunder theretofore to be performed in all material
respects, and the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to Xxxxxx Xxxxxxx'x reasonable
satisfaction;
(b) Shearman & Sterling LLP, counsel for the Underwriters,
shall have furnished to you their written opinion, dated such Time of Delivery,
substantially in a form reasonably satisfactory to you;
(c) Xxxxx Xxxxx & Xxxxxx, Bermuda counsel for the
Underwriters, shall have furnished to you their written opinion, dated such Time
of Delivery, substantially in a form reasonably satisfactory to you;
(d) Xxxxxxx Xxxxxxxx Xxxxxx, Bermuda counsel for the Company,
shall have furnished to you their written opinion, dated such Time of Delivery,
substantially in the form attached hereto as Annex I(a);
(e) Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Company,
shall have furnished to you (i) their written opinion, dated such Time of
Delivery, substantially in the form attached hereto as Annex I(b)(i), and (ii) a
letter, dated such Time of Delivery, substantially in the form attached hereto
as Annex I(b)(ii);
(f) Xxxxx & Overy Luxembourg, Luxembourg counsel for SCA,
shall have furnished to you their written opinion, dated such Time of Delivery,
substantially in the form attached hereto as Annex I(c);
(g) Xxxxxxx X. Xxxxxxxx, General Counsel for the Company,
shall have furnished to you (i) his written opinion, dated such Time of
Delivery, substantially in the form attached hereto as Annex I(d)(i), and (ii) a
letter dated such Time of Delivery, substantially in the form attached hereto as
Annex I(d)(ii);
(h) In respect of the First Time of Delivery only, Xxxxxxxx
Chance LLP, U.K. counsel for the Company, shall have furnished you their written
opinion, dated such Time of Delivery, substantially in the form attached hereto
as Annex I(e);
15
(i) In respect of the First Time of Delivery only, Xxxxxxxx
Chance, Germany counsel for the Company, shall have furnished you their written
opinion, dated such Time of Delivery, substantially in the form attached hereto
as Annex I(f);
(j) In respect of the First Time of Delivery only, Xxxxxxxx
Chance Tanaka Akita & Nakagawa, Japan counsel for the Company, shall have
furnished you their written opinion, dated such Time of Delivery, substantially
in the form attached hereto as Annex I(g);
(k) On the date hereof and also at each Time of Delivery,
PricewaterhouseCoopers LLP shall have furnished to you a letter or letters,
dated the respective dates of delivery thereof, in form and substance
satisfactory to you, containing statements and information of the type
customarily included in accountants' comfort letters to underwriters with
respect to the financial statements and certain information contained or
incorporated by reference in the Registration Statement and the Prospectus;
(l) On the date hereof and also at each Time of Delivery, KPMG
LLP shall have furnished to you a letter or letters, dated the respective dates
of delivery thereof, in form and substance satisfactory to you, containing
statements and information of the type customarily included in accountants'
comfort letters to underwriters with respect to the financial statements and
certain information contained or incorporated by reference in the Registration
Statement and the Prospectus;
(m) (i) Neither the Company, SCA nor any of its subsidiaries
shall have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus;
and (ii) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as disclosed or contemplated
in the Prospectus, or in connection with the Company's share incentive and
employee share purchase plans or the hiring, promotion, demotion, reassignment
or termination of employees in the ordinary course of business, (A) there shall
not have been any change in the share capital or capital stock, as the case may
be, of the Company or SCA, (B) there shall not have been any material increase
in the consolidated long-term debt of the Company and (C) there shall not have
been any adverse change in the capital stock of any of SCA's subsidiaries that
is material to the Company, SCA and its subsidiaries, taken as a whole, or any
change, or any development involving a prospective change, in or affecting the
business, management, financial position, shareholders' equity or results of
operations of the Company, SCA and its subsidiaries, taken as a whole, the
effect of which, in any such case described in clause (i) or (ii), is in the
judgment of Xxxxxx Xxxxxxx so material and adverse as to make it impracticable
or inadvisable to proceed with the public offering or the delivery of the Shares
being delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus;
(n) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in trading in
securities generally on the Exchange; (ii) a suspension or material limitation
in trading in the Company's securities on the Exchange; (iii) a general
moratorium on commercial banking activities in New York or London declared by
the
16
relevant authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States; (iv) a change
or development involving a prospective change in Bermuda taxation affecting the
Company, the Shares or the transfer thereof, or a prospective change in
Luxembourg taxation affecting SCA, or the imposition of new exchange controls by
the United States, Bermuda or Luxembourg; (v) the outbreak or escalation of
hostilities involving the United States, the United Kingdom or Bermuda, or the
declaration by the United States, the United Kingdom or Bermuda of a national
emergency or war; or (vi) the occurrence of any other calamity or crisis or any
material adverse change in the existing financial, political or economic
conditions in the United States, the United Kingdom or Bermuda or elsewhere
which, in the judgment of Xxxxxx Xxxxxxx would materially and adversely affect
the financial markets or the market for the Shares and other equity securities,
if the effect of any such event specified in this Section 7(n) in the judgment
of Xxxxxx Xxxxxxx makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares being delivered at such Time of
Delivery on the terms and in the manner contemplated in the Prospectus;
(o) The Shares at such Time of Delivery shall have been duly
listed, or duly listed subject to notice of issuance, on the Exchange;
(p) The Company has executed and delivered to you an agreement
that it will not waive or amend the share transfer restrictions imposed pursuant
to the provisions of paragraph (b) of Section 2.3 of the Voting Agreement, or a
substantially similar provision in any other agreement, without the written
consent of Xxxxxx Xxxxxxx (the "LOCK-UP AGREEMENT");
(q) The Company shall have imposed the share transfer
restrictions pursuant to the provisions of paragraph (b) of Section 2.3 of the
Voting Agreement, or a substantially similar provision in any other agreement,
on the terms and conditions set forth in the notice attached as Annex A of the
Lock-Up Agreement;
(r) The Partners Representatives, as such term is defined in
the Voting Agreement, shall have waived the transfer restrictions in Section 2.1
of the Voting Agreement and, if applicable, the Transfer Rights Agreement with
respect to the transactions contemplated hereby and such waiver shall be in full
force and effect;
(s) The Company shall have approved in writing the sale of the
Shares by the Selling Shareholders party to the Common Agreement;
(t) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses; and
(u) The Company and, in respect of the First Time of Delivery
only, the Attorneys-in-Fact, on behalf of the Selling Shareholders, shall have
furnished or caused to be furnished to you at such Time of Delivery certificates
of officers of the Company and of the Selling Shareholders, respectively,
satisfactory to you as to the accuracy of the representations and warranties of
the Company and the Selling Shareholders, respectively, herein at and as of such
Time of Delivery, as to the performance by the Company and the Selling
Shareholders of all of their respective obligations hereunder to be performed at
or prior to such Time of Delivery,
17
and as to such other matters as you may reasonably request, and the Company
shall have furnished or caused to be furnished certificates as to the matters
set forth in subsections (a) and (m) of this Section.
8. (a) Each of the Company and SCA, jointly and severally, will
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that neither
the Company nor SCA shall be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement, the Prospectus or any
such amendment or supplement in reliance upon and in conformity with information
furnished in writing to the Company by any Underwriter through Xxxxxx Xxxxxxx
expressly for use therein.
(b) Each Selling Shareholder, severally and not jointly, will
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement, the Prospectus or any such amendment or
supplement in reliance upon and in conformity with information in writing
furnished to the Company by such Selling Shareholder expressly for use therein;
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
liability of a Selling Shareholder pursuant to this subsection (b) shall not
exceed the amount of net proceeds received by such Selling Shareholder from the
sale of its Shares pursuant to this Agreement.
(c) Each Underwriter will indemnify and hold harmless the
Company, SCA and each Selling Shareholder against any losses, claims, damages or
liabilities to which the Company, SCA or such Selling Shareholder may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged
18
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement, the Prospectus or any such amendment or
supplement in reliance upon and in conformity with information in writing
furnished to the Company by such Underwriter through Xxxxxx Xxxxxxx expressly
for use therein; and will reimburse the Company, SCA and each Selling
Shareholder for any legal or other expenses reasonably incurred by the Company,
SCA or such Selling Shareholder in connection with investigating or defending
any such action or claim as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under
subsection (a), (b) or (c) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. If the indemnifying party does not
assume the defense of such action, it is understood that the indemnifying party
shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to one separate firm of
local attorneys in each such jurisdiction) at any time for all such indemnified
parties, which firms shall be designated in writing by Xxxxxx Xxxxxxx, if the
indemnified parties under this Section consist of any Underwriter or any of
their respective controlling persons, or by the Company or SCA, if the
indemnified parties under this Section consist of the Company or SCA or any of
the Company's or SCA's directors, officers or controlling persons, or by the
Attorneys-in-Fact, if the indemnified parties under this Section consist of any
Selling Shareholder. The indemnifying party shall not be liable for any
settlement of an action or claim for monetary damages which an indemnified party
may effect without the consent of the indemnifying party, which consent shall
not be unreasonably withheld. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
19
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company, SCA and the Selling Shareholders on
the one hand and the Underwriters on the other from the offering of the Shares.
If, however, the allocation provided by the immediately preceding sentence is
not permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (d) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company, SCA and the Selling Shareholders on the one
hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company, SCA and the
Selling Shareholders on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Shares purchased under this Agreement (before deducting expenses)
received by the Company, SCA and/or the Selling Shareholders bear to the total
underwriting discounts and commissions received by the Underwriters with respect
to the Shares purchased under this Agreement, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, SCA or the
Selling Shareholders on the one hand or the Underwriters on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, SCA, each of the
Selling Shareholders and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (e) were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (e). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (e), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (e) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(f) The obligations of the Company, SCA and the Selling
Shareholders under this Section 8 shall be in addition to any liability which
the Company, SCA and the Selling Shareholders may otherwise have and shall
extend, upon the same terms and conditions, to each
20
person, if any, who controls any Underwriter within the meaning of the
Securities Act; and the obligations of the Underwriters under this Section 8
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company (including any person who, with his or her
consent, is named in the Registration Statement as about to become a director of
the Company) and of SCA and to each person, if any, who controls the Company,
SCA or any Selling Shareholder within the meaning of the Securities Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder at a Time of Delivery, you
may in your discretion arrange for you or another party or other parties to
purchase such Shares on the terms contained herein. If within thirty-six hours
after such default by any Underwriter you do not arrange for the purchase of
such Shares, then the Company and the Selling Shareholders shall be entitled to
a further period of thirty-six hours within which to procure another party or
other parties satisfactory to you to purchase such Shares on such terms. In the
event that, within the respective prescribed periods, you notify the Company and
the Attorneys-in-Fact that you have so arranged for the purchase of such Shares,
or the Company and the Selling Shareholders notify you that they have so
arranged for the purchase of such Shares, you or the Company and the Selling
Shareholders shall have the right to postpone such Time of Delivery for a period
of not more than seven days in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus which in the opinion
of Shearman & Sterling LLP, U.S. counsel for the Underwriters, and Xxxxxxx
Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company, may thereby be made
necessary. The term "UNDERWRITER" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Shares. Nothing
herein shall relieve a defaulting Underwriter from liability for its default.
(b) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by you and
the Company and the Selling Shareholders as provided in subsection (a) above,
the aggregate number of such Shares which remains unpurchased does not exceed
one-eleventh of the aggregate number of all the Shares to be purchased at such
Time of Delivery, then the Company and the Selling Shareholders shall have the
right to require each non-defaulting Underwriter to purchase the number of
Shares which such Underwriter agreed to purchase hereunder at such Time of
Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by you and
the Company and the Selling Shareholders as provided in subsection (a) above,
the aggregate number of such Shares which remains unpurchased exceeds
one-eleventh of the aggregate number of all the Shares to be purchased at such
Time of Delivery, or if the Company and the Selling Shareholders shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Shares of a defaulting Underwriter or Underwriters,
then this Agreement (or, with respect to the
21
Second Time of Delivery, the obligations of the Underwriters to purchase and of
the Company to sell the Optional Shares) shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company, SCA or
the Selling Shareholders, except for the expenses to be borne by the Company,
SCA and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, SCA, the Selling Shareholders and the
several Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, or the Company or SCA, or any officer or director or
controlling person of the Company or SCA, or any of the Selling Shareholders, or
any officer or director or controlling person of any Selling Shareholder, and
shall survive delivery of and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof
or as a result of the failure to satisfy the conditions set forth in clauses (i)
and (iii) through (vi) of Section 7(n) hereof, none of the Company, SCA or the
Selling Shareholders shall then be under any liability to any Underwriter except
as provided in Sections 6 and 8 hereof, but, if for any other reason, any Shares
are not delivered by or on behalf of the Company and the Selling Shareholders as
provided herein, the Company and SCA, jointly and severally, will reimburse the
Underwriters through you for all out-of-pocket expenses approved in writing by
you, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Shares not so delivered, but the Company, SCA and the Selling Shareholders shall
then be under no further liability to any Underwriter in respect of the Shares
not so delivered except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, Xxxxxx Xxxxxxx shall act on behalf of
each of the Underwriters, and the parties hereto shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by Xxxxxx Xxxxxxx; and in all dealings with any
Selling Shareholder hereunder, you shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of such Selling Shareholder
made or given by any or all of the Attorneys-in-Fact for such Selling
Shareholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to Xxxxxx Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Registration Department; if to the Company or
to SCA shall be delivered or sent by mail, telex or facsimile transmission to
the address of the Company set forth in the Registration Statement, Attention:
General Counsel, with a copy to 0000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx
00000, Attention: General Counsel; and if to the Selling Shareholders shall be
delivered or sent by mail, telex or facsimile transmission to the
Attorneys-in-Fact in care of Accenture Ltd, 0000 Xxxx Xxxx Xxxx, Xxxx Xxxx,
Xxxxxxxxxx 00000, Attention: General Counsel; provided, however, that any notice
to an Underwriter pursuant to Section 8(d) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the
22
Company by Xxxxxx Xxxxxxx upon request. Any such statements, requests, notices
or agreements shall take effect at the time of receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company, SCA and the Selling Shareholders and,
to the extent provided in Sections 8 and 10 hereof, the officers and directors
of the Company, SCA and each person who controls the Company, SCA, any Selling
Shareholder or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Shares from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Each of the parties hereto irrevocably (i) agrees that any legal
suit, action or proceeding arising out of or based upon this Agreement or the
transactions contemplated hereby may be instituted in any state or federal court
located in the Borough of Manhattan, The City of New York, New York (each, a
"NEW YORK COURT"), (ii) waives, to the fullest extent it may effectively do so,
any objection which it may now or hereafter have to the laying of venue of any
such proceeding and (iii) submits to the exclusive jurisdiction of such courts
in any such suit, action or proceeding. Each of the Company and SCA and each
Selling Shareholder irrevocably waives any immunity to jurisdiction to which it
may otherwise be entitled or become entitled (including sovereign immunity,
immunity to pre-judgment attachment, post judgment attachment and execution) in
any legal suit, action or proceeding against it arising out of or based on this
Agreement or the transactions contemplated hereby which is instituted in any New
York Court or in any competent court in Bermuda or Luxembourg. Each of the
Company and SCA and each Selling Shareholder has appointed the General Counsel
of the Company, 1345 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, as its authorized agent (the "AUTHORIZED AGENT") upon whom process may be
served in any such action arising out of or based on this Agreement or the
transactions contemplated hereby which may be instituted in any New York Court
by any Underwriter or by any person who controls any Underwriter, expressly
consents to the jurisdiction of any such court in respect of any such action,
and waives any other requirements of or objections to personal jurisdiction with
respect thereto. Such appointments shall be irrevocable. Each of the Company and
SCA and each Selling Shareholder represents and warrants that the Authorized
Agent has agreed to act as such agent for service of process and agrees to take
any and all action, including the filing of any and all documents and
instruments, that may be necessary to continue such appointment in full force
and effect as aforesaid. Service of process upon the Authorized Agent and
written notice of such service to the Company, SCA or the Selling Shareholder,
as the case may be, shall be deemed, in every respect; effective service of
process upon the Company, SCA or such Selling Shareholder, as the case may be. A
copy of any such process shall also be delivered to the General Counsel of the
Company, 0000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000.
15. In respect of any judgment or order given or made for any amount
due hereunder that is expressed and paid in a currency (the "JUDGMENT CURRENCY")
other than United States dollars, the Company, SCA and the Selling Shareholders,
as the case may be, will indemnify each Underwriter against any loss incurred by
such Underwriter as a result of any variation as between (i) the rate of
exchange at which the United States dollar amount is converted into the judgment
currency for the purpose of such judgment or order and (ii) the rate of exchange
at which an Underwriter is able to purchase United States dollars with the
amount of the judgment
23
currency on the date the judgment currency is actually received by such
Underwriter. The foregoing indemnity shall constitute a separate and independent
obligation of each of the Company and SCA and each Selling Shareholder and shall
continue in full force and effect notwithstanding any such judgment or order as
aforesaid. The term "RATE OF EXCHANGE" shall include any premiums and costs of
exchange payable in connection with the purchase of or conversion into United
States dollars.
16. Time shall be of the essence of this Agreement. As used herein, the
term "BUSINESS DAY" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
17. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
18. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
19. The Company, SCA and the Selling Shareholders are authorized,
subject to applicable law, to disclose any and all aspects of this potential
transaction that are necessary to support any tax benefits expected to be
claimed with respect to such transaction, without the Underwriters imposing any
limitation of any kind.
24
If the foregoing is in accordance with your understanding, please sign
and return to us eight counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement among each of the Underwriters, the
Company, SCA and the Selling Shareholders. It is understood that your acceptance
of this letter on behalf of each of the Underwriters is pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of which
shall be submitted to the Company for examination upon request, but without
warranty on your part as to the authority of the signers thereof.
Any person executing and delivering this Agreement as Attorney-in-Fact
for a Selling Shareholder represents by so doing that he has been duly appointed
as Attorney-in-Fact by such Selling Shareholder pursuant to a validly existing
and binding Power of Attorney which authorizes such Attorney-in-Fact to take
such action.
Very truly yours,
ACCENTURE LTD
By:
----------------------------
Name:
Title:
ACCENTURE SCA, represented by its general partner,
Accenture Ltd, itself represented by its duly
authorized signatory
-------------------------------
Name:
Selling Shareholders Listed on Schedule II hereto
By:
----------------------------
Name:
Title: Attorney-in-Fact
Accepted as of the date hereof:
Xxxxxx Xxxxxxx & Co. Incorporated
UBS Securities LLC
X.X. Xxxxxx Securities Inc.
Credit Suisse First Boston LLC
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Citigroup Global Markets Inc.
XX Xxxxx & Co., LLC
Banc of America Securities LLC
Wachovia Capital Markets, LLC
Bear, Xxxxxxx & Co. Inc.
Xxxxxxx & Company, Inc.
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
ABN AMRO Rothschild LLC
Xxxxxx X. Xxxxx & Co. Incorporated
Scotia Capital (USA) Inc.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By:
-----------------------------------
Name:
Title:
For themselves and on behalf of the
several Underwriters named in
Schedule I hereto