Exhibit (d)(13)
FIRST AMENDMENT TO
TRANSFER RESTRICTION AGREEMENT
(Accenture Ltd)
This First Amendment to Transfer Restriction Agreement, dated as of May 1,
2003 (this "Amendment") is an amendment to that certain Transfer Restriction
Agreement dated as of October 1, 2002 (the "Original Restriction Agreement," and
as amended by this Amendment, the "Transfer Restriction Agreement") and is
entered into by and among Accenture Ltd, an exempted company limited by shares
organized under the laws of Bermuda (registered number EG300900) ("Accenture
Ltd") and the Transferors and the Transferees (each as defined in the Original
Restriction Agreement) who execute the Transfer Restriction Agreement from and
after the date hereof.
In consideration of the mutual agreements, covenants and provisions
contained in the Original Agreement and herein, the parties agree as follows:
1. Sections 2.2(a), (b) and (c) of the Original Restriction Agreement are
hereby amended and restated as follows:
(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," the "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) 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);
and
(2) A Transferor who is a retired Partner may designate
his 56th birthday as the Base Restriction Date with respect to
Transferred Shares which, in accordance with the terms of the
Voting Agreement, would be subject to transfer restrictions
extending beyond such date except for the occurrence of such
birthday.
(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.
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(iii) "Restriction 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 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 shall be accelerated to the date of the Transferor's
death.
(iv) "Restriction Termination Date" shall mean the later
of (i) the Restriction Date or (ii) the Common Restriction Date (as
defined in Section 2.2(c) below).
(b) No Transfers. No Transferred Shares or any direct or
indirect interest therein may be Transferred by the Transferee prior to the
Restriction 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"). The Common Restriction Date in effect as of the
date of this Agreement is July 24, 2005. Notwithstanding the foregoing, if
the Transferor dies prior to the Common Restriction Date, the Common
Restriction Date shall be accelerated to the date of death of the
Transferor.
2. The following sentence is hereby added at the end of Section 3.1(b) of
the Original Restriction Agreement:
"Notwithstanding the foregoing provisions of this Section 3.1(b), in
lieu of specifying a Base Restriction Date in Schedule I to the Joinder
Agreement, the Transferor may designate Transferred Shares as
"Unrestricted" (1) with respect to Common
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Restriction Shares or (2) if such designation is consistent with the
lapsing of transfer restrictions under the Voting Agreement as applicable
to the Transferor; provided it is acknowledged that all such "Unrestricted"
Transferred Shares, in the same manner as all other Transferred Shares, are
subject to the transfer restrictions imposed by the Common Agreement until
the Common Restriction Date."
3. Section 4.1 of the Original Restriction Agreement is hereby amended by
adding the following subsection 4.1(e) thereto:
"(e) Notwithstanding the foregoing provisions of this Section 4.1, it
is acknowledged and agreed that the proxy and power of attorney provided by
this Section 4.1 are not, and shall not be deemed to be, given in the case
of any Transfer of Transferred Shares (1) by any Transferor who is a
retired or resigned Partner or (2) to any Transferee that is an Exempt
Organization."
4. The following additional representations and warranties by the
Transferee are hereby added to Section 6.2 of the Original Restriction Agreement
as subsections 6.2(g) through (k):
"(g) Acquisition for Investment; Limitation on Sales. Such Transferee
is acquiring the Transferred Shares for its own account and not with a view
to or for sale in connection with any public distribution thereof within
the meaning of the Securities Act of 1933, as amended (the "Securities
Act"), either directly or through the sale of additional shares or
interests in Transferee. In making any subsequent offering or sale of the
Transferred Shares acquired hereby, such Transferee will be acting only on
its own behalf and not as part of a sale or planned distribution which
would be in violation of the Securities Act. Such Transferee understands
that the Transferred Shares have not been registered under the Securities
Act and are being offered and sold pursuant to exemptions therefrom.
(h) Sophistication of Transferee. Such Transferee has sufficient
knowledge and experience in financial and business matters to enable it to
evaluate the merits and risks of an investment in the Transferred Shares;
and such Transferee has the ability to bear the economic risk of acquiring
the Transferred Shares.
(i) Access to Information. Such Transferee has been supplied with
sufficient information, or such information has been made available, to
which a reasonable investor would attach significance in making investment
decisions, including the publicly available reports of the Company filed
with the Securities and Exchange Commission since the filing of the
Company's most recent Annual Report on Form 10-K.
(j) Transfer Restrictions. Such Transferee acknowledges that the
Transferred Shares are not registered under the Securities Act or any state
securities laws, and cannot be reoffered or resold unless such shares are
registered under the Securities Act or such sale is exempt from such
registration. Such Transferee acknowledges that, as long as appropriate, a
legend similar to the following may appear on the certificates (if any)
representing the Transferred Shares: "These securities have not been
registered under the Securities Act of 1933 or any state securities laws
and may be reoffered and sold only if
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so registered or if an exemption from registration is available." Such
Transferee agrees that it will not transfer all or any portion of the
Transferred Shares unless such shares have been registered or such transfer
is exempt from registration under the Securities Act and any applicable
state securities laws. Such Transferee acknowledges that if any transfer of
the Transferred Shares is to be made in reliance on any exemption under the
Securities Act, the Company may require an opinion of counsel reasonably
satisfactory to it that such transfer may be made pursuant to an exemption
under the Securities Act.
(k) No General Solicitation. The Transferred Shares were not offered
or sold to such Transferee by any form of general solicitation or general
advertising."
5. The form of Joinder Agreement attached hereto as Exhibit A is hereby
substituted for the form of Joinder Agreement attached as Exhibit A to the
Original Restriction Agreement.
6. This Amendment shall be effective with respect to all Transfers of
Transferred Shares effected from and after the date hereof. In addition, in
accordance with and subject to the amendment provisions of Section 9.2 of the
Original Restriction Agreement, Paragraphs 1, 2 and 3 of this Amendment shall be
effective with respect to Transfers of Transferred Shares made prior to the date
hereof, and shall be binding upon the Transferors and Transferees party to such
Transfers, to the extent that provisions contained in or added to the applicable
Joinder Agreements or supplemental documents executed by such Transferors and/or
Transferees in respect of such prior Transfers provided for or contemplated
terms and conditions consistent with said Paragraphs.
7. As amended hereby, the Transfer Restriction Agreement remains in full
force and effect.
8. This Amendment may be executed in any number of counterparts (including
by execution of a Joinder Agreement), each of which shall be deemed an original,
but all such counterparts shall together constitute one agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed or caused to be
executed this Amendment 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 that Accenture Ltd causes such Transfer to be effected.
ACCENTURE LTD
By: ____________________
Name:
Title:
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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 and amended by First Amendment to Transfer Restriction Agreement
dated as of May 1, 2003 (as so amended, the "Transfer Restriction Agreement")
effective as of the date that Accenture Ltd causes said Transfer to be effected.
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, which the undersigned Transferor hereby reaffirms and remakes with the
same effect as if such representations and warranties were expressly set forth
in full 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, which the undersigned Transferee hereby reaffirms and remakes with the
same effect as if such representations and warranties were expressly set forth
in full in this Joinder Agreement.
The undersigned Transferee (except in the case of a Transferee that is an
Exempt Organization) hereby confirms and gives to the undersigned Transferor
(except in the case of a Transferor who is a retired or resigned Partner) the
irrevocable proxy and power of attorney in respect of the Transferred Shares set
forth in Section 4.1 of the Transfer Restriction Agreement with the same effect
as if such proxy and power of attorney were set forth in full in this Joinder
Agreement, but subject to any requirements of local law specified in Item 13 of
Schedule I and accepted by Accenture Ltd.
The undersigned Transferor (except in the case of a Transferor who is a
retired or resigned Partner) hereby confirms and makes the irrevocable proxy and
power of attorney, and confirms and agrees to the voting provisions, in respect
of the Transferred Shares set forth in Section 4.2 of the Transfer Restriction
Agreement with the same effect as if such proxy and power of attorney and voting
provisions were set forth in full in this Joinder Agreement.
NAME OF TRANSFEROR: NAME OF TRANSFEREE:
__________________________________ __________________________________
(Print) (Print)
__________________________________ By: ______________________________
(Signature) (Signature)
Name: ___________________________
Dated: ___________________________ Title: ___________________________
Dated: ___________________________
Address of Transferee:
__________________________________
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Schedule I
Joinder Agreement
Accenture Ltd Transfer Restriction Agreement
1. Name of Transferor:
2. Name of Transferee (if the Transferred Shares are to be transferred to two
or more individuals as co-owners, please specify if the Transferred Shares
are to be held by such Transferees as joint tenants, tenants by the
entirety or tenants in common):
3. Total 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); or indicate that Transferred
Shares are "Unrestricted."
Number of
Date Transferred Shares
---- ------------------
Unrestricted */1/ ____________________
July 24, 2003 * ____________________
July 24, 2004 * ____________________
July 24, 2005 ____________________
July 24, 2006 ____________________
July 24, 2007 ____________________
July 24, 2008 ____________________
July 24, 2009 */2/ ____________________
Extended Restriction Date/3/ ____________________
Transferor's 56/th/ Birthday */4/ ____________________
(specify date:______________) ____________________
* All Transferred Shares are also subject to the Common Agreement through
the Common Restriction Date (currently July 24, 2005).
/1/ Includes Covered Shares for which transfer restrictions have lapsed and
Common Restriction Shares (Covered Shares acquired subsequent to IPO not
subject to Accenture Ltd Voting Agreement and Restriction Lapsing
Schedule).
/2/ Must be used for Transfers by resigned Partners and should not be used
by active Partners.
/3/ Extended Restriction Date is the later of (i) July 24, 2009 or (ii) the
date that the transferring Partner ceases to be an employee of Accenture;
only active Partners may use this date.
/4/ May be used only by retired Partners whose 56/th/ birthday will
accelerate the release of remaining restrictions.
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5. Are the Transferred Shares currently held by you as community property?
Yes ____ No _____
6. Is the Transferee an Exempt Organization? Yes _____ No _____
7. Are the Transferee and all its underlying beneficial owners (including
partners, members, beneficiaries and contingent beneficiaries) Family
Members? Yes ____ No ____
8. List or describe in detail all underlying beneficial owners (including
partners, members, beneficiaries and contingent beneficiaries) of
Transferee:
9. Describe relationship between Transferor and Transferee (and Transferee's
beneficial owners) if other than Family Members:
10. Description of transfer (e.g., out-right gift, transfer into revocable
trust or irrevocable trust, transfer to family partnership, transfer to
grantor retained annuity trust or charitable remainder annuity trust, or
other estate and/or tax planning vehicle, or transfer in settlement of
property rights between spouses):
11. 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) (please refer to
"Instructions for Accenture FCT Transfers"):
12. Attach copies of documents referred to in Item 11 above.
13. Specifying any special requirements under applicable local law with respect
to the proxy and power of attorney given pursuant to Section 4.1 of the
Transfer Restriction Agreement.
