Accenture Ltd
Class A Common Shares
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Underwriting
Agreement
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November __, 2002
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The shareholders of Accenture Ltd, an exempted company limited by
shares registered in Bermuda (the "Company"), named in Schedule I hereto (the
"Selling Shareholders") propose, subject to the terms and conditions stated
herein, to sell to Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx Xxxxxxx") an
aggregate of [_____] Class A Common Shares, par value $0.0000225 per share
("Common Shares"), of the Company. The aggregate of [_____] shares of Common
Shares to be sold by the Selling Shareholders is herein 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,
Xxxxxx Xxxxxxx that:
(i) A registration statement on Form S-3 (File No. 333-100116)
(the "Initial Registration Statement") in respect of the Shares has
been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered
to Xxxxxx Xxxxxxx, 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, and other
than a Form 8-A, filed pursuant to Section 12(b) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), no other
document with respect to the Initial Registration Statement or document
incorporated by reference therein 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 Xxxxxx Xxxxxxx); and
no stop order suspending the effectiveness of the Initial Registration
Statement, 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 Statement 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 Statement, any post-effective amendment thereto and the
Rule 462(b) Registration Statement, if any, including all exhibits
thereto and including (i) 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 Initial Registration Statement at the time it was
declared effective and (ii) the documents incorporated by reference in
the prospectus contained in the 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 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"; such
final prospectus, in the form first filed pursuant to Rule 424(b) of
the rules and regulations of the Commission under the Securities Act,
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 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 Initial Registration Statement that is
incorporated by reference in the Registration Statement;
(ii) No order preventing or suspending the use of the
Registration Statement or any 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 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;
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(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 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, 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
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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 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) 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; and 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; and 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
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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 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 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 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) such Governmental Authorizations as
have been duly obtained and are in full force and effect and (C) 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 Xxxxxx Xxxxxxx 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 Xxxxxx Xxxxxxx;
(xii) 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;
(xiii) 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 Xxxxxx Xxxxxxx to Bermuda or any political subdivision
or taxing authority thereof or therein in connection with the sale and
delivery by the Selling Shareholders of the Shares to or for the
account of Xxxxxx Xxxxxxx or the sale and delivery outside Bermuda by
Xxxxxx Xxxxxxx of the Shares to the initial purchasers thereof;
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(xiv) 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;
(xv) 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 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;
(xvi) 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 "Certain 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;
(xvii) 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;
(xviii) 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");
(xix) 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;
(xx) 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 2002, and does not expect
to become a PFIC in the future;
(xxi) PricewaterhouseCoopers LLP, who have certified certain
financial statements of the Company, and KMPG LLP, who have reviewed
certain financial
6
statements of the Company, are each independent public accountants as
required by the Securities Act and the rules and regulations of the
Commission thereunder;
(xxii) 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
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; and
(xxiii) The Shares have been approved for listing on the New
York Stock Exchange (the "Exchange"); and
(xxiv) The Partners Representatives, as such term is defined
in the Voting Agreement (as defined below), have waived the transfer
restrictions in Section 2.1 of the Voting Agreement with respect to the
transactions contemplated hereby and such waiver is in full force and
effect.
(b) Each of the Selling Shareholders severally represents and
warrants to, and agrees with, Xxxxxx Xxxxxxx, 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 Xxxxxx Xxxxxxx 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 Xxxxxx Xxxxxxx;
(ii) 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
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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 (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"); nor 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 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 Xxxxxx Xxxxxxx;
(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) Such Selling Shareholder has duly executed and delivered
a Power of Attorney and a Shareholder Communication, in the form or
forms heretofore furnished to Xxxxxx Xxxxxxx (collectively, the "Power
of Attorney"), 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 Xxxxxx Xxxxxxx 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
8
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
Xxxxxx Xxxxxxx, 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
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, each of the
Selling Shareholders agrees, severally and not jointly, to sell to Xxxxxx
Xxxxxxx, and Xxxxxx Xxxxxxx agrees to purchase from each of the Selling
Shareholders, at a purchase price per Share of $______, the number of Shares set
forth opposite their respective names in Schedule I hereto, which Shares are
held by the Selling Shareholders in one or more securities accounts with Xxxxxx
Xxxxxxx Japan Ltd.
3. Xxxxxx Xxxxxxx proposes to offer the Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by Xxxxxx Xxxxxxx 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 Selling Shareholders to the account specified by Xxxxxx Xxxxxxx,
through the facilities of The Depository Trust Company ("DTC"), for the account
of Xxxxxx Xxxxxxx, against payment by or on behalf of Xxxxxx Xxxxxxx of the
purchase price therefor by wire transfer of Federal (same-day) funds to the
accounts specified by 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 9:30 a.m., New York City time, on November ___, 2002 or such other time
and date as Xxxxxx Xxxxxxx, the Company and the Attorneys-in-Fact may agree upon
in writing. Such time and date for delivery of the Shares is herein called the
"Time of Delivery".
(b) The documents to be delivered at the 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 Xxxxxx
Xxxxxxx pursuant to Section 7(o) hereof, will be
9
delivered at the offices of Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (the "Closing Location"), and the Shares will be delivered
through the facilities of DTC, all at the 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 the 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.
5. The Company agrees with Xxxxxx Xxxxxxx:
(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 Xxxxxx Xxxxxxx the Prospectus is required by law to be
delivered in connection with sales by Xxxxxx Xxxxxxx, 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 Xxxxxx
Xxxxxxx may reasonably request to qualify the Shares for offering and sale under
the securities laws of such jurisdictions as Xxxxxx Xxxxxxx 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
10
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 Xxxxxx Xxxxxxx 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 Xxxxxx Xxxxxxx 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 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 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 Xxxxxx Xxxxxxx and upon
Xxxxxx Xxxxxxx'x request to file such document and prepare and furnish without
charge to Xxxxxx Xxxxxxx and to any dealer in securities as many written and
electronic copies as Xxxxxx Xxxxxxx 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 Xxxxxx Xxxxxxx 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
Xxxxxx Xxxxxxx'x request but at Xxxxxx Xxxxxxx'x expense, to prepare and deliver
to Xxxxxx Xxxxxxx as many written and electronic copies as Xxxxxx Xxxxxxx 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); and
(e) 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.
6. The Company and SCA, jointly and severally, covenant and agree with
Xxxxxx Xxxxxxx 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(d) 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
11
delivering of copies thereof to Xxxxxx Xxxxxxx; (ii) the cost of printing or
producing 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 Xxxxxx Xxxxxxx in connection with such qualification and in
connection with the Blue Sky survey; (iv) the filing fees incident to, and the
fees and disbursements of counsel for Xxxxxx Xxxxxxx in connection with,
securing any required review by the National Association of Securities Dealers,
Inc. of the terms of the sale of the Shares; (v) the cost of preparing share
certificates; (vi) the cost and charges of any transfer agent or registrar;
(vii) the fees and expenses of the Attorneys-in-Fact; (viii) the fees and
expenses of the Authorized Agent (as defined in Section 13 hereof); (ix) the
fees and expenses of counsels for the Selling Shareholders; (x) all expenses and
taxes incident to the sale and delivery of the Shares to Xxxxxx Xxxxxxx
hereunder, it being understood that in connection with this clause (x), 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 (xi) 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 provided in this Section, and Sections 8
and 10 hereof, Xxxxxx Xxxxxxx will pay all of its own costs and expenses,
including the fees of its 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 it, and any advertising expenses connected
with any offers Xxxxxx Xxxxxxx may make.
7. The obligations of Xxxxxx Xxxxxxx hereunder, as to the Shares to be
delivered at the Time of Delivery, shall be subject, in its discretion, to the
condition that all representations and warranties and other statements of the
Company, SCA and the Selling Shareholders herein are, at and as of the Time of
Delivery, true and correct, the condition that the Company, SCA and 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, counsel for Xxxxxx Xxxxxxx, shall
have furnished to Xxxxxx Xxxxxxx their written opinion, dated the Time of
Delivery, substantially in a form reasonably satisfactory to Xxxxxx Xxxxxxx;
(c) Xxxxx Xxxxx & Xxxxxx, Bermuda counsel for Xxxxxx Xxxxxxx,
shall have furnished to Xxxxxx Xxxxxxx their written opinion, dated the Time of
Delivery, substantially in a form reasonably satisfactory to Xxxxxx Xxxxxxx;
12
(d) Xxxxxxx Xxxxxxxx & Xxxxx, Bermuda counsel for the Company,
shall have furnished to Xxxxxx Xxxxxxx their written opinion, dated the Time of
Delivery, substantially in the form attached hereto as Annex I(a);
(e) Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Company, shall
have furnished to Xxxxxx Xxxxxxx their written opinion, dated the Time of
Delivery, substantially in the form attached hereto as Annex I(b);
(f) Beghin & Xxxxxx en association avec Xxxxx & Overy,
Luxembourg counsel for SCA, shall have furnished to Xxxxxx Xxxxxxx their written
opinion, dated the 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 Xxxxxx Xxxxxxx his written opinion, dated the Time of
Delivery, substantially in the form attached hereto as Annex I(d);
(h) Xxxxxxxx Chance Tanaka Akita & Nakagawa, Japanese counsel
for the Company, shall have furnished to Xxxxxx Xxxxxxx its written opinion,
dated the Time of Delivery, substantially in the form attached hereto as Annex
I(e);
(i) On the date hereof and also at the Time of Delivery,
PricewaterhouseCoopers LLP shall have furnished to Xxxxxx Xxxxxxx a letter or
letters, dated the respective dates of delivery thereof, in form and substance
satisfactory to Xxxxxx Xxxxxxx, 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;
(j) On the date hereof, and also at the Time of Delivery, KPMG
LLP shall have furnished to Xxxxxx Xxxxxxx a letter or letters, dated the
respective dates of delivery thereof, in form and substance satisfactory to
Xxxxxx Xxxxxxx, 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;
(k) (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
13
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 the Time of Delivery on the terms and in the manner contemplated in the
Prospectus;
(l) 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 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(l) 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 the Time of
Delivery on the terms and in the manner contemplated in the Prospectus;
(m) The Company shall have approved in writing the sale of the
Shares by the Selling Shareholders party to the Common Agreement;
(n) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses; and
(o) The Company and the Attorneys-in-Fact, on behalf of the
Selling Shareholders, shall have furnished or caused to be furnished to Xxxxxx
Xxxxxxx at the Time of Delivery certificates of officers of the Company and of
the Selling Shareholders, respectively, satisfactory to Xxxxxx Xxxxxxx as to the
accuracy of the representations and warranties of the Company and the Selling
Shareholders, respectively, herein at and as of the 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 the Time of
Delivery, and as to such other matters as Xxxxxx Xxxxxxx 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 (k) of this Section.
8. (a) Each of the Company and SCA, jointly and severally, will
indemnify and hold harmless Xxxxxx Xxxxxxx against any losses, claims, damages
or liabilities, joint or several, to
14
which Xxxxxx Xxxxxxx 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 or 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 Xxxxxx Xxxxxxx for any
legal or other expenses reasonably incurred by Xxxxxx Xxxxxxx 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 Xxxxxx Xxxxxxx expressly for use therein.
(b) Each Selling Shareholder, severally and not jointly, will
indemnify and hold harmless Xxxxxx Xxxxxxx against any losses, claims, damages
or liabilities, joint or several, to which Xxxxxx Xxxxxxx 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 or 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 or 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 Xxxxxx Xxxxxxx for any legal or other expenses reasonably
incurred by Xxxxxx Xxxxxxx 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) Xxxxxx Xxxxxxx 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 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 Xxxxxx Xxxxxxx expressly for use therein;
and will reimburse the Company, SCA
15
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 Xxxxxx Xxxxxxx or any of its
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.
(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
16
Company, SCA and the Selling Shareholders on the one hand and Xxxxxx Xxxxxxx 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 Xxxxxx Xxxxxxx 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 Xxxxxx
Xxxxxxx 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 Xxxxxx Xxxxxxx 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 Xxxxxx Xxxxxxx 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 Xxxxxx Xxxxxxx agree that it would not be
just and equitable if contributions pursuant to this subsection (e) were
determined by pro rata allocation 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), Xxxxxx Xxxxxxx shall not 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 Xxxxxx Xxxxxxx 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.
(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 person, if any, who controls
Xxxxxx Xxxxxxx within the meaning of the Securities Act; and the obligations of
Xxxxxx Xxxxxxx under this Section 8 shall be in addition to any liability which
Xxxxxx Xxxxxxx 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.
17
9. The respective indemnities, agreements, representations, warranties
and other statements of the Company, SCA, the Selling Shareholders and Xxxxxx
Xxxxxxx, 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 Xxxxxx Xxxxxxx or any controlling person of Xxxxxx
Xxxxxxx, 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.
10. If this Agreement shall be terminated as a result of the failure to
satisfy the conditions set forth in clauses (i) and (iii) through (vi) of
Section 7(l) hereof, none of the Company, SCA or the Selling Shareholders shall
then be under any liability to Xxxxxx Xxxxxxx 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 Selling Shareholders as provided herein, the Company and SCA,
jointly and severally, will reimburse Xxxxxx Xxxxxxx for all out-of-pocket
expenses, including fees and disbursements of counsel, reasonably incurred by
Xxxxxx Xxxxxxx 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 Xxxxxx Xxxxxxx in respect of the Shares
not so delivered except as provided in Sections 6 and 8 hereof.
11. In all dealings with any Selling Shareholder hereunder, Xxxxxx
Xxxxxxx 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 Xxxxxx Xxxxxxx 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. Any such statements, requests,
notices or agreements shall take effect at the time of receipt thereof.
12. This Agreement shall be binding upon, and inure solely to the
benefit of, Xxxxxx Xxxxxxx, the Company, SCA and the Selling Shareholders and,
to the extent provided in Sections 8 and 9 hereof, the officers and directors of
the Company, SCA and each person who controls the Company, SCA, any Selling
Shareholder or Xxxxxx Xxxxxxx, 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 Xxxxxx Xxxxxxx shall be deemed a successor or assign by reason
merely of such purchase.
13. 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, Xxx Xxxx xx
00
Xxx Xxxx, Xxx Xxxx (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 Xxxxxx
Xxxxxxx or by any person who controls Xxxxxx Xxxxxxx, 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.
14. 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 Xxxxxx Xxxxxxx against any loss incurred by
Xxxxxx Xxxxxxx 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
Xxxxxx Xxxxxxx is able to purchase United States dollars with the amount of the
judgment currency on the date the judgment currency is actually received by
Xxxxxx Xxxxxxx. 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.
15. 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.
16. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
19
17. 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.
18. 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 Xxxxxx Xxxxxxx imposing any
limitation of any kind.
20
If the foregoing is in accordance with your understanding, please sign
and return to us eight counterparts hereof, and upon the acceptance hereof by
Xxxxxx Xxxxxxx, this letter and such acceptance hereof shall constitute a
binding agreement among each of Xxxxxx Xxxxxxx, the Company, SCA and the Selling
Shareholders.
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 I
hereto
By:
-------------------------------------
Name:
Title: Attorney-in-Fact
Accepted as of the date hereof:
Xxxxxx Xxxxxxx & Co. Incorporated
By:
-------------------------------------
Name:
Title:
SCHEDULE I
Number of Shares to be
sold
----------------------
Selling Shareholder
-------------------
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Total...................................................
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S-1