Exhibit 10.9
THIS SUPPORT AGREEMENT is entered into as of May 23, 2001, between Accenture Ltd, an exempted company registered under the laws of Bermuda
(“ParentCo”) and Accenture Canada Holdings Inc., a corporation incorporated under the laws of Ontario (the “Corporation”).
WHEREAS, pursuant to a reorganization of the capital structure of the Corporation (the “Reorganization”), the Corporation issued
certain exchangeable shares (the “Exchangeable Shares”) having attached thereto certain rights, privileges, restrictions and conditions (collectively, the “Exchangeable Share Provisions”).
AND WHEREAS, the parties hereto desire to make appropriate provision and to establish a procedure whereby ParentCo will take certain actions
and make certain payments and deliveries necessary to ensure that the Corporation will be able to make certain payments and to deliver or cause to be delivered Class A Shares in satisfaction of the obligations of the Corporation under the
Exchangeable Share Provisions with respect to the payment and satisfaction of dividends, Liquidation Amounts, Retraction Prices and Redemption Prices, all in accordance with the Exchangeable Share Provisions.
NOW, THEREFORE, in consideration of the respective covenants and agreements provided in this agreement and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged), the parties agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
| 1.1 |
Defined Terms. Except as expressed in the following sentence, each term denoted herein by initial capital letters and not otherwise defined herein shall have the meaning attributed thereto in the Exchangeable Share
Provisions, unless the context requires otherwise. |
| 1.2 |
Interpretation Not Affected by Headings, Etc. The division of this agreement into articles, sections and paragraphs and the insertion of headings are for convenience of reference only and shall not affect the
construction or interpretation of this agreement. |
| 1.3 |
Number, Gender, Etc. Words importing the singular number only shall include the plural and vice versa. |
| 1.4 |
Date for Any Action. If any date on which any action is required to be taken under this agreement is not a Business Day, such action shall be required to be taken on the next succeeding Business Day. |
ARTICLE 2
COVENANTS OF PARENTCO AND THE CORPORATION
| 2.1 |
Covenants of ParentCo Regarding Exchangeable Shares. So long as any Exchangeable Shares are outstanding, ParentCo will: |
| (a) |
cause the Corporation to declare simultaneously with the declaration of any dividend on Class A Shares an equivalent dividend on the Exchangeable Shares and, when such dividend is paid on Class A Shares, cause the
Corporation to pay simultaneously therewith such equivalent dividend on the Exchangeable Shares, in each case in accordance with the Exchangeable Share Provisions; |
| (b) |
advise the Corporation sufficiently in advance of the declaration by ParentCo of any dividend on Class A Shares and take all such other actions as are necessary, in cooperation with the Corporation, to ensure that the
respective declaration date, record date and payment date for a dividend on the Exchangeable Shares shall be the same as the record date, declaration date and payment date for the corresponding dividend on Class A Shares; |
| (c) |
take all such actions and do all such things as are necessary or desirable to enable and permit the Corporation, in accordance with applicable law, to pay and otherwise perform its obligations with respect to the
satisfaction of the Exchangeable Share Consideration representing the Liquidation Amount in respect of each issued and outstanding Exchangeable Share upon the liquidation, dissolution or winding-up of the Corporation or any other distribution of the
assets of the Corporation for the purpose of winding up its affairs, including without limitation all such actions and all such things as are necessary or desirable to enable and permit the Corporation to cause to be delivered Class A Shares to the
holders of Exchangeable Shares in accordance with the provisions of Article 5 of the Exchangeable Share Provisions; |
| (d) |
take all such actions and do all such things as are necessary or desirable to enable and permit the Corporation, in accordance with applicable law, to pay and otherwise perform its obligations with respect to the
satisfaction of the Exchangeable Share Consideration representing the Retraction Price and the Redemption Price, including without limitation all such actions and all such things as are necessary or desirable to enable and permit the Corporation to
cause to be delivered Class A Shares to the holders of Exchangeable Shares, upon the retraction or redemption of the Exchangeable Shares in accordance with the provisions of Article 6 or Article 7 of the Exchangeable Share Provisions, as the case
may be, if the Corporation proposes to deliver Class A Shares to such holders pursuant the such Articles of the Exchangeable Share Provisions. |
| 2.2 |
Reservation of Class A Shares. ParentCo hereby represents, warrants and covenants that it has irrevocably reserved for issuance and will at all times keep available, free from pre-emptive and other rights, within
its authorized and unissued share capital such number of Class A Shares (or other shares or securities into which Class A Shares may be reclassified or changed as contemplated by section 2.6 hereof) (a) as is equal to the number of Exchangeable
Shares issued and outstanding from time to time, and (b) as are now and may hereafter be required to enable and permit the Corporation to meet its obligations hereunder, under the Exchange Trust Agreement and under the Exchangeable Share
Provisions. |
| 2.3 |
Notification of Certain Events. In order to assist ParentCo to comply with its obligations hereunder, the Corporation will give ParentCo notice of each of the following events at the times set forth
below: |
| (a) |
in the event of any determination by the Board of Directors of the Corporation in accordance with the Articles of the Corporation to institute voluntary liquidation, dissolution or winding-up proceedings with respect to
the Corporation or to effect any other distribution of the assets of the Corporation among its shareholders for the purpose of winding-up its affairs, at least 30 days prior to the proposed effective date of such liquidation, dissolution, winding-up
or other distribution; |
| (b) |
immediately, upon the earlier of (i) receipt by the Corporation of notice of, and (ii) the Corporation otherwise becoming aware of, any threatened or instituted claim, suit, petition or other proceedings with respect to
the involuntary liquidation, dissolution or winding-up of the Corporation or to effect any other distribution of the assets of the Corporation among its shareholders for the purpose of winding-up its affairs; |
| (c) |
immediately, upon receipt by the Corporation of a Retraction Request (as defined in the Exchangeable Share Provisions); |
| (d) |
at least 30 days prior to any accelerated Automatic Redemption Date determined by the Board of Directors of the Corporation in accordance with the Exchangeable Share Provisions; and |
| (e) |
as soon as practicable upon the issuance by the Corporation of any Exchangeable Shares. |
| 2.4 |
Delivery of Class A Shares. In furtherance of its obligations hereunder, upon notice of any event which requires the Corporation to cause to be delivered Class A Shares to any holder of Exchangeable Shares, ParentCo
shall forthwith issue and deliver, or procure the transfer of, the requisite Class A Shares to or to the order of the former holder of the surrendered Exchangeable Shares. All such Class A Shares shall be duly issued as fully paid and non-assessable
and shall be free and clear of any lien, claim, encumbrance, security interest or adverse claim or interest created by or through ParentCo. |
| 2.5 |
Equivalence. ParentCo hereby covenants and agrees to cause the Corporation to effect the necessary amendments to the Articles of the Corporation to ensure that the Exchangeable Shares are adjusted to fully reflect
the effect of any stock split, subdivision, combination, reverse split, stock dividend (including any dividend or distribution of securities convertible in Class A Shares), reorganization, reclassification, recapitalization or other like change with
respect to the Class A Shares occurring after the Effective Date. |
| 2.6 |
Tenders Offers, Etc. In the event that a tender offer, share exchange offer, issuer bid, take-over bid or similar transaction with respect to Class A Shares (an “Offer”) is proposed by ParentCo or is
proposed to ParentCo or its shareholders and is recommended by the Board of Directors of ParentCo, or is otherwise effected or to be effected, ParentCo shall, in good faith, take all such actions and do all such things as are necessary or desirable
to enable and permit holders of Exchangeable Shares to participate in such Offer to the same extent and on an equivalent basis as the holders of Class A Shares, without discrimination, including, without limiting the generality of the foregoing,
ParentCo will use its good faith efforts expeditiously to (and shall, in the case of a transaction proposed by ParentCo or where ParentCo is a participant in the negotiation thereof) ensure that holders of the Exchangeable Shares may participate in
all such Offers without being required to retract Exchangeable Shares as against the Corporation (or, if so required, to ensure that any such retraction shall be effective only upon, and shall be conditional upon, the closing of the Offer and only
to the extent necessary to tender or deposit to the Offer). |
| 2.7 |
Ownership of Outstanding Shares. Without the prior approval of the Corporation and the prior approval of the holders of the Exchangeable Shares given in accordance with Section 10.1 of the Exchangeable Share
Provisions, ParentCo covenants and agrees in favour of the Corporation that, as long as any outstanding Exchangeable Shares are owned by any person or entity other than ParentCo or any of its Subsidiaries, ParentCo or one or more of its Subsidiaries
will be and remain the direct or indirect beneficial owner of securities of the Corporation carrying or entitled to not less than 51% of the voting rights for the election of directors, in each case other than the Exchangeable Shares.
Notwithstanding the foregoing sentence, ParentCo shall not be in violation of this section 2.8 if any person or group of persons acquires Class A Shares pursuant to any merger of ParentCo in which ParentCo was not the surviving
corporation. |
| 2.8 |
ParentCo Not to Vote Exchangeable Shares. ParentCo covenants and agrees that it will appoint and cause to be appointed proxy holders with respect to all Exchangeable Shares held by ParentCo and its Subsidiaries for
the sole purpose of attending each meeting of holders of Exchangeable Shares in order to be counted as part of the quorum for each such meeting. ParentCo further covenants and agrees that as long as any outstanding Exchangeble Shares are owned by
any person or entity other than ParentCo or any of its Subsidiaries, it will not, and will cause its Subsidiaries not to, exercise any voting rights which may be exercisable by holders of Exchangeable Shares from time to time pursuant to the
Exchangeable Shares held by it or by its Subsidiaries in respect of any matter considered at any meeting of holders of Exchangeable Shares. |
| 2.9 |
Due Performance. On and after the Effective Date, ParentCo shall duly and timely perform all of its obligations under this agreement and related agreements in respect of the Reorganization, including any obligations
that may arise upon the exercise of ParentCo’s rights under the Exchangeable Share Provisions. |
ARTICLE 3
CERTAIN RIGHTS OF PARENTCO TO ACQUIRE EXCHANGEABLE SHARES
| 3.1 |
ParentCo Liquidation Call Right. |
| (a) |
ParentCo shall have the overriding right (the “Liquidation Call Right”), in the event of and notwithstanding the proposed liquidation, dissolution or winding-up of the Corporation as referred to in Article 5 of
the Exchangeable Share Provisions, to purchase from all, but not less than all, of the holders of Exchangeable Shares on the Liquidation Date all but not less than all of the Exchangeable Shares held by each such holder on delivery by ParentCo to
each holder of the Exchangeable Share Price applicable on the last Business Day prior to the Liquidation Date (the “Liquidation Call Purchase Price”), which as provided in section 3.1, shall be fully paid and satisfied by the delivery by
or on behalf of ParentCo of the Exchangeable Share Consideration representing the Liquidation Call Purchase Price. In the event of the exercise of the Liquidation Call Right by ParentCo, it is intended that each holder shall be obligated to sell all
the Exchangeable Shares held by the holder to ParentCo on the Liquidation Date on payment by ParentCo to the holder of the Exchange Share Consideration representing the Liquidation Call Purchase Price for each such share, as provided in section 5.4
of the Exchangeable Share Provisions. The Corporation agrees, for the benefit of ParentCo, to enforce against the holders of Exchangeable Share Provisions, to such effect. |
| (b) |
To exercise the Liquidation Call Right, ParentCo must notify the Corporation of ParentCo’s intention to exercise such right at least ten days before the Liquidation Date in the case of a voluntary liquidation,
dissolution or winding-up of the Corporation and at least five Business Days before the Liquidation Date in the case of an involuntary liquidation, dissolution or winding-up of the Corporation. The Corporation will notify the holders of
Exchangeable Shares as to whether or not ParentCo has exercised the Liquidation Call Right forthwith after the expiry of the date by which the same may be exercised by ParentCo. If ParentCo exercises the Liquidation Call Right, on the Liquidation
Date, ParentCo will purchase all of the Exchangeable Shares then outstanding for the Exchangeable Share Consideration representing the total Liquidation Call Purchase Price. |
| (c) |
For the purposes of completing the purchase of the Exchangeable Shares pursuant to the Liquidation Call Right, ParentCo shall deposit with the Corporation, on or before the Liquidation Date, the Exchangeable Share
Consideration for all of the Exchangeable Shares. Provided that such Exchangeable Share Consideration has been so deposited with the Corporation, on and after the Liquidation Date the right of each holder of Exchangeable Shares will be limited to
receiving such holder’s proportionate share of such Exchangeable Share Consideration representing the total Liquidation Call Purchase Price payable by ParentCo without interest upon presentation and surrender by the holder of certificates
representing the Exchangeable Shares held by such holder. Upon surrender to the Corporation of a certificate or certificates representing the Exchangeable Shares, together with such other documents and instruments as may be required to effect a
transfer of Exchangeable Shares under the Act and the by-laws of the Corporation and such additional documents and instruments as the Corporation may reasonably require, the holder of such surrendered certificate or certificates shall be entitled to
receive in exchange therefor, and the Corporation on behalf of ParentCo shall deliver to such holder, the Exchangeable Share Consideration to which the holder is entitled. If ParentCo does not exercise the Liquidation Call Right in the manner
described above, on the Liquidation Date the holders of the Exchangeable Shares will be entitled to receive in exchange therefor the Exchangeable Share Consideration representing the Liquidation Amount otherwise payable by the Corporation in
connection with the liquidation, dissolution or winding-up of the Corporation pursuant to Article 5 of the Exchangeable Share Provisions. |
| 3.2 |
ParentCo Redemption Call Right. |
| (a) |
ParentCo shall have the overriding right (the “Redemption Call Right”), notwithstanding the proposed redemption of the Exchangeable Shares by the Corporation pursuant to Article 7 of the Exchangeable Share
Provisions, to purchase from all, but not less than all, of the holders of Exchangeable Shares on the Automatic Redemption Date all but not less than all of the Exchangeable Shares held by each such holder, other than any Subsidiary of ParentCo, on
payment by ParentCo to the holder of the Exchangeable Share Price applicable on the last Business Day prior to the Automatic Redemption Date (the “Redemption Call Purchase Price”), which as provided in this section 3.2, shall be fully paid
and satisfied by the delivery by or on behalf of ParentCo of the Exchangeable Share Consideration representing the Redemption Call Purchase Price. In the event of the exercise of the Redemption Call Right by ParentCo, it is intended that each holder
shall be obligated to sell all the Exchangeable Shares held by the holder to ParentCo on the Automatic Redemption Date on payment by ParentCo to the holder of Exchangeable Share Consideration representing the Redemption Call Purchase Price for each
such share as provided in section 7.4 of the Exchangeable Share Provisions. The Corporation agrees, for the benefit of ParentCo, to enforce against the holders of Exchangeable Shares the provisions of section 7.4 of the Exchangeable Share Provisions
to such effect. |
| (b) |
To exercise the Redemption Call Right, ParentCo must notify the Corporation of ParentCo’s intention to exercise such right at least five days before the Automatic Redemption Date. The Corporation will notify the
holders of the Exchangeable Shares as to whether or not ParentCo has exercised the Redemption Call Right forthwith after the date by which the same may be exercised by ParentCo. If ParentCo exercises the Redemption Call Right, on the Automatic
Redemption Date, ParentCo will purchase all of the Exchangeable Shares then outstanding for the Exchangeable Share Consideration representing the total Redemption Call Purchase Price. |
| (c) |
For the purposes of completing the purchase of the Exchangeable Shares pursuant to the Redemption Call Right, ParentCo shall deposit with the Corporation, on or before the Automatic Redemption Date, the Exchangeable Share
Consideration for all the then outstanding Exchangeable Shares representing the total Redemption Call Purchase Price. Provided that such Exchangeable Share Consideration has been so deposited with the Corporation, on and after the Automatic
Redemption Date the rights of each holder of Exchangeable Shares will be limited to receiving such holder’s proportionate share of the Exchangeable Share Consideration representing the total Redemption Call Purchase Price payable by ParentCo
upon presentation and surrender by the holder of certificates representing the Exchangeable Shares held by such holder. Upon surrender to the Corporation of a certificate or certificates representing Exchangeable Shares, together with such other
documents and instruments as may be required to effect a transfer of Exchangeable Shares under the Act as the Corporation may reasonably require, the holder of such surrendered certificate or certificates shall be entitled to receive in exchange
therefor, and the Corporation shall deliver to such holder, the Exchangeable Share Consideration to which the holder is entitled. If ParentCo does not exercise the Redemption Call Right in the manner described above, on the Automatic Redemption
Date, the holders of the Exchangeable Shares will be entitled to receive in exchange therefor the Exchangeable Share Consideration representing the Redemption Price otherwise payable by the Corporation in connection with the redemption of the
Exchangeable Shares pursuant to Article 7 of the Exchangeable Share Provisions. |
| 3.3 |
Exchange Put Right. Upon and subject to the terms and conditions contained in the Exchangeable Share Provisions and the Exchange Trust Agreement: |
| (a) |
A holder of Exchangeable Shares shall have the right (the “Exchange Put Right”) at any time to require ParentCo to purchase all or any part of the Exchangeable Shares of the holder; and |
| (b) |
Upon the exercise by the holder of the Exchange Put Right, it is intended that the holder shall be required to sell to ParentCo, and ParentCo shall be required to purchase from the holder, that number of Exchangeable
Shares in respect of which the Exchange Put Right is exercised, in consideration of the payment by ParentCo of the Exchangeable Share Price for each Exchangeable Share in respect of which the Exchange Put Right has been exercised by such holder. The
Corporation agrees, for the benefit of ParentCo, to enforce against the holders of Exchangeable Shares the provisions of section 8.1 of the Exchangeable Share Provisions to such effect. |
| 3.4 |
Assignment. ParentCo shall have the unqualified right, at any time and from time to time, to assign any or all of its rights under this Article 3 or Section 6.1 of the Exchangeable Share Provisions or both to any
Canadian Subsidiary of ParentCo (other than the Corporation), and if any such assignment is made, such Canadian Subsidiary may exercise all of ParentCo’s rights hereunder and perform all of ParentCo’s obligations hereunder arising from the
exercise of such rights as fully as ParentCo might; provided, however, that nothing herein shall affect in any way the obligation of ParentCo, which obligation shall be absolute and continuing notwithstanding any such assignment, to provide Class A
Shares or to pay money, in the amounts and at times required hereunder, in order to permit such Canadian Subsidiary to exercise ParentCo’s rights and to perform ParentCo’s obligations hereunder. ParentCo hereby, as primary obligor,
unconditionally and irrevocably guarantees the prompt and complete payment and performance, as and when due, by any such Canadian Subsidiary of any obligations of ParentCo arising from any such assignment that may be made by ParentCo
hereunder. |
ARTICLE 4
GENERAL
| 4.1 |
Term. This agreement shall come into force and be effective as of the date hereof and shall terminate and be of no further force and effect at such time as no Exchangeable Shares (or securities or rights convertible
into or exchangeable for or carrying rights to acquire Exchangeable Shares) are held by any party other than ParentCo and any of its Subsidiaries. |
| 4.2 |
Changes in Capital of ParentCo and the Corporation. Notwithstanding the provisions of section 4.4 hereof, at all times after the occurrence of any event effected pursuant to Section 2.6 or 2.7 hereof, as a result of
which either ParentCo Class A Shares or the Exchangeable Shares or both are in any way changed, this agreement shall forthwith be amended and modified as necessary in order that it shall apply with full force and effect, mutatis mutandis, to
all new securities into which Class A Shares or the Exchangeable Shares or both are so changed, and the parties hereto shall execute and deliver an agreement in writing giving effect to and evidencing such necessary amendments and
modifications. |
| 4.3 |
Severability. If any provision of this agreement is held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remainder of this agreement shall not in any way be affected or
impaired thereby and this agreement shall be carried out as nearly as possible in accordance with its original terms and conditions. |
| 4.4 |
Amendments, Modifications, Etc. This agreement may not be amended or modified except by an agreement in writing executed by the Corporation and ParentCo and approved by the holders of the Exchangeable Shares in
accordance with Section 10.1 of the Exchangeable Share Provisions. |
| 4.5 |
Ministerial Amendments. Notwithstanding the provisions of Section 4.4 hereof, the parties to this agreement may in writing, at any time and from time to time, without the approval of the holders of the Exchangeable
Shares, amend or modify this agreement for the purposes of: |
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(a) |
adding to the covenants of either or both parties for the protection of the holders of the Exchangeable Shares; |
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(b) |
making such amendments or modifications not inconsistent with this agreement as may be necessary or desirable with respect to matters or questions which, in the
opinion of the board of directors of each of the Corporation and ParentCo, it may be expedient to make, provided that each such board of directors shall be of the opinion that such amendments or modifications will not be prejudicial to the interests
of the holders of the Exchangeable Shares; or |
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(c) |
making such changes or corrections which, on the advice of counsel to the Corporation and ParentCo, are required for the purpose of curing or correcting any ambiguity or defect or
inconsistent provision or clerical omission or mistake or manifest error; provided that the boards of directors of each of the Corporation and ParentCo shall be of the opinion that such changes or corrections will not be prejudicial to the interests
of the holders of the Exchangeable Shares. |
| 4.6 |
Meeting to Consider Amendments. The Corporation, at the request of ParentCo, shall call a meeting or meetings of the holders of the Exchangeable Shares for the purpose of considering any proposed amendment or
modification requiring approval of such shareholders. Any such meeting or meetings shall be called and held in accordance with the by-laws of the Corporation, the Exchangeable Share Provisions and all applicable laws. |
| 4.7 |
Amendments Only in Writing. No amendment to or modification or waiver of any of the provisions of this agreement otherwise permitted hereunder shall be effective unless made in writing and signed by both of the
parties hereto. |
| 4.8 |
Enurement. This agreement shall be binding upon and enure to the benefit of the parties hereto and the holders, from time to time, of Exchangeable Shares and each of their respective heirs, successors and
assigns. |
| 4.9 |
Notices to Parties. All notices and other communications between the parties shall be in writing and shall be deemed to have been given if delivered personally or by confirmed telecopy to the parties at the
following addresses (or at such other address for either such party as shall be specified in like notice): |
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(a) |
if to ParentCo to:
Accenture Canada Holdings Inc.
c/o Accenture LLP
0000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: President
Fax: (000) 000-0000
|
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(b) |
if to the Corporation to:
Accenture Canada Holdings Inc.
0000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, XX X0X 0X0
Attn: President
Fax: (000) 000-0000
|
Any notice or other communication shall be deemed to have been given and received upon delivery thereof and if given by telecopy shall be deemed to have been given and received on the date of
confirmed receipt thereof, unless such day is not a Business Day, in which case it shall be deemed to have been given and received upon the immediately following Business Day.
| 4.10 |
Counterparts. This agreement may be executed in counterparts, each of which shall be deemed an original, and all of which taken together shall constitute one and the same instrument. |
| 4.11 |
Jurisdiction. This agreement shall be construed and enforced in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. |
| 4.12 |
Attornment. ParentCo agrees that any action or proceeding arising out of or relating to this agreement may be instituted in the courts of Ontario, waives any objection which it may have now or hereafter to the venue
of any such action or proceeding, irrevocably submits to the jurisdiction of such courts in any such action or proceeding, agrees to be bound by any judgment of such courts and not to seek, and hereby waives, any review of the merits of any such
judgment by the courts of any other jurisdiction and hereby appoints the Corporation at its registered office in the Province of Ontario as ParentCo’s attorney for service of process. |
IN WITNESS WHEREOF, ParentCo and the Corporation have caused this agreement to be signed by
their respective officers thereunder duly authorized, all as of the date first written above.
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ACCENTURE CANADA HOLDINGS INC. |
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By: |
____________________________ |
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Xxxxx X. Xxxxxx |
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President |
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ACCENTURE LTD. |
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By: |
____________________________ |
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Xxxxxxx X. Xxxxxx |
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Managing Director |
