EXHIBIT 4.5
THIRD AMENDED AND RESTATED
CONTRIBUTION AND STOCKHOLDERS AGREEMENT
DATED AS OF FEBRUARY 14, 2005
AMONG
ACCENTURE LLP,
ACCENTURE LTD,
ACCENTURE INTERNATIONAL SARL,
MICROSOFT CORPORATION
AND
AVANADE INC.
TABLE OF CONTENTS
PAGE
SECTION 1 DEFINITIONS.......................................................................... 2
1.1 Defined Terms.................................................................... 2
1.2 Other Definitions................................................................ 10
1.3 Other Definitional Provisions; Interpretation.................................... 11
SECTION 2 CONTRIBUTIONS AND STOCK ISSUANCES.................................................... 12
2.1 Initial Contributions by Accenture............................................... 12
2.2 Initial Contributions by Microsoft............................................... 12
2.3 Issuances of Stock............................................................... 13
2.4 Additional Capital............................................................... 13
2.5 Pre-Emptive Rights............................................................... 14
SECTION 3 REPRESENTATIONS AND WARRANTIES....................................................... 16
3.1 Representations and Warranties of the Stockholders............................... 16
3.2 Representations and Warranties of the Company.................................... 17
SECTION 4 CLOSING.............................................................................. 17
4.1 Amendment and Restatement........................................................ 17
4.2 Related Agreements............................................................... 17
SECTION 5 OPERATING OBJECTIVES; CONDUCT OF THE COMPANY'S BUSINESS.............................. 18
5.1 Operating Objectives of the Company.............................................. 18
5.2 Scope of the Company's Business.................................................. 18
5.3 Company Offices.................................................................. 18
5.4 Branding......................................................................... 18
5.5 Subsidiaries..................................................................... 19
5.6 Use of Microsoft Technology in Offerings......................................... 19
5.7 Internal Use of Microsoft Products by the Company................................ 19
5.8 The Company's Go-To-Market Focus Areas, Target Clients and Sales Engagement...... 19
5.9 Alliance Strategies/Alliances.................................................... 19
5.10 Affiliate Transactions........................................................... 20
SECTION 6 GOVERNANCE........................................................................... 20
6.1 Board of Directors Prior to an Initial Public Offering........................... 20
6.2 Board of Directors on and after an Initial Public Offering....................... 21
6.3 Board Approvals.................................................................. 21
6.4 Microsoft Consent Rights......................................................... 21
SECTION 7 TRANSFERS............................................................................ 22
7.1 Limitations on Transfer.......................................................... 22
7.2 Transfers to Permitted Transferees............................................... 22
PAGE
7.3 Effect of Void Transfers......................................................... 22
7.4 Legend on Securities............................................................. 23
SECTION 8 REGISTRATION RIGHTS.................................................................. 23
8.1 Incidental Registrations......................................................... 23
8.2 Registration on Request.......................................................... 24
8.3 Registration Procedures.......................................................... 26
8.4 Indemnification.................................................................. 28
8.5 Rule 144......................................................................... 31
8.6 Holdback Agreement............................................................... 32
SECTION 9 PERSONNEL............................................................................ 32
9.1 Determination of Personnel Requirements and Recruiting........................... 32
9.2 Personnel Transitioned from Stockholders......................................... 32
9.3 Non-solicitation................................................................. 33
9.4 Errors and Omissions Insurance................................................... 34
SECTION 10 COVENANTS........................................................................... 34
10.1 Filings.......................................................................... 34
10.2 Agreement to Cooperate; Further Assurances....................................... 34
10.3 Public Statements................................................................ 34
10.4 Initial Public Offering.......................................................... 35
10.5 Reservation of Common Stock; Stock Exchange Listing.............................. 35
SECTION 11 CERTAIN RIGHTS TO PURCHASE OR SELL STOCK............................................ 35
11.1 Microsoft Put Right.............................................................. 35
11.2 Accenture Call Right............................................................. 36
11.3 Rights After Triggering Events................................................... 36
11.4 Tag-Along Rights................................................................. 38
SECTION 12 TERMINATION......................................................................... 39
12.1 Termination of Certain Provisions Following an Initial Public Offering........... 39
SECTION 13 OTHER............................................................................... 40
13.1 Additional Securities Subject to Agreement....................................... 40
13.2 Termination...................................................................... 40
13.3 Injunctive Relief................................................................ 40
13.4 Obligations of the Company....................................................... 40
13.5 Amendments....................................................................... 40
13.6 Successors, Assigns and Transferees.............................................. 40
13.7 Notices.......................................................................... 41
13.8 Integration...................................................................... 42
13.9 Severability..................................................................... 43
13.10 Counterparts..................................................................... 43
13.11 Governing Law.................................................................... 43
13.12 Arbitration...................................................................... 43
13.13 Expenses......................................................................... 44
PAGE
13.14 Specific Performance............................................................. 44
13.15 Miscellaneous.................................................................... 44
EXHIBIT
Exhibit 10.4 Terms of Class A Common Stock and Class B Common Stock
THIRD AMENDED AND RESTATED
CONTRIBUTION AND STOCKHOLDERS AGREEMENT
This Third Amended and Restated Contribution and Stockholders Agreement,
dated as of February 14,, 2005 (this "Agreement"), is by and among Accenture
LLP, an Illinois general partnership registered as a limited liability
partnership ("Accenture"), Accenture Ltd, an exempted company limited by shares
registered in Bermuda ("Accenture Ltd"), Accenture International Sarl, a societe
a responsabilite limitee ("Accenture Sarl"), Microsoft Corporation, a Washington
corporation ("Microsoft") and Avanade Inc., a Washington corporation (the
"Company" or "Avanade").
BACKGROUND
WHEREAS, Accenture is a leading global management and technology
consulting firm;
WHEREAS, Microsoft develops, manufactures, licenses, and supports a wide
range of software products for a multitude of computing devices;
WHEREAS, Accenture and Microsoft desire to leverage their respective
business strengths through a venture organization of highly skilled resources to
develop infrastructure architecture, tools and methods and provide services that
accelerate the deployment of enterprise business solutions using products
designed and developed by Microsoft;
WHEREAS, in order to provide for the formation of such venture, Accenture,
Microsoft and the Company entered into the Contribution and Stockholders
Agreement, dated as of February 24, 2000, among Accenture, Microsoft and the
Company (the "Original Agreement");
WHEREAS, in order to effect certain changes to the venture and their
agreements with respect thereto, Accenture, Microsoft and the Company entered
into the Amended and Restated Contribution and Stockholders Agreement, dated as
of July 1, 2000, among Accenture, Microsoft and the Company (the "First Amended
Agreement") and the Second Amended and Restated Contribution Agreement, dated as
of December 21, 2001 (the "Second Amended Agreement");;
WHEREAS, subject to the terms and conditions of the First Amended
Agreement, Accenture and Microsoft contributed certain assets to the Company in
consideration for the receipt of shares of the Company's Series A Preferred
Stock, par value $.0001 per share (the "Series A Preferred Stock") and the
Company's common stock, par value $.0001 per share;
WHEREAS, the Company has entered into an agreement to sell to Microsoft
shares of the Series A Preferred Stock under the Stock Purchase Agreement dated
as of the date hereof between the Company and Microsoft (the "Purchase
Agreement");WHEREAS, pursuant to the Purchase Agreement, that certain Promissory
Note, dated May 22, 2003 held by Microsoft (the "Note") is being paid in full,
and the corresponding loan agreement, dated May 22, 2003, between Gregory A.
Sullivan Consultants, Ltd., Avanade and Microsoft (the "Loan Agreement") is
being terminated; and
WHEREAS, Accenture, Microsoft and the Company have agreed to certain
amendments to the Second Amended Agreement, including the modification of the
put and call option contained therein , and wish to amend and restate the Second
Amended Agreement in its entirety, effective as of the date of the closings
under the Purchase Agreement (the "Amendment Effective Date"); and
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1
DEFINITIONS
For purposes of this Agreement, the following terms have the meanings
specified or referred to in this Section 1:
1.1 Defined Terms. As used in this Agreement:
"Accenture Change of Control" shall mean (i) any Person or group acquiring
beneficial ownership of shares representing a majority of the outstanding votes
entitled to be cast for the election of directors of Accenture Ltd (other than
any existing Accenture Party or any new holding company in which the
shareholders of Accenture Ltd immediately prior to the formation of such holding
company hold a majority of the voting power of that holding company immediately
after its formation); (ii) a sale, lease or other transfer of all or
substantially all of the assets of Accenture Ltd and its subsidiaries on a
consolidated basis to a Person other than an Accenture Party; or (iii) any
merger or consolidation of Accenture Ltd with or into any other corporation or
corporations in which the shareholders of Accenture Ltd immediately prior to
such transaction are not holders of a majority of the voting power of the
surviving corporation or acquiring corporation immediately thereafter.
"Accenture License Agreement" shall mean the Intellectual Property License
Agreement between Accenture and the Company entered into as of the First Closing
Date, as amended from time to time, providing for the license of certain
intellectual property by Accenture to the Company.
"Accenture Master Employee Services Agreement" shall mean the Master
Employee Services Agreement between Accenture and the Company entered into as of
the First Closing Date, as amended from time to time.
"Accenture/Microsoft Alliance Agreement" shall mean the Amended and
Restated Alliance Agreement between Accenture and Microsoft entered into as of
the date hereof, as amended from time to time.
"Accenture Nondisclosure Agreement" shall mean the Nondisclosure Agreement
between Accenture and the Company entered into as of the First Closing Date, as
amended from time to time.
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"Accenture Party" shall mean Accenture Ltd and its Affiliates.
"Accenture Services Agreements" shall mean the Operating Services
Agreement and the Master Services Agreement in each case between Accenture and
the Company and entered into as of the First Closing Date, as amended from time
to time.
"Affiliate" shall mean (i) with respect to any Person other than an
Accenture Party, (x) any Person that directly or indirectly controls, is
controlled by or is under common control with, such Person or (y) any director,
officer, partner or employee of such Person or of any Person specified in clause
(x) above; and (ii) with respect to any Accenture Party, any Person that
directly or indirectly is controlled by or is under common control with
Accenture Ltd; provided that notwithstanding the foregoing, the Company shall
not be deemed an Affiliate of any of the parties hereto for purposes hereof.
"Agreement" shall mean this Contribution and Stockholders Agreement, as
the same may be amended, supplemented or otherwise modified from time to time.
"Alliance Management Committee" shall mean the Alliance Management
Committee appointed in accordance with the Accenture/Microsoft Alliance
Agreement.
"Avanade Change of Control" shall mean (i) any Person or group acquiring
beneficial ownership of securities representing a majority of the outstanding
votes entitled to be cast for the election of directors of the Company (other
than any Accenture Party); (ii) a sale, lease or other transfer of all or
substantially all of the assets of the Company and its subsidiaries on a
consolidated basis to any Person other than an Accenture Party; or (iii) any
merger or consolidation of the Company with or into any other corporation or
corporations in which the stockholders of the Company immediately prior to such
transaction are not holders of a majority of the voting power of the surviving
corporation or acquiring corporation immediately thereafter.
"Avanade Competitor" shall mean any entity or business that directly or
indirectly (through one or more Subsidiaries or joint ventures or otherwise)
develops, markets and sells Competing Services across the Target Geographies to
the Target Clients which compete in a material manner with Avanade Service
Offerings contemplated by the Parties as of the date hereof.
"Avanade License Agreements" shall mean (i) the Intellectual Property
License Agreement in the form agreed upon by the parties hereto, providing for
the license of certain intellectual property by the Company to Accenture and
(ii) the Intellectual Property License Agreement in the form agreed upon by the
parties hereto, providing for the license of certain intellectual property by
the Company to Microsoft.
"Avanade Service Offerings" shall mean the services, replicable
intellectual property and products of the Company, targeted at a specific
business need within an agreed upon enterprise infrastructure market, data
center operations market, middleware and development platform market, digital
dashboard and enterprise portal, data warehousing and business intelligence
market, knowledge management and collaboration market and eCommerce market, and
other markets mutually agreed upon by Accenture, Microsoft and the Company.
These services will take full advantage of the Microsoft Enterprise Solution
Platform to the extent appropriate in light of the
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other terms this Agreement and the Joint Venture Agreements and may include,
among other things, design documentation, application code, contributed
intellectual property, implementation guidelines/toolkits, operational
procedures and training materials.
"Board" shall mean the Board of Directors of the Company.
"Business Day" shall mean a day other than a Saturday, Sunday, federal or
New York or Washington State holiday or other day on which commercial banks in
New York, New York or Seattle, Washington are authorized or required by law to
close.
"Business Process Consulting Services" shall mean consulting services
regarding an organization's business processes, for example (i) process
improvement (including analysis of business processes, streamlining by means of
incremental improvements, business process reengineering (including redesign and
implementation) and strategic engineering), (ii) application of process skills
in areas including: process delivery (the tools, methods, and skills applied to
the process components of large-scale solutions), demand generation (the
business processes used by clients to optimize the value of their customer
relationships), supply chain operations, service operations (the transformation
from cost centers to value-added customer service activities), and enterprise
planning and management (including performance management, financial management,
human resources management and risk management) and (iii) business process
outsourcing.
"Business Strategy Consulting Services" shall mean consulting services
regarding strategies for organizations, for example (i) business strategy design
and development (including review of existing and required client capabilities),
(ii) development of organizational strategy and vision, (iii) reviewing
organizational knowledge base for purposes of application to strategy and (iv)
dynamic business modeling.
"Bylaws" shall mean the Bylaws of the Company as in effect from time to
time in accordance with the terms hereof.
"Certificate of Incorporation" shall mean the Certificate of Incorporation
of the Company as in effect from time to time in accordance with the terms
hereof.
"Change Management Consulting Services" shall mean consulting services
regarding an organization's ability to adopt changes in strategies and
processes, for example (i) organization design and development (including
assessment, design and implementation of organization structures and management
processes), (ii) change navigation (including coaching personnel on achieving
complex change rapidly and effectively), (iii) performance design and
development (including reengineering roles and business processes to improve
performance) and (iv) human capital management (including creating systems
within organizations to manage and develop employees, and shifting the
attitudes, beliefs and behavior of personnel).
"Common Stock" shall mean, collectively, the common stock, par value
$.0001 per share of the Company and, after any creation of the Class A Common
Stock and Class B Common Stock as contemplated by Section 10.4, the Class A
Common Stock and the Class B Common Stock.
4
"Competing Alliance" shall mean a jointly-owned or jointly-operated
entity, venture or long-term arrangement among two or more parties involving an
investment of greater than $50,000,000 in cash or equivalent value by Microsoft
or Accenture which provides for such parties (directly or indirectly) to jointly
develop, market or sell Competing Services or Competing Business Solutions.
"Competing Business Solutions" shall mean business solutions targeted at a
specific business need within a vertical market or horizontal market that
compete with Accenture Business Solution Offerings (as such term is defined in
the Alliance Agreement).
"Competing Services" shall mean Enterprise Services that compete with
Avanade Service Offerings including those targeting products from Microsoft's
Principal Competitors.
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with") shall mean, as applied to any
Person, the possession, directly or indirectly, of the power to cause the
direction of the management or policies of that Person, whether through the
ownership of voting securities or by contract or otherwise.
"WBCA" shall mean the Washington Business Corporations Act, as amended.
"Enterprise Services" shall mean the collection of enterprise market
focused professional services offerings including business strategy consulting,
change management, business process consulting, information technology strategy
consulting, architecture/design, development, infrastructure and solutions
deployment, systems integration, application and business solution integration,
support, training and lifecycle management services.
"Exchange Act" shall mean the Securities and Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder, as the same may
be amended from time to time.
"First Closing Date" shall mean August 3, 2000.
"Go To Market Focus Area" shall have the meaning set forth in the
Accenture/Microsoft Alliance Agreement.
"Governmental Authority" shall mean any nation or government, any state or
other political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Industry Clients" shall mean independent software vendors, original
equipment manufacturers, systems integrators, application services providers and
business strategy consulting firms.
"Initial Public Offering" shall mean the initial primary sale by the
Company of shares of Common Stock to the public pursuant to an effective
registration statement (other than a registration statement on Form S-4 or S-8
or any similar or successor form) filed under the Securities Act.
5
"Marketing Initiatives" shall have the meaning set forth in the
Accenture/Microsoft Alliance Plan.
"Material Adverse Effect" shall mean a material adverse effect upon the
Company or its business or results of operations, in light of changes in the
Company's business and other circumstances that have occurred since the adoption
of the most recently adopted Three Year Plan.
"Material Investment" shall mean (i) any direct or indirect investment (in
one or a series of transactions) in a Principal Competitor in an amount equal to
ten percent (10%) or more of the outstanding equity of such Principal Competitor
(including in the aggregate its Subsidiaries), on both a vote and value basis,
(ii) in the event that the direct or indirect parent of such Principal
Competitor is also a Principal Competitor, such direct or indirect investment
(in one or a series of transactions) in the Subsidiary in an amount equal to ten
percent (10%) or more of the outstanding equity of that parent entity (including
in the aggregate its Subsidiaries), on both a vote and value basis, or (iii) the
grant to any Principal Competitor of the right to use any trademark or trade
name of Microsoft or Accenture, as the case may be, or any of its Subsidiaries
as a co-brand in a material manner, for example by use of such trademark or
tradename as a heritage line or a corporate name.
"Microsoft Enterprise Solutions Platform" shall mean Microsoft Windows NT
Server, Exchange Server, SQL Server, SMS Server and Internet Information Server
(as separate products and collectively as Microsoft BackOffice); complementary
BackOffice products: Microsoft SNA Server and Microsoft Proxy Server; Microsoft
Site Server, Microsoft Commercial Internet Services (MCIS); 32-bit Windows and
Microsoft Office; Windows CE; Internet Explorer; Microsoft Transaction Server;
Microsoft Message Queue Server; Microsoft clustering technology; Microsoft's
visual development tools Visual Basic, Visual C++, Visual J++ and Visual
Interdev (as separate products and collectively as Microsoft Visual Studio);
Microsoft Windows Distributed interNet Applications Architecture (Windows DNA
and next versions: Windows DNA 2000 and Enhanced DNA); and successor products
and technology focused on the development, deployment and management of
Enterprise Infrastructure, Data Center, Vertical and Horizontal Offerings with
particular mention to: Windows 2000 (Professional, Server, Advanced Server and
Data Center version), Host Integration Server, BizTalk Server and AppCenter
Server.
"Microsoft License Agreements" shall mean (i) the Intellectual Property
License Agreement, providing for the license of certain intellectual property by
Microsoft to the Company and (ii) the Commercial Product Software License
Agreement, in each case between Microsoft and the Company and entered into as of
the First Closing Date, as amended from time to time.
"Microsoft Master Employee Services Agreement" shall mean the Master
Employee Services Agreement between Microsoft and the Company entered into as of
the First Closing Date, as amended from time to time.
"Microsoft Nondisclosure Agreement" shall mean the Nondisclosure Agreement
between Microsoft and the Company entered into as of the First Closing Date, as
amended from time to time.
6
"Microsoft Services Agreement" shall mean the Master Services Agreement
between Microsoft and the Company entered into as of the First Closing Date, as
amended from time to time.
"Microsoft Technology Competency" means the combination of skills,
experience, knowledge capital, methods and tools required to successfully plan,
design, implement and manage Microsoft Enterprise Solutions Platform based
solutions. In this context, skill and experience are attributes primarily
associated with a specific individual's depth and replicable application of
knowledge on specific technologies, products and architectural frameworks.
Knowledge capital, methods and tools represent intellectual property investments
by an organization to capture collective skills and experience, best practices,
lessons learned, guidelines and recommendations, architectural frameworks,
scenario recommendations, reusable code and key contacts for replicable
application.
"Permitted Avanade Competitor Investment" shall mean:
(a) the acquisition (in one or a series of transactions) of (x) 50%
or more of the voting securities or partnership interests or (y) the right
to designate 50% or more of the board of directors or other governing
body, of any entity or business that has as part of its operations an
Avanade Competitor, as long as both
(1) such Avanade Competitor accounts for less than 20% of such
acquired entity's or business's gross revenues at the time of
acquisition and
(2) the acquiring party divests the Avanade Competitor (or
takes such actions as may be necessary so that the operations no
longer constitute an Avanade Competitor) no later than six months
after such acquisition; or
(b) an investment (in one or a series of transactions) (i)
constituting less than 50% of the voting securities or partnership
interests and (ii) without any right to designate 50% or more of the
directors or other governing body of any entity or business that has as
part of its operations an Avanade Competitor, as long as such Avanade
Competitor does not have any right to use any trademark or trade name of
Microsoft or Accenture, as the case may be, or any of its Subsidiaries as
a co-brand in a material manner, for example by use of such trademark or
tradename as a heritage line or a corporate name for such Avanade
Competitor, and either:
(A) at the time of such investment such Avanade Competitor
accounts for less than 20% of the gross revenues of such entity or
business in whom such investment is made and the good faith
forecasts of such entity or business do not project such 20%
threshold being exceeded within three years; or
(B) neither the party making such investment nor any of its
Subsidiaries is actively involved in the management or operations of
such Avanade Competitor.
"Permitted Transferee" shall mean:
7
(i) in the case of Accenture, Accenture Ltd and Accenture Sarl and
any Permitted Transferee thereof, an Accenture Party; provided, however,
that such Permitted Transferee shall agree in writing to be bound by the
terms of this Agreement in accordance with Section 7.2 prior to the
Transfer of any shares of Stock to such Permitted Transferee; provided,
further, that in the event that such Permitted Transferee ceases to be an
Accenture Party, such Permitted Transferee shall Transfer any shares of
Stock then held by such Permitted Transferee to an Accenture Party prior
to such Permitted Transferee ceasing to be an Accenture Party; and
(ii) in the case of Microsoft and any Permitted Transferee of
Microsoft, a Subsidiary of Microsoft; provided, however, that such
Permitted Transferee agrees in writing to be bound by the terms of this
Agreement in accordance with Section 7.2 prior to the Transfer of any
shares of Stock to such Permitted Transferee; provided, further, that in
the event that such Permitted Transferee ceases to be a Subsidiary of
Microsoft, such Permitted Transferee shall Transfer any shares of Stock
then held by such Permitted Transferee to Microsoft or to a Subsidiary of
Microsoft prior to such Permitted Transferee ceasing to be a Subsidiary of
Microsoft.
"Person" shall mean any individual, corporation, limited liability
company, partnership, trust, joint stock company, business trust, unincorporated
association, joint venture, governmental authority or other entity of any nature
whatsoever.
"Principal Competitor" shall mean:
(a) with respect to Microsoft: (i) Oracle Corporation; Sun
Microsystems, Inc.; IBM Corporation; AOL Time Warner Inc.;
Hewlett-Packard; and the top three publishers of the Linux operating
system ; (ii) any successor by merger, acquisition of all or substantially
all assets or otherwise to any entity listed in clause (i); (iii) any
Subsidiary of any entity identified in clause (i) or (ii) to the extent
such Subsidiary is primarily engaged in the software publication business;
and (iv) any other Persons mutually agreed upon by both Parties; and
(b) with respect to Accenture: (i) Deloitte Touche Tohmatsu; Cap
Gemini Ernst & Young; Bearing Point; Computer Sciences Corporation;
Electronic Data Systems; Logica CMG; IBM Corporation; McKinsey & Company;
Booz, Allen & Hamilton; and Atos Origin; (ii) any successors by merger,
acquisition of all or substantially all assets or otherwise to any entity
listed in clause (i); (iii) any Subsidiary of any entity identified in
clause (i) or (ii) to the extent such Subsidiary is primarily engaged in
the business of providing services within the scope of business consulting
services; and (iv) any other Persons mutually agreed upon by both Parties.
"Public Offering" shall mean the sale of shares of Common Stock of the
Company to the public pursuant to an effective registration statement (other
than a registration statement on Form S-4 or S-8 or any similar or successor
form) filed under the Securities Act.
"Put/Call Price" shall be the value of the Stock held by Microsoft and its
Permitted Transferees determined in the following manner, : (i) if an Initial
Public Offering has occurred, the
8
per share value for each share of Common Stock shall be equal to the average of
the closing sales price of the Company's stock (as reported by The Wall Street
Journal or if not reported thereby, as reported by any other authoritative
source) on each of the fifteen (15) consecutive trading days immediately
preceding the date of exercise of the Put Right or the Call Right, as the case
may be, and any convertible preferred stock included in such Stock shall be
treated on an as-converted basis and (ii) if an Initial Public Offering has not
occurred, the value shall be the fair market value of the Stock, as mutually
agreed upon by Microsoft and Accenture; provided that in the event Microsoft and
Accenture are unable to agree on the fair market value within fifteen (15) days
through good faith negotiation, such fair market value shall be determined by a
nationally recognized investment banking firm selected by mutual agreement of
the Microsoft and Accenture, provided that if Microsoft and Accenture are unable
to agree upon such an investment banking firm, each of Microsoft and Accenture
shall select a nationally recognized investment banking firm and those two firms
shall select a third nationally recognized investment banking firm to make such
determination of fair market value. The fees and expenses of the investment
banking firm in making such fair market value determination will be shared
equally by Microsoft and Accenture.
"Registerable Securities" means any Common Stock held by a Stockholder,
any Common Stock issuable upon conversion of any Series A Preferred Stock held
by a Stockholder, any Class A Common Stock issuable upon conversion of any Class
B Common Stock held by a Stockholder, and any other securities which may be
issued or distributed in respect of any such Common Stock by way of
distribution, recapitalization, reclassification or similar transaction. As to
any particular Registerable Securities, once issued such Common Stock shall
cease to be Registerable Securities when (i) a registration statement with
respect to the sale of such Common Stock shall have become effective under the
Securities Act and such Common Stock shall have been disposed of in accordance
with such registration statement, (ii) they shall have been distributed to the
public pursuant to Rule 144 (or any successor provision) under the Securities
Act, (iii) they shall have been otherwise transferred, and subsequent transfer
or disposition of them shall not require registration or qualification of them
under the Securities Act or any state Securities or blue sky law then in force
or (iv) they shall have ceased to be outstanding.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance with Sections 8.1 and 8.2, including, without
limitation, (i) all SEC and stock exchange or National Association of Securities
Dealers, Inc. registration and filing fees, (ii) all fees and expenses of
complying with state securities or blue sky laws (including fees and
disbursements of counsel for the underwriters in connection with blue sky
qualifications of the Registerable Securities), (iii) all printing, messenger
and delivery expenses, (iv) all fees and expenses incurred in connection with
the listing of the Registerable Securities on any securities exchange pursuant
to clause (h) of Section 8.3, (v) the fees and disbursements of counsel for the
Company and of its independent public accountants, including the expenses of any
special audits and/or "cold comfort" letters required by or incident to such
performance and compliance, (vi) the reasonable fees and disbursements of one
counsel selected by each Stockholder, provided such Stockholder is participating
in such registration, and (vii) any fees and disbursements of underwriters
customarily paid by the issuers or sellers of securities, including liability
insurance if the Company so desires or if the underwriters so require, and the
reasonable fees and expenses of
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any special experts retained in connection with the requested registration but
excluding underwriting discounts and commissions and transfer taxes, if any.
"Related Agreements" shall mean, collectively, the Accenture Services
Agreement, the Microsoft Services Agreement, the Accenture License Agreement,
the Microsoft License Agreements, the Accenture Nondisclosure Agreement, the
Microsoft Nondisclosure Agreement and the Avanade License Agreements.
"Sales Engagement Activities" shall have the meaning set forth in the
Accenture/Microsoft Alliance Plan.
"SEC" shall mean the United States Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder, as the same may be amended
from time to time.
"Stock" shall mean, collectively, the Common Stock and the Series A
Preferred Stock.
"Stockholders" shall mean, collectively, each of the parties hereto
(except the Company) to the extent such party continues to hold Stock, and
"Stockholder" means any one of the Stockholders.
"Subsidiary" shall mean, with respect to any Person, (a) a corporation a
majority of whose capital stock with the general voting power under ordinary
circumstances to vote in the election of directors of such corporation
(irrespective of whether or not, the time, any other class or classes of
securities shall have, or might have, voting power by reason of the happening of
any contingency) is at the time beneficially owned by such Person, by one or
more Subsidiaries of such Person or by such Person and one or more Subsidiaries
thereof, or (b) any other Person (other than a corporation), including, without
limitation, a joint venture, in which such Person, one or more Subsidiaries
thereof or such Person and one or more Subsidiaries thereof, directly or
indirectly, at the date of determination thereof, have at least majority
ownership interest entitled to vote in the election of directors, managers or
trustees thereof (or other Persons performing such functions).
"Target Clients" shall have the meaning set forth in the
Accenture/Microsoft Alliance Agreement.
"Target Geographies" shall have the meaning set forth in the
Accenture/Microsoft Alliance Agreement.
"Transfer" shall mean any transfer, sale, gift, assignment, exchange,
mortgage, pledge, hypothecation, bequest, devise or other disposition of any
Stock, options or warrants to acquire Stock or any interest therein.
1.2 Other Definitions. The following terms are defined in the Sections
indicated:
Term Section
- -------------------------------- ------------
Accenture Introduction
Accenture Ltd Introduction
10
Term Section
- -------------------------------- ------------
Accenture Sarl Introduction
Accenture Sellers 11.4
Accenture Transitioned Personnel 9.2
Agreement Introduction
Amendment Effective Date Recitals
Call Right 11.2
Class A Common Stock 10.4(b)
Class B Common Stock 10.4(b)
Company Introduction
Equity Securities 2.5(a)
Fair Market Value 2.5(d)
HSR Act 3.1(c)
Indemnified Parties 8.4(a)
Initial Accenture Contribution 2.1
Initial Contributions 2.2
Initial Microsoft Contribution 2.2
Losses 8.4(a)
Microsoft Introduction
Microsoft Transitioned Personnel 9.2
Original Agreement Recitals
Permitted Business Scope 6.4(b)
Put Right 11.1
Reserved Employee Shares 2.5(e)(i)
Series A Preferred Stock Recitals
Tag-Along Notice 11.4
Transitioned Personnel 9.2
Triggering Event 11.3
1.3 Other Definitional Provisions; Interpretation. (a) The words "hereof,
"herein" and "hereunder" and words of similar import when used in this Agreement
will refer to this Agreement as a whole and not to any particular provision of
this Agreement, and section and subsection references are to this Agreement
unless otherwise specified.
(b) The meanings given to terms defined herein will be equally
applicable to both the singular and plural forms of such terms.
(c) The headings in this Agreement are included for convenience of
reference only and will not limit or otherwise affect the meaning or
interpretation of this Agreement
(d) All matters to be agreed to by any party hereunder must be
agreed to in writing by such party unless otherwise indicated herein.
11
SECTION 2
CONTRIBUTIONS AND STOCK ISSUANCES
2.1 Initial Contributions by Accenture. (a) Upon formation of the Company,
the Company issued to Accenture ten (10) shares of Common Stock, and in
consideration of such issuance Accenture made a cash payment to the Company of
$100.00.
(b) On the date of execution of the First Amended Agreement, the
Company declared and paid a stock dividend on its outstanding Common Stock such
that Accenture owned an aggregate of 100 shares of Common Stock.
(c) As a contribution to the capital of the Company and in
consideration of the issuance to Accenture of shares of Common Stock and Series
A Preferred Stock in accordance with Section 2.3(a), Accenture has made the
following contributions to the Company (collectively, the "Initial Accenture
Contribution"):
(i) on the date of execution of the First Amended Agreement, a cash
contribution to the Company of $5,100;
(ii) on the First Closing Date, certain intellectual property rights
as set forth in the Accenture License Agreement;
(iii) licenses or sublicenses to certain ideas, concepts, know-how
and techniques of the Accenture Parties as set forth in the Accenture
License Agreement, subject to the terms of the Accenture Nondisclosure
Agreement; and
(iv) subject to the provisions of Section 9.2(a) hereof, an
assembled work force.
2.2 Initial Contributions by Microsoft. As an initial contribution to the
capital of the Company and in consideration of the issuance to Microsoft of
shares of Common Stock and Series A Preferred Stock in accordance with Section
2.3(b), on the First Closing Date and thereafter, Microsoft made and shall make
the following contributions to the Company (the "Initial Microsoft Contribution"
and, collectively with the Initial Accenture Contribution, the "Initial
Contributions"):
(a) cash contributions in the aggregate amount of $385 million. All
cash contributions pursuant to this Section 2.2(a) were made or shall be made by
Microsoft by wire transfer of immediately available funds to an account of the
Company. Cash contributions of Microsoft pursuant to this Section 2.2(a) were
made in the following amounts on the following dates:
Date Cash Contribution
August 3, 2000 $135 million
November 1, 2000 $50 million
February 1, 2000 $50 million
May 1, 2001 $50 million
12
December 31, 2001 $100 million
(b) Notwithstanding the foregoing, if any cash contribution is
required to be made on any day that is not a Business Day, such cash
contribution shall be made on the immediately succeeding Business Day;
(c) certain intellectual property rights as set forth in the
Microsoft License Agreements;
(d) licenses or sublicenses to certain ideas, concepts, know-how and
techniques of Microsoft and its Affiliates as set forth in the Microsoft License
Agreement, subject to the terms of the Microsoft Nondisclosure Agreement;
(e) subject to the provisions of Section 9.2(b) hereof, an assembled
work force; and
(f) an additional $99 in cash on the First Closing Date.
2.3 Issuances of Stock(a) In consideration for the Initial Accenture
Contribution pursuant to Section 2.1(b) hereto, the Company issued to Accenture
on the date of execution of the First Amended Agreement, 51 million shares of
Series A Preferred Stock.
(b) In consideration for the Initial Microsoft Contribution pursuant
to Section 2.2 hereto, on the First Closing Date the Company issued to Microsoft
(i) 99 shares of Common Stock and (ii) 49 million shares of Series A Preferred
Stock.
2.4 Additional Capital. (a) Except as may be set forth in the Purchase
Agreement or an agreement subsequently entered into between the Company and a
Stockholder, no Stockholder will be required to make any capital contributions
to the Company other than those set forth in Sections 2.1 and 2.2.
(b) The Company and the Stockholders anticipate that any cash in
excess of the contributions required under Section 2.2 that is necessary to fund
operations of the Company will be obtained directly by the Company in the form
of loans from third party financial institutions, which loans will be
non-recourse to the Stockholders. However, the Company may issue additional
equity in order to obtain additional cash or other consideration to fund its
operations or for any other purpose.
2.5 Pre-Emptive Rights. (a) Subject to Sections 2.5(c) and 2.5(e) hereof,
each Stockholder shall have a right of participation to purchase its pro rata
share of all Equity Securities, as defined below, that the Company may, from
time to time, sell and issue after the date of this Agreement, other than the
Equity Securities excluded by Section 2.5(e) hereof. Each Stockholder's pro rata
share is equal to the ratio of (A) the number of shares of the Company's Common
Stock of which such Stockholder is deemed to beneficially own immediately prior
to the issuance of such Equity Securities to (B) the total number of shares of
the Company's outstanding Common Stock (including in each case in such ratio
calculation all shares of Common Stock issued or issuable upon exercise all
outstanding rights, options or warrants whose terms would
13
result in the holder thereof being deemed to beneficially own shares of Common
Stock) immediately prior to the issuance of the Equity Securities. The term
"Equity Securities" shall mean (i) any Common Stock or other equity security of
the Company, (ii) any security convertible, with or without consideration, into
any Common Stock or other equity security of the Company (including any option
to purchase such a convertible security) and (iii) any option, warrant or other
right to subscribe to or purchase any Common Stock or other equity security.
(b) If the Company proposes to issue any Equity Securities, it shall
give each Stockholder written notice of its intention, describing the Equity
Securities, the identity of the proposed purchaser, the price and the terms and
conditions upon which the Company proposes to issue the same. Each Stockholder
shall have fifteen (15) days from the giving of such notice to agree to purchase
all or any portion of such Stockholder's pro rata share (determined in
accordance with Section 2.5(a)) of the Equity Securities being issued for the
price and upon the terms and conditions specified in the notice by giving
written notice to the Company and stating therein the quantity of Equity
Securities to be purchased. Notwithstanding the foregoing, the Company shall not
be required to offer or sell such Equity Securities to any Stockholder who is
not an "accredited investor" as defined in Regulation D of the Securities Act or
who would cause the Company to be in violation of applicable securities laws by
virtue of such offer or sale.
(c) The rights of participation established by this Section 2.5
shall not apply to, and shall terminate upon the effective date of the
registration statement pertaining to an Initial Public Offering.
(d) Notwithstanding anything to the contrary in this Section 2.5,
the purchase price for any purchase of Equity Securities by a Stockholder
pursuant to this Section 2.5 shall be paid entirely in cash. To the extent that
all or any portion of the consideration in a proposed issuance of Equity
Securities is not cash, the cash purchase price per Equity Security paid by the
Stockholders who exercise their rights under this Section 2.5 will equal the per
security cash consideration (if any) plus the Fair Market Value of the non-cash
consideration per security as of the date the Stockholders receive notice of
their right to purchase hereunder. For purposes hereof, the "Fair Market Value"
of any non-cash consideration means the following:
(i) If the non-cash consideration consists of publicly-traded
securities, such "Fair Market Value" shall mean the average daily closing
sales price of such securities for the ten consecutive trading days
preceding the date of Fair Market Value of such securities is required to
be determined hereunder. The closing price for each day shall be the last
reported sales price regular way or, in case no such reported sale takes
place on such day, the average of the reported closing bid and asked
prices regular way, in either case on the principal national securities
exchange on which such securities are listed and admitted to trading, or,
if not listed and admitted to trading on any such exchange on the Nasdaq
National Market System, or if not quoted on the National Market System,
the average of the closing bid and asked prices in the over-the-counter
market as furnished by any New York Stock Exchange member firm selected
from time to time by the Company for that purpose.
(ii) If the non-cash consideration does not consist of
publicly-traded securities, such "Fair Market Value" shall be such amount
as is determined to be the fair
14
market value of the non-cash consideration as of the date such Fair Market
Value is required to be determined hereunder as determined in good faith
by the Board.
(e) The rights of participation established by this Section 2.5
shall have no application to any of the following Equity Securities:
(i) shares of Common Stock (and/or options, warrants or other
Common Stock purchase rights issued pursuant to such options, warrants or
other rights) issued or to be issued to employees, officers or directors
of, or consultants or advisors to, the Company or any Subsidiary thereof,
pursuant to stock purchase or stock option plans or other such
arrangements that are approved by the Board of Directors (the "Reserved
Employee Shares");
(ii) any Equity Securities issued for consideration other than
cash pursuant to a merger, consolidation, acquisition or similar business
combination;
(iii) shares of Common Stock issued in connection with any
stock split, stock dividend or recapitalization by the Company;
(iv) any Equity Securities issued upon the conversion,
exchange or exercise of any other Equity Securities whose initial issuance
was subject to this Section 2.5;
(v) any Equity Securities that are issued by the Company
pursuant to a Public Offering; and
(vi) any issuance of Equity Securities that Accenture and
Microsoft both agree in writing is exempt from the provisions of this
Section 2.5; and
(vii) Accenture consents for all purposes, including under
this Agreement and the Company's articles of incorporation to the sale of
the Purchased Shares (as defined in the Purchase Agreement) to Microsoft.
SECTION 3
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Stockholders. Each of the
Stockholders represents and warrants to the other parties hereto as follows:
(a) Due Organization. Such Stockholder is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization, and has the requisite power and authority to conduct its business
as now conducted by it. Such Stockholder has all requisite power and authority
to enter into this Agreement and the other Related Agreements to which it is a
party and to perform its obligations hereunder and thereunder.
(b) Authorization and Validity of Agreement. The execution, delivery
and performance by such party of this Agreement and the other Related Agreements
to which such
15
Stockholder is a party and the consummation by such Stockholder of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary corporate or equivalent organizational action on the part of such
party. This Agreement and each of the other Related Agreements to which such
Stockholder is a party have been (or will be as of such later date of execution
of this Agreement by a Stockholder who is a Permitted Transferee of Stock), duly
executed and delivered by such party and constitutes a valid and legally binding
obligation of such Stockholder, enforceable against it in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the rights of
creditors generally and by general principles of equity.
(c) No Government Approvals or Notices Required; No Conflict with
Instruments. Except as described in Schedule 3.1(c), the execution, delivery and
performance of this Agreement and the Related Agreements by such Stockholder and
the consummation by such Stockholder of the transactions contemplated hereby and
thereby will not (i) conflict with or result in a breach of any provision of the
charter or bylaws (or equivalent governing documents) of such Stockholder, (ii)
require any consent, approval, authorization or permit of, or filing with or
notification to, any Governmental Authority (except for any filing under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act")), (iii) require the consent or approval of any Person (other than a
Governmental Authority) or violate or conflict with, or result in a breach of
any provision of, constitute a default (or an event which with notice or lapse
of time or both would become a default) or give to any third party any right of
termination, cancellation, amendment or acceleration under, or result in the
creation of a lien on any of the assets contributed by such Stockholder to the
Company under, any of the terms, conditions or provisions of any contract or
license to which such Stockholder is a party or by which it or its assets or
property are bound, or (iv) violate or conflict with any order, writ,
injunction, decree, statute, rule or regulation applicable to such Stockholder;
other than any consents and approvals the failure of which to obtain and any
violations, conflicts, breaches defaults and other rights set forth pursuant to
clauses (ii), (iii) and (iv) above which, individually or in the aggregate,
would not reasonably be expected to have a material adverse effect on either (x)
the assets contributed by such Stockholder to the Company as part of the Initial
Contributions or (y) the ability of such Stockholder to perform its obligations
hereunder or under the Related Agreements to which it is a party.
3.2 Representations and Warranties of the Company. The Company represents
and warrants to each of the Stockholders as follows:
(a) The Company is duly organized, validly existing and in good
standing under the laws of the State of Washington. The Company has full
corporate power and authority to execute and deliver this Agreement and the
Related Agreements and to issue Stock and perform its obligations hereunder and
thereunder. This Agreement and each of the Related Agreements has been duly
executed and delivered by the Company and constitutes a valid and legally
binding obligation of the Company, enforceable against it in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the rights of
creditors generally and by general principles of equity.
(b) The Stock to be issued pursuant to this Agreement, upon
conversion of the Series A Preferred Stock or upon conversion of any Class B
Common Stock has been duly authorized and, when issued as contemplated hereby or
upon conversion of the Series A Preferred
16
Stock or Class B Common Stock, as applicable, will be duly and validly issued,
fully paid and nonassessable.
(c) None of the execution, delivery or performance of this Agreement
or the Related Agreements or the issuance of the Stock by the Company will
conflict with the Certificate of Incorporation or the Bylaws or result in any
breach of any terms or provisions of, or constitute a default under, any
contract, agreement or instrument to which the Company is a party or by which
the Company is bound.
SECTION 4
AMENDMENT AND RESTATEMENT
This Agreement amends certain provisions of the Second Amended Agreement
and restates the terms of the Second Amended Agreement in their entirety so as
to reflect and give effect to such amendments. This Agreement shall become
effective upon the Amendment Effective Date and the First Amended Agreement
shall be deemed terminated in all respects thereafter. All amendments to the
Second Amended Agreement effected by this Agreement, and all other covenants,
agreements, terms and provisions of this Agreement, shall have effect from the
Amendment Effective Date, and each of the representations and warranties made in
Section 3 shall be deemed to be made as of such date.
SECTION 5
OPERATING OBJECTIVES;
CONDUCT OF THE COMPANY'S BUSINESS
5.1 Operating Objectives of the Company. The most general operating
objectives of the Company are to build an entrepreneurial, profitable and
scalable organization with industry leading Microsoft Technology Competency
dedicated to the development and delivery of Avanade Service Offerings,
reference architectures, knowledge capital and related intellectual property
that accelerate deployment of Microsoft Enterprise Solutions Platform based
business solutions to Target Clients. It is the intention of the Stockholders
and the Company that the Company be operated in a reasonable manner that
maximizes its profit.
5.2 Scope of the Company's Business. (a) Subject to the terms of the
Certificate of Incorporation and this Agreement, the Company's business will be
to apply industry leading Microsoft Technology Competency to develop and deliver
Avanade Service Offerings, knowledge capital, reference architectures and
related intellectual property to plan, build, implement and manage Microsoft
Enterprise Solution Platform based business solutions. The Company will
primarily provide technology services in the enterprise and web infrastructure
market, data center operations market, middleware and development platform
market, knowledge management and collaboration market, digital dashboard and
enterprise portal market, data warehousing/business intelligence market and
eCommerce market. The Company's Service Offerings, knowledge capital, reference
architectures and related intellectual property will serve as the basis for
Vertical Market and Horizontal Market business solutions offered by Microsoft,
Accenture and Industry Clients.
17
(b) Notwithstanding anything to the contrary in this Agreement or
any Related Agreement, the Company shall not provide Business Strategy
Consulting Services, Change Management Consulting Services or Business Process
Consulting Services or otherwise conduct its business in violation of the terms
of the Certificate of Incorporation.
5.3 Company Offices. Unless otherwise agreed upon by each of Accenture and
Microsoft, the Company's headquarters office shall be located in or near
Redmond, Washington and the Company will maintain a substantial showcase
presence near Microsoft's headquarters in Redmond Washington. The consent rights
of Microsoft under this Section 5.3 shall terminate in the event Microsoft and
its Permitted Transfereees collectively own securities of the Company
representing an aggregate of less than ten percent (10%) of the votes entitled
to be cast in the election of directors of the Company.
5.4 Branding. Subject to the terms of the Accenture License Agreement and
the Microsoft License Agreement, the Company's services and offerings will be
branded using both the Accenture and Microsoft brands in a manner to be mutually
agreed by Accenture and Microsoft. In addition, it is intended that the Company
quickly develop its own recognizable brand. In the event that either Microsoft
or Accenture changes its brand for any reason, upon notice to Avanade: (1)
Avanade's rights to use the brand shall vest in the new brand; (2) Avanade shall
forego any rights to use the previous brands; and (3) Avanade shall forthwith
cease to make use of the previous brand.
5.5 Subsidiaries. Additional Subsidiaries of the Company may be
established at the discretion of the Board.
5.6 Use of Microsoft Technology in Offerings. To the greatest extent
possible (taking into account client needs and preferences and Microsoft's
product offerings), all Avanade Service Offerings will be based on and take full
advantage of the Microsoft Enterprise Solutions Platform. The Company will often
work with third party products as necessary to port, integrate and interface
them with Microsoft platforms, products or technology. However, only on a rare
exception basis will competing products or technologies be used to deliver
client solutions. In the event that the Company personnel offering a Avanade
Services Offering for a client in a Go-to-Market Focus Area determine that
commercial or technical issues would appear to prevent a solution deployment on
the Microsoft Enterprise Solutions Platform, then the following will apply. To
the greatest extent acceptable to the client and appropriate in light of the
project's timetable and requirements, the Company will provide Microsoft with an
opportunity to involve, as appropriate, its Microsoft Consulting Services
personnel and relevant Microsoft product groups (at no cost to the Company or
its client) for consultation with personnel of the Company to evaluate the
potential barriers and how they may be resolved. In the event Microsoft does
consult on the matter in a timely fashion, the Company will use commercially
reasonable efforts to consider and, to the extent it deems appropriate under the
circumstances, implement Microsoft's written response. Microsoft will coordinate
its consultation process with the Company's personnel so as not to interfere
with or delay the client's project schedules.
5.7 Internal Use of Microsoft Products by the Company. All of the
Company's internal enterprise and web infrastructure, knowledge management,
customer management and business
18
solutions will be based on and, to the extent commercially reasonable, take full
advantage of the Microsoft Enterprise Solutions Platform.
5.8 The Company's Go-To-Market Focus Areas, Target Clients and Sales
Engagement. As further set forth in the Accenture/Microsoft Alliance Agreement,
the Parties shall cooperatively go-to-market with Avanade Service Offerings,
which cooperation shall include, but not necessarily limited to, Marketing
Initiatives and Sales Engagement Activities directed at Target Clients
worldwide.
5.9 Alliance Strategies/Alliances. Accenture, Microsoft and the Company
anticipate that the Company will pursue alliances with systems integrators,
original equipment manufacturers and independent software vendors. The Company
will establish relationships with independent contractors and sub-contractors to
address those situations when the Company is resource constrained.
5.10 Affiliate Transactions. The Company will not enter into any material
transaction with Accenture Ltd or any of its Subsidiaries unless (i) such
transaction is on terms no less favorable to the Company than it would obtain in
a comparable arm's length transaction with a third party that is not Accenture
Ltd or a Subsidiary thereof or (ii) such transaction is approved by Microsoft,
such approval not to be unreasonably withheld. Transactions with third party
customers or clients entered into in the ordinary course of business (including
those in which either the Company or Accenture acts as a subcontractor for each
other) shall not be considered material transactions for purposes of this
Section 5.10.
SECTION 6
GOVERNANCE
6.1 Board of Directors Prior to an Initial Public Offering. (a) Prior to
the closing of an Initial Public Offering, the Board shall consist of six
directors consisting of the following persons: (i) four directors designated by
Accenture, (ii) one director designated by Microsoft and (iii) the Chief
Executive Officer of the Company. Unless otherwise agreed by Microsoft, three of
the directors designated by Accenture pursuant to this Section 6.1(a) will
consist of the chief corporate development officer of Accenture, two senior
Accenture market unit partners and the managing partner of Accenture's
Technology Competency. Unless otherwise agreed by Accenture, the director
designated by Microsoft will consist of its Chief Financial Officer until
September 30, 2002, and after such date will be determined by Microsoft after
consultation with Accenture. Microsoft will also appoint two persons to attend
the meetings of the Board as non-voting observers, and not as a members of the
Board. Unless otherwise agreed by Accenture, the observer will consist of the
Vice President of Worldwide Services of Microsoft or another Vice President
reasonably acceptable to Accenture until September 30, 2002, and after such date
will be determined by Microsoft after consultation with Accenture. Each of the
Stockholders and the Company agrees to take all action necessary to cause each
of the designees described in this Section 6.1(a) to be elected or appointed to
the Board at all times prior to the closing of an Initial Public Offering.
Without limiting the foregoing, each Stockholder agrees that at all times prior
to the closing of an Initial Public Offering, it will vote all of the shares of
Stock owned or held of record by it, and cause all of the other shares of Stock
beneficially owned by it to be voted, to elect
19
and, during such period, to continue in office a Board consisting solely of the
persons specified in this Section 6.1.
(b) If either Accenture or Microsoft notifies the other Stockholders
in writing of its desire to remove, with or without cause, any director of the
Company previously designated by it in accordance with this Section 6.1, the
other Stockholder will vote (to the extent eligible to vote) all of the shares
of Stock beneficially owned or held of record by it, so as to remove such
director or, upon request, each Stockholder will promptly execute and return to
the Company any written resolution to such effect. No removal pursuant to the
WBCA of an individual designated pursuant to this Section 6.1 will affect any of
the rights of the Stockholders to designate a different individual.
(c) If any director previously designated by a Stockholder ceases to
serve on the Board (whether by reason of death, resignation, removal or
otherwise), the Stockholder who designated such director will be entitled to
designate a successor director to fill the vacancy created thereby, and each
Stockholder will vote (to the extent eligible to vote) all of the shares of
Stock beneficially owned or held of record by it or him or her in favor of such
designation or, upon request, each Stockholder will promptly execute and return
to the Company any written resolution to such effect.
6.2 Board of Directors on and after an Initial Public Offering. On and
after the closing of an Initial Public Offering, the Board shall be structured
so as to consist of such number of directors elected in such manner as is in the
best interest of the Company.
6.3 Board Approvals. The marketing plan, three-year plan and annual budget
of the Company shall each be subject to review and approval by the Board, and
copies of each proposed marketing plan, three-year plan and annual budget to be
reviewed by the Board shall be provided to each of the Board members and the
board observer at least three (3) business days in advance of any Board meeting
with respect to the approval thereof. The strategies of the Company with respect
to its alliances with system integrators, original equipment manufacturers and
independent software vendors shall also be subject to review and approval by the
Board. With respect to proposals relating to such strategies, materials relating
to such proposals shall be delivered to the Board members and its observer not
less than three (3) business days prior to their formal consideration by the
Board.
6.4 Microsoft Consent Rights. Actions by the Stockholders or the Board
will be taken as provided by law or the Certificate of Incorporation, provided
that the Company and the Stockholders shall not effect and shall cause not to be
effected without the prior written consent of Microsoft :
(a) the issuance by the Company or any of its Subsidiaries of any
Equity Securities to any Principal Competitor of Microsoft;
(b) the acquisition or disposition by the Company or any of its
Subsidiaries (by purchase, sale, merger, consolidation or otherwise) of assets
or securities of any third party in any transaction for consideration in excess
of $100 million;
20
(c) entry of the Company or any of its Subsidiaries into any line of
business or scope of business activity other than those set forth in Section 5
hereto and any business activities reasonably related or ancillary thereto
("Permitted Business Scope"), provided that in the event the Company or any of
its Subsidiaries acquires any entity or business that has as part of its
operations activities outside the Permitted Business Scope, the Company or such
Subsidiary shall terminate or divest those activities outside the Permitted
Business Scope as soon as reasonably practicable, but no later than twelve (12)
months from the date of such acquisition;
(d) any amendment or modification to the Certificate of
Incorporation or the Bylaws adversely affecting Microsoft relative to Accenture
or any other Stockholder;
(e) prior to such time as the Call Right becomes exercisable, any
merger, consolidation or similar business combination of the Company with an
Accenture Party or with a Microsoft Principal Competitor; and
(f) the repurchase or redemption of any equity of the Company from
any Accenture Party unless Microsoft has the right to participate in such
repurchase or redemption, at Microsoft's election, on a pro rata basis.
SECTION 7
TRANSFERS
7.1 Limitations on Transfer. (a) Microsoft agrees that prior to the 181st
day after consummation of an Initial Public Offering, Microsoft and its
Permitted Transferees will not effect any Transfer except for (i) Transfers to
the Company in transactions that are approved by the Board and Accenture, (ii)
Transfers to Permitted Transferees pursuant to Section 7.2, (iii) Transfers
approved in writing by Accenture, (iv) Transfers pursuant to Section 11 hereof
and (v) Transfers pursuant to Section 6.8.3 of the Accenture/Microsoft Alliance
Agreement. On and after the 181st day after consummation of an Initial Public
Offering, Microsoft and its Permitted Transferees may effect any Transfer
subject only to Section 7.1(b) and Section 8.6 (if applicable). Accenture,
Accenture Ltd and Accenture Sarl each agrees that prior to the earlier of (x) an
Initial Public Offering and (y) December 31, 2004, Microsoft and its Permitted
Transferees will not effect any Transfer except for (i) Transfers to Permitted
Transferees pursuant to Section 7.2, (ii) Transfers approved in writing by
Microsoft and (iii) Transfers pursuant to Section 6.8.3 of the
Accenture/Microsoft Alliance Agreement. After the earlier of (x) an Initial
Public Offering and (y) December 31, 2004, subject to the provisions of Section
11.4 hereof Accenture, Accenture Ltd and Accenture Sarl and their Permitted
Transferees may effect any Transfer to any Person other than a Principal
Competitor of Microsoft.
(b) Each Stockholder agrees that it will effect any Transfer only in
compliance with the Securities Act and any other applicable securities laws.
7.2 Transfers to Permitted Transferees. Notwithstanding anything contained
herein to the contrary, but subject to compliance with applicable securities
laws, each of the Stockholders may Transfer any of its shares of Stock to such
Stockholder's Permitted Transferees who agree by delivery of a written transfer
acknowledgment in form and substance reasonably acceptable to the
21
Company to become a party to, and be bound to the same extent as its transferor
by the terms of, this Agreement.
7.3 Effect of Void Transfers. In the event of any purported Transfer in
violation of the provisions of this Agreement, such purported Transfer will be
void and of no effect and the Company will not give effect to such Transfer.
7.4 Legend on Securities. Each certificate representing unregistered
shares of Stock or options, warrants or securities convertible into Stock issued
by the Company to the Stockholders will bear the following legend on the face
thereof, in the case of Stock, or an equivalent legend in the case of options,
warrants or convertible securities:
"THE SHARES OF [COMMON] [PREFERRED] STOCK REPRESENTED BY THIS CERTIFICATE
ARE SUBJECT TO A CONTRIBUTION AND STOCKHOLDERS AGREEMENT AMONG ACCENTURE,
MICROSOFT AND AVANADE (THE "COMPANY") DATED FEBRUARY 23, 2000, AS MAY BE
AMENDED FROM TIME TO TIME, A COPY OF WHICH IS ON FILE WITH THE SECRETARY
OF THE COMPANY. NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR
OTHER DISPOSITION OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE
MADE EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SUCH STOCKHOLDERS
AGREEMENT. THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE OF THIS
CERTIFICATE, AGREES TO BE BOUND BY ALL OF THE PROVISIONS OF SUCH
STOCKHOLDERS AGREEMENT."
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE
SECURITIES LAW AND, ACCORDINGLY, MAY NOT BE TRANSFERRED, SOLD, ASSIGNED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF (COLLECTIVELY, A TRANSFER)
UNLESS SUCH TRANSFER IS MADE PURSUANT TO A REGISTRATION STATEMENT OR
POST-EFFECTIVE AMENDMENT THERETO EFFECTIVE UNDER THE SECURITIES ACT OR
SUCH TRANSFER IS EXEMPT FROM OR NOT SUBJECT TO THE PROVISIONS OF SECTION 5
OF THE SECURITIES ACT AND THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION."
SECTION 8
REGISTRATION RIGHTS
8.1 Incidental Registrations. (a) If the Company at any time after the
date hereof proposes to register its Common Stock under the Securities Act
(other than a registration on Form S-4 or S-8, or any successor or other forms
promulgated for similar purposes), whether or not for sale for its own account
(other than with respect to any registration pursuant to Section 8.2, in which
case the rights granted to Stockholders of Registerable Securities under this
Section 8.1 shall not apply), pursuant to a registration statement on which it
is permissible to register Registerable Securities for sale to the public under
the Securities Act, it will each such time give
22
prompt written notice to all holders of Registerable Securities of its intention
to do so and of such Stockholders' rights under this Section 8.1. Subject to the
terms of this Section 8, upon the written request of any such Stockholder made
within fifteen (15) days after the receipt of any such notice (which request
shall specify the Registerable Securities intended to be disposed of by such
Stockholder), the Company will use its best efforts to effect the registration
under the Securities Act of all Registerable Securities which the Company has
been so requested to register by the holders thereof; provided that (i) if, at
any time after giving written notice of its intention to register any securities
and prior to the effective date of the registration statement filed in
connection with such registration, the Company shall determine for any reason
not to proceed with the proposed registration of the Common Stock to be sold by
it, the Company may, at its election, give written notice of such determination
to each holder of Registerable Securities and, thereupon, shall be relieved of
its obligation to register any Registerable Securities in connection with such
registration (but not from its obligation to pay the Registration Expenses in
connection therewith), (ii) if such registration involves an underwritten
offering, all holders of Registerable Securities requesting and entitled to be
included in the Company's registration must sell their Registerable Securities
to the underwriters selected by the Company on the same terms and conditions as
apply to the Company, with such differences, including any with respect to
indemnification and liability insurance, as may be customary or appropriate in
combined primary and secondary offerings and (iii) if a registration requested
pursuant to this Section 8.1(a) involves an underwritten public offering, any
holder of Registerable Securities requesting to be included in such registration
may elect, in writing prior to the effective date of the registration statement
filed in connection with such registration, not to register such Common Stock in
connection with such registration.
(b) The Company will pay all Registration Expenses in connection
with each registration of Registerable Securities requested pursuant to this
Section 8.1.
(c) If a registration pursuant to this Section 8.1 involves an
underwritten offering and the managing underwriter advises the Company in
writing that, in its opinion, the number of shares of Common Stock requested and
entitled to be included in such registration exceeds the number which can be
sold in such offering, so as to be likely to have an adverse impact on such
offering as contemplated by the Company (including the price at which the
Company proposes to sell such Common Stock), then the Company will include in
such registration (i) first, 100% of the Common Stock the Company proposes to
sell and (ii) second, to the extent of the number of Registerable Securities
requested and entitled to be included in such registration which, in the opinion
of such managing underwriter, can be sold without having the adverse effect
referred to above, the number of Registerable Securities requested and entitled
to be included in such registration by the Stockholders, such amount to be
allocated pro rata among all requesting Stockholders on the basis of the
relative number of Registerable Securities then held directly or indirectly by
each such Stockholder, provided that any Registerable Securities thereby
allocated to any such Stockholder that exceed such Stockholder's request will be
reallocated among the remaining requesting Stockholders in like manner.
8.2 Registration on Request. (a) Subject to the provisions of this Section
8.2, upon the written request of any one or more holders of Registrable
Securities that each own at least 5% of the then outstanding Registrable
Securities requesting that the Company effect the registration under the
Securities Act of all or part of such holder's or holders' Registerable
Securities, and
23
specifying the intended method of disposition thereof, the Company will promptly
give written notice of such requested registration to all other holders of
Registerable Securities, and thereupon will, as expeditiously as possible, use
its best efforts to effect the registration under the Securities Act of:
(i) the Registerable Securities which the Company has been so
requested to register by such holder or holders initially requesting that
the Company effect the registration; and
(ii) all Registerable Securities which the Company has been
requested to register by any other Stockholder that owns at least 5% of
the then outstanding Registrable Securities by written request given to
the Company within fifteen (15) days after the giving of such written
notice by the Company (which request shall specify the intended method of
disposition of such Registerable Securities),
(iii) so as to permit the disposition (in accordance with the
intended method thereof as aforesaid) of the Registerable Securities so to
be registered; provided that unless Accenture consents thereto in writing,
the Company shall not be obligated to file a registration statement
relating to any registration request under this Section 8.2(a) (x) (other
than a registration statement on Form S-3 or any successor or similar
short-form registration statement) within a period of six months after the
effective date of any other registration statement relating to (A) any
registration request under this Section 8.2(a) that was not effected on
Form S-3 (or any successor or similar short-form registration statement)
or (B) any registration effected under Section 8.1, or (y) if with respect
thereto, the managing underwriter, the SEC, the Securities Act or the
rules and regulations thereunder, or the form on which the registration
statement is to be filed, would require the conduct of an audit other than
the regular audit conducted by the Company at the end of its fiscal year,
in which case the filing may be delayed until the completion of such
regular audit (unless the holders of the Registerable Securities to be
registered agree to pay the expenses of the Company in connection with
such an audit other than the regular audit).
(b) Notwithstanding anything contained in this Section 8.2 to the
contrary, (1) the Company shall not be obligated to effect any registration in
which the aggregate sales price to the public of the Registrable Securities
being sold is less than $5 million, (2) no Stockholder shall be entitled to
request that a registration statement be filed pursuant to this Section 8.2
until the 181st day after the closing of the Initial Public Offering, (3)
Microsoft and its Permitted Transferees shall collectively be entitled to
request not more than a total of two long-form registrations and not more than a
total of four registrations on Form S-3 (or any successor or similar short-form
registration statement) under the Securities Act pursuant to this Section 8.2,
and (4) Microsoft and its Permitted Transferees shall collectively be entitled
to request no more than a total of two registrations of any type pursuant to
this Section 8.2 during any calendar year.
(c) If any registration requested pursuant to this Section 8.2 which
is proposed by the Company to be effected by filing of a registration statement
on Form S-3 (or any successor or similar short-form registration statement)
shall be in connection with an underwritten Public Offering, and if the managing
underwriter shall advise the Company in writing that, in its opinion,
24
the use of another form of registration statement is of material importance to
the success of such proposed offering, then such registration shall be effected
on such other form.
(d) The Company will pay all Registration Expenses in connection
with the registrations of Registerable Securities pursuant to this Section 8.2
upon the written request of any of the Stockholders.
(e) If a requested registration pursuant to this Section 8.2
involves an underwritten offering, the holders of a majority of the Registrable
Securities being registered shall have the right to select the investment banker
or bankers and managers to administer the offering, subject to the consent of
the Company which will not be unreasonably withheld or delayed.
(f) If a requested registration pursuant to this Section 8.2
involves an underwritten offering and the managing underwriter advises the
initiating Stockholder(s) in writing that, in its opinion, the number of shares
of Common Stock requested to be included in such registration exceeds the number
which can be sold in such offering, so as to be likely to have an adverse impact
on such offering as contemplated by the initiating Stockholder(s) (including the
price at which the initiating Stockholder(s) proposes to sell such Common
Stock), then the number of such Registerable Securities to be included in such
registration shall be allocated pro rata among all requesting Stockholders on
the basis of the relative number of Registerable Securities then held directly
or indirectly by each such Stockholder (provided that any shares of Common Stock
thereby allocated to any such Stockholder that exceed such Stockholder's request
shall be reallocated among the remaining requesting Stockholders in like
manner).
8.3 Registration Procedures. If and whenever the Company is required to
use its best efforts to effect or cause the registration of any Registerable
Securities under the Securities Act as provided in this Agreement, the Company
shall, as expeditiously as possible:
(a) prepare and, in any event within thirty (30) days after the end
of the period within which a request for registration may be given by a
Stockholder (within ten (10) days if the filing is to be made on Form S-3), file
with the SEC a registration statement with respect to such Registerable
Securities and use its best efforts to cause such registration statement to
become effective; provided that the Company may discontinue any registration of
its Common Stock which is being effected pursuant to Section 8.1 at any time
prior to the effective date of the registration statement relating thereto;
(b) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective for a period not
in excess of 180 days and to comply with the provisions of the Securities Act
with respect to the disposition of all Common Stock covered by such registration
statement during such period in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such registration
statement; provided that before filing a registration statement or prospectus,
or any amendments or supplements thereto, the Company shall furnish to one
counsel selected by Accenture and one counsel selected by Microsoft, in each
case, provided such Stockholder or its Permitted Transferee is participating in
such registration, copies of all documents proposed to be filed, which documents
will be subject to the review of such counsel;
25
(c) furnish to each seller of such Registerable Securities such
number of copies of such registration statement and of each amendment and
supplement thereto (in each case including all exhibits), such number of copies
of the prospectus included in such registration statement (including each
preliminary prospectus and summary prospectus), in conformity with the
requirements of the Securities Act, and such other documents as such seller may
reasonably request in order to facilitate the disposition of the Registerable
Securities by such seller;
(d) use its best efforts to register or qualify such Registerable
Securities covered by such registration statement under such other securities or
blue sky laws of such jurisdiction as each seller shall reasonably request, and
do any and all other acts and things which may be reasonably necessary or
advisable to enable such seller to consummate the disposition in such
jurisdictions of the Registerable Securities owned by such seller, except that
the Company shall not for any such purpose be required to qualify generally to
do business as a foreign corporation in any jurisdiction where, but for the
requirements of this clause (d), it would not be obligated to be so qualified,
to subject itself to taxation in any such jurisdiction, or to consent to general
service of process in any such jurisdiction;
(e) use its best efforts to cause such Registerable Securities
covered by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof to consummate the disposition of such Registerable
Securities;
(f) notify each seller of any such Registerable Securities covered
by such registration statement, at any time when a prospectus relating thereto
is required to be delivered under the Securities Act within the appropriate
period mentioned in clause (b) of this Section 8.3, of the Company's becoming
aware that the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing, and at
the request of any such seller, prepare and furnish to such seller a reasonable
number of copies of an amended or supplemental prospectus (including one or more
copies of such prospectuses or of a registration statement including such
prospectus marked to indicate the amendments or supplements thereto) as may be
necessary so that, as thereafter delivered to the purchasers of such
Registerable Securities, such prospectus shall not include 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 in the light
of the circumstances then existing;
(g) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC, and make available to its security holders, as
soon as reasonably practicable (but not more than eighteen months) after the
effective date of the registration statement, an earnings statement which shall
satisfy the provisions of Section 11(a) of the Securities Act and the rules and
regulations promulgated thereunder;
(h) use its best efforts to list such Registerable Securities on
each securities exchange on which the shares of such class of Common Stock are
then listed, if such Registerable Securities are not already so listed and if
such listing is then permitted under the rules of such
26
exchange, and to provide a transfer agent and registrar for such Registerable
Securities covered by such registration statement not later than the effective
date of such registration statement;
(i) enter into such customary agreements (including an underwriting
agreement in customary form) and take such other actions as sellers of such
Registerable Securities or the underwriters, if any, reasonably request in order
to expedite or facilitate the disposition of such Registerable Securities;
(j) obtain a "cold comfort" letter or letters from the Company's
independent public accountants in customary form and covering matters of the
type customarily covered by "cold comfort" letters as sellers of such
Registerable Securities shall reasonably request;
(k) make available for inspection by representatives of the sellers
of such Registerable Securities covered by such registration statement, by any
underwriter participating in any disposition to be effected pursuant to such
registration statement and by any attorney, accountant or other agent retained
by such sellers or any such underwriter, all pertinent financial and other
records, pertinent corporate documents and properties of the Company, and cause
all of the Company's officers, directors and employees to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement; and
(l) cause the senior executive officers of the Company to
participate in the customary "road show" presentations that may be reasonably
requested by the Stockholders or the managing underwriter in any underwritten
offering and otherwise to facilitate, cooperate with, and participate in each
proposed offering contemplated herein and customary selling efforts related
thereto.
The Company may require each seller of Registerable Securities as to which
any registration is being effected to furnish the Company with such information
regarding such seller and pertinent to the disclosure requirements relating to
the registration and the distribution of such Common Stock as the Company may
from time to time reasonably request in writing.
Each holder of Registerable Securities agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
clause (f) of this Section 8.3, such Stockholder will forthwith discontinue
disposition of Registerable Securities pursuant to the registration statement
covering such Registerable Securities until such Stockholder's receipt of the
copies of the supplemented or amended prospectus contemplated by clause (f) of
this Section 8.3, and, if so directed by the Company, such holder will deliver
to the Company (at the Company's expense) all copies, other than permanent file
copies then in such holder's possession, of the prospectus covering such
Registerable Securities current at the time of receipt of such notice. In the
event the Company shall give any such notice, the period mentioned in clause (b)
of this Section 8.3 shall be extended by the number of days during the period
from and including the date of the giving of such notice pursuant to clause (f)
of this Section 8.3 and including the date when each seller of Registerable
Securities covered by such registration statement shall have received the copies
of the supplemented or amended prospectus contemplated by clause (f) of this
Section 8.3.
27
8.4 Indemnification. (a) In the event of any registration of any
securities of the Company under the Securities Act pursuant to Sections 8.1 or
8.2 or otherwise, the Company hereby indemnifies and agrees to hold harmless, to
the full extent permitted by law, (i) each holder of Registerable Securities
covered by such registration statement and each Affiliate of such holder and
their respective directors, officers, employees, advisors, agents and general
and limited partners (and the directors, officers, affiliates and controlling
Persons thereof), (ii) each other Person who participates as an underwriter in
the offering or sale of such securities and (iii) each other Person, if any, who
controls such holder or any such underwriter within the meaning of the
Securities Act (collectively, the "Indemnified Parties"), against any and all
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof, whether or not such Indemnified Party is a party thereto) (each a
"Loss" and collectively "Losses"), joint or several, and expenses to which such
Indemnified Party may become subject under the Securities Act, common law or
otherwise, insofar as such losses, claims, damages or liabilities that arise out
of or are based upon (x) any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
securities were registered under the Securities Act, any preliminary, final or
summary prospectus contained therein, or any amendment or supplement thereto or
any document incorporated by reference thereto, or (y) any omission or alleged
omission to state therein (in the case of a prospectus or preliminary
prospectus, in light of the circumstances under which they were made) a material
fact required to be stated therein or necessary to make the statements therein
(in the case of a prospectus or preliminary prospectus, in light of the
circumstances under which they were made) not misleading and the Company will
reimburse such Indemnified Party for any legal or other expenses reasonably
incurred by it in connection with investigating or defending any such Loss;
provided, that the Company will not be liable to any Indemnified Party in any
such case to the extent that any such Loss arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement, in any such preliminary, final or summary
prospectus, or any amendment or supplement thereto in reliance upon and in
conformity with written information with respect to such Indemnified Party
furnished to the Company by such Indemnified Party for use in the preparation
thereof; and provided, further, that the Company will not be liable to any
Person who participates as an underwriter in the offering or sale of
Registerable Securities or any other Person, if any, who controls such
underwriter within the meaning of the Securities Act, under the indemnity
agreement in this Section 8.4(a) with respect to any preliminary prospectus or
the final prospectus or the final prospectus as amended or supplemented, as the
case may be, to the extent that any such loss, claim, damage or liability of
such underwriter or controlling Person results from the fact that such
underwriter sold Registerable Securities to a person to whom there was not sent
or given, at or prior to the written confirmation of such sale, a copy of the
final prospectus or of the final prospectus as then amended or supplemented,
whichever is most recent, if the Company has previously furnished copies thereof
to such underwriter. Such indemnity will remain in full force and effect
regardless of any investigation made by or on behalf of such holder or any
Indemnified Party and will survive the transfer of such securities by such
holder.
(b) In the event of registration of any securities of the Company
under the Securities Act pursuant to Sections 8.1 or 8.2 hereof, the Company may
require that each selling holder of Registerable Securities agree (severally and
not jointly) to indemnify and hold harmless, to the full extent permitted by
law, the Company, its directors and officers and each Person who controls the
Company (within the meaning of the Securities Act and the Exchange Act) from and
28
against any Losses resulting from any untrue statement of a material fact or any
omission of a material fact required to be stated in the registration statement
under which such Registerable Securities were registered under the Securities
Act (including any final, preliminary or summary prospectus contained therein or
any amendment thereof or supplement thereto or any documents incorporated by
reference therein), or necessary to make the statements therein (in the case of
a prospectus or preliminary prospectus, in light of the circumstances under
which they were made) not misleading, to the extent, but only to the extent,
that such untrue statement or omission is contained in any information furnished
in writing by such selling holder to the Company specifically for inclusion in
such registration statement and has not been corrected in a subsequent writing
prior to or concurrently with the sale of the Registerable Securities to the
Person asserting such Loss. In no event shall the liability of any selling
holder of Registerable Securities hereunder be greater in amount than the dollar
amount of the proceeds received by such holder under the sale of the
Registerable Securities giving rise to such indemnification obligation. Such
indemnity will remain in full force and effect regardless of any investigation
made by or on behalf of the Company or any of the holders, or any of their
respective affiliates, directors, officers or controlling Persons and will
survive the transfer of such securities by such holder.
(c) Promptly after receipt by an indemnified party hereunder of
written notice of the commencement of any action or proceeding with respect to
which a claim for indemnification may be made pursuant to this Section 8.4, such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of
such action; provided, that the failure of the indemnified party to give notice
as provided herein will not relieve the indemnifying party of its obligations
under Sections 8.4(a) or 8.4(b), except to the extent that the indemnifying
party is actually prejudiced by such failure to give notice. Notwithstanding
anything to the contrary stated herein, upon commencement of any such action in
which either or both of Accenture or Microsoft is an indemnified party pursuant
to this Section 8.4, each of Accenture and/or Microsoft, as the case may be,
shall be entitled to its own counsel with respect to such claim and the Company
shall be liable for the reasonable fees and expenses of such counsel and all
other costs incurred by or on behalf of Accenture and/or Microsoft with respect
to such claim. In all other cases in which such an action is brought against an
indemnified party, unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties may exist
in respect of such claim, the indemnifying party will be entitled to participate
in and to assume the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified party for
any legal or other expenses subsequently incurred by the latter in connection
with the defense thereof other than reasonable costs of investigation. If, in
such indemnified party's reasonable judgment, (i) having common counsel would
result in a conflict of interest between the interests of such indemnified and
indemnifying parties, (ii) the indemnifying party shall have failed to assume
the defense of such claim within a reasonable time after receipt of notice of
such claim from the indemnified party, or (iii) the indemnified party has
reasonably concluded (based on advice of counsel) that there may be legal
defenses available to it or other indemnified parties that are different from or
in addition to those available to the indemnifying party, then such indemnified
party may employ separate counsel reasonably acceptable to the indemnifying
party to represent or defend such indemnified party in such action,
29
it being understood, however, that the indemnifying party will not be liable for
the reasonable fees and expenses of more than one separate firm of attorneys at
any time for all such indemnified parties (and not more than one separate firm
of local counsel at any time for all such indemnified parties) in such action.
No indemnifying party will consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified party of a release from all
liability in respect of such claim or litigation.
(d) Indemnification similar to that specified in this Section 8.4
(with appropriate modifications) will be given by the Company and each holder of
Registerable Securities with respect to any required registration or other
qualification of securities under any federal or state law or regulation or
governmental authority other than the Securities Act.
(e) The indemnification required by this Section 8.4 shall be made
by periodic payments of the amount thereof during the course of the
investigation or defense, promptly as and when bills are received or Losses are
incurred.
(f) If recovery is not available under the foregoing indemnification
provisions of this Section 8.4 for any reason other than as expressly specified
therein, the parties entitled to indemnification by the terms thereof will be
entitled to contribution to liabilities and expenses from the indemnifying
parties. In determining the amount of contribution to which the respective
parties are entitled, there will be considered the relative benefits received by
each party from the offering of the Registerable Securities (taking into account
the portion of the proceeds realized by each), the parties' relative knowledge
and access to information concerning the matter with respect to which the claim
was asserted, the opportunity to correct and prevent any misstatement or
omission and any other equitable considerations appropriate under the
circumstances. Notwithstanding anything in this Section 8.4(f) to the contrary,
no indemnifying party (other than the Company) shall be required pursuant to
this Section 8.4(f) to contribute any amount in excess of the amount by which
the net proceeds received by such indemnifying party from the sale of
Registerable Securities in the offering to which the Losses of the indemnified
parties relate exceeds the amount of any damages which such indemnifying party
has otherwise been required to pay by reason of such untrue statement or
omission. The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8.4(f) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations previously referred.
(g) The obligations of the parties under this Section 8.4 will be in
addition to any liability which any party may otherwise have to any other party.
8.5 Rule 144. If the Company shall have filed a registration statement
pursuant to the requirements of Section 12 of the Exchange Act or a registration
statement pursuant to the requirements of the Securities Act, the Company shall
file the reports required to be filed by it under the Securities Act and the
Exchange Act and the rules and regulations adopted by the SEC thereunder (or, if
the Company is not required to file such reports, it will, upon the request of
any holder of Registerable Securities, make publicly available such
information), and it will take such further action as any holder of Registerable
Securities may reasonably request, all to the extent required from time to time
to enable such holder to sell Registerable Securities without registration
30
under the Securities Act within the limitation of the exemptions provided by (i)
Rule 144 under the Securities Act, as such Rule may be amended from time to
time, or (ii) any similar rule or regulation hereafter adopted by the SEC. Upon
the request of any holder of Registerable Securities, the Company will deliver
to such holder a written statement as to whether it has complied with such
requirements. Notwithstanding anything contained in this Section 8.5, the
Company may deregister under Section 12 of the Exchange Act if it then is
permitted to do so pursuant to the Exchange Act and the rules and regulations
thereunder.
8.6 Holdback Agreement. If any such registration shall be in connection
with an underwritten Public Offering, each holder of Registerable Securities
agrees not to effect any public sale or distribution, including any sale
pursuant to Rule 144 under the Securities Act, of any Common Stock, or of any
security convertible into or exchangeable or exercisable for any equity security
of the Company (in each case, other than as part of such underwritten public
offering), for 90 days after the effective date of such registration, and for
180 days after the effective date of the Initial Public Offering, or such
shorter periods as the managing underwriters may permit.
SECTION 9
PERSONNEL
9.1 Determination of Personnel Requirements and Recruiting. (a) The
Company staffing will be based on skill sets needed by the Company, and will be
obtained by transitions of personnel from Accenture and Microsoft as provided in
Section 9.2 below, by subcontracting personnel from both Accenture as provided
in the Accenture Master Employee Services Agreement and Microsoft as provided in
the Microsoft Master Employee Services Agreement, and by hiring of personnel
directly by the Company.
(b) Accenture has provided and may provide recruiting services to
the Company as provided in the Accenture Services Agreement until the Company
has developed the capability to perform such services on its own behalf.
(c) Employee compensation packages of the Company will be structured
to be competitive and will include an equity component. Compensation from the
Company for its employees will not differentiate between employees originating
from Accenture and those originating from Microsoft.
(d) It is the intention of Accenture, Microsoft and the Company that
subcontracted employees will be kept to a minimum and such parties will agree on
incentives to discourage subcontracting.
9.2 Personnel Transitioned from Stockholders. (a) Accenture will use
commercially reasonable efforts to make available for employment by the Company
twelve hundred (1200) employees during the three (3) year period following the
Initial Closing Date, all per a schedule established by the Parties (the
"Accenture Transitioned Personnel").
(b) Microsoft will use commercially reasonable efforts to make
available for employment by the Company twenty-five (25) employees during the
first year following the Initial
31
Closing Date, all per a schedule established by the Parties (the "Microsoft
Transitioned Personnel" and collectively with the Accenture Transitioned
Personnel, the "Transitioned Personnel").
(c) The Transitioned Personnel will be employees of Accenture and
Microsoft who have previously demonstrated high quality performance in their
employment with Accenture or Microsoft, as the case may be, and must be
acceptable to the Company. The Company will have the ultimate authority to
determine whether the Transitioned Personnel are performing satisfactorily and
will have the right to accept or reject any Transitioned Personnel and will have
no obligation to initially accept or to subsequently retain any individual as an
employee. The Company will be responsible for the costs of all training of the
Transitioned Personnel for their employment by the Company incurred after the
date of such transition.
9.3 Non-solicitation. (a) Each of Accenture and the Company agrees that
the solicitation of employees of the Company for employment by Accenture or its
Affiliates, or the solicitation of employees of Accenture or its Affiliates for
employment by Company, each a "Solicitation", would have an adverse impact on
the party whose employees were subject to such Solicitation (the "Solicited
Party"). Each of Accenture and the Company agrees that it will, and it will
cause its Affiliates to, take all commercially reasonable steps to prevent its
employees from making such Solicitations (unless such solicitations receive
prior written approval from the Solicited Party, which approval must come from
the Chief Executive Officer in the case of the Company); to use commercially
reasonably efforts to cause itself and its Affiliates to enforce such
prohibition; and, to the extent that it becomes aware of any such unapproved
Solicitation occurring within itself or any of its Affiliates, to take
commercially reasonable action to cause such Solicitation to immediately cease.
The prohibitions on the Solicitation contained in this Section 9.3(a) will apply
with respect to all employees of Accenture, the Company, and their Affiliates.
The obligations of Accenture and the Company, respectively, under this Section
9.3 (including, without limitation, Section 9.3(c)) will terminate when
Accenture and its Permitted Transferees collectively own securities of the
Company representing an aggregate of less than fifteen percent (15%) of the
votes entitled to be cast in the election of directors of the Company.
(b) Each of Microsoft and the Company or its Affiliates agrees that
the Solicitation of employees of the Company for employment by Microsoft, or the
Solicitation of employees of Microsoft for employment by Company or its
Affiliates, would have an adverse impact on the Solicited Party. Each of
Microsoft and the Company agrees that it will, and it will cause its Affiliates
to, take all commercially reasonable steps to prevent its employees from making
such Solicitations (unless such solicitations receive prior written approval
from the Solicited Party, which approval must come from the Chief Executive
Officer in the case of the Company and the Microsoft Director: Accenture/Avanade
Alliance in the case of Microsoft); to use commercially reasonably efforts to
cause itself and its Affiliates to enforce such prohibition; and, to the extent
that it becomes aware of any such unapproved Solicitation occurring within
itself or any of its Affiliates, to take commercially reasonable action to cause
such Solicitation to immediately cease. The prohibition on the Solicitation
contained in this Section 9.3(b) will apply with respect to all employees of
Microsoft, the Company and their respective Affiliates. The obligations of
Microsoft and the Company under this Section 9.3 (including, without limitation,
Section 9.3(c)) will terminate when Microsoft and its Permitted Transferees
collectively own
32
securities of the Company representing an aggregate of less than fifteen percent
(15%) of the votes entitled to be cast in the election of directors of the
Company.
(c) Nothing in this Agreement shall prohibit Microsoft, Accenture or
the Company from soliciting employees of the other through general advertising
or comparable forms of general solicitation not specifically targeted at such
employees.
9.4 Errors and Omissions Insurance. The Company shall purchase and
maintain at the Company's expense officers and directors insurance on behalf of
each of the directors and officers of the Company with such terms and coverage
as shall be determined by the Board.
SECTION 10
COVENANTS
10.1 Filings. As promptly as practicable after the date of this Agreement,
each of the parties hereto shall make or cause to be made all filings and
submissions under applicable laws and regulations, if any, as may be required
for the consummation of the transactions contemplated by this Agreement and the
Related Agreements. Each of the parties hereto and their respective Affiliates
shall coordinate and cooperate in exchanging such information and providing such
reasonable assistance as may be requested by either of them in connection with
the filings and submissions contemplated by this Section 10.1.
10.2 Agreement to Cooperate; Further Assurances. In case at any time after
the Amendment Effective Date any further action is necessary or desirable to
make any of the Initial Contributions (including obtaining any third party
consents) or otherwise to carry out the purposes of this Agreement, the proper
officers and directors of the Parties hereto and their respective Affiliates
shall execute such further documents (including assignments, acknowledgments and
consents and other instruments of transfer) and shall take such further action
as shall be necessary or desirable to effect such transfer and to otherwise
carry out the purposes of this Agreement, in each case to the extent not
inconsistent with applicable law.
10.3 Public Statements. Before any party or any Affiliate of such party
shall release any information concerning this Agreement or the matters
contemplated hereby which is intended for or may result in public dissemination
thereof, they shall cooperate with the other parties, shall furnish drafts of
all documents or proposed oral statements to the other parties, provide the
other parties the opportunity to review and comment upon any such documents or
statements and shall not release or permit release of any such information
without the consent of the other parties, except to the extent required by
applicable law or the rules of any securities exchange or automated quotation
system on which its securities or those of any of its Affiliates are traded.
10.4 Initial Public Offering. Prior to the closing of any Initial Public
Offering the parties hereto will take all necessary action to cause the
Certificate of Incorporation to be amended to provide for two classes of Common
Stock, Class A Common Stock ("Class A Common Stock") and Class B Common Stock
("Class B Common Stock"), having the terms set forth in Exhibit 10.4. Any
conversion of Series A Preferred Stock in connection with an Initial Public
Offering will be into Class B Common Stock. At the time of the creation of the
Class A Common Stock all
33
outstanding Common Stock will be converted into Class A Common Stock and all
outstanding options, warrants or other rights to acquire Common Stock will
become options, warrants or other rights to acquire Class A Common Stock. For as
long as the Accenture Parties and Microsoft own shares of Class B Common Stock
the Company will not issue any shares of Class B Common Stock to any Person
other than an Accenture Party or Microsoft.
10.5 Reservation of Common Stock; Stock Exchange Listing. (a) The Company
will at all times reserve and keep available for issuance from its authorized
but unissued shares a number of shares of Common Stock equal to the minimum
number of shares of Common Stock issuable upon conversion of the outstanding
Series A Preferred Stock.
(b) In the event that any shares of Class B Common Stock are
outstanding, the Company will at all times reserve and keep available for
issuance from its authorized but unissued shares a number of shares of Class A
Common Stock equal to the maximum number of shares of Class A Common Stock
issuable upon conversion of all outstanding shares of Class B Common Stock.
(c) After the consummation of an Initial Public Offering, the
Company will use its best efforts to list on each securities exchange or inter
dealer quotation system on which the shares of Class A Common Stock are listed
the shares of Class A Common Stock issuable upon conversion of the outstanding
shares of Class B Common Stock (to the extent such listing is permitted by the
rules of such securities exchange or inter dealer quotation system).
SECTION 11
CERTAIN RIGHTS TO PURCHASE OR SELL STOCK
11.1 Microsoft Put Right. (a)(i) At any time after a Triggering Event
occurring after December 31, 2003 as provided in Section 11.3(d) hereof or (ii
immediately prior to an Avanade Change of Control or (iii) within ninety (90)
days after an Accenture Change of Control, if earlier, Microsoft shall have the
right (the "Put Right") to cause Accenture Sarl to purchase all, but not less
than all, of the Stock held by Microsoft and its Permitted Transferees. Avanade
will notify Microsoft not less than ten (10) days prior to an Avanade Change of
Control, and Accenture will notify Microsoft promptly (and in any event not more
than ten (10) days) after an Accenture Change of Control. If Microsoft wishes to
exercise the Put Right, Microsoft shall provide written notice to Accenture
Sarl. The purchase price for the Stock held by Microsoft and its Permitted
Transferees shall equal the Put/Call Price of such Stock as of the date of
Microsoft's notice of exercise of the Put Right, payable as set forth in Section
11.1(b). The purchase price shall be payable in cash unless otherwise mutually
agreed by Accenture Sarl and Microsoft. The Put Right shall terminate upon an
Initial Public Offering.
(b) The closing with respect to any exercise of the Put Right shall
take place at the principal office of Avanade within thirty days after final
determination of the Put/Call Price, provided that all orders, consents and
approvals of Governmental Authorities legally required for the closing of such
sale shall have been obtained and be in effect. At such closing, Accenture Sarl
shall deliver cash or a certified check or checks in the appropriate amount
against the delivery of the certificate or certificates representing the Stock
so purchased validly assigned. The Stock shall
34
be delivered to Accenture Sarl free and clear of all liens and encumbrances of
any nature whatsoever. Accenture Sarl agrees to maintain at all times during the
term of this Agreement adequate assets to satisfy its obligations under this
Section 11.1
11.2 Accenture Call Right. (a) At any time after a Triggering Event as
provided in Section 11.3(d) hereof, Accenture Sarl shall have the right (the
"Call Right") to purchase all, but not less than all, of the Stock held by
Microsoft and its Permitted Transferees. If Accenture Sarl wishes to exercise
the Call Right, Accenture Sarl shall provide prior written notice to Microsoft.
The purchase price for the Stock shall be the Put/Call Price of such Stock as of
the date of Accenture Sarl's notice of exercise of the Call Right, payable as
set forth in Section 11.2(b). The purchase price shall be payable in cash unless
otherwise mutually agreed by Accenture Sarl and Microsoft. The Call Right shall
terminate upon an Initial Public Offering.
(b) The closing with respect to any exercise of the Call Right shall
take place at the principal office of Avanade within thirty days after final
determination of the Put/Call Price, provided that all orders, consents and
approvals of Governmental Authorities legally required for the closing of such
sale shall have been obtained and be in effect. At such closing, Accenture Sarl
shall deliver cash or a certified check or checks in the appropriate amount
against the delivery of the certificate or certificates representing the Stock
so purchased validly assigned. The Stock shall be delivered to Accenture Sarl
free and clear of all liens and encumbrances of any nature whatsoever. Accenture
Sarl shall have the right to assign its rights under this Section 11.2 to any
Accenture Party.
11.3 Rights After Triggering Events. (a) Definition of Triggering Events.
Each of the following events set forth in clauses (i) through (iii) below will
constitute a "Triggering Event" after December 31, 2003, for purposes of Section
11.3.
(i) Microsoft, Accenture Ltd or any of their respective Subsidiaries
(the "At-Fault Party") forms a Competing Alliance with IBM Corporation;
provided that notwithstanding the foregoing, Microsoft shall not be
restricted in any way from formalizing arrangements associated with
collaborative research, development, marketing and sale of enabling
technology, Microsoft Enterprise Solutions Platform software and computer
hardware products other than Competing Services or Competing Business
Solutions;
(ii) The At-Fault Party directly or indirectly makes a Material
Investment in a Principal Competitor of Microsoft (if the At-Fault Party
is Accenture Ltd) or Accenture (if the At-Fault Party is Microsoft); or a
Principal Competitor of Microsoft (if the At-Fault Party is Accenture Ltd)
or Accenture (if the At-Fault Party is Microsoft) directly or indirectly
acquires outstanding equity of the At-Fault Party that represents (x) more
than twenty percent (20%) of the votes entitled to be cast by the holders
of all outstanding equity of the At-Fault Party or (y) more than twenty
percent (20%) of the value of all outstanding equity of the At-Fault
Party; provided that notwithstanding the foregoing, both Microsoft and
Accenture shall have the right to make a Material Investment in an
application services provider or hosting provider; or
35
(iii) The At-Fault Party forms, creates or otherwise makes a direct
or indirect investment (in one or a series of transactions) in any Avanade
Competitor of comparable (or greater) size to Avanade (measured on the
basis of both number of personnel and locations), provided that
notwithstanding the foregoing, both Microsoft and Accenture Ltd or their
Subsidiaries may make a Permitted Avanade Competitor Investment.
(b) Requirement to Negotiate. In the event any Triggering Event has
occurred, Microsoft and Accenture agree to negotiate in good faith to determine
whether there is any action that could be taken to resolve the Triggering Event
which would be satisfactory to both Microsoft and Accenture. In the event
Microsoft and Accenture can agree upon any such resolution within fourteen (14)
days, Microsoft and Accenture will implement such resolution and in the event
such agreed-upon resolution is performed within the time agreed upon by the
Parties, and such occurrence will no longer be considered a Triggering Event for
purposes of this Section 11.3. In the event Microsoft and Accenture cannot agree
upon a resolution within fourteen (14) days of commencing the negotiations or
the agreed-upon resolution is not performed in the agreed-upon time, the
provisions of Section 11.3(c) shall apply.
(c) Escalation Requirements. Each Triggering Event that has not been
resolved by Microsoft and Accenture within fourteen (14) days of commencing the
negotiations provided for in Section 11.3(b) above shall be submitted on the
next Business Day for resolution to the Alliance Management Committee. The
Alliance Management Committee will negotiate in good faith to resolve such
Triggering Event within fourteen (14) days after its submission. In the event
the Alliance Management Committee can agree upon any such resolution within
fourteen (14) days, Microsoft and Accenture will implement such resolution and
in the event such agreed-upon resolution is performed within the time agreed
upon by Microsoft and Accenture, and such occurrence will no longer be
considered a Triggering Event for purposes of this Section 11.3. If the Alliance
Management Committee is unable to resolve such Triggering Event to the
satisfaction of each of Microsoft and Accenture within such fourteen (14) day
period, the Triggering Event shall be submitted to the respective chief
executive officers of each of Microsoft and Accenture on the Business Day
immediately following the end of such fourteen (14) day period. After such
Triggering Event has been submitted to the chief executive officers of Microsoft
and Accenture, such chief executive officers shall negotiate in good faith to
resolve such Triggering Event in at least one face-to-face meeting to be held
within thirty (30) days of such matter's being submitted to them. If the chief
executive officers of Microsoft and Accenture resolve the Triggering Event, then
Microsoft and Accenture will implement such resolution and in the event such
agreed-upon resolution is performed within the time agreed upon by Microsoft and
Accenture, and such occurrence will no longer be considered a Triggering Event
for purposes of this Section 11.3. If the chief executive officers of Microsoft
and Accenture are unable to resolve such Triggering Event within thirty (30)
days of its submission to them, Microsoft (if Accenture was the At-Fault Party)
or Accenture (if Microsoft was the At-Fault Party) shall have the right (but not
the obligation) to require application of the provisions of Section 11.3(d)
below.
(d) Unresolved Triggering Events. In the event a Triggering Event
occurs and no resolution is reached by Microsoft and Accenture with respect to
such Triggering Event pursuant to Sections 11.3(b) and (c) above, (i) if the
At-Fault-Party is Microsoft or a Subsidiary thereof, Accenture Sarl will have
the right at its option to purchase all Stock held by Microsoft for
36
a purchase price equal to the Put/Call Price and (ii) if the At-Fault-Party is
Accenture or a Subsidiary thereof, Microsoft will have the right at its option
to sell to Accenture Sarl all Stock held by Microsoft for a purchase price equal
to the Put/Call Price. The rights described in this Section 11.3(e) can only be
exercised in writing within thirty (30) days after the expiration of the
escalation process set forth in Section 11.3(c) above, and the closing of a
purchase or sale of Microsoft's Stock under this Section 11.3(d) shall occur
ninety (90) days after such election. Accenture Sarl shall have the right to
assign its rights under this Section 11.3 to any Accenture Party. Accenture Sarl
agrees to maintain at all times during the term of this Agreement adequate
assets to satisfy its obligations under this Section 11.3
(f) The remedy procedures set forth in this Section 11.3 shall be
the sole remedies under the Agreement with respect to the matters addressed in
this Section 11.3.
11.4 Tag-Along Rights. If at any time that is both (x) prior to an Initial
Public Offering and (y) after December 31, 2004, any of Accenture, Accenture Ltd
or Accenture Sarl and/or any of their respective Permitted Transferees (the
"Accenture Sellers") propose to effect a Transfer to any person or entity other
than a Permitted Transferee, Accenture shall provide written notice (the
"Tag-Along Notice") to Microsoft at least ten (10) calendar days prior to any
such Transfer, such Tag-Along Notice to describe the proposed Transfer in
reasonable detail, including the amount of stock to be transferred, the nature
and terms of the transfer, the transfer price and consideration to be paid, and
the name and address of each prospective purchaser. Microsoft shall have the
right, exercisable upon written notice to Accenture within ten (10) calendar
days after receipt of the Tag-Along Notice, to participate in such sale on the
same terms and conditions specified in the Tag-Along Notice by selling that
portion of the Stock held by Microsoft equal to the product of (i) the total
shares of Stock to be sold by the Accenture Sellers and (ii) a fraction, the
numerator of which is the number of shares of Stock owned by Microsoft
(including Series A Preferred Stock on an as-converted basis) as of the date of
the Tag-Along Notice and the denominator of which is the total number of shares
of Stock (including Series A Preferred Stock on an as-converted basis)
outstanding as of the date of the Tag-Along Notice; provided that in order to be
entitled to exercise this right Microsoft must agree to make substantially the
same representations, warranties, covenants, indemnities and other similar
agreements as the Accenture Seller agree to make to the purchaser in connection
with such proposed transfer. Microsoft shall effect its participation in a sale
by delivering for Transfer to the prospective purchaser pursuant to the terms
and conditions specified in the Tag-Along Notice one or more certificates,
properly endorsed for transfer, which represent the type and number of shares of
Stock that Microsoft elects to sell pursuant to this Section 11.4, and the
purchaser shall concurrently therewith remit to Microsoft that portion of the
sale proceeds to which Microsoft is entitled by reason of its participation in
such sale. The legal, investment banking and other out-of-pocket expenses of the
Accenture Sellers incurred by the Accenture Sellers in connection with the
negotiation, execution and consummation of such transaction shall be borne
entirely by the Accenture Sellers. To the extent that any prospective purchaser
refuses to purchase Stock from Microsoft in an exercise of its tag-along rights
hereunder, the Accenture Sellers shall not sell to such prospective purchaser
any shares of Stock unless and until, simultaneously with such sale, the
Accenture Sellers shall purchase such shares from Microsoft.
37
SECTION 12
TERMINATION
12.1 Termination of Certain Provisions Following an Initial Public
Offering. (a) Effective upon the closing of an Initial Public Offering the
following provisions of this Agreement will terminate and, subject to Section
12.1(c) below, have no further force or effect: Sections 2.4(b), 2.5, 5.2(a),
5.1, 5.3, 5.4, 5.5, 5.8, 5.9, 6.1(a), 6.4, 9.1, 9.2 and 9.4.
(b) Effective upon the three year anniversary of the closing of an
Initial Public Offering, the following provisions of this Agreement will
terminate and, subject to Section 12.1(c) below, have no further force or
effect: Section 5.2(b), 5.6 and 5.7.
(c) The termination of any provision of this Agreement pursuant to
this Section 12.1 will not relieve any party for any liability arising from a
breach of such provision prior to its termination.
SECTION 13
OTHER
13.1 Additional Securities Subject to Agreement. Each Stockholder agrees
that any other shares of Stock, and any options, warrants or other rights to
obtain Stock or other securities convertible into Stock, which it hereafter
acquires by means of a stock split, stock dividend, distribution, exercise of
options or warrants or otherwise will be subject to the provisions of this
Agreement to the same extent as if held on the date hereof.
13.2 Termination. This Agreement will terminate upon the written agreement
of all of the parties hereto, and otherwise will terminate with respect to a
particular Stockholder (except as provided in the following proviso) on the date
that such Stockholder no longer owns any shares of Stock, options, warrants or
other rights to obtain Stock or other securities convertible into Stock. This
Agreement will also terminate with respect to Microsoft in the event Microsoft
exercises the Put Right or Accenture or its Affiliate exercises the Call Right.
13.3 Injunctive Relief. Each Stockholder and the Company acknowledges and
agrees that a violation of any of the terms of this Agreement will cause the
other parties hereto irreparable injury for which adequate remedy at law is not
available. Accordingly, it is agreed that each of the parties hereto will be
entitled to an injunction, restraining order or other equitable relief to
prevent breaches of the provisions of this Agreement and to enforce specifically
the terms and provisions hereof in any court of competent jurisdiction, in
addition to any other remedy to which they may be entitled at law or equity.
13.4 Obligations of the Company. The Company shall be the sole party
liable for its obligations hereunder and under the other Related Agreement and
none of the Stockholders will have any liability to the Company or any other
Stockholder with respect to such liabilities of the Company.
38
13.5 Amendments. This Agreement may be amended only by a written
instrument executed by each of the Parties hereto. Any amendment effected in
accordance with the immediately preceding sentence will be binding on all of the
parties to this Agreement.
13.6 Successors, Assigns and Transferees. The provisions of this Agreement
will be binding upon and will inure to the benefit of the parties hereto and
their respective successors and Permitted Transferees, each of which will agree
in a writing reasonably satisfactory in form and substance to the Company to
become a party hereto and be bound to the same extent hereby as the transferor
that has transferred the Stock; provided, that if a Stockholder transfers a
portion of its or his Stock, options, warrants or other rights to obtain Stock,
other securities convertible into Stock to a Permitted Transferee which is
entitled to rights of the transferor hereunder, then such transferee(s) of such
transferor will exercise such rights as a single group with that transferor and
its Affiliates (and such rights will be exercised by the holders of a majority
of the Stock held by such group (determined on an as-converted-to Common Stock
basis)).
13.7 Notices. Any notices or other communications required or permitted
hereunder will be sufficiently given if delivered personally or sent by
telecopier, Federal Express or other overnight courier, addressed as follows or
to such other address of which the parties may have given notice:
To Accenture, Accenture Ltd or Accenture Sarl:
c/o Accenture LLP
5215 North O'Connor Blvd.
Suite 2100
Irving Texas, 75039
Attention: Clifford Jury
Telecopy: Number Redacted
Telephone: Number Redacted
With copies to:
c/o Accenture LLP
1661 Page Mill Road
Palo Alto, CA 94304
Attention: General Counsel
Telecopy: Number Redacted
Telephone: Number Redacted
c/o Accenture LLP
1661 Page Mill Road
Palo Alto, CA 94304
Attention: Chief Financial Officer
Telecopy: Number Redacted
Telephone: Number Redacted
39
To Microsoft:
Microsoft Corporation
One Microsoft Way
Redmond, Washington 98052
Attention: Chief Financial Officer
Telecopy: Number Redacted
Telephone: Number Redacted
With copies to:
Microsoft Corporation
One Microsoft Way
Redmond, Washington 98052
Attention: Deputy General Counsel, Finance and Operations
Telecopy: Number Redacted
Telephone: Number Redacted
With an additional copy to:
Preston Gates & Ellis LLP
701 Fifth Avenue, Suite 5000
Seattle, Washington 98104-7078
Attention: Christopher H. Cunningham
Telecopy: Number Redacted
Telephone: Number Redacted
To the Company:
Avanade Inc.
2211 Elliott Ave., Suite 200
Seattle, Washington 98121
Attention: Mitchell Hill
Telecopy: Number Redacted
Telephone: Number Redacted
E-mail: E-mail Redacted
With a copy to:
Avanade Inc.
2211 Elliott Ave., Suite 200
Seattle, Washington 98121
Attention: General Counsel
Telecopy: Number Redacted
Telephone: (206) 239-5600
40
With an additional copy to
Perkins Coie LLP
1201 Third Avenue, Suite 4800
Seattle, WA 98101
Attention: Ben Straughan
Telecopy: Number Redacted
Telephone: Number Redacted
Unless otherwise specified herein, such notices or other communications will be
deemed received (i) on the date delivered, if delivered personally or sent by
telecopier, and (ii) one business day after being sent by Federal Express or
other overnight courier.
13.8 Integration. This Agreement, the Related Agreements and the documents
referred to herein or therein, or delivered pursuant hereto or thereto, contain
the entire understanding of the parties with respect to the subject matter
hereof and thereof. There are no agreements, representations, warranties,
covenants or undertakings with respect to the subject matter hereof and thereof
other than those expressly set forth herein and therein. This Agreement
supersedes all other prior agreements and understandings between the parties
with respect to such subject matter.
13.9 Severability. If one or more of the provisions, paragraphs, words,
clauses, phrases or sentences contained herein, or the application thereof in
any circumstances, is held invalid, illegal or unenforceable in any respect for
any reason, the validity, legality and enforceability of any such provision,
paragraph, word, clause, phrase or sentence in every other respect and of the
remaining provisions, paragraphs, words, clauses, phrases or sentences hereof
will not be in any way impaired, it being intended that all rights, powers and
privileges of the parties hereto will be enforceable to the fullest extent
permitted by law.
13.10 Counterparts. This Agreement may be executed in two or more
counterparts, and by different parties on separate counterparts each of which
will be deemed an original, but all of which will constitute one and the same
instrument.
13.11 Governing Law. This Agreement will be construed in accordance with,
and the rights of the parties will be governed by, the laws of the State of
Delaware.
13.12 Arbitration. (a) In the event a dispute occurs with respect to (i)
the terms and conditions to be included in the form of any Related Agreement not
set forth in its entirety as an exhibit to this Agreement or another Related
Agreement executed on or prior to the date hereof or (ii) any claim, dispute or
other matter arising out of or relating to this Agreement, the parties hereto
will promptly attempt to settle such dispute through consultation and
negotiation in good faith and in a spirit of mutual cooperation. If agreement is
reached concerning the resolution of such dispute, then such agreement shall be
final, conclusive and binding on the parties hereto. If, on or before the tenth
day after written notice of such dispute is given by one party to the other
parties, such dispute has not been resolved by the agreement of all the parties,
such dispute shall be settled by an expedited arbitration proceeding conducted
in accordance with the then-current CPR Non-Administered Arbitration Rules and
the Federal Rules of Evidence in New York, New York by a panel of three
arbitrators who satisfy the requirements of Section 13.12(b). Each of Microsoft
41
and Accenture shall select an arbitrator, and those two arbitrators shall select
a third arbitrator who also satisfies the requirements of Section 13.12(b). The
parties hereto shall provide such arbitrators with such information as may be
reasonably requested in connection with the arbitration of such dispute and
shall otherwise cooperate with each other and such arbitrators in good faith and
with the goal of resolving such dispute as promptly as reasonably practicable.
The arbitrators' decision and award with respect to the dispute referred to
shall be final and binding on the parties hereto and may be entered in any court
with jurisdiction, and the parties hereto shall abide by such decision and
award. The cost of the arbitration proceeding and any proceeding in court to
confirm or to vacate any arbitration award, as applicable (including, without
limitation, attorneys' fees and costs), shall be borne by the unsuccessful party
(if any) and shall be awarded as part of the arbitrators' award; provided
however, that if the arbitrators do not find one party to be unsuccessful then
the cost of the arbitral proceeding shall be paid equally by the parties hereto.
(b) Each arbitrator appointed pursuant to Section 13.12(a) shall be
an attorney who practices law, who has substantial experience in negotiating and
drafting agreements of a type similar to this Agreement or any Related
Agreements that is the subject of the dispute, as applicable, and who has not,
and who is not a member or employee of any firm which has, rendered legal
services to any of the parties to the dispute or any of their Affiliates within
the preceding five years and who has no interest (other than the receipt of
customary fees for services as an arbitrator) in the matter in dispute.
13.13 Expenses. Except as set forth in this Agreement, whether or not the
transactions contemplated by this Agreement are consummated, all legal and other
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
costs.
13.14 Specific Performance. Each of the parties acknowledges that the
rights of the parties to make and receive certain contributions contemplated
hereby on the dates set forth herein are unique and recognizes and affirms that
in the event of a breach of Accenture's obligations under Section 2.1 or
Microsoft's obligations under Section 2.2, money damages may be inadequate and
the non-breaching party may have no adequate remedy at law. According, the
parties agree that such non-breaching party shall have the right in addition to
any other rights and remedies existing in the favor at law or in equity, to
enforce their rights and Accenture's and Microsoft's obligations arising under
Sections 2.1 and 2.2 hereof, respectively, not only by an action or actions for
damages but also by an action or actions for specific performance, injunctive
and/or other equitable relief (without posting of bond or other security).
13.15 Miscellaneous. The parties hereto will sign such further documents,
cause such meetings to be held, resolutions passed and bylaws enacted, exercise
their votes and do and perform and cause to be done such further acts and things
as may be necessary or desirable in order to give full effect to this Agreement
and every part thereof.
42
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement or
caused this Agreement to be executed on its behalf as of the date first written
above.
AVANADE INC.
By: _________________________________
Name:
Title:
ACCENTURE LLP
By: _________________________________
Name:
Title:
ACCENTURE LTD
By: _________________________________
Name:
Title:
ACCENTURE INTERNATIONAL SARL
By: _________________________________
Name:
Title:
MICROSOFT CORPORATION
By: _________________________________
Name:
Title:
43
EXHIBIT 10.4
TERMS OF CLASS A COMMON STOCK AND CLASS B COMMON STOCK
C. Common Stock. The common stock that the Corporation shall have
the authority to issue shall be comprise of o shares designated as Class A
Common Stock, par value $.0001 per share (the "CLASS A COMMON STOCK"), and o
shares designated as Class B Common Stock, par value $.0001 each (the "CLASS B
COMMON STOCK", and together with the Class A Common Stock, the "COMMON STOCK").
1. Class A Common Stock. (a) The holders of shares of Class A
Common Stock shall be entitled to receive dividends, when, as and if
declared by the Board of Directors of the Corporation out of funds legally
available for such purpose, payable on the same date fixed for the payment
of the corresponding dividend on the Class B Common Stock (other than a
dividend payable in shares of Class B Common Stock or in options, warrants
or other securities exercisable for or convertible into Class B Common
Stock), in an amount per share (rounded to the nearest cent if payable in
cash) equal to the aggregate per share amount of any cash dividend and the
aggregate per share amount (payable in kind) of any non-cash dividend
(other than a dividend payable in shares of Class B Common Stock or in
options, warrants or other securities exercisable for or convertible into
Class B Common Stock) paid on the Class B Common Stock.
(b) In the event this Corporation shall at any time
declare and pay any dividend on the Class B Common Stock payable in
shares of Class B Common Stock or in options, warrants or other
securities exercisable for or convertible into Class B Common Stock
or effect a subdivision or combination or consolidation of the
outstanding shares of Class B Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Class B Common
Stock or in options, warrants or other securities exercisable for or
convertible into Class B Common Stock) into a greater or lesser
number of shares of Class B Common Stock, then in each such case
this Corporation shall, as the case may be, declare and pay an
equivalent dividend per share on the Class A Common Stock payable in
shares of Class A Common Stock or in options, warrants or other
securities exercisable for or convertible into Class A Common Stock
or effect an equivalent subdivision or combination or consolidation
of the outstanding shares of Class A Common Stock (by
reclassification or otherwise than by payment of a dividend in
shares of Class A Common Stock or in options, warrants or other
securities exercisable for or convertible into Class A Common Stock)
into a greater or lesser number of shares of Class A Common Stock.
(c) The Corporation shall declare a dividend on the Class
A Common Stock as provided in subparagraphs (a) and (b) of this
paragraph 1 at the same time that it declares any dividend on the
Class B Common Stock
and shall effect a subdivision or combination or consolidation of
the outstanding shares of Class A Common Stock (by reclassification
or otherwise than by payment of a dividend in shares of Class A
Common Stock or in options, warrants or other securities exercisable
for or convertible into Class A Common Stock) into a greater or
lesser number of shares of Class A Common Stock as provided in
subparagraph (b) of this paragraph 1 at the same time that it
effects any subdivision or combination or consolidation of the
outstanding shares of Class B Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Class B Common
Stock or in options, warrants or other securities exercisable for or
convertible into Class B Common Stock) into a greater or lesser
number of shares of Class B Common Stock.
(d) Except as set forth in subparagraphs (a) through (c)
of this paragraph 1, holders of shares of Class A Common Stock shall
not be entitled to receive, and this Corporation shall not declare
or pay, any dividend or distribution (whether in cash, property or
securities) on the Class A Common Stock.
(e) In the event of a Business Transaction (as defined
below), the holders of the Class A Common Stock shall be entitled to
receive the same consideration per share as the holders of Class B
Common Stock; provided, however, that in the event that all or any
part of such consideration includes voting securities, unless
otherwise agreed by the holders of a majority of the outstanding
Class B Common Stock, the holders of Class B Common Stock shall be
entitled to receive securities that reflect the same ratio of voting
rights in relation to the Class A Common Stock as provided in
paragraphs 1(g) and 2(g) of this Section C of Article FIFTH (i.e.,
three votes by the holders of Class B Common Stock for every one
vote by the holders of Class A Common Stock) if, following the
issuance of such voting stock, the holders of Class B Common Stock
prior to such Business Transaction would hold securities
representing a majority of the voting power of the issuer of such
securities. "BUSINESS TRANSACTION" shall mean any merger,
consolidation or other business combination in which Common Stock is
being exchanged for cash, shares or other consideration.
(f) In the event of any voluntary or involuntary
liquidation, dissolution or winding-up of this Corporation, the
holders of the Class A Common Stock shall be entitled together with
the holders of the Class B Common Stock to receive all the remaining
assets of this Corporation, tangible and intangible, of whatever
kind available for distribution to stockholders, ratably in
proportion to the number of shares of Common Stock held by each such
holder.
(g) Except as may otherwise be required by law or this
Certificate of Incorporation, each holder of Class A Common Stock
shall have one vote in respect of each share of Class A Common Stock
held by
such holder on each matter in respect of which the holders of Common
Stock are entitled to vote, and the holders of the Class A Common
Stock shall vote together with the holders of the Class B Common
Stock as a single class.
(h) So long as any shares of Class A Common Stock are
outstanding, this Corporation shall not, without the written consent
or affirmative vote of the holders of a majority of the shares of
Class A Common Stock at the time outstanding, voting separately as a
class, either in writing or by resolution called for at an annual or
special meeting called for that purpose, amend this Certificate of
Incorporation so as to adversely affect the rights of the holders of
shares of Class A Common Stock, relative to the rights of the
holders of Class B Common Stock.
2. The Class B Common Stock. The holders of shares of Class B Common
Stock shall be entitled to receive dividends, when, as and if declared by
the Board or Directors out of funds legally available for such purpose,
payable on the same date fixed for the payment of the corresponding
dividend on the Class A Common Stock (other than a dividend payable in
shares of Class A Common Stock or in options, warrants or other securities
exercisable for or convertible into Class A Common Stock), in an amount
per share (rounded to the nearest cent if payable in cash) equal to the
aggregate per share amount of any cash dividend and the aggregate per
share amount (payable in kind) of any non-cash dividend (other than a
dividend payable in shares of Class A Common Stock or in options, warrants
or other securities exercisable for or convertible into Class A Common
Stock) paid on the Class A Common Stock.
(b) In the event this Corporation shall at any time
declare and pay any dividend on the Class A Common Stock payable in
shares of Class A Common Stock or in options, warrants or other
securities exercisable for or convertible into Class A Common Stock
or effect a subdivision or combination or consolidation of the
outstanding shares of Class A Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Class A Common
Stock or in options, warrants or other securities exercisable for or
convertible into Class A Common Stock) into a greater or lesser
number of shares of Class A Common Stock, then in each such case
this Corporation shall, as the case may be, declare and pay an
equivalent dividend per share on the Class B Common Stock payable in
shares of Class B Common Stock or in options, warrants or other
securities exercisable for or convertible into Class B Common Stock
or effect an equivalent subdivision or combination or consolidation
of the outstanding shares of Class B Common Stock (by
reclassification or otherwise than by payment of a dividend in
shares of Class B Common Stock or in options, warrants or other
securities exercisable for or convertible into Class B Common Stock)
into a greater or lesser number of shares of Class B Common Stock.
(c) The Corporation shall declare a dividend on the Class
B Common Stock as provided in subparagraphs (a) and (b) of this
paragraph 2 at the same time that it declares any dividend on the
Class A Common Stock and shall effect a subdivision or combination
or consolidation of the outstanding shares of Class B Common Stock
(by reclassification or otherwise than by payment of a dividend in
shares of Class B Common Stock or in options, warrants or other
securities exercisable for or convertible into Class B Common Stock)
into a greater or lesser number of shares of Class B Common Stock as
provided in subparagraph (b) of this paragraph 2 at the same time
that it effects any subdivision or combination or consolidation of
the outstanding shares of Class A Common Stock (by reclassification
or otherwise than by payment of a dividend in shares of Class A
Common Stock or in options, warrants or other securities exercisable
for or convertible into Class A Common Stock) into a greater or
lesser number of shares of Class B Common Stock.
(d) Except as set forth in subparagraphs (a) through (c)
of this paragraph 2, holders of shares of Class B Common Stock shall
not be entitled to receive, and this Corporation shall not declare
or pay, any dividend or distribution (whether in cash, property or
securities) on the Class B Common Stock.
(e) In the event of a Business Transaction, the holders of
the Class B Common Stock shall be entitled to receive the same
consideration per share as the holders of Class A Common Stock,
provided that in the event that all or any part of such
consideration includes voting securities, unless otherwise agreed by
the holders of a majority of the outstanding Class B Common Stock,
the holders of Class B Common Stock shall be entitled to receive
securities that reflect the same ratio of voting rights in relation
to the Class A Common Stock as provided in paragraphs 1(g) and 2(g)
of this Section C of Article FIFTH (i.e., three votes by the holders
of Class B Common Stock for every one vote by the holders of Class A
Common Stock) if, following the issuance of such voting stock, the
holders of Class B Common Stock prior to such Business Transaction
would hold securities representing a majority of the voting power of
the issuer of such securities.
(f) In the event of any voluntary or involuntary
liquidation, dissolution or winding-up of this Corporation, the
holders of the Class B Common Stock shall be entitled together with
the holders of the Class A Common Stock to receive all the remaining
assets of this Corporation, tangible and intangible, of whatever
kind available for distribution to stockholders, ratably in
proportion to the number of shares of Common Stock held by each such
holder.
(g) Except as may otherwise be required by law or this
Certificate of Incorporation, each holder of Class B Common Stock
shall
have three votes in respect of each share of Class B Common Stock
held by such holder on each matter in respect of which the holders
of Common Stock are entitled to vote, and the holders of the Class B
Common Stock shall vote together with the holders of the Class A
Common Stock as a single class.
(h) So long as any shares of Class B Common Stock are
outstanding, this Corporation shall not, without the written consent
or affirmative vote of the holders of a majority of the shares of
Class B Common Stock at the time outstanding, voting separately as a
class, either in writing or by resolution called for at an annual or
special meeting called for that purpose, amend this Certificate of
Incorporation so as to adversely affect the rights of the holders of
shares of Class B Common Stock, relative to the rights of the
holders of Class A Common Stock.
(i) Each holder of Class B Common Stock shall have the
right at any time to convert all or any part of such holder's shares
of Class B Common into the equivalent number of shares of fully paid
and nonassessable Class A Common Stock. Each share of Class B Common
Stock issued and outstanding shall convert automatically into one
fully paid and nonassessable share of Class A Common Stock
immediately upon the transfer of the record ownership thereof to any
person other than Accenture, Microsoft or any Affiliates of
Accenture or Microsoft or their successors (a "TRANSFER"). For the
purposes of this paragraph 2 of Section C of Article FIFTH,
"AFFILIATE" shall mean, with respect to any person, any other person
that directly or indirectly, through one or more intermediaries,
controls, or is controlled by, or is under common control with, such
person; provided that in the case of Accenture, each Accenture
Person shall be deemed herein an Affiliate of Accenture. For
purposes of the foregoing sentence, "CONTROL" (including, with
correlative meanings, the terms "CONTROLLED BY" and "UNDER COMMON
CONTROL WITH"), as used with respect to any person, means the direct
or indirect possession of the power to direct or cause the direction
of the management or policies of such person, whether through the
ownership of voting securities, by contract or otherwise.
(j) This Corporation shall not issue any shares of Class B
Common Stock to any person other than Accenture, Microsoft or any
Affiliate of Accenture or Microsoft or their successors.
(k)(i) Any optional conversion shall be effective upon
delivery of the stock certificate (or certificates) representing the
shares of Class B Common Stock to be so converted to the Corporation
with written notice of conversion.
(ii) Conversion of a share of Class B Common Stock
into a share of Class A Common Stock pursuant to Paragraph
2(i) of this Section C of Article FIFTH shall be deemed to
have been
effected at the time of the Transfer or the surrender of the
stock certificate with written notice of optional conversion,
as the case may be, that resulted in such conversion
(hereinafter, the "CONVERSION TIME"). Immediately upon such
conversion, the rights of the holders of shares of Class B
Common Stock so converted as such shall cease and such holders
shall be treated for all purposes as having become the record
owners of the shares of Class A Common Stock issuable upon
such conversion; provided, however, that such persons shall be
entitled to receive when paid any dividends declared on the
Class B Common Stock as of a record date preceding the
Conversion Time and unpaid as of the Conversion Time. In the
event the stock transfer books of this corporation shall be
closed at the Conversion Time, such person or persons shall be
deemed to have become such holder or holders of record of the
Class A Common Stock at the opening of business on the next
succeeding day on which such stock transfer books are open.
(iii) As promptly as practicable after the
Conversion Time, upon the delivery to the Corporation of the
certificates formerly representing shares of Class B Common
Stock (or in the event such certificates are lost or
destroyed, delivery of written certification to such effect
satisfactory to the Corporation), the Corporation shall
deliver or cause to be delivered, to or upon the written order
of the record holder of the surrendered certificates formerly
representing shares of Class B Common Stock, a certificate or
certificates representing the number of fully paid and
nonassessable shares of Class A Common Stock into which the
shares of Class B Common Stock formerly represented by such
certificates have been converted in accordance with the
provisions of paragraph 2(i) and this paragraph 2(j) of this
Section C of Article FOURTH.
(iv) The Corporation will pay any and all
documentary, stamp or similar issue or transfer taxes payable
in respect of the issue or delivery of shares of Class A
Common Stock on the conversion of shares of Class B Common
Stock pursuant to paragraph 2(i) and this paragraph 2(j) of
this Section C of Article FIFTH; provided, however, that the
Corporation shall not be required to pay any tax which may be
payable in respect of any registration of transfer involved in
the issue or delivery of shares of Class A Common Stock in a
name other than that of the registered holder of Class B
Common Stock converted or to be converted, and no such issue
or delivery shall be made unless and until the person
requesting such issue has paid to this corporation the amount
of any such tax or has established, to the satisfaction of
this corporation, that such tax has been paid.
(v) The Corporation shall at all times reserve and
keep available, out of the aggregate of its authorized but
unissued Common Stock and its issued Common Stock held in its
treasury, for the purpose of effecting the conversion of the
Class B Common Stock, the full number of shares of Class A
Common Stock then deliverable upon the conversion of all
outstanding shares of the Class B Common Stock.