UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14A
(RULE 14a-101)
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934
(Amendment No. )
Filed by the Registrant x
Filed by a Party other than the Registrant ¨
Check the appropriate box:
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Preliminary Proxy Statement | ¨ | Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) | |||
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Definitive Proxy Statement | |||||
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Definitive Additional Materials | |||||
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Soliciting Material Under §240.14a-12 |
Accenture Ltd
(Name of Registrant as Specified in its Charter)
N/A
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
x | No fee required. |
¨ | Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11. |
(1) | Title of each class of securities to which transaction applies: |
(2) | Aggregate number of securities to which transaction applies: |
(3) | Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined): |
(4) | Proposed maximum aggregate value of transaction: |
(5) | Total fee paid: |
¨ | Fee paid previously with preliminary materials. |
¨ | Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. |
(1) | Amount previously paid: |
(2) | Form, Schedule or Registration Statement No.: |
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(4) | Date Filed: |
Dear Shareholder:
The Accenture Board of Directors has unanimously approved and is submitting to our shareholders a proposal to change our parent companys place of incorporation to Ireland from Bermuda.
As an Accenture shareholder, you will be asked to vote on this proposal, in person or by proxy, at shareholder meetings on , 2009 at . Details of the business to be presented at the meetings can be found in the accompanying meeting notices and proxy statement.
After a careful review, our Board has determined that a change in Accentures place of incorporation to Ireland from Bermuda is in the best interests of the company and our shareholders. We believe that incorporating in Ireland will provide Accenture with economic benefits and help ensure our continued global competitiveness.
As a member of the European Union, Ireland offers a sophisticated, well-developed corporate, legal and regulatory environment. It has a long history of international investment and long-established commercial relationships, trade agreements and tax treaties with European Union member states, the United States and other countries around the world where Accenture does business. In addition, Ireland offers a stable political and economic environment and has the financial and legal infrastructure to meet Accentures needs, both today and in the future.
Accenture has offices in 52 countries and serves clients in more than 120 countries around the world. Ireland is part of Accentures largest geographic region, Europe/Middle East/Africa (EMEA), which accounts for nearly half of Accentures total net revenues, represents a significant business opportunity for the company, and is home to many of our largest clients. Accenture has a 40-year history as an employer and provider of services in Ireland. Today we serve a wide range of clients in Ireland, including the Irish government, and have significant operations and a substantial presence that has grown rapidly in recent years.
Approval of the proposal to move Accentures place of incorporation to Ireland will result in an exchange of your shares in Accenture Ltd, a Bermuda company, for shares in Accenture plc, an Irish company, on a one-for-one basis. Under U.S. federal income tax law, U.S. holders of our shares generally will not recognize a gain or a loss in this transaction. Certain other shareholders could recognize a gain or a loss as a result of this transaction depending on the laws in their jurisdictions.
We do not expect any material change in Accentures operations, financial results or tax treatment as a result of the change in our place of incorporation. Our shares will continue to be listed on the New York Stock Exchange under the ticker symbol ACN. The company will continue to be registered with the U.S. Securities and Exchange Commission (the SEC) and be subject to the same SEC reporting requirements, the mandates of the Sarbanes-Oxley Act and the applicable corporate governance rules of the New York Stock Exchange. We will continue to report our financial results in U.S. dollars and under U.S. generally accepted accounting principles (GAAP).
As explained in detail in the proxy statement, we are also asking you to approve a proposal to establish distributable reserves. Distributable reserves are needed so that we are in a position to pay dividends and buy back shares in the future.
The proxy statement provides important information about the change in our place of incorporation and related matters. We encourage you to read the entire document carefully, including the Risk Factors section, before voting by proxy or at the meetings.
Your vote is very important. Your Board of Directors unanimously recommends that you vote to approve all of the proposals on the agenda.
To approve the change of Accentures place of incorporation to Ireland, we will need to conduct separate votes of our Class A and Class X common shareholders. We must obtain affirmative votes of 75% of each class of shares voting. In addition, to establish distributable reserves, we must obtain the affirmative vote of more than 50% of all shares voting. For each of these votes, a majority of the applicable shares must be represented at the meeting in person or by proxy.
To ensure that your shares are voted in accordance with your wishes, please: mark, date, sign and return the enclosed proxy card in the enclosed, postage-paid envelope as promptly as possible, or appoint a proxy to vote your shares by telephone or by using the Internet, as described in the proxy statement.
If you have any questions about the meetings or require assistance, please call Innisfree M&A Incorporated at +1 888-750-5834 (toll-free from the US and Canada), 00-800-7710-9970 (toll-free from the EU) or +1 212-750-5833 (collect).
On behalf of the Board of Directors and the management of Accenture, thank you for your continued support.
Sincerely,
WILLIAM D. GREEN
Chairman & CEO
Neither the U.S. Securities and Exchange Commission nor any state securities commission has approved or disapproved of the securities to be issued in the transactions or determined if this proxy statement is truthful or complete. Any representation to the contrary is a criminal offense.
The proxy statement is dated , 2009 and is first being mailed to shareholders on or about , 2009.
SUMMARY OF NOTICES OF SPECIAL COURT-ORDERED CLASS MEETINGS
AND SPECIAL GENERAL MEETING OF ACCENTURE LTD
CLASS A AND CLASS X COMMON SHAREHOLDERS
TO BE HELD ON , 2009
To the common shareholders of Accenture Ltd:
Accenture Ltd, a company organized under the laws of Bermuda, will hold separate and consecutive class meetings of the Accenture Ltd Class A common shareholders and of the Accenture Ltd Class X common shareholders and a special general meeting of all shareholders in order to approve, and in connection with, the Scheme of Arrangement. The proposals are summarized as follows:
1. | to approve the scheme of arrangement attached as Annex A to the accompanying proxy statement (the Scheme of Arrangement). If Accenture Ltds Class A and Class X common shareholders approve the Scheme of Arrangement, Accenture Ltd Class A and Class X common shares will be exchanged on a one-for-one basis for Class A and Class X ordinary shares, respectively, of an Irish company, Accenture plc (and cash for any fractional shares). We refer to this proposal and the related exchange as the Transaction; |
2. | if the first proposal is approved, then to approve the reduction of share premium to establish distributable reserves of Accenture plc. We refer to this proposal as the distributable reserves proposal; and |
3. | to approve motions to adjourn each meeting to a later date to solicit additional proxies if there are insufficient proxies to approve the proposals at the time of the meeting. |
The notices of each of the class meetings and the special general meeting are provided as attachments to the accompanying proxy statement as Annex F. This summary does not constitute the formal notice in respect of any of those meetings. Shareholders should closely read the attached notices in Annex F.
If any other matters properly come before any of the meetings or any adjournments or postponements of the meetings, the persons named in the proxy card will vote the shares represented by all properly executed proxies in their discretion.
The Board of Directors has set , 2009 as the record date for each of the meetings. This means that only those persons who were registered holders of Accenture Ltd Class A or Class X common shares at the close of business on the record date will be entitled to receive notice of the applicable meetings and to attend and vote at the applicable meetings and any adjournments or postponements thereof. This proxy statement contains additional information on how to attend the meetings and vote your shares in person. To vote your shares, you will need the control number included on the proxy card accompanying this proxy statement.
The accompanying proxy statement and proxy card are first being sent to Accenture Ltd Class A and Class X common shareholders on or about , 2009.
The special court-ordered class meetings of Accenture Ltd Class A and Class X common shareholders are being held in accordance with an order of the Supreme Court of Bermuda issued on , 2009, which Bermuda law required us to obtain prior to holding the meetings. If Accenture Ltd Class A and Class X common shareholders approve the Scheme of Arrangement at the class meetings, we will make a subsequent application to the Supreme Court of Bermuda seeking authorization or approval of the Scheme of Arrangement, which must be obtained as a condition to the Scheme of Arrangement becoming effective. Shareholder approval of the distributable reserves proposal is not a condition to the Scheme of Arrangement becoming effective. We expect the authorization hearing to be held on , 2009 at the Supreme Court in Hamilton, Bermuda. If you are an Accenture Ltd Class A or Class X common shareholder who wishes to appear in person or by counsel at the authorization hearing and present evidence or arguments in support of or opposition to the Scheme of Arrangement, you may do so. In addition, the Supreme Court has wide discretion to hear from interested parties. Accenture Ltd will not object to the participation in the authorization hearing by any Accenture Ltd Class A common shareholder who holds shares through a broker.
Proof of ownership of Accenture Ltd Class A or Class X common shares as of the record date, as well as a form of personal identification, must be presented in order to be admitted to the applicable meetings.
If you hold Accenture Ltd Class A common shares in the name of a bank, broker or other holder of record and you plan to attend the meetings relevant to those shares, you must present proof of your ownership of those shares as of the record date, such as a bank or brokerage account statement or letter, together with a form of personal identification, to be admitted to the meetings.
YOUR VOTE IS IMPORTANT. WHETHER OR NOT YOU EXPECT TO ATTEND THE MEETINGS, PLEASE PROMPTLY RETURN YOUR SIGNED PROXY CARD IN THE ENCLOSED ENVELOPE OR DIRECT THE VOTING OF YOUR ACCENTURE LTD CLASS A COMMON SHARES AND CLASS X COMMON SHARES BY PHONE OR INTERNET AS DESCRIBED ON YOUR PROXY CARD.
The accompanying proxy statement incorporates documents by reference. Please see Where You Can Find More Information beginning on page 105 for a listing of documents incorporated by reference. These documents are available to any person, including any beneficial owner, upon request directed to our Investor Relations Group by telephone in the United States and Puerto Rico at +1 877-ACN-5659 (+1 877-226-5659) and outside the United States and Puerto Rico at +1 678-999-4566, by e-mail at investor.relations@accenture.com or by mail at Accenture, Investor Relations, 1345 Avenue of the Americas, New York, New York 10105, USA and on the Investor Relations section of our website (http://investor.accenture.com). To ensure timely delivery of these documents, any request should be made by , 2009. The exhibits to these documents will generally not be made available unless they are specifically incorporated by reference in the accompanying proxy statement.
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No Action Required to Cancel Accenture Ltd Shares and Receive Accenture plc Shares |
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Accenture SCA Class I Common Shares and Accenture Canada Holdings Inc. Exchangeable Shares |
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Effect of the Transaction on Potential Future Status as a Foreign Private Issuer |
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PROPOSAL NUMBER TWO: REDUCTION OF SHARE PREMIUM TO ESTABLISH DISTRIBUTABLE RESERVES |
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COMPARISON OF RIGHTS OF SHAREHOLDERS AND POWERS OF THE BOARD OF DIRECTORS |
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BENEFICIAL OWNERSHIP OF MORE THAN FIVE PERCENT OF ANY CLASS OF VOTING SECURITIES |
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Annex BMemorandum and Articles of Association of Accenture plc |
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Annex FNotices for each Special Court-Ordered Class Meeting and the Special General Meeting |
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ACCENTURE LTD
PROXY STATEMENT
For the Special Court-Ordered Class Meetings and the Special General Meeting of Accenture Ltd Class A
and Class X Common Shareholders
to be held on , 2009
This proxy statement is furnished to the common shareholders of Accenture Ltd in connection with the solicitation of proxies on behalf of the Board of Directors of Accenture Ltd to be voted at the special court-ordered class meetings of Class A and Class X common shareholders, respectively, and the special general meeting of all shareholders (together, the meetings) to be held on , 2009, and any adjournments or postponements thereof, at the times and place and for the purposes set forth in the accompanying notices of the respective meetings. This proxy statement and the accompanying proxy card (which applies to all of the meetings) are first being sent to Class A and Class X common shareholders on or about , 2009. Please mark, date, sign and return the enclosed proxy card to ensure that all of your shares are represented at each of the meetings.
This proxy statement describes matters to be voted on by holders of two classes of shares:
| Class A common shares: If you purchased our publicly traded shares in or following our 2001 initial public offering or have acquired shares through our employee share programs, you hold Accenture Ltd Class A common shares. If you were a partner at Accenture at the time of our corporate formation in 2001, you may also hold Accenture Ltd Class A common shares. |
| Class X common shares: If you were a partner at Accenture at the time of our corporate formation in 2001, resident in Australia, Canada, Denmark, France, New Zealand, Norway or the United States, you may hold Accenture Ltd Class X common shares, which are designed to provide you voting rights on matters presented to shareholders. |
Shares represented by valid proxies will be voted in accordance with instructions contained therein or, in the absence of such instructions, at the proxys discretion. You may revoke your proxy at any time before it is exercised at the applicable meeting by timely delivery of a properly signed, later-dated proxy (including an Internet or telephone proxy) or by voting in person at the meetings. You may also notify our Secretary in writing before the applicable meeting that you are revoking your proxy. If you hold your shares beneficially, please follow the procedures required by your broker to revoke a proxy. You should contact that firm directly for more information on these procedures.
The Board of Directors has set , 2009 as the record date for the meetings. This means that only those persons who were registered holders of Accenture Ltd Class A or Class X common shares at the close of business on the record date will be entitled to receive notice of the meetings and to attend and vote at the meetings and any adjournments or postponements thereof. As of the record date, Class A common shares (which number does not include issued shares held by subsidiaries of Accenture Ltd) were issued and outstanding and Class X common shares were issued and outstanding.
Only holders of Class A common shares are invited to attend the special court-ordered class meeting of the Class A common shareholders. Only holders of Class X common shares are invited to attend the special court-ordered class meeting of the Class X common shareholders. All shareholders are invited to attend the special general meeting of Accenture Ltd common shareholders. Proof of ownership of Accenture Ltd Class A or Class X common shares as of the record date, as well as a form of personal identification, must be presented in order to be admitted to the applicable meetings. We have enclosed a single proxy card that has been divided into three sections corresponding to the three separate meetings. Please complete, sign and return the proxy card.
If you hold Accenture Ltd Class A common shares in the name of a bank, broker or other holder of record and you plan to attend any of the meetings relevant to those shares, you must present proof of your ownership of those shares as of the record date, such as a bank or brokerage account statement or letter, together with a form of personal identification, in order to be admitted to the meetings.
We are seeking your approval at the special court-ordered class meetings of a Scheme of Arrangement under Bermuda law that will result in you owning ordinary shares of Accenture plc, a company incorporated in Ireland, instead of common shares of Accenture Ltd.
There are several steps required to effect the Transaction. Accenture Ltd, the Bermuda company whose common shares you currently own, formed Accenture plc as a direct subsidiary. We will hold the class meetings to approve the Scheme of Arrangement and the associated special general meeting to approve the reduction of share premium to establish Accenture plc distributable reserves on 2009. If we obtain the necessary approvals from Accenture Ltd Class A and Class X common shareholders and the Supreme Court of Bermuda and if the other conditions are satisfied (and we do not abandon the Transaction), we intend to file the court order authorizing the Scheme of Arrangement with the Bermuda Registrar of Companies, at which time the Transaction will become effective.
Various steps of the Transaction will effectively occur simultaneously at the time of the Transaction, which we anticipate will be before the opening of trading on the New York Stock Exchange (NYSE) on the day the Scheme of Arrangement becomes effective.
At the time of the Transaction, the following steps will effectively occur:
1. | all previously outstanding whole Accenture Ltd Class A common shares will be cancelled; |
2. | Accenture Ltd will issue Accenture Ltd Class A common shares to Accenture plc; |
3. | Accenture plc will issue Class A ordinary shares on a one-for-one basis to the holders of whole Accenture Ltd Class A common shares that have been cancelled; |
4. | all fractional Accenture Ltd Class A common shares held of record will be cancelled and Accenture Ltd will pay to each holder an amount based on the average of the high and low trading prices of the Accenture Ltd Class A common shares on the NYSE on the business day immediately preceding the effective date of the Scheme of Arrangement; |
5. | all previously outstanding Accenture Ltd Class X common shares will be cancelled; |
6. | Accenture plc will issue Class X ordinary shares on a one-for-one basis to the holders of Accenture Ltd Class X common shares that have been cancelled; |
7. | all outstanding Accenture SCA Class I common shares, which had been redeemable for, at our election, cash or Accenture Ltd Class A common shares on a one-for-one basis, will instead become redeemable for, at our election, cash or Accenture plc Class A ordinary shares; |
8. | all outstanding Accenture Canada Holdings Inc. exchangeable shares will become exchangeable for, at our election, cash or Accenture plc Class A ordinary shares on a one-for-one basis rather than for Accenture Ltd Class A common shares; and |
9. | all Accenture plc ordinary shares outstanding prior to the Transaction, which are held by Accenture Ltd and its nominees, will be acquired by Accenture plc for no consideration and cancelled. |
Accenture plc Class A and Class X ordinary shares issued pursuant to the Transaction will be fully paid and non-assessable.
As a result of the Transaction, the Class A and Class X common shareholders of Accenture Ltd will become Class A and Class X ordinary shareholders of Accenture plc, respectively, and Accenture Ltd will become a wholly owned subsidiary of Accenture plc. The current Board of Directors of Accenture Ltd will become the Board of Directors of Accenture plc. Following the Transaction, Accenture plc will have its corporate and tax residence in Ireland.
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In connection with the completion of the Transaction, Accenture plc will assume the existing obligations of Accenture Ltd in connection with awards granted under Accenture Ltd equity incentive plans and other similar employee awards. In addition, any securities issued by Accenture Ltd or its subsidiaries, including Accenture SCA and Accenture Canada Holdings Inc., that are convertible, exchangeable or exercisable into or redeemable for Accenture Ltd Class A common shares will become convertible, exchangeable or exercisable into or redeemable for, as the case may be, an equal number of Accenture plc Class A ordinary shares. We intend that at the time of the Transaction Accenture plc will assume all other contractual obligations of Accenture Ltd.
As of the record date on 2009, Class A common shares (which number does not include issued Class A common shares held by subsidiaries of Accenture Ltd) were issued and outstanding and Class X common shares were issued and outstanding. Class A common shares held by our subsidiaries will be voted in a manner that will have no impact on the outcome of any vote of the shareholders of Accenture Ltd.
We use the terms Accenture, we, our company, our and us in this report to refer to Accenture Ltd and its subsidiaries prior to the Transaction and to refer to Accenture plc and its subsidiaries after the Transaction.
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QUESTIONS AND ANSWERS ABOUT THE TRANSACTION
GENERAL
1. Q: | What am I being asked to vote on at the meetings? |
A: | You are being asked to vote on the following matters: |
| A Scheme of Arrangement under Bermuda law pursuant to which your Accenture Ltd Class A and Class X common shares will be cancelled and you will receive, on a one-for-one basis, Class A and Class X ordinary shares, as applicable, of Accenture plc and cash for any fractional shares. |
| To approve the establishment of distributable reserves so that Accenture plc is in a position to pay dividends and buy back shares in the future. |
| Proposals to adjourn the meetings to a later date to solicit additional proxies if there are insufficient votes to approve the proposals at the time of the applicable meeting. |
2. Q: | Who can vote? |
A: | All persons who were registered holders of Accenture Ltd Class A or Class X common shares at the close of business on , 2009, the record date for the meetings, are shareholders of record for the purposes of the meetings and will be entitled to attend and vote, in person or by proxy, at the meetings relevant to their shareholdings and any adjournments or postponements thereof. |
Each Class A common shareholder of record will be entitled to one vote per share at the Class A common shareholder class meeting. Each Class X common shareholder of record will be entitled to one vote per share at the Class X common shareholder class meeting. All shareholders of record may vote at the special general meeting. We have enclosed a single proxy card, which is divided into three sections, corresponding to the three separate consecutive meetings. |
3. Q: | How will shares of Accenture plc differ from shares of Accenture Ltd? |
A: | Accenture plc Class A and Class X ordinary shares will be similar to Accenture Ltd Class A and Class X common shares, respectively. However, although we do not believe they are material, there are differences between what your rights as a Class A or a Class X ordinary shareholder will be under Irish law and what they currently are as a Class A or a Class X common shareholder under Bermuda law. These differences include the following: |
| Irish law could make it more difficult to obtain approval for certain merger transactions; |
| The Accenture plc Board of Directors may only issue shares to the extent shareholders have approved such issuances during the prior five years; |
| Subsidiaries of Accenture plc may only purchase Accenture plc shares to the extent shareholders have approved such purchases during the prior 18 months; and |
| Shareholder approval is required to eliminate pre-emption rights. |
In addition, there are differences between the organizational documents of Accenture plc and Accenture Ltd. |
We discuss these and other differences in detail under Description of Accenture plc Share Capital and Comparison of Rights of Shareholders and Powers of the Board of Directors. The forms of Accenture plcs memorandum and articles of association are attached to this proxy statement as Annex B. |
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4. Q: | Why do you want to change Accentures place of incorporation to Ireland from Bermuda? |
A: | After careful consideration, our Board of Directors has determined that a change in place of incorporation is in the best interest of Accenture and its shareholders. |
The Board of Directors believes that continued criticism of and negative publicity regarding companies that are incorporated in countries that do not have tax treaties with the United States, including Bermuda, could adversely affect us. Additionally, there have been, and could be in the future, legislative and/or regulatory proposals that could increase taxes for these companies or inhibit their ability to secure certain government contracts. If enacted, these proposals could have a material and adverse effect on Accenture. |
After considering a number of options and locations, the Board of Directors determined that changing Accentures place of incorporation to Ireland will provide the company with economic benefits and help ensure its continued global competitiveness. |
In making this decision, we considered many factors, including: |
| Continued criticism of companies incorporated in Bermuda. |
| The global nature of Accentures business. Accenture has offices in 52 countries and clients in more than 120 countries. We operate globally and manage our business through five industry-focused global operating groups. |
| The growing importance of Accentures Europe/Middle East/Africa (EMEA) region. EMEA, which includes Ireland, accounts for nearly half of Accentures total net revenues, is a region that we expect to provide continued opportunities for growth, and is home to many of our largest clients. |
| Irelands stable political and economic environment. Ireland has the financial and legal infrastructure to meet Accentures needs, both today and in the future. |
| Irelands sophisticated, well-developed corporate, legal and regulatory environment. A member of the European Union and the Organization for Economic Cooperation and Development (OECD), Ireland has a long history of international investment and long-established commercial relationships, trade agreements and tax treaties with European Union member states, the United States and other countries around the world where Accenture does business. |
| Accentures 40-year history as an employer and provider of services in Ireland. Accenture serves a wide range of clients in Ireland, including the Irish government, and has significant operations and a substantial presence that has grown rapidly in recent years. |
| Business continuity. Incorporating in Ireland will not result in any material change to Accentures operations, financial results or tax treatment. |
Please see Proposal Number One: The TransactionBackground and Reasons for the Transaction and Risk Factors. |
5. Q: | What vote of Accenture Ltd shareholders is required to approve the proposals? |
A: | The Transaction must be approved at separate class meetings of the Accenture Ltd Class A and Class X common shareholders, by a vote representing 75% or more of the shares and more than 50% of the holders voting at each meeting on the proposal. The affirmative vote of holders of the Accenture Ltd Class A and Class X common shares, voting together at the special general meeting, representing at least a majority of the Accenture Ltd Class A and Class X common shares voted at the meeting, is required to approve the distributable reserves proposal. For each of these meetings, a majority of the applicable shares must be represented in person or by proxy. |
Please see The MeetingsRecord Date; Voting Rights; Vote Required for Approval. |
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6. Q: | When do you expect the Transaction to be completed? |
A: | We currently expect to complete the Transaction on , 2009. Please see Annex E to this proxy statement for an expected timetable. However, the Transaction may be abandoned or delayed by our Board of Directors at any time prior to the Transaction becoming effective, even if the Transaction has been approved by Accenture Ltds shareholders and authorized by the Supreme Court of Bermuda and all other conditions to the Transaction have been satisfied. |
Please see Proposal Number One: The TransactionAmendment, Termination or Delay. |
7. Q: | What vote does my Board of Directors recommend? |
A: | The Accenture Ltd Board of Directors unanimously recommends that Accenture Ltds Class A and Class X common shareholders vote FOR each of the proposals. |
TAX MATTERS RELATED TO ACCENTURE SHAREHOLDERS
Please refer to Material Tax Considerations Relating to the Transaction for a description of the material U.S. federal income tax, Irish tax and Bermuda tax consequences of the Transaction to Accenture Ltd Class A and Class X common shareholders. Determining the actual tax consequences of the Transaction to you may be complex and will depend on your specific situation. We urge you to consult your tax advisor. |
8. Q: | Is the Transaction taxable to me? |
A: | Bermuda |
Under Bermuda law, the Transaction will not result in any Bermuda tax consequences to our shareholders. |
Ireland |
Accenture Ltd shareholders who are neither resident nor ordinarily resident in Ireland will not owe Irish tax on the receipt of Accenture plc shares in the Transaction. Accenture Ltd shareholders who are resident or ordinarily resident in Ireland should not owe Irish tax on the receipt of Accenture plc shares in the Transaction. |
United States |
Under U.S. federal income tax law, holders of Accenture Ltd Class A and Class X common shares will generally not recognize gain or loss in the Transaction except with respect to any cash received for fractional Class A common shares. Those U.S. holders (as defined under Material Tax Considerations Relating to the Transaction) who hold 5% or more of Accenture Ltd Class A common shares may, however, be required to timely enter into and maintain a gain recognition agreement to avoid recognizing gain in the Transaction. |
Other Jurisdictions |
Determining the actual tax consequences of the Transaction to you may be complex and will depend on your specific situation. Shareholders in certain other jurisdictions could recognize a gain or a loss as a result of the Transaction. Consult your tax advisor for a full understanding of the tax consequences of the Transaction to you. |
9 Q: | Will there be Irish income tax on dividends paid on Accenture plc shares? |
A: | Shareholders who are resident in or ordinarily resident in Ireland will generally be subject to Irish income tax on dividends paid by Accenture plc. All other shareholders will generally not be required to pay Irish income tax on such dividends. |
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10. Q: | Will there be an Irish stamp duty on the transfer of Accenture plc shares? Does it matter whether I hold my shares beneficially or of record? |
A: | Transfers by shareholders who hold their Accenture plc shares beneficially through banks, brokers, trustees, custodians or other nominees, which in turn hold those shares through The Depository Trust Company (DTC), will not be subject to Irish stamp duty on transfers to holders who also hold through DTC. |
Transfers by shareholders who hold their shares directly registered in their own names on Accentures shareholder records, as maintained by our transfer agent (National City Bank), will be subject to Irish stamp duty, payable by the buyer. |
Irish stamp duty is currently 1% of the price paid or the market value of the shares acquired, if higher. |
Accordingly, we strongly recommend that all directly registered shareholders open broker accounts so they can transfer their Class A common shares into a broker account to be held through DTC as soon as possible, and in any event, prior to completion of the Transaction. We also strongly recommend that any person who wishes to acquire Accenture plc Class A ordinary shares after completion of the Transaction acquires such Class A ordinary shares beneficially through a broker account to be held through DTC. |
Accenture plc does not intend to pay any stamp duty. However, Accenture plcs articles of association allow Accenture plc, in its absolute discretion, to create an instrument of transfer and pay any stamp duty payable by a buyer. In the event of any such payment, Accenture plc may seek reimbursement. Any transfer of Accenture plc Class A ordinary shares that is subject to Irish stamp duty will not be registered in the name of the buyer unless an instrument of transfer is duly stamped and provided to our transfer agent. |
11. Q: | Will there be an Irish withholding tax on dividends paid on Accenture plc shares? |
A: | Shares held by U.S. resident shareholders |
Dividends paid on Accenture shares that are owned by residents of the United States will generally not be subject to Irish withholding tax, subject to the completion of the relevant forms. Residents of the United States who hold their shares through DTC and who have a U.S. address will be entitled to receive dividends without Irish dividend withholding tax. To provide proof of a U.S. address, shareholders should have a Form W-9 on file with their broker. Residents of the United States who held their shares directly on , 2009 can rely on the W-9 they have submitted to the company until , 2010 when they will need to file an Irish dividend withholding form with the company to eliminate the withholding. Other residents of the United States who acquired all of their shares after , 2009 and who hold their shares of record will need to file an Irish dividend withholding tax form to receive dividends without Irish withholding tax. |
Shares held by residents of relevant territories other than the United States |
Dividends paid to Accenture shareholders who are residents of countries that are European Union member states (other than Ireland) and other countries with which Ireland has a tax treaty (other than the United States) will generally not be subject to Irish withholding tax, as long as they have provided Irish tax forms to their broker (for shares held through DTC) or Accenture (for shares held directly). We refer to these countries, together with the United States, as relevant territories, a list of which is included as Annex C to this proxy statement. |
In addition, these Accenture shareholders who held shares on or before , 2009 will generally receive dividends paid on or before , 2010 without any Irish withholding tax if they have submitted a Form W-8 to their broker (for shares held through DTC) or to the company (for shares held directly). |
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Shares held by residents of countries that are not relevant territories |
Accenture shareholders who reside in countries with which Ireland does not have a tax treaty will be subject to Irish withholding tax (currently at the rate of 20%), but there are a number of other exemptions that could apply on a case-by-case basis. Such shareholders should consult with their tax advisors as to whether and how they may claim such exemptions. |
Shareholders who receive dividends subject to the withholding but who would have been exempt from the withholding tax had they submitted the correct form can obtain a refund of the withholding from the Irish Revenue Commissioners. |
OTHER MATTERS RELATED TO ACCENTURE SHAREHOLDERS
12. Q: | Will the Transaction dilute my economic interest? |
A: | No. Your relative economic ownership in Accenture will not change as a result of the Transaction. |
13. Q: | Who holds Accenture Ltd Class X common shares? |
A: | Accenture Ltd issued Class X common shares to some of our partners resident in Australia, Canada, Denmark, France, New Zealand, Norway or the United States in connection with our corporate formation in 2001 in order to give them voting rights with respect to Accenture Ltd. These individuals also hold Accenture SCA Class I common shares or Accenture Canada Holdings Inc. exchangeable shares. |
14. Q: | What will happen to Accenture SCA Class I common shares and Accenture Canada Holdings Inc. exchangeable shares in the Transaction? |
A: | Accenture SCA Class I common shares and Accenture Canada Holdings Inc. exchangeable shares were initially issued to some of our partners in connection with our corporate formation in 2001. These shares are redeemable for, at our election, cash or Accenture Ltd Class A common shares based on the market price of the Accenture Ltd Class A common shares at the time of the redemption. There will be no change in these shares in the Transaction, except that these shares will become redeemable for, at our election, cash or Accenture plc Class A ordinary shares. |
15. Q: | If the Transaction is approved, do I have to take any action to participate in the Transaction? |
A: | No. At the effective time of the Transaction, your Accenture Ltd Class A and Class X common shares will be cancelled and Accenture plc ordinary shares will be issued without any action on your part. |
Please see Proposal Number One: The TransactionNo Action Required to Cancel Accenture Ltd Shares and Receive Accenture plc Shares. |
16. Q: | What happens if I hold stock certificates? |
A: | Accenture plc will not issue stock certificates, as its shares will be issued in uncertificated book-entry form. Consequently, if you currently hold Accenture Ltd Class A common shares in certificated form, following the Transaction your Accenture Ltd share certificates will cease to have effect as documents or evidence of title. All Accenture Ltd Class X common shares are currently uncertificated and Accenture plc Class X ordinary shares will remain uncertificated. For both Accenture plc Class A and Class X ordinary shares held by registered holders, the transfer agent will make an electronic book-entry in your name and will mail you a statement documenting your ownership of Accenture plc shares. |
17. Q: | Will Accenture Ltd Class A common shares continue to be traded between the date of this proxy statement and the effective time of the Transaction? |
A: | Yes. Accenture Ltd Class A common shares will continue to trade as usual during this period. |
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18. Q: | Whom should I call if I have questions about the meetings or the Transaction? |
A: | You should contact our proxy solicitor: |
Innisfree M&A Incorporated
501 Madison Avenue
New York, New York 10022
1-888 750 5834 (toll-free from the US and Canada)
00 800 7710 9970 (toll-free from the EU)
+1 212 750 5833 (call collect)
IMPACT ON ACCENTURE
19. Q: | Will the Transaction affect Accentures operations? |
A: | We do not expect the Transaction to have any material effect on our day-to-day operations. |
20. Q: | How will the Transaction affect Accentures financial reporting? |
A: | After the Transaction, we will continue to report in the same manner as we do today. We will continue to prepare financial statements in accordance with U.S. generally accepted accounting principles (U.S. GAAP) and report in U.S. dollars, and will continue to file reports on Forms 10-K, 10-Q and 8-K with the U.S. Securities and Exchange Commission (SEC). If required by Irish law, we will prepare audited consolidated annual financial statements in accordance with Irish GAAP or IFRS, which we refer to collectively as the Irish Financial Statements, and we will make any Irish Financial Statements available to shareholders, in addition to the information they currently receive. |
21. Q: | Will the Transaction affect the stock exchange listing of Accenture shares? |
A: | No, immediately following the time of the Transaction, Accenture plc Class A ordinary shares will be listed on the NYSE under the symbol ACN, the same symbol under which Class A common shares are currently listed. We do not intend to list the Accenture plc Class A ordinary shares on any other stock exchange. |
22. Q: | What is Accentures corporate presence in Ireland? |
A: | Accenture already has a significant presence in Ireland, and employs approximately 1,400 people there. In Ireland we provide management consulting, systems integration and technology, and outsourcing services to clients across a wide range of industries, including the Irish government, as well as technology services to clients in other countries across Europe. Our European Services Center in Ireland provides a variety of financial, accounting and other internal services for Accentures operations globally. |
23. Q: | Will the Transaction affect Accentures ability to access the capital markets and bank credit markets in the future? |
A: | We do not expect that the Transaction will have any adverse effect on our ability to access the capital markets or bank credit markets. |
24. Q: | Is the Transaction a taxable transaction for Accenture Ltd or Accenture plc? |
A: | No. The Transaction will not be a taxable transaction for Accenture Ltd or Accenture plc. |
25. Q: | Will the Transaction affect Accentures effective tax rate? |
A: | We do not expect the Transaction to have a material impact on Accentures effective tax rate. |
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26. Q: | Will the Transaction have any impact on Accentures ability to pay dividends or buy back shares? |
A: | We do not expect the Transaction to have any impact on Accentures ability to pay dividends or buy back shares. Under Irish law, however, dividends and buy backs of Accenture plc shares must be paid out of distributable reserves, which Accenture plc will not have immediately following the Transaction because it is a newly formed holding company with no retained earnings. Accordingly, we are seeking shareholder approval to establish distributable reserves. Distributable reserves are needed so that Accenture plc is in a position to pay dividends and buy back shares in the future. We plan to establish these reserves by reducing Accenture plcs additional paid-in capital, referred to under Irish law as share premium. The establishment of these reserves must also be approved by the Irish High Court. |
Please see Description of Accenture plc Share CapitalDividends and Description of Accenture plc Share CapitalShare Repurchases, Redemptions and Conversions and Risk Factors and Proposal Number Two: Reduction of Share Premium to Establish Distributable Reserves. |
27. Q: | Will the Transaction affect another companys ability to acquire Accenture? |
A: | We do not believe that the Transaction will materially affect another companys ability to acquire Accenture. However, the shareholder approval requirements for certain types of transactions differ, and in some cases are greater, under Irish law than under Bermuda law. |
Please see Comparison of Rights of Shareholders and Powers of the Board of DirectorsShareholder Approval of Business Combinations, Comparison of Rights of Shareholders and Powers of the Board of DirectorsAppraisal Rights, Comparison of Rights of Shareholders and Powers of the Board of DirectorsDisclosure of Interests in Shares and Comparison of Rights of Shareholders and Powers of the Board of DirectorsOther Anti-Takeover Measures. |
28. Q: | What effect would the failure to complete the Transaction have on Accenture? |
A: | Although we do not expect them to be material, we have incurred and will incur certain costs whether or not the Transaction is completed. |
VOTING / MEETING MECHANICS
29. Q: | How do I vote? |
A: | You may vote your shares either by voting in person at the applicable meetings or by submitting a completed proxy. We have enclosed a single proxy card that has been divided into three sections corresponding to the three separate meetings. By submitting your proxy, you are legally authorizing another person to vote your shares. The enclosed proxy designates William D. Green, Pamela J. Craig and Douglas G. Scrivner to vote your shares in accordance with the voting instructions you indicate in your proxy at each of the meetings relevant to your shareholding. |
If you submit your proxy designating William D. Green, Pamela J. Craig and Douglas G. Scrivner as the individuals authorized to vote your shares, but you do not indicate how your shares are to be voted, then your shares will be voted by those individuals in accordance with the Board of Directors recommendations, which are described in this proxy statement. In addition, if any other matters are properly brought up at the meetings (other than the proposals contained in this proxy statement), then each of these individuals will have the authority to vote your shares on those matters in his or her discretion. The Board of Directors currently does not know of any matters to be raised at the meetings other than the proposals contained in this proxy statement. |
If you do not wish to vote all of your Class A or Class X common shares in the same manner on any particular proposal(s), you may split your vote by clearly hand-marking the reverse side of the proxy card to indicate how you want to vote your Class A and Class X common shares, as applicable. You may not split your vote if you are voting via the Internet or by telephone. |
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If you do not specify on the enclosed proxy card that is submitted (or when giving your proxy via the Internet) how you want to vote your shares, the proxy holders will vote such unspecified shares FOR each of the proposals set forth in this proxy statement. |
30. Q: | How can I submit my proxy? |
A: | You may submit your proxy either by mail, by telephone (at the number set forth in the accompanying proxy materials) or via the Internet (www.cesvote.com). Please let us know whether you plan to attend each applicable meeting by marking the appropriate box on your proxy card or by following the instructions provided when you submit your proxy by telephone or via the Internet. For more details about Internet proxies, please see The MeetingsHow You Can Vote. In order for your proxy to be validly submitted and for your shares to be voted in accordance with your proxy, we must receive your mailed proxy by 5:00 p.m., Eastern Time, on , 2009 ( , 2009 for Accenture employees and former employees who are submitting proxies for shares received through our employee plans and held by Citigroup Global Markets, Inc. (Citigroup). If you submit a proxy by telephone or via the Internet, then you may submit your voting instructions up until 6:00 a.m., Eastern Time, on , 2009 ( , 2009 for Accenture employees and former employees who are submitting proxies for shares received through our employee plans and held by Citigroup). |
Class A common shareholders who hold their common shares in the street name of a broker must vote their shares in the manner prescribed by their broker. This applies to our employees who received, through our employee plans, shares that are held by Citigroup and/or UBS Financial Services Inc. (UBS). Brokers who hold shares on behalf of customers have the authority to vote on routine proposals when they have not received instructions from beneficial owners, but are precluded from exercising their voting discretion with respect to proposals for non-routine matters. Proxies submitted by brokers without instructions from customers for these non-routine matters are referred to as broker non-votes. We believe the proposal to approve the Scheme of Arrangement and the distributable reserves proposal are proposals for non-routine matters. An abstention or broker non-vote on the proposals has the effect of a vote not being cast with respect to the relevant shares in relation to the proposal. As a consequence, such shares will not be considered when determining whether any proposal has received the required approval. |
If you hold shares beneficially through your broker, we recommend that you contact your broker. Your broker can instruct you how your Class A common shares can be voted. Your broker may not be able to vote your Class A common shares unless the broker receives appropriate instructions from you. |
31. Q: | May I revoke my proxy? |
A: | Any proxy is revocable. |
| If you hold your Accenture Ltd common shares through a broker, you may revoke your proxy only in accordance with the instructions from your broker. |
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After you have submitted a proxy, you may revoke it by mail before the meetings by sending a written notice to our General Counsel and Secretary at 50 W. San Fernando Street, 12th Floor, San Jose, California 95113, USA. Your notice must be received no later than one hour prior to the beginning of the first meeting. |
| If you wish to revoke your submitted proxy card and submit new voting instructions by mail, then you must sign, date and mail a new proxy card with your new voting instructions, which we must receive by 5:00 p.m., Eastern Time, on , 2009 ( , 2009 for Accenture employees and former employees who are submitting proxies for shares received through our employee plans and held by Citigroup). |
| If you submitted your proxy by telephone or via the Internet, you may revoke your submitted proxy and/or submit new voting instructions by that same method, which must be received by |
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6:00 a.m., Eastern Time, on , 2009 ( , 2009 for Accenture employees and former employees who are submitting proxies for shares received through our employee plans and held by Citigroup). |
| You also may revoke your proxy in person (but only if you are the record owner of the shares) and vote your shares at the applicable meeting. Attending the meetings without taking one of the actions above will not revoke your proxy. |
32. Q: | How do I attend the meetings? |
A: | All Class A common shareholders of Accenture Ltd are invited to attend the class meeting of the Class A common shareholders at , commencing at , local time, on , 2009. All Class X common shareholders of Accenture Ltd are invited to attend the class meeting of the Class X common shareholders at , commencing at , local time, on , 2009. All Class A common shareholders and Class X common shareholders of Accenture Ltd are invited to attend the special general meeting of Class A and Class X common shareholders at , commencing at , local time, on , 2009. Proof of ownership of Class A or Class X common shares as of the record date, as applicable, as well as a form of personal identification, must be presented in order to be admitted to any of the meetings. |
If your Class A common shares are not registered in your name but in the street name of a broker, then your name will not appear in Accenture Ltds register of shareholders. Those common shares are held in your brokers name, on your behalf, and your broker will be entitled to vote your Class A common shares. This applies to our employees who received, through our employee plans, shares that are held by Citigroup and/or UBS. In order for you to attend the meetings, you must bring a letter or account statement showing that you beneficially own the shares held by the broker as of the record date. Note that even if you attend the meetings, you cannot vote the shares that are held by your broker. Rather, you should submit voting directions to your broker, which will instruct your broker how to vote those shares on your behalf. |
33. Q: | What quorum is required for action at the meetings? |
A: | At the class meetings to approve the Transaction, the presence of two or more persons in person or by proxy representing a majority of the Accenture Ltd Class A or Class X common shares outstanding and entitled to vote at the meeting constitutes a quorum for the conduct of business at the class meeting of such class. At the special meeting to approve the distributable reserves proposal, the presence of two or more persons in person or by proxy representing a majority of all votes that may be cast by holders of common shares entitled to vote at the meeting constitutes a quorum for the conduct of business. |
Abstentions and broker non-votes will be counted as present for purposes of determining whether there is a quorum. A broker non-vote occurs when a nominee (such as a broker) holding shares for a beneficial owner abstains from voting on a particular proposal because the nominee does not have discretionary voting power for that proposal and has not received instructions from the beneficial owner on how to vote those shares. An abstention or broker non-vote on the proposals has the effect of a vote not being cast with respect to the relevant shares in relation to the proposal. As a consequence, such shares will not be considered when determining whether any proposal has received the required approval. |
Please see The MeetingsRecord Date; Voting Rights; Vote Required for Approval. |
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This summary highlights selected information from this proxy statement. It does not contain all of the information that is important to you. To understand the Transaction more fully, and for a more complete legal description of the Transaction, you should read carefully the entire proxy statement, including the Annexes. The Scheme of Arrangement, attached as Annex A to this proxy statement, is the legal document that governs the Transaction. The memorandum and articles of association of Accenture plc, substantially in the forms attached to this proxy statement as Annex B, will govern Accenture plc after the completion of the Transaction. We encourage you to read those documents carefully.
Accenture Ltd. Accenture Ltd, together with its consolidated subsidiaries, is one of the worlds leading management consulting, technology services and outsourcing organizations, with offices and operations in more than 200 cities in 52 countries; and revenues before reimbursements (net revenues) of $23.39 billion for fiscal 2008. The registered office of Accenture Ltd is located at Canons Court, 22 Victoria Street, Hamilton HM 12, Bermuda.
Accenture plc. As a result of the Transaction, Accenture plc will become the parent holding company of Accenture Ltd. Accenture plc is a newly formed Irish company and is currently wholly owned by Accenture Ltd, except for six shares that are held in trust for Accenture Ltd by six nominees to satisfy Irish legal requirements. Accenture plc has not engaged in any business or other activities other than in connection with its formation and the Transaction. The registered office of Accenture plc is located at 3 Grand Canal Plaza, Upper Grand Canal St., Dublin 4, Ireland, and the telephone number at that address is +(353) (1) 407-6000.
The Transaction will change the place of incorporation of the company whose shares you own to Ireland from Bermuda.
There are several steps required to effect the Transaction. Accenture Ltd, the Bermuda company whose common shares you currently own, formed Accenture plc as a direct subsidiary. On , 2009, we applied to the Supreme Court of Bermuda to order the calling of the class meetings of Accenture Ltd Class A and Class X common shareholders to approve the Scheme of Arrangement. On , 2009, the Supreme Court of Bermuda ordered us to seek your approval of the Scheme of Arrangement. We will hold the class meetings to approve the Scheme of Arrangement and the associated special general meeting on , 2009. If we obtain the necessary shareholder approvals, the Supreme Court of Bermuda will hold a hearing to authorize the Scheme of Arrangement, which is scheduled to be held on or about , 2009 (the Sanction Hearing). Assuming we receive the necessary approvals from Accenture Ltd Class A common shareholders, Class X common shareholders, the Supreme Court of Bermuda and other conditions are satisfied (and we do not abandon the Transaction), we intend to file the court order authorizing the Scheme of Arrangement with the Bermuda Registrar of Companies, at which time the Scheme of Arrangement will become effective.
Various steps of the Transaction will effectively occur simultaneously at the time of the Transaction, which we anticipate will be before the opening of trading on the NYSE on the day the Scheme of Arrangement becomes effective.
At the time of the Transaction, the following steps will effectively occur:
1. | all previously outstanding whole Accenture Ltd Class A common shares will be cancelled; |
2. | Accenture Ltd will issue Accenture Ltd Class A common shares to Accenture plc; |
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3. | Accenture plc will issue Class A ordinary shares on a one-for-one basis to the holders of whole Accenture Ltd Class A common shares that have been cancelled; |
4. | all fractional Accenture Ltd Class A common shares held of record will be cancelled and Accenture Ltd will pay to each holder an amount based on the average of the high and low trading prices of the Accenture Ltd Class A common shares on the NYSE on the business day immediately preceding the effective date of the Scheme of Arrangement; |
5. | all previously outstanding Accenture Ltd Class X common shares will be cancelled; |
6. | Accenture plc will issue Class X ordinary shares on a one-for-one basis to the holders of Accenture Ltd Class X common shares that have been cancelled; |
7. | all outstanding Accenture SCA Class I common shares, which had been redeemable for, at our election, cash or Accenture Ltd Class A common shares on a one-for-one basis, will instead become redeemable for, at our election, cash or Accenture plc Class A ordinary shares; |
8. | all outstanding Accenture Canada Holdings Inc. exchangeable shares will become exchangeable for, at our election, cash or Accenture plc Class A ordinary shares on a one-for-one basis rather than for Accenture Ltd Class A common shares; and |
9. | all Accenture plc ordinary shares outstanding prior to the Transaction, which are held by Accenture Ltd and its nominees, will be acquired by Accenture plc for no consideration and cancelled. |
Accenture plc Class A and Class X ordinary shares issued pursuant to the Transaction will be fully paid and non-assessable.
As a result of the Transaction, the Class A and Class X common shareholders of Accenture Ltd will become Class A and Class X ordinary shareholders of Accenture plc, respectively, and Accenture Ltd will become a wholly owned subsidiary of Accenture plc. The current Board of Directors of Accenture Ltd will become the Board of Directors of Accenture plc. Following the Transaction, Accenture plc will have its corporate and tax residence in Ireland.
In connection with the completion of the Transaction, Accenture plc will assume the existing obligations of Accenture Ltd in connection with awards granted under Accenture Ltd equity incentive plans and other similar employee awards. In addition, any securities issued by Accenture Ltd or its subsidiaries, including Accenture SCA and Accenture Canada Holdings Inc., that are convertible, exchangeable or exercisable into or redeemable for Accenture Ltd Class A common shares will become convertible, exchangeable or exercisable into or redeemable for, as the case may be, an equal number of Accenture plc Class A ordinary shares. We intend that at the time of the Transaction Accenture plc will assume all other contractual obligations of Accenture Ltd. Subsequent to the Transaction we intend to wind down the affairs of Accenture Ltd.
As of the record date on , 2009, Class A common shares (which number does not include issued Class A common shares held by subsidiaries of Accenture Ltd) were issued and outstanding and Class X common shares were issued and outstanding. Class A common shares held by our subsidiaries will be voted in a manner that will have no impact on the outcome of any vote of the shareholders of Accenture Ltd.
After the Transaction, you will continue to own an interest in a parent company that will continue to conduct the same business operations as conducted by Accenture Ltd before the Transaction. Except for the effect of payment of cash for fractional shares held of record, the number of Class A or Class X ordinary shares you will own in Accenture plc will be the same as the number of Class A or Class X common shares you owned in Accenture Ltd immediately prior to the Transaction, and your relative economic interest in Accenture will remain unchanged.
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The completion of the Transaction will change the governing companies law that applies to us to Irish law from Bermuda law. There are differences between what your rights as a Class A or a Class X ordinary shareholder will be under Irish law and what they currently are as a Class A or a Class X common shareholder under Bermuda law. In addition, there are differences between the organizational documents of Accenture plc and Accenture Ltd. Please see Comparison of Rights of Shareholders and Powers of the Board of Directors for a summary of some of these differences.
Upon completion of the Transaction, we will remain subject to SEC reporting requirements, the mandates of the Sarbanes-Oxley Act and the applicable corporate governance rules of the NYSE, and we will continue to report our consolidated financial results in U.S. dollars and in accordance with U.S. GAAP. As required by Irish law, in connection with annual general meetings of Accenture plc commencing with our 2011 annual general meeting, Irish Financial Statements will also be made available to shareholders in addition to the information they currently receive.
After careful consideration, our Board of Directors has determined that a change in place of incorporation is in the best interest of Accenture and its shareholders.
The Board of Directors believes that continued criticism of and negative publicity regarding companies that are incorporated in countries that do not have tax treaties with the United States, including Bermuda, could adversely affect us. Additionally, there have been, and could be in the future, legislative and/or regulatory proposals that could increase taxes for these companies or inhibit their ability to secure certain government contracts. If enacted, these proposals could have a material and adverse effect on Accenture.
After considering a number of options and locations, the Board of Directors determined that changing Accentures place of incorporation to Ireland will provide the company with economic benefits and help ensure its continued global competitiveness.
In making this decision, we considered many factors, including:
| Continued criticism of companies incorporated in Bermuda. |
| The global nature of Accentures business. Accenture has offices in 52 countries and clients in more than 120 countries. We operate globally and manage our business through five industry-focused global operating groups. |
| The growing importance of Accentures Europe/Middle East/Africa (EMEA) region. EMEA, which includes Ireland, accounts for nearly half of Accentures total net revenues, is a region that we expect to provide continued opportunities for growth, and is home to many of our largest clients. |
| Irelands stable political and economic environment. Ireland has the financial and legal infrastructure to meet Accentures needs, both today and in the future. |
| Irelands sophisticated, well-developed corporate, legal and regulatory environment. A member of the European Union and the Organization for Economic Cooperation and Development (OECD), Ireland has a long history of international investment and long-established commercial relationships, trade agreements and tax treaties with European Union member states, the United States and other countries around the world where Accenture does business. |
| Accentures 40-year history as an employer and provider of services in Ireland. Accenture serves a wide range of clients in Ireland, including the Irish government, and has significant operations and a substantial presence there that has grown rapidly in recent years. |
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| Business continuity. Incorporating in Ireland will not result in any material change to Accentures operations, financial results or tax treatment. |
We cannot assure you that the anticipated benefits of the Transaction will be realized. In addition to the potential benefits described above, the Transaction will expose you and us to some risks. These risks include the following:
| your rights as a shareholder will change as a result of the Transaction due to differences between Irish law and Bermuda law; |
| legislative or regulatory action could materially and adversely affect us after the Transaction; |
| we may be subject to criticism and negative publicity related to the Transaction; |
| our effective tax rate may increase; |
| we may choose to abandon or delay the Transaction; |
| if the distributable reserves proposal is not approved, Accenture plc may not be able to pay dividends or buy back shares following the Transaction; |
| shareholder voting requirements in Ireland will reduce our flexibility to issue and buy back shares and enter into certain corporate transactions; |
| the transfer of Accenture plc Class A ordinary shares after the Transaction may be subject to Irish stamp duty if you do not hold your shares through a broker; |
| dividends paid after the Transaction may be subject to Irish dividend withholding tax if you are a resident in a country that does not have a tax treaty with Ireland; and |
| the market for Accenture plc shares may differ from the market for Accenture Ltd shares. |
Our Board of Directors has considered both the potential advantages of the Transaction and the associated risks and has approved the Scheme of Arrangement and unanimously recommends that the shareholders vote for the Scheme of Arrangement.
Please see Proposal Number One: The TransactionBackground and Reasons for the Transaction and Risk Factors for more information.
Tax Considerations of the Transaction
Under U.S. federal income tax law, holders of Accenture Ltd Class A and Class X common shares will generally not recognize gain or loss in the Transaction except with respect to any cash received for fractional Class A common shares. Those U.S. holders (as defined under Material Tax Considerations Relating to the Transaction) who hold 5% or more of Accenture Ltd Class A common shares may, however, be required to timely enter into and maintain a gain recognition agreement to avoid recognizing gain in the Transaction.
Accenture Ltd shareholders who are neither resident nor ordinarily resident in Ireland will not owe Irish tax on the receipt of Accenture plc shares in the Transaction. Accenture Ltd shareholders who are resident or ordinarily resident in Ireland should not owe Irish tax on the receipt of Accenture plc shares in the Transaction.
Determining the actual tax consequences of the Transaction to you will depend on your specific situation. Shareholders in certain other jurisdictions could recognize a gain or a loss as a result of the Transaction. Consult your tax advisor for a full understanding of the tax consequences of the Transaction to you.
Please refer to Material Tax Considerations Relating to the Transaction for a description of the material U.S. federal income tax and Irish tax consequences of the Transaction to Accenture Ltd Class A and Class X common shareholders.
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Many of the principal attributes of Accenture Ltd Class A and Class X common shares and Accenture plc Class A and Class X ordinary shares, respectively, will be similar. However, there are differences between what your rights as a Class A or a Class X ordinary shareholder will be under Irish law and what they currently are as a Class A or a Class X common shareholder under Bermuda law. In addition, there are differences between the organizational documents of Accenture plc and Accenture Ltd. We discuss these differences in detail under Description of Accenture plc Share Capital and Comparison of Rights of Shareholders and Powers of the Board of Directors. The forms of Accenture plcs memorandum and articles of association are attached to this proxy statement as Annex B.
If the Transaction becomes effective, the Transaction will not affect the stock exchange listing of Accentures shares. Immediately following the Transaction, the Accenture plc Class A ordinary shares will be listed on the NYSE under the symbol ACN, the same symbol under which Accenture Ltd Class A common shares are currently listed. Accenture Ltd shares are not listed on any other stock exchange. We do not intend to list the Accenture plc Class A ordinary shares on the Irish Stock Exchange or any other stock exchange. We do not intend to list the Accenture plc Class X ordinary shares on any stock exchange.
Court Approval of the Scheme of Arrangement
We cannot complete the Transaction without the authorization of the Scheme of Arrangement by the Supreme Court of Bermuda. Subject to the Class A and Class X common shareholders of Accenture Ltd approving the Scheme of Arrangement, a Supreme Court of Bermuda hearing will be required to authorize the Scheme of Arrangement. If we obtain the necessary approvals from Accenture Ltd Class A and Class X common shareholders respectively, the Supreme Court of Bermuda will hold the Sanction Hearing on or about .
At the Sanction Hearing, the Supreme Court of Bermuda may impose such conditions as it deems appropriate in relation to the Scheme of Arrangement, but may not impose any material changes without the joint consent of Accenture Ltd and Accenture plc. Accenture Ltd may, subject to U.S. securities law constraints, consent to any modification of the Scheme of Arrangement on behalf of the Class A and Class X common shareholders which the Supreme Court of Bermuda may think fit to approve or impose. In determining whether to exercise its discretion and authorize the Scheme of Arrangement, the Supreme Court of Bermuda will determine, among other things, whether the Scheme of Arrangement is fair to Accenture Ltd Class A and Class X common shareholders.
Reduction of Share Premium to Establish Distributable Reserves
Under Irish law, Accenture plc requires distributable reserves in its unconsolidated balance sheet prepared in accordance with Irish law to enable it to pay cash dividends and buy back shares. Immediately following the Transaction, the unconsolidated balance sheet of Accenture plc will not contain any distributable reserves because it is a newly formed holding company with no retained earnings. Class A and Class X common shareholders of Accenture Ltd are also being asked at the special general meeting to approve a reduction of share premium (similar to additional paid-in capital) to establish distributable reserves of Accenture plc. Distributable reserves are needed so that Accenture plc is in a position to pay dividends and buy back shares in the future. If the Class A and Class X common shareholders of Accenture Ltd approve the distributable reserves proposal and the Transaction is completed, we will seek to obtain the approval of the Irish High Court, which is required for the establishment of distributable reserves to be effective, as soon as practicable following implementation of the Transaction. The approval of the Irish High Court is expected to be obtained within two months of the consummation of the Transaction.
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Please see Description of Accenture plc Share CapitalDividends, Description of Accenture plc Share CapitalShare Repurchases, Redemptions and Conversions, Risk Factors and Proposal Number Two: Reduction of Share Premium to Establish Distributable Reserves.
Market Price and Dividend Information
On , 2009, the last trading day before the public announcement of the Transaction, the closing price of the Accenture Ltd Class A common shares on the NYSE was $ per share. On , 2009, the most recent practicable date before the date of this proxy statement, the closing price of the Accenture Ltd Class A common shares on the NYSE was $ per share.
Under Bermuda law, neither the Class A nor the Class X common shareholders of Accenture Ltd have any right to an appraisal of the value of their shares or payment for them in connection with the Transaction.
Accounting Treatment of the Transaction
Under U.S. GAAP, the Transaction represents a transaction between entities under common control. Assets and liabilities transferred between entities under common control are accounted for at cost. Accordingly, the assets and liabilities of Accenture plc will be reflected at their carrying amounts in the accounts of Accenture Ltd at the time of the Transaction.
Time, Place, Date and Purpose of the class meeting of Class A common shareholders. The special court-ordered class meeting of Class A common shareholders is scheduled to be held on , 2009 at , local time, at . At the meeting, Accenture Ltds Board of Directors will ask the Class A common shareholders of Accenture Ltd, voting as a class, to vote:
1. | to approve the Scheme of Arrangement as it applies to the Class A common shareholders; and |
2. | to approve a motion to adjourn the meeting to a later date to solicit additional proxies if there are insufficient proxies to approve the Scheme of Arrangement at the time of the meeting. |
If any other matters properly come before the meeting or any adjournments or postponements of the meeting, the persons named in the proxy card will vote the Class A common shares represented by all properly executed proxies in their discretion.
Time, Place, Date and Purpose of the class meeting of Class X common shareholders. The special court-ordered class meeting of Class X common shareholders is scheduled to be held on , 2009 at , local time, at . At the meeting, Accenture Ltds Board of Directors will ask the Class X common shareholders of Accenture Ltd, voting as a class, to vote:
1. | to approve the Scheme of Arrangement as it applies to the Class X common shareholders; and |
2. | to approve a motion to adjourn the meeting to a later date to solicit additional proxies if there are insufficient proxies to approve the Scheme of Arrangement at the time of the meeting. |
If any other matters properly come before the meeting or any adjournments or postponements of the meeting, the persons named in the proxy card will vote the Class X common shares represented by all properly executed proxies in their discretion.
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Time, Place, Date and Purpose of the special general meeting. The special general meeting is scheduled to be held on , 2009 at , local time, at . At the meeting, Accenture Ltds Board of Directors will ask the Class A and Class X common shareholders of Accenture Ltd, voting as a single class, to vote:
1. | to approve (subject to the Scheme of Arrangement being approved at the class meetings by both the Class A and Class X common shareholders) the reduction of share premium to establish distributable reserves of Accenture plc; and |
2. | to approve a motion to adjourn the meeting to a later date to solicit additional proxies if there are insufficient proxies to approve the proposals at the time of the meeting. |
If any other matters properly come before the meeting or any adjournments or postponements of the meeting, the persons named in the proxy card will vote the shares represented by all properly executed proxies in their discretion.
Record Date. Only holders of record of Accenture Ltd Class A or Class X common shares on , 2009 are entitled to notice of and to vote at the meetings or any adjournments or postponements of the meetings.
Quorum. At the class meetings to approve the Transaction, the presence of two or more persons in person or by proxy representing a majority of the Accenture Ltd Class A or Class X common shares outstanding and entitled to vote at the meeting constitutes a quorum for the conduct of business. At the special general meeting to approve the distributable reserves proposal, the presence of two or more persons in person or by proxy representing a majority of all votes that may be cast by holders of common shares entitled to vote at the meeting constitutes a quorum for the conduct of business.
Abstentions and broker non-votes will be counted as present for purposes of determining whether there is a quorum. A broker non-vote occurs when a nominee (such as a broker) holding shares for a beneficial owner abstains from voting on a particular proposal because the nominee does not have discretionary voting power for that proposal and has not received instructions from the beneficial owner on how to vote those shares.
Recommendation of the Board of Directors
The Accenture Ltd Board of Directors unanimously recommends that Accenture Ltd Class A and Class X common shareholders vote FOR each of the proposals at each of the meetings. Approval of the distributable reserves proposal is not a condition to the Transaction.
The Scheme of Arrangement must be approved at separate class meetings of Accenture Ltd Class A and Class X common shareholders by votes representing 75% or more in value of the shares and more than 50% of the holders voting at each meeting on the proposal. The affirmative vote of holders of the Accenture Ltd Class A and Class X common shares representing at least a majority of the shares, voting together at the special general meeting, is required to approve the distributable reserves proposal.
Please see The MeetingsRecord Date; Voting Rights; Vote Required for Approval.
General. A proxy card which applies to each of the meetings is being sent to each Accenture Ltd Class A and Class X common shareholder as of the record date. By submitting your proxy, you are legally authorizing another person to vote your shares. The enclosed proxy designates William D. Green, Pamela J. Craig and Douglas G. Scrivner to vote your shares in accordance with the voting instructions you indicate in your proxy. We have enclosed a single proxy card that has been divided into three sections corresponding to the three separate meetings.
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If you submit a proxy designating William D. Green, Pamela J. Craig and Douglas G. Scrivner as the individuals authorized to vote your shares, but you do not indicate how your shares are to be voted, then your shares will be voted by those individuals in accordance with the Board of Directors recommendations, which are described in this proxy statement. In addition, if any other matters are properly brought up at any meeting (other than the proposals contained in this proxy statement), then each of these individuals will have the authority to vote your shares on those matters in his or her discretion. The Board of Directors currently does not know of any matters to be raised at any meeting other than the proposals contained in this proxy statement.
If you do not wish to vote all of your Class A or Class X common shares in the same manner on any particular proposal(s), you may split your vote by clearly hand-marking the reverse side of the proxy card to indicate how you want to vote your Class A and Class X common shares, as applicable. You may not split your vote if you are voting via the Internet or by telephone.
If you do not specify on the enclosed proxy card that is submitted (or when giving your proxy via the Internet) how you want to vote your shares, the proxy holders will vote such unspecified shares FOR each of the proposals set forth in this proxy statement.
You may submit your proxy either by mail, by telephone (at the number set forth in the accompanying proxy materials) or via the Internet (www.cesvote.com). Please let us know whether you plan to attend each meeting by marking the appropriate box on the proxy card or by following the instructions provided when you submit your proxy by telephone or via the Internet. For more details about Internet proxies, please see The MeetingsHow You Can Vote. In order for a proxy to be validly submitted and for your shares to be voted in accordance with your proxy, we must receive your mailed proxy by 5:00 p.m., Eastern Time, on , 2009 ( , 2009 for Accenture employees and former employees who are submitting proxies for shares received through our employee plans and held by Citigroup). If you submit a proxy by telephone or via the Internet, then you may submit your voting instructions up until 6:00 a.m., Eastern Time, on , 2009 ( , 2009 for Accenture employees and former employees who are submitting proxies for shares received through our employee plans and held by Citigroup).
To vote your common shares directly, you may attend the applicable meeting and cast your vote in person. Class A common shareholders who hold their common shares in the street name of a broker must vote their shares in the manner prescribed by their broker. This applies to our employees who received, through our employee plans, shares that are held by Citigroup and/or UBS.
If you hold your Accenture Ltd Class A common shares in the name of a broker, the broker may generally vote your shares it holds in accordance with instructions received. Class A common shareholders who hold their shares through a broker must vote their shares in the manner prescribed by their broker. Therefore, please follow the instructions provided by your broker when voting your Accenture Ltd Class A common shares.
Revocation. You may revoke your proxy at any time before it is exercised at the meetings by sending a written notice to our General Counsel and Secretary at 50 W. San Fernando Street, 12th Floor, San Jose, California 95113, USA. Your notice must be received no later than one hour prior to the beginning of the first meeting. If you hold your Accenture Ltd common shares through a broker, you may revoke your proxy only in accordance with the instructions from your broker. If you wish to revoke a submitted proxy card and submit new voting instructions by mail, then you must sign, date and mail a new proxy card with your new voting instructions, which we must receive by 5:00 p.m., Eastern Time, on , 2009 ( , 2009 for Accenture employees and former employees who are submitting proxies for shares received through our employee plans and held by Citigroup). If you submitted your proxy by telephone or via the Internet, you may revoke your submitted proxy and/or submit new voting instructions by that same method, which must be received by 6:00 a.m., Eastern Time, on , 2009 ( , 2009 for Accenture employees and former employees who are submitting proxies for shares received through our employee plans and held by Citigroup).
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You also may revoke a proxy in person and vote your shares at the applicable meetings. Attending the meetings without taking one of the actions above will not revoke your proxy.
Selected Historical Financial and Other Data
The following table presents selected historical financial and other data for Accenture Ltd. The income statement data for fiscal years 2008, 2007, 2006, 2005 and 2004 and the six months ended February 28, 2009 and February 29, 2008 and the balance sheet data as of August 31, 2008, 2007, 2006, 2005 and 2004 and February 28, 2009 are derived from our consolidated financial statements. The selected historical financial and other data presented below should be read in conjunction with the financial statements and accompanying notes and Managements Discussion and Analysis of Financial Condition and Results of Operations included in Accenture Ltds Annual Report on Form 10-K for the year ended August 31, 2008 and Quarterly Report on Form 10-Q for the quarter ended February 28, 2009 and other financial information incorporated by reference in this proxy statement. Historical financial information may not be indicative of Accenture plcs future performance.
We have included no data for Accenture plc because this entity was not in existence during any of the periods shown below.
Year Ended August 31, | Six months ended | |||||||||||||
2008 | 2007 | 2006(1)(2) | 2005 | 2004 | February 28, 2009 |
February 29, 2008 | ||||||||
(in millions) | ||||||||||||||
Income Statement Data: |
||||||||||||||
Revenues before reimbursements (Net revenues) |
$23,387 | $19,696 | $16,646 | $15,547 | $13,673 | $11,286 | $11,285 | |||||||
Revenues |
25,314 | 21,453 | 18,228 | 17,094 | 15,113 | 12,128 | 12,160 | |||||||
Operating Income |
3,012 | 2,493 | 1,841 | 2,111 | 1,759 | 1,492 | 1,364 | |||||||
Income before minority interest |
2,197 | 1,723 | 1,433 | 1,509 | 1,223 | 1,096 | 1,039 | |||||||
Net Income |
1,692 | 1,243 | 973 | 940 | 691 | 891 | 788 |
(1) | Includes the financial impact of the resolution of the NHS matter recorded during fiscal 2006. See Managements Discussion and Analysis of Financial Condition and Results of OperationsResults of Operations for the Year Ended August 31, 2007 Compared to Year Ended August 31, 2006 in Accenture Ltds Annual Report on Form 10-K for the year ended August 31, 2008. |
(2) | Includes the impact of the adoption of Statement of Financial Accounting Standards No. 123R, Share-Based Payment. |
Year Ended August 31, | Six months ended | ||||||||||||||||||||
2008 | 2007 | 2006 | 2005 | 2004 | February 28, 2009 |
February 29, 2008 | |||||||||||||||
Earnings Per Class A Common Share: |
|||||||||||||||||||||
Basic |
$ | 2.77 | $ | 2.06 | $ | 1.65 | $ | 1.60 | $ | 1.25 | $ | 1.43 | $ | 1.29 | |||||||
Diluted |
2.65 | 1.97 | 1.59 | 1.56 | 1.22 | 1.37 | 1.24 | ||||||||||||||
Dividends per common share |
0.42 | 0.35 | 0.30 | | | 0.50 | 0.42 |
As of August 31, | As of February 28, 2009 | |||||||||||||||||
2008 | 2007 | 2006 | 2005 | 2004 | ||||||||||||||
(in millions) | ||||||||||||||||||
Balance Sheet Data: |
||||||||||||||||||
Cash and cash equivalents |
$ | 3,603 | $ | 3,314 | $ | 3,067 | $ | 2,484 | $ | 2,553 | $ | 2,978 | ||||||
Total assets |
12,399 | 10,747 | 9,497 | 8,957 | 8,013 | 10,557 | ||||||||||||
Long-term debt, net of current portion |
2 | 3 | 27 | 44 | 32 | 1 | ||||||||||||
Shareholders equity |
2,541 | 2,063 | 1,894 | 1,697 | 1,472 | 2,386 |
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Unaudited Summary Pro Forma Financial Information
Pro forma financial statements for Accenture plc are not presented in this proxy statement because no significant pro forma adjustments are required to be made to the historical income statement of Accenture Ltd for the year ended August 31, 2008 and the six months ended February 28, 2009 or the historical balance sheet as of February 28, 2009. Those financial statements are included in Accenture Ltds Annual Report on Form 10-K for the year ended August 31, 2008 and Quarterly Report on Form 10-Q for the period ended February 28, 2009, respectively.
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Before you decide how to vote, you should consider carefully the following risk factors related to the Transaction, in addition to the other information contained in this proxy statement and the documents incorporated by reference, including, without limitation, our Annual Report on Form 10-K for the year ended August 31, 2008, our Quarterly Report on Form 10-Q for the period ended February 28, 2009 and subsequent filings with the SEC.
Your rights as a shareholder will change as a result of the Transaction due to differences between Irish law and Bermuda law.
Because of differences between Irish law and Bermuda law, your rights as a shareholder will change and we will become subject to new legal requirements if the Transaction is completed. These differences include the following: Irish law could make it more difficult to obtain approval for certain merger transactions; the Accenture plc Board of Directors may only issue shares to the extent shareholders have approved such issuances during the prior five years; subsidiaries of Accenture plc may only purchase Accenture plc shares to the extent shareholders have approved such purchases during the prior 18 months; and shareholder approval is required to eliminate pre-emption rights. In addition, there are differences between the organizational documents of Accenture plc and Accenture Ltd.
We discuss these and other differences in detail under Description of Accenture plc Share Capital and Comparison of Rights of Shareholders and Powers of the Board of Directors. The forms of Accenture plcs memorandum and articles of association are attached to this proxy statement as Annex B.
Legislative or regulatory action could materially and adversely affect us after the Transaction.
Our tax position could be adversely impacted by changes in tax laws, tax treaties or tax regulations or the interpretation or enforcement thereof by any tax authority following the Transaction. For example, legislative proposals have been introduced in the U.S. Congress which, if enacted, could override tax treaties upon which we expect to rely, or could change the circumstances under which we would be treated as a U.S. person for U.S. federal income tax purposes, each of which could materially and adversely affect our effective tax rate and require us to take further action, at potentially significant expense, to seek to preserve our effective tax rate. We cannot predict the outcome of any specific legislative proposals. However, if proposals were enacted limiting our ability as an Irish company to take advantage of the tax treaties between Ireland and the U.S., we could be subjected to increased taxation and/or potentially significant expense. In addition, any future amendments to the current income tax treaties between Ireland and other jurisdictions (including the United States) could subject us to increased taxation and/or potentially significant expense. Also, various U.S. federal and state legislative proposals have been introduced and/or enacted in recent years that deny government contracts to certain U.S. companies that reincorporate or have reincorporated outside the United States. While Accenture was not a U.S. company that reincorporated outside the United States, the Transaction may not eliminate the risk that these contract bans and other legislative proposals could be enacted in a way to affect Accenture.
As an Irish company following the Transaction, we will be required to comply with numerous Irish and EU legal requirements. Compliance with EU and Irish laws and regulations may have a material and adverse effect on Accentures financial condition and results of operations.
We may be subject to criticism and negative publicity related to the Transaction.
There continues to be negative publicity regarding, and criticism of, companies that conduct business in the United States, but are domiciled in countries like Bermuda. While we were never a U.S. company, some former U.S. companies that have undertaken expatriation transactions to offshore jurisdictions, such as Bermuda, have
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been criticized as improperly avoiding U.S. taxes or creating an unfair competitive advantage over U.S. companies. We could become subject to criticism in connection with the Transaction.
Our effective tax rate may increase.
While the Transaction is not anticipated to have any material impact on our effective tax rate, there is uncertainty regarding the tax policies of the jurisdictions where we operate (which include the potential legislative actions described above), and our effective tax rate may increase and any such increase may be material. Additionally, the tax laws of Ireland and other jurisdictions could change in the future, and such changes could cause a material change in our effective tax rate.
We may choose to abandon or delay the Transaction.
We may abandon or delay the Transaction by action of our Board of Directors at any time prior to the Scheme of Arrangement becoming effective, even after the special court-ordered class meetings, special general meeting and the authorization of the Supreme Court of Bermuda. While we currently expect to complete the Transaction on , 2009, our Board of Directors may delay the Transaction for a significant time or may abandon the Transaction after the meetings because, among other reasons, of an increase in our estimated cost of the Transaction or a determination by the Board of Directors that completing the Transaction is no longer in our best interest or the best interests of our shareholders or may not result in the benefits we expect. Additionally, we may not be able to obtain the requisite shareholder or court approvals.
Please see Proposal Number One: The TransactionAmendment, Termination or Delay.
If the shareholders of Accenture Ltd do not approve the distributable reserves proposal, Accenture plc may not have sufficient distributable reserves to pay dividends or buy back shares following the Transaction.
Under Irish law, dividends must be paid out of distributable reserves, which Accenture plc will not have immediately following the Transaction. Shareholders of Accenture Ltd are being asked to approve the establishment of distributable reserves. These reserves are needed so that Accenture plc is in a position to pay dividends and buy back shares. The approval of this proposal is not a condition to the Transaction. The establishment of these reserves also requires the approval of the Irish High Court. Although we are not aware of any reason why the Irish High Court would not grant its approval, there is no guarantee if or when it will be obtained. If shareholders of Accenture Ltd approve the Scheme of Arrangement but do not approve this proposal or the Irish High Court does not approve the reduction of share premium, Accenture may be limited in its ability to pay dividends or buy back shares until we generate post-Transaction earnings.
Please see Proposal Number Two: Reduction of Share Premium to Establish Distributable Reserves, Description of Accenture plc Share CapitalDividends and Description of Accenture plc Share CapitalShare Repurchases, Redemptions and Conversions.
As a result of different shareholder voting requirements in Ireland relative to Bermuda, we will have less flexibility to issue and buy back shares and enter into certain corporate transactions.
BermudaUnder Bermuda law, our directors may issue, without shareholder approval, any authorized common shares that are not already issued. Unlike Irish law, Bermuda law does not impose any restrictions on the ability of subsidiaries of Accenture Ltd to make market purchases of Accenture Ltd Class A common shares.
IrelandUnder Irish law the Board of Directors may only issue shares with prior shareholder authorization. This authorization may be provided in advance of any specific transaction. Irish law also grants existing shareholders pre-emptive rights to participate in new issuances of shares for cash, subject to certain exceptions. However, shareholders may waive these rights in advance. Each of these authorizations must be renewed by the
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shareholders at least every five years. If shareholders do not renew these authorizations, our ability to issue equity could be limited. Under Irish law, subsidiaries of Accenture plc may only purchase Accenture plc Class A ordinary shares subject to conditions, including the general authorization of the ordinary shareholders of Accenture plc permitting subsidiaries to make such market purchases.
While we do not believe that the differences between Bermuda law and Irish law relating to our capital management will have a material adverse effect on us, situations may arise where we no longer have the same flexibility we currently have in Bermuda, which might reduce or eliminate certain benefits to our shareholders, including the issuance of shares.
In addition, we will become subject to the Irish Takeover Rules, under which the Board of Directors of Accenture plc will not be permitted to take any action which might frustrate an offer for the Accenture plc shares once the Board of Directors has received an approach which may lead to an offer or has reason to believe an offer is imminent. Further, it could be more difficult for Accenture to obtain shareholder approval for a merger or negotiated transaction after the Transaction because the shareholder approval requirements for certain types of transactions differ, and in some cases are greater, under Irish law than under Bermuda law.
Please see Comparison of Rights of Shareholders and Powers of the Board of DirectorsShareholder Approval of Business Combinations, Comparison of Rights of Shareholders and Powers of the Board of DirectorsAppraisal Rights, Comparison of Rights of Shareholders and Powers of the Board of Directors Disclosure of Interests in Shares and Comparison of Rights of Shareholders and Powers of the Board of DirectorsOther Anti-Takeover Measures.
After the Transaction, a future transfer of your Accenture plc Class A ordinary shares may be subject to Irish stamp duty.
Transfers by shareholders who hold their Accenture plc shares beneficially through banks, brokers, trustees, custodians or other nominees, which in turn hold those shares through DTC will not be subject to Irish stamp duty where such transfers are to holders who also hold through DTC. If you hold your Accenture plc Class A ordinary shares directly rather than beneficially, any purchase of your shares will be subject to Irish stamp duty. Irish stamp duty is currently at the rate of 1% of the price paid or the market value of the Class A ordinary shares acquired, if higher. Any transfer of Accenture plc Class A ordinary shares which is subject to Irish stamp duty will not be registered in the name of the buyer unless an instrument of transfer is executed by or on behalf of the seller, is duly stamped and is provided to our transfer agent. The potential for stamp duty could adversely affect the price of Accenture plc Class A ordinary shares.
Please see Material Tax Considerations Relating to the TransactionIrish Tax ConsiderationsStamp Duty.
Dividends you receive may be subject to Irish dividend withholding tax.
In certain circumstances, as an Irish tax resident company, we may be required to deduct Irish dividend withholding tax (currently at the rate of 20%) from dividends paid to our shareholders. Shareholders resident in relevant territories (including countries that are European Union member states (other than Ireland), the United States and other countries with which Ireland has a tax treaty) will generally not be subject to Irish withholding tax provided that, in each case, they complete certain tax forms. However, shareholders residing in other countries will generally be subject to withholding tax.
Please see Material Tax Considerations Relating to the TransactionIrish Tax ConsiderationsWithholding Tax on Dividends.
Accenture strongly recommends that each shareholder consult his or her own tax advisor as to the tax consequences of holding shares in and receiving dividends from Accenture.
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The market for the Accenture plc shares may differ from the market for the Accenture Ltd shares.
We intend to list the Accenture plc Class A ordinary shares on the NYSE under the symbol ACN, the same trading symbol as the Accenture Ltd Class A common shares. The market price, trading volume or volatility of the Accenture plc Class A ordinary shares could be different than those of the Accenture Ltd Class A common shares.
Based on the recent experience of other companies, the change in our place of incorporation will likely result in Accenture being removed from the Russell 1000 and 3000 indexes. There may be a negative impact on our share price as index-modeled shareholders may be required to sell our shares if we are no longer part of the Russell 1000 and 3000 indexes.
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Certain statements in this proxy statement and in the documents incorporated by reference in this proxy statement are forward-looking statements within the meaning of Section 27A of the U.S. Securities Act of 1933 (the Securities Act) and Section 21E of the U.S. Securities Exchange Act of 1934 (the Exchange Act) relating to our operations, results of operations and other matters that are based on our current expectations, estimates, assumptions and projections. Words such as may, will, should, likely, anticipates, expects, intends, plans, projects, believes, estimates and similar expressions are used to identify these forward-looking statements.
These statements are not guarantees of future performance and involve risks, uncertainties and assumptions that are difficult to predict. Forward-looking statements are based upon assumptions as to future events that may not prove to be accurate. Actual outcomes and results may differ materially from what is expressed or forecast in these forward-looking statements.
The factors that could cause actual future results to differ materially from current expectations include, but are not limited to, our ability to obtain approval of the Accenture Ltd Class A common shareholders, Class X common shareholders and the Supreme Court of Bermuda for and to satisfy the other conditions to the Transaction on the expected timeframe or at all, our ability to realize the expected benefits from the Transaction, the occurrence of difficulties in connection with the Transaction, and any unanticipated costs in connection with the Transaction.
The foregoing factors are in addition to those factors discussed under Risk Factors and Proposal Number One: The TransactionBackground and Reasons for the Transaction and elsewhere in this proxy statement, as well as those in the documents that we incorporate by reference into this proxy statement (including, without limitation, the Risk Factors section of our Annual Report on Form 10-K for the year ended August 31, 2008 and Quarterly Report on Form 10-Q for the period ended February 28, 2009 and subsequent SEC filings). There may be other risks and uncertainties that we are unable to predict at this time or that we currently do not expect to have a material adverse effect on our business. We expressly disclaim any obligation to update these forward-looking statements other than as required by law.
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PROPOSAL NUMBER ONE: THE TRANSACTION
The Transaction will change the place of incorporation of the company whose shares you own to Ireland from Bermuda.
As explained in more detail below, the Scheme of Arrangement on which we are asking you to vote will effect the Transaction.
There are several steps required to effect the Transaction. On , 2009, Accenture Ltd, the Bermuda company whose Class A or Class X common shares you currently own, formed a new Irish company, named Accenture plc, as a direct subsidiary. On , 2009, we applied to the Supreme Court of Bermuda to order the calling of class meetings of Accenture Ltd Class A and Class X common shareholders, respectively, to approve the Scheme of Arrangement. On , 2009, the Supreme Court of Bermuda ordered us to seek your approval of the Scheme of Arrangement. We will hold the special court-ordered class meetings to approve the Scheme of Arrangement and the associated special general meeting of shareholders on , 2009. If we obtain the necessary approvals from Accenture Ltd Class A and Class X common shareholders respectively, the Supreme Court of Bermuda will hold the Sanction Hearing scheduled to be held on or about , 2009 to authorize the Scheme of Arrangement. Assuming we receive the necessary approvals from Accenture Ltd Class A and Class X common shareholders and the Supreme Court of Bermuda and the conditions to consummation of the Transaction are satisfied (and we do not abandon the Transaction), we will file the court order authorizing the Scheme of Arrangement with the Bermuda Registrar of Companies, at which time the Scheme of Arrangement will become effective.
Various steps of the Transaction will effectively occur simultaneously at the time of the Transaction, which we anticipate will be before the opening of trading on the NYSE on the day the Scheme of Arrangement becomes effective.
At the time of the Transaction, the following steps will effectively occur:
1. | all previously outstanding whole Accenture Ltd Class A common shares will be cancelled; |
2. | Accenture Ltd will issue Accenture Ltd Class A common shares to Accenture plc; |
3. | Accenture plc will issue Class A ordinary shares on a one-for-one basis to the holders of whole Accenture Ltd Class A common shares that have been cancelled; |
4. | all fractional Accenture Ltd Class A common shares held of record will be cancelled and Accenture Ltd will pay to each holder an amount based on the average of the high and low trading prices of the Accenture Ltd Class A common shares on the NYSE on the business day immediately preceding the effective date of the Scheme of Arrangement; |
5. | all previously outstanding Accenture Ltd Class X common shares will be cancelled; |
6. | Accenture plc will issue Class X ordinary shares on a one-for-one basis to the holders of Accenture Ltd Class X common shares that have been cancelled; |
7. | all outstanding Accenture SCA Class I common shares, which had been redeemable for, at our election, cash or Accenture Ltd Class A common shares on a one-for-one basis, will instead become redeemable for, at our election, cash or Accenture plc Class A ordinary shares; |
8. | all outstanding Accenture Canada Holdings Inc. exchangeable shares will become exchangeable for, at our election, cash or Accenture plc Class A ordinary shares on a one-for-one basis rather than for Accenture Ltd Class A common shares; and |
9. | all Accenture plc ordinary shares outstanding prior to the Transaction, which are held by Accenture Ltd and its nominees, will be acquired by Accenture plc for no consideration and cancelled. |
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Accenture plc Class A and Class X ordinary shares issued pursuant to the Transaction will be fully paid and non-assessable.
As a result of the Transaction, the Class A and Class X common shareholders of Accenture Ltd will become Class A and Class X ordinary shareholders of Accenture plc, respectively, and Accenture Ltd will become a wholly owned subsidiary of Accenture plc. The current Board of Directors of Accenture Ltd will become the Board of Directors of Accenture plc. Following the Transaction, Accenture plc will have its corporate and tax residence in Ireland.
In connection with the completion of the Transaction, Accenture plc will assume the existing obligations of Accenture Ltd in connection with awards granted under Accenture Ltd equity incentive plans and other similar employee awards. In addition, any securities issued by Accenture Ltd or its subsidiaries, including Accenture SCA and Accenture Canada Holdings Inc., that are convertible, exchangeable or exercisable into or redeemable for Accenture Ltd Class A common shares will become convertible, exchangeable or exercisable into or redeemable for, as the case may be, an equal number of Accenture plc Class A ordinary shares. We intend that at the time of the Transaction Accenture plc will assume all other contractual obligations of Accenture Ltd. Subsequent to the Transaction we intend to wind down the affairs of Accenture Ltd.
As of the record date on 2009, Class A common shares (which number does not include issued Class A common shares held by subsidiaries of Accenture Ltd) were issued and outstanding and Class X common shares were issued and outstanding. Class A common shares held by our subsidiaries will be voted in a manner that will have no impact on the outcome of any vote of the shareholders of Accenture Ltd.
Background and Reasons for the Transaction
After careful consideration, our Board of Directors has determined that a change in place of incorporation is in the best interest of Accenture and its shareholders.
The Board of Directors believes that continued criticism of and negative publicity regarding companies that are incorporated in countries that do not have tax treaties with the United States, including Bermuda, could adversely affect us. Additionally, there have been, and could be in the future, legislative and/or regulatory proposals that could increase taxes for these companies or inhibit their ability to secure certain government contracts. If enacted, these proposals could have a material and adverse effect on Accenture.
After considering a number of options and locations, the Board of Directors determined that changing Accentures place of incorporation to Ireland will provide the company with economic benefits and help ensure its continued global competitiveness.
In making this decision, we considered many factors, including:
| Continued criticism of companies incorporated in Bermuda. |
| The global nature of Accentures business. Accenture has offices in 52 countries and clients in more than 120 countries. We operate globally and manage our business through five industry-focused global operating groups. |
| The growing importance of Accentures Europe/Middle East/Africa (EMEA) region. EMEA, which includes Ireland, accounts for nearly half of Accentures total net revenues, is a region that we expect to provide continued opportunities for growth, and is home to many of our largest clients. |
| Irelands stable political and economic environment. Ireland has the financial and legal infrastructure to meet Accentures needs, both today and in the future. |
| Irelands sophisticated, well-developed corporate, legal and regulatory environment. A member of the European Union and the Organization for Economic Cooperation and Development (OECD), Ireland |
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has a long history of international investment and long-established commercial relationships, trade agreements and tax treaties with European Union member states, the United States and other countries around the world where Accenture does business. |
| Accentures 40-year history as an employer and provider of services in Ireland. Accenture serves a wide range of clients in Ireland, including the Irish government, and has significant operations and a substantial presence that has grown rapidly in recent years. |
| Business continuity. Incorporating in Ireland will not result in any material change to Accentures operations, financial results or tax treatment. |
We cannot assure you that the anticipated benefits of the Transaction will be realized. In addition to the potential benefits described above, the Transaction will expose you and us to some risks. These risks include the following:
| your rights as a shareholder will change as a result of the Transaction due to differences between Irish law and Bermuda law; |
| legislative or regulatory action could materially and adversely affect us after the Transaction; |
| we may be subject to criticism and negative publicity related to the Transaction; |
| our effective tax rate may increase; |
| we may choose to abandon or delay the Transaction; |
| if the distributable reserves proposal is not approved, Accenture plc may not be able to pay dividends or buy back shares following the Transaction; |
| shareholder voting requirements in Ireland will reduce our flexibility to issue and buy back shares and enter into certain corporate transactions; |
| the transfer of Accenture plc Class A ordinary shares after the Transaction may be subject to Irish stamp duty if you do not hold your shares through a broker; |
| dividends paid after the Transaction may be subject to Irish dividend withholding tax if you are a resident in a country that does not have a tax treaty with Ireland; and |
| the market for Accenture plc shares may differ from the market for Accenture Ltd shares. |
Our Board of Directors has considered both the potential advantages of the Transaction and the associated risks and has approved the Scheme of Arrangement and unanimously recommends that the shareholders vote for the Scheme of Arrangement.
Please see the discussion under Risk Factors.
Amendment, Termination or Delay
Subject to U.S. securities law constraints, the Scheme of Arrangement may be amended, modified or supplemented at any time before or after its adoption by the Class A and Class X common shareholders of Accenture Ltd at the special court-ordered class meetings. However, after adoption of the Scheme of Arrangement by the shareholders, no amendment, modification or supplement to the Scheme of Arrangement may be made or effected that legally requires further approval by Accenture Ltd Class A or Class X common shareholders without obtaining that approval.
At the Sanction Hearing, the Supreme Court of Bermuda may impose such conditions as it deems appropriate in relation to the Scheme of Arrangement, but will not impose any material changes without the joint consent of Accenture Ltd and Accenture plc. Accenture Ltd may, subject to U.S. securities law constraints, consent to any modification of the Scheme of Arrangement on behalf of the Class A and Class X common shareholders which the Supreme Court of Bermuda may think fit to approve or impose.
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The Board of Directors of Accenture Ltd may terminate the Scheme of Arrangement and abandon the Transaction, or delay the Transaction, at any time prior to the effectiveness of the Scheme of Arrangement, without obtaining the approval of Accenture Ltd Class A or Class X common shareholders, even though the Scheme of Arrangement may have been approved by such shareholders and authorized by the Supreme Court of Bermuda and all other conditions to the Transaction may have been satisfied.
Unless the Scheme of Arrangement has become effective on or before , 2010 or such later date, if any, as Accenture Ltd may agree and the Supreme Court of Bermuda may allow, the Scheme of Arrangement will lapse by its terms and not come into effect.
The Transaction will not be completed unless, among other things, the following conditions are satisfied or, if allowed by law, waived:
| the Scheme of Arrangement is approved by the requisite vote of Class A and Class X common shareholders, voting as separate classes, of Accenture Ltd; |
| the requisite court order authorizing the Scheme of Arrangement is obtained from the Supreme Court of Bermuda; |
| there is no threatened, pending or effective decree, order, injunction or other legal restraint prohibiting the consummation of the Scheme of Arrangement or related transactions; |
| the Accenture plc Class A ordinary shares to be issued pursuant to the Transaction are authorized for listing on the NYSE, subject to official notice of issuance; |
| all consents and governmental authorizations that are necessary, desirable or appropriate in connection with the Scheme of Arrangement and related transactions are obtained on terms acceptable to Accenture Ltd and are in full force and effect; |
| Accenture Ltd receives an opinion from Simpson Thacher & Bartlett LLP, in form and substance reasonably satisfactory to it, confirming, as of the effective date of the Scheme of Arrangement, the matters discussed under Material Tax Considerations Relating to the TransactionU.S. Federal Income Tax Considerations; and |
| Accenture Ltd receives an opinion from Arthur Cox, Solicitors, in form and substance reasonably satisfactory to it, confirming, as of the effective date of the Scheme of Arrangement, the matters discussed under Material Tax Considerations Relating to the TransactionIrish Tax Considerations. |
Court Approval of the Scheme of Arrangement
Pursuant to Section 99 of the Bermuda Companies Act 1981 (the Bermuda Companies Act), the Scheme of Arrangement must be authorized by the court in Bermuda. This requires Accenture Ltd to file an application for the Scheme of Arrangement with the Supreme Court of Bermuda. Prior to the mailing of this proxy statement, Accenture Ltd obtained directions from the Supreme Court of Bermuda providing for the convening of class meetings of Accenture Ltd Class A and Class X common shareholders and other procedural matters regarding those meetings and the Supreme Court of Bermuda proceeding, including a date upon which the Supreme Court of Bermuda will hear Accentures application. A copy of the Supreme Court of Bermudas directions is attached as Annex D to this proxy statement. Subject to Class A and Class X common shareholders, voting as separate classes, approving the Scheme of Arrangement with the vote required by the Bermuda Companies Act, the Supreme Court of Bermuda will hold a Sanction Hearing, hear the Application and, we expect, authorize the Scheme of Arrangement.
At the Sanction Hearing, the Supreme Court of Bermuda may impose such conditions as it deems appropriate in relation to the Scheme of Arrangement, but may not impose any material changes without the joint consent of Accenture Ltd and Accenture plc. Accenture Ltd may, subject to U.S. securities law constraints,
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consent to any modification of the Scheme of Arrangement on behalf of the Class A and Class X common shareholders which the Supreme Court of Bermuda may think fit to approve or impose. In determining whether to exercise its discretion and authorize the Scheme of Arrangement, the Supreme Court of Bermuda will determine, among other things, whether the Scheme of Arrangement is fair to Accenture Ltd Class A and Class X common shareholders, considered as separate classes.
We expect the Sanction Hearing to be held on , 2009 at the Supreme Court of Bermuda in Hamilton, Bermuda. If you are a Class A or Class X common shareholder who wishes to appear in person or by counsel at the Sanction Hearing and present evidence or arguments in support of or opposition to the Scheme of Arrangement, you may do so. In addition, the Supreme Court of Bermuda has wide discretion to hear from interested parties. Accenture Ltd will not object to the participation in the Sanction Hearing by any Class A common shareholder who holds shares through a broker. In accordance with its terms, the Scheme of Arrangement will become effective as soon as a copy of the Order of the Supreme Court of Bermuda authorizing the Scheme of Arrangement has been delivered to the Registrar of Companies of Bermuda for registration as required by Section 99 of the Bermuda Companies Act.
Please see Proposal Number One: The TransactionConditions to the Transaction for more information on the conditions to the Transaction.
The Scheme of Arrangement is attached as Annex A to this proxy statement. At the special court-ordered class meetings, Accenture Ltd Class A and Class X common shareholders, voting as separate classes, will be asked to approve the Scheme of Arrangement. If the Class A and Class X common shareholders, voting as separate classes, approve the Scheme of Arrangement, then Accenture Ltd will apply for authorization of the Scheme of Arrangement at the Sanction Hearing. We encourage you to read the Scheme of Arrangement in its entirety for a complete understanding of its terms and conditions. A copy of the Scheme of Arrangement is attached as Annex A to this proxy statement.
Once the Scheme of Arrangement is effective, the Supreme Court of Bermuda will have exclusive jurisdiction to hear and determine any suit, action or proceeding and to settle any dispute which arises out of or is connected with the terms of the Scheme of Arrangement or its implementation or out of any action taken or omitted to be taken under the Scheme of Arrangement or in connection with the administration of the Scheme of Arrangement. A Class A or Class X common shareholder who wishes to enforce any rights under the Scheme of Arrangement after such time must notify Accenture Ltd in writing of its intention at least five business days prior to commencing a new proceeding. After the effective date of the Scheme of Arrangement, no shareholder may commence a proceeding against Accenture plc or Accenture Ltd in respect of or arising from the Scheme of Arrangement except to enforce its rights under the Scheme of Arrangement where a party has failed to perform its obligations under the Scheme of Arrangement.
When under any provision of the Scheme of Arrangement a matter is to be determined by Accenture Ltd, Accenture Ltd will have discretion to interpret those matters under the Scheme of Arrangement in a manner that it considers fair and reasonable, and its decisions will be binding on all concerned.
Federal Securities Law Consequences; Resale Restrictions
The issuance of Accenture plc Class A and Class X ordinary shares to Accenture Ltd shareholders in connection with the Transaction will not be registered under the Securities Act. Section 3(a)(10) of the Securities Act exempts securities issued in exchange for one or more outstanding securities from the general requirement of registration where the terms and conditions of the issuance and exchange of such securities have been approved by any court of competent jurisdiction, after a hearing upon the fairness of the terms and conditions of the issuance and exchange at which all persons to whom such securities will be issued have a right to appear and to whom adequate notice of the hearing has been given. In determining whether it is appropriate to authorize the Scheme of Arrangement, the Supreme Court of Bermuda will consider at the Sanction Hearing whether the terms and conditions of the Scheme of Arrangement are fair to Accenture Ltd Class A and Class X common
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shareholders. The Supreme Court of Bermuda has fixed the date and time for the Sanction Hearing, which is scheduled to be held at the Supreme Court of Bermuda in Hamilton, Bermuda, on , 2009, at , local time. The Accenture plc Class X ordinary shares issued to Accenture Ltd Class X common shareholders in connection with the Transaction will be subject to the same restrictions that currently apply to the Accenture Ltd Class X common shares. The Accenture plc Class A ordinary shares issued to Accenture Ltd Class A common shareholders in connection with the Transaction will be freely transferable, except as follows:
| Persons who are affiliates of Accenture Ltd or have been affiliates within 90 days prior to reselling any Accenture plc shares may resell any Accenture plc shares in the manner permitted by Rule 144. In computing the holding period of the Accenture plc shares for the purposes of Rule 144(d), such persons will be permitted to tack the holding period of their Accenture Ltd shares held prior to the time of the Transaction. |
| Persons whose Accenture Ltd common shares bear a legend restricting transfer will receive Accenture plc ordinary shares that are subject to the same restrictions. |
Persons who may be deemed to be affiliates of Accenture Ltd and Accenture plc for these purposes generally include individuals or entities that control, are controlled by, or are under common control with, Accenture Ltd and Accenture plc, and would generally not be expected to include shareholders who are not executive officers, directors or significant shareholders of Accenture Ltd and Accenture plc.
Accenture plc intends to file new registration statements and/or post-effective amendments to certain existing effective registration statements of Accenture Ltd currently applicable to Accenture Ltd Class A common shares that may be delivered to holders of Accenture SCA Class I shares and Accenture Canada Holdings Inc. exchangeable shares upon redemption of their shares. After the Transaction, these shares will be redeemable for, at our election, cash or Accenture plc Class A ordinary shares. In addition, Accenture plc intends to file new registration statements and/or post-effective amendments to certain other effective registration statements of Accenture Ltd concurrently with the completion of the Transaction.
Upon consummation of the Transaction, the Accenture plc ordinary shares will be deemed to be registered under Section 12(b) of the Exchange Act, by virtue of Rule 12g-3 under the Exchange Act, without the filing of any Exchange Act registration statement.
Effective Date and Time of the Transaction
If the Scheme of Arrangement is approved by the requisite shareholder class votes and authorized by the Supreme Court of Bermuda and the other conditions to the consummation of the Transaction are satisfied (and we do not abandon the Transaction), the Scheme of Arrangement will become effective upon our filing of the court order authorizing the Scheme of Arrangement with the Bermuda Registrar of Companies. Various steps of the Transaction will effectively occur simultaneously at the time of the Transaction, which we anticipate will be before the opening of trading on the NYSE on the day the Scheme of Arrangement becomes effective. The expected timetable for the Transaction is set forth in Annex E to this proxy statement.
In the event the conditions to the Transaction are not satisfied, the Transaction may be abandoned or delayed, even after approval by Accenture Ltd Class and Class X common shareholders and the authorization of the Supreme Court of Bermuda. In addition, the Transaction may be abandoned or delayed by our Board of Directors at any time prior to the Scheme of Arrangement becoming effective, without obtaining the approval of Accenture Ltd Class A or Class X common shareholders, even though the Scheme of Arrangement may have been approved by Accenture Ltd Class A and Class X common shareholders and authorized by the Supreme Court of Bermuda and all other conditions to the Transaction may have been satisfied.
Please see Proposal Number One: The TransactionAmendment, Termination or Delay.
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When the Transaction is completed, the executives and directors of Accenture Ltd immediately prior to the completion of the Transaction are expected to be the executives and directors of Accenture plc. Accenture plcs memorandum and articles of association provide for three classes of directors, just as Accenture Ltd currently has, and Accenture plcs Class III, Class I and Class II directors will be subject to re-election at the 2010, 2011 and 2012 annual general meetings of Accenture plc, respectively.
Exculpation and Indemnification
Accenture Ltds bye-laws contain provisions which release the directors and officers from liability provided that they have acted honestly and in good faith in the interests of the company; and indemnify them against all liabilities, losses, damages or expenses in respect of any negligence, default or breach of duty. In addition, no director or officer is liable for the acts, receipts, neglects or defaults of any other director or officer. The exemption from liability and indemnity provisions apply to the fullest extent permitted by law and so do not extend to fraud or dishonesty on the part of the directors and officers.
Accenture plcs articles of association do not contain analogous provisions to Accenture Ltds bye-laws releasing the directors and officers from liability where they have acted honestly and in good faith as such a release of liability is not possible under Irish law. Accenture plcs articles of association do contain indemnification and expense advancement provisions that are substantially similar to those provided in Accenture Ltds bye-laws. That indemnity is subject to the provisions of the Irish Companies Acts 1963-2006 (the Irish Companies Acts). Because the Irish Companies Acts prescribe that such an indemnity only permits a company to pay the costs or discharge the liability of a director or the secretary where judgment is given in favor of the director or secretary in any civil or criminal action in respect of such costs or liability, or where an Irish court grants relief because the director or secretary acted honestly and reasonably and ought fairly to be excused, the indemnity in Accenture plcs articles of association to the extent it applies to directors and the secretary of Accenture plc is more limited than the indemnity in Accenture Ltds bye-laws. This restriction does not apply to executives who are not directors or the secretary of Accenture plc.
In addition, in connection with the Transaction, we intend that Accenture Ltd (or one or more of its subsidiaries) will enter into indemnification agreements (or deed poll indemnities) with or as to each of Accenture plcs directors and secretary, providing for the indemnification of, and advancement of expenses to, these persons. We expect that the indemnification and expense advancement provided under these indemnification agreements (or deed poll indemnities) will be substantially similar to the indemnity currently afforded by Accenture Ltd under its bye-laws to its directors and officers.
For information on the limitations on the ability of an Irish company to indemnify its directors or its secretary, please see Comparison of Rights of Shareholders and Powers of the Board of DirectorsIndemnification of Directors and Officers; Insurance.
Interests of Certain Persons in the Transaction
Except for the indemnification arrangements described above, no person who has been a director or executive officer of Accenture Ltd at any time since the beginning of the last fiscal year, or any associate of any such person, has any substantial interest in the Transaction, except for any interest arising from his or her ownership of securities of Accenture Ltd or Accenture SCA, as the case may be. No such person is receiving any extra or special benefit not shared on a pro rata basis by all other holders of Accenture Ltd Class A and Class X common shares.
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Required Vote; Board Recommendation
The special court-ordered class meetings will be conducted in accordance with the directions of the Supreme Court of Bermuda. The presence, in person or by proxy, of the holders of a majority of the Accenture Ltd Class A and Class X common shares outstanding and entitled to vote at their respective class meetings constitutes a quorum for the conduct of business for the Accenture Ltd Class A and Class X common shareholder class meetings. The presence, in person or by proxy, of the holders of a majority of all votes that may be cast by all shareholders constitutes a quorum for the special general meeting. Abstentions and broker non-votes will be counted as present for purposes of determining whether there is a quorum in respect of the proposals. An abstention or broker non-vote on the proposals has the effect of a vote not being cast with respect to the relevant shares in relation to the proposal. As a consequence, such shares will not be considered when determining whether any proposal has received the required approval. Assuming the presence of quorums, the Scheme of Arrangement must be approved by a majority in number of the holders of both the Accenture Ltd Class A and Class X common shares, voting as separate classes, at separate class meetings, representing 75% or more in value of each of the Accenture Ltd Class A and Class X common shares voting on the proposal. The affirmative vote of holders of the Accenture Ltd Class A and Class X common shares representing at least a majority of the shares, voting together at the special general meeting, is required to approve the distributable reserves proposal.
Our Board of Directors has approved the Scheme of Arrangement and unanimously recommends that shareholders vote FOR approval of all of the proposals.
Please see The MeetingsRecord Date; Voting Rights; Vote Required for Approval.
We are not aware of any other governmental approvals or actions that are required to complete the Transaction other than compliance with U.S. federal and state securities laws and Bermuda and Irish corporate law. We do not believe that any significant regulatory approvals will be required to effect the Transaction.
Under Bermuda law, none of the shareholders of Accenture Ltd has any right to an appraisal of the value of their shares or payment for them in connection with the Transaction.
No Action Required to Cancel Accenture Ltd Shares and Receive Accenture plc Shares
Assuming the Transaction becomes effective, your Accenture Ltd Class A and Class X common shares will be cancelled and fully paid and non-assessable Accenture plc Class A and Class X ordinary shares, as applicable, will be issued to you without any action on your part, regardless of whether you currently hold Accenture Ltd Class A or Class X common shares in certificated form. All Accenture plc Class A and Class X ordinary shares will be issued in uncertificated book-entry form. Consequently, if you currently hold Accenture Ltd Class A common or Class X common shares in certificated form, following the Transaction, your share certificates will cease to have effect as documents or evidence of title. The transfer agent will make an electronic book-entry in your name and will mail you a statement documenting your ownership of Accenture plc shares.
On , 2009, the last trading day before the public announcement of the Transaction, the closing price of the Accenture Ltd Class A common shares on the NYSE was $ per share.
On November 17, 2008, Accenture Ltd paid a cash dividend of $0.50 per share on its Class A common shares and caused Accenture SCA to pay a cash dividend, in respect of the 2008 fiscal year, of $0.50 per share on its Class I common shares for shareholders. Future dividends, if any, on the Accenture plc Class A ordinary shares will be at the discretion of Accenture plcs Board of Directors and will depend on, among other things, our
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results of operations, cash requirements and surplus, financial condition, contractual restrictions and other factors that its Board of Directors may deem relevant, as well as our ability to pay dividends in compliance with Irish law. Any future dividends on the Accenture SCA Class I common shares will continue to be payable at the discretion of Accenture SCAs general partner.
Under Irish law, dividends must be paid out of distributable reserves, which Accenture plc will not have immediately following the time of the Transaction, because it is a newly formed holding company with no retained earnings.
Dividends are not paid on Accenture Ltd Class X common shares and will not be paid on Accenture plc Class X ordinary shares. Any dividends declared on Accenture plc ordinary shares will be paid in U.S. dollars.
For a description of the Irish tax rules relating to dividends, please see Material Tax Considerations Relating to the TransactionIrish Tax Considerations.
Please see Risk Factors, Description of Accenture plc Share CapitalDividends, Market Price and Dividend Information, Proposal Number One: The TransactionAmendment, Termination or Delay, and Proposal Number Two: Reduction of Share Premium to Establish Distributable Reserves.
If the Transaction is completed, Accenture plc will assume the existing obligations of Accenture Ltd in connection with awards granted under Accenture Ltds equity incentive plans and other similar employee awards. Those plans will be amended as necessary to give effect to the Transaction, including to provide (1) that Accenture plc Class A ordinary shares will be issued, held, available or used to measure benefits as appropriate under the plans, for Accenture Ltd Class A common shares, including upon exercise of any options or upon vesting of restricted stock units issued under those plans; and (2) for the appropriate substitution of Accenture plc for Accenture Ltd in those plans.
Accenture SCA Class I Common Shares and Accenture Canada Holdings Inc. Exchangeable Shares
After the Transaction, Accenture SCA Class I common shares and Accenture Canada Holdings Inc. exchangeable shares will become redeemable for, at our election, cash or Accenture plc Class A ordinary shares.
Accenture Ltd Class A common shares are currently listed on the NYSE. There is currently no established public trading market for the Accenture plc Class A ordinary shares. We intend to make application so that, immediately following the time of the Transaction, the Accenture plc Class A ordinary shares will be listed on the NYSE under the symbol ACN, the same symbol under which Accenture Ltd Class A common shares are currently listed. Accenture Ltd shares are not listed on any other stock exchange. We do not intend to list the Accenture plc Class A ordinary shares on the Irish Stock Exchange or any other stock exchange. We do not intend to list the Accenture plc Class X ordinary shares on any stock exchange.
Accounting Treatment of the Transaction
Under U.S. GAAP, the Transaction represents a transaction between entities under common control. Assets and liabilities transferred between entities under common control are accounted for at cost. Accordingly, the assets and liabilities of Accenture plc will be reflected at their carrying amounts in the accounts of Accenture Ltd at the time of the Transaction.
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Effect of the Transaction on Potential Future Status as a Foreign Private Issuer
Under SEC rules, companies organized outside of the United States that qualify as foreign private issuers remain subject to SEC regulation, but are exempt from certain requirements that apply to U.S. reporting companies. Accenture Ltd is not a foreign private issuer, and we do not expect that Accenture plc will be a foreign private issuer following the Transaction. Even if Accenture plc meets the tests for a foreign private issuer, we do not currently intend to avail ourselves of the benefits of being a foreign private issuer.
Upon completion of the Transaction, we will remain subject to SEC reporting requirements, the mandates of the Sarbanes-Oxley Act and the corporate governance rules of the NYSE, and we will continue to report our consolidated financial results in U.S. dollars and in accordance with U.S. GAAP.
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REDUCTION OF SHARE PREMIUM TO ESTABLISH DISTRIBUTABLE RESERVES
Under Irish law, Accenture plc requires distributable reserves in its unconsolidated balance sheet prepared in accordance with the Irish Companies Acts to enable it to pay cash dividends. In addition, distributable reserves are needed so that Accenture plc is in a position to buy back shares in the future. Immediately following the Transaction, the unconsolidated balance sheet of Accenture plc will not contain any distributable reserves, and shareholders equity in such balance sheet will be comprised entirely of (1) share capital, which is equal to the aggregate par value of the Accenture plc shares issued in the Transaction; and (2) share premium equal to: (a) the market value of the Accenture Ltd Class A common shares as of the close of trading on the NYSE on the day the Scheme of Arrangement becomes effective less (b) the share capital. The current shareholders of Accenture plc (which are Accenture Ltd and its nominees) have passed a resolution that would create distributable reserves following the Transaction by reducing the amount of share premium in excess of $ billion.
If the Scheme of Arrangement is approved, the shareholders of Accenture Ltd also will be asked at the special general meeting to approve the reduction of share premium to establish distributable reserves of Accenture plc that was previously approved by Accenture Ltd (in its capacity as shareholder of Accenture plc) and the other current shareholders of Accenture plc. If the shareholders of Accenture Ltd approve the reduction of share premium to establish distributable reserves and the Transaction is completed, we will seek to obtain the approval of the Irish High Court, which is required for the reduction of share premium to be effective, as soon as practicable following the Transaction. The approval of the Irish High Court is expected to be obtained within two months of the consummation of the Transaction.
The approval of the distributable reserves proposal is not a condition to the Transaction. The establishment of these reserves requires the approval of the Irish High Court. Although we are not aware of any reason why the Irish High Court would not grant its approval, there is no guarantee if or when it will be obtained. If shareholders of Accenture Ltd approve the Scheme of Arrangement but do not approve this proposal or the Irish High Court does not approve the reduction of share premium, Accenture may be limited in its ability to pay dividends or buy back shares until we generate post-Transaction earnings.
Please see Risk Factors, Description of Accenture plc Share CapitalDividends and Description of Accenture plc Share CapitalShare Repurchases, Redemptions and Conversions.
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MATERIAL TAX CONSIDERATIONS RELATING TO THE TRANSACTION
The information presented under the caption U.S. Federal Income Tax Considerations below is a summary of the material U.S. federal income tax consequences to U.S. holders and other holders (as defined below) of the Transaction and of investing in the Accenture plc shares received in the Transaction. The information presented under the caption Irish Tax Considerations is a summary of the material Irish tax consequences of the Transaction and of investing in the Accenture plc shares. The information presented under the caption Bermuda Tax Considerations is a summary of the material Bermuda tax consequences of the Transaction.
You should consult your tax advisor regarding the applicable tax consequences to you of the Transaction and investing in the Accenture plc shares under the laws of the United States (federal, state and local), Ireland, Bermuda and any other jurisdiction applicable to you.
U.S. Federal Income Tax Considerations
In General
The following summary sets forth the material U.S. federal income tax consequences of the Transaction to Accenture Ltds shareholders as of the date hereof. This summary does not address any tax consequences arising under the laws of any state, local or foreign jurisdiction, or under any United States federal laws other than those pertaining to income tax.
This summary is based upon the Internal Revenue Code of 1986, as amended (the Code), the regulations promulgated thereunder and court and administrative rulings and decisions in effect on the date of this document. These laws may change, possibly retroactively, and any change could affect the continuing validity of this summary.
This summary addresses only those holders that hold their Accenture Ltd shares as a capital asset within the meaning of Section 1221 of the Code. Further, unless otherwise indicated, this summary does not address all aspects of U.S. federal income taxation that may be relevant to you in light of your particular circumstances or that may be applicable to you if you are subject to special treatment under the U.S. federal income tax laws, including if you are:
| a financial institution; |
| a tax-exempt organization; |
| an S corporation or other pass-through entity (or an investor in an S corporation or other pass-through entity); |
| an insurance company; |
| a mutual fund; |
| a dealer in stocks and securities, or foreign currencies; |
| a trader in securities that elects the mark-to-market method of accounting for your securities; |
| a holder of Accenture Ltd stock that is subject to the alternative minimum tax provisions of the Code; |
| a holder of Accenture Ltd stock that received such stock through the exercise of employee stock options, through a tax-qualified retirement plan or otherwise as compensation; |
| a person who has been, but is no longer, a citizen or resident of the United States; |
| a U.S. holder (as defined below) that has a functional currency other than the U.S. dollar; |
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| a holder of Accenture Ltd stock who holds such stock as part of a hedge, straddle, a constructive sale or conversion transaction; |
| a holder of Accenture plc shares who, immediately after the Transaction, actually or constructively owns 10% or more of the total combined voting power of all classes of stock entitled to vote of Accenture plc; or |
| a holder of Accenture Ltd shares who, at any time within the five year period ending on the date of the Transaction, has actually or constructively owned 10% or more of the total combined voting power of all classes of stock entitled to vote of Accenture Ltd. |
This summary assumes, as we believe to be the case, that neither Accenture Ltd nor Accenture plc is currently, or was in the years preceding the Transaction (or will become), a passive foreign investment company under the Code.
Neither Accenture Ltd nor Accenture plc will request a ruling from the Internal Revenue Service (IRS) as to the U.S. federal income tax consequences of the Transaction, post-Transaction ownership and disposition of Accenture plc shares or any other matter. There can be no assurance that the IRS will not challenge any of the U.S. federal income tax consequences described below.
As used in the remainder of this summary, the term U.S. holder means a beneficial owner of Accenture Ltd shares (or record owner that does not hold such shares on behalf of another person), or, after the completion of the Transaction, Accenture plc shares, that is for U.S. federal income tax purposes:
| a citizen or resident of the United States; |
| a corporation created or organized in or under the laws of the United States or any political subdivision thereof; |
| an estate the income of which is subject to U.S. federal income taxation regardless of its source; or |
| a trust if it (a) is subject to the primary supervision of a court within the United States and one or more United States persons have the authority to control all substantial decisions of the trust or (b) has a valid election in effect under applicable Treasury regulations to be treated as a U.S. person. |
If a partnership (including any entity or arrangement treated as a partnership for U.S. federal income tax purposes) holds the Accenture Ltd or Accenture plc shares, the tax treatment of a partner will generally depend upon the status of the partner and the activities of the partnership. If you are a partner of a partnership holding Accenture Ltd shares, you should consult your advisors. An other holder is a holder (other than a partnership) that is not a U.S. holder.
All holders should consult their own tax advisors concerning the specific tax consequences of the Transaction in light of their particular circumstances. This summary is not intended to be, nor should it be construed to be, legal or tax advice to any particular investor and is intended only as a general guide.
Material Tax Consequences to U.S. Holders
The Transaction
The receipt by Accenture Ltd shareholders of Accenture plc shares pursuant to the Transaction will constitute a tax-free reorganization under Section 368(a) and/or a tax-free exchange under Section 351 of the Code. The summary below describes the material consequences to U.S. holders of the Transaction qualifying under Section 368 and/or Section 351 of the Code.
U.S. Holders Owning Less Than Five Percent of Accenture plc. Under Section 367(a) of the Code and the Treasury Regulations thereunder, U.S. holders who own (applying ownership attribution rules) less than five percent of the total voting power and the total value of Accenture plc immediately after the Transaction will not
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recognize gain or loss in the Transaction, except with respect to any cash received for fractional shares. The tax basis of the Accenture plc shares received by U.S. holders in the Transaction will be equal to the tax basis of their Accenture Ltd shares held prior to the Transaction, decreased by the amount of any tax basis allocable to any fractional shares for which cash is received. The holding period of the Accenture plc shares received by U.S. holders will include the period those holders held their Accenture Ltd shares. U.S. holders who hold their Accenture Ltd shares with differing tax bases or holding periods are urged to consult their tax advisors with regard to identifying the tax bases and holding periods of the particular Accenture plc shares received in the Transaction.
U.S. Holders Owning Five Percent or More of Accenture plc. Under Section 367(a) of the Code and the Treasury Regulations thereunder, U.S. holders who own (applying ownership attribution rules) five percent or more of the total voting power and the total value of Accenture plc immediately after the Transaction may be required to file and maintain with the IRS a gain recognition agreement and related materials, which we refer to as a GRA, in order to defer gain realized in the Transaction. Provided such holders timely file and maintain a GRA, (1) such holders will not recognize gain or loss in the Transaction, except with respect to any cash received for fractional shares, (2) the tax basis of the Accenture plc shares received by such holders in the Transaction will be equal to the tax basis of their Accenture Ltd shares held prior to the Transaction, decreased by the amount of any tax basis allocable to any fractional shares for which cash is received and (3) the holding period of the Accenture plc shares received by such holders will include the period those holders held their Accenture Ltd shares. Such U.S. holders will not be entitled to recognize a loss in the Transaction. Five percent or greater U.S. holders should consult their own tax advisor to determine whether and when to file a GRA and the tax implications thereof.
Cash Received For Fractional Shares. A U.S. holder who receives cash for fractional Accenture plc Class A ordinary shares will recognize capital gain or loss in an amount equal to the difference between the amount of cash received and the portion of the holders tax basis in the Accenture Ltd shares that was allocable to the fractional share. The capital gain or loss will be long term capital gain or loss if the holding period for the fractional share is more than one year as of the date of the Transaction.
Ownership of Accenture plc Shares
Distributions on Accenture plc Shares. Cash distributions on Accenture plc shares (including any amounts withheld to reflect Irish withholding tax) will be taxable as dividends to the extent paid out of Accenture plcs current or accumulated earnings and profits (as determined under U.S. federal income tax principles). These dividends will be includable in a U.S. holders gross income as ordinary income on the day they are actually or constructively received. Such dividends will not be eligible for the dividends-received deduction allowed to corporations under the Code.
With respect to non-corporate U.S. holders, certain dividends received in taxable years beginning before January 1, 2011 from a qualified foreign corporation may be subject to reduced rates of taxation. A qualified foreign corporation includes a foreign corporation that is eligible for the benefits of a comprehensive income tax treaty with the United States which the United States Treasury Department determines to be satisfactory for these purposes and which includes an exchange of information provision. The United States Treasury Department has determined that the current income tax treaty between the United States and Ireland meets these requirements, and Accenture plc believes it is eligible for the benefits of that treaty. A foreign corporation is also treated as a qualified foreign corporation with respect to dividends paid by that corporation on shares that are readily tradable on an established securities market in the United States. United States Treasury Department guidance indicates that Accenture plc shares, which are expected to be listed on the NYSE immediately following the Transaction, are readily tradable on an established securities market in the United States. There can be no assurance that Accenture plc shares will be considered readily tradable on an established securities market in later years. As a result of the rules described above, we believe Accenture plc will be a qualified foreign corporation. Non-corporate holders must hold their Accenture plc share for a minimum holding period, during which they are
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at the risk of loss, in order to be eligible for the reduced rates of taxation, regardless of Accenture plcs status as a qualified foreign corporation. Holders that elect to treat the dividend income as investment income pursuant to Section 163(d)(4) of the Code will not be eligible for the reduced rates of taxation. In addition, the rate reduction will not apply to dividends if the recipient of a dividend is obligated to make related payments with respect to positions in substantially similar or related property. This disallowance applies even if the minimum holding period has been met.
Subject to certain conditions and limitations, Irish withholding taxes on dividends may be treated as foreign taxes eligible for credit against a U.S. holders U.S. federal income tax liability. For purposes of calculating the foreign tax credit, distributions paid on Accenture plc shares that are treated as dividends for U.S. federal income tax purposes may be treated as income from sources outside the United States, in which case such income would generally constitute passive category income. Further, in certain circumstances, if a U.S. holder:
| has held Accenture plc shares for less than a specified minimum period during which such holder is not protected from risk of loss, or |
| is obligated to make payments related to the dividends, |
such U.S. holder will not be allowed a foreign tax credit for foreign taxes imposed on dividends paid on the Accenture plc shares. The rules governing the foreign tax credit are complex. U.S. holders are urged to consult their tax advisors regarding the availability of the foreign tax credit under their particular circumstances.
To the extent that the amount of any distribution exceeds Accenture plcs current and accumulated earnings and profits for a taxable year, as determined under U.S. federal income tax principles, the distribution will first be treated as a tax-free return of capital, causing a reduction in the adjusted basis of the Accenture plc shares (thereby increasing the amount of gain, or decreasing the amount of loss, to be recognized on a subsequent disposition of the shares), and the balance in excess of adjusted basis will be taxed as capital gain recognized on a sale or exchange. Consequently, such distributions in excess of Accenture plcs current and accumulated earnings and profits would generally not give rise to foreign source income and a U.S. holder would generally not be able to use the foreign tax credit arising from any Irish withholding tax imposed on such distributions unless such credit can be applied (subject to applicable limitations) against U.S. federal income tax due on other foreign source income in the appropriate category for foreign tax credit purposes.
Sale, Exchange or Other Taxable Disposition of Accenture plc Shares. For U.S. federal income tax purposes, a U.S. holder will recognize taxable gain or loss on any sale or exchange of Accenture plc shares in an amount equal to the difference between the amount realized for the shares and the U.S. holders tax basis in the shares. Such gain or loss will generally be capital gain or loss. Capital gains of individuals derived with respect to capital assets held for more than one year are eligible for reduced rates of taxation. The deductibility of capital losses is subject to limitations. Any gain or loss recognized will generally be treated as United States source gain or loss.
Treatment of Certain Irish Taxes
U.S. tax law does not allow a credit against income tax for any stamp duty or Irish capital acquisitions tax (as described under the heading Irish Tax Considerations) imposed on a U.S. holder. However, a U.S. holder may be entitled to deduct such taxes, subject to applicable limitations under the Code. U.S. holders should consult their tax advisors regarding the tax treatment of these Irish taxes.
Material Tax Consequences to Other Holders
The Transaction
In general, the receipt by other holders of Accenture plc shares following the cancellation of their Accenture Ltd shares in the Transaction will not be subject to U.S. federal income or withholding tax on any realized gain with respect to the Transaction.
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Ownership of Accenture plc Shares
Other holders of Accenture plc shares will generally not be subject to U.S. federal income or withholding tax on dividend income from Accenture plc and will not be subject to U.S. federal income or withholding tax on any gain recognized on a subsequent disposition of Accenture plc shares, unless:
| such gain or dividend income is effectively connected with the conduct by the other holder of a trade or business within the United States or, if a treaty applies, is attributable to a permanent establishment or fixed place of business maintained by such holder in the United States; or |
| in the case of capital gain of an other holder who is an individual, such holder is present in the United States for 183 days or more during the taxable year in which the capital gain is recognized and certain other conditions are met. |
Information Reporting and Backup Withholding
U.S. holders that own at least five percent (by vote or value) of Accenture plc immediately after the Transaction may be required to file certain Section 351 statements. U.S. holders that own at least five percent (by vote or value) of Accenture Ltd immediately before the Transaction will be required to file certain Section 368 reorganization statements.
In general, information reporting will apply to dividends in respect of Accenture plc shares and the proceeds from the sale, exchange or redemption of such shares that are paid within the United States (and in certain cases, outside the United States), unless the holder is an exempt recipient such as a corporation. A backup withholding tax may apply to such payments if the holder fails to provide a taxpayer identification number or certification of other exempt status or fails to report in full dividend and interest income.
Any amounts withheld under the backup withholding rules will be allowed as a refund or a credit against a holders U.S. federal income tax liability provided the required information is furnished to the IRS.
In order not to be subject to backup withholding tax on a subsequent disposition of Accenture plc shares, or dividends paid on those shares, an other holder may be required to provide a taxpayer identification number, certify the holders foreign status or otherwise establish an exemption.
Scope of Discussion
The following is a general summary of the main Irish tax considerations applicable to certain investors who are the beneficial owners of Accenture plc shares. It is based on existing Irish law and practices in effect on the date of this proxy statement and on discussions and correspondence with the Irish Revenue Commissioners. Legislative, administrative or judicial changes may modify the tax consequences described below.
The statements do not constitute tax advice and are intended only as a general guide. Furthermore, this information applies only to Accenture plc shares held as capital assets and does not apply to all categories of shareholders, such as dealers in securities, trustees, insurance companies, collective investment schemes and shareholders who have, or who are deemed to have, acquired their Accenture plc shares by virtue of an office or employment. This summary is not exhaustive and shareholders should consult their own tax advisors as to the tax consequences in Ireland, or other relevant jurisdictions of the Transaction, including the acquisition, ownership and disposition of the Accenture plc shares.
Irish Tax on Chargeable Gains
Neither the receipt by Accenture Ltd shareholders of Accenture plc shares as consideration for the cancellation of their Accenture Ltd shares in the Transaction nor the receipt of cash by Accenture Ltd shareholders for fractional shares in the Transaction will give rise to a liability to Irish tax on chargeable gains
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for persons that are neither resident nor ordinarily resident in Ireland for Irish tax purposes and do not hold such shares in connection with a trade or business carried on by such holder in Ireland through a branch or agency.
The issuance, pursuant to the Transaction, of Accenture plc shares to holders of Accenture Ltd shares who are resident or ordinarily resident for tax purposes in Ireland, or who hold their shares in connection with a trade or business carried on by such holder in Ireland through a branch or agency, should be treated as falling within the relief for a reorganization for the purposes of taxation of chargeable gains. Accordingly, the Accenture plc shares issued to holders of Accenture Ltd shares in accordance with their entitlements as holders of Accenture Ltd shares should be treated as the same asset and as acquired at the same time as the Accenture Ltd shares. The receipt of cash for fractional shares may trigger a liability to Irish tax on chargeable gains for such shareholders. Shareholders should consult their own tax advisor if they believe they may be subject to Irish tax.
Withholding Tax on Dividends
Distributions made by Accenture will generally be subject to dividend withholding tax (DWT) at the standard rate of income tax (currently 20 percent) unless one of the exemptions described below applies, which we believe will be the case for the majority of shareholders. DWT (if any) arises in respect of dividends paid after Accentures establishment of tax residency in Ireland, which is expected to occur before future dividend payments. For DWT purposes, a dividend includes any distribution made by Accenture to its shareholders, including cash dividends, non-cash dividends and additional stock or units taken in lieu of a cash dividend. Accenture is responsible for withholding DWT at source and forwarding the relevant payment to the Irish Revenue Commissioners.
Certain shareholders (both individual and corporate) are also entitled to an exemption from DWT. In particular, a non-Irish resident shareholder is not subject to DWT on dividends received from Accenture if the shareholder is:
| an individual shareholder resident for tax purposes in a relevant territory, and the individual is neither resident nor ordinarily resident in Ireland; |
| a corporate shareholder that is not resident for tax purposes in Ireland and which is ultimately controlled, directly or indirectly, by persons resident in a relevant territory; |
| a corporate shareholder resident for tax purposes in a relevant territory provided that the corporate shareholder is not under the control, whether directly or indirectly, of a person or persons who is or are resident in Ireland; |
| a corporate shareholder that is not resident for tax purposes in Ireland and whose principal class of shares (or those of its 75% parent) is substantially and regularly traded on a recognized stock exchange either in a relevant territory or on such other stock exchange approved by the Irish Minister for Finance; or |
| a corporate shareholder that is not resident for tax purposes in Ireland and is wholly owned, directly or indirectly, by two or more companies where the principal class of shares of each of such companies is substantially and regularly traded on a recognized stock exchange in a relevant territory or on such other stock exchange approved by the Irish Minister for Finance, |
and provided that, in all cases noted above but subject to the matters described below, the shareholder has provided the appropriate forms to his or her broker (and the relevant information is further transmitted to Accentures qualifying intermediary) before the record date for the dividend (in the case of shares held beneficially), or to Accentures transfer agent at least 7 business days before such record date (in the case of shares held directly).
Accenture expects to have an agreement in place with a transfer agent recognized by the Irish Revenue Commissioners as a qualifying intermediary. We expect this will satisfy one of the Irish requirements for dividends to be paid free of DWT to certain shareholders who hold their shares through DTC, as described
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below. The agreement generally provides for certain arrangements relating to cash distributions in respect of those shares of Accenture (the Deposited Securities) that are held through DTC. The agreement provides that the qualifying intermediary shall distribute or otherwise make available to Cede & Co., as nominee for DTC, any cash dividend or other cash distribution to be made to holders of the Deposited Securities, after Accenture delivers or causes to be delivered to the qualifying intermediary the cash to be distributed.
Accenture will rely on information received directly or indirectly from brokers and its transfer agent in determining where shareholders reside, whether they have provided the required U.S. tax information and whether they have provided the required Irish dividend withholding tax forms, as described below. Shareholders who are required to file Irish forms in order to receive their dividends free of DWT should note that such forms are valid for five years and new forms must be filed before the expiration of that period in order to continue to enable them to receive dividends without DWT. Links to the various Irish Revenue forms are available at http://www.revenue.ie/en/tax/dwt/forms/index.html.
For a list of relevant territories as defined for the purposes of DWT, please see Annex C to this proxy statement.
Shares Held by U.S. Resident Shareholders
Dividends paid on Accenture shares that are owned by residents of the U.S. and held beneficially will not be subject to DWT provided that the address of the beneficial owner of the shares in the records of the broker is in the U.S. Accenture strongly recommends that such shareholders ensure that their information has been properly recorded by their brokers (so that such brokers can further transmit the relevant information to Accentures qualifying intermediary).
Dividends paid on Accenture shares that are owned by residents of the U.S. and held directly will not be subject to DWT if the shareholder held shares on , 2009 and has provided a valid Form W-9 showing a U.S. address to Accentures transfer agent or if the shareholder becomes a shareholder after , 2009 and has provided the appropriate Irish dividend withholding tax forms to the transfer agent, in either case, at least 7 business days before the record date for the first dividend to which they are entitled. Accenture strongly recommends that such shareholders ensure that the appropriate Form W-9 has been provided to Accentures transfer agent.
If any shareholder who is resident in the U.S. receives a dividend subject to DWT, he or she should generally be able to make an application for a refund from the Irish Revenue Commissioners on the prescribed form.
Shares Held by Residents of Relevant Territories Other Than the U.S.
Shareholders who are residents of relevant territories other than the U.S. who held their shares on , 2009 will generally receive dividends paid on or before , 2010 without any DWT. For shares held beneficially, dividends will be paid on or before , 2010 without any DWT if the address of the relevant shareholder in his or her brokers records is in a relevant territory other than the U.S. Accenture strongly recommends that such shareholders ensure that their information has been properly recorded by their brokers (so that such brokers can further transmit the relevant information to Accentures qualifying intermediary). For shares held directly, dividends will be paid on or before , 2010 without any DWT if the shareholder has provided a valid form W-8 showing an address in a relevant territory other than the U.S. to Accentures transfer agent at least 7 business days before the record date for the first dividend to which they are entitled. Accenture strongly recommends that such shareholders ensure that appropriate tax form has been provided to Accentures transfer agent.
Shareholders who are residents of relevant territories other than the U.S. who acquire all of their shares after , 2009 must complete the appropriate Irish dividend withholding tax forms in order to receive
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their dividends without DWT. Such shareholders must provide the appropriate Irish dividend withholding tax forms to their brokers (so that such brokers can further transmit the relevant information to Accentures qualifying intermediary) before the record date for the first dividend payment to which they are entitled (in the case of shares held beneficially), or to Accentures transfer agent at least 7 business days before such record date (in the case of shares held directly). Accenture strongly recommends that such shareholders complete the appropriate Irish forms and provide them to their brokers or Accentures transfer agent, as the case may be, as soon as possible after acquiring their shares.
In addition, all shareholders who are residents of relevant territories other than the U.S. (regardless of when such shareholders acquired their shares) must complete the appropriate Irish dividend withholding tax forms in order to receive their dividends after , 2010 without DWT. Such shareholders must provide the appropriate Irish forms to their brokers (so that such brokers can further transmit the relevant information to Accentures qualifying intermediary) before the record date for the first dividend paid after , 2010 (in the case of shares held beneficially), or to Accentures transfer agent at least 7 business days before such record date (in the case of shares held directly). Accenture strongly recommends that such shareholders complete the appropriate Irish forms and provide them to their brokers or Accentures transfer agent, as the case may be, as soon as possible.
If any shareholder who is resident in a relevant territory receives a dividend subject to DWT, he or she may make an application for a refund from the Irish Revenue Commissioners on the prescribed form.
Please note that this exemption from DWT does not apply to an Accenture shareholder (other than a body corporate) that is resident or ordinarily resident in Ireland or to a body corporate that is under the control, whether directly or indirectly, of a person or persons who is or are resident in Ireland.
However, it may be possible for such a shareholder to rely on a tax treaty to limit the applicable DWT. Shareholders should consult their own tax advisor if they believe they may be subject to DWT.
Shares Held by Residents of Ireland
Most Irish tax resident or ordinarily resident shareholders will be subject to DWT in respect of dividend payments on their Accenture plc shares.
Shareholders that are residents of Ireland but are entitled to receive dividends without DWT must complete the appropriate Irish forms and provide them to their brokers (so that such brokers can further transmit the relevant information to Accentures qualifying intermediary) before the record date for the first dividend to which they are entitled (in the case of shares held beneficially), or to Accentures transfer agent at least 7 business days before such record date (in the case of shares held directly). Shareholders who are resident or ordinarily resident in Ireland or are otherwise subject to Irish tax should consult their own tax advisor.
Shares Held by Other Persons
Accenture shareholders who do not reside in relevant territories or in Ireland will be subject to DWT, but there are a number of other exemptions that could apply on a case-by-case basis. Dividends paid to such shareholders will be paid subject to DWT unless the relevant shareholder has provided the appropriate Irish dividend withholding tax form to his or her broker (so that such broker can further transmit the relevant information to Accentures qualifying intermediary) prior to the record date for the first dividend to which they are entitled (in the case of shares held beneficially), or to Accentures transfer agent at least 7 business days before such record date (in the case of shares held directly). Accenture strongly recommends that such shareholders to whom an exemption applies complete the appropriate Irish forms and provide them to their brokers or Accentures transfer agent, as the case may be, as soon as possible.
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If any shareholder who is not a resident of a relevant territory or Ireland but is exempt from withholding receives a dividend subject to DWT, he or she may make an application for a refund from the Irish Revenue Commissioners on the prescribed form.
Income Tax on Dividends Paid on Accenture plc Shares
Irish income tax (if any) arises in respect of dividends paid by Accenture plc.
A shareholder who is neither resident nor ordinarily resident in Ireland and who is entitled to an exemption from DWT, generally has no liability for Irish income tax or the income and health levies on a dividend from Accenture plc unless the shareholder holds Accenture shares through a branch or agency in Ireland through which a trade is carried on. A shareholder who is neither resident nor ordinarily resident in Ireland and who is not entitled to an exemption from DWT generally has no additional Irish income tax liability or a liability to the income or health levy unless the shareholder holds Accenture shares through a branch or agency in Ireland through which a trade is carried on. The DWT deducted by Accenture discharges such liability to Irish income tax provided that the shareholder furnishes the statement of DWT imposed to the Irish Revenue.
A shareholder who is a resident of a relevant territory or is otherwise exempt from DWT should be able to make a reclaim of the DWT from the Irish Revenue Commissioners unless the shareholder holds Accenture shares through a branch or agency in Ireland through which a trade is carried on.
Irish resident or ordinarily resident shareholders may be subject to Irish tax and/or levies on dividends received from Accenture plc. Such shareholders should consult their own tax advisor.
Capital Acquisitions Tax
Irish capital acquisitions tax (CAT) comprises principally of gift tax and inheritance tax. CAT could apply to a gift or inheritance of Accenture plc ordinary shares irrespective of the place of residence, ordinary residence or domicile of the parties. This is because Accenture plc ordinary shares are regarded as property situated in Ireland as the share register of Accenture must be held in Ireland. The person who receives the gift or inheritance has primary liability for CAT.
CAT is levied at a rate of 22% above certain tax-free thresholds. This rate will increase to 25% with effect from April 8, 2009, assuming that the finance bill 2009 is enacted in its current form. The appropriate tax-free threshold is dependent upon (1) the relationship between the donor and the donee and (2) the aggregation of the values of previous gifts and inheritances received by the donee from persons within the same group threshold. Gifts and inheritances passing between spouses are exempt from CAT.
Shareholders should consult their own tax advisor as to whether CAT is creditable or deductible in computing any domestic tax liabilities.
Stamp Duty
Irish stamp duty (if any) becomes payable in respect of share transfers occurring after completion of the Transaction.
No stamp duty will be payable on the Transaction.
A transfer of Accenture plc Class A ordinary shares effected by transfer of a book-entry interest in DTC will not be subject to Irish stamp duty. Other transfers of Accenture plc Class A ordinary shares may be subject to Irish stamp duty (currently at the rate of 1% of the price paid or the market value of the Class A ordinary shares acquired, if higher) payable by the buyer.
Accordingly, we strongly recommend that all directly registered shareholders open broker accounts so they can transfer their Class A common shares into a broker account to be held through DTC as soon as possible, and in any event prior to completion of the Transaction. We also strongly recommend that any person who wishes to acquire Accenture plc Class A ordinary shares after completion of the Transaction acquires such Class A ordinary shares beneficially.
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Accenture plc does not intend to pay any stamp duty. However, Accenture plcs articles of association allow Accenture plc, in its absolute discretion, to create an instrument of transfer and to pay any stamp duty payable by a buyer. In the event of any such payment, Accenture plc may seek reimbursement. Any transfer of Accenture plc Class A ordinary shares that is subject to Irish stamp duty will not be registered in the name of the buyer unless an instrument of transfer is duly stamped and provided to our transfer agent.
The Transaction will not result in any income tax consequences under Bermuda law to Accenture Ltd or Accenture plc or their respective shareholders.
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DESCRIPTION OF ACCENTURE PLC SHARE CAPITAL
The following description of Accenture plcs share capital is a summary. This summary is not complete and is subject to the complete text of Accenture plcs forms of memorandum and articles of association attached as Annex B to this proxy statement and to the Irish Companies Acts. We encourage you to read those laws and documents carefully. There are differences between Accenture Ltds memorandum of continuance and bye-laws and Accenture plcs memorandum and articles of association; however, there are no material differences between those documents, except for changes:
(i) that are required by Irish law (i.e., certain provisions of the Accenture Ltd bye-laws were not replicated in the Accenture plc articles of association because Irish law would not permit such replication, and certain provisions were included in the Accenture plc articles of association although they were not in the Accenture Ltd bye-laws because Irish law requires such provisions to be included in the articles of association of an Irish public limited company);
(ii) that eliminate certain provisions that are no longer applicable due to the passage of time (e.g., transfer restrictions on shares received by partners of Accenture at the time of our corporate formation in 2001); or
(iii) that are necessary in order to preserve the current rights of shareholders and powers of the Board of Directors of Accenture following the Transaction.
See Comparison of Rights of Shareholders and Powers of the Board of Directors. Except where otherwise indicated, the description below reflects Accenture plcs memorandum and articles of association as those documents will be in effect upon completion of the Transaction.
Authorized Share Capital. The authorized share capital of Accenture plc is 40,000 and US$517,500 divided into 40,000 ordinary shares with a nominal value of 1 per share, 20,000,000,000 Class A ordinary shares with a nominal value of US$0.0000225 per share, and 1,000,000,000 Class X ordinary shares with a nominal value of US$0.0000225 per share and 2,000,000,000 undesignated shares with a nominal value of US$0.0000225 per share. The authorized share capital includes 40,000 ordinary shares with a nominal value of 1 per share in order to satisfy statutory requirements for all Irish public limited companies commencing operations.
Accenture plc has the authority to issue authorized but unissued Class A ordinary shares, Class X ordinary shares or undesignated shares. The undesignated shares may be designated and issued as preferred shares, without further vote or action by our shareholders up to the maximum number authorized. In connection with the Transaction, Accenture plc will also assume Accenture Ltds existing obligations to deliver shares under our equity incentive plans and other similar employee awards pursuant to the terms thereof.
The authorized share capital may be increased or reduced by way of an ordinary resolution of Accenture plcs shareholders. The shares comprising the authorized share capital of Accenture plc may be divided into shares of such nominal value as the resolution shall prescribe.
As a matter of Irish law, the directors of a company may issue authorized but unissued new ordinary or preferred shares without shareholder approval once authorized to do so by the articles of association of the company or by an ordinary resolution adopted by the shareholders at a general meeting. An ordinary resolution requires over 50% of the votes of a companys shareholders cast at a general meeting. The authority conferred can be granted for a maximum period of five years, at which point it must be renewed by the shareholders of the company by an ordinary resolution. Because of this requirement of Irish law, the articles of association of Accenture plc authorize the Board of Directors of Accenture plc to issue new ordinary or preferred shares without shareholder approval for a period of five years from the date of Accenture plcs incorporation.
The rights and restrictions to which the ordinary shares will be subject will be prescribed in Accenture plcs articles of association. Accenture plcs articles of association entitle the Board of Directors, without shareholder approval, to determine the terms of the undesignated shares issued by Accenture plc. The Accenture plc Board of
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Directors is authorized, without obtaining any vote or consent of the holders of any class or series of shares unless expressly provided by the terms of that class or series of shares, to provide from time to time for the issuance of other classes or series of preferred shares through the issue of the authorized but unissued undesignated shares and to establish the characteristics of each class or series, including the number of shares, designations, relative voting rights, dividend rights, liquidation and other rights, redemption, repurchase or exchange rights and any other preferences and relative, participating, optional or other rights and limitations not inconsistent with applicable law.
Irish law does not recognize fractional shares held of record; accordingly, Accenture plcs articles of association do not provide for the issuance of fractional Accenture plc shares and the official Irish register of Accenture plc will not reflect any fractional shares.
Under Irish law and the memorandum and articles of association of Accenture plc there are no limitations on the right of nonresidents of Ireland or owners who are not citizens of Ireland to hold or vote shares of Accenture plc.
Issued Share Capital. Immediately prior to the Transaction, the issued share capital of Accenture plc will be 40,000, comprised of 40,000 ordinary shares, with nominal value of 1 per share (the Euro Share Capital). In connection with the consummation of the Transaction, the Euro Share Capital will be acquired by Accenture plc and will then be cancelled by Accenture plc. We expect that Accenture plc will then issue a number of Class A and Class X ordinary shares, each with a nominal value of US$0.0000225 that is equal to the number of whole Accenture Ltd Class A and Class X common shares that will be cancelled as part of the Transaction. Accenture plc Class A and Class X common shares issued pursuant to the Transaction will be fully paid and non-assessable.
Pre-emption Rights, Share Warrants and Share Options
Certain statutory pre-emption rights apply automatically in favor of Accenture plc shareholders where shares in Accenture plc are to be issued for cash. However, Accenture plc has opted out of these pre-emption rights in its articles of association as permitted under Irish law. Because Irish law requires this opt-out to be renewed every five years by a special resolution of the shareholders, Accenture plcs articles of association provide that this opt-out will lapse five years after the incorporation of Accenture plc. A special resolution requires not less than 75% of the votes of Accenture plc shareholders cast at a general meeting. If the opt-out is not renewed, shares issued for cash must be offered to pre-existing shareholders of Accenture plc pro rata to their existing shareholding before the shares can be issued to any new shareholders. The statutory pre-emption rights do not apply where shares are issued for non-cash consideration and do not apply to the issue of non-equity shares (that is, shares that have the right to participate only up to a specified amount in any income or capital distribution).
The articles of association of Accenture plc provide that, subject to any shareholder approval requirement under any laws, regulations or the rules of any stock exchange to which Accenture plc is subject, the Board of Directors is authorized, from time to time, in its discretion, to grant such persons, for such periods and upon such terms as the Board of Directors deems advisable, options to purchase such number of shares of any class or classes or of any series of any class as the Board of Directors may deem advisable, and to cause warrants or other appropriate instruments evidencing such options to be issued. The Irish Companies Acts provide that directors may issue share warrants or options without shareholder approval once authorized to do so by the articles of association or an ordinary resolution of shareholders. The Board of Directors may issue shares upon exercise of warrants or options without shareholder approval or authorization.
Accenture plc will be subject to the rules of the NYSE that require shareholder approval of certain share issuances.
Under Irish law, dividends and distributions may only be made from distributable reserves. Distributable reserves, broadly, means the accumulated realized profits of Accenture plc less accumulated realized losses of Accenture plc. At incorporation, there are no distributable reserves. No dividend may be made unless the net assets of Accenture plc are equal to, or in excess of, the aggregate of Accenture plcs called up share capital plus
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undistributable reserves and the distribution does not reduce Accenture plcs net assets below such aggregate. Undistributable reserves include the share premium account, the capital redemption reserve fund and the amount by which Accenture plcs accumulated unrealized profits, so far as not previously utilized by any capitalization, exceed Accenture plcs accumulated unrealized losses, so far as not previously written off in a reduction or reorganization of capital.
The determination as to whether or not Accenture plc has sufficient distributable reserves to fund a dividend must be made by reference to relevant accounts of Accenture plc. The relevant accounts will be either the last set of unconsolidated annual audited financial statements or unaudited financial statements prepared in accordance with the Irish Companies Acts, which give a true and fair view of Accenture plcs unconsolidated financial position and accord with accepted accounting practice. The relevant accounts must be filed in the Companies Registration Office (the official public registry for companies in Ireland).
Accenture plc will not have any distributable reserves immediately following the time of the Transaction. Please see Risk Factors and Proposal Number Two: Reduction of Share Premium to Establish Distributable Reserves.
The mechanism as to who declares a dividend and when a dividend shall become payable is governed by the articles of association of Accenture plc. Accenture plcs articles of association authorize the directors to declare such dividends as appear justified from the profits of Accenture plc without the approval of the shareholders at a general meeting. The Board of Directors may also recommend a dividend to be approved and declared by the shareholders at a general meeting. Although the shareholders may direct that the payment be made by distribution of assets, shares or cash, no dividend issued may exceed the amount recommended by the directors. The dividends can be declared and paid in the form of cash or non-cash assets.
The directors of Accenture plc may deduct from any dividend payable to any member all sums of money (if any) payable by such member to Accenture plc in relation to the Accenture plc ordinary shares.
The directors of Accenture plc are also entitled to issue shares with preferred rights to participate in dividends declared by Accenture plc in one or more series and to fix the rights, preferences, privileges and restrictions attaching to those shares, including dividend rights, conversion rights, voting rights, redemption terms and prices, liquidation preferences and the numbers of shares constituting any series and the designation of any series, without further vote or action by the shareholders. The holders of such preferred shares may, depending on their terms, be entitled to claim arrears of a declared dividend out of subsequently declared dividends in priority to ordinary shareholders.
Any series of preferred shares could, as determined by Accenture plcs Board of Directors at the time of issuance, rank senior to the Accenture plc ordinary shares with respect to dividends, voting rights, redemption and/or liquidation rights. These preferred shares are of the type commonly known as blank-check preferred stock.
Holders of Accenture plc Class X ordinary shares are not entitled to receive dividends and are not entitled to be paid any amount upon a winding-up of Accenture plc.
For information about the Irish tax issues relating to dividend payments, please see Material Tax Considerations Relating to the TransactionIrish Tax Considerations.
Share Repurchases, Redemptions and Conversions
Overview
Article 5(b)(iv) of Accenture plcs articles of association provides that any ordinary share which Accenture plc has acquired or agreed to acquire shall be deemed to be a redeemable share. Accordingly, for Irish law purposes, the repurchase of ordinary shares by Accenture plc will technically be effected as a redemption of
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those shares as described below under Repurchases and Redemptions by Accenture plc. If the articles of association of Accenture plc did not contain Article 5(b)(iv), repurchases by Accenture plc would be subject to many of the same rules that apply to purchases of Accenture plc shares by subsidiaries described below under Purchases by Subsidiaries of Accenture plc, including the shareholder approval requirements described below and the requirement that any on-market purchases be effected on a recognized stock exchange. Except where otherwise noted, when we refer elsewhere in this proxy statement to repurchasing or buying back Accenture plc Class A or Class X ordinary shares, we are referring to the redemption of ordinary shares by Accenture plc pursuant to Article 5(b)(iv) of the articles of association or the purchase of Accenture plc ordinary shares by a subsidiary of Accenture plc, in each case in accordance with the Accenture plc articles of association and Irish law as described below.
Accenture plc Class A and Class X Ordinary Shares
Accenture plc may redeem, at its option, any Class X ordinary share for a redemption price equal to the nominal value of the Class X ordinary share, or $0.0000225 per share. Accenture plc, as successor to Accenture Ltd, has separately agreed with the original holders of Accenture SCA Class I common shares and Accenture Canada Holdings Inc. exchangeable shares not to redeem any Class X ordinary share of such holder if the redemption would reduce the number of Class X ordinary shares held by that holder to a number that is less than the number of Accenture SCA Class I common shares or Accenture Canada Holdings Inc. exchangeable shares owned by that holder. Accenture plc will redeem Class X ordinary shares upon the redemption or exchange of Accenture SCA Class I common shares and Accenture Canada Holdings Inc. exchangeable shares so that the aggregate number of Class X ordinary shares outstanding at any time does not exceed the aggregate number of Accenture SCA Class I common shares and Accenture Canada Holdings Inc. exchangeable shares outstanding. Class X ordinary shares are not transferable without the consent of Accenture plc.
Accenture SCA Class I common shares and Accenture Canada Holdings Inc. exchangeable shares were initially issued to some of our partners in connection with our corporate formation in 2001. These shares are redeemable for, at our election, cash or Accenture Ltd Class A common shares. In connection with the Transaction, these shares will become redeemable for, at our election, cash or Accenture plc Class A ordinary shares. The redemption price will be generally equal to the market price for Accenture plc Class A ordinary shares at the time of the redemption.
Please see Comparison of Rights of Shareholders and Powers of the Board of DirectorsDistributions and Dividends; Repurchases and Redemptions below.
Repurchases and Redemptions by Accenture plc
Under Irish law, a company can issue redeemable shares and redeem them out of distributable reserves (which are described above under Dividends) or the proceeds of a new issue of shares for that purpose. Accenture plc will not have any distributable reserves immediately following the time of the Transaction because it is a newly formed holding company with no retained earnings. The issue of redeemable shares may only be made by Accenture plc where the nominal value of the issued share capital that is not redeemable is not less than 10% of the nominal value of the total issued share capital of Accenture plc. All redeemable shares must also be fully paid and the terms of redemption of the shares must provide for payment on redemption. Redeemable shares may, upon redemption, be cancelled or held in treasury. Shareholder approval will not be required to redeem Accenture plc shares, and these shares are redeemable at the option of Accenture plc.
The Board of Directors of Accenture plc will also be entitled to issue preferred shares which may be redeemed at the option of either Accenture plc or the shareholder, depending on the terms of such preferred shares. Please see Capital StructureAuthorized Share Capital above for additional information on redeemable shares.
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Repurchased and redeemed Class A ordinary shares may be cancelled or held as treasury shares. The nominal value of treasury shares held by Accenture plc at any time must not exceed 10% of the nominal value of the issued share capital of Accenture plc. While Accenture plc holds shares as treasury shares, it cannot exercise any voting rights in respect of those shares. Treasury shares may be cancelled by Accenture plc or re-issued subject to certain conditions.
Please see Risk Factors and Proposal Number Two: Reduction of Share Premium to Establish Distributable Reserves.
Purchases by Subsidiaries of Accenture plc
Under Irish law, it may be permissible for an Irish or non-Irish subsidiary to purchase Accenture plc shares either on-market or off-market. A general authority of the shareholders of Accenture plc is required to allow a subsidiary of Accenture plc to make on-market purchases of Accenture plc shares; however, as long as this general authority has been granted, no specific shareholder authority for a particular on-market purchase by a subsidiary of Accenture plc shares is required. We expect that Accenture plc will seek to renew such general authority, which must expire no later than 18 months after the date on which it was granted, at the first annual general meeting of Accenture plc in 2010 and at subsequent annual general meetings. In order for a subsidiary of Accenture plc to make an on-market purchase of Accenture plcs shares, such shares must be purchased on a recognized stock exchange. The NYSE, on which the Accenture plc Class A ordinary shares will be listed following the Transaction, is not currently specified as a recognized stock exchange for this purpose by Irish law. We understand, however, that it is likely that the Irish authorities will take appropriate steps in the near future to add the NYSE to the list of recognized stock exchanges. For an off-market purchase by a subsidiary of Accenture plc, the proposed purchase contract must be authorized by special resolution of the shareholders of Accenture plc before the contract is entered into. The person whose shares are to be bought back cannot vote in favor of the special resolution and, for at least 21 days prior to the special resolution, the purchase contract must be on display or must be available for inspection by shareholders at the registered office of Accenture plc.
The number of shares held by the subsidiaries of Accenture plc at any time will count as treasury shares for the purposes of the permitted treasury share threshold of 10% of the nominal value of the issued share capital of Accenture plc. While a subsidiary holds Accenture plc shares, it cannot exercise any voting rights in respect of those shares. The acquisition of the Accenture plc shares by a subsidiary must be funded out of distributable reserves of the subsidiary.
Existing Share Repurchase Program
The Board of Directors of Accenture has previously authorized a program to repurchase up to $1,538 million of the Accenture Ltd Class A common shares, Accenture SCA Class I common shares and Accenture Canada Holdings Inc. exchangeable shares. Prior to the consummation of the Transaction, we expect (a) the Board of Directors of Accenture plc to authorize the repurchase of Accenture plc shares by Accenture plc and (b) Accenture Ltd and its nominee shareholders of Accenture plc to authorize the purchase of Accenture plc shares by subsidiaries of Accenture plc, such that Accenture plc and its subsidiaries will be authorized to purchase shares in an aggregate amount approximately equal to the then remaining authorization under the existing Accenture Ltd share repurchase program.
As noted above, because repurchases of Accenture plc shares by Accenture plc will technically be effected as a redemption of those shares pursuant to Article 5(b)(iv) of the articles of association, separate shareholder approval for such repurchases will not be required.
However, because purchases of Accenture plc shares by subsidiaries of Accenture plc may be made only on a recognized stock exchange and only if the required shareholder approval has been obtained, we expect that the shareholder authorization for purchases by subsidiaries of Accenture plc described above will be effective as
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of the later of (i) the time of the Transaction and (ii) the date on which the NYSE becomes a recognized stock exchange for this purpose. We intend to seek to renew shareholder approval of this authorization at the 2010 annual general meeting of Accenture plc.
Under Accenture plcs articles of association, the Board of Directors may resolve to capitalize any amount credited to any reserve or fund available for distribution or the share premium account of Accenture plc for issuance and distribution to shareholders as fully paid bonus shares on the same basis of entitlement as would apply in respect of a dividend distribution.
Consolidation and Division; Subdivision
Under its articles of association, Accenture plc may by ordinary resolution of its Class A and Class X ordinary shareholders, voting as a single class, consolidate and divide all or any of its share capital into shares of larger nominal value than its existing shares or subdivide its shares into smaller amounts than is fixed by its articles of association.
Accenture plc may, by ordinary resolution, reduce its authorized share capital. Accenture plc also may, by special resolution and subject to confirmation by the Irish High Court, reduce or cancel its issued share capital.
General Meetings of Shareholders
Accenture plc will be required to hold an annual general meeting within eighteen months of incorporation and at intervals of no more than fifteen months thereafter, provided that an annual general meeting is held in each calendar year following the first annual general meeting, no more than nine months after Accenture plcs fiscal year-end. The first annual general meeting of Accenture plc may be held outside Ireland. Thereafter, any annual general meeting may be held outside Ireland if a resolution so authorizing has been passed at the preceding annual general meeting. Because of the fifteen-month requirement described in this paragraph, Accenture plcs articles of association include a provision reflecting this requirement of Irish law. At any annual general meeting only such business shall be conducted as shall have been brought before the meeting (a) by or at the direction of the Board of Directors or (b) by any member entitled to vote at such meeting who complies with the procedures set forth in the articles of association. Please see Comparison of Rights of Shareholders and Powers of the Board of DirectorsDirector Nominations; Proposals of Shareholders below.
Extraordinary general meetings of Accenture plc may be convened by (i) the Board of Directors, (ii) on requisition of the shareholders holding not less than 10% of the paid up share capital of Accenture plc carrying voting rights or (iii) on requisition of Accenture plcs auditors. Extraordinary general meetings are generally held for the purposes of approving shareholder resolutions of Accenture plc as may be required from time to time. At any extraordinary general meeting only such business shall be conducted as is set forth in the notice thereof.
Notice of a general meeting must be given to all shareholders of Accenture plc and to the auditors of Accenture plc. The minimum notice periods under Irish law are 21 days notice in writing for an annual general meeting or an extraordinary general meeting to approve a special resolution and 14 days notice in writing for any other extraordinary general meeting. Accenture plcs articles of association provide a minimum notice period of 30 days for an annual general meeting and 21 days for an extraordinary general meeting to approve a special
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resolution to approximate the equivalent provisions of Accenture Ltds bye-laws. Accenture plcs articles of association provide for a minimum notice period of 14 days notice for all other extraordinary general meetings reflecting these requirements of Irish law.
In the case of an extraordinary general meeting convened by shareholders of Accenture plc, the proposed purpose of the meeting must be set out in the requisition notice. The requisition notice can contain any resolution. Upon receipt of this requisition notice, the Board of Directors has 21 days to convene a meeting of Accenture plcs shareholders to vote on the matters set out in the requisition notice. This meeting must be held within two months of the receipt of the requisition notice. If the Board of Directors does not convene the meeting within such 21-day period, the requisitioning shareholders, or any of them representing more than one half of the total voting rights of all of them, may themselves convene a meeting, which meeting must be held within three months of the receipt of the requisition notice.
The only matters which must, as a matter of Irish law, be transacted at an annual general meeting are the presentation of the annual accounts, balance sheet and reports of the directors and auditors, the appointment of auditors and the fixing of the auditors remuneration (or delegation of same). If no resolution is made in respect of the reappointment of an auditor at an annual general meeting, the previous auditor will be deemed to have continued in office.
The articles of association of Accenture plc provide for a Board of Directors that is divided into three classes serving staggered three-year terms. Directors are elected by the affirmative vote of a majority of the votes cast by shareholders. Shareholders do not have cumulative voting rights. Accordingly, the holders of a majority of the voting rights attaching to the Accenture plc Class A and Class X ordinary shares will, as a practical matter, be entitled to control the election of all directors. At each annual general meeting, directors will be elected for a full term of three years to succeed those directors of the relevant class whose terms are expiring. Any nominee for director who does not receive a majority of the votes cast is not elected to the Board of Directors. Holders of Class A and Class X ordinary shares are entitled to one vote per each such share at all meetings at which directors are elected. Accenture plcs articles of association provide for a minimum number of directors of eight. If at any time the number of directors falls below the minimum, the remaining directors may act only for the purposes of appointing additional directors to satisfy the requirements of the articles of association with respect to the minimum number of directors.
Accenture plcs articles of association provide that a director may be removed with or without cause at the request of not less than 75% of the other directors.
If the directors become aware that the net assets of Accenture plc are half or less of the amount of Accenture plcs share capital and share premium, the directors of Accenture plc must convene an extraordinary general meeting of Accenture plcs shareholders not later than 28 days from the date that they learn of this fact. This meeting must be convened for the purposes of considering whether any, and if so what, measures should be taken to address the situation.
All votes at a general meeting will be decided by way of poll. Every shareholder shall on a poll have one vote for each Class A or Class X ordinary share that he or she holds as of the record date for the meeting (and, except as otherwise provided by the Irish Companies Acts or Accenture plcs memorandum and articles of association, the holders of Class A and Class X ordinary shares shall vote as a single class). Voting rights on a poll may be exercised by shareholders registered in Accenture plcs share register as of the record date for the meeting or by a duly appointed proxy of such a registered shareholder, which proxy need not be a shareholder. All proxies must be appointed in the manner prescribed by Accenture plcs articles of association. The articles of association of Accenture plc permit the appointment of proxies by the shareholders to be notified to Accenture plc electronically.
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Except where a greater majority is required by Irish law or Accenture plcs memorandum and articles of association, any question proposed for consideration at any general meeting of Accenture plc or of any class of shareholders shall be decided by a simple majority of the votes cast by shareholders entitled to vote at such meeting.
In accordance with the articles of association of Accenture plc, the directors of Accenture plc may from time to time cause Accenture plc to issue preferred shares. These preferred shares may have such voting rights as may be specified in the terms of such preferred shares (e.g., they may carry more votes per share than ordinary shares or may entitle their holders to a class vote on such matters as may be specified in the terms of the preferred shares).
Treasury shares and shares of Accenture plc held by subsidiaries of Accenture plc will not be entitled to vote at general meetings of shareholders.
Irish law requires special resolutions of the shareholders at a general meeting to approve certain matters. A special resolution requires not less than 75% of the votes cast of Accenture plcs shareholders at a general meeting. This may be contrasted with ordinary resolutions, which require a simple majority of the votes of Accenture plcs shareholders cast at a general meeting. Examples of matters requiring special resolutions include:
| Amending the objects of Accenture plc; |
| Amending the articles of association of Accenture plc; |
| Approving the change of name of Accenture plc; |
| Authorizing the entering into of a guarantee or provision of security in connection with a loan, quasi-loan or credit transaction to a director or connected person; |
| Opting out of pre-emption rights on the issuance of new shares; |
| Re-registration of Accenture plc from a public limited company as a private company; |
| Purchase of own shares off-market; |
| Reduction of share capital; |
| Resolving that Accenture plc be wound up by the Irish courts; |
| Resolving in favor of a shareholders voluntary winding-up; |
| Re-designation of shares into different share classes; |
| Setting the re-issue price of treasury shares; and |
| Mergers with companies incorporated in the European Union (as described below). |
A scheme of arrangement with one or more classes of shareholders requires a court order from the Irish High Court and the approval of: (1) 75% by value of the voting members of each class of shares participating in the scheme of arrangement; and (2) more than 50% in number of the voting members of each class of shares participating in the scheme of arrangement, at a meeting called to approve the scheme.
Variation of Rights Attaching to a Class or Series of Shares
Variation of all or any special rights attached to any class of Accenture plc shares is addressed in the articles of association of Accenture plc as well as the Irish Companies Acts. Any variation of class rights attaching to the issued Accenture plc shares must be approved by a special resolution of the shareholders of the class affected or by the written consent of the holders of not less than 75% of the shareholders of the class affected.
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The presence of two shareholders, in person or by proxy and having the right to attend and vote at the meeting, and of the holders of more than 50% of the Accenture plc ordinary shares outstanding constitutes a quorum for the conduct of business (provided that, if Accenture plc has only one shareholder, one shareholder present in person or by proxy will constitute a quorum). No business may take place at a general meeting of Accenture plc if a quorum is not present in person or by proxy. The Board of Directors has no authority to waive quorum requirements stipulated in the articles of association of Accenture plc. Abstentions and broker non-votes will be counted as present for purposes of determining whether there is a quorum in respect of the proposals. A broker non-vote occurs when a nominee (such as a broker) holding shares for a beneficial owner abstains from voting on a particular proposal because the nominee does not have discretionary voting power for that proposal and has not received instructions from the beneficial owner on how to vote those shares.
Inspection of Books and Records
Under Irish law, shareholders have the right to: (i) receive a copy of the memorandum and articles of association of Accenture plc and any act of the Irish Government which alters the memorandum of association of Accenture plc; (ii) inspect and obtain copies of the minutes of general meetings and resolutions of Accenture plc; (iii) inspect and receive a copy of the register of shareholders, register of directors and secretaries, register of directors interests and other statutory registers maintained by Accenture plc; (iv) receive copies of balance sheets and directors and auditors reports which have previously been sent to shareholders prior to an annual general meeting; and (v) receive balance sheets of a subsidiary company of Accenture plc which have previously been sent to shareholders prior to an annual general meeting for the preceding ten years. The auditors of Accenture plc will also have the right to inspect all books, records and vouchers of Accenture plc. The auditors report must be circulated to the shareholders with Accenture plcs Irish Financial Statements 21 days before the annual general meeting and must be read to the shareholders at Accenture plcs annual general meeting.
Prior to the Transaction, Accenture plcs Board of Directors intends to adopt a resolution, consistent with resolutions previously adopted by Accenture Ltds Board of Directors, providing that its shareholders have the right to inspect, at a principal place of business in the United States, copies of certain of our books and records, including shareholder names, addresses, and shareholdings in accordance with the terms set forth in the Model Business Corporation Act, as that act may be amended from time to time. If the Model Business Corporation Act does not provide access to the shareholder names, addresses, and shareholdings, these books and records will be made available for inspection by our shareholders for purposes properly related to their status as shareholders.
There are a number of mechanisms for acquiring an Irish public limited company, including:
(a) | a court-approved scheme of arrangement under the Irish Companies Acts. A scheme of arrangement with one or more classes of shareholders requires a court order from the Irish High Court and the approval of: (1) 75% by value of the voting members of each class of shares participating in the scheme of arrangement; and (2) more than 50% in number of the voting members of each class of shares participating in the scheme of arrangement, at a meeting called to approve the scheme; |
(b) | through a tender offer by a third party for all of the Accenture plc shares. Where the holders of 80% or more of a class of Accenture plcs shares have accepted an offer for their shares in Accenture plc, the remaining shareholders in that class may be statutorily required to also transfer their shares. If the bidder does not exercise its squeeze out right, then the non-accepting shareholders in that class also have a statutory right to require the bidder to acquire their shares on the same terms. If Accenture plc shares were listed on the Irish Stock Exchange or another regulated stock exchange in the EU, this threshold would be increased to 90%; and |
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(c) | it is also possible for Accenture plc to be acquired by way of a merger with an EU-incorporated public company under the EU Cross Border Merger Directive 2005/56. Such a merger must be approved by a special resolution. If Accenture plc is being merged with another EU public company under the EU Cross Border Merger Directive 2005/56 and the consideration payable to Accenture plcs shareholders is not all in the form of cash, Accenture plcs shareholders may be entitled to require their shares to be acquired at fair value. |
Under Irish law, there is no requirement for a companys shareholders to approve a sale, lease or exchange of all or substantially all of a companys property and assets. However, Accenture plcs articles of association provide that the approval of (i) the Board of Directors by a resolution passed with the approval of a majority of those directors then in office and eligible to vote on that resolution and (ii) a shareholder resolution passed by a majority of votes cast on the relevant record date is required to approve a sale, lease or exchange of all or substantially all of its property or assets.
Generally, under Irish law, shareholders of an Irish company do not have appraisal rights. Under the EC (Cross-Border Mergers) Regulations 2008 governing the merger of an Irish public limited company and a company incorporated in the European Economic Area, a shareholder (a) who voted against the special resolution approving the merger or (b) of a company in which 90% of the shares is held by the other company the party to the merger of the transferor company, has the right to request that the company acquire its shares for cash.
Disclosure of Interests in Shares
Under the Irish Companies Acts, there is a notification requirement for shareholders who acquire or cease to be interested in 5% of any class of voting shares of an Irish public limited company. A shareholder of Accenture plc must therefore make such a notification to Accenture plc if as a result of a transaction the shareholder will be interested in 5% or more of the Accenture plc Class A ordinary shares or 5% or more of the Accenture plc Class X ordinary shares; or if as a result of a transaction a shareholder who was interested in more than 5% of the relevant class of Accenture plc shares ceases to be so interested. Where a shareholder is interested in more than 5% of the Accenture plc Class A ordinary shares or 5% or more of the Accenture plc Class X ordinary shares, any alteration of his or her interest that brings his or her total holding through the nearest whole percentage number, whether an increase or a reduction, must be notified to Accenture plc. The relevant percentage figure is calculated by reference to the aggregate nominal value of the shares in which the shareholder is interested as a proportion of the entire nominal value of the relevant class of share capital. Where the percentage level of the shareholders interest does not amount to a whole percentage this figure may be rounded down to the next whole number. All such disclosures should be notified to Accenture plc within 5 business days of the transaction or alteration of the shareholders interests that gave rise to the requirement to notify. Where a person fails to comply with the notification requirements described above no right or interest of any kind whatsoever in respect of any shares in Accenture plc concerned, held by such person, shall be enforceable by such person, whether directly or indirectly, by action or legal proceeding. However, such person may apply to the court to have the rights attaching to the shares concerned reinstated.
In addition to the above disclosure requirement, Accenture plc, under the Irish Companies Acts, may by notice in writing require a person whom Accenture plc knows or has reasonable cause to believe to be, or at any time during the three years immediately preceding the date on which such notice is issued, to have been interested in shares comprised in Accenture plcs relevant share capital to: (a) indicate whether or not it is the case, and (b) where such person holds or has during that time held an interest in the Accenture plc shares, to give such further information as may be required by Accenture plc including particulars of such persons own past or present interests in Accenture plc shares. Any information given in response to the notice is required to be given in writing within such reasonable time as may be specified in the notice.
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Where such a notice is served by Accenture plc on a person who is or was interested in Accenture plc shares and that person fails to give Accenture plc any information required within the reasonable time specified, Accenture plc may apply to court for an order directing that the affected shares be subject to certain restrictions. Under the Irish Companies Acts, the restrictions that may be placed on the shares by the court are as follows:
(a) | any transfer of those shares, or in the case of unissued shares any transfer of the right to be issued with shares and any issue of shares, shall be void; |
(b) | no voting rights shall be exercisable in respect of those shares; |
(c) | no further shares shall be issued in right of those shares or in pursuance of any offer made to the holder of those shares; and |
(d) | no payment shall be made of any sums due from Accenture plc on those shares, whether in respect of capital or otherwise. |
Where shares in Accenture plc are subject to these restrictions, the court may order the shares to be sold and may also direct that the shares shall cease to be subject to these restrictions.
Accenture plcs articles of association provide that any merger of Accenture plc and another company requires the approval of (i) the Board of Directors by a resolution passed with the approval of a majority of those directors then in office and eligible to vote on that resolution and (ii) an ordinary resolution of shareholders in addition to any other sanction required by applicable law, such as the EC (Cross-Border Mergers) Regulations 2008 described above.
Irish Takeover Rules and Substantial Acquisition Rules
A transaction by virtue of which a third party is seeking to acquire 30% or more of the voting rights of Accenture plc will be governed by the Irish Takeover Panel Act 1997 and the Irish Takeover Rules made thereunder and will be regulated by the Irish Takeover Panel. The General Principles of the Irish Takeover Rules and certain important aspects of the Irish Takeover Rules are described below.
General Principles
The Irish Takeover Rules are built on the following General Principles which will apply to any transaction regulated by the Irish Takeover Panel:
| in the event of an offer, all classes of shareholders of the target company should be afforded equivalent treatment and, if a person acquires control of a company, the other holders of securities must be protected; |
| the holders of securities in the target company must have sufficient time to allow them to make an informed decision regarding the offer; |
| the board of a company must act in the interests of the company as a whole. If the board of the target company advises the holders of securities in regards to the offer it must advise on the effects of the implementation of the offer on employment, employment conditions and the locations of the target companys place of business; |
| false markets in the securities of the target company or any other company concerned by the offer must not be created; |
| a bidder can only announce an offer after ensuring that he or she can fulfill in full the consideration offered; |
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| a target company may not be hindered longer than is reasonable by an offer for its securities. This is a recognition that an offer will disrupt the day-to-day running of a target company particularly if the offer is hostile and the board of the target company must divert its attention to resist the offer; and |
| a substantial acquisition of securities (whether such acquisition is to be effected by one transaction or a series of transactions) will only be allowed to take place at an acceptable speed and shall be subject to adequate and timely disclosure. |
Mandatory Offer
If an acquisition of shares were to increase the aggregate holding of an acquirer and its concert parties to shares carrying 30% or more of the voting rights in Accenture plc, the acquirer and, depending on the circumstances, its concert parties would be mandatorily required (except with the consent of the Irish Takeover Panel) to make a cash offer for the remaining outstanding shares at a price not less than the highest price paid for the shares by the acquirer or its concert parties during the previous 12 months. This requirement would also be triggered by an acquisition of shares by a person holding (together with its concert parties) shares carrying between 30% and 50% of the voting rights in Accenture plc if the effect of such acquisition were to increase the percentage of the voting rights held by that person (together with its concert parties) by 0.05% within a 12 month period. A single holder (that is, a holder excluding any parties acting in concert with the holder) holding more than 50% of the voting rights of a company is not subject to this rule.
Voluntary Offer; Requirements to Make a Cash Offer and Minimum Price Requirements
A voluntary offer is an offer that is not a mandatory offer. If a bidder or any of its concert parties acquire Accenture plc shares of the same class as the shares the subject of the voluntary offer within the period of three months prior to the commencement of the offer period, the offer price must be not less than the highest price paid for Accenture plc shares of that class by the bidder or its concert parties during that period. The Irish Takeover Panel has the power to extend the look back period to 12 months if the Irish Takeover Panel, having regard to the General Principles, believes it is appropriate to do so.
If the bidder or any of its concert parties has acquired Accenture plc shares of the same class as the shares the subject of the voluntary offer (i) during the period of 12 months prior to the commencement of the offer period which represent more than 10% of the total shares the subject of the voluntary offer or (ii) at any time after the commencement of the offer period, the offer shall be in cash (or accompanied by a full cash alternative) and the price per share shall be not less than the highest price paid by the bidder or its concert parties for shares (of the class of shares the subject of the voluntary offer) during, in the case of (i), the period of 12 months prior to the commencement of the offer period and, in the case of (ii), the offer period. The Irish Takeover Panel may apply this rule to a bidder who, together with its concert parties, has acquired less than 10% of the total shares of the class of shares the subject of the offer in the 12 month period prior to the commencement of the offer period if the Panel, having regard to the General Principles, considers it just and proper to do so.
An offer period will generally commence from the date of the first announcement of the offer or proposed offer.
Substantial Acquisition Rules
The Irish Takeover Rules also contain rules governing substantial acquisitions of shares which restrict the speed at which a person may increase his or her holding of shares and rights over shares to an aggregate of between 15% and 30% of the voting rights of Accenture plc. Except in certain circumstances, an acquisition or series of acquisitions of shares or rights over shares representing 10% or more of the voting rights of Accenture plc is prohibited, if such acquisition(s), when aggregated with shares or rights already held, would result in the acquirer holding 15% or more but less than 30% of the voting rights of Accenture plc and such acquisitions are made within a period of seven days. These rules also require accelerated disclosure of acquisitions of shares or rights over shares relating to such holdings.
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Frustrating Action
Under the Irish Takeover Rules, the Board of Directors of Accenture plc is not permitted to take any action which might frustrate an offer for the Accenture plc shares once the Board of Directors has received an approach which may lead to an offer or has reason to believe an offer is imminent except as noted below. Potentially frustrating actions such as (i) the issue of shares, options or convertible securities, (ii) material disposals, (iii) entering into contracts other than in the ordinary course of business or (iv) any action, other than seeking alternative offers, which may result in frustration of an offer, are prohibited during the course of an offer or at any time during which the Board of Directors has reason to believe an offer is imminent. Exceptions to this prohibition are available where:
(a) | the action is approved by Accenture plcs shareholders at a general meeting; or |
(b) | with the consent of the Irish Takeover Panel where: |
(i) | the Irish Takeover Panel is satisfied the action would not constitute a frustrating action; |
(ii) | the holders of at least 50% of the voting rights state in writing that they approve the proposed action and would vote in favor of it at a general meeting; |
(iii) | in accordance with a contract entered into prior to the announcement of the offer; or |
(iv) | the decision to take such action was made before the announcement of the offer and either has been at least partially implemented or is in the ordinary course of business. |
For other provisions that could be considered to have an anti-takeover effect, please see above at Pre-emption Rights, Share Warrants and Share Options and Disclosure of Interests in Shares, in addition to Corporate Governance, Comparison of Rights of Shareholders and Powers of the Board of DirectorsElection of Directors, Comparison of Rights of Shareholders and Powers of the Board of DirectorsVacancies on Board of Directors, Comparison of Rights of Shareholders and Powers of the Board of DirectorsRemoval of Directors, Comparison of Rights of Shareholders and Powers of the Board of DirectorsBoard and Committee Composition; Management, Comparison of Rights of Shareholders and Powers of the Board of DirectorsShareholder Consent to Action Without Meeting, Comparison of Rights of Shareholders and Powers of the Board of DirectorsAmendment of Governing Documents and Comparison of Rights of Shareholders and Powers of the Board of DirectorsDirector Nominations; Proposals of Shareholders below.
The articles of association of Accenture plc allocate authority over the management of Accenture plc to the Board of Directors. The Board of Directors may then delegate management of Accenture plc to committees of the Board of Directors, executives or to a management team, but regardless, the directors will remain responsible, as a matter of Irish law, for the proper management of the affairs of Accenture plc. It is the intention of Accenture plc to replicate the existing committees that are currently in place for Accenture Ltd which include an Audit Committee, a Compensation Committee, a Nominating & Governance Committee and a Finance Committee. It also is the intention of Accenture plc to adopt Accenture Ltds current Corporate Governance Guidelines. The Board of Directors may create new committees or change the responsibilities of existing committees from time to time.
Prior to the Transaction, Accenture plcs Board of Directors will adopt resolutions, consistent with resolutions previously adopted by Accenture Ltds Board of Directors, providing, among other things, that (a) its directors and officers will occupy a fiduciary relationship with Accenture plc and our shareholders and these directors and officers, in performing their duties, will act in good faith in a manner that a director or officer believes to be in our best interest and in the best interest of our shareholders, as that standard of care is interpreted by the courts; (b) its shareholders may bring derivative proceedings on behalf of Accenture plc, if those derivative proceedings are brought on a basis and under the terms set forth in the Model Business Corporation Act as it is interpreted by, or required by, the courts; and (c) Accenture plc will consent to the
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jurisdiction, for any otherwise available cause of action by or on behalf of our shareholders, of all Delaware state courts and U.S. federal courts in Delaware. Notwithstanding the passing of these resolutions, all substantive and procedural requirements of Irish law would have to be satisfied for any derivative proceedings or other legal actions to be brought in Ireland by a shareholder against Accenture plc or any of its directors or officers. In addition, there can be no assurance that Irish courts or courts in other jurisdictions would enforce court judgments obtained in the United States against Accenture plc or its directors in Ireland or in other countries where Accenture plc has assets.
Please see Comparison of Rights of Shareholders and Powers of the Board of DirectorsEnforcement of Civil Liabilities Against Foreign Persons.
Legal Name; Formation; Fiscal Year; Registered Office
The legal and commercial name of the newly formed Irish company is Accenture public limited company. Accenture plc was incorporated in Ireland, as a public limited company on , 2009 with company registration number . Accenture plcs fiscal year ends on August 31 and Accenture plcs registered address is 3 Grand Canal Plaza, Upper Grand Canal St., Dublin 4, Ireland.
Duration; Dissolution; Rights upon Liquidation
Accenture plcs duration will be unlimited. Accenture plc may be dissolved at any time by way of either a voluntary winding up or a creditors voluntary winding up. In the case of a voluntary winding up, the approval is required by (i) the Board of Directors by a resolution passed with the approval of a majority of those directors then in office and eligible to vote on that resolution and (ii) a special resolution of shareholders. Accenture plc may also be dissolved by way of court order on the application of a creditor, or by the Companies Registration Office as an enforcement measure where Accenture plc has failed to file certain returns.
The rights of the shareholders to a return of Accenture plcs assets on dissolution or winding up, following the settlement of all claims of creditors, may be prescribed in Accenture plcs articles of association or the terms of any preferred shares issued by the directors of Accenture plc from time to time. The holders of preferred shares in particular may have the right to priority in a dissolution or winding up of Accenture plc. If the articles of association contain no specific provisions in respect of a dissolution or winding up then, subject to the priorities or any creditors, the assets will be distributed to shareholders in proportion to the paid-up nominal value of the shares held. Accenture plcs articles provide that the ordinary shareholders of Accenture plc are entitled to participate pro rata in a winding up, but their right to do so may be subject to the rights of any preferred shareholders to participate under the terms of any series or class of preferred shares.
Holders of Accenture plc ordinary shares will not have the right to require Accenture plc to issue certificates for their shares. Accenture plc currently intends to issue only uncertificated ordinary shares unless certificated shares are required by any stock exchange, a recognized depository, any operator of any clearance, settlement system or law.
If the Transaction becomes effective, the Transaction will not affect the stock exchange listing of Accentures shares. Immediately following the Transaction, the Accenture plc Class A ordinary shares will be listed on the NYSE under the symbol ACN, the same symbol under which Accenture Ltd Class A common shares are currently listed. Accenture Ltd shares are not listed on any other stock exchange. We do not intend to list the Accenture plc Class A ordinary shares on the Irish Stock Exchange or any other stock exchange. We do not intend to list the Accenture plc Class X ordinary shares on any stock exchange.
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The ordinary shares have no sinking fund provisions.
No Liability for Further Calls or Assessments
The shares to be issued in the Transaction will be duly and validly issued pursuant to the Transaction will be fully paid and non-assessable.
Transfer and Registration of Shares
Accenture plcs share register will be maintained by its transfer agent. Registration in this share register will be determinative of membership in Accenture plc. A shareholder of Accenture plc who holds shares beneficially will not be the holder of record of such shares. Instead, the depository (for example, Cede & Co., as nominee for DTC) or other nominee will be the holder of record of such shares. Accordingly, a transfer of shares from a person who holds such shares beneficially to a person who also holds such shares beneficially through a depository or other nominee will not be registered in Accenture plcs official share register, as the depository or other nominee will remain the record holder of such shares.
A written instrument of transfer is required under Irish law in order to register on Accenture plcs official share register any transfer of shares (i) from a person who holds such shares directly to any other person, (ii) from a person who holds such shares beneficially to a person who holds such shares directly, or (iii) from a person who holds such shares beneficially to another person who holds such shares beneficially where the transfer involves a change in the depository or other nominee that is the record owner of the transferred shares. An instrument of transfer also is required for a shareholder who directly holds shares to transfer those shares into his or her own broker account (or vice versa). Such instruments of transfer may give rise to Irish stamp duty, which must be paid prior to registration of the transfer on Accenture plcs official Irish share register.
Accordingly, we strongly recommend that all directly registered shareholders open broker accounts so they can transfer their Accenture Ltd Class A common shares into a broker account to be held through DTC as soon as possible, and in any event prior to completion of the Transaction. We also strongly recommend that any person who wishes to acquire Accenture plc Class A ordinary shares after completion of the Transaction acquires such Accenture plc Class A ordinary shares beneficially.
Accenture plc does not intend to pay any stamp duty. However, Accenture plcs articles of association allow Accenture plc, in its absolute discretion, to pay any stamp duty payable by a buyer. In the event of any such payment, Accenture plc may seek reimbursement. Any transfer of Accenture plc Class A ordinary shares that is subject to Irish stamp duty will not be registered in the name of the buyer unless an instrument of transfer is duly stamped and provided to our transfer agent.
Class X ordinary shares are not transferable by their holders, unless the Class X ordinary shareholder has received the prior written consent of Accenture plc to the proposed transfer to the proposed transferee.
The directors of Accenture plc have general discretion to decline to register an instrument of transfer unless the transfer is in respect of one class of share only or, as in the case of Class X ordinary shares, such transfer would violate the terms of an agreement to which Accenture plc or any of its subsidiaries and the transferor are subject.
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COMPARISON OF RIGHTS OF SHAREHOLDERS AND
POWERS OF THE BOARD OF DIRECTORS
Your rights as a Class A or Class X common shareholder of Accenture Ltd and the relative powers of Accenture Ltds Board of Directors are governed by Bermuda law and Accenture Ltds memorandum of continuance and bye-laws. After the Transaction, you will become a Class A or Class X ordinary shareholder, as applicable, of Accenture plc, and your rights and the relative powers of Accenture plcs Board of Directors will be governed by Irish law and Accenture plcs memorandum and articles of association.
Many of the principal attributes of Accenture Ltd Class A and Class X common shares and Accenture plc Class A and Class X ordinary shares will be similar. However, there are differences between what your rights are under Bermuda law and what they will be after the Transaction under Irish law. In addition, there are differences between Accenture Ltds memorandum of continuance and bye-laws and Accenture plcs memorandum and articles of association; however, there are no material differences between those documents, except for changes:
(i) that are required by Irish law (i.e., certain provisions of the Accenture Ltd bye-laws were not replicated in the Accenture plc articles of association because Irish law would not permit such replication, and certain provisions were included in the Accenture plc articles of association although they were not in the Accenture Ltd bye-laws because Irish law requires such provisions to be included in the articles of association of an Irish public limited company);
(ii) that eliminate certain provisions that are no longer applicable due to the passage of time (e.g., transfer restrictions on shares received by partners of Accenture at the time of our corporate formation in 2001); or
(iii) that are necessary in order to preserve the current rights of shareholders and powers of the Board of Directors of Accenture following the Transaction.
The following discussion is a summary of certain changes in your rights resulting from the Transaction.
This summary is not complete and does not cover all of the differences between Irish law and Bermuda law affecting companies and their shareholders or all the differences between Accenture Ltds memorandum of continuance and bye-laws and Accenture plcs memorandum and articles of association. This summary is subject to the complete text of the relevant provisions of the Irish Companies Acts, the Bermuda Companies Act, Accenture Ltds memorandum of continuance and bye-laws and Accenture plcs memorandum and articles of association. We encourage you to read those laws and documents carefully. Accenture plcs forms of memorandum and articles of association are attached to this proxy statement as Annex B.
For information as to how you can obtain Accenture Ltds memorandum of continuance and bye-laws, please see Where You Can Find More Information. Except where otherwise indicated, the discussion of Accenture plc below reflects Accenture plcs memorandum and articles of association as those documents will be in effect upon completion of the Transaction.
Authorized Share Capital
Accenture Ltd. The authorized share capital of Accenture Ltd is US$517,500, consisting of 20,000,000,000 Class A common shares par value US$0.0000225 per share, 1,000,000,000 Class X common shares par value US$0.0000225 per share, 2,000,000,000 undesignated shares par value US$0.0000225 per share, and such other series of preference shares as may be designated from time to time with the respective rights and restrictions determined by our Board of Directors.
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Under Accenture Ltds bye-laws, the Board of Directors of Accenture Ltd has authority to issue authorized but unissued Class A common shares, Class X common shares or undesignated shares. The undesignated shares may be designated and issued as preferred shares, without further vote or action by our shareholders up to the maximum number authorized.
In accordance with Accenture Ltds bye-laws and the provisions of the Bermuda Companies Act, the authorized share capital may be increased, altered or reduced by a resolution of shareholders.
Under Bermuda law and Accenture Ltds memorandum of continuance and bye-laws there are no limitations on the right of nonresidents of Bermuda or owners who are not citizens of Bermuda to hold or vote shares of Accenture Ltd.
As permitted by Bermuda law, Accenture Ltd may issue fractional shares.
Accenture plc. The authorized share capital of Accenture plc is 40,000 and US$517,500 divided into 40,000 ordinary shares with a nominal value of 1 per share, 20,000,000,000 Class A ordinary shares with a nominal value of US$0.0000225 per share, 1,000,000,000 Class X ordinary shares with a nominal value of US$0.0000225 per share and 2,000,000,000 undesignated shares with a nominal value of US$0.0000225 per share. The authorized share capital includes 40,000 ordinary shares with a nominal value of 1 per share in order to satisfy statutory requirements for all Irish public limited companies commencing operations.
Accenture plc has the authority to issue authorized but unissued Class A ordinary shares, Class X ordinary shares or undesignated shares. The undesignated shares may be designated and issued as preferred shares, without further vote or action by our shareholders up to the maximum number authorized. In connection with the Transaction, Accenture plc will also assume Accenture Ltds existing obligations to deliver shares under our equity incentive plans and other similar employee awards pursuant to the terms thereof.
As a matter of Irish law, the directors of a company may issue authorized but unissued new ordinary or preferred shares without shareholder approval once authorized to do so by the articles of association of the company or by an ordinary resolution adopted by the shareholders at a general meeting. An ordinary resolution requires over 50% of the votes of a companys shareholders cast at a general meeting. The authority conferred can be granted for a maximum period of five years, at which point it must be renewed by the shareholders of the company by an ordinary resolution. Because of this requirement of Irish law, which does not have an analog under Bermuda law, the articles of association of Accenture plc authorize the Board of Directors of Accenture plc to issue new ordinary or preferred shares without shareholder approval for a period of five years from the date of Accenture plcs incorporation, even though the Accenture Ltd bye-laws do not include an analogous provision.
The authorized share capital may be increased or reduced by way of an ordinary resolution of Accenture plcs shareholders. The shares comprising the authorized share capital of Accenture plc may be divided into shares of such nominal value as the resolution shall prescribe.
The rights and restrictions to which the ordinary shares will be subject will be prescribed in Accenture plcs articles of association. Accenture plcs articles of association entitle the Board of Directors, without shareholder approval, to determine the terms of the undesignated shares issued by Accenture plc. The Accenture plc Board of Directors is authorized, without obtaining any vote or consent of the holders of any class or series of shares unless expressly provided by the terms of that class or series of shares, to provide from time to time for the issuance of other classes or series of preferred shares through the issue of the authorized but unissued undesignated shares and to establish the characteristics of each class or series, including the number of shares, designations, relative voting rights, dividend rights, liquidation and other rights, redemption, repurchase or exchange rights and any other preferences and relative, participating, optional or other rights and limitations not inconsistent with applicable law.
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Under Irish law and the memorandum and articles of association of Accenture plc there are no limitations on the right of nonresidents of Ireland or owners who are not citizens of Ireland to hold or vote shares of Accenture plc.
Unlike Bermuda law, Irish law does not recognize fractional shares held of record; accordingly, Accenture plcs articles of association do not provide for the issuance of fractional Accenture plc shares, and the official Irish register of Accenture plc will not reflect any fractional shares.
Issued Share Capital
Accenture Ltd. As of , 2009, the number of Accenture Ltd Class A common shares outstanding was (which number does not include issued shares held by subsidiaries of Accenture Ltd). The number of Accenture Ltd Class X common shares, outstanding as of , 2009 was .
Accenture plc. Immediately prior to the Transaction, the issued share capital of Accenture plc will be 40,000, comprised of 40,000 ordinary shares, with nominal value of 1 per share (the Euro Share Capital). In connection with the consummation of the Transaction, the Euro Share Capital will be acquired by Accenture plc and will then be cancelled by Accenture plc. We expect that Accenture plc will then issue a number of Class A and Class X ordinary shares, each with a nominal value of US$0.0000225 that is equal to the number of whole Accenture Ltd Class A and Class X common shares that will be cancelled as part of the Transaction (including Accenture plc ordinary shares issued to Accenture Ltd in respect of any Accenture Ltd common shares held as treasury shares immediately prior to the time of the Transaction). Accenture plc Class A and Class X common shares issued pursuant to the Transaction will be fully paid and non-assessable.
Reduction of Share Capital
Accenture Ltd. Accenture Ltd may, by a resolution of shareholders, authorize the reduction in any manner of its issued share capital (but not to a sum less than the minimum share capital prescribed by its memorandum of continuance) or any share premium account.
Accenture plc. Accenture plc may, by ordinary resolution, reduce its authorized share capital. Accenture plc also may, by special resolution and subject to confirmation by the Irish High Court, reduce or cancel its issued share capital.
Pre-emption Rights, Share Warrants and Share Options
Accenture Ltd. Holders of Accenture Ltd Class A and Class X common shares do not have pre-emption rights under the Bermuda Companies Act or Accenture Ltds bye-laws over further issuances of Accenture Ltd shares. Accenture Ltd is subject to the rules of the NYSE that require shareholder approval of certain share issuances.
Accenture plc. Certain statutory pre-emption rights apply automatically in favor of Accenture plcs shareholders where shares in Accenture plc are to be issued for cash. However, Accenture plc has opted out of these pre-emption rights in its articles of association as permitted under Irish law. Because Irish law requires this opt-out to be renewed every five years by a special resolution of the shareholders, and there is no analogous provision of Bermuda law, Accenture plcs articles of association provide that this opt-out will lapse five years after the incorporation of Accenture plc, even though Accenture Ltds bye-laws do not include an analogous provision. A special resolution requires not less than 75% of the votes of Accenture plcs shareholders cast at a general meeting. If the opt-out is not renewed, shares issued for cash must be offered to pre-existing shareholders of Accenture plc pro rata to their existing shareholding before the shares can be issued to any new shareholders.
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The statutory pre-emption rights do not apply where shares are issued for non-cash consideration and do not apply to the issue of non-equity shares (that is, shares that have the right to participate only up to a specified amount in any income or capital distribution).
The articles of association of Accenture plc provide that, subject to any shareholder approval requirement under any laws, regulations or the rules of any stock exchange to which Accenture plc is subject, the Board of Directors is authorized, from time to time, in its discretion, to grant such persons, for such periods and upon such terms as the Board of Directors deems advisable, options to purchase such number of shares of any class or classes or of any series of any class as the Board of Directors may deem advisable, and to cause warrants or other appropriate instruments evidencing such options to be issued. The Irish Companies Acts provide that directors may issue share warrants or options without shareholder approval once authorized to do so by the articles of association or an ordinary resolution of shareholders. The Board of Directors may issue shares upon exercise of warrants or options without shareholder approval or authorization.
Accenture plc will be subject to the rules of the NYSE that require shareholder approval of certain share issuances.
Distributions and Dividends; Repurchases and Redemptions
Distributions and Dividends
Accenture Ltd. Under Bermuda law, a company is not required to present proposed dividends or distributions to its shareholders for approval or adoption. Under the Bermuda Companies Act, the board of directors of a company may not declare or pay dividends or make distributions to shareholders if there are reasonable grounds for believing that (i) the company is or would after the payment be unable to pay its liabilities as they become due, or (ii) the realizable value of the companys assets would thereby be less than the aggregate of its liabilities and its issued share capital and share premium accounts.
Each Class A common share entitles its holder to a pro rata part of any dividend at the times and in the amounts, if any, which Accenture Ltds Board of Directors from time to time determines to declare, subject to any preferred dividend rights attaching to any preferred shares. Dividends on Accenture Ltd Class A common shares, if any, are at the discretion of the Board of Directors of Accenture Ltd and depend on, among other things, our results of operations, cash requirements and surplus, financial condition, contractual restrictions and other factors that the Board of Directors deems relevant, as well as our ability to pay dividends in compliance with the Bermuda Companies Act.
Holders of Class X common shares are not entitled to receive dividends and are not entitled to be paid any amount upon a winding-up of Accenture Ltd.
Accenture Ltd has 2,000,000,000 authorized but unissued undesignated shares, par value $0.0000225 per share, the rights and preferences of which are currently undesignated. The Board of Directors of Accenture Ltd has the authority to issue the preferred shares in one or more series and to fix the rights, preferences, privileges and restrictions attaching to those shares, including dividend rights, conversion rights, voting rights, redemption terms and prices, liquidation preferences and the numbers of shares constituting any series and the designation of any series, without further vote or action by the shareholders. The holders of such preferred shares may, depending on their terms, be entitled to dividends in priority to Class A common shareholders.
Any series of preferred shares could, as determined by Accenture Ltds Board of Directors at the time of issuance, rank senior to Accenture Ltds common shares with respect to dividends, voting rights, redemption and/or liquidation rights. These preferred shares are of the type commonly known as blank-check preferred stock.
Accenture plc. Under Irish law, dividends and distributions may only be made from distributable reserves. Distributable reserves, broadly, means the accumulated realized profits of Accenture plc less accumulated realized losses of Accenture plc. The distributable reserves of Accenture plc will include an amount equal to the
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share premium reduction, once the reduction of share premium becomes effective. In addition, no distribution or dividend may be made unless the net assets of Accenture plc are equal to, or in excess of, the aggregate of Accenture plcs called up share capital plus undistributable reserves and the distribution does not reduce Accenture plcs net assets below such aggregate. Undistributable reserves include the share premium account, the capital redemption reserve fund and the amount by which Accenture plcs accumulated unrealized profits, so far as not previously utilized by any capitalization, exceed Accenture plcs accumulated unrealized losses, so far as not previously written off in a reduction or reorganization of capital.
The determination as to whether or not Accenture plc has sufficient distributable reserves to fund a dividend must be made by reference to relevant accounts of Accenture plc. The relevant accounts will be either the last set of unconsolidated annual audited financial statements or unaudited financial statements prepared in accordance with the Irish Companies Acts, which give a true and fair view of Accenture plcs unconsolidated financial position and accord with accepted accounting practice. The relevant accounts must be filed in the Companies Registration Office (the official public registry for companies in Ireland).
Accenture plc will not have any distributable reserves immediately following the time of the Transaction. Please see Risk Factors and Proposal Number Two: Reduction of Share Premium to Establish Distributable Reserves.
The mechanism as to who declares a dividend and when a dividend shall become payable is governed by the articles of association of Accenture plc. Accenture plcs articles of association authorize the directors to declare such dividends as appear justified from the profits of Accenture plc without the approval of the shareholders at a general meeting. The Board of Directors may also recommend a dividend to be approved and declared by the shareholders at a general meeting. While the shareholders may direct that the payment be made by distribution of assets, shares or cash, no dividend issued may exceed the amount recommended by the directors. The dividends can be declared and paid in the form of cash or non-cash assets. Although the provisions of Accenture plcs articles of association described in this paragraph are different from the analogous provisions of Accenture Ltds bye-laws, these differences are required due to differences between Irish law and Bermuda law with respect to distributions and dividends.
The directors of Accenture plc may deduct from any dividend payable to any member all sums of money (if any) payable by such member to Accenture plc in relation to the Accenture plc shares.
The directors of Accenture plc are also entitled to issue shares with preferred rights to participate in dividends declared by Accenture plc in one or more series and to fix the rights, preferences, privileges and restrictions attaching to those shares, including dividend rights, conversion rights, voting rights, redemption terms and prices, liquidation preferences and the numbers of shares constituting any series and the designation of any series, without further vote or action by the shareholders. The holders of such preferred shares may, depending on their terms, be entitled to claim arrears of a declared dividend out of subsequently declared dividends in priority to ordinary shareholders.
Any series of preferred shares could, as determined by Accenture plcs Board of Directors at the time of issuance, rank senior to the Accenture plcs ordinary shares with respect to dividends, voting rights, redemption and/or liquidation rights. These preferred shares are of the type commonly known as blank-check preferred stock.
Holders of Class X ordinary shares are not entitled to receive dividends and are not entitled to be paid any amount upon a winding-up of Accenture plc.
For information about the Irish tax issues relating to dividend payments, please see Material Tax Considerations Relating to the TransactionIrish Tax Considerations.
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Share Repurchases, Redemptions and Conversions
Accenture Ltd. Under the Bermuda Companies Act, shares of a Bermuda company may be repurchased if so authorized by its bye-laws or memorandum of association, and shares may be redeemed at the option of the company if so authorized by its bye-laws or, in the case of shares redeemable at the option of the holder, its memorandum of association, provided that: (i) no such shares shall be repurchased or redeemed except out of the capital paid thereon, the funds of the company available for dividend or distribution, or out of the proceeds of a new issue of shares made for the purposes of redemption; (ii) the premium, if any, payable on redemption, is provided out of the companys funds which would be otherwise available for dividend or distribution or out of the companys share premium account before the shares are repurchased or redeemed; and (iii) there are no reasonable grounds for believing that the company is, or after such redemption or repurchase would be, unable to pay its liabilities as they become due. Accenture Ltds bye-laws provide that it may from time to time purchase its own shares in accordance with the provisions of the Bermuda Companies Act. Shareholder approval is not required for the purchase by Accenture Ltd (or any of its subsidiaries) of Accenture Ltd shares. Bermuda law does not distinguish between on-market and off-market purchases of a companys own shares.
Accenture Ltd Class A and Class X Common Shares
Class A common shares are not redeemable. Accenture Ltd may redeem, at its option, any Class X common share for a redemption price equal to the par value of the Class X common share, or $0.0000225 per share. Accenture Ltd has separately agreed with the original holders of Accenture SCA Class I common shares and Accenture Canada Holdings Inc. exchangeable shares not to redeem any Class X common share of such holder if the redemption would reduce the number of Class X common shares held by that holder to a number that is less than the number of Accenture SCA Class I common shares or Accenture Canada Holdings Inc. exchangeable shares owned by that holder, as the case may be. Accenture Ltd will redeem Class X common shares upon the redemption or exchange of Accenture SCA Class I common shares and Accenture Canada Holdings Inc. exchangeable shares so that the aggregate number of Class X common shares outstanding at any time does not exceed the aggregate number of Accenture SCA Class I common shares and Accenture Canada Holdings Inc. exchangeable shares outstanding. Class X common shares are not transferable without the consent of Accenture Ltd.
Accenture SCA Class I Common Shares
Only certain of our current and former senior executives and their permitted transferees hold Accenture SCA Class I common shares. Each Class I common share entitles its holder to one vote on all matters submitted to the shareholders of Accenture SCA and entitles its holder to dividends and liquidation payments.
Subject to the transfer restrictions in Accenture SCAs articles of association and subject to mandatory matters of Luxembourg companies law, Accenture SCA is obligated, at the option of the holder, to redeem any outstanding Accenture SCA Class I common share at any time at a redemption price per share generally equal to its current market value as determined in accordance with Accenture SCAs articles of association. Under Accenture SCAs articles of association, the market value of a Class I common share that is not subject to transfer restrictions will be deemed to be equal to (i) the average of the high and low sales prices of an Accenture Ltd Class A common share as reported on the NYSE (or on such other designated market on which the Class A common shares trade), net of customary brokerage and similar transaction costs, or (ii) if Accenture Ltd sells its Class A common shares on the date that the redemption price is determined (other than in a transaction with any employee or an affiliate or pursuant to a preexisting obligation), the weighted average sales price of an Accenture Ltd Class A common share on the NYSE (or on such other market on which the Class A common shares primarily trade), net of customary brokerage and similar transaction costs. Accenture SCA may, at its option, pay this redemption price with cash or by delivering Accenture Ltd Class A common shares on a one-for-one basis. This one-for-one redemption price and exchange ratio will be adjusted if Accenture Ltd holds more than a de minimis amount of assets (other than its interest in Accenture SCA and assets it holds only transiently prior to
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contributing them to Accenture SCA) or incurs more than a de minimis amount of liabilities (other than liabilities for which Accenture SCA has a corresponding liability to Accenture Ltd). Accenture has been advised by its legal advisors in Luxembourg that, absent a contractual definition, there is no relevant legal precedent in Luxembourg quantifying or defining the term de minimis. In the event that a question arises in this regard, Accenture expects that management will interpret de minimis in light of the facts and circumstances existing at the time in question. At this time, Accenture Ltd does not intend to hold any material assets other than its interest in Accenture SCA or to incur any material liabilities such that this one-for-one redemption price and exchange ratio would require adjustment and will disclose any change in its intentions that could affect this ratio. In order to maintain Accenture Ltds economic interest in Accenture SCA, Accenture Ltd will generally acquire additional Accenture SCA Class I common shares each time additional Accenture Ltd Class A common shares are issued.
Accenture Canada Holdings Inc. Exchangeable Shares
Subject to the transfer restrictions contained in Accenture Ltds bye-laws described below, holders of Accenture Canada Holdings Inc. exchangeable shares may exchange their shares for Accenture Ltd Class A common shares at any time on a one-for-one basis. Accenture may, at its option, satisfy this exchange with cash at a price per share generally equal to the market price of an Accenture Ltd Class A common share at the time of the exchange. Each exchangeable share of Accenture Canada Holdings Inc. entitles its holder to receive distributions equal to any distributions to which an Accenture Ltd Class A common share entitles its holder.
Accenture plc. Article 5(b)(iv) of Accenture plcs articles of association provides that any ordinary share which Accenture plc has acquired or agreed to acquire shall be deemed to be a redeemable share. Accordingly, for Irish law purposes, the repurchase of ordinary shares by Accenture plc will technically be effected as a redemption of those shares as described below under Repurchases and Redemptions by Accenture plc. If the articles of association of Accenture plc did not contain Article 5(b)(iv), repurchases by Accenture plc would be subject to many of the same rules that apply to purchases of Accenture plc shares by subsidiaries described below under Purchases by Subsidiaries of Accenture plc, including the shareholder approval requirements described below and the requirement that any on-market purchases be effected on a recognized stock exchange. Because Bermuda law does not impose such requirements with respect to share repurchases by Accenture Ltd and we desired to preserve the status quo with respect to share repurchases to the greatest extent possible after the Transaction, Article 5(b)(iv) was included in the Accenture plc articles of association, even though there is no analogous provision in the Accenture Ltd bye-laws. Except where otherwise noted, when we refer elsewhere in this proxy statement to repurchasing or buying back Accenture plc Class A or Class X ordinary shares, we are referring to the redemption of ordinary shares by Accenture plc pursuant to Article 5(b)(iv) of the articles of association or the purchase of Accenture plc ordinary shares by a subsidiary of Accenture plc, in each case in accordance with the Accenture plc articles of association and Irish law as described below.
Accenture plc Class A and Class X Ordinary Shares
Accenture plc may redeem, at its option, any Class X ordinary share for a redemption price equal to the nominal value of the Class X ordinary share, or $0.0000225 per share. Accenture plc, as successor to Accenture Ltd, has separately agreed with the original holders of Accenture SCA Class I common shares and Accenture Canada Holdings Inc. exchangeable shares not to redeem any Class X ordinary share of such holder if the redemption would reduce the number of Class X ordinary shares held by that holder to a number that is less than the number of Accenture SCA Class I common shares or Accenture Canada Holdings Inc. exchangeable shares owned by that holder. Accenture plc will redeem Class X ordinary shares upon the redemption or exchange of Accenture SCA Class I common shares and Accenture Canada Holdings Inc. exchangeable shares so that the aggregate number of Class X ordinary shares outstanding at any time does not exceed the aggregate number of Accenture SCA Class I common shares and Accenture Canada Holdings Inc. exchangeable shares outstanding. Class X ordinary shares are not transferable without the consent of Accenture plc.
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The Transaction will modify the rights of the Accenture Canada Holdings Inc. exchangeable shares and Accenture SCA Class I common shares such that all of such shares will become exchangeable into Accenture plc Class A ordinary shares (rather than Accenture Ltd Class A common shares) subject to certain provisions described above for Accenture SCA Class I common shares.
Repurchases and Redemptions by Accenture plc
Under Irish law, a company can issue redeemable shares and redeem them out of distributable reserves (which are described above under Dividends) or the proceeds of a new issue of shares for that purpose. Accenture plc will not have any distributable reserves immediately following the time of the Transaction because it is a newly formed holding company with no retained earnings. The issue of redeemable shares may only be made by Accenture plc where the nominal value of the issued share capital that is not redeemable is not less than 10% of the nominal value of the total issued share capital of Accenture plc. All redeemable shares must also be fully paid and the terms of redemption of the shares must provide for payment on redemption. Redeemable shares may, upon redemption, be cancelled or held in treasury. Shareholder approval will not be required to redeem Accenture plc shares, and these shares are redeemable at the option of Accenture plc.
The Board of Directors of Accenture plc will also be entitled to issue preferred shares which may be redeemed at the option of either Accenture plc or the shareholder, depending on the terms of such preferred shares. Please see Capital StructureAuthorized Share Capital above for additional information on redeemable shares.
Repurchased and redeemed Class A ordinary shares may be cancelled or held as treasury shares. The nominal value of treasury shares held by Accenture plc at any time must not exceed 10% of the nominal value of the issued share capital of Accenture plc. While Accenture plc holds shares as treasury shares, it cannot exercise any voting rights in respect of those shares. Treasury shares may be cancelled by Accenture plc or re-issued subject to certain conditions.
Please see Risk Factors and Proposal Number Two: Reduction of Share Premium to Establish Distributable Reserves.
Purchases by Subsidiaries of Accenture plc
Under Irish law, it may be permissible for an Irish or non-Irish subsidiary to purchase Accenture plc shares either on-market or off-market. A general authority of the shareholders of Accenture plc is required to allow a subsidiary of Accenture plc to make on-market purchases of Accenture plc shares; however, as long as this general authority has been granted, no specific shareholder authority for a particular on-market purchase by a subsidiary of Accenture plc shares is required. We expect that Accenture plc will seek to renew such general authority, which must expire no later than 18 months after the date on which it was granted, at the first annual general meeting of Accenture plc in 2010 and at subsequent annual general meetings. In order for a subsidiary of Accenture plc to make an on-market purchase of Accenture plcs shares, such shares must be purchased on a recognized stock exchange. The NYSE, on which the Accenture plc Class A ordinary shares will be listed following the Transaction, is not currently specified as a recognized stock exchange for this purpose by Irish law. We understand, however, that it is likely that the Irish authorities will take appropriate steps in the near future to add the NYSE to the list of recognized stock exchanges. For an off-market purchase by a subsidiary of Accenture plc, the proposed purchase contract must be authorized by special resolution of the shareholders of Accenture plc before the contract is entered into. The person whose shares are to be bought back cannot vote in favor of the special resolution and, for at least 21 days prior to the special resolution, the purchase contract must be on display or must be available for inspection by shareholders at the registered office of Accenture plc.
The number of shares held by the subsidiaries of Accenture plc at any time will count as treasury shares for the purposes of the permitted treasury share threshold of 10% of the nominal value of the issued share capital of
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Accenture plc. While a subsidiary holds Accenture plc shares, it cannot exercise any voting rights in respect of those shares. The acquisition of the Accenture plc shares by a subsidiary must be funded out of distributable reserves of the subsidiary.
Existing Share Repurchase Program
As of February 28, 2009, the Board of Directors of Accenture has previously authorized a program to repurchase up to $1,538 million of the Accenture Ltd Class A common shares, Accenture SCA Class I common shares and Accenture Canada Holdings Inc. exchangeable shares. Prior to the consummation of the Transaction, we expect (a) the Board of Directors of Accenture plc to authorize the repurchase of Accenture plc shares by Accenture plc and (b) Accenture Ltd and its nominee shareholders of Accenture plc to authorize the purchase of Accenture plc shares by subsidiaries of Accenture plc, such that Accenture plc and its subsidiaries will be authorized to purchase shares in an aggregate amount approximately equal to the then remaining authorization under the existing Accenture Ltd share repurchase program.
As noted above, because repurchases of Accenture plc shares by Accenture plc will technically be effected as a redemption of those shares pursuant to Article 5(b)(iv) of the articles of association, separate shareholder approval for such repurchases will not be required.
However, because purchases of Accenture plc shares by subsidiaries of Accenture plc may be made only on a recognized stock exchange and only if the required shareholder approval has been obtained, we expect that the shareholder authorization for purchases by subsidiaries of Accenture plc described above will be effective as of the later of (i) the time of the Transaction and (ii) the date on which the NYSE becomes a recognized stock exchange for this purpose. We intend to seek to renew shareholder approval of this authorization at the 2010 annual general meeting of Accenture plc.
Accenture Ltd. Under Accenture Ltds bye-laws, the Board of Directors may resolve to capitalize any amount credited to any reserve or fund available for distribution or the share premium account of Accenture Ltd for issuance and distribution to shareholders as fully paid bonus shares on the same basis of entitlement as would apply in respect of a dividend distribution.
Accenture plc. Under Accenture plcs articles of association, the Board of Directors may resolve to capitalize any amount credited to any reserve or fund available for distribution or the share premium account of Accenture plc for issuance and distribution to shareholders as fully paid bonus shares on the same basis of entitlement as would apply in respect of a dividend distribution.
Shareholder Approval of Business Combinations
Accenture Ltd. The Bermuda Companies Act provides a number of mechanisms pursuant to which Accenture Ltd could merge into, amalgamate with or be acquired by another company, including:
(a) | a procedure under Section 99 of the Bermuda Companies Act known as a scheme of arrangement. A scheme of arrangement is a compromise or arrangement made between Accenture Ltd and its shareholders or any class of shareholders by obtaining (1) the consent for the arrangement of the holders of a majority in number representing 75% in value of each class of shares participating in the scheme of arrangement, voting as separate classes, at a meeting at which a quorum is present in person or by proxy and (2) the consent of the Bermuda Court. A scheme of arrangement, if authorized by the participating shareholders and the court, is binding on all of our participating shareholders; |
(b) | a procedure under Section 102 of the Bermuda Companies Act for the compulsory acquisition of the shares of shareholders who dissent from a scheme or contract which involves the transfer of shares in |
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Accenture Ltd to another company. Where such a scheme or contract is approved by the holders of 90% in value of the shares to be transferred, the transferee company can, within two months of such approval, serve notice requiring those shareholders who dissent to transfer their shares to the transferee company. If no application is made by a dissenting shareholder to the Bermuda court within one month of receiving such notice, the dissenting shareholder is obliged to transfer his or her shares to the transferee on the terms of the scheme or contract. There are additional requirements which the transferee company has to satisfy in the event that it already holds more than 10% in value of the shares in Accenture Ltd when proposing the scheme or contract; |
(c) | a procedure under Section 103 of the Bermuda Companies Act, under which the holders of not less than 95% of the shares or a class of shares in Accenture Ltd may give notice to the remaining shareholders or shareholders of the relevant class that they wish compulsorily to acquire their shares, on the terms set out in the notice. The shareholders receiving the notice can either accept it, or apply to the Bermuda court within one month of receiving such notice for the court to appraise the value of their shares. The shareholder who gave the notice to acquire has the option either to proceed to acquire the shares at the price fixed by the court, or to discontinue the purchase; and |
(d) | under the Bermuda Companies Act, two or more companies can amalgamate and continue as one amalgamated company. Accenture Ltd, as a Bermuda exempted company, and a non-Bermuda corporation may amalgamate and continue either as a Bermuda exempted company or as a foreign corporation. Accenture Ltds bye-laws provide that (i) the Board of Directors by a resolution passed with the approval of a majority of those directors then in office and eligible to vote on that resolution and (ii) a shareholder resolution passed by a majority of votes cast on the relevant record date is required to approve an amalgamation. For purposes of approval of an amalgamation, all shares, whether or not otherwise entitled to vote, carry the right to vote. A separate vote of a class of shares is required if the rights of that class would be altered by virtue of the amalgamation. |
Under Bermuda law, there is no requirement for a companys shareholders to approve a sale, lease or exchange of all or substantially all of a companys property and assets. However, Accenture Ltds bye-laws provide that the approval of (i) the Board of Directors by a resolution passed with the approval of a majority of those directors then in office and eligible to vote on that resolution and (ii) a shareholder resolution passed by a majority of votes cast is required to approve a sale, lease or exchange of all or substantially all of its property or assets.
Accenture plc. There are a number of mechanisms for acquiring an Irish public limited company, including:
(a) | a court-approved scheme of arrangement under the Irish Companies Acts. A scheme of arrangement with one or more classes of shareholders requires a court order from the Irish High Court and the approval of: (1) 75% by value of the voting members of each class of shares participating in the scheme of arrangement; and (2) more than 50% in number of the voting members of each class of shares participating in the scheme of arrangement, at a meeting called to approve the scheme. A scheme of arrangement, if authorized by the participating shareholders and the court, is binding on all of our participating shareholders; |
(b) | through a tender offer by a third party for all of the Accenture plc shares. Where the holders of 80% or more of a class of Accenture plcs shares have accepted an offer for their shares in Accenture plc, the remaining shareholders in that class may be statutorily required to also transfer their shares. If the bidder does not exercise its squeeze out right, then the non-accepting shareholders in that class also have a statutory right to require the bidder to acquire their shares on the same terms. If Accenture plc shares were listed on the Irish Stock Exchange or another regulated stock exchange in the EU, this threshold would be increased to 90%; and |
(c) | it is also possible for Accenture plc to be acquired by way of a merger with an EU-incorporated public company under the EU Cross Border Merger Directive 2005/56. Such a merger must be approved by a |
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special resolution. If Accenture plc is being merged with another EU public company under the EU Cross Border Merger Directive 2005/56 and the consideration payable to Accenture plcs shareholders is not all in the form of cash, Accenture plcs shareholders may be entitled to require their shares to be acquired at fair value. |
Under Irish law, there is no requirement for a companys shareholders to approve a sale, lease or exchange of all or substantially all of a companys property and assets. However, Accenture plcs articles of association provide that the approval of (i) the Board of Directors by a resolution passed with the approval of a majority of those directors then in office and eligible to vote on that resolution and (ii) a shareholder resolution passed by a majority of votes cast on the relevant record date is required to approve a sale, lease or exchange of all or substantially all of its property or assets.
Disclosure of Interests in Shares
Accenture Ltd. The Bermuda Companies Act does not include provisions related to disclosure of interests in shares analogous to the provisions of the Irish Companies Acts described below.
Accenture plc. Under the Irish Companies Acts, there is a notification requirement for shareholders who acquire or cease to be interested in 5% of any class of voting shares of an Irish public limited company. A shareholder of Accenture plc must therefore make such a notification to Accenture plc if as a result of a transaction the shareholder will be interested in 5% or more of the Accenture plc Class A ordinary shares or 5% or more of the Accenture plc Class X ordinary shares; or if as a result of a transaction a shareholder who was interested in more than 5% of the relevant class of Accenture plc shares ceases to be so interested. Where a shareholder is interested in more than 5% of the Accenture plc Class A ordinary shares or 5% or more of the Accenture plc Class X ordinary shares, any alteration of his or her interest that brings his or her total holding through the nearest whole percentage number, whether an increase or a reduction, must be notified to Accenture plc. The relevant percentage figure is calculated by reference to the aggregate nominal value of the shares in which the shareholder is interested as a proportion of the entire nominal value of the relevant class of share capital. Where the percentage level of the shareholders interest does not amount to a whole percentage this figure may be rounded down to the next whole number. All such disclosures should be notified to Accenture plc within 5 business days of the transaction or alteration of the shareholders interests that gave rise to the requirement to notify. Where a person fails to comply with the notification requirements described above no right or interest of any kind whatsoever in respect of any shares in Accenture plc concerned, held by such person, shall be enforceable by such person, whether directly or indirectly, by action or legal proceeding. However, such person may apply to the court to have the rights attaching to the shares concerned reinstated.
In addition to the above disclosure requirement, Accenture plc, under the Irish Companies Acts, may by notice in writing require a person whom Accenture plc knows or has reasonable cause to believe to be, or at any time during the three years immediately preceding the date on which such notice is issued, to have been interested in shares comprised in Accenture plcs relevant share capital to: (a) indicate whether or not it is the case, and (b) where such person holds or has during that time held an interest in the Accenture plc shares, to give such further information as may be required by Accenture plc including particulars of such persons own past or present interests in Accenture plc shares. Any information given in response to the notice is required to be given in writing within such reasonable time as may be specified in the notice.
Where such a notice is served by Accenture plc on a person who is or was interested in Accenture plc shares and that person fails to give Accenture plc any information required within the reasonable time specified, Accenture plc may apply to court for an order directing that the affected shares be subject to certain restrictions. Under the Irish Companies Acts, the restrictions that may be placed on the shares by the court are as follows:
(a) | any transfer of those shares, or in the case of unissued shares any transfer of the right to be issued with shares and any issue of shares, shall be void; |
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(b) | no voting rights shall be exercisable in respect of those shares; |
(c) | no further shares shall be issued in right of those shares or in pursuance of any offer made to the holder of those shares; and |
(d) | no payment shall be made of any sums due from Accenture plc on those shares, whether in respect of capital or otherwise. |
Where shares in Accenture plc are subject to these restrictions, the court may order the shares to be sold and may also direct that the shares shall cease to be subject to these restrictions.
Accenture Ltd. Under Bermuda law, in the event of an amalgamation of a Bermuda company with another company (other than an amalgamation between a company and its wholly owned subsidiary or between two or more subsidiaries of the same company), a shareholder who did not vote for the amalgamation and who is not satisfied that fair value has been paid for his or her shares in the Bermuda company may apply to the Bermuda Court to appraise the fair value of his or her shares. Within one month of such appraisal, the company is entitled to pay the appraised fair value or decide not to proceed with the amalgamation. If the amalgamation has already become effective prior to such appraisal, the company is bound to pay the appraised fair value to the shareholder.
Accenture plc. Generally, under Irish law, shareholders of an Irish company do not have appraisal rights. Under the EC (Cross-Border Mergers) Regulations 2008 governing the merger of an Irish public limited company and a company incorporated in the European Economic Area, a shareholder (a) who voted against the special resolution approving the merger or (b) of a company in which 90% of the shares is held by the other company the party to the merger of the transferor company, has the right to request that the company acquire its shares for cash.
Accenture Ltd. Bermuda law does not expressly prohibit companies from issuing share purchase rights or adopting a shareholder rights plan. However, there is little case law on the enforceability of such plans under Bermuda law. In the adoption of such a plan, the following principles should be observed: (1) the directors take bona fide actions in the best interests of the company as a whole, (2) the powers of the directors are used for a proper purpose, (3) the directors exercise their powers fairly between shareholders and (4) the plan does not penalize any existing shareholders.
The Board of Directors also has power to issue any authorized and unissued Accenture Ltd shares, including undesignated shares on such terms and conditions as it may determine and any such action should be taken in the best interests of Accenture Ltd. It is possible that the terms and conditions of any issue of preferred shares could discourage a takeover or other transaction that holders of some or a majority of the Class A or Class X common shares believe to be in their best interests or in which holders of Class A common shares might receive a premium for their shares over the then market price of the shares.
Accenture plc
Shareholder Rights Plans and Share Issuances
Irish law does not expressly prohibit companies from issuing share purchase rights or adopting a shareholder rights plan as an anti-takeover measure. However, there is no directly relevant case law on the validity of such plans under Irish law. In any event, such a plan would be subject to the Irish Takeover Rules described below.
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Subject to the Irish Takeover Rules described below, the Board of Directors also has power to issue any authorized and unissued Accenture plc shares on such terms and conditions as it may determine and any such action should be taken in the best interest of Accenture plc. It is possible, however, that the terms and conditions of any issue of preferred shares could discourage a takeover or other transaction that holders of some or a majority of the Class A or the Class X ordinary shares believe to be in their best interests or in which holders of Class A ordinary shares might receive a premium for their shares over the market price of the shares.
Irish Takeover Rules and Substantial Acquisition Rules
A transaction by virtue of which a third party is seeking to acquire 30% or more of the voting rights of Accenture plc will be governed by the Irish Takeover Panel Act 1997 and the Irish Takeover Rules made thereunder and will be regulated by the Irish Takeover Panel. The General Principles of the Irish Takeover Rules and certain important aspects of the Irish Takeover Rules are described below.
General Principles
The Irish Takeover Rules are built on the following General Principles which will apply to any transaction regulated by the Irish Takeover Panel:
| in the event of an offer, all classes of shareholders of the target company should be afforded equivalent treatment and, if a person acquires control of a company, the other holders of securities must be protected; |
| the holders of securities in the target company must have sufficient time to allow them to make an informed decision regarding the offer; |
| the board of a company must act in the interests of the company as a whole. If the board of the target company advises the holders of securities in regards to the offer it must advise on the effects of the implementation of the offer on employment, employment conditions and the locations of the target companys place of business; |
| false markets in the securities of the target company or any other company concerned by the offer must not be created; |
| a bidder can only announce an offer after ensuring that he or she can fulfill in full the consideration offered; |
| a target company may not be hindered longer than is reasonable by an offer for its securities. This is a recognition that an offer will disrupt the day-to-day running of a target company particularly if the offer is hostile and the board of the target company must divert its attention to resist the offer; and |
| a substantial acquisition of securities (whether such acquisition is to be effected by one transaction or a series of transactions) will only be allowed to take place at an acceptable speed and shall be subject to adequate and timely disclosure. |
Mandatory Offer
If an acquisition of shares were to increase the aggregate holding of an acquirer and its concert parties to shares carrying 30% or more of the voting rights in Accenture plc, the acquirer and, depending on the circumstances, its concert parties would be mandatorily required (except with the consent of the Irish Takeover Panel) to make a cash offer for the remaining outstanding shares at a price not less than the highest price paid for the shares by the acquirer or its concert parties during the previous 12 months. This requirement would also be triggered by an acquisition of shares by a person holding (together with its concert parties) shares carrying between 30% and 50% of the voting rights in Accenture plc if the effect of such acquisition were to increase the percentage of the voting rights held by that person (together with its concert parties) by 0.05% within a 12 month period. A single holder (that is, a holder excluding any parties acting in concert with the holder) holding more than 50% of the voting rights of a company is not subject to this rule.
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Voluntary Offer; Requirements to Make a Cash Offer and Minimum Price Requirements
A voluntary offer is an offer that is not a mandatory offer. If a bidder or any of its concert parties acquire Accenture plc shares of the same class as the shares the subject of the voluntary offer within the period of three months prior to the commencement of the offer period, the offer price must be not less than the highest price paid for Accenture plc shares of that class by the bidder or its concert parties during that period. The Irish Takeover Panel has the power to extend the look back period to 12 months if the Irish Takeover Panel, having regard to the General Principles, believes it is appropriate to do so.
If the bidder or any of its concert parties has acquired Accenture plc shares of the same class as the shares the subject of the voluntary offer (i) during the period of 12 months prior to the commencement of the offer period which represent more than 10% of the total shares the subject of the voluntary offer or (ii) at any time after the commencement of the offer period, the offer shall be in cash (or accompanied by a full cash alternative) and the price per share shall be not less than the highest price paid by the bidder or its concert parties for shares (of the class of shares the subject of the voluntary offer) during, in the case of (i), the period of 12 months prior to the commencement of the offer period and, in the case of (ii), the offer period. The Irish Takeover Panel may apply this rule to a bidder who, together with its concert parties, has acquired less than 10% of the total shares of the class of shares the subject of the offer in the 12 month period prior to the commencement of the offer period if the Panel, having regard to the General Principles, considers it just and proper to do so.
An offer period will generally commence from the date of the first announcement of the offer or proposed offer.
Substantial Acquisition Rules
The Irish Takeover Rules also contain rules governing substantial acquisitions of shares which restrict the speed at which a person may increase his or her holding of shares and rights over shares to an aggregate of between 15% and 30% of the voting rights of Accenture plc. Except in certain circumstances, an acquisition or series of acquisitions of shares or rights over shares representing 10% or more of the voting rights of Accenture plc is prohibited, if such acquisition(s), when aggregated with shares or rights already held, would result in the acquirer holding 15% or more but less than 30% of the voting rights of Accenture plc and such acquisitions are made within a period of seven days. These rules also require accelerated disclosure of acquisitions of shares or rights over shares relating to such holdings.
Frustrating Action
Under the Irish Takeover Rules, the Board of Directors of Accenture plc is not permitted to take any action which might frustrate an offer for the Accenture plc shares once the Board of Directors has received an approach which may lead to an offer or has reason to believe an offer is imminent except as noted below. Potentially frustrating actions such as (i) the issue of shares, options or convertible securities, (ii) material disposals, (iii) entering into contracts other than in the ordinary course of business or (iv) any action, other than seeking alternative offers, which may result in frustration of an offer, are prohibited during the course of an offer or at any time during which the Board of Directors has reason to believe an offer is imminent. Exceptions to this prohibition are available where:
(a) | the action is approved by Accenture plcs shareholders at a general meeting; or |
(b) | with the consent of the Irish Takeover Panel where: |
(i) | the Irish Takeover Panel is satisfied the action would not constitute a frustrating action; |
(ii) | the holders of at least 50% of the voting rights state in writing that they approve the proposed action and would vote in favor of it at a general meeting; |
(iii) | in accordance with a contract entered into prior to the announcement of the offer; or |
(iv) | the decision to take such action was made before the announcement of the offer and either has been at least partially implemented or is in the ordinary course of business. |
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For other provisions that could be considered to have an anti-takeover effect, please see above at Pre-emption Rights, Share Warrants and Share Options, and Disclosure of Interests in Shares, in addition to Election of Directors, Vacancies on Board of Directors, Removal of Directors, Board and Committee Composition; Management, Shareholder Consent to Action Without Meeting, Amendment of Governing Documents and Director Nominations; Proposals of Shareholders below.
Accenture Ltd. Accenture Ltds bye-laws provide that the Board of Directors will consist of not less than eight nor more than fifteen persons (or such number in excess thereof as the shareholders may from time to time determine), with the exact number in that range to be set from time to time by the Board of Directors. Accordingly, the Board of Directors, and not the shareholders, has the authority to determine the number of directors within the stated range.
Directors are elected or appointed at the annual general meeting or at any special general meeting called for that purpose. Each director is elected by the affirmative vote of a majority of the votes cast with respect to such director at any meeting for the election of directors at which a quorum is present. The bye-laws of Accenture Ltd provide that the Board of Directors is divided into three classes serving staggered three-year terms. Shareholders do not have cumulative voting rights. Accordingly, the holders of a majority of the voting rights attaching to the Accenture Ltd Class A and Class X common shares will, as a practical matter, be entitled to control the election of all directors. At each annual general meeting, directors will be elected for a full term of three years to succeed those directors of the relevant class whose terms are expiring. Any nominee for director who does not receive a majority of the votes cast is not elected to the Board of Directors. Holders of Class A and Class X common shares are entitled to one vote per share at all meetings at which directors are elected.
Accenture plc. The Irish Companies Acts provide for a minimum of two directors. Accenture plcs articles of association provide for a minimum of eight directors and a maximum of fifteen directors. The shareholders of Accenture plc may from time to time increase or reduce the maximum number, or increase or reduce the minimum number, of directors by ordinary resolution. Although the Accenture Ltd bye-laws provide that the number of directors to be elected within the minimum and maximum provided in the bye-laws will be determined by the Board of Directors, the Accenture plc articles of association do not include analogous provisions because (a) Irish law does not expressly recognize a concept of board size within the minimum and maximum number of directors, and (b) it is unclear whether a provision in an Irish public limited companys articles of association permitting the board to set the maximum number of directors would be valid under Irish law.
Directors are elected or appointed at the annual general meeting or at any special general meeting called for that purpose. Each director is elected by the affirmative vote of a majority of the votes cast with respect to such director at any meeting for the election of directors at which a quorum is present. A vacancy caused by the removal of a director may be filled at the meeting at which the director is removed by resolution of Accenture plcs shareholders. If not, it may be filled by the Board of Directors.
The articles of association of Accenture plc provide that the Board of Directors is divided into three classes serving staggered three-year terms. Directors are elected by the affirmative vote of a majority of the votes cast by shareholders. Shareholders do not have cumulative voting rights. Accordingly, the holders of a majority of the voting rights attaching to the Accenture plc Class A and Class X ordinary shares will, as a practical matter, be entitled to control the election of all directors. At each annual general meeting, directors will be elected for a full term of three years to succeed those directors of the relevant class whose terms are expiring. Any nominee for director who does not receive a majority of the votes cast is not elected to the Board of Directors. Holders of Class A and Class X ordinary shares are entitled to one vote for each share at all meetings at which directors are elected. Accenture plcs articles of association provide for a minimum number of directors of eight. If at any time the number of directors falls below the minimum, the remaining directors may act only for the purposes of appointing additional directors to satisfy the requirements of the articles of association with respect to the minimum number of directors.
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Appointment of Directors by the Board
Accenture Ltd. Accenture Ltds bye-laws provide that a vacancy occurring in the Board of Directors (including a vacancy resulting from an increase in the number of directors or the removal of a director) not filled by the shareholders in general meeting may be filled by the affirmative vote of a majority of the directors remaining in office, provided that a quorum is present.
Under Accenture Ltds bye-laws, if the Board of Directors fills a vacancy, the directors term expires at the conclusion of the next annual general meeting.
Accenture plc. Accenture plcs articles of association provide that the directors shall have the authority to appoint one or more directors to Accenture plcs Board of Directors, either to fill a vacancy or as an additional director subject to the maximum in the articles of association.
Any director so appointed shall hold office until the next annual general meeting of Accenture plc. During any vacancy in the Board of Directors the remaining directors shall have full power to act as the board.
Accenture Ltd. Accenture Ltds bye-laws provide that a director may be removed with or without cause at the request of not less than 75% of the other directors.
Accenture plc. Accenture plcs articles of association provide that a director may be removed with or without cause at the request of not less than 75% of the other directors.
Additionally, the Irish Companies Acts provide that shareholders may, by an ordinary resolution, remove a director from office before the expiration of his or her term. Because of this requirement under the Irish Company Acts, the Accenture plc articles of association include such a provision. The equivalent provision under Bermuda law was made inapplicable by Accenture Ltd in its bye-laws, which is permitted under Bermuda law, but not Irish law. A director who is removed from office may have a claim for damages for breach of contract (e.g., employment contract).
Board and Committee Composition; Management
Accenture Ltd. Accenture Ltds bye-laws provide that the Board of Directors may appoint any person to be the attorney or agent of Accenture Ltd and may delegate to such person any of the powers, authorities and discretions (with power to sub-delegate) of the Board of Directors, for such period and subject to such conditions as it may think fit. The Board of Directors may revoke or vary any such appointment or delegation. The Board of Directors may delegate any of its powers, authorities and discretions (with power to sub-delegate) to any officer of Accenture Ltd or committee, consisting of such person or persons (whether directors or not) as it thinks fit. The Board of Directors may make any such delegation on such terms and conditions with such restrictions as it thinks fit and either collaterally with, or to the exclusion of, its own powers and may from time to time revoke or vary such delegation. Any committee so formed shall, in the exercise of the powers, authorities and discretions so delegated, conform to any regulations which may be imposed on it by the Board of Directors. The power to delegate to a committee extends to all the powers, authorities and discretions of the Board of Directors generally. The meetings and proceedings of any committee of the Board of Directors consisting of two or more members shall be governed by the provisions contained in the bye-laws for regulating the meetings and proceedings of the Board of Directors so far as they are capable of applying and are not superseded by any regulations imposed by the Board of Directors except that, unless otherwise determined by the Board of Directors, the quorum necessary for the transaction of business at any committee meeting shall be two members. Each committee of the board shall cause minutes to be made and books kept for the purpose of recording all the proceedings at meetings.
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Accenture plc. The articles of association of Accenture plc allocate authority over the management of Accenture plc to the Board of Directors. The Board of Directors may then delegate management of Accenture plc to committees of the Board of Directors, executives or to a management team, but regardless, the directors will remain responsible, as a matter of Irish law, for the proper management of the affairs of Accenture plc. It is the intention of Accenture plc to replicate the existing committees that are currently in place for Accenture Ltd which include an Audit Committee, a Compensation Committee, a Nominating & Governance Committee and a Finance Committee. It also is the intention of Accenture plc to adopt Accenture Ltds current Corporate Governance Guidelines. The Board of Directors may create new committees or change the responsibilities of existing committees from time to time.
Duties of the Board of Directors
Accenture Ltd. Bermuda law does not impose an all-embracing code of conduct on directors. Many of the duties and obligations of a director are statutory; others are found only in common law. The Bermuda Companies Act contains numerous provisions relating to the duties of directors and prescribes penalties for breach of such duties. At common law a director owes two types of duty to the company: a fiduciary duty and a duty of skill and care. An individual director must act in good faith in his or her dealings with or on behalf of the company and exercise the powers and fulfill the duties of the office honestly. A director has a duty to act in good faith in what the director considers is the best interests of the company and not for any collateral purpose. Directors must act within the powers set out in the companys memorandum of association and bye-laws and exercise their powers in the companys interests and for the purposes for which those powers were conferred. Directors are responsible to the company and not, in the absence of special circumstances, to the shareholders as individuals. For these purposes, the company is generally defined with reference to the interest of both present and future shareholders of the company as a whole.
The bye-laws of Accenture Ltd provide that a director, in taking action, including an action that may involve or relate to a change in control or potential change of control of Accenture Ltd, may, but is not required to, consider, among other things, the effects that the action may have on other interests or persons, including senior executives, retired senior executives and employees and the communities in which Accenture does business, as long as the director acts honestly and in good faith with a view to our best interests. Accenture Ltds Board of Directors has adopted a resolution providing that our directors and officers will occupy a fiduciary relationship with Accenture Ltd and its shareholders and these directors and officers, in performing their duties, will act in good faith in a manner that a director or officer believes to be in the best interests of Accenture Ltd and its shareholders, as that standard of care is interpreted by the courts.
Accenture plc. The directors of Accenture plc have certain statutory and fiduciary duties. All of the directors have equal and overall responsibility for the management of Accenture plc (although directors who also serve as employees will have additional responsibilities and duties arising under their employment agreements and will be expected to exercise a greater degree of skill and diligence than non-executive directors). The principal directors duties include the common law fiduciary duties of good faith and exercising due care and skill. The statutory duties include ensuring the maintenance of proper books of account, having annual accounts prepared, having an annual audit performed, the duty to maintain certain registers and make certain filings as well as disclosure of personal interests. Particular duties also apply to directors of insolvent companies (for example, the directors could be liable to sanctions where they are deemed by the court to have carried on the business of Accenture plc while insolvent, without due regard to the interests of creditors). For public limited companies like Accenture plc, directors are under a specific duty to ensure that the secretary is a person with the requisite knowledge and experience to discharge the role.
The articles of association of Accenture plc provide that a director, in taking action, including an action that may involve or relate to a change in control or potential change of control of Accenture plc, may, but is not required to, consider, among other things, the effects that the action may have on other interests or persons, including senior executives, retired senior executives and employees and the communities in which Accenture
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does business, as long as the director acts honestly and in good faith with a view to our best interests. Accenture plcs Board of Directors has adopted a resolution providing that our directors and officers will occupy a fiduciary relationship with Accenture plc and its shareholders and these directors and officers, in performing their duties, will act in good faith in a manner that a director or officer believes to be in the best interests of Accenture plc and its shareholders, as that standard of care is interpreted by the courts.
Indemnification of Directors and Officers; Insurance
Accenture Ltd. If a director or officer of a Bermuda company is found to have breached his or her fiduciary duties to that company, he or she may be held personally liable to the company in respect of that breach of duty. A director may be liable jointly and severally with others if it is shown that the director knowingly engaged in fraud or dishonesty.
Accenture Ltds bye-laws contain provisions which release the directors and officers from liability provided that they have acted honestly and in good faith in the interests of the company; and indemnify them against all liabilities, losses, damages or expenses in respect of any negligence, default or breach of duty. In addition, no director or officer is liable for the acts, receipts, neglects or defaults of any other director or officer. The exemption from liability and indemnity provisions apply to the fullest extent permitted by law and so does not extend to fraud or dishonesty on the part of the directors and officers.
Accenture Ltd is permitted under its bye-laws and the Bermuda Companies Act to take out directors and officers liability insurance, as well as other types of insurance, for its directors and officers.
Accenture plc. If a director or officer of an Irish company is found to have breached his or her fiduciary duties to that company, he or she may be held personally liable to the company in respect of that breach of duty. Accenture plcs articles of association do not contain analogous provisions to Accenture Ltds bye-laws releasing the directors and officers from liability where they have acted honestly and in good faith as such a release of liability is not possible under Irish law. Accenture plcs articles of association do contain indemnification and expense advancement provisions that are substantially similar to those provided in Accenture Ltds bye-laws. That indemnity is subject to the provisions of the Irish Companies Acts.
Because the Irish Companies Acts prescribe that such an indemnity only permits a company to pay the costs or discharge the liability of a director or the secretary where judgment is given in favor of the director or secretary in any civil or criminal action in respect of such costs or liability, or where an Irish court grants relief because the director or secretary acted honestly and reasonably and ought fairly to be excused, the indemnity in Accenture plcs articles of association to the extent it applies to directors and the secretary of Accenture plc is more limited than the indemnity in Accenture Ltds bye-laws. This restriction does not apply to executives who are not directors or the secretary of Accenture plc.
Irish companies may take out directors and officers liability insurance, as well as other types of insurance, for their directors and officers.
In addition, in connection with the Transaction, we intend that Accenture Ltd (or one or more of its subsidiaries) will enter into indemnification agreements (or deed poll indemnities) with or as to each of Accenture plcs directors and secretary, providing for the indemnification of, and advancement of expenses to, these persons. We expect that the indemnification and expense advancement provided under these indemnification agreements (or deed poll indemnities) will be substantially similar to the indemnity currently afforded by Accenture Ltd under its bye-laws to its directors and officers.
Limitation on Director Liability
Accenture Ltd. Under Bermuda law a company shall not indemnify any individual that is adjudged to be liable for fraud or dishonesty in the performance of his or her duties to such company.
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Accenture Ltds bye-laws provide that Accenture Ltd agrees to exempt any director, secretary, other officer or committee member of Accenture Ltd from any liability on account of any negligence, default or breach of duty on his or her own part in relation to Accenture Ltd or any subsidiary of Accenture Ltd. Such waiver does not cover any matter involving fraud or dishonesty.
Accenture plc. Under Irish law, a company may not exempt its directors from liability for negligence or a breach of duty, and therefore Accenture plcs articles of association do not include provisions exempting directors from liability analogous to the provisions of Accenture Ltds bye-laws described above. However, where a breach of duty has been established, directors may be statutorily exempted by an Irish court from personal liability for negligence or breach of duty if, among other things, the court determines that they have acted honestly and reasonably, and that they may fairly be excused as a result.
Accenture Ltd. A director notwithstanding his or her office (i) may be a party to, or otherwise interested in, any transaction or arrangement with Accenture Ltd or in which Accenture Ltd is otherwise interested and (ii) may be a director or other officer of, or employed by, or a party to any transaction or arrangement with, or otherwise interested in, any company or other person promoted by Accenture Ltd or in which Accenture Ltd is interested.
A director who is in any way, whether directly or indirectly, to the directors knowledge interested in a contract with Accenture Ltd or certain of its affiliates is required to declare the nature of the interest at the first opportunity at a meeting of the Board of Directors at which the question of entering into the contract is first taken into consideration, if the director knows the interest then exists, or in any other case at the first meeting of the Board of Directors after the director knows that he or she is or has become so interested.
Accenture plc. As a matter of Irish law, a director is under a general fiduciary duty to avoid conflicts of interest. Under Irish law, directors who have a personal interest in a contract or a proposed contract with Accenture plc are required to declare the nature of their interest at a meeting of the directors of Accenture plc. Accenture plc is required to maintain a register of such declared interests which must be available for inspection by the shareholders.
Accenture Ltd. Class actions and derivative actions are generally not available to shareholders under Bermuda law. The Bermuda Court, however, would ordinarily be expected to permit a shareholder to commence an action in the name of a company to remedy a wrong done to the company where the act complained of is alleged to be beyond the corporate power of the company or is illegal or would result in violation of the companys memorandum of association or continuance or bye-laws. Furthermore, consideration would be given by the Bermuda Court to enable a derivative action by shareholders in respect of acts that are alleged to constitute a fraud against the minority shareholders or, for instance, where an act requires the approval of a greater percentage of the companys shareholders than that which actually approved it.
When the affairs of a company are being conducted in a manner oppressive or prejudicial to the interests of some part of the shareholders, one or more shareholders may apply to the Bermuda Court for an order regulating the companys conduct of affairs in the future or compelling the purchase of the shares of any shareholder, by other shareholders or by the company.
Accenture Ltds Board of Directors has adopted resolutions providing, among other things, that (a) its shareholders may bring derivative proceedings on behalf of Accenture Ltd, if those derivative proceedings are brought on a basis and under the terms set forth in the Model Business Corporation Act as it is interpreted by, or required by, the courts; and (b) Accenture Ltd will consent to the jurisdiction, for any otherwise available cause
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of action by or on behalf of our shareholders, of all Delaware state courts and U.S. federal courts in Delaware. Notwithstanding the passing of these resolutions, all substantive and procedural requirements of Bermuda law would have to be satisfied for any such derivative proceedings to be brought in Bermuda, and there can be no assurance that Bermuda courts or courts in other jurisdictions would enforce court judgments obtained in the United States against Accenture Ltd or its directors in Bermuda or in other countries where Accenture Ltd has assets.
Accenture plc. In Ireland, the decision to institute proceedings is generally taken by a companys board of directors who will usually be empowered to manage the companys business. In certain limited circumstances, a shareholder may be entitled to bring a derivative action on behalf of Accenture plc. The central question at issue in deciding whether a minority shareholder may be permitted to bring a derivative action is whether, unless the action is brought, a wrong committed against Accenture plc would otherwise go un-redressed.
The principal case law in Ireland indicates that to bring a derivative action a person must first establish a prima facie case (1) that the company is entitled to the relief claimed and (2) that the action falls within one of the five exceptions derived from case law, as follows:
| Where an ultra vires or illegal act is perpetrated. |
| Where more than a bare majority is required to ratify the wrong complained of. |
| Where the shareholders personal rights are infringed. |
| Where a fraud has been perpetrated upon a minority by those in control. |
| Where the justice of the case requires a minority to be permitted to institute proceedings. |
The shareholders of Accenture plc may also bring proceedings against Accenture plc where the affairs of Accenture plc are being conducted, or the powers of the directors are being exercised, in a manner oppressive to the shareholders or in disregard of their interests. Oppression connotes conduct which is burdensome, harsh or wrong. The conduct must relate to the internal management of Accenture plc. This is an Irish statutory remedy and the court can grant any order it sees fit, usually providing for the purchase or transfer of the shares of any shareholder.
Prior to the Transaction, Accenture plcs Board of Directors will adopt resolutions, consistent with resolutions previously adopted by Accenture Ltds Board of Directors, providing, among other things, that (a) its shareholders may bring derivative proceedings on behalf of Accenture plc, if those derivative proceedings are brought on a basis and under the terms set forth in the Model Business Corporation Act as it is interpreted by, or required by, the courts; and (b) Accenture plc will consent to the jurisdiction, for any otherwise available cause of action by or on behalf of our shareholders, of all Delaware state courts and U.S. federal courts in Delaware. Notwithstanding the passing of these resolutions, all substantive and procedural requirements of Irish law would have to be satisfied for any derivative proceedings or other legal actions to be brought in Ireland by a shareholder against Accenture plc or any of its directors or officers. In addition, there can be no assurance that Irish courts or courts in other jurisdictions would enforce court judgments obtained in the United States against Accenture plc or its directors in Ireland or in other countries where Accenture plc has assets.
Shareholder Consent to Action Without Meeting
Accenture Ltd. Accenture Ltds bye-laws provide that except in the case of the removal of auditors or directors, anything which may be done by resolution in a general meeting of any class of shareholders may, without a meeting and without any previous notice, be done by resolution in writing, signed by all of the shareholders who at the date of the resolution in writing would be entitled to attend a meeting and vote on the resolution.
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Accenture plc. The Irish Companies Acts provide for the ability of shareholders to consent to action without a meeting by way of a unanimous written resolution. Accenture plcs articles of association provide that anything which may be done by resolution of Accenture plc at a general meeting may be done by resolution in writing, but only if it is signed by or on behalf of all of the shareholders entitled to attend and vote on the relevant resolution.
Annual Meetings of Shareholders
Accenture Ltd. A general meeting of Accenture Ltds shareholders shall be convened at least once in every calendar year, referred to as the annual general meeting. The directors may select the location/jurisdiction in which the annual general meeting will take place. At any annual general meeting only such business shall be conducted as shall have been brought before the meeting (a) by or at the direction of the Board of Directors, (b) in writing by such number of shareholders as is prescribed by, and is made in accordance with, the relevant provisions of Bermuda law, (c) is proposed at the direction of the court, or (d) by the chairman of the meeting where the chairman in his or her absolute discretion decides that the resolution may properly be regarded as within the scope of the meeting. Please see Director Nominations; Proposals of Shareholders below.
Notice of an annual general meeting must be given to all shareholders of Accenture Ltd. The Bermuda Companies Act provides that, notwithstanding any provisions in the bye-laws of a company, at least 5 days notice shall be given of any meeting of a company, other than an adjourned meeting. The Accenture Ltd bye-laws provide that notice of an annual general meeting shall be given not less than 30 days before the date of the meeting.
As a matter of Bermuda law, the matters which must be transacted at an annual general meeting (unless waived in accordance with the Bermuda Companies Act) are the presentation of audited financial statements of Accenture Ltd and the appointment of an auditor to hold office until the close of the next annual general meeting (and, if no such appointment is made, the auditor in office shall continue until a successor is appointed).
Accenture plc. Accenture plc will be required to hold an annual general meeting within eighteen months of incorporation and at intervals of no more than fifteen months thereafter, provided that an annual general meeting is held in each calendar year following the first annual general meeting, no more than nine months after Accenture plcs fiscal year-end. The first annual general meeting of Accenture plc may be held outside Ireland. Thereafter, any annual general meeting may be held outside Ireland if a resolution so authorizing has been passed at the preceding annual general meeting. At any annual general meeting only such business shall be conducted as shall have been brought before the meeting (a) by or at the direction of the Board of Directors or (b) by any member entitled to vote at such meeting who complies with the procedures set forth in the articles of association. Please see Director Nominations; Proposals of Shareholders below.
Notice of an annual general meeting must be given to all shareholders of Accenture plc and to the auditors of Accenture plc. Accenture plcs articles of association provide that the minimum notice period is 30 days notice in writing for an annual general meeting.
Because of the fifteen-month requirement described above, which is different from the analogous provisions of Bermuda law, Accenture plcs articles of association include provisions reflecting this requirement of Irish law, even though the analogous provisions of Accenture Ltds bye-laws differ in this respect.
The only matters which must, as a matter of Irish law, be transacted at an annual general meeting are the presentation of the annual accounts, balance sheet and reports of the directors and auditors, the appointment of auditors and the fixing of the auditors remuneration (or delegation of same). If no resolution is made in respect of the reappointment of an auditor at an annual general meeting, the previous auditor will be deemed to have continued in office.
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Special Meetings of Shareholders
Accenture Ltd. Special general meetings of Accenture Ltd may be convened by (i) the Board of Directors or (ii) on written requisition of the shareholders holding not less than 10% of the paid up share capital of Accenture Ltd carrying the right to vote in general meeting.
Notice of a special general meeting must be given to all shareholders of Accenture Ltd. The Bermuda Companies Act provides that, notwithstanding any provisions in the bye-laws of a company, at least 5 days notice shall be given of any meeting of a company, other than an adjourned meeting. The Accenture Ltd bye-laws provide that notice of a special general meeting shall be given not less than 10 days before the date of the meeting.
Accenture plc. Extraordinary general meetings of Accenture plc may be convened by (i) the Board of Directors, (ii) on requisition of the shareholders holding not less than 10% of the paid up share capital of Accenture plc carrying voting rights or (iii) on requisition of Accenture plcs auditors. Extraordinary general meetings are generally held for the purposes of approving shareholder resolutions of Accenture plc as may be required from time to time. At any extraordinary general meeting only such business shall be conducted as is set forth in the notice thereof.
Notice of an extraordinary general meeting must be given to all shareholders of Accenture plc and to the auditors of Accenture plc. The articles of association of Accenture plc provide that the maximum notice period is 60 days. The minimum notice periods under Irish law are 21 days notice in writing for an extraordinary general meeting to approve a special resolution and 14 days notice in writing for any other extraordinary general meeting to approve a special resolution and 14 days notice in writing for any other extraordinary general meeting. These minimum notice periods are reflected in Accenture plcs articles of association.
In the case of an extraordinary general meeting convened by shareholders of Accenture plc, the proposed purpose of the meeting must be set out in the requisition notice. The requisition notice can contain any resolution. Upon receipt of this requisition notice, the Board of Directors has 21 days to convene a meeting of Accenture plcs shareholders to vote on the matters set out in the requisition notice. This meeting must be held within two months of the receipt of the requisition notice. If the Board of Directors does not convene the meeting within such 21-day period, the requisitioning shareholders, or any of them representing more than one half of the total voting rights of all of them, may themselves convene a meeting, which meeting must be held within three months of the receipt of the requisition notice.
If the directors become aware that the net assets of Accenture plc are half or less of the amount of Accenture plcs share capital and share premium, the directors of Accenture plc must convene an extraordinary general meeting of Accenture plcs shareholders not later than 28 days from the date that they learn of this fact. This meeting must be convened for the purposes of considering whether any, and if so what, measures should be taken to address the situation.
Record Dates for Shareholder Meetings
Accenture Ltd. Accenture Ltds bye-laws provide that the board may set the record date for any general shareholder meeting and the record date shall be at most 60 days prior to the general meeting.
Accenture plc. Accenture plcs articles of association provide that the board may set the record date for any general shareholder meeting and the record date shall be at most 60 days prior to the general meeting.
Director Nominations; Proposals of Shareholders
Accenture Ltd. The Bermuda Companies Act provides that shareholders may, as set forth below and at their own expense (unless a company otherwise resolves), require a company to give notice of any resolution that the shareholders can properly propose at the next annual general meeting or to circulate a statement prepared by the
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shareholders in respect of any matter referred to in a proposed resolution or any business to be conducted at a general meeting. Bermuda law provides that shareholders of record who collectively hold at least 5% of the total voting rights of the outstanding Class A and Class X common shares, or any group comprised of at least 100 or more registered shareholders, may require a proposal to be submitted to an annual general meeting of shareholders. Bermuda law generally requires that notice of such a proposal must be deposited at Accentures registered office not less than six weeks before the date of the meeting. These advance notice provisions of Bermuda law are in addition to, and separate from, the requirements that a shareholder must meet in order to have a proposal included in the proxy statement under the rules of the SEC.
In accordance with the rules established by the SEC, any shareholder proposal submitted pursuant to Rule 14a-8 to be included in the proxy statement for that meeting generally must be received at Accentures registered office not less than 120 calendar days before the date of Accentures proxy statement released to shareholders in connection with the previous years annual meeting.
Accenture Ltds bye-laws provide that at any annual general meeting only such business shall be conducted as shall have been brought before the meeting (a) by or at the direction of the Board of Directors, (b) in writing by such number of shareholders as is prescribed by, and is made in accordance with, the relevant provisions of Bermuda law, (c) is proposed at the direction of the court, or (d) by the chairman of the meeting in his or her absolute discretion decides that the resolution may properly be regarded as within the scope of the meeting.
Accenture Ltds bye-laws provide that a shareholder entitled to vote for the election of directors may nominate a person or persons for election only if, for an annual general meeting, not less than 120 nor more than 150 days before the date of Accenture Ltds proxy statement released to shareholders in connection with the prior years annual general meeting, notice executed by a shareholder has been received by the secretary of Accenture Ltd of the intention to propose such person for appointment, setting forth as to each person so nominated for election or re-election as a director: (i) the name, age, business address and residence address of such person, (ii) the principal occupation or employment of such person, (iii) the class, series and number of Accenture Ltd shares which are beneficially owned by such person, (iv) particulars which would, if such person were so appointed, be required to be included in Accenture Ltds register of directors and officers and (v) all other information relating to such person that is required to be disclosed in solicitations for proxies for the election of directors pursuant to the Rules and Regulations of the SEC under Section 14 of the Securities Exchange Act of 1934 of the United States of America (as amended), together with notice executed by such person of his or her willingness to serve as a director if so elected; provided, however, that no shareholder shall be entitled to propose any person to be appointed, elected or re-elected director at any special general meeting.
Accenture plc. The Irish Companies Acts provide that shareholders holding not less than 10% of the total voting rights may call an extraordinary general meeting for the purpose of considering director nominations or other proposals, as described above under Special Meetings of Shareholders. While the Bermuda Companies Act provides shareholders with statutory rights to propose business at annual and special general meetings in certain circumstances as described above, the Irish Companies Acts provide shareholders with analogous statutory rights with respect to extraordinary general meetings only.
Accenture plcs articles of association, however, contain advance notice requirements for shareholders to propose business or make nominations at annual general meetings that are similar to those contained in the bye-laws of Accenture Ltd.
In accordance with the rules established by the SEC, any shareholder proposal submitted pursuant to Rule 14a-8 to be included in the proxy statement for that meeting generally must be received at Accentures registered office not less than 120 calendar days before the date of Accentures proxy statement released to shareholders in connection with the previous years annual meeting.
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Adjournment of Shareholder Meetings
Accenture Ltd. Accenture Ltds bye-laws provide that if within 5 minutes (or such longer time as the chairman of the meeting may determine to wait) after the time appointed for a meeting a quorum is not present, the meeting, if convened on the requisition of shareholders, shall be dissolved. If within 15 minutes after the time appointed for a meeting, no shareholders are present, the meeting shall be dissolved. In any other case, it shall stand adjourned to such other day and such other time and place as the chairman of the meeting may determine. Accenture Ltd shall give not less than 5 days notice of any meeting adjourned through want of a quorum and such notice shall state the quorum requirement from the adjourned meeting. If within 5 minutes (or such longer time as the chairman of the meeting may determine to wait) after the time appointed for any adjourned meeting a quorum is not present, the meeting may be further adjourned to such other day and such other time and place as the chairman of the meeting may determine, but otherwise the meeting shall be dissolved. A meeting may not be adjourned to a day which is more than 90 days after the day originally appointed for the meeting.
Accenture plc. Accenture plcs articles provide that if within 5 minutes (or such longer time as the chairman of the meeting may determine to wait) after the time appointed for a meeting a quorum is not present, the meeting, if convened on the requisition of shareholders, shall be dissolved. If within 15 minutes after the time appointed for a meeting, no shareholders are present, the meeting shall be dissolved. In any other case, it shall stand adjourned to such other day and such other time and place as the chairman of the meeting may determine. Accenture plc shall give not less than 5 days notice of any meeting adjourned through want of a quorum and such notice shall state the quorum requirement from the adjourned meeting. If within 5 minutes (or such longer time as the chairman of the meeting may determine to wait) after the time appointed for any adjourned meeting a quorum is not present, the meeting may be further adjourned to such other day and such other time and place as the chairman of the meeting may determine, but otherwise the meeting shall be dissolved. A meeting may not be adjourned to a day which is more than 90 days after the day originally appointed for the meeting.
Accenture Ltd. Holders of Class A and Class X common shares are entitled to one vote per share and vote together as a single class on all matters submitted to a vote of shareholders, except for those matters for which a class vote is required, where a separate vote of the members of the affected class only is required.
Under Bermuda law, except as otherwise provided in the Companies Act or our bye-laws, questions brought before a general meeting of shareholders are decided by a simple majority vote of shareholders present in person or by proxy at the meeting.
In accordance with the bye-laws of Accenture Ltd, the directors of Accenture Ltd may from time to time cause Accenture Ltd to issue preferred shares. These preferred shares may have such voting rights as may be specified in the terms of such preferred shares (e.g., they may carry more votes per share than common shares or may entitle their holders to a class vote on such matters as may be specified in the terms of the preferred shares).
Accenture plc. Except where a greater majority is required by Irish law or Accenture plcs memorandum and articles of association, any question proposed for consideration at any general meeting of Accenture plc or of any class of shareholders shall be decided by a simple majority of the votes cast by shareholders entitled to vote at such meeting and all resolutions put to the Shareholders will be decided on a poll vote.
All votes at a general meeting will be decided by way of a poll. Every shareholder shall on poll have one vote for each Class A or Class X ordinary share that he or she holds as of the record date for the meeting (and, except as otherwise provided by the Irish Companies Acts or Accenture plcs memorandum and articles of association, the holders of Class A and Class X ordinary shares shall vote as a single class). Voting rights on a poll may be exercised by shareholders registered in Accenture plcs share register as of the record date for the meeting or by a duly appointed proxy of such a registered shareholder, which proxy need not be a shareholder. All proxies must be appointed in the manner prescribed by Accenture plcs articles of association. The articles of association of Accenture plc permit the appointment of proxies by the shareholders to be notified to Accenture plc electronically.
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In accordance with the articles of association of Accenture plc, the directors of Accenture plc may from time to time cause Accenture plc to issue preferred shares. These preferred shares may have such voting rights as may be specified in the terms of such preferred shares (e.g., they may carry more votes per share than ordinary shares or may entitle their holders to a class vote on such matters as may be specified in the terms of the preferred shares).
Treasury shares and shares of Accenture plc held by subsidiaries of Accenture plc will not be entitled to vote at general meetings of shareholders.
Irish law requires special resolutions of the shareholders at a general meeting to approve certain matters. A special resolution requires not less than 75% of the votes cast of Accenture plcs shareholders at a general meeting. This may be contrasted with ordinary resolutions, which require a simple majority of the votes of Accenture plcs shareholders cast at a general meeting. Examples of matters requiring special resolutions include:
| Amending the objects of Accenture plc; |
| Amending the articles of association of Accenture plc; |
| Approving the change of name of Accenture plc; |
| Authorizing the entering into of a guarantee or provision of security in connection with a loan, quasi-loan or credit transaction to a director or connected person; |
| Opting out of pre-emption rights on the issuance of new shares; |
| Re-registration of Accenture plc from a public limited company as a private company; |
| Purchase of own shares off-market; |
| Reduction of share capital; |
| Resolving that Accenture plc be wound up by the Irish courts; |
| Resolving in favor of a shareholders voluntary winding-up; |
| Re-designation of shares into different share classes; |
| Setting the re-issue price of treasury shares; and |
| Mergers with companies incorporated in the European Union. |
For a comparison of shareholder voting rights in business combinations see Shareholder Approval of Business Combinations.
Variation of Rights Attaching to a Class or Series of Shares
Accenture Ltd. All or any of the special rights attached to any class of shares for the time being in issue may, unless otherwise expressly provided in the rights attaching to or by the terms of issue of the shares of that class, from time to time (whether or not Accenture Ltd is being wound up), be altered or abrogated with the consent in writing of the holders of not less than 50% of all of the votes capable of being cast at the relevant time at a separate general meeting of the holders of the issued shares of that class or with the sanction of a resolution passed at a separate general meeting of the holders of shares of that class by a majority of not less than 50% of the votes cast.
Accenture plc. Variation of all or any special rights attached to any class of Accenture plc shares is addressed in the articles of association of Accenture plc as well as the Irish Companies Acts. Any variation of class rights attaching to the issued Accenture plc shares must be approved by a special resolution of the shareholders of the class affected or by the written consent of the holders of not less than 75% of the shareholders of the class affected.
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Amendment of Governing Documents
Accenture Ltd. Bermuda law provides that the memorandum of association or continuance of a company may be amended by a resolution of shareholders. An amendment to the memorandum of association or continuance to include certain restricted business activities also requires the approval of the Bermuda Minister of Finance, who may grant or withhold approval at his or her discretion.
Under Bermuda law, the holders of an aggregate of no less than 20% in par value of the issued share capital or any class of issued share capital of Accenture Ltd have the right to apply to the Bermuda Court for an annulment of any amendment of the memorandum of association or continuance adopted by shareholders at any general meeting, other than an amendment that alters or reduces share capital. Where such an application is made, the amendment becomes effective only to the extent that it is confirmed by the Bermuda Court. An application for the annulment of an amendment of the memorandum of association or continuance must be made within 21 days after the date on which the resolution altering the companys memorandum is passed and may be made on behalf of the persons entitled to make the application by one or more of their number as they may appoint in writing for the purpose. No such application may be made by persons voting in favor of the amendment.
Amendments to the bye-laws of Accenture Ltd must be approved by shareholders by a resolution passed by the holders of a majority of the votes cast, except in the case of amendments to the provisions of Accenture Ltds bye-laws relating to amalgamations, discontinuance, any sale, lease or exchange by Accenture Ltd of all or substantially all of its property or assets and the appointment and removal of directors which are not approved by Accenture Ltds Board of Directors, in which case shareholders holding not less than 80% of Accenture Ltds issued and outstanding voting shares must approve such amendments.
Accenture plc. Under Irish law, Accenture plc may alter its memorandum and articles of association by the passing of a special resolution of shareholders. In addition, so as to replicate the relevant provisions the bye-laws of Accenture Ltd, Paragraph 6 of the memorandum of association of Accenture plc provides that any amendment to that paragraph and to the provisions of Accenture plcs articles of association relating to mergers, any sale, lease or exchange by Accenture plc of all or substantially all of its property or assets and the appointment and removal of directors, which are not approved by Accenture plcs Board of Directors, must be approved by shareholders holding not less than 80% of Accenture plcs issued and outstanding voting shares.
Accenture Ltd. The presence of two or more persons in person and representing in person or by proxy a majority of the voting rights at the relevant time constitutes a quorum for the conduct of business by the shareholders or any class of shareholders.
Accenture plc. The presence of two shareholders, in person or by proxy and having the right to attend and vote at the meeting, and of the holders of more than 50% of the Accenture plc ordinary shares outstanding constitutes a quorum for the conduct of business (provided that, if Accenture plc has only one shareholder, one shareholder present in person or by proxy will constitute a quorum). No business may take place at a general meeting of Accenture plc if a quorum is not present in person or by proxy. The Board of Directors has no authority to waive quorum requirements stipulated in the articles of association of Accenture plc. Abstentions and broker non-votes will be counted as present for purposes of determining whether there is a quorum in respect of the proposals. A broker non-vote occurs when a nominee (such as a broker) holding shares for a beneficial owner abstains from voting on a particular proposal because the nominee does not have discretionary voting power for that proposal and has not received instructions from the beneficial owner on how to vote those shares.
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Inspection of Books and Records
Accenture Ltd. Members of the general public have the right to inspect the public documents of Accenture Ltd available at the office of the Registrar of Companies in Bermuda. These documents include Accenture Ltds memorandum of continuance, and any alteration thereto. The shareholders have the additional right to inspect Accenture Ltds bye-laws, minutes of general meetings and audited financial statements. Accenture Ltds register of shareholders is also open to inspection by shareholders and by members of the general public without charge. Accenture Ltd is required to maintain its share register in Bermuda but may, subject to the provisions of Bermuda law, establish a branch register outside Bermuda. Accenture Ltd maintains its principal share register in Hamilton, Bermuda and a branch register in the United States. Accenture Ltd is required to keep at our registered office a register of our directors and officers which is open for inspection for not less than two hours each day by members of the public without charge. Bermuda law does not, however, provide a general right for shareholders to inspect or obtain copies of any other corporate records. The Bermuda Companies Act requires that financial information be provided at a minimum of 5 days prior to the general meeting of shareholders.
Accenture Ltds Board of Directors has adopted a resolution providing that its shareholders have the right to inspect, at a principal place of business in the United States, copies of certain of our books and records, including shareholder names, addresses, and shareholdings in accordance with the terms set forth in the Model Business Corporation Act, as that act may be amended from time to time. If the Model Business Corporation Act does not provide access to the shareholder names, addresses, and shareholdings, these books and records will be made available for inspection by our shareholders for purposes properly related to their status as shareholders.
Accenture plc. Under Irish law, shareholders have the right to: (i) receive a copy of the memorandum and articles of association of Accenture plc and any act of the Irish Government which alters the memorandum of association of Accenture plc; (ii) inspect and obtain copies of the minutes of general meetings and resolutions of Accenture plc; (iii) inspect and receive a copy of the register of shareholders, register of directors and secretaries, register of directors interests and other statutory registers maintained by Accenture plc; (iv) receive copies of balance sheets and directors and auditors reports which have previously been sent to shareholders prior to an annual general meeting; and (v) receive balance sheets of a subsidiary company of Accenture plc which have previously been sent to shareholders prior to an annual general meeting for the preceding ten years. The auditors of Accenture plc will also have the right to inspect all books, records and vouchers of Accenture plc. The auditors report must be circulated to the shareholders with Accenture plcs Irish Financial Statements 21 days before the annual general meeting and must be read to the shareholders at Accenture plcs annual general meeting.
Prior to the Transaction, Accenture plcs Board of Directors intends to adopt a resolution, consistent with resolutions previously adopted by Accenture Ltds Board of Directors, providing that its shareholders have the right to inspect, at a principal place of business in the United States, copies of certain of our books and records, including shareholder names, addresses, and shareholdings in accordance with the terms set forth in the Model Business Corporation Act, as that act may be amended from time to time. If the Model Business Corporation Act does not provide access to the shareholder names, addresses, and shareholdings, these books and records will be made available for inspection by our shareholders for purposes properly related to their status as shareholders.
Transfer and Registration of Shares
Accenture Ltd. Accenture Ltds U.S.-based share register is maintained by its transfer agent. Registration in this share register (and the principal share register in Bermuda) is determinative of membership in Accenture Ltd. A shareholder of Accenture Ltd who holds shares beneficially is not a holder of record of such shares. Instead, the depository (for example, Cede & Co., as nominee for DTC) or other nominee will be the holder of record of such shares. Accordingly, a transfer of shares from a person who holds such shares beneficially to a person who also holds such shares beneficially through the same depository or other nominee is not registered in Accenture Ltds share register, as the depository or other nominee remains the record holder of such shares.
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Subject to applicable Bermuda law and Accenture Ltds bye-laws, any shareholder may transfer all or any of its Class A common shares. The instrument of transfer of a share shall be signed by or on behalf of the transferor and where any share is not fully paid, the instrument of transfer shall be signed by or on behalf of the transferee.
Class A common shares (other than certain shares held by our employees and ex-employees) are not subject to restrictions on transfer, other than as required to comply with applicable Bermuda law and U.S. and other securities laws.
Class X common shares are not transferable by their holders, unless the Class X common shareholder has received the prior written consent of Accenture Ltd to the proposed transfer to the proposed transferee.
The Board of Directors may, in its absolute discretion and without assigning any reason for its decision, decline to register any transfer of any share which is not a fully paid share. The Board of Directors may also decline to register any transfer if:
1. | the instrument of transfer is not duly stamped, if required, and lodged at the registered office or any other place as the Board of Directors may from time to time specify for the purpose, accompanied by the certificate (if any) for the shares to which it relates and such other evidence as the Board of Directors may reasonably require to show the right of the transferor to make the transfer; |
2. | the instrument of transfer is in respect of more than one class of share; |
3. | the instrument of transfer is in favor of more than four persons jointly; |
4. | it is not satisfied that all applicable consents, authorizations, permissions or approvals of any governmental body or agency in Bermuda or any other applicable jurisdiction required to be obtained under relevant law prior to such transfer have been obtained; or |
5. | it is not satisfied that the transfer would not violate the terms of any agreement to which Accenture Ltd (or any of its subsidiaries) and the transferor are party or subject. |
Accenture plc. Accenture plcs share register will be maintained by its transfer agent. Registration in this share register will be determinative of membership in Accenture plc. A shareholder of Accenture plc who holds shares beneficially will not be the holder of record of such shares. Instead, the depository (for example, Cede & Co., as nominee for DTC) or other nominee will be the holder of record of such shares. Accordingly, a transfer of shares from a person who holds such shares beneficially to a person who also holds such shares beneficially through a depository or other nominee will not be registered in Accenture plcs official share register, as the depository or other nominee will remain the record holder of such shares.
A written instrument of transfer is required under Irish law in order to register on Accenture plcs official share register any transfer of shares (i) from a person who holds such shares directly to any other person, (ii) from a person who holds such shares beneficially to a person who holds such shares directly, or (iii) from a person who holds such shares beneficially to another person who holds such shares beneficially where the transfer involves a change in the depository or other nominee that is the record owner of the transferred shares. An instrument of transfer also is required for a shareholder who directly holds shares to transfer those shares into his or her own broker account (or vice versa). Such instruments of transfer may give rise to Irish stamp duty, which must be paid prior to registration of the transfer on Accenture plcs official Irish share register.
Accordingly, we strongly recommend that all directly registered shareholders open broker accounts so they can transfer their Class A common shares into a broker account to be held through DTC as soon as possible, and in any event prior to completion of the Transaction. We also strongly recommend that any person who wishes to acquire Accenture plc Class A ordinary shares after completion of the Transaction acquires such Class A ordinary shares beneficially.
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Accenture plc does not intend to pay any stamp duty. However, Accenture plcs articles of association allow Accenture plc, in its absolute discretion, to pay any stamp duty payable by a buyer. In the event of any such payment, Accenture plc may (i) seek reimbursement from the transferor or transferee (at our discretion), (ii) set-off the amount of the stamp duty against future dividends payable to the transferor or transferee (at our discretion), and (iii) impose a lien against the Accenture plc Class A ordinary shares on which we have paid stamp duty. Any transfer of Accenture plc Class A ordinary shares that is subject to Irish stamp duty will not be registered in the name of the buyer unless an instrument of transfer is executed by or on behalf of the seller, is duly stamped and is provided to our transfer agent. Any transfer of Accenture plc Class A ordinary shares that is subject to Irish stamp duty will not be registered in the name of the buyer unless an instrument of transfer is duly stamped and provided to our transfer agent.
Class X ordinary shares are not transferable by their holders, unless the Class X ordinary shareholder has received the prior written consent of Accenture plc to the proposed transfer to the proposed transferee.
The directors of Accenture plc have general discretion to decline to register an instrument of transfer unless the transfer is in respect of one class of share only or, as in the case of Class X ordinary shares, such transfer would violate the terms of an agreement to which Accenture plc or any of its subsidiaries and the transferor are subject.
Accenture Ltd. On a return of assets on liquidation, reduction of capital or otherwise of Accenture Ltd, the holders of Class A common shares are entitled to be paid the surplus assets of Accenture Ltd remaining after payment of its liabilities (subject to the rights of the holders of any preferred shares in the Company then in issue having preferred rights on a return of capital) in respect of their holdings of Class A common shares pari passu and pro rata to the number of Class A common shares held by each of them. On a return of assets on liquidation, reduction of capital or otherwise, the holders of the Class X common shares will not be entitled to any payment out of the surplus assets of Accenture Ltd in respect of their Class X common shares. The assets received by the holders of Accenture Ltd Class A common shares in a liquidation may consist in whole or in part of property. That property is not required to be of the same kind for all shareholders.
Accenture plc. The rights of the shareholders to a return of Accenture plcs assets on dissolution or winding up, following the settlement of all claims of creditors, may be prescribed in Accenture plcs articles of association or the terms of any preferred shares issued by the directors of Accenture plc from time to time. The holders of preferred shares in particular may have the right to priority in a dissolution or winding up of Accenture plc. If the articles of association contain no specific provisions in respect of a dissolution or winding up then, subject to the priorities of any creditors, the assets will be distributed to shareholders in proportion to the paid-up nominal value of the shares held. Accenture plcs articles provide that the Class A ordinary shareholders of Accenture plc are entitled to participate pro rata in a winding up, but their right to do so may be subject to the rights of any preferred shareholders to participate under the terms of any series or class of preferred shares. Class X ordinary shareholders of Accenture plc are not entitled to participate in a winding up. Accenture plc may be dissolved at any time by way of either a shareholders voluntary winding up or a creditors voluntary winding up. In the case of a shareholders voluntary winding up, a special resolution of the shareholders of Accenture plc is required. Accenture plc may also be dissolved by way of court order on the application of a creditor, or by the Companies Registration Office as an enforcement measure where Accenture plc has failed to file certain returns.
Enforcement of Civil Liabilities Against Foreign Persons
Accenture Ltd. Accenture Ltd has been advised by its Bermuda counsel that a judgment for the payment of money rendered by a court in the U.S. based on civil liability would not be automatically enforceable in Bermuda. There is no treaty between Bermuda and the United States providing for the reciprocal enforcement of foreign judgments. Accenture Ltd has also been advised by its Bermuda counsel that a final and conclusive
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judgment obtained in a court in the U.S. under which a sum of money is payable may be the subject of an action in the Supreme Court of Bermuda under the common law doctrine of obligations by action on the debt evidenced by the judgment of such foreign court. Such an action should generally be successful provided that the sum of money is due and payable, and without having to prove the facts supporting the underlying judgment, as long as (i) the court that gave the judgment was competent to hear the action in accordance with private international law principles as applied by the courts in Bermuda; and (ii) the judgment is not contrary to public policy in Bermuda, was not obtained by fraud or in proceedings contrary to natural justice of Bermuda and is not based on an error in Bermuda law.
Accenture plc. Accenture plc has been advised by its Irish counsel that a judgment for the payment of money rendered by a court in the United States based on civil liability would not be automatically enforceable in Ireland. There is no treaty between Ireland and the United States providing for the reciprocal enforcement of foreign judgments. The following requirements must be met before the foreign judgment will be deemed to be enforceable in Ireland:
| The judgment must be for a definite sum; |
| The judgment must be final and conclusive; and |
| The judgment must be provided by a court of competent jurisdiction. |
An Irish court will also exercise its right to refuse judgment if the foreign judgment was obtained by fraud, if the judgment violated Irish public policy, if the judgment is in breach of natural justice or if it is irreconcilable with an earlier foreign judgment.
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We are furnishing this proxy statement to the holders of our Class A and Class X common shares in connection with the solicitation of proxies by Accenture Ltds Board of Directors for use at the separate special court-ordered class meetings of the holders of the Accenture Ltd Class A common shares and the holders of the Accenture Ltd Class X common shares to consider the Scheme of Arrangement and the other matters that may come before the meetings, a special general meeting of all shareholders and the other matters that may come before that meeting, as described below, and at any adjournments or postponements of the meetings.
The special court-ordered class meetings will be conducted in accordance with the directions of the Supreme Court of Bermuda and the bye-laws of Accenture Ltd. The special general meeting will be conducted in accordance with the bye-laws of Accenture Ltd.
The class meeting of Class A common shareholders is scheduled to be held on , 2009 at , local time, at .
The class meeting of Class X common shareholders is scheduled to be held on , 2009 at , local time, at .
The special general meeting of Class A and Class X common shareholders is scheduled to be held on , 2009 at , local time, at .
At the class meeting of Class A common shareholders, Accenture Ltds Board of Directors will ask the Class A common shareholders of Accenture Ltd, voting as a class, to vote:
1. | to approve the Scheme of Arrangement as it applies to the Class A common shareholders. If the Scheme of Arrangement is approved by both the Class A and Class X common shareholders and becomes effective, each holder of Accenture Ltd Class A common shares immediately before the Transaction will receive Accenture plc Class A ordinary shares on a one-for-one basis in exchange for their Accenture Ltd Class A common shares (and cash for fractional shares held of record); and |
2. | to approve a motion to adjourn the meeting to a later date to solicit additional proxies if there are insufficient proxies to approve the Scheme of Arrangement at the time of the meeting. |
At the meeting of Class X common shareholders, Accenture Ltds Board of Directors will ask the Class X common shareholders of Accenture Ltd, voting as a class, to vote:
1. | to approve the Scheme of Arrangement as it applies to the Class X common shareholders. If the Scheme of Arrangement is approved by both the Class A and Class X common shareholders and becomes effective, each holder of Accenture Ltd Class X common shares immediately before the Transaction will receive Accenture plc Class X ordinary shares on a one-for-one basis in exchange for their Accenture Ltd Class X common shares; and |
2. | to approve a motion to adjourn the meeting to a later date to solicit additional proxies if there are insufficient proxies to approve the Scheme of Arrangement at the time of the meeting. |
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At the special general meeting of all shareholders, Accenture Ltds Board of Directors will ask the Class A and Class X common shareholders of Accenture Ltd, voting as a single class, to vote:
1. | to approve (subject to the Scheme of Arrangement being approved at the class meetings by both the Class A and Class X common shareholders) the reduction of share premium to establish distributable reserves of Accenture plc through the reduction of its share premium account; and |
2. | to approve a motion to adjourn the meeting to a later date to solicit additional proxies if there are insufficient proxies to approve the proposal at the time of the meeting. |
Accenture Ltds Board of Directors has approved the Scheme of Arrangement and unanimously recommends that you vote FOR all of the proposals.
If any other matters properly come before the meetings or any adjournments or postponements of the meetings, the persons named in the proxy card will vote the shares represented by all properly executed proxies in their discretion.
Record Date; Voting Rights; Vote Required for Approval
The board has fixed the close of business on , 2009 as the record date for each of the meetings.
Only holders of record of Accenture Ltd Class A or Class X common shares on the record date are entitled to notice of and to vote at the meetings relevant to their shareholding or any adjournments or postponements of such meetings. You will not be the holder of record of shares that you hold beneficially. Instead, the depository (for example, Cede & Co., as nominee for DTC) or other nominee will be the holder of record of such shares.
As of the record date for the meetings on , 2009, Accenture Ltd Class A common shares (which number does not include issued Class A shares held by subsidiaries of Accenture Ltd) were issued and outstanding and Accenture Ltd Class X common shares were issued and outstanding. Each Accenture Ltd Class A common share or Accenture Ltd Class X common share entitles the holder to one vote on each proposal on which the holder is entitled to vote. Accenture Ltd may be entitled to direct the vote of any shares that its subsidiaries hold at the meetings. However, Accenture Ltd intends to direct its subsidiaries to cast any such votes in proportion to the votes cast by other holders in order to have no impact on the outcome of any vote of the shareholders or any class of shareholders of Accenture Ltd.
The presence of two or more persons in person or by proxy representing a majority of the Accenture Ltd Class A or Class X common shares outstanding and entitled to vote at the meeting constitutes a quorum for the conduct of business at the class meeting of such class. The presence of two or more persons in person or by proxy representing a majority of all votes that may be cast by holders of common shares entitled to vote at the meeting constitutes a quorum for the conduct of business at the special general meeting of Class A and Class X common shareholders. Abstentions and broker non-votes will be counted as present for purposes of determining whether there is a quorum. A broker non-vote occurs when a nominee (such as a broker) holding shares for a beneficial owner abstains from voting on a particular proposal because the nominee does not have discretionary voting power for that proposal and has not received instructions from the beneficial owner on how to vote those shares. An abstention or broker non-vote on the proposals has the effect of a vote not being cast with respect to the relevant shares in relation to the proposal. As a consequence, such shares will not be considered when determining whether any proposal has received the required approval.
Assuming the presence of a quorum, the Scheme of Arrangement must be approved by a majority in number of the holders of both the Accenture Ltd Class A and Class X common shares, voting as separate classes, at separate class meetings, representing 75% or more in value of both the Accenture Ltd Class A common shares and Class X common shares, present in person or by proxy and voting on the proposal. For the purpose of calculating the majority in number requirement for the approval of the proposal, each registered shareholder,
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present and voting in person or by proxy, will be counted as a single shareholder, regardless of the number of shares voted by that shareholder. If a registered shareholder elects to vote a portion of such holders Accenture Ltd Class A or Accenture Ltd Class X common shares in favor of the proposal, and a portion against the proposal, then, subject to any reasonable objection that may be raised, that registered shareholder will be counted as one shareholder voting in favor of the proposal and as one shareholder voting against the proposal, thereby effectively canceling out that registered shareholder s vote for the purposes of the majority in number calculation.
Assuming the presence of a quorum, the affirmative vote of holders of Accenture Ltd Class A or Class X common shares representing at least a majority of the Accenture Ltd Class A or Class X common shares, voting as separate classes, present in person or by proxy at the applicable meetings and voting on the proposal is required to approve the adjournment proposal in respect of their applicable class meetings.
Assuming the presence of a quorum, the affirmative vote of holders of at least a majority of the Accenture Ltd Class A and Class X common shares voting together at the special general meeting on the proposals is required to approve the proposal regarding reduction of share premium to establish distributable reserves to be voted on at the special general meeting.
Assuming the presence of a quorum, the affirmative vote of holders of at least a majority of the Accenture Ltd Class A and Class X common shares voting together at the special general meeting on the proposals is required to approve the adjournment proposal in respect of the special general meeting.
Under Bermuda law, neither the Class A nor the Class X common shareholders of Accenture Ltd are entitled to dissenters or appraisal rights with respect to the matters to be considered and voted on at the meetings.
Our directors and executive officers have indicated that they intend to vote their shares in favor of all of the proposals. On the record date, our directors and executive officers and their affiliates beneficially owned , or %, of the outstanding Accenture Ltd Class A common shares and , or %, of the outstanding Accenture Ltd Class X common shares.
A proxy card is being sent to each Accenture Ltd Class A and Class X common shareholder of record as of the record date. If you properly received a proxy card, you may grant a proxy to vote on the proposals presented in one of the two ways which are explained below under How You Can Vote.
If you properly complete, sign and date the enclosed proxy card and timely send it to us or timely properly deliver your proxy by telephone or via the Internet, your proxy holder (one of the individuals named on the enclosed proxy card) will vote your Class A common shares and/or Class X common shares, as applicable, as you have directed.
If you do not wish to vote all of your Class A common shares and/or Class X common shares in the same manner on any particular proposal(s), you may split your vote by clearly hand-marking the reverse side of the proxy card to indicate how you want to vote your Class A common shares and Class X common shares. You may not split your vote if you are voting via the Internet or by telephone.
If you do not specify on the applicable enclosed proxy card that is submitted (or when giving your proxy by telephone or via the Internet) how you want to vote your Class A common shares and/or Class X common shares, as applicable, the proxy holders will vote them FOR each of the proposals set forth in this proxy statement.
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You may abstain on any proposal by marking ABSTAIN with respect to the proposal.
An abstention or broker non-vote on the proposals has the effect of a vote not being cast with respect to the relevant shares in relation to the proposal. As a consequence, such shares will not be considered when determining whether any proposal has received the required approval.
You may revoke your proxy at any time before it is exercised at the meetings in any of the following ways:
| If you hold your Accenture Ltd common shares through a broker, you may revoke your proxy only in accordance with the instructions from your broker. |
|
After you have submitted a proxy, you may revoke it by mail before the meetings by sending a written notice to our General Counsel and Secretary at 50 W. San Fernando Street, 12th Floor, San Jose, California 95113, USA. Your notice must be received no later than one hour prior to the beginning of the first meeting. |
| If you wish to revoke your submitted proxy card and submit new voting instructions by mail, then you must sign, date and mail a new proxy card with your new voting instructions, which we must receive by 5:00 p.m., Eastern Time, on , 2009 ( , 2009 for Accenture employees and former employees who are submitting proxies for shares received through our employee plans and held by Citigroup). |
| If you submitted your proxy by telephone or via the Internet, you may revoke your submitted proxy and/or submit new voting instructions by that same method, which must be received by 6:00 a.m., Eastern Time, on , 2009 ( , 2009 for Accenture employees and former employees who are submitting proxies for shares received through our employee plans and held by Citigroup). |
| You also may revoke your proxy in person (but only if you are the record owner of the shares) and vote your shares at the applicable meeting. Attending the meetings without taking one of the actions above will not revoke your proxy. |
You may not revoke a proxy merely by attending the meetings. To revoke a proxy, you must take one of the actions described above. If you hold your shares in the street name of a bank, broker, trustee, custodian or other nominee (we generally refer to these banks, brokers, trustees, custodian or other nominees as brokers), you should follow the instructions provided by your broker in revoking your previously granted instructions.
If you do not appoint a proxy and you do not vote at the meetings, you will still be bound by the outcome. You are therefore strongly urged to attend and vote at the meetings in person or by proxy.
The accompanying proxy is being solicited on behalf of the Board of Directors of Accenture Ltd. We have hired Innisfree M&A Incorporated to assist in the distribution of proxy materials and the solicitation of proxies for a fee estimated at $ , plus out-of-pocket expenses. Proxies will be solicited on behalf of the Board of Directors by mail, in person and by telephone. We will bear the cost of soliciting proxies. We will also reimburse brokers and other custodians, nominees and fiduciaries for their reasonable out-of-pocket expenses for forwarding proxy materials to the persons for whom they hold Accenture Ltd Class A or Class X common shares. To the extent necessary in order to ensure sufficient representation at its meetings, Accenture Ltd or its proxy solicitor may solicit the return of proxies by personal interview, mail, telephone, facsimile, Internet or other means of electronic transmission. The extent to which this will be necessary depends upon how promptly proxies are returned. We urge you to send in your proxy without delay.
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You may vote your shares either by voting in person at the applicable meetings or by submitting a completed proxy. By submitting your proxy, you are legally authorizing another person to vote your shares. The enclosed proxy designates William D. Green, Pamela J. Craig and Douglas G. Scrivner to vote your shares in accordance with the voting instructions you indicate in your proxy.
If you submit your proxy designating William D. Green, Pamela J. Craig and Douglas G. Scrivner as the individuals authorized to vote your shares, but you do not indicate how your shares are to be voted, then your shares will be voted by those individuals in accordance with the Board of Directors recommendations, which are described in this proxy statement. In addition, if any other matters are properly brought up at the applicable meetings (other than the proposals contained in this proxy statement), then each of these individuals will have the authority to vote your shares on those matters in his or her discretion. The Board of Directors currently does not know of any matters to be raised at the applicable meetings other than the proposals contained in this proxy statement.
You may submit your proxy either by mail, by telephone (at the number set forth in the accompanying proxy materials) or via the Internet (www.cesvote.com). Please let us know whether you plan to attend the applicable meetings by marking the appropriate box on your proxy card or by following the instructions provided when you submit your proxy by telephone or via the Internet. In order for your proxy to be validly submitted and for your shares to be voted in accordance with your proxy, we must receive your mailed proxy by 5:00 p.m., Eastern Time, on , 2009 ( , 2009 for Accenture employees and former employees who are submitting proxies for shares received through our employee plans and held by Citigroup). If you submit your proxy by telephone or via the Internet, then you may submit your voting instructions up until 6:00 a.m., Eastern Time, on , 2009 ( , 2009 for Accenture employees and former employees who are submitting proxies for shares received through our employee plans and held by Citigroup).
Class A common shareholders who hold their common shares in the street name of a broker must vote their shares in the manner prescribed by their broker. This applies to our employees who received, through our employee plans, shares that are held by Citigroup and/or UBS. Brokers who hold shares on behalf of customers have the authority to vote on routine proposals when they have not received instructions from beneficial owners, but are precluded from exercising their voting discretion with respect to proposals for non-routine matters. Proxies submitted by brokers without instructions from customers for these non-routine matters are referred to as broker non-votes. We believe the proposal to approve the Scheme of Arrangement and the distributable reserves proposal are proposals for non-routine matters.
Class A common shareholders who hold their common shares in the name of a bank, broker or other holder of record and that plan to attend the meetings must present proof of ownership of Accenture Ltd Class A common shares as of the record date, such as a bank or brokerage account statement or letter, together with a form of personal identification, to be admitted to the applicable meetings.
The chairman of each of the applicable meetings will determine all questions as to validity, form, and eligibility, including time of receipt and acceptance of proxies. His or her determination will be final and binding. The chairman of the meeting has the right to waive any irregularities or conditions as to the manner of voting. The chairman of the meeting may accept your proxy by any form of written or electronic communication so long as it is reasonably assured that the communication is authorized by you.
We expect the Sanction Hearing to be held on or about , 2009 at at the Supreme Court in Hamilton, Bermuda. If you are a Class A or Class X common shareholder who wishes to appear in person or by counsel at the Sanction Hearing and present evidence or arguments in support of or opposition to the Scheme of Arrangement, you may do so. In addition, the Supreme Court of Bermuda has wide discretion to hear from interested parties. Accenture Ltd will not object to the participation in the Sanction Hearing by any Class A common shareholder who holds shares through a broker.
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BENEFICIAL OWNERSHIP OF DIRECTORS AND EXECUTIVE OFFICERS
The following table sets forth, as of May 18, 2009, information regarding the beneficial ownership of Accenture Ltd Class A and Class X common shares and of Accenture SCA Class I common shares held by: (1) each of our directors, director nominees and named executive officers; and (2) all of our directors, director nominees and executive officers as a group. To our knowledge, except as otherwise indicated, each of the persons or entities listed below has sole voting and investment power with respect to the shares beneficially owned by him or her. For purposes of the table below, beneficial ownership is determined in accordance with Rule 13d-3 under the Exchange Act, pursuant to which a person or group of persons is deemed to have beneficial ownership of any shares that such person has the right to acquire within 60 days after May 18, 2009. For purposes of computing the percentage of outstanding Accenture Ltd Class A and/or Class X common shares and/or Accenture SCA Class I common shares held by each person or group of persons named below, any shares that such person or persons has the right to acquire within 60 days after May 18, 2009 are deemed to be outstanding but are not deemed to be outstanding for the purpose of computing the percentage ownership of any other person.
Accenture Ltd Class A common shares |
Accenture SCA Class I common shares |
Accenture Ltd Class X common shares |
Percentage of the total number of Class A and Class X common shares beneficially owned | |||||||||||
Name(1) |
shares beneficially owned |
% shares beneficially owned |
shares beneficially owned |
% shares beneficially owned |
shares beneficially owned |
% shares beneficially owned |
||||||||
William D. Green(2)(3) |
331,170 | * | 177,546 | ** | 177,546 | *** | **** | |||||||
Dina Dublon(4) |
73,688 | * | | | | | **** | |||||||
Charles H. Giancarlo |
| * | | | | | **** | |||||||
Dennis F. Hightower |
1,047 | * | | | | | **** | |||||||
Nobuyuki Idei |
3,676 | * | | | | | **** | |||||||
William L Kimsey(5) |
47,481 | * | | | | | **** | |||||||
Robert I. Lipp(4) |
216,324 | * | | | | | **** | |||||||
Marjorie Magner |
5,252 | * | | | | | **** | |||||||
Blythe J. McGarvie(6) |
35,990 | * | | | | | **** | |||||||
Mark Moody-Stuart(4) |
80,954 | * | | | | | **** | |||||||
Wulf von Schimmelmann(6) |
26,387 | * | | | | | **** | |||||||
Pamela J. Craig(2)(7) |
40,972 | * | 430,161 | ** | 380,161 | *** | **** | |||||||
Karl-Heinz Flöther(8) |
283,446 | * | | | | | **** | |||||||
Robert N. Frerichs(2)(9) |
117,154 | * | 53,246 | ** | 53,246 | *** | **** | |||||||
Stephen J. Rohleder(2)(10) |
107,377 | * | 106,383 | ** | 106,383 | *** | **** | |||||||
All Directors and Officers as a Group (24 persons)(2)(11) |
2,065,129 | * | 1,852,951 | 1.6% | 1,378,743 | 1.4% | **** |
* | Less than 1% of Accenture Ltds Class A common shares outstanding. |
** | Less than 1% of Accenture SCAs Class I common shares outstanding. |
*** | Less than 1% of Accenture Ltds Class X common shares outstanding. |
**** | Less than 1% of the total number of Accenture Ltds Class A common shares and Class X common shares outstanding. |
(1) | Address for all persons listed is c/o Accenture, 50 W. San Fernando Street, San Jose, California 95113, USA. |
(2) | Subject to the provisions of its articles of association, Accenture SCA is obligated, at the option of the holder of its shares and at any time, to redeem any outstanding Accenture SCA Class I common shares |
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held by the holder. The redemption price per share generally is equal to the market price of an Accenture Ltd Class A common share at the time of the redemption. Accenture SCA has the option to pay this redemption price with cash or by delivering Accenture Ltd Class A common shares generally on a one-for-one basis as provided for in the articles of association of Accenture SCA. Each time an Accenture SCA Class I common share is redeemed from a holder, Accenture Ltd has the option, and intends to, redeem an Accenture Ltd Class X common share from that holder, for a redemption price equal to the par value of the Accenture Ltd Class X common share, or $0.0000225. All Accenture SCA Class I common shares owned by the officer have been pledged to secure any non-compete obligations owing to Accenture SCA. |
(3) | Includes 30,720 Accenture Ltd Class A common shares that could be acquired through the exercise of stock options within 60 days from May 18, 2009. |
(4) | Includes 55,000 Accenture Ltd Class A common shares that could be acquired through the exercise of stock options within 60 days from May 18, 2009. |
(5) | Includes 35,000 Accenture Ltd Class A common shares that could be acquired through the exercise of stock options within 60 days from May 18, 2009. |
(6) | Includes 20,000 Accenture Ltd Class A common shares that could be acquired through the exercise of stock options within 60 days from May 18, 2009. |
(7) | Includes 27,335 Accenture Ltd Class A common shares that could be acquired through the exercise of stock options within 60 days from May 18, 2009. |
(8) | Includes 28,975 Accenture Ltd Class A common shares that could be acquired through the exercise of stock options within 60 days from May 18, 2009. Includes 71,587 Accenture Ltd Class A common shares owned by the officer that have been pledged to secure any non-compete obligations owning to Accenture Ltd. |
(9) | Includes 19,135 Accenture Ltd Class A common shares that could be acquired through the exercise of stock options within 60 days from May 18, 2009. |
(10) | Includes 449 Accenture Ltd Class A common shares that could be acquired through the exercise of stock options within 60 days from May 18, 2009. |
(11) | In addition to the share amounts referenced in footnotes (3) through (10), includes 129,185 Accenture Ltd Class A common shares that could be acquired through the exercise of stock options within 60 days from May 18, 2009 and 390,446 Accenture Ltd Class A common shares owned by officers that have been pledged to secure any non-compete obligations owing to Accenture Ltd. |
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BENEFICIAL OWNERSHIP OF MORE THAN FIVE PERCENT OF
ANY CLASS OF VOTING SECURITIES
As of May 18, 2009, no person beneficially owned more than five percent of Accenture Ltds Class X common shares, and the only persons known by us to be beneficial owners of more than five percent of Accenture Ltd Class A common shares were as follows:
Accenture Ltd Class A common shares |
||||||
Name and Address of Beneficial Owner |
Shares beneficially owned |
% of Shares beneficially owned |
||||
Wellington Management Co LLP 75 State Street Boston, MA 02109 |
38,725,923 | (1) | 5.8 | % | ||
Franklin Resources Inc One Franklin Parkway Building 920 San Mateo, CA 94403 |
35,638,511 | (2) | 5.3 | % |
(1) | Based on the information disclosed in a Form 13F filed with the SEC on March 31, 2009 by Wellington Management Co LLP and certain related entities reporting sole power to vote or direct the vote over 18,783,813 Accenture Ltd Class A common shares and sole power to dispose or direct the disposition of 38,725,923 Accenture Ltd Class A common shares. |
(2) | Based on the information disclosed in a Form 13F filed with the SEC on March 31, 2009 by Franklin Resources Inc and certain related entities reporting sole power to vote or direct the vote over 32,274,000 Accenture Ltd Class A common shares and sole power to dispose or direct the disposition of 35,638,511 Accenture Ltd Class A common shares. |
As of May 18, 2009, Accenture SCA and certain wholly owned subsidiaries of Accenture SCA and Accenture Ltd directly and indirectly beneficially owned an aggregate of 57,667,871 Accenture Ltd Class A common shares, or 8.6% of the outstanding Class A common shares (including shares held by subsidiaries of Accenture). If being entitled to vote, Accenture SCA and these subsidiaries will exercise their power to vote or direct the vote of the Class A common shares beneficially owned by them in a manner that will have no impact on the outcome of any vote of the shareholders of Accenture Ltd.
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MARKET PRICE AND DIVIDEND INFORMATION
Information regarding the principal market for our Class A common shares and related shareholder matters is as follows.
Our Class A common shares are traded on the NYSE under the symbol ACN. As of May 18, 2009, the approximate number of record holders of Class A common shares was . There is no trading market for Accenture Ltd Class X common shares. As of May 18, 2009, there were holders of record of Accenture Ltd Class X common shares. Historical financial information may not be indicative of Accenture plcs future performance. We have included no data for Accenture plc because this entity was not in existence during any of the periods shown below. The high and low sales price per Accenture Ltd Class A common share for the following periods were as follows:
2007 |
High | Low | ||||
First quarter |
$ | 35.17 | $ | 28.28 | ||
Second quarter |
39.25 | 33.45 | ||||
Third quarter |
41.19 | 34.28 | ||||
Fourth quarter |
44.03 | 37.25 | ||||
2008 |
||||||
First quarter |
$ | 42.32 | $ | 33.03 | ||
Second quarter |
38.44 | 31.91 | ||||
Third quarter |
42.04 | 32.42 | ||||
Fourth quarter |
42.00 | 38.02 | ||||
2009 |
||||||
First quarter |
$ | 43.04 | $ | 24.76 | ||
Second quarter |
34.80 | 26.25 | ||||
Third quarter (through ) |
||||||
On , 2009, the last trading day before the public announcement of the Transaction, the closing price of the Accenture Ltd Class A common shares on the NYSE was $ per share. On , 2009, the most recent practicable date before the date of this proxy statement, the closing price of the Accenture Ltd Class A common shares on the NYSE was $ per share.
On November 15, 2007 and 2006, Accenture Ltd paid cash dividends of $0.42 and $0.35 per share, respectively, on its Class A common shares and cash dividends of $0.42 and $0.35 per share, respectively, were paid on Accenture SCA Class I common shares and on Accenture Canada Holdings Inc. exchangeable shares.
On November 17, 2008, Accenture Ltd paid a cash dividend of $0.50 per share on Class A common shares and caused a cash dividend of $0.50 per share to be paid on Accenture SCA Class I common shares and on Accenture Canada Holdings Inc. exchangeable shares.
Future dividends, if any, on Accenture Ltd Class A common shares and/or Accenture plc Class A ordinary shares will be at the discretion of the Board of Directors and will depend on, among other things, our results of operations, cash requirements and surplus, financial condition, contractual restrictions and other factors that the Board of Directors may deem relevant, as well as our ability to pay dividends in compliance with the Bermuda Companies Act or Irish law, as applicable.
The Bermuda Companies Act regulates the payment of dividends and the making of distributions from contributed surplus. We may not declare or pay a dividend, or make a distribution out of contributed surplus, if
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there are reasonable grounds for believing that: (i) we are, or would be after the payment, unable to pay our liabilities as they become due; or (ii) the realizable value of our assets would thereby be less than the aggregate of our liabilities and issued share capital and share premium accounts.
We intend to file an application with the NYSE to list the Accenture plc Class A ordinary shares that holders of Accenture Ltd Class A common shares will receive in the Transaction. We expect that, immediately following the time of the Transaction, the Accenture plc Class A ordinary shares will be listed on the NYSE under the symbol ACN, the same symbol under which Accenture Ltd Class A common shares are currently listed. Accenture Ltd shares are not listed on any other stock exchange. We do not intend to list the Accenture plc Class A ordinary shares on the Irish Stock Exchange or any other stock exchange. We do not intend to list the Accenture plc Class X ordinary shares on any stock exchange.
Please see Risk Factors, Description of Accenture plc Share CapitalDividends, Proposal Number One: The TransactionAmendment, Termination or Delay, and Proposal Number Two: Reduction of Share Premium to Establish Distributable Reserves.
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INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Consolidated Balance Sheets of Accenture Ltd and its subsidiaries as of August 31, 2008 and 2007, and the related Consolidated Statements of Income, Shareholders Equity and Comprehensive Income, and Cash Flows for each of the years in the three-year period ended August 31, 2008, incorporated by reference in this proxy statement, and the effectiveness of internal control over financial reporting as of August 31, 2008, have been audited by KPMG LLP, an independent registered public accounting firm, as stated in their report appearing in Accenture Ltds Form 10-K for the year ended August 31, 2008, which is incorporated by reference in this proxy statement.
Simpson Thacher & Bartlett LLP will pass upon certain U.S. federal income tax consequences of the Transaction. Arthur Cox, Solicitors, will pass upon certain Irish tax consequences of the Transaction.
SUBMISSION OF FUTURE SHAREHOLDER PROPOSALS
Our annual general meeting of shareholders for 2010 is expected to occur in February 2010. In accordance with the rules established by the SEC, any shareholder proposal submitted pursuant to Rule 14a-8 to be included in the proxy statement for that meeting must be received by us by August 21, 2009. If you would like to submit a shareholder proposal to be included in those proxy materials, you should send your proposal to our General Counsel and Secretary at 50 W. San Fernando Street, 12th Floor, San Jose, California 95113, USA. In order for your proposal to be included in the proxy statement, the proposal must comply with the requirements established by the SEC.
Bermuda law provides that shareholders who collectively hold at least 5% of the total voting rights of the outstanding Class A and Class X common shares, or any group comprised of at least 100 or more registered shareholders, may require a proposal to be submitted to an annual general meeting of shareholders. Bermuda law generally requires that notice of such a proposal must be deposited at Accentures registered office not less than six weeks before the date of the meeting.
These advance notice provisions of Bermuda law are in addition to, and separate from, the requirements that a shareholder must meet in order to have a proposal included in the proxy statement under the rules of the SEC.
A proxy granted by a shareholder will give discretionary authority to the proxies to vote on any matters introduced pursuant to the above advance notice provisions of Bermuda law, subject to applicable rules of the SEC.
Communicating with the Board of Directors
The Board of Directors welcomes your questions and comments. If you would like to communicate directly with the Board of Directors, our non-management directors as a group or Sir Mark Moody-Stuart, our lead director, then you may submit your communication to our General Counsel and Secretary, Accenture Ltd, 50 W. San Fernando Street, 12th Floor, San Jose, California 95113, USA. Communications and concerns will be forwarded to the Board of Directors, our non-management directors as a group or our lead director, as appropriate. We also have established mechanisms for communicating concerns or questions to our compliance office. You may direct any such concerns by e-mail to compliance.program@accenture.com or by calling the Accenture Ethics Line at +1 312-737-8262. Our Code of Business Ethics and underlying policies prohibit any retaliation or other adverse action against anyone for raising a concern. If you wish to raise your concern in an anonymous manner, then you may do so.
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HOUSEHOLDING OF SHAREHOLDER DOCUMENTS
We may send a single set of shareholder documents to any household at which two or more shareholders reside. This process is called householding. This reduces the volume of duplicate information received at your household and helps us to reduce our costs. Your materials may be househeld based on your prior express or implied consent. A number of brokerage firms with account holders who are Accenture shareholders have instituted householding. Once a shareholder has received notice from his or her broker that the broker will be householding communications to the shareholders address, householding will continue until the shareholder is notified otherwise or until the shareholder revokes his or her consent. If your materials have been househeld and you wish to receive separate copies of these documents, or if you are receiving duplicate copies of these documents and wish to have the information househeld, you may notify your broker or write or call our Investor Relations Group at the following address, phone number or e-mail address: Accenture, Investor Relations, 1345 Avenue of the Americas, New York, New York 10105, USA, telephone number +1 877-ACN-5659 (+1 877-226-5659) in the United States and Puerto Rico and +1 678-999-4566 outside the United States and Puerto Rico, or e-mail investor.relations@accenture.com.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports and other information with the SEC. You may read and copy materials that we have filed with the SEC, at the following location:
Public Reference Room
100 F Street, N.E.
Washington, D.C. 20549
You may obtain information on the operation of the SECs Public Reference Room by calling the SEC at 1-800-SEC-0330.
The SEC also maintains an Internet web site that contains reports, proxy statements and other information regarding issuers, including Accenture Ltd, who file electronically with the SEC. The address of that site is http://www.sec.gov. Reports, proxy statements and other information concerning Accenture Ltd may also be inspected at the offices of the New York Stock Exchange, which are located at 20 Broad Street, New York, New York 10005.
The SEC allows us to incorporate by reference the information filed with it, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is considered to be part of this proxy statement, and information we file later with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below, which we have previously filed with the SEC and are considered a part of this proxy statement, and any future filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 prior to the date of this meeting (excluding any information furnished but not filed). These filings contain important information about Accenture:
| Accenture Ltds Annual Report on Form 10-K for the fiscal year ended August 31, 2008. |
| Accenture Ltds Quarterly Reports on Form 10-Q for the quarterly periods ended November 30, 2008 and February 28, 2009. |
| Accenture Ltds Current Reports on Form 8-K, dated December 16, 2008, December 18, 2008, December 19, 2008, February 13, 2009 and March 26, 2009. |
| The description of Accenture Ltd Class A common shares contained in the Registration Statement on Form S-3, dated May 15, 2007, filed with the SEC under Section 12(b) of the Securities Exchange of 1934. |
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These documents are available to any person, including any beneficial owner, upon request directed to our Investor Relations Group by telephone in the United States and Puerto Rico at +1 877-ACN-5659 (+1 877-226-5659) and outside the United States and Puerto Rico at +1 678-999-4566, by e-mail at investor.relations@accenture.com or by mail at Accenture, Investor Relations, 1345 Avenue of the Americas, New York, New York 10105, USA. To ensure timely delivery of these documents, any request should be made by , 2009. The exhibits to these documents will generally not be made available unless they are specifically incorporated by reference in this proxy statement.
In addition, we make available free of charge these documents and our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and all amendments to those reports as soon as reasonably practicable after such material is electronically filed with the SEC on the Investor Relations section of Accentures website (http://investor.accenture.com). We do not intend for information contained in our website to be part of this proxy statement unless specifically incorporated herein.
We have not authorized anyone to give any information or make any representation about the Transaction or about us that differs from or adds to the information in this proxy statement or in the documents incorporated by reference. Therefore, you should not rely upon any information that differs from or is in addition to the information contained in this proxy statement or in the documents incorporated by reference.
The information contained in this proxy statement speaks only as of the date on the cover, unless the information specifically indicates that another date applies.
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IN THE SUPREME COURT OF BERMUDA
CIVIL JURISDICTION (COMMERCIAL COURT)
2009 : NO.
IN THE MATTER OF
ACCENTURE LTD
and
IN THE MATTER OF SECTION 99 OF
THE COMPANIES ACT 1981
SCHEME OF ARRANGEMENT
between
ACCENTURE LTD
and
THE SCHEME SHAREHOLDERS
(as defined in this Scheme)
A-1
PART 1 PRELIMINARY
A. | Definitions |
In this Scheme of Arrangement, unless inconsistent with the subject of context, the following expressions shall bear the following meanings:-
Accenture plc |
Accenture plc, a company incorporated under the laws of Ireland with its registered office at 3 Grand Canal Plaza, Upper Grand Canal Street, Dublin 4, Ireland and with a registered number of ; |
Accenture plc Class A Ordinary Shares |
Class A ordinary shares in the capital of Accenture plc of par value $0.0000225 per share; |
Accenture plc Class X Ordinary Shares |
Class X ordinary shares in the capital of Accenture plc of par value $0.0000225 per share; |
Allowed Proceeding |
Any proceeding by a Scheme Shareholder to enforce its rights under this Scheme where any party fails to perform its obligations under this Scheme; |
Business Day |
Any day other than (1) a day on which banks are required or permitted by law to be closed in New York City, New York, USA, Bermuda or Dublin, Ireland and (2) a day on which the New York Stock Exchange is closed for trading; |
Class A Common Shares |
Class A common shares in the capital of the Company of par value $0.0000225 per share; |
Class X Common Shares |
Class X common shares in the capital of the Company of par value US$0.0000225 per share; |
Companies Act |
The Companies Act 1981 of Bermuda; |
Company |
Accenture Ltd, an exempted limited liability company registered in Bermuda with its registered office at Canons Court, Victoria Street, Hamilton, Bermuda under registration number EC 30090; |
Conditions |
The conditions listed in clause 36; |
Court |
The Supreme Court of Bermuda; |
Court Meetings |
The class meeting of the Class A Common Shareholders of the Company and the class meeting of the Class X Common Shareholders to be held pursuant to the directions of the Court to consider the Scheme; |
Effective Date |
The Business Day on which an office copy of the Order of the Court sanctioning this Scheme and making such facilitating orders as are appropriate pursuant to section 99 of the Companies Act shall have been delivered to the Registrar for registration, at which time this Scheme shall become effective; |
A-2
NYSE |
The New York Stock Exchange; |
Person |
Any individual, company, corporation, estate, limited liability company, partnership, joint venture, association, joint stock company, trust, unincorporated organisation or government or any agency or political subdivision of any government or other entity; |
Proceeding |
Any process, suit, action, legal or other proceeding including without limitation any arbitration, alternative dispute resolution, judicial review, adjudication, demand, execution, restraint, forfeiture, re-entry, seizure, lien, enforcement of judgment, enforcement of any security or enforcement of any security or enforcement of any letters of credit; |
Prohibited Proceeding |
Any proceeding against the Company or Accenture plc or their property in any jurisdiction whatsoever other than an Allowed Proceeding; |
Proxy Statement |
The Proxy Statement of the Company on Schedule 14A (incorporating the notices of the Court meetings) expected to be filed on or about 2009 with the U.S. Securities and Exchange Commission pursuant to Section 14(a) of the U.S. Securities Exchange Act of 1934 in connection with the Scheme; |
Record Date |
The close of business (New York time) on 2009; |
Registrar |
The Registrar of Companies in Bermuda; |
Scheme |
This scheme of arrangement under section 99 of the Companies Act in its present form or with or subject to any modification or addition or condition which the Court may approve or impose; |
Scheme Consideration |
One Accenture plc Class A Ordinary Share to be issued and allotted by Accenture plc in consideration for each whole Scheme Share which is a Class A Common Share held immediately prior to the Transaction Time by a Scheme Shareholder; and one Accenture plc Class X Ordinary Share to be issued and allotted by Accenture plc in consideration for each whole Scheme Share which is a Class X Common Share held immediately prior to the Transaction Time by a Scheme Shareholder plus (in respect of any fraction of a Scheme Share held immediately prior to the Transaction Time by a Scheme Shareholder) a cash payment for that fraction of a share determined by taking the average of the high and low trading prices of the Class A Common Shares on the New York Stock Exchange on the Business Day immediately preceding the Effective Date of the Transaction; |
Scheme Shareholders |
The holders of Scheme Shares appearing on the Register of Members of the Company immediately prior to the Transaction Time; |
Scheme Shares |
All Class A Common Shares and all Class X Common Shares in issue immediately prior to the Transaction Time (including issued Class A Common Shares held by the Shareholding Subsidiaries); |
A-3
Shareholding Subsidiaries |
The direct or indirect subsidiaries of the Company which hold issued Class A Common Shares immediately prior to the Transaction Time. |
Transaction Time |
9:00 a.m. New York Time on the Effective Date; |
Transfer Agent |
The U.S. branch registrar and transfer agent of the Company; |
$ |
United States dollars, the lawful currency of the United States of America. |
B. | Interpretation |
1. | In this Scheme, unless the context otherwise requires or otherwise expressly provides: |
1.1 | References to Parts, clauses and sub-clauses are references to the Parts, clauses and sub-clauses respectively of this Scheme; |
1.2 | References to a statute or a statutory provision include that statute or provision as subsequently modified, amended or re-enacted from time to time; |
1.3 | References to an agreement, deed or document shall be deemed also to refer to such agreement, deed or document as amended, supplemented, restated, replaced and/or novated (in whole or in part) from time to time; |
1.4 | The singular includes the plural and vice versa and words importing one gender shall include both genders; |
1.5 | Headings to Parts, clauses and sub-clauses are for ease of reference only and shall not affect the interpretation of this Scheme; and |
1.6 | To the extent that there shall be any conflict or inconsistency between the terms of this Scheme and the Proxy Statement, the terms of this Scheme shall prevail. |
C. | The Company |
2. | The Company was continued into Bermuda under the Companies Act on 21 February 2001 and has an authorised share capital of $517,500 divided into 20,000,000,000 Class A Common Shares, 1,000,000,000 Class X Common Shares and 2,000,000,000 undesignated shares of par value $0.0000225 each. As of the Record Date, Class A Common Shares were in issue ( of which were held by the Shareholding Subsidiaries), Class X Common Shares were in issue and no undesignated shares were in issue. |
3. | The Class A Common Shares are listed on the NYSE. |
D. | The Purpose of the Scheme |
4. | The purpose of the Scheme is to effect the cancellation of each whole non-fractional issued Scheme Share and the issuance, in respect of each cancelled Scheme Share of: |
4.1 | in the case of each Scheme Share which is a Class A Common Share, one issued, fully-paid Accenture plc Class A Ordinary Share of par value $0.0000225; and |
4.2 | in the case of each Scheme Share which is a Class X Common Share, one issued, fully-paid Accenture plc Class X Ordinary Share of par value $0.0000225. |
The cancellation and issuance of shares under the terms of the Scheme will be effected simultaneously. |
5. | Accenture plc has already been formed as a wholly-owned subsidiary of the Company. |
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6. | At the Transaction Time each fractional part of a Scheme Share which is a Class A Common Share will be cancelled and shall cease to exist. Each Scheme Shareholder holding a fractional part of a Scheme Share which is a Class A Common Share will be entitled to receive a cash payment for that fraction of a share determined by taking the appropriate fraction of the average of the high and low trading prices for a Class A Common Share on the NYSE on the Business Day immediately prior to the Effective Date. |
7. | At the Transaction Time |
7.1 | each whole non-fractional Scheme Share shall be cancelled and shall cease to exist; |
7.2 | the Company will issue and allot to Accenture plc a number of fully-paid Class A Common Shares that is equal to the aggregate of the number of Accenture plc Class A Ordinary Shares and the number of Accenture plc Class X Ordinary Shares to be issued by Accenture plc as described in 7.3 below; |
7.3 | Accenture plc shall issue and allot to each Scheme Shareholder, who previously held a whole non-fractional Scheme Share, one new fully-paid Accenture plc Class A Ordinary Share in respect of each Scheme Share which is a Class A Common Share held by such Scheme Shareholder and one new fully-paid Accenture plc Class X Ordinary Share in respect of each Scheme Share which is a Class X Common Share held by such Scheme Shareholder; |
7.4 | each fractional Scheme Share which is a Class A Common Share shall be cancelled and shall cease to exist; and |
7.5 | the Company shall pay to each Scheme Shareholder who previously held a fractional Scheme Share which is a Class A Common Share a cash payment determined by taking the appropriate fraction of the average of the high and low trading prices for a Class A Common Share on the NYSE on the Business Day immediately prior to the Effective Date. |
8. | Commencing at the Transaction Time, the Company will be a direct wholly-owned subsidiary of Accenture plc and the Scheme Shareholders (other than those Scheme Shareholders who previously held only a fractional part of a Scheme Share) will be shareholders of Accenture plc holding an identical number and class of shares in Accenture plc (except for the fractional parts that have been cancelled). The rights and restrictions attaching to the Accenture plc Class A Ordinary Shares and the Accenture plc Class X Ordinary Shares will be similar to the rights and restrictions attaching to the Class A Common Shares and the Class X Common Shares respectively, as more particularly described in the Proxy Statement. For the avoidance of doubt, when the Scheme becomes effective, the Shareholding Subsidiaries will each hold a number of Accenture plc Class A Ordinary Shares equal to the number of Class A Common Shares respectively held by them immediately prior to the Transaction Time. For U.S. federal income tax purposes, the exchange of the Scheme Shares for shares of Accenture plc pursuant to this Scheme is intended to qualify as an exchange as described in Section 351 of the Internal Revenue Code of 1986, as amended, (the Code) and as a reorganization as described in Section 368 of the Code which is undertaken pursuant to a single integrated plan. This Scheme, together with the Proxy Statement, shall constitute a plan of reorganization under United States Treasury Regulations Section 1.368-2(g). |
9. | Accenture plc has agreed to appear at the hearing of the petition to sanction this Scheme and has undertaken to be bound by its terms and issue and allot the new fully-paid Accenture plc Class A Ordinary Shares and Accenture plc Class X Ordinary Shares in accordance with this Scheme. |
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PART 2 THE SCHEME
Application and Effectiveness of the Scheme
10. | The compromise and arrangement effected by this Scheme shall apply to all Scheme Shares and be binding on all Scheme Shareholders. |
Effect of this Scheme
11. | From the Transaction Time, all of the right, title and interest of the Scheme Shareholders in the Scheme Shares shall be subject to the arrangement implemented by the mechanism set out in this Part 2. |
Cancellation and Issuance of Shares and Consideration
12. | At the Transaction Time, the following shall occur simultaneously: |
12.1 | Any fractional part of a Scheme Share issued shall be cancelled and cease to exist; and |
12.2 | The Company will direct the Transfer Agent to pay (out of funds previously provided by the Company from its reserves otherwise available for distribution) to each Scheme Shareholder holding a fractional part of a Scheme Share a cash payment for that fraction of a share determined by taking the appropriate fraction of the average of the high and low trading prices for a Class A Common Share on the NYSE on the Business Day immediately prior to the Effective Date; |
13. | At the Transaction Time, the following shall occur simultaneously: |
13.1 | All issued whole non-fractional Scheme Shares shall be cancelled and shall cease to exist; |
13.2 | The Company will appropriate and apply the whole of the reserve arising in its books of account as a result of the cancellation of shares under clauses 12.1 and 13.1 in paying up in full at the same value per newly-issued share the Class A Common Shares to be issued by the Company under clauses 13.3 and 13.4. The aggregate amount of share capital and share premium paid up on the Class A Ordinary Shares issued under clauses 13.3 and 13.4 will be the same as the aggregate amount of share capital and share premium paid up on the Scheme Shares, so that there will be no reduction of capital of the Company as a result of the Scheme; |
13.3 | The Company shall issue and allot a number of fully-paid Class A Common Shares to Accenture plc that is equal to the number of Accenture plc Class A Ordinary Shares to be issued by Accenture plc as set out in clause 13.5. |
13.4 | The Company shall issue and allot a number of fully-paid Class A Common Shares to Accenture plc that is equal to the number of Accenture plc Class X Ordinary Shares to be issued by Accenture plc as set out in clause 13.6. |
13.5 | Accenture plc will issue and allot to each of the Scheme Shareholders who previously held whole non-fractional Scheme Shares which are Class A Common Shares such number of Accenture plc Class A Ordinary Shares (credited as fully-paid) as is equal to the number of whole non-fractional Scheme Shares which are Class A Common Shares previously held by the Scheme Shareholder. For the avoidance of doubt, in respect of those Scheme Shares which are held by the Shareholding Subsidiaries at the Transaction Time, Accenture plc will issue to each Shareholding Subsidiary a number of Accenture plc Class A Ordinary Shares (credited as fully paid) that is equal to the number of Scheme Shares which are Class A Common Shares which each respective Shareholding Subsidiary previously held. |
13.6 | Accenture plc will issue and allot to each of the Scheme Shareholders who previously held whole non-fractional Scheme Shares which are Class X Common Shares such number of Accenture plc Class X Ordinary Shares (credited as fully paid) as is equal to the number of whole non-fractional Scheme Shares which are Class X Common Shares previously held by the Scheme Shareholder. |
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PART 3 GENERAL
Identification of Shareholders Entitled to Notice of and to Vote at the Court Meeting
14. | The holders of Scheme Shares and the number and class(es) of Scheme Shares that they hold for the purposes of voting at the Court Meetings shall be determined as those recorded on the register of members of the Company as at the Record Date, provided, however, that the Company will ensure that any Scheme Shares held by the Shareholding Subsidiaries will be voted in a manner that will have no impact on the outcome of any vote taken at the Court Meetings. |
Distributions
15. | At the Transaction Time, the Company will direct the Transfer Agent to hold the cash part of the Scheme Consideration in respect of any fractional part of a Scheme Share for the account of the relevant Scheme Shareholders. The Company shall procure payment by the Transfer Agent of the cash part of the Scheme Consideration to the relevant Scheme Shareholder promptly after the Effective Date. |
16. | At the Transaction Time, Accenture plc shall issue and allot the Accenture plc Class A Ordinary Shares and the Accenture plc Class X Ordinary Shares comprising part of the Scheme Consideration to the Scheme Shareholders in accordance with this Scheme. |
Rights of Scheme Shareholders
17. | From the Effective Date, each holder of Scheme Shares shall in accordance with the Scheme cease to have any rights with respect to Scheme Shares, except the right to receive the Scheme Consideration. Upon the cancellation of the Scheme Shares the register of members of the Company shall be updated to reflect such cancellation. |
Effective Date, Transaction Time and Notification to Scheme Shareholder
18. | Subject to the provisions of clauses 25, 26 and 36 below, the Scheme shall become binding on the Company and the Scheme Shareholders and effective on the date on which an office copy of the Order of the Court sanctioning this Scheme and making such facilitating orders as are appropriate pursuant to section 99 of the Companies Act shall have been delivered to the Registrar for registration under section 99 of the Companies Act, but the transactions contemplated by the Scheme shall not occur until the Transaction Time. With effect until the Transaction Time, the Company will continue to be operated and managed in accordance with its bye-laws and Bermuda law. |
19. | Accenture plc shall give notification of this Scheme having become effective by issuing a press release and by furnishing or filing a current report on Form 8-K with the U.S. Securities and Exchange Commission. |
Stay of Prohibited Proceedings
20. | None of the Scheme Shareholders shall commence a Prohibited Proceeding in respect of or arising from this Scheme after the Effective Date. |
21. | A Scheme Shareholder may commence an Allowed Proceeding against the Company or Accenture plc after the Transaction Time provided that it has first given the Company or Accenture plc five Business Days prior notice in writing of its intention to do so. |
Dividends
22. | All mandates and other instructions in force at the Effective Date in relation to the Scheme Shares (including elections for payment of dividends (if any)) shall, immediately after the Transaction Time, be deemed to be valid as effective mandates or instructions in respect of the Class A ordinary shares or |
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Class X ordinary shares of Accenture plc respectively received in consideration of such Scheme Shares; provided, however, that nothing in this Scheme shall in any way affect the right (if any) of a shareholder of the Company to receive any dividend declared by the Company that has not been paid prior to the Transaction Time. |
23. | The Company shall pay in full all costs, charges, expenses and disbursements reasonably incurred by the Company and Accenture plc in connection with the negotiation, preparation and implementation of this Scheme as and when they arise, including the costs of holding the Court Meetings and the costs of obtaining the sanction of the Court and the costs of placing the notices required by this Scheme. |
Existing Instruments of Transfer and Certificates
24. | As from the Transaction Time, all instruments of transfer and certificates validly existing at the Transaction Time in respect of a transfer or holding of any Scheme Shares shall cease to have effect as documents or evidence of transfer or title. Every holder of a Scheme Share shall upon the request of the Company deliver to the Company any certificate(s) in respect of its, his or her entire holding of Scheme Shares. |
Amendment, Termination or Delay
25. | Subject to U.S. securities law constraints, this Scheme may be amended, modified or supplemented at any time before or after its adoption by the shareholders of the Company at the Court Meetings. However, after adoption, no amendment, modification or supplement may be made or effected that legally requires further approval by shareholders or any class of shareholders of the Company without obtaining that approval. At the Court hearing to sanction this Scheme, the Court may impose such conditions as it deems appropriate in relation to this Scheme but will not impose any material changes without the joint consent of the Company and Accenture plc. The Company may, subject to U.S. securities law constraints, consent to any modification of the Scheme on behalf of the shareholders which the Company may think fit to approve or impose. |
26. | The Company may terminate or abandon this Scheme, or delay the effectiveness of this Scheme, at any time prior to its effectiveness without obtaining the approval of the shareholders of the Company, even though the Scheme may have been approved at the Court Meetings and sanctioned by the Court and all other Conditions may have been satisfied. |
Notice
27. | Any notice or other written communication to be given under or in relation to this Scheme other than pursuant to clauses 19 and 32 shall be given in writing and shall be deemed to have been duly given if it is delivered by hand or sent by post to:- |
27.1 | in the case of the Company, to 1345 Avenue of the Americas, New York, New York 10105, USA, Attention: ; |
27.2 | in the case of any Scheme Shareholder, its last known address according to the Company; and |
27.3 | in the case of any other person, any address set forth for that person in any agreement entered into in connection with this Scheme or the last known address according to the Company, or by fax to its last known fax number according to the Company. |
28. | Any notice or other written communication to be given under this Scheme shall be deemed to have been served as provided in Bye-law 127 of the Companys Bye-laws. |
29. | In proving service, it shall be sufficient proof, in the case of a notice sent by post, that the envelope was properly stamped, addressed and placed in the post. |
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30. | The accidental omission to send any notice, written communication or other document in accordance with clauses 27 or 28 above or the non-receipt of any such notice by a Scheme Shareholder, shall not affect the provisions of this Scheme. |
31. | The Company shall not be responsible for any loss or delay in the transmission of any notices, other documents or payments posted by or to the Scheme Shareholder, which shall be posted at the risk of the Scheme Shareholder. |
32. | Any notice or other written communication that is required to be given to all or substantially all the Scheme Shareholders may (but is not required to) be made by furnishing or filing a Current Report on Form 8-K or other report or statement with the U.S. Securities and Exchange Commission and shall be deemed to be served upon acceptance by its EDGAR system. |
Exercise of Discretion
33. | When under any provision of this Scheme a matter is to be determined by the Company, then its board of directors will have discretion to interpret such matter under the Scheme in a manner that it considers fair and reasonable, and its decisions will be binding on all concerned. |
Governing Law and Jurisdiction
34. | The terms of this Scheme shall be governed by, and construed in accordance with, the laws of Bermuda, and the Scheme Shareholders agree that the Courts of Bermuda shall have exclusive jurisdiction to hear and determine any suit, action or proceeding and to settle any dispute which arises out of or connected with the terms of this Scheme or their implementation or out of any action taken or omitted to be taken under this Scheme in connection with the administration of this Scheme and for such purposes the Scheme Shareholder irrevocably submit to the jurisdiction of the Court, provided however, that nothing in this clause shall affect the validity of other provisions determining governing law and jurisdiction between the Company and the Scheme Shareholders, whether contained in any contract or otherwise. |
35. | The terms of this Scheme and the obligations imposed on the Company hereunder shall take effect subject to any prohibition or condition imposed by any applicable laws. |
Pre-Conditions to the Scheme, the Effective Date and the Transaction Time
36. | The effectiveness of this Scheme is conditional upon the satisfaction or, if allowed by law, waiver by the Company of each of the following conditions: |
36.1 | The Scheme is approved by the requisite vote of the Class A Common Shareholders of the Company, at the Court Meeting of the holders of the Class A Common Shares; |
36.2 | The Scheme is approved by the requisite vote of the Class X Common Shareholders of the Company, at the Court Meeting of the holders of the Class X Common Shares; |
36.3 | The Scheme is sanctioned by the Court under section 99 of the Companies Act; |
36.4 | There is no threatened, pending or effective decree, order, injunction or other legal restraint prohibiting the consummation of the Scheme or related transactions; |
36.5 | The Accenture plc Class A Ordinary Shares to be issued to Scheme Shareholders are authorised for listing on the NYSE, subject to official notice of issuance; |
36.6 | All consents and governmental authorisations that are necessary, desirable, or appropriate in connection with the Scheme and related transactions, are obtained on terms acceptable to the Company and are in full force and effect; |
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36.7 | The Company receives an opinion from Simpson Thacher & Bartlett LLP, in form and substance reasonably satisfactory to it, confirming, as of the Effective Date, the matters discussed under the section of the Proxy Statement entitled Material Tax Considerations Relating to the Transaction U.S. Federal Income Tax Considerations; and |
36.8 | The Company receives an opinion from Arthur Cox, Solicitors, in form and substance reasonably satisfactory to it, confirming, as of the Effective Date, the matters discussed under the section of the Proxy Statement entitled Material Tax Considerations Relations to the Transaction Irish Tax Considerations. |
Expiry of the Scheme
37. | Unless the Effective Date shall have occurred on or before 2010 or such later date, if any, as the Company may agree and the Court may allow, the Scheme shall lapse and not come into effect. |
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Companies Acts 1963 to 2006
A PUBLIC COMPANY LIMITED BY SHARES
MEMORANDUM AND ARTICLES OF ASSOCIATION
of
ACCENTURE PUBLIC LIMITED COMPANY
Incorporated the day of 2009
Arthur Cox
Arthur Cox Building
Earlsfort Terrace
Dublin 2
CA93377.13
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Cert. No.:
Companies Acts 1963 to 2006
A PUBLIC COMPANY LIMITED BY SHARES
MEMORANDUM OF ASSOCIATION
-of-
ACCENTURE PUBLIC LIMITED COMPANY
1. | The name of the Company is Accenture public limited company. |
2. | The Company is to be a public limited company. |
3. | The objects for which the Company is established are: |
3.1 | To carry on business as a holding company and to acquire and hold shares, stocks, debenture stock, bonds, mortgages, obligations and securities and interests of any kind issued or guaranteed by any company, corporation or undertaking of whatever nature and wherever constituted or carrying on business, whether in Ireland or elsewhere, and to vary, transpose, dispose of or otherwise deal with, from time to time as may be considered expedient, any of the Companys investments for the time being. |
3.2 | To acquire any such shares and other securities as are mentioned in the preceding paragraph by subscription, syndicate participation, tender, purchase, exchange or otherwise and to subscribe for the same, either conditionally or otherwise, and to guarantee the subscription thereof and to exercise and enforce all rights and powers conferred by or incident to the ownership thereof. |
3.3 | To co-ordinate the administration, policies, management, supervision, control, research, planning, trading and any and all other activities of, and to act as financial advisers and consultants to, any company or companies now or hereafter incorporated or acquired which may be or may become a group company (which expression, in this and the next following paragraph, means a company, wherever incorporated, which is or becomes a holding company or a subsidiary of, or affiliated with, the Company within the meanings respectively assigned to those terms in the Companies Act 1963) or to any company or companies now or hereafter incorporated or acquired (which are not group companies) with which the Company may be or may become associated. |
3.4 | To provide financing and financial investment, management and advisory services to any group company, which shall include but not be limited to granting or providing credit and financial accommodation, lending and making advances with or without interest to any group company and lending to or depositing with any bank funds or other assets to provide security (by way of mortgage, charge, pledge, lien or otherwise) for loans or other forms of financing granted to such group company by such bank. |
3.5 | To lease, acquire by purchase or otherwise and hold, sell, dispose of and deal in real property and in personal property of all kinds wheresoever situated. |
3.6 | To enter into any guarantee, contract of indemnity or suretyship and to assure, support or secure with or without consideration or benefit the performance of any obligations of any person or persons and to guarantee the fidelity of individuals filling or about to fill situations of trust or confidence. |
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3.7 | To acquire or undertake the whole or any part of the business, property and liabilities of any person carrying on any business that the Company is authorized to carry on. |
3.8 | To apply for, register, purchase, lease, acquire, hold, use, control, licence, sell, assign or dispose of patents, patent rights, copyrights, trade marks, formulae, licences, inventions, processes, distinctive marks and similar rights. |
3.9 | To enter into partnership or into any arrangement for sharing of profits, union of interests, co-operation, joint venture, reciprocal concession or otherwise with any person carrying on or engaged in or about to carry on or engage in any business or transaction that the Company is authorized to carry on or engage in or any business or transaction capable of being conducted so as to benefit the Company. |
3.10 | To take or otherwise acquire and hold securities in any other body corporate having objects altogether or in part similar to those of the Company or carrying on any business capable of being conducted so as to benefit the Company. |
3.11 | To lend money to any employee or to any person having dealings with the Company or with whom the Company proposes to have dealings or to any other body corporate any of whose shares are held by the Company. |
3.12 | To apply for, secure or acquire by grant, legislative enactment, assignment, transfer, purchase or otherwise and to exercise, carry out and enjoy any charter, licence, power, authority, franchise, concession, right or privilege, that any government or authority or any body corporate or other public body may be empowered to grant, and to pay for, aid in and contribute toward carrying it into effect and to assume any liabilities or obligations incidental thereto and to enter into any arrangements with any governments or authorities, supreme, municipal, local or otherwise, that may seem conducive to the Companys objects or any of them. |
3.13 | To perform any duty or duties imposed on the Company by or under any enactment and to exercise any power conferred on the Company by or under any enactment. |
3.14 | To incorporate or cause to be incorporated any one or more subsidiaries of the Company (within the meaning of section 155 of the Companies Act 1963) for the purpose of carrying on any business. |
3.15 | To establish and support or aid in the establishment and support of associations, institutions, funds or trusts for the benefit of employees, directors and/or consultants or former employees, directors and/or consultants of the Company or its predecessors or any of its subsidiary or associated companies, or the dependants or connections of such employees, directors and/or consultants or former employees, directors and/or consultants and grant gratuities, pensions and allowances, including the establishment of share option schemes, enabling employees, directors and/or consultants of the Company or other persons aforesaid to become shareholders in the Company, or otherwise to participate in the profits of the Company upon such terms and in such manner as the Company thinks fit, and to make payments towards insurance or for any object similar to those set forth in this paragraph. |
3.16 | To establish and contribute to any scheme for the purchase by trustees of shares in the Company to be held for the benefit of the Companys employees or the employees of any of its subsidiary or associated companies and to lend or otherwise provide money to the trustees of such schemes or the Companys employees or the employees of any of its subsidiary or associated companies to enable them to purchase shares of the Company. |
3.17 | To grant bonuses to any person or persons who are or have been in the employment of the Company or any of its subsidiary or associated companies or any person or persons who are or have been directors of, or consultants to, the Company or any of its subsidiary or associated companies. |
3.18 | To establish any scheme or otherwise to provide for the purchase by or on behalf of customers of the Company of shares in the Company. |
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3.19 | To subscribe or guarantee money for charitable, benevolent, educational or religious objects or for any exhibition or for any public, general or useful objects. |
3.20 | To promote any company for the purpose of acquiring or taking over any of the property and liabilities of the Company or for any other purpose that may benefit the Company. |
3.21 | To purchase, lease, take in exchange, hire or otherwise acquire any personal property and any rights or privileges that the Company considers necessary or convenient for the purposes of its business. |
3.22 | To construct, maintain, alter, renovate and demolish any buildings or works necessary or convenient for its objects. |
3.23 | To construct, improve, maintain, work, manage, carry out or control any roads, ways, tramways, branches or sidings, bridges, reservoirs, watercourses, wharves, factories, warehouses, electric works, shops, stores and other works and conveniences that may advance the interests of the Company and contribute to, subsidize or otherwise assist or take part in the construction, improvement, maintenance, working, management, carrying out of control thereof. |
3.24 | To raise and assist in raising money for, and aid by way of bonus, loan, promise, endorsement, guarantee or otherwise, any person and guarantee the performance or fulfilment of any contracts or obligations of any person, and in particular guarantee the payment of the principal of and interest on the debt obligations of any such person. |
3.25 | To borrow or raise or secure the payment of money (including money in a currency other than the currency of Ireland) in such manner as the Company shall think fit and in particular by the issue of debentures or any other securities, perpetual or otherwise, charged upon all or any of the Companys property, both present and future, including its uncalled capital and to purchase, redeem or pay off any such securities. |
3.26 | To engage in currency exchange, interest rate and/or commodity or index linked transactions (whether in connection with or incidental to any other contract, undertaking or business entered into or carried on by the Company or whether as an independent object or activity) including, but not limited to, dealings in foreign currency, spot and forward rate exchange contracts, futures, options, forward rate agreements, swaps, caps, floors, collars, commodity or index linked swaps and any other foreign exchange, interest rate or commodity or index linked arrangements and such other instruments as are similar to or derive from any of the foregoing whether for the purpose of making a profit or avoiding a loss or managing a currency or interest rate exposure or any other purpose and to enter into any contract for and to exercise and enforce all rights and powers conferred by or incidental, directly or indirectly, to such transactions or termination of any such transactions. |
3.27 | To remunerate any person or company for services rendered or to be rendered in placing or assisting to place or guaranteeing the placing of any of the shares of the Companys capital or any debentures, debenture stock or other securities of the Company or in or about the formation or promotion of the Company or the conduct of its business. |
3.28 | To draw, make, accept, endorse, discount, execute and issue bills of exchange, promissory notes, bills of lading, warrants and other negotiable or transferable instruments. |
3.29 | To sell, lease, exchange or otherwise dispose of the undertaking of the Company or any part thereof as an entirety or substantially as an entirety for such consideration as the Company thinks fit. |
3.30 | To sell, improve, manage, develop, exchange, lease, dispose of, turn to account or otherwise deal with the property of the Company in the ordinary course of its business. |
3.31 | To adopt such means of making known the products of the Company as may seem expedient, and in particular by advertising, by purchase and exhibition of works of art or interest, by publication of books and periodicals and by granting prizes and rewards and making donations. |
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3.32 | To cause the Company to be registered and recognized in any foreign jurisdiction, and designate persons therein according to the laws of that foreign jurisdiction or to represent the Company and to accept service for and on behalf of the Company of any process or suit. |
3.33 | To allot and issue fully-paid shares of the Company in payment or part payment of any property purchased or otherwise acquired by the Company or for any past services performed for the Company. |
3.34 | To distribute among the members of the Company in cash, kind, specie or otherwise as may be resolved, by way of dividend, bonus or in any other manner considered advisable, any property of the Company, but not so as to decrease the capital of the Company unless the distribution is made for the purpose of enabling the Company to be dissolved or the distribution, apart from this paragraph, would be otherwise lawful. |
3.35 | To promote freedom of contract, and to resist, insure against, counteract and discourage interference therewith, to join any lawful federation, union or association or do any other lawful act or thing with a view to preventing or resisting directly or indirectly any interruption of or interference with the Companys or any other trade or business or providing or safeguarding against the same, or resisting or opposing any strike, movement or organisation, which may be thought detrimental to the interests of the Company or its employees and to subscribe to any association or fund for any such purposes. |
3.36 | To establish agencies and branches. |
3.37 | To take or hold mortgages, hypothecautions, liens and charges to secure payment of the purchase price, or of any unpaid balance of the purchase price, of any part of the property of the Company of whatsoever kind sold by the Company, or for any money due to the Company from purchasers and others and to sell or otherwise dispose of any such mortgage, hypothec, lien or charge. |
3.38 | To pay all costs and expenses of or incidental to the incorporation and organization of the Company. |
3.39 | To invest and deal with the moneys of the Company not immediately required for the objects of the Company in such manner as may be determined. |
3.40 | To do any of the things authorized by this memorandum as principals, agents, contractors, trustees or otherwise, and either alone or in conjunction with others. |
3.41 | To do all such other things as are incidental or conductive to the attainment of the objects and the exercise of the powers of the Company. |
4. | The liability of the members is limited. |
5. | The share capital of the Company is 40,000 and US$517,500 divided into 40,000 Ordinary Shares of 1 each, 20,000,000,000 Class A Ordinary Shares of US$0.0000225 each, 1,000,000,000 Class X Ordinary Shares of US$0.0000225 each and 2,000,000,000 Undesignated Shares of US$0.0000225 each. |
6. | Unless the board of directors of the Company has, by a resolution passed by a majority of the directors then in office and eligible to vote on that resolution, approved a revocation or amendment of this paragraph of the memorandum of association or articles 81, 82, 83, 84, 85 and 87 of the articles of association of the Company, the revocation or amendment will not be effective unless approved by a resolution in favour of which members holding not less than 80 per cent of the issued shares of the Company carrying the right to vote at general meetings at the relevant time have voted. |
7. | The shares forming the capital, increased or reduced, may be increased or reduced and be divided into such classes and issued with any special rights, privileges and conditions or with such qualifications as regards preference, dividend, capital, voting or other special incidents, and be held upon such terms as may be attached thereto or as may from time to time be provided by the original or any substituted or amended articles of association and regulations of the Company for the time being, but so that where shares are issued with any preferential or special rights attached thereto such rights shall not be alterable otherwise than pursuant to the provisions of the Companys articles of association for the time being. |
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WE, the several persons whose names, addresses and descriptions are subscribed, wish to be formed into a Company in pursuance of this memorandum of association, and we agree to take the number of shares in the capital of the Company set opposite our respective names.
Names, addresses and descriptions1 |
Number of shares taken by each subscriber | |
Dated the day of 2009
Witness to the above signatures:
1 |
Details to be inserted following incorporation. |
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Companies Acts 1963 to 2006
COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
of
Accenture Public Limited Company
PRELIMINARY
1. | The regulations contained in Table A in the First Schedule to the Companies Act, 1963 shall not apply to the Company. |
2. | In these articles, unless the context otherwise requires: |
1963 Act means the Companies Act 1963 (No. 33 of 1963) as amended by the Companies Acts 1977 to 2005 and Parts 2 and 3 of the Investment Funds, Companies and Miscellaneous Provisions Act 2006 and all statutory instruments which are to read as one with, or construed, or to read together with the Companies Acts;
1983 Act means the Companies (Amendment) Act 1983;
1990 Act means the Companies (Amendment) Act 1990;
address includes, without limitation, any number or address used for the purposes of communication by way of electronic mail or other electronic communication;
Assistant Secretary means any person appointed by the Secretary from time to time to assist the Secretary;
Board means the board of directors for the time being of the Company;
Class A Ordinary Shares means class A ordinary shares of nominal value US$0.0000225 per share (or such other nominal value as may result from any reorganisation of capital) in the capital of the Company, having the rights and being subject to the limitations set out in these articles;
Class X Ordinary Shares means redeemable class X ordinary shares of nominal value US$0.0000225 per share (or such other nominal value as may result from any reorganisation of capital) in the capital of the Company, having the rights and being subject to the limitations set out in these articles;
clear days means, in relation to the period of a notice, that period excluding the day on which the notice is given or served, or deemed to be given or served, and the day for which it is given or on which it is to take effect;
Companies Acts means the Companies Acts 1963 to 2005 and Parts 2 and 3 of the Investment Funds, Companies and Miscellaneous Provisions Act 2006, and all statutory instruments which are to be read as one with, or construed, or to be read together with the Companies Acts;
Company means the company whose name appears in the heading to these articles;
Director means a director for the time being of the Company;
electronic communication has the meaning given to those words in the Electronic Commerce Act 2000;
electronic signature has the meaning given to those words in the Electronic Commerce Act 2000;
EUR, and euro means the currency of Ireland;
Group Company means the Company, any holding company of the Company and any subsidiary of the Company or of any such holding company;
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Ordinary Resolution means an ordinary resolution of the Shareholders within the meaning of section 141 of the 1963 Act;
Paid Up means paid up or credited as paid up;
Person entitled by Transmission means a person whose entitlement to a share in consequence of the death or bankruptcy of a Shareholder or of any other event giving rise to its transmission by operation of law has been noted in the Register;
Redemption Date means the date specified in a notice served by the Company on a Class X Ordinary Shareholder under article 5(c)(iv);
Redeemable Shares means redeemable shares in accordance with section 206 of the 1990 Act;
Register means the register of shareholders of the Company;
Registered Office means the registered office for the time being of the Company;
Seal means the common seal of the Company and includes any duplicate seal;
Secretary means the secretary of the Company or, if there are joint secretaries, any of the joint secretaries and includes a deputy or assistant secretary and any person appointed by the Board to perform any of the duties of the secretary;
Share means any share in the capital of the Company;
Shareholder means in relation to any share, the member whose name is entered in the Register as the holder of the share or, where the context permits, the members whose names are entered in the Register as the joint holders of shares;
Special Resolution means a special resolution of the Shareholders within the meaning of Section 141 of the Act;
Subsidiary and holding company have the same meanings as in section 155 of the 1963 Act, except that references in that section to a company shall include any body corporate or other legal entity, whether incorporated or established in Ireland or elsewhere;
Undesignated Shares means the 2,000,000,000 shares of nominal value US$0.0000225 per share (or such other nominal value as may result from any reorganisation of capital) in the capital of the Company, having such rights and being subject to such limitations as may be attached to them pursuant to article 6(c); and
US dollars or US$ means United States dollars.
3. | For the purposes of these articles, unless the context otherwise requires: |
(a) | a company shall be deemed to be present in person at a meeting if its representative, duly authorised pursuant to these articles, is present; |
(b) | words importing only the singular number include the plural number and vice versa; |
(c) | words importing only one gender include the other gender; |
(d) | references to a company include any body corporate or other legal entity, whether incorporated or established in Ireland or elsewhere; |
(e) | references to a person include any company, partnership or other body of persons, whether corporate or not, any trust and any government, governmental body or agency or public authority, whether of Ireland or elsewhere; |
(f) | references to writing include typewriting, printing, lithography, photography, electronic mail and other modes of representing or reproducing words in a legible and non-transitory form; |
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(g) | a reference to anything being done by electronic means includes its being done by means of any electronic or other communications equipment or facilities and references to any communication being delivered or received, or being delivered or received at a particular place, include the transmission of an electronic or similar communication, and to a recipient identified in such manner or by such means, as the Board may from time to time approve or prescribe, either generally or for a particular purpose; |
(h) | references to a signature or to anything being signed or executed include such forms of electronic signature or other means of verifying the authenticity of an electronic or similar communication as the Board may from time to time approve or prescribe, either generally or for a particular purpose; |
(i) | references to a dividend include any dividend or distribution, in cash or by the distribution of assets, paid or distributed to Shareholders out of the profits of the Company available for distribution; |
(j) | any words or expressions defined in the Companies Acts, if not otherwise defined in or given a particular meaning by these articles, have the same meaning in these articles; |
(k) | any reference to any statute or statutory provision (whether of Ireland or elsewhere) includes a reference to any modification or re-enactment of it for the time being in force and to every rule, regulation or order made under it (or under any such modification or re-enactment) and for the time being in force and any reference to any rule, regulation or order made under any such statute or statutory provision includes a reference to any modification or replacement of such rule, regulation or order for the time being in force; and |
(l) | references to shares carrying the general right to vote at general meetings of the Company are to those shares (of any class or series) carrying the right to vote, other than shares which entitle the holders to vote only in limited circumstances or upon the occurrence of a specified event or condition (whether or not those circumstances have arisen or that event or condition has occurred). |
REGISTERED OFFICE
4. | The Registered Office shall be at such place in Ireland as the Board from time to time decides. |
SHARE CAPITAL
5. (a) | The authorised share capital of the Company at the date of adoption of these articles is 40,000 and US$517,500 divided into 40,000 Ordinary Shares of 1 each, 20,000,000,000 Class A Ordinary Shares of US$0.0000225 each, 1,000,000,000 Class X Ordinary Shares of US$0.0000225 each and 2,000,000,000 Undesignated Shares of US$0.0000225 each. |
(b) | Class A Ordinary Shares |
The Class A Ordinary Shares shall entitle the holders thereof to the following rights:
(i) | as regards dividend: |
after making all necessary provisions, where relevant, for payment of any preferred dividend in respect of any preference shares in the Company then outstanding, the Company shall apply any profits or reserves which the Directors resolve to distribute in paying such profits or reserves to the holders of the Class A Ordinary Shares in respect of their holdings of such shares pari passu and pro rata to the number of Class A Ordinary Shares held by each of them;
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(ii) | as regards capital: |
on a return of assets on liquidation, reduction of capital or otherwise, the holders of the Class A Ordinary Shares shall be entitled to be paid the surplus assets of the Company remaining after payment of its liabilities (subject to the rights of the holders of any preferred shares in the Company then in issue, having preferred rights on a return of capital) in respect of their holdings of Class A Ordinary Shares pari passu and pro rata to the number of Class A Ordinary Shares held by each of them;
(iii) | as regards voting in general meetings: |
subject to the right of the Company to set record dates for the purpose of determining the identity of Shareholders entitled to notice of and/or vote at a general meeting, the holders of the Class A Ordinary Shares shall be entitled to receive notice of, and to attend and vote at, general meetings of the Company; every holder of Class A Ordinary Shares present in person or by proxy shall have one vote for each Class A Ordinary Share held by him (and, except as otherwise provided by the Companies Acts or these articles, the holders of Class A Ordinary Shares and Class X Ordinary Shares shall vote as a single class);
(iv) | as regards redemption: |
a Class A Ordinary Share shall be deemed to be a Redeemable Share on, and from the time of, the existence or creation of an agreement, transaction or trade between the Company and any third party pursuant to which the Company acquires or will acquire Class A Ordinary Shares, or an interest in Class A Ordinary Shares, from the relevant third party. In these circumstances, the acquisition of such shares by the Company shall constitute the Redemption of a Redeemable Share in accordance with Part XI of the 1990 Act;
(v) | as regards certificates: |
unless the Board resolves otherwise (either generally or in any particular case or cases) holders of Class A Ordinary Shares will not be entitled to receive a share certificate in respect of any Class A Ordinary Shares.
(c) | Class X Ordinary Shares |
The Class X Ordinary Shares shall entitle the holders thereof to the following rights and will be subject to the following restrictions:
(i) | as regards dividend: |
the holders of Class X Ordinary Shares will have no right to receive any dividend or distribution in respect of their holdings of Class X Ordinary Shares;
(ii) | as regards capital: |
on a return of assets on liquidation, reduction of capital or otherwise, the holders of the Class X Ordinary Shares will not be entitled to any payment out of the surplus assets of the Company in respect of their holdings of Class X Ordinary Shares;
(iii) | as regards voting in general meetings: |
subject to the right of the Company to set record dates for the purpose of determining the identity of Shareholders entitled to notice of and/or vote at a general meeting, the holders of the Class X Ordinary Shares shall be entitled to receive notice of, and to attend and vote at, general meetings of the Company; every holder of Class X Ordinary Shares present in person or by proxy shall have one vote for each Class X Ordinary Share held by him (and, except as otherwise provided by the Companies Acts or these articles, the holders of Class A Ordinary Shares and Class X Ordinary Shares shall vote as a single class);
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(iv) | as regards redemption: |
(A) | subject as provided in this article 5(c)(iv), any Class X Ordinary Shares may, at the option of the Company, at any time (subject to the requirements of the Companies Acts) be redeemed by the Company; |
(B) | if the Company exercises its right under this article 5(c)(iv) it will, within 30 days of the Redemption Date, notify the Class X Ordinary Shareholder in writing of the date of completion of the redemption, the number of Class X Ordinary Shares held by him which have been redeemed and of his right to claim a redemption payment under paragraph (C) of this article 5(c)(iv); |
(C) | (subject to delivery of any share certificate as referred to in paragraph (D) below) the Company will, within 30 days of receipt by it from the Shareholder of a written request for payment, (subject to paragraph (E) below) pay to such holder or, in the case of joint holders, to the holder whose name stands first in the Register in respect of such shares, in respect of each Class X Ordinary Share which has been redeemed the nominal value of that share; |
(D) | the holder of any Class X Ordinary Shares which have been redeemed shall, within 30 days of receipt by him of the notice referred to in paragraph (B), deliver to the Company at its Registered Office (or such other place as the Company directs) any certificates for the Class X Ordinary Shares held by him which have been redeemed. If relevant, the Company will issue to the Shareholder a new share certificate for any unredeemed Class X Ordinary Shares held by that Shareholder; |
(E) | if a redemption of Class X Ordinary Shares under this article 5(c)(iv) would otherwise result in the Shareholder being entitled to receive a redemption payment of a fractional part of one cent of a US dollar, then the amount of the payment will be rounded up to the nearest whole cent; |
(F) | the receipt of the registered holder or, in the case of joint holders, the holder whose name stands first in the Register for the time being of Class X Ordinary Shares being redeemed for the monies payable on redemption of such shares shall constitute an absolute discharge to the Company in respect thereof; and |
(G) | any redemption payment which is uncollected for a period of 1 year from the date of issue by the Company of the notice relating to it under paragraph (B) above shall be forfeited and will revert to the Company; |
(v) | as regards transfer: |
Class X Ordinary Shares are not transferable by their holders, unless the Class X Ordinary Shareholder has received the prior written consent of the Company to the proposed transfer to the proposed transferee; and
(vi) | as regards certificates: |
unless the Board resolves otherwise (either generally or in any particular case or cases) holders of Class X Ordinary Shares will not be entitled to receive a share certificate in respect of any Class X Ordinary Shares held by him.
SHARE RIGHTS
6. (a) | Subject to the Companies Acts and to the rights conferred on the holders of any other class of shares, any share in the Company may be issued with or have attached to it such preferential, deferred, qualified or special rights, privileges or conditions as the Company may by Ordinary Resolution decide or, insofar as the Ordinary Resolution does not make specific provision, as the Board may from time to time determine. |
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(b) | Without limiting the foregoing and subject to the Companies Acts, the Company may issue preference shares (including any preference shares created pursuant to article 6(c) which (i) are liable to be redeemed on the happening of a specified event or events or on a given date or dates and/or (ii) are liable to be redeemed at the option of the Company and/or the holder. The terms and manner of redemption of any redeemable shares created pursuant to article 6(c) shall be as the Board may by resolution determine before the allotment of such shares and the terms and manner of redemption of any other redeemable preference shares shall be either (i) as the Company may by Ordinary Resolution determine or (ii) insofar as the Board is so authorised by any Ordinary Resolution, as the Board may by resolution determine, in either case, before the allotment of such shares. A copy of any such Ordinary Resolution or resolution of the Board for the time being in force shall be attached as an appendix to (but shall not form part of) these articles. |
(c) | The rights attaching to the Undesignated Shares shall be as follows: |
(i) | each Undesignated Share shall have attached to it such preferred, qualified or other special rights, privileges and conditions and be subject to such restrictions, whether in regard to dividend, return of capital, redemption, conversion into Class A Ordinary Shares or voting or otherwise, as the Board may determine on or before its allotment; |
(ii) | the Board may allot the Undesignated Shares in more than one series and, if it does so, may name and designate each series in such manner as it deems appropriate to reflect the particular rights and restrictions attached to that series, which may differ in all or any respects from any other series of Undesignated Shares; |
(iii) | the particular rights and restrictions attached to any Undesignated Share shall be recorded in a resolution of the Board. The Board may at any time before the allotment of any Undesignated Share by further resolution in any way amend such rights and restrictions or vary or revoke its designation. A copy of any such resolution or amending resolution for the time being in force shall be annexed as an appendix to (but shall not form part of) these articles; and |
(iv) | the Board shall not attach to any Undesignated Share any rights or restrictions which would alter or abrogate any of the special rights attached to any other class of series of shares for the time being in issue without such sanction as is required for any alteration or abrogation of such rights, unless expressly authorised to do so by the rights attaching to or by the terms of issue of such shares. |
(d) | The terms of any redeemable preference shares (including any redeemable preference shares created pursuant to article 6(b) or article 6(c)) may provide for the whole or any part of the amount due on redemption to be paid or satisfied otherwise than in cash, to the extent permitted by the Companies Acts. |
(e) | Subject to the provisions of Part XI of the 1990 Act and the other provisions of this article, the Company may: |
(i) | pursuant to section 207 of the 1990 Act, issue any shares of the Company which are to be redeemed or are liable to be redeemed at the option of the Company or the Shareholder on such terms and in such manner as may be determined by the Company in general meeting on the recommendation of the Directors; or |
(ii) | pursuant to section 210 of the 1990 Act, convert any of its shares into Redeemable Shares. |
(f) | Subject to any requirement to obtain the approval of Shareholders under any laws, regulations or the rules of any stock exchange to which the Company is subject, the Board is authorised, from time to time, in its discretion, to grant such persons, for such periods and upon such terms as the Board deems advisable, options to purchase or subscribe for such number of shares of any class or classes or of any series of any class as the Board may deem advisable, and to cause warrants or other appropriate instruments evidencing such options to be issued. |
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(g) | The Directors are, for the purposes of Section 20 of the 1983 Act, generally and unconditionally authorised to exercise all powers of the Company to allot and issue relevant securities (as defined by the said Section 20) up to the amount of Companys authorised share capital and to allot and issue any shares purchased by the Company pursuant to the provisions of Part XI of the 1990 Act and held as treasury shares and this authority shall expire five years from the date of adoption of these articles of association. |
(h) | The Directors are hereby empowered pursuant to sections 23 and 24(1) of the Companies (Amendment) Act, 1983 to allot equity securities within the meaning of the said section 23 for cash pursuant to the authority conferred by article 6(g) as if section 23(1) of the said Companies (Amendment) Act, 1983 did not apply to any such allotment. The Company may before the expiry of such authority make an offer or agreement which would or might require equity securities to be allotted after such expiry and the Directors may allot equity securities in pursuance of such an offer or agreement as if the power conferred by article 6(h) had not expired. |
(i) | The Company may pay commission to any person in consideration of a person subscribing or agreeing to subscribe, whether absolutely or conditionally, for any shares in the Company or procuring or agreeing to procure subscriptions, whether absolute or conditional, for any shares in the Company on such terms and subject to such conditions as the Directors may determine, including, without limitation, by paying cash or allotting and issuing fully or partly paid shares or any combination of the two. |
VARIATION OF RIGHTS
7. (a) | Subject to the Companies Acts, all or any of the special rights for the time being attached to any class of shares for the time being in issue may, unless otherwise expressly provided in the rights attaching to or by the terms of issue of the shares of that class, from time to time (whether or not the Company is being wound up), be altered or abrogated with the consent in writing of the holders of not less than 75 per cent of all of the votes capable of being cast at the relevant time at a separate general meeting of the holders of the issued shares of that class or with the sanction of a Special Resolution passed at a separate general meeting of the holders of shares of that class. |
(b) | All the provisions of these articles relating to general meetings of the Company shall apply mutatis mutandis to any separate general meeting of any class of Shareholders, except that the necessary quorum shall be two or more Shareholders present in person or by proxy together holding or representing a majority of the issued shares of the relevant class; provided that, if the relevant class of Shareholders has only one Shareholder, one Shareholder present in person or by proxy shall constitute the necessary quorum. |
8. | The special rights conferred upon the holders of any shares or class of shares shall not, unless otherwise expressly provided in the rights attaching to or the terms of issue of such shares, be deemed to be altered or abrogated by (i) the creation or issue of further shares ranking pari passu with them, (ii) the creation or issue for full value (as determined by the Board) of further shares ranking as regards participation in the profits or assets of the Company or otherwise in priority to them or (iii) the purchase or redemption by the Company of any of its own shares. |
SHARES
9. | Subject to the Acts and the other provisions of these articles, the unissued shares of the Company (whether forming part of the original share capital or any increased capital) shall be at the disposal of the Board, which may offer, allot, grant options or other rights over or otherwise deal with or dispose of them to such persons, at such times and for such consideration and generally on such terms and conditions as the Board may from time to time determine but so that no share shall be issued at a discount to nominal value save in accordance with sections 26(5) and 28 of the Companies (Amendment) Act 1983, and so that, in the case of shares offered to the public for subscription, the amount payable on application on each share shall not be less than one-quarter of the nominal amount of the share and the whole of any premium thereon. |
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10. | The Board may, in connection with the issue of any shares, exercise all powers of paying commissions and brokerages conferred or permitted by law. |
11. | Subject to the Companies Acts, the Company may, without prejudice to any relevant special rights attached to any class of shares pursuant to section 211 of the 1990 Act, purchase any of its own shares whether in the market, by tender or by private agreement, at such prices (whether at nominal value or above or below nominal value) and otherwise on such terms and conditions as the Board may from time to time determine including any Redeemable Shares and without any obligation to purchase on any pro rata basis as between Shareholders or Shareholders of the same class, (the whole or any part of the amount payable on any such purchase may be paid or satisfied otherwise than in cash, to the extent permitted by the Companies Acts) and may cancel any shares so purchased or hold them as treasury shares (as defined in section 209 of the 1990 Act) and may reissue any such shares as shares of any class or classes. |
12. | Except only as otherwise provided in these articles, as ordered by a court of competent jurisdiction or as otherwise required by law, the Company shall be entitled to treat the registered holder of any share as the absolute owner of it and accordingly no person shall be recognised by the Company as holding any share upon trust, and the Company shall not be bound by or required in any way to recognise (even when having notice of it) any equitable, contingent, future or partial interest or other right in any share except an absolute right to the entirety of the share in the registered holder of it. |
INCREASE OF CAPITAL
13. | The Company may from time to time by Ordinary Resolution increase the authorised share capital by such sum, to be divided into shares of such nominal value as such Ordinary Resolution shall prescribe. |
14. | The Company may, by the Ordinary Resolution increasing the authorised share capital, direct that the new shares or any of them shall be offered in the first instance either at nominal value or at a premium or (subject to the provisions of the Companies Acts) at a discount to all the holders for the time being of shares of any class or classes in proportion to the number of such shares held by them respectively or make any other provision as to the issue of the new shares. |
15. | The new shares shall be subject to all the provisions of these articles with reference to lien, the payment of calls, forfeiture, transfer, transmission and otherwise. |
ALTERATION OF CAPITAL
16. (a) | The Company may (subject to article 16(b)) from time to time by Ordinary Resolution: |
(i) | divide its shares into several classes and attach to them respectively any preferential, deferred, qualified or special rights, privileges or conditions; |
(ii) | consolidate and divide all or any of its share capital into shares of larger nominal value than any of its existing shares; |
(iii) | sub-divide its shares or any of them into shares of smaller nominal value than is fixed by its memorandum of association, subject to section 68(1)(d) of the 1963 Act so, however, that in the sub-division the proportion between the amount paid and the amount, if any, unpaid on each reduced share shall be the same as it was in the case of the share from which the reduced share is derived; |
(iv) | make provision for the issue and allotment of shares which do not carry any voting rights; |
(v) | cancel shares which, at the date of the passing of the relevant Ordinary Resolution, have not been taken or agreed to be taken by any person, and diminish the amount of its authorised share capital by the amount of the shares so cancelled; and |
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(vi) | subject to applicable law, change the currency denomination of its share capital. |
(b) | In the case of any split, subdivision, combination or reclassification of Class A Ordinary Shares or Class X Ordinary Shares, the shares of the other such class of ordinary shares shall also be split, subdivided, combined or reclassified, in each case so that the numbers of Class A Ordinary Shares and Class X Ordinary Shares in issue immediately following such split, subdivision, combination or reclassification shall bear the same relationship to one another as do the numbers of Class A Ordinary Shares and Class X Ordinary Shares in issue immediately prior to such split, subdivision, combination or reclassification. |
(c) | Where any difficulty arises in regard to any division, consolidation or sub-division under this article 16, the Board may settle the same as it thinks expedient and, in particular, may arrange for the sale of the shares representing fractions and the distribution of the net proceeds of sale in due proportion among the Shareholders who would have been entitled to the fractions, except that any proceeds in respect of any holding which are less than a sum fixed by the Board may be retained for the benefit of the Company. For the purpose of any such sale the Board may authorise some person to transfer the shares representing fractions to the purchaser, who shall not be bound to see to the application of the purchase money, nor shall his title to the shares be affected by any irregularity or invalidity in the proceedings relating to the sale. |
(d) | Subject to the Companies Acts and to any confirmation or consent required by law or these articles, the Company may from time to time by Ordinary Resolution convert any preference shares in the Company (unless otherwise expressly provided by the rights attaching to or by the terms of issue of the preference shares in question) into redeemable preference shares. |
REDUCTION OF CAPITAL
17. | Subject to the Companies Acts and to any confirmation or consent required by law or these articles, the Company may from time to time by Special Resolution authorise the reduction in any manner of its issued share capital (but not to a sum less than the minimum share capital prescribed by its memorandum), any capital reserve fund or any share premium account. |
18. | In relation to any such reduction, the Company may by Special Resolution determine the terms upon which the reduction is to be effected, including, in the case of a reduction of part only of a class of shares, those shares to be affected. |
CERTIFICATES
19. (a) | Shares shall be issued in registered form. Unless otherwise provided by the rights attaching to or by the terms of issue of any particular shares or letters and to the extent required by any stock exchange, depository, or any operator of any clearance or settlement system or by law, no Shareholder shall, upon becoming the holder of any share, be entitled to a share certificate for the shares of each class held by him (nor, on transferring a part of his holding, to a certificate for the balance). |
(b) | Share certificates, if issued, shall be in such form as the Board may from time to time prescribe, subject to the requirements of the Companies Acts. No fee shall be charged by the Company for issuing a share certificate. In the case of a share held jointly by several persons, delivery of a certificate in their joint names to one of several joint holders shall be sufficient delivery to all. |
20. | If a share certificate is worn-out or defaced, or alleged to have been lost or destroyed, it may be replaced without fee but on such terms (if any) as to evidence and indemnity and to payment of any exceptional costs and out of pocket expenses of the Company in investigating such evidence and preparing such indemnity as the Board may think fit and, in case of wearing-out or defacement, on delivery of the certificate to the Company. The Board may require any such indemnity to be secured in such manner as the Board may think fit. |
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21. (a) | All certificates for shares (other than letters of allotment, scrip certificates and other like documents) shall, except to the extent that the terms of issue of any shares otherwise provide, be issued under the Seal or a facsimile of it. Each certificate shall be signed by such person or persons as the Board may from time to time decide, but the Board may determine that certificates for shares or for particular shares need not be signed by any person. |
(b) | The Board may also determine, either generally or in any particular case, that any signatures on certificates for shares (or certificates or agreements or other documents evidencing the issue by the Company of awards under any share option, share incentive or other form of employee benefits plan adopted by the Company from time to time) need not be autographic but may be affixed to such certificates, agreements or other documents by some mechanical means or may be facsimiles printed on such certificates, agreements or other documents. If any person who has signed, or whose facsimile signature has been used on, any such certificate, agreement or other document ceases for any reason to hold his office, such certificate, agreement or other document may nevertheless be issued as though that person had not ceased to hold such office. |
22. | Nothing in these articles shall preclude (i) title to a share being evidenced or transferred otherwise than in writing to the extent permitted by applicable law and otherwise as may be determined by the Board from time to time or (ii) the Board from recognising the renunciation of the allotment of any share by the allottee in favour of some other person on such terms and subject to such conditions as the Board may from time to time decide. |
LIEN
23. | The Company shall have a first and paramount lien on every share (not being a fully paid share) for all moneys, whether presently due or not, called or payable in respect of such share. The Companys lien on a share shall extend to all dividends payable on it. The Board may at any time, either generally or in any particular case, waive any lien that has arisen or declare any share to be wholly or in part exempt from the provisions of this article. |
24. (a) | The Company may sell, in such manner as the Board may think fit, any share on which the Company has a lien, but no sale shall be made unless some sum in respect of which the lien exists is presently due nor until the expiration of 14 clear days after a notice, stating and demanding payment of the sum presently due and giving notice of the intention to sell in default of such payment, has been served on the Shareholder for the time being of the share or the person entitled by transmission to it. |
(b) | The net proceeds of sale by the Company of any shares on which it has a lien shall be applied in or towards payment or discharge of the debt or liability in respect of which the lien exists so far as the same is due, and any residue shall (subject to a like lien for debts or liabilities not presently due as existed upon the share prior to the sale) be paid to the holder of, or the person entitled by transmission to, the share immediately before such sale. For giving effect to any such sale the Board may authorise some person to transfer the share to the purchaser. The purchaser shall be registered as the holder of the share and he shall not be bound to see to the application of the purchase money, nor shall his title to the share be affected by any irregularity or invalidity in the proceedings relating to the sale. Where a share, which is to be sold as provided for in this article 24, is held in uncertificated form, the Directors may authorise some person to do all that is necessary under the Companies Act, 1990 (Uncertificated Securities) Regulations 1996 to change such share into certificated form prior to its sale. |
(c) | Whenever any law for the time being of any country, state or place imposes or purports to impose any immediate or future or possible liability upon the Company to make any payment or empowers any government or taxing authority or government official to require the Company to make any payment in respect of any shares registered in the Register as held either jointly or solely by any Shareholders or in respect of any dividends, bonuses or other monies due or payable or accruing due |
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or which may become due or payable to such Shareholder by the Company on or in respect of any Shares registered as mentioned above or for or on account or in respect of any Shareholder and whether in consequence of: |
(A) | the death of such Shareholder; |