NDA-Agreement.doc

· NON-COMPETITION AGREEMENT

AMONG

AAA

and

BBB

Dated as of _________,_________,_________(M,D,Y)
Table of Contents Page

Section 1. Non-Competition Covenants　

Section 2. Remedies Upon Breach　

Section 3. Governing Law　

Section 4. Resolution of Disputes　

Section 5. Amendment; Waiver　

Section 6. Notice　

Section 7. Severability　

Section 8. Change in Control　

Section 9. Entire Agreement　

Section 10. Further Assurances　

Section 11. Execution in Counterparts　

Appendix A - Competitive Enterprises

Appendix B - Liquidated Damages

Appendix C - Pledge Agreement
This Non-Competition Agreement, dated as of _________,_________,_________(M,D,Y) (as amended, supplemented, waived or otherwise modified from time to time in accordance with its terms, this “Agreement”), among AAA, a Luxembourg société en commandite par actions (“AAA”), and the Partners (hereinafter defined).
WITNESSETH:
WHEREAS, each Partner is currently obligated to protect the value of his or her Member Firm(s) through certain non-competition and confidentiality covenants (the “Current Agreements”); and
WHEREAS, in connection with the worldwide reorganization of the business and operations of the Accenture Worldwide Organization currently conducted through the Member Firm Inter-Firm organization structure (“Accenture”) into a unified corporate holding company structure with Accenture Ltd, an exempted company limited by shares organized under the laws of Bermuda (registered number EC_________) (“Accenture Ltd”), as the top-tier holding company, and AAA as the second-tier holding company (the “Transaction”), each of the Accenture partners will exchange their ownership interests in his or her Member Firm(s) for shares of Accenture Ltd or AAA, as the case may be (including, in the case of Canadian Accenture partners, shares of a Canadian indirect subsidiary of Accenture Ltd which, for purposes of this Agreement, shall be treated as Accenture Ltd shares); and
WHEREAS, each Partner acknowledges and agrees that, in connection with and as a result of the Transaction, such Partner will receive shares of AAA which will materially benefit the Partner; and
WHEREAS, each Partner acknowledges and agrees that the consideration such Partner will receive in connection with the Transaction is in exchange for the Partner’s interests in his or her Member Firm(s) that the Partner is transferring directly or indirectly to AAA; and
WHEREAS, each Partner acknowledges and agrees that it is essential to the success of the initial public offering (“IPO”) by Accenture Ltd of its Class A common shares and the enterprise in the future, and it will be so represented in connection therewith, that the Member Firm interests that are being transferred by the Accenture partners to Accenture Ltd or AAA in connection with the Transaction be protected by non-competition agreements similar to the Current Agreements; and
WHEREAS, each Partner acknowledges and agrees that in connection with the Transaction, and in the course of such Partner’s subsequent employment with AAA or its affiliates, the Partner has been and will be provided with access to sensitive and proprietary information about the clients, prospective clients, knowledge capital and business practices of AAA or its affiliates, and has been and will be provided with the opportunity to develop relationships with clients, prospective clients, employees and other agents of AAA or its affiliates, and each Partner further acknowledges that such proprietary information and relationships are extremely valuable assets in which AAA or its affiliates have invested and will continue to invest substantial time, effort and expense and which represent a significant component of the value of the Transaction to the other owners of AAA and the owners of Accenture Ltd; and
WHEREAS, each Partner acknowledges and agrees that the other owners of AAA and the owners of Accenture Ltd would suffer significant and irreparable harm from such Partner competing with AAA or its affiliates for a period of time after the IPO or after the termination of the Partner’s employment with AAA or its affiliates; and
WHEREAS, each Partner agrees that he or she is willing to enter into this Agreement on the basis of, and in consideration of, all or substantially all of the Accenture partners entering into this Agreement or similar agreements; and
WHEREAS, it is a condition precedent to each Partner participating in the Transaction that such Partner agree to be bound by the covenants contained herein;
NOW, THEREFORE, for good and valuable consideration, each Partner and AAA (each, a “Party”; collectively, the “Parties”) hereby covenant and agree to the following restrictions which the Partner acknowledges and agrees are reasonable and necessary for the other owners of AAA and the owners of Accenture Ltd to have and enjoy the full benefit of the business interests acquired in connection with the Transaction and which will not unnecessarily or unreasonably restrict such Partner’s professional opportunities should his or her employment with AAA or its affiliates terminate:
Section 1. Non-Competition Covenants
(a) Each Partner shall not, for a period ending on the later of five (5) years following the date of the IPO, or eighteen (18) months following the termination of such Partner’s employment with AAA or any of its affiliates (the “Restricted Period”):
(i) associate (including, but not limited to, association as a sole proprietor, owner, employer, partner, principal, investor, joint venturer, shareholder, associate, employee, member, consultant, contractor or otherwise) with any Competitive Enterprise or any of the affiliates, related entities, successors, or assigns of any Competitive Enterprise and in connection with such association engage in Consulting Services, provided, however, that with respect to the equity of any Competitive Enterprise which is or becomes publicly traded, such Partner’s ownership as a passive investor of less than 1% of the outstanding publicly traded stock of a Competitive Enterprise shall not be deemed a violation of Section 1(a)(i) of this Agreement;
(ii) directly or indirectly (a) solicit, or assist any other individual, person, firm or other entity in soliciting, any Client or Prospective Client for the purpose of performing or providing any Consulting Services; or (b) perform or provide, or assist any other individual, person, firm or other entity in performing or providing, Consulting Services for any Client or Prospective Client; or (c) interfere with or damage (or attempt to interfere with or damage) any relationship and/or agreement between AAA or any of its affiliates and a Client or Prospective Client; or
(iii) directly or indirectly, solicit, employ or retain, or assist any other individual, person, firm or other entity in soliciting, employing or retaining, any employee or other agent of AAA or any of its affiliates, including, without limitation, any former employee or other agent of AAA or any of its affiliates or any of their predecessors (including, but not limited to, Accenture and any of its affiliates) who ceased working for AAA or any of its affiliates or any of their predecessors within an eighteen month period before or after the date on which such Partner’s employment with AAA or any of its affiliates terminated, in connection with or for the purpose of performing or providing Consulting Services.
(b) For purposes of this Agreement, the following definitions shall apply:
(i) The term “AAA General Partner” shall mean the general partner of AAA.
(ii) The term “Act” shall mean the Securities Exchange Act of 1934, as amended, or any successor thereto.
(iii) The term “Beneficial Owner” shall mean a beneficial owner as such term is defined in Rule 13d-3 under the Act (or any successor rule thereto).
(iv) The term “Board” shall mean the Board of Directors of the AAA General Partner.
(v) The term “Change in Control” shall mean the occurrence of any of the following events:
(1) any Person (other than (i) a Person holding securities representing 10% or more of the combined voting power of the AAA General Partner’s outstanding securities as of the date of the IPO (a “Pre-Existing Shareholder”), (ii) the AAA General Partner, any trustee or other fiduciary holding securities under an employee benefit plan of the AAA General Partner, or (iii) any company owned, directly or indirectly, by the shareholders of the AAA General Partner in substantially the same proportions as their ownership of shares of the AAA General Partner) becomes the Beneficial Owner, directly or indirectly, of securities of the AAA General Partner, representing (I) 20% or more of the combined voting power of the AAA General Partner’s then-outstanding securities and (II) more of the combined voting power of the AAA General Partner’s then-outstanding Shares than the Pre-Existing Shareholders in the aggregate;
(2) during any period of twenty-four consecutive months (not including any period prior to the IPO), individuals who at the beginning of such period constitute the Board, and any new director (other than a director nominated by any Person (other than the AAA General Partner) who publicly announces an intention to take or to consider taking actions (including, but not limited to, an actual or threatened proxy contest) which if consummated would constitute a Change in Control under (a), (c) or (d) of this Section 1(b)(v)) whose election by the Board or nomination for election by the AAA General Partner’s shareholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority thereof;
(3) the consummation of any transaction or series of transactions resulting in a merger or consolidation, in which the AAA General Partner is involved, other than a merger or consolidation which would result in the shareholders of the AAA General Partner immediately prior thereto continuing to own (either by remaining outstanding or by being converted into voting securities of the surviving entity), in the same proportion as immediately prior to the transaction(s), more than 50% of the combined voting power of the voting securities of the AAA General Partner or such surviving entity outstanding immediately after such merger or consolidation; or
(4) the complete liquidation of the AAA General Partner or the sale or disposition by the AAA General Partner of all or substantially all of the AAA General Partner’s assets, other than a liquidation of the AAA General Partner into a wholly-owned subsidiary.
(vi) The term “Client” shall mean any person, firm, corporation or other organization whatsoever for whom AAA or any of its affiliates or any of their predecessors (including, but not limited to, Accenture and its affiliates) provided services within an eighteen month period before or after the date on which the Partner’s employment with AAA or any of its affiliates terminated.
(vii) The term “Competitive Enterprise” shall mean a business enterprise that engages in, or owns or controls a significant interest in any entity that engages in, the performance of services of the type provided by AAA or any of its affiliates or any of their predecessors (including, but not limited to, Accenture and its affiliates) at any time, past, present or future. “Competitive Enterprise” shall include, but not be limited to, the entities set forth on Appendix A hereto. AAA may publish to the Partners from time to time a revised Appendix A.
(viii) The term “Consulting Services” shall mean the performance of any services of the type provided by AAA or any of its affiliates or any of their predecessors (including, but not limited to, Accenture and its affiliates) at any time, past, present or future.
(ix) The term “employment” shall mean employment by and/or engagement with AAA or any of its affiliates.
(x) The term “Partners” (each, a “Partner”) shall mean those persons other than AAA who agree to be bound hereby.
(xi) The term “Person” shall mean a person as such term is used for purposes of Section 13(d) or 14(d) of the Act.
(xii) The term “Prospective Client” shall mean any person, firm, corporation, or other organization whatsoever with whom AAA or any of its affiliates or any of their predecessors (including, but not limited to Accenture and its affiliates) have had any negotiations or discussions regarding the possible performance of services within the eighteen months preceding the Partner’s termination of employment with AAA or any of its affiliates.
(xiii) The term “Shares” shall mean the Class A common shares of the AAA General Partner.
(xiv) The term “solicit” shall mean to have any direct or indirect communication of any kind whatsoever, regardless of by whom initiated, inviting, advising, encouraging or requesting any person or entity, in any manner, to take or refrain from taking any action.
(c) Each Partner’s Country Company Managing Director is authorized to waive any or all of the foregoing restrictions, or any portion thereof, provided, however, that the Country Company Managing Director must first obtain the written consent to such waiver of the Chief Executive Officer of the AAA General Partner, who may grant or withhold such consent in his or her sole and absolute discretion.
Section 2. Remedies Upon Breach
(a) Damages
Each Partner agrees that if such Partner were to breach any provisions of this Agreement, AAA would suffer damages that are not readily ascertainable. Accordingly, in addition to and without limiting any remedies in law or in equity that may be available to AAA for the breach of this Agreement, including, but not limited to, injunctive and other equitable relief, each Partner agrees that in the event of a breach of this Agreement by such Partner, as reasonably determined by the Supervisory Board of AAA, such Partner shall pay to AAA immediately following such determination and a written demand therefor, a cash payment in the amount designated for the Partner on Appendix B hereto or such lesser amount as may be designated by the Supervisory Board of AAA in its sole and absolute discretion, as and for liquidated damages (“Liquidated Damages”). Each Partner acknowledges and agrees that the payment required by this Section is a reasonable forecast of the damages likely to result from such breach and is not a penalty of any kind.
Each Partner agrees that the Liquidated Damages shall be secured by the shares of AAA received by the Partner in the Transaction, pursuant to the Pledge Agreement dated as of the date hereof, attached as Appendix C hereto (“Pledge Agreement”), which is incorporated herein by reference and made a part of this Agreement.
E