Key Executives Performance-Based RSU Award – Accenture
ACCENTURE PLC
2010 SHARE INCENTIVE PLAN
RESTRICTED SHARE UNIT AGREEMENT
(Key Executive Performance-Based Award)
Accenture plc, a company incorporated under the laws of Ireland, (the
“Company”), hereby grants, as of [ date ], to [
Name ] (the “Participant”), a total number of [
number ] Restricted Share Units (“RSUs”), on the terms and conditions
set forth herein. This grant is made pursuant to the terms of the Accenture plc
2010 Share Incentive Plan (the “Plan”), which Plan, as amended from time to
time, is incorporated herein by reference and made a part of this Restricted
Share Unit Agreement (this “Agreement”).
Capitalized terms not otherwise defined in this Agreement shall have the same
meaning ascribed to them in the Plan. The terms and conditions of the RSUs
granted hereunder, to the extent not controlled by the terms and conditions
contained in the Plan, are as follows:
1. Performance-Based Vesting.
(a) Performance Period. The RSUs shall vest, if at all, based upon the
attainment of specific pre-established financial performance objectives (the
“Performance Objectives”) by the Company for the period commencing on [
date ], and ending on [ date + [3 years] ], (the
“Performance Period”), as set forth in this Section 1.
(b) Service Relationship. Except as provided in Section 2(a), RSUs that are
unvested as of the termination of the Participant153s full-time employment status
with the Company or any of its Subsidiaries (collectively, the “Constituent
Companies”) shall be immediately forfeited as of such termination and the
Company shall have no further obligations with respect thereto. Such employment
status shall hereinafter be referred to in this Agreement as “Qualified Status.”
(c) Total Shareholder Return.
(i) Up to twenty-five percent (25%) of the RSUs granted to the Participant
pursuant to this Agreement shall vest, if at all, based upon the Total
Shareholder Return for the Company, as compared to the Comparison Companies, for
the Performance Period in the manner set forth on Exhibit 1-A hereto.
(ii) For purposes of this Agreement, Total Shareholder Return with respect to
the Company and each of the Comparison Companies shall mean the quotient of (A)
the Fair Market Value of the stock of the particular company or index on[
end date ], divided by (B) the Fair Market Value of the stock of such
company or index on [ start date ]. For purposes of calculating a
company153s Total Shareholder Return, the Fair Market Value of the stock of any
company on [ end date ] shall be adjusted to reflect any and all
cash, stock or in-kind dividends paid on the stock of such company during the
Performance Period as follows: the Fair Market Value of the stock of the company
on [ end date ] shall be multiplied by the sum of (Y) one (1) plus
(Z) the number of whole and fractional shares of the stock of the company that
(i) were actually received in respect of one share (or such greater number of
shares that are deemed to have been held at such time pursuant to this clause
(c)(ii)) by way of a stock dividend and (ii) would otherwise result assuming
each cash dividend paid on the stock (or fair market value of any in-kind
dividend, as determined by the Committee) of the company during the Performance
Period was used to purchase additional whole and/or fractional shares of stock
of the company on the record date of such dividend based on the fair market
value of the stock of the company (as determined by the Committee), or with
respect to the Company, the Fair Market Value of a Share, on the record date of
such dividend.
(iii) If at any time prior to the completion of the Performance Period, a
Comparison Company ceases to be a publicly-traded company, merges or
consolidates with another company, is acquired or disposes of a significant
portion of its businesses as they exist on the date of this Agreement or
experiences any other extraordinary event as determined by the Committee in its
sole discretion, the Committee, in its sole discretion, may remove such
Comparison Company or ratably adjust the calculation of the Total Shareholder
Return with respect to such Comparison Company.
(iv) For purposes of this Agreement: (i) “Comparison Companies” shall mean
Automated Data Processing (ADP), Cap Gemini S.A., Cisco Systems, Inc. (CSCO),
Computer Sciences Corporation (CSC), EMC Corporation (EMC), Hewitt Associates,
Inc. (HEW), Hewlett-Packard Company (HPQ), International Business Machines
Corporation (IBM), Lockheed Martin Corporation (LMT), Microsoft Corporation
(MSFT), Oracle Corporation (ORCL), SAIC Inc (SAI), Sapient Corporation (SAPE),
Xerox Corp. (XRX)and the S&P 500 Index (SPX); and (ii) the “Fair Market
Value” of (A) a share of stock of a company on a given date shall mean the
average of the high and low trading price of the stock of the company, as
reported on the principal exchange on which the stock of such company is traded
(or, if the stock is not traded on an exchange but is quoted on Nasdaq or a
successor quotation system, the average of the mean between the closing
representative bid and asked prices for the stock) and (B) for the S&P 500
Index on a given date shall mean the average of the high and low values for such
index as reported in the Wall Street Journal (or, if the S&P 500 Index is
not reported in the Wall Street Journal, in such other reliable source as the
Company may determine), in each case for the ten (10) consecutive trading days
immediately preceding such date.
(d) Operating Income Growth Rate. Up to 75% of the RSUs granted to the
Participant pursuant to this Agreement shall vest, if at all, based upon the
achievement of Operating Income targets by the Company for the Performance
Period, as set forth on Exhibit 1-B hereto. For purposes of this Agreement:
“Target Cumulative Operating Income” shall mean the aggregate of the
“Operating Income Plan,” as approved by the Committee, for each of the Company153s
[ number ] fiscal years during the Performance Period. Within a
reasonable period following the availability of all relevant data (as determined
by the Committee in its sole discretion), the Committee will approve the
Company153s operating income plan for each applicable fiscal year during the
Performance Period (each an “Operating Income Plan”).
“Actual Cumulative Operating Income” shall mean the aggregate of the
Company153s actual operating income for the Company153s [ number ]
fiscal years during the Performance Period, as determined from the Company153s
final, audited financial statements for such fiscal years.
In the event that, as determined in the sole discretion of the Committee and
due to a required change in generally accepted accounting practices, a change in
the accounting methods of the Company or an extraordinary and material event in
the Company153s business (each of the foregoing events being referred to herein as
a “Material Event”), Actual Cumulative Operating Income determined after the
occurrence of a Material Event would be materially different as a result of the
occurrence thereof, the Committee may instruct the Company to determine Actual
Cumulative Operating Income for such period, solely for purposes of this
Agreement, as if the Material Event had not happened or was not effective. Such
instruction may be limited to apply to fiscal periods in which the applicable
Operating Income Plan did not account for the occurrence of the Material Event.
(e) Certification. No RSUs granted to the Participant hereunder shall vest in
accordance with Sections 1(c) or (d) unless and until the Committee makes a
certification in writing with respect to the achievement of the Performance
Objectives for the Performance Period. Following the end of the Performance
Period, the Committee shall review and determine whether the Performance
Objectives have been met within a reasonable period following the availability
of all data necessary to determine whether the Performance Objectives have been
achieved, and not later than [ date ] shall certify such finding
to the Company and to the Participant.
2. Termination of Employment.
(a) Termination as a result of death, Disability, or Involuntary Termination;
Specified Age Attainment. Notwithstanding anything in Section 1 to the contrary,
the RSUs granted hereunder shall vest upon the termination of the Participant153s
Qualified Status as a result of death, Disability, Involuntary Termination or
if, at the end of the Performance Period, Participant153s Qualified Status has
terminated and Participant has attained a certain age, all as follows:
(i) Termination as a result of death or Disability. In the event the
Participant153s Qualified Status is terminated during the Performance Period or
prior to the Vesting Date as a result of death or Disability, the RSUs granted
to the Participant hereunder shall remain outstanding throughout the Performance
Period and until the Vesting Date and shall vest, if at all, on the Vesting Date
in accordance with Sections 1(c) or (d).
(ii) Involuntary Termination. In the event the Participant153s Qualified Status
is terminated during the Performance Period or prior to the Vesting Date due to
an Involuntary Termination, the RSUs granted to the Participant hereunder shall
remain outstanding throughout the Performance Period and until the Vesting Date.
On the Vesting Date, the Participant shall vest in the number of RSUs granted
hereunder equal to the product of (i) the aggregate number of RSUs that would
otherwise vest on the Vesting Date in
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accordance with Sections 1(c) or (d), multiplied by (ii) a fraction, the
numerator of which is the whole number of months that have elapsed from the
commencement of the Performance Period through the effective date of the
Participant153s Involuntary Termination or the last day of the Performance Period
(whichever is earlier) and the denominator of which is [ number of months
in Performance Period ].
(iii) Specified Age Attainment. In the event the Participant153s Qualified
Status is terminated during the Performance Period or prior to the Vesting Date
and (i) the Participant has reached the age of 56 prior to the commencement of
or during the Performance Period and (ii) has had at least 10 years of
continuous service to the Company, the RSUs granted to the Participant hereunder
shall remain outstanding throughout the Performance Period and until the Vesting
Date. On the Vesting Date, the Participant shall vest in the number of RSUs
granted hereunder equal to the product of (i) the aggregate number of RSUs that
would otherwise vest upon the Vesting Date in accordance with Sections 1(c) or
(d), multiplied by (ii) a fraction, the numerator of which is the whole number
of months that have elapsed from the commencement of the Performance Period
through the effective date of the termination of the Participant153s Qualified
Status or the last day of the Performance Period (whichever is earlier) and the
denominator of which is [ number of months in Performance Period
].
(b) Termination for reasons other than death, Disability, Involuntary
Termination or Specified Age Attainment. In the event the Participant153s
Qualified Status is terminated during the Performance Period or prior to the
Vesting Date for any reason other than death, Disability, Involuntary
Termination, except as set forth in Section 2(a)(iii) above, the RSUs granted
hereunder shall be immediately forfeited as of such termination and the Company
shall have no further obligation with respect thereto.
(c) Definitions. For purposes of this Agreement, the following terms shall
have the meaning specified below:
(i) “Cause” shall mean “cause” as defined in any employment or consultancy
agreement (or similar agreement) or in any letter of appointment then in effect
between the Participant and the Company or any Affiliate or if not defined
therein (it being the intent that the definition of “Cause” shall include, at a
minimum, the acts set forth below), or if there shall be no such agreement, to
the extent legally permissible, (a) the Participant153s embezzlement,
misappropriation of corporate funds, or other material acts of dishonesty, (b)
the Participant153s commission or conviction of any felony, or of any misdemeanor
involving moral turpitude, or entry of a plea of guilty or nolo contendere to
any felony or misdemeanor, (c) engagement in any activity that the Participant
knows or should know could harm the business or reputation of the Company or an
Affiliate, (d) the Participant153s material failure to adhere to the Company153s or
an Affiliate153s corporate codes, policies or procedures as in effect from time to
time, (e) the Participant153s continued failure to meet minimum performance
standards as determined by the Company or an Affiliate, (f) the Participant153s
violation of any statutory, contractual, or common law duty or obligation to the
Company or an Affiliate, including, without limitation, the duty of loyalty, or
(g) the Participant153s material breach of any confidentiality or non-competition
covenant entered into between the Participant and the Company or an Affiliate,
including, without limitation, the covenants contained in this Agreement. The
determination of the existence of Cause shall be made by the Company in good
faith, which determination shall be conclusive for purposes of this Agreement.
(ii) Unless Section 22 applies, “Disability” shall mean “disability” (A) as
defined in any employment or consultancy agreement (or similar agreement) or in
any letter of appointment then in effect between the Participant and the Company
or any Affiliate or (B) if not defined therein, or if there shall be no such
agreement, as defined in the long-term disability plan maintained by the
Constituent Company by which the Participant is employed or for which the
Participant serves as a consultant or by appointment, as in effect from time to
time, or (C) if there shall be no plan, the inability of the Participant to
perform in all material respects his or her duties and responsibilities to the
Constituent Companies for a period of six (6) consecutive months or for an
aggregate period of nine (9) months in any twenty-four (24) consecutive month
period by reason of a physical or mental incapacity.
(iii) “Involuntary Termination” shall mean termination of Qualified Status,
as applicable, with the Constituent Companies (other than for Cause) which is
not voluntary and which is acknowledged as being “involuntary” in writing by an
authorized officer of the Company.
(iv) “Vesting Date” shall mean the date the Committee certifies the
achievement of the Performance Objectives pursuant to paragraph 1(e) above.
3. Form and Timing of Issuance or Transfer.
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(a) Vested RSUs. Distribution of RSUs shall be made hereunder only in respect
of vested RSUs, and shall be made in Shares on a one-for-one basis; provided,
however, that in lieu of Shares, fractional vested RSUs shall be distributed to
the Participant in cash based upon the Fair Market Value of a Share at the time
of distribution.
(b) Distribution Date. Vested RSUs, if any, shall be distributed to the
Participant in the manner set forth in Section 3(a) on the date the Committee
makes a certification in writing with respect to the achievement of the
Performance Objectives for the Performance Period as provided in Section 1(e).
4. Dividends. If on any date while RSUs are outstanding hereunder the Company
shall pay any dividend on the Shares (other than a dividend payable in Shares),
the number of RSUs granted to the Participant shall, as of such dividend payment
date, be increased by a number of RSUs equal to: (a) the product of (i) the
number of RSUs held by the Participant as of the related dividend record date,
multiplied by (ii) the per Share amount of any cash dividend (or, in the case of
any dividend payable in whole or in part other than in cash, the per Share value
of such dividend, as determined in good faith by the Committee), divided by (b)
the Fair Market Value of a Share on the payment date of such dividend. In the
case of any dividend declared on Shares that is payable in the form of Shares,
the number of RSUs granted to the Participant shall be increased by a number
equal to the product of (x) the aggregate number of RSUs held by the Participant
through the related dividend record date, multiplied by (y) the number of Shares
(including any fraction thereof) payable as a dividend on a Share. Any
additional RSUs granted to the Participant pursuant to this Section 4 during the
Performance Period or prior to the Vesting Date shall also be subject to the
vesting requirements of Sections 1(c) and (d).
5. Adjustments Upon Certain Events.
(a) The grant of the RSUs shall not in any way affect the right or power of
the Company to make adjustments, reclassification, or changes in its capital or
business structure, or to merge, consolidate, dissolve, liquidate, sell or
transfer all or any part of its business or assets.
(b) In the event of any dividend or other distribution other than a cash
dividend (whether in the form of Shares, other securities or other property),
recapitalization, reclassification, stock split, reverse stock split,
reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase, liquidation, dissolution, or sale, transfer, exchange or other
disposition of all or substantially all of the assets of the Company, or
exchange of Shares or other securities of the Company, issuance of warrants or
other rights to purchase Shares or other securities of the Company, or other
similar corporate transaction or event (collectively, an “Adjustment Event”),
the Committee may, in its sole discretion, (i) adjust the Shares or RSUs subject
to this Agreement and (ii) adjust the methodology for calculating Total
Shareholder Return and Operating Income in accordance with Sections 1(c) and (d)
to reflect such Adjustment Event.
6. Compliance, Cancellation and Rescission of Shares.
(a) Upon any transfer or issuance of Shares underlying RSUs, the Participant
shall certify in a manner acceptable to the Company that the Participant is in
compliance with the terms and conditions of this Agreement and the Plan.
(b) In the following circumstances, the Participant shall, to the extent
legally permitted, transfer to the Company the Shares that have been issued or
transferred under this Agreement (without regard to whether the Participant
continues to own or control such previously delivered Shares) and the
Participant shall bear all costs of issuance or transfer, including any transfer
taxes that may be payable in connection with any transfer:
(i) the Participant153s Qualified Status with the Constituent Companies is
terminated for Cause, or
(ii) the Participant engages in any of the Restricted Activities defined in
subsection (c) below.
(c) The Participant agrees that, in consideration of the
value of and as a condition of receiving and maintaining the RSUs granted to the
Participant under this Agreement, the Participant shall not, for a period of
twelve months following the termination of the Participant153s Qualified Status
with the Constituent Companies engage in any Restricted Activities, which for
the purposes of this Agreement include the following:
(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; provided,
however, that with respect to the equity
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of any Competitive Enterprise which is or becomes publicly
traded, the Participant153s 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 this Section 6(c)(i);
(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; (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; (C) interfere with or damage (or attempt to interfere
with or damage) any relationship and/or agreement between the Company or any
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 the Company or an
Affiliate, including, without limitation, any former employee or other agent of
the Company, its Affiliates and/or their predecessors who ceased working for the
Company, its Affiliates and/or their predecessors within an eighteen-month
period before or after the date on which the Participant153s Qualified Status with
the Constituent Companies terminated.
(d) For purposes of this Agreement:
(i) “Client” shall mean any person, firm, corporation or
other organization whatsoever for whom the Company, its Affiliates and/or their
predecessors provided services within a twelve-month period before the date on
which the Participant153s employment with the Constituent Companies terminated, or
about which the Participant learned confidential information within the twelve
months prior to the date on which the Participant153s Qualified Status with the
Constituent Companies terminated.
(ii) “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 the
Company, its Affiliates and/or their predecessors. “Competitive Enterprise”
shall include, but not be limited to, the entities set forth on the list
maintained by the Company on the myHoldings website, which list may be updated
by the Company from time to time.
(iii) “Consulting Services” shall mean the performance of any
services of the type provided by the Company, its Affiliates and/or their
predecessors at any time, past, present or future.
(iv) “Prospective Client” shall mean any person, firm,
corporation, or other organization whatsoever with whom the Company, its
Affiliates and/or their predecessors had any negotiations or discussions
regarding the possible performance of services by the Company or any of its
Affiliates or any of their predecessors within the twelve months prior to the
date of the termination of the Participant153s Qualified Status with the
Constituent Companies.
(v) “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.
(e) If, during the twelve-month period following the
termination of the Participant153s employment with the Constituent Companies, the
Participant is presented with an opportunity that might involve participation in
any Restricted Activity under 6(c)(i) above, Participant shall notify the
Company in writing of the nature of the opportunity (the “Conflicting
Activity”). Following receipt of sufficient information concerning the
Conflicting Activity, the Company will advise Participant in writing whether the
Company considers the Participant153s RSUs to be subject to be subject to Section
6(b)(ii) above. The Company retains sole discretion to determine whether
Participant153s RSUs are subject to Section 6(b)(ii) and to alter its
determination should additional or different facts become known to the Company.
7. No Acquired Rights. By participating in the Plan, and
accepting the grant of RSUs under this Agreement, the Participant agrees and
acknowledges that:
(a) the Plan is discretionary in nature and that the Company
can amend, cancel or terminate the Plan at any time;
(b) the grant of the RSU under the Plan is voluntary and
occasional, and does not create any contractual or other right to receive future
grants of any RSUs or benefits in lieu of any RSUs, even if RSUs have been
granted repeatedly in the past;
(c) the value of the RSUs is an extraordinary item of
compensation, which is outside the scope of the Participant153s Qualified Status
contract, if any;
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(d) the RSUs are not part of normal or expected compensation
or salary for any purpose, including, but not limited to, calculating any
termination, severance, resignation, redundancy, end of service payments,
bonuses, long-service awards, pension or retirement benefits or similar
payments;
(e) the future value of the shares subject to the RSUs is
unknown and cannot be predicted with any certainty;
(f) the Participant shall not make any claim or have any
entitlement to compensation or damages in connection with the termination of the
RSUs or diminution in value of the RSUs under the Plan, and Participant hereby
irrevocably releases the Company and all of its Affiliates from any such claim
or entitlement; and
(g) the Participant153s participation in the Plan shall not
create a right to employment or further employment with or to provide services
as a director, consultant or advisor to the Company or any of its Affiliates,
and shall not interfere with or limit the ability of the Company to terminate
the Participant153s employment relationship or other services at any time, with or
without cause.
(h) no terms of any contract of employment or consultancy (or
similar agreement) of the Participant shall be affected in any way by the Plan,
this Agreement or related instruments, except as otherwise expressly provided
herein.
8. No Rights of a Shareholder. The Participant shall not have any rights as a
shareholder of the Company until the Shares in question have been registered in
the Company153s register of shareholders.
9. Unfunded Obligation; Unsecured Creditor. The RSUs granted hereunder are an
unfunded obligation of the Company and no assets or shares of the Company shall
be set segregated or earmarked by the Company in respect of any RSUs awarded
hereunder. The RSUs granted hereunder shall be an unsecured obligation of the
Company and the rights and interests of the Participant herein shall make him
only a general, unsecured creditor of the Company.
10. Legend on Certificates. Any Shares issued or transferred to the
Participant pursuant to Section 3 of this Agreement shall be subject to such
stop transfer orders and other restrictions as the Committee may deem advisable
under the Plan or the rules, regulations, and other requirements of the
Securities and Exchange Commission, any stock exchange upon which such Shares
are listed, any applicable Federal or state laws or relevant securities laws of
the jurisdiction of the domicile of the Participant or to ensure compliance with
any additional transfer restrictions that may be in effect from time to time,
and the Committee may cause a legend or legends to be put on any certificates
representing such Shares to make appropriate reference to such restrictions.
11. Transferability Restrictions : RSUs/Underlying Shares. RSUs may not be
assigned, alienated, pledged, attached, sold or otherwise transferred or
encumbered by the Participant otherwise than by will or by the laws of descent
and distribution, and any purported assignment, alienation, pledge, attachment,
sale, transfer or encumbrance not permitted by this Section 11 shall be void and
unenforceable against any Constituent Company. Any Shares issued or transferred
to the Participant shall be subject to compliance by the Participant with such
policies as the Committee or the Company may deem advisable from time to time,
including, without limitation, policies relating to minimum executive employee
share ownership requirements. Such policies shall be binding upon the permitted
respective legatees, legal representatives, successors and assigns of the
Participant. The Company shall give notice of any such additional or modified
terms and restrictions applicable to Shares delivered or deliverable under the
Agreement to the holder of the RSUs and/or the Shares so delivered, as
appropriate, pursuant to the provisions of Section 12 or, if a valid address
does not appear to exist in the personnel records, to the last address known by
the Company of such holder. Notice of any such changes may be provided
electronically, including, without limitation, by publication of such changes to
a central website to which any holder of the RSUs or Shares issued therefrom has
access.
12. Notices. Any notice to be given under this Agreement shall be delivered
personally, or sent by certified, registered or express mail, postage prepaid,
addressed to the Company in care of its General Counsel at:
Accenture
161 N. Clark Street
Chicago, IL 60601
Telecopy: (312) 652-5619
Attn: General Counsel
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(or, if different, the then current principal business address of the duly
appointed General Counsel of the Company) and to the Participant at the address
appearing in the personnel records of the Company for the Participant or to
either party at such other address as either party hereto may hereafter
designate in writing to the other. Any such notice shall be deemed effective
upon receipt thereof by the addressee.
13. Withholding. The Participant may be required to pay to the Company or any
Affiliate and the Company or any Affiliate shall have the right and is hereby
authorized to withhold from any issuance or transfer due under this Agreement or
under the Plan or from any compensation or other amount otherwise payable to the
Participant, applicable withholding taxes and social insurance contributions
required to be withheld with respect to this Agreement or any issuance or
transfer under this Agreement or under the Plan and to take such action as may
be necessary in the opinion of the Company to satisfy all obligations for the
payment of such taxes and social insurance contributions. Notwithstanding the
foregoing, if the Participant153s Qualified Status with the Company terminates due
to death, Disability or Involuntary Termination, the payment of any applicable
withholding taxes or social insurance contributions required to be withheld with
respect to any further issuance or transfer of Shares under this Agreement or
the Plan shall at the Company153s discretion be made solely through the sale of
Shares equal to the statutory minimum withholding liability.
14. Choice of Law and Dispute Resolution
(a) THE INTERPRETATION, PERFORMANCE AND ENFORCEMENT OF THIS AGREEMENT SHALL
BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
(b) Subject to paragraphs (c) through (g), any and all disputes which cannot
be settled amicably, including any ancillary claims of any party, arising out
of, relating to or in connection with the validity, negotiation, execution,
interpretation, performance or non-performance and/or termination of this
Agreement and any amendment thereto (including without limitation the validity,
scope and enforceability of this arbitration provision) (each a “Dispute”) shall
be finally settled by arbitration conducted by a single arbitrator in New York
(or at such other place of arbitration as the Compensation Committee of the
Board of Directors of the Company, acting as Plan Administrator, or any
successor plan administrator, may approve) in accordance with the then-existing
Rules of Arbitration of the International Chamber of Commerce (“ICC”), except
that the parties may select an arbitrator who is a national of the same country
as one of the parties. If the parties to the dispute fail to agree on the
selection of an arbitrator within thirty (30) days of the receipt of the request
for arbitration, the ICC shall make the appointment. The arbitrator shall be a
lawyer and shall conduct the proceedings in the English language.
(c) Before the Company has filed a request for arbitration or a response
under the Rules of Arbitration of the ICC (as the case may be), the Company may
by notice in writing to the Participant require that all Disputes or a specific
Dispute be heard by any court of law in accordance with paragraph (f) and, for
the purposes of this paragraph (c), each party expressly consents to the
application of paragraphs (d) and (e) to any such suit, action or proceeding.
If, at the time that the Company gives notice in accordance with this paragraph
(c), arbitration has already been commenced in connection with a Dispute, that
Dispute shall be withdrawn from arbitration.
(d) Either party may bring an action or proceeding in any court of law for
the purpose of compelling a party to arbitrate, seeking temporary or preliminary
relief in aid of an arbitration hereunder, and/or enforcing an arbitration award
and/or in support of the arbitration as permitted by any applicable arbitration
law and, for the purposes of this paragraph (d), each party expressly consents
to the application of paragraphs (f) and (g) to any such suit, action or
proceeding.
(e) Judgment on any award(s) rendered by the tribunal may be entered in any
court having jurisdiction thereof.
(f) (i) Each party hereby irrevocably submits to the non-exclusive
jurisdiction of the Courts located in New York, United States for the purpose of
any suit, action or proceeding brought in accordance with the provisions of
paragraphs (d) or (e). The parties acknowledge that the forum designated by this
paragraph (f) has a reasonable relation to this Agreement, and to the parties153
relationship with one another.
(ii) The parties hereby waive, to the fullest extent permitted by applicable
law, any objection which they now or hereafter may have to personal jurisdiction
or to the laying of venue of any suit, action or proceeding brought in any court
referred to in paragraph (f) (i) pursuant to paragraphs (d) or (e) and such
parties agree not to plead or claim the same.
7
(g) The parties agree that if a suit, action or proceeding is brought under
paragraphs (d) or (e) proof shall not be required that monetary damages for
breach of the provisions of this Agreement would be difficult to calculate and
that remedies at law would be inadequate, and they irrevocably appoint the
General Counsel of the Company, c/o Accenture, 161 N. Clark Street, Chicago IL,
60601 (or, if different, the then-current principal business address of the duly
appointed General Counsel of the Company) as such party153s agent for service of
process in connection with any such action or proceeding and agree that service
of process upon such agent, who shall promptly advise such party of any such
service of process, shall be deemed in every respect effective service of
process upon the party in any such action or proceeding.
15. Severability. This Agreement shall be enforceable to the fullest extent
allowed by law. In the event that a court or appointed arbitrator holds any
provision of this Agreement to be invalid or unenforceable, then, if allowed by
law, the provision shall be reduced, modified or otherwise conformed to the
relevant law, judgment or determination to the degree necessary to render it
valid and enforceable without affecting the rest of this Agreement. Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be deemed severable from the
remainder of this Agreement, and the remaining provisions contained in this
Agreement shall be construed to preserve to the maximum permissible extent the
intent and purposes of this Agreement. Any such prohibition or unenforceability
in any jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.
16. RSUs Subject to Plan. By entering into this Agreement, the Participant
agrees and acknowledges that the Participant has received and read a copy of the
Plan. All RSUs are subject to the Plan. In the event of a conflict between any
term or provision contained herein and a term or provision of the Plan, the
applicable terms and provisions of the Plan will govern and prevail.
17. Rule 16b-3. The grant of the RSUs to the Participant hereunder is
intended to be exempt from the provisions of Section 16(b) of the Securities
Exchange Act of 1934, as amended from time to time (the “Exchange Act”) pursuant
to Rule 16b-3 promulgated under the Exchange Act.
18. Signature in Counterparts. This Agreement may be signed in counterparts,
each of which shall be deemed an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
19. Entire Agreement. This Agreement and the Plan constitute the entire
agreement of the parties and supersede in their entirety all prior undertakings
and agreements of the parties with respect to the subject matter hereof.
20. Severability of Agreement. In the event that any provision in this
Agreement shall be held invalid or unenforceable, such provision shall be
severable from, and such invalidity or unenforceability shall not be construed
to have any effect on, the remaining provisions of this Agreement.
21. Administration; Consent. In order to manage compliance with the terms of
this Agreement, Common Shares delivered pursuant to the Agreement may, at the
sole discretion of the Company, be registered in the name of the nominee for the
holder of the Common Shares and/or held in the custody of a custodian until
otherwise determined by the Company. To that end, by acceptance of this
Agreement, the holder hereby appoints the Company, with full power of
substitution and resubstitution, his or her true and lawful attorney-in-fact to
assign, endorse and register for transfer into such nominee153s name or deliver to
such custodian any such Common Shares, granting to such attorneys, and each of
them, full power and authority to do and perform each and every act and thing
whatsoever that such attorney or attorneys may deem necessary, advisable or
appropriate to carry out fully the intent of this paragraph as such person might
or could do personally. It is understood and agreed by each holder of the Common
Shares delivered under the Agreement that this appointment, empowerment and
authorization may be exercised by the aforementioned persons with respect to all
Common Shares delivered pursuant to the Agreement of such holder, and held of
record by another person or entity, for the period beginning on the date hereof
and ending on the later of the date the Agreement is terminated and the date
that is ten years following the last date Common Shares are delivered pursuant
to this Agreement. The form of the custody agreement and the identity of the
custodian and/or nominee shall be as determined from time to time by the Company
in its sole discretion. A holder of Common Shares delivered pursuant to the
Agreement acknowledges and agrees that the Company may refuse to register the
transfer of and enter stop transfer orders against the transfer of such Common
Shares except for transfers deemed by it in its sole discretion to be in
compliance with the terms of this Agreement. Each holder of Common Shares
delivered pursuant to the Agreement agrees to execute such additional documents
and take such other actions as may be deemed reasonably necessary or desirable
by the Company to effect the provisions of the Agreement, as in effect from time
to time. Each holder of Common Shares delivered pursuant to the Agreement
acknowledges and agrees that the Company may impose a legend on any document
relating to or Common Shares issued or issuable pursuant to this Agreement
conspicuously referencing the restrictions applicable to such Common Shares.
22. Section 409A – Disability, Deferral Elections, Payments to Specified
Employees, and Interpretation of Grant Terms. If the Participant is subject
to income taxation on the income resulting from this Agreement under the laws of
the United States, and the
8
foregoing provisions of this Agreement would result in adverse tax
consequences to the Participant, as determined by the Company, under Section
409A of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), then
the following provisions shall apply and supersede the foregoing provisions:
(a) “Disability” shall mean a disability within the meaning of Section
409A(a)(2)(C) of the Code.
(b) Deferral elections made by U.S. taxpayers are subject to Section 409A of
the Code. The Company will use commercially reasonable efforts to not permit
RSUs to be deferred, accelerated, released, extended, paid out or modified in a
manner that would result in the imposition of an additional tax under Section
409A of the Code. In the event that it is reasonably determined by the Company
that, as a result of Section 409A of the Code, payments or delivery of the
Shares underlying the RSU award granted pursuant to this Agreement may not be
made at the time contemplated by the terms of the RSU award or your deferral
election, as the case may be, without causing the Participant to be subject to
taxation under Section 409A of the Code, the Company will make such payment or
share delivery as soon as practicable on or following the first day that would
not result in your incurring any tax liability under Section 409A of the Code,
and in any event, no later than the last day of the calendar year in which such
first date occurs.
(c) If the Participant is a “specified employee” (within the meaning of
Section 409A(a)(2)(B)(i) of the Code), payments and deliveries of shares in
respect of any RSUs subject to Section 409A of the Code that are linked to the
date of the Participant153s separation from service shall not be made prior to the
date which is six (6) months after the date of the Participant153s separation from
service from the Company or any of its Affiliates, determined in accordance with
Section 409A of the Code and the regulations promulgated thereunder.
(d) The Company shall use commercially reasonable efforts to avoid subjecting
the Participant to any additional taxation under Section 409A of the Code as
described herein; provided that neither the Company nor any of its employees,
agents, directors or representatives shall have any liability to the Participant
with respect to Section 409A of the Code.
23. Recoupment. The RSUs granted under this Agreement, and any Shares
issued or other payments made in respect thereof, shall be subject to any
recoupment policy that the Company may adopt from time to time, to the extent
any such policy is applicable to the Participant.
24. Data Protection. The Participant consents to the processing (including
international transfer) of personal data as set out in Appendix A for the
purposes specified therein.
9
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective
as of the date set forth above.
|
ACCENTURE PLC |
||||
|
By: |
||||
|
Julie Spellman Sweet General Counsel, Secretary and Compliance Officer |
||||
|
PARTICIPANT |
||||
|
By: |
||||
|
Name: |
||||
|
Address: |
||||
10
APPENDIX A
DATA PROTECTION PROVISION
|
(a) |
By participating in the Plan or accepting any rights granted under it, the |
These data will include data:
|
(i) |
already held in the Participant153s records such as the Participant153s name and |
|
(ii) |
collected upon the Participant accepting the rights granted under the Plan |
|
(iii) |
subsequently collected by the Company or any of its Affiliates in relation to |
|
(b) |
This consent is in addition to and does not affect any previous consent |
|
(c) |
In particular, the Participant expressly consents to the transfer of personal |
|
(i) |
Plan administrators, auditors, brokers, agents and contractors of, and third |
|
(ii) |
regulators, tax authorities, stock or security exchanges and other |
|
(iii) |
actual or proposed merger partners or proposed assignees of, or those taking |
|
(iv) |
other third parties to whom the Company or its Affiliates may need to |
|
(v) |
the Participant153s family members, physicians, heirs, legatees and others |
Not all countries, where the personal data may be transferred to, have an
equal level of data protection as in the EU or the European Economic Area.
Countries to which data are transferred include the USA.
All national and international transfer of personal data is only done in
order to fulfill the obligations and rights of the Company and/or its Affiliates
under the Plan.
The Participant has the right to be informed whether the Company or its
Affiliates hold personal data about the Participant and, to the extent they do
so, to have access to those personal data at no charge and require them to be
corrected if they are
11
inaccurate or to be destroyed if the Participant wishes to withdraw his or
her consent. The Participant is entitled to all the other rights provided for by
applicable data protection law, including those detailed in any applicable
documentation or guidelines provided to the Participant by the Company or its
Affiliates in the past. More detailed information is available to the
Participant by contacting the appropriate local data protection officer in the
country in which the Participant is based from time to time. If the Participant
has a complaint regarding the manner in which personal information relating to
the Participant is dealt with, the Participant should contact the appropriate
local data protection officer referred to above.
|
(d) |
The processing (including transfer) of data described above is essential for |
12
EXHIBIT 1-A
Determination of RSU Vesting pursuant to Section 1(c)
of the Agreement
|
1. Determine |
Percentile Rank (PR) for each of the Comparison Companies in accordance with |
PR = (PB/N)(100)
Where:
PB = ordinal position from the lowest TSR among the Comparison Companies. The
Comparison Company with the lowest TSR is the first position from the bottom.
N = number of Comparison Companies in the computation.
|
2. |
After determining and ordering the PR for each Comparison Company, if the TSR |
|
3. |
Upon determining the PR of the Company, the percentage of maximum RSUs |
|
Performance level |
Company PR (measured as a percentile) |
Percentage of maximum RSUs granted under the Agreement that vest |
||
|
Maximum |
The Company is ranked at or above |
25% |
||
|
Target |
The Company is ranked at the 60th percentile. |
16.67% |
||
|
Threshold |
The Company is ranked at the 40th percentile. |
8.33% |
||
|
The Company is ranked below the |
0% |
Performance Between Threshold and Target. If the Company153s
Percentile Rank is between “Threshold” and “Target,” the percentage of the
maximum RSUs granted to the Participant under the Agreement that shall vest
pursuant to Section 1(c) of the Agreement shall equal (a) 8.33% of the RSUs
granted under the Agreement plus (b) an additional percentage of the maximum
RSUs granted to the Participant under the Agreement, which percentage shall be
determined in accordance with the following formula:
|
(PR : 40) x 8.34 |
|
20 |
where, PR equals the Percentile Rank of the Company, as determined above.
Performance Between Target and Maximum. If the
Company153s Percentile Rank is between “Target” and “Maximum,” the percentage of
the RSUs granted to the Participant under the Agreement that shall vest pursuant
to Section 1(c) of the Agreement shall equal (a) 16.67% of the RSUs granted
under the Agreement plus (b) an additional percentage, not to exceed 8.33%, of
the maximum RSUs granted to the Participant under the Agreement, which
percentage shall be determined in accordance with the following formula:
|
(PR : 60) x 8.33 |
|
15 |
where, PR equals the Percentile Rank of the Company, as determined above.
13
EXHIBIT 1-B
Determination of RSU Vesting pursuant to Section 1(d)
of the Agreement
|
1. |
Determine the Company actual percentage of Target Cumulative Operating Income |
|
2. |
Upon determining the Company153s Performance Rate, the percentage of maximum |
|
Performance level |
Company153s Performance Rate |
Percentage of RSUs granted under the Agreement that vest |
||||
|
Maximum |
125% or greater |
75% |
||||
|
Target |
100% |
50% |
||||
|
Threshold |
80% |
25% |
||||
|
Less than 80% |
0% |
|||||
Performance Between Threshold and Target. If the Company153s
Performance Rate is between “Threshold” and “Target,” the percentage of the
maximum RSUs granted to the Participant under the Agreement that shall vest
pursuant to Section 1(d) of the Agreement shall equal (a) 25% of the maximum
RSUs granted under the Agreement, plus (b) an additional percentage of the
maximum RSUs granted to the Participant under the Agreement, which percentage
shall be determined in accordance with the following formula:
| ( |
PR : 80 |
) |
x 1.25 |
where, PR equals the Company153s Performance Rate, as determined above.
Performance Between Target and Maximum. If the Company153s
Performance Rate is between “Target” and “Maximum,” the percentage of the
maximum RSUs granted to the Participant under the Agreement that shall vest
pursuant to Section 1(d) of the Agreement shall equal (a) 50% of the maximum
RSUs granted under the Agreement, plus (b) an additional percentage, not to
exceed 25%, of the maximum RSUs granted to the Participant under the Agreement,
which percentage shall be determined in accordance with the following formula:
| ( |
PR : 100 |
) | ||||||
where, PR equals the Company153s Performance Rate, as determined above.
14
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