EXHIBIT 2.2
EXECUTION COPY
STOCKHOLDERS AGREEMENT
BY AND AMONG
BUSINESS OBJECTS, S.A.,
NEW SAC
AND THE
OTHER STOCKHOLDERS
PARTY HERETO
DATED AS OF JULY 18, 2003
STOCKHOLDERS AGREEMENT
This STOCKHOLDERS AGREEMENT, dated as of July 18, 2003 (this "Agreement"),
is entered into among Business Objects, S.A. (the "Company"), New SAC (the
"Majority Stockholder"), Silver Lake Technology Investors Cayman, L.P., Silver
Lake Investors Cayman, L.P., Silver Lake Partners Cayman, L.P., (collectively,
"Silver Lake"), SAC Investments, L.P. ("TPG"), August Capital III, L.P.
("August"), X.X. Xxxxxx Partners (BHCA), L.P. ("X.X. Xxxxxx"), GS Capital
Partners III, L.P., GS Capital Partners III Offshore, L.P., Xxxxxxx, Xxxxx & Co.
Verwaltungs GmbH, Stone Street Fund 0000 X.X., Xxxxxx Xxxxxx Special
Opportunities Fund 2000, L.P. (collectively, "GS"), Staenberg Venture Partners
II, L.P., Staenberg Seagate Partners, LLC (collectively, "Staenberg"), and
Integral Capital Partners V, L.P., Integral Capital Partners V Side Fund, L.P.
(collectively, "Integral"). Each of the entities listed above other than the
Company are sometimes referred to individually as a "Stockholder" and together
as the "Stockholders."
RECITALS
WHEREAS, concurrently herewith, the Company, Borg Merger Sub I, Inc., a
Delaware corporation and wholly-owned subsidiary of the Company ("Merger Sub
1"), Borg Merger Sub II, Inc., a Delaware corporation and wholly-owned
subsidiary of the Company ("Merger Sub 2"), Borg Merger Sub III, Inc., a
Delaware corporation and wholly-owned subsidiary of the Company ("Merger Sub
3"), Seagate Software (Cayman) Holdings, an exempted company incorporated in the
Cayman Islands with limited liability ("HoldCo") and Crystal Decisions, Inc., a
Delaware corporation ("Crystal"), have entered into an Agreement and Plan of
Merger (the "Merger Agreement"), dated as of July 18, 2003, pursuant to which,
subject to satisfaction or waiver of the conditions therein, (1) (a) Merger Sub
1 will merge with and into HoldCo (the "HoldCo Merger"), (b) immediately
following the HoldCo Merger, the surviving corporation of the HoldCo Merger will
merge with and into Merger Sub 2 (the "Second HoldCo Merger"), (c) immediately
following the Second HoldCo Merger, Merger Sub 3 will merge with and into
Crystal (the "Company Merger"), and (d) immediately following the Company
Merger, the surviving corporation of the Company Merger will merge with and into
the surviving corporation of the Second HoldCo Merger (the "Second Company
Merger," and together with the HoldCo Merger, the Second HoldCo Merger and
Company Merger, the "Mergers"), (2) the Company will issue ordinary shares,
nominal value EUR 0.10 per share, of the Company or American Depository Shares
of the Company, each of which represents one Ordinary Share (in either form, the
"Shares") to the Majority Stockholder, as the sole stockholder of HoldCo, and to
the stockholders of Crystal, and (iii) the Company will assume all
then-outstanding Crystal stock options in accordance with the terms of the
Merger Agreement;
WHEREAS, in connection with the Mergers, the Majority Stockholder will
receive Subject Shares (as defined herein);
WHEREAS, upon consummation of the Mergers, the Stockholders will
Beneficially Own Shares;
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WHEREAS, the parties believe that it is in the best interests of the
Company and the Stockholders to provide for certain rights and obligations of
the parties with respect to various corporate matters of the Company following
the Mergers; and
WHEREAS, the Merger Agreement contemplates that this Agreement will be
executed concurrently with the execution of the Merger Agreement, with its
provisions to become effective upon consummation of the Mergers.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
ARTICLE I. INTRODUCTORY MATTERS
1.1. Defined Terms.
In addition to the terms defined elsewhere herein, the following terms
have the following meanings when used herein with initial capital letters:
"13D Group" means a "group" as such term is used in Section 13(d)(3) of
the Exchange Act.
"AAA" has the meaning given to that term in Section 7.9 of this Agreement.
"ADSs" means the American Depository Shares of the Company, each
representing one Ordinary Share, deposited with the Depositary, and trading on
the Nasdaq National Market.
"Affiliate" has the meaning given to that term in Rule 405 promulgated
under the Securities Act; provided that officers, Directors or employees of the
Company will not be deemed to be Affiliates of a Stockholder for purposes hereof
solely by reason of being officers, Directors or employees of the Company.
"Agreement" means this Agreement, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with the terms hereof.
"Assumption Agreement" means a writing substantially in the form of
Exhibit A hereto whereby a Permitted Transferee or other Transferee pursuant to
Sections 3.4 and 3.6 becomes a party to, and agrees to be bound to the same
extent as its Transferor by, the terms of this Agreement.
"Beneficial Owner," "Beneficially Own," "Beneficial Ownership" and words
of similar import have the meanings ascribed to such terms in Rule 13d-3 under
the Exchange Act. Without duplicative counting of the same securities by the
same holder, securities "Beneficially Owned" by a Person includes securities
"Beneficially Owned" by all other Persons with whom such Person would constitute
a 13D Group with respect to securities of the same issuer.
"Board" means the Board of Directors of the Company.
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"Business Day" means a day other than a Saturday, Sunday, federal or New
York or California state holiday, French national holiday or other day on which
commercial banks in New York City, San Francisco or Paris are authorized or
required by law to close.
"Closing Date" means the "Second Company Merger Effective Time" of the
Mergers as such term is defined in the Merger Agreement.
"Closing Shelf Registration Statement" shall have the meaning given to
such term in Section 4.10 of this Agreement.
"Control," "Controlled," "Controlling," and "Under Common Control With"
have the meanings ascribed to such terms in Rule 12b-2 under the Exchange Act.
"Demand Party" has the meaning given to that term in Section 4.2(a) of
this Agreement.
"Demand Registration" has the meaning given to that term in Section 4.2(a)
of this Agreement.
"Depositary" means the Bank of New York or any successor depositary
thereto.
"Depositary Expenses" means any fees or expenses (including any taxes and
governmental charges) payable (by the Company or otherwise) in connection with
any deposit or withdrawal of any of the Subject Shares into or from the
Depositary or its custodian after the Subject Shares have been issued to the
Majority Stockholder in connection with the Mergers.
"Director" means any member of the Board.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder, as the same may be amended
from time to time.
"Holder" has the meaning given to that term in Section 4.5 of this
Agreement.
"Indemnified Parties" has the meaning given to that term in Section 4.5 of
this Agreement.
"Initial Share Holding Period" has the meaning given to that term in
Section 3.1(a) of this Agreement.
"Initiating Holder" has the meaning given to that term in Section 4.1(a)
of this Agreement.
"Legend" has the meaning given to that term in Section 3.7(d) of this
Agreement.
"Managing Registration Rights Holder" means any of the Majority
Stockholder, Silver Lake, TPG, August, X.X. Xxxxxx, GS, Xxxxxxxxx, or Integral.
"Mergers" has the meaning given to that term in the Recitals of this
Agreement.
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"Merger Agreement" has the meaning given to that term in the Recitals of
this Agreement.
"Ordinary Shares" means the ordinary shares of the Company, nominal value
EUR 0.10 per share.
"Permitted Transferee" means, in the case of any Stockholder, (A) any
Controlled Affiliate (other than an individual) of such Stockholder or any
Affiliate (other than an individual) which Controls such Stockholder (which in
the case of X.X. Xxxxxx, shall include any investment fund managed by a
Controlled Affiliate of X.X. Xxxxxx Xxxxx & Co.), (B) any stockholder, general
or limited partner, director, officer, managing or non-managing member or
employee of such Stockholder or Controlled Affiliate of such Stockholder
(including, in the case of Silver Lake and TPG, the general or limited partners
of the general and limited partners of such Stockholders), (C) the heirs,
executors, administrators, testamentary trustees, legatees or beneficiaries of
any of the individuals referred to in clause (B), (D) for estate planning
purposes, any trust, the beneficiaries of which include only (1) such
Stockholder, (2) Permitted Transferees referred to in clauses (A), (B) and (C)
and (3) spouses and lineal descendants of Permitted Transferees referred to in
clause (B), and (E) a corporation, partnership, limited liability company or
similar entity, a majority of the equity of which is owned and Controlled by
such Stockholder and/or Permitted Transferees referred to in clauses (A), (B),
(C) and (D).
"Person" means any individual, corporation, limited liability company,
partnership, trust, joint stock company, business trust, unincorporated
association, joint venture, governmental authority or other legal entity of any
nature whatsoever.
"Public Offering" means the sale of any class of capital stock of the
Company or equivalent securities, including ADSs or similar securities, to the
public pursuant to an effective registration statement (other than a
registration statement on Form S-4 or S-8 or any similar or successor form)
filed under the Securities Act.
"Registrable Securities" means (i) the Subject Shares and (ii) any Shares
issued as (or issuable upon the conversion or exercise of any warrant, right,
option or other convertible security which is issued as) a dividend, stock split
or other distribution, recapitalization or reclassification with respect to, or
in exchange for, or in replacement of, such Subject Shares, or upon exercise of
statutory preemptive rights by the Stockholders. For purposes of this Agreement,
with respect to any Stockholder, any Registrable Securities held by such
Stockholder will cease to be Registrable Securities when (A) a registration
statement covering such Registrable Securities has been declared effective and
such Registrable Securities have been disposed of pursuant to such effective
registration statement, (B) such Registrable Securities shall have been offered
and sold pursuant to Rule 144 or Rule 145 (or any similar provisions then in
effect) under the Securities Act, (C) all Registrable Securities held by such
Stockholder are eligible for transfer to the public pursuant to Rule 144 or Rule
145 (or any similar provisions then in effect) under the Securities Act (without
restriction as to manner of sale or amount sold) and are not otherwise subject
to any Transfer restrictions under this Agreement, (D) such Registrable
Securities are Transferred by a Person in a transaction in which rights under
the provisions of this Agreement are not assigned in accordance with this
Agreement, or (E) such Registrable Securities cease to be outstanding.
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"Registration Expenses" means any and all expenses incident to performance
by the Company of its obligations under Sections 4.1, 4.2 and 4.3, including
without limitation (i) all SEC, stock exchange, or National Association of
Securities Dealers, Inc. (the "NASD") registration and filing fees (including,
if applicable, the fees and expenses of any "qualified independent underwriter,"
as such term is defined in Rule 2720 of the NASD, and of its counsel), (ii) all
fees and expenses of complying with securities or blue sky laws (including fees
and disbursements of counsel for the underwriters in connection with blue sky
qualifications of the Registrable Securities), (iii) all printing, messenger and
delivery expenses, (iv) all fees and expenses incurred in connection with the
listing of the Registrable Securities on any securities exchange and all rating
agency fees, (v) the fees and disbursements of counsel for the Company and of
its independent public accountants, including the expenses of any Special Audits
and/or "cold comfort" letters required by or incident to such performance and
compliance, (vi) any fees and disbursements of underwriters customarily paid by
the issuers or sellers of securities, including liability insurance if the
Company so desires or if the underwriters so require, and the reasonable fees
and expenses of any special experts retained in connection with the requested
registration, but excluding underwriting discounts and commissions and transfer
taxes, if any, (vii) the reasonable out-of-pocket expenses of not more than one
law firm incurred by all the Registration Rights Holders in connection with any
registration of Registrable Securities, and (viii) the costs and expenses of the
Company relating to analyst and investor presentations or any "road show"
undertaken in connection with any registration and/or marketing of the
Registrable Securities, provided that nothing in this clause (viii) shall
obligate the Company to engage or participate in any such presentations or road
show. For the avoidance of doubt, Registration Expenses does not include
Depositary Expenses.
"Registration Rights Holders" means, collectively, the Stockholders
(excluding any Transferee that becomes a Stockholder to this Agreement pursuant
to Section 3.6 hereof), and to the extent any Registrable Securities are
Transferred by any such Stockholder to any of its Permitted Transferees, such
Permitted Transferees.
"S-3 Initiating Party" has the meaning given to that term in Section 4.3
of this Agreement.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder, as the same may be amended from
time to time.
"Shares" has the meaning given to that term in the Recitals to this
Agreement.
"Significant Event" has the meaning given to that term in Section 2.2(b)
of this Agreement.
"Special Audit" means an audit of the Company other than the regular audit
conducted by the Company at the end of its fiscal year.
"Stockholder" has the meaning given to that term in the Recitals to this
Agreement.
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"Stockholder Representative" has the meaning given to that term in Section
5.1 of this Agreement.
"Subject Shares" means the Shares issued to the Majority Stockholder in
connection with the Mergers, including any Shares issued upon changes in the
form of such Shares between ADSs and Ordinary Shares upon deposit or exchange
with the Depositary.
"Suspension Period" has the meaning given to that term in Section 4.10 of
this Agreement.
"Transfer" means, with respect to any Subject Share (or direct or indirect
economic or other interest therein), a transfer, distribution, sale, gift,
assignment, pledge, hypothecation or other disposition, whether directly or
indirectly (pursuant to the creation of a derivative security or otherwise), the
grant of an option or other right or the imposition of a restriction on
disposition or voting or by operation of law. When used as a verb, "Transfer"
shall have the correlative meaning. In addition, "Transferred" and "Transferee"
shall have the correlative meanings.
"Voting Stock" means the Shares and any other securities of the Company
entitled to vote generally in the election of Directors of the Company.
1.2. Construction.
The language used in this Agreement will be deemed to be the language
chosen by the parties to express their mutual intent, and no rule of strict
construction will be applied against any party. Unless the context otherwise
requires: (a) "or" is disjunctive but not exclusive, (b) words in the singular
include the plural, and in the plural include the singular, and (c) the words
"hereof", "herein" and "hereunder" and words of similar import when used in this
Agreement refer to this Agreement as a whole and not to any particular provision
of this Agreement, and Section and Exhibit references are to this Agreement
unless otherwise specified.
ARTICLE II. STANDSTILL PROVISIONS
2.1. Restrictions.
Except to the extent approved by a majority of the Directors, excluding
the Stockholder Representative, subject to the provisions of Section 2.2 hereof,
each Stockholder agrees that such Stockholder shall not:
(a) purchase or acquire, or offer or agree to purchase or acquire,
directly or indirectly, alone or in concert with any other Person, by purchase,
gift or otherwise, Beneficial Ownership of any Voting Stock of the Company if
such acquisition would result in the Stockholders Beneficially Owning more than
(x) the number of Subject Shares (subject to adjustment for any events set forth
in clause (B) below) such Stockholders collectively Beneficially Own upon
consummation of the Mergers plus (y) the number of Shares (subject to adjustment
for any events set forth in clause (B) below, if any) such Stockholders acquire
Beneficial Ownership of from time to time during any period that the
restrictions of this Section 2.1 are suspended pursuant to the provisions of
Section 2.2 hereof, except (A) as specifically
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contemplated by the Merger Agreement, (B) by way of stock dividends or
distributions, rights offerings, stock-splits, reclassifications,
recapitalizations, changes in capitalization, mergers, consolidations,
restructurings, business combinations, exchange offers, reorganizations or any
other similar action taken by the Company, (C) by reason of exercise of
statutory preemptive rights or (D) for equity-based awards granted to any
Stockholder or Affiliate thereof solely in such Person's capacity as a director
or employee of the Company; provided, that Integral shall not be bound by the
restrictions contained in this Section 2.1(a); provided further, that with
respect to X.X. Xxxxxx, in no event shall the restrictions set forth in this
Section 2.1(a) be deemed to apply to any Person other than (1) X.X. Xxxxxx or
(2) any successor investment fund managed by X.X. Xxxxxx Partners, L.L.C.;
(b) join or in any way participate in or encourage the formation of
any 13D Group with respect to the Beneficial Ownership of Voting Stock of the
Company with any Person who is not, immediately prior to the time of formation
of such 13D Group, (i) another Stockholder or (ii) an Affiliate of (A) such
Stockholder or another Stockholder or (B) any other Person which is then a
member of a 13D Group with such Stockholder or another Stockholder;
(c) (i) make, or in any way participate in, directly or indirectly,
alone or in concert with any other Person, any "solicitation" of "proxies" (as
such terms are defined or used in Regulation 14A under the Exchange Act),
including participation in any election contest, or (ii) otherwise communicate
with the stockholders of the Company (other than (i) another Stockholder, (ii)
an Affiliate of such Stockholder, or (iii) any other Person which is then a
member of a 13D Group with such Stockholder or another Stockholder) in
connection with or in relation to a proxy solicitation;
(d) advise or seek to influence any Person (other than (i) another
Stockholder, (ii) Affiliates of such Stockholder or another Stockholder or (iii)
Persons who are members of any 13D Group of which such Stockholder or another
Stockholder is member and which does not violate Section 2.1(b) above), with
respect to the voting of any Voting Stock;
(e) initiate or propose one or more stockholders' proposals, as
described in Rule 14a-8 under the Exchange Act, with respect to the Company;
(f) call, request or otherwise attempt to convene or cause
management of the Company to convene a meeting of the stockholders of the
Company;
(g) initiate, propose or solicit any proposal with respect to any
merger, consolidation or business combination involving the Company, any tender
or exchange offer for equity securities of the Company, any sale or purchase of
a substantial amount of the assets of the Company, any purchase of equity
securities of the Company (other than as permitted in Section 2.1(a) above), any
dissolution, liquidation, reorganization or recapitalization or similar business
transaction involving the Company;
(h) deposit any shares of Voting Stock of the Company in a voting
trust or subject any such Voting Stock to any arrangement or agreement with
respect to the voting of such Voting Stock (other than arrangements or
agreements solely involving (i) another Stockholder, (ii) Affiliates of such
Stockholder or another Stockholder or (iii) Persons who are
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members of any 13D Group of which such Stockholder or another Stockholder is
member and which does not violate Section 2.1(b) above);
(i) propose publicly (or in a manner reasonably expected to result
in public disclosure) to do, announce an intention to do, or enter into any
arrangement or understanding with any other Person to do, any of the actions
restricted or prohibited under this Section 2.1; or
(j) propose publicly (or in a manner reasonably expected to result
in public disclosure) any proposal to amend or terminate the provisions of this
Section 2.1;
provided that nothing in this Section 2.1 shall (i) prohibit or restrict any
Stockholder or its Affiliates from taking any action required or contemplated by
any other provision of this Agreement or the Merger Agreement, (ii) prohibit any
individual who is serving as a Director of the Company, solely in his or her
capacity as such Director, from taking any action or making any statement which,
in such Director's best judgment, is in the best interests of the Company or the
Company's stockholders, (iii) prohibit any individual who is serving as an
officer or employee of the Company or its Controlled Affiliates, solely in his
or her capacity as such, from performing his or her duties in such capacity or
from participating in the employee stock purchase program (if any) of the
Company or its Controlled Affiliates in which such individual is eligible to
participate by virtue of such capacity, provided that any such participation
does not make use of any funds provided by any third party, including without
limitation any Stockholder or any Permitted Transferee thereof, or (iv) restrict
any disclosure or statements required to be made by any Stockholder or its
Affiliates under applicable law to the extent any such requirement does not
arise from actions by such Stockholder in violation of this Agreement, and
provided, further, that the restrictions set forth in Section 2.1(a) shall not
be deemed to restrict any Stockholder or its Affiliates from engaging in any
brokerage, investment advisory, anti-raid advisory, merger advisory, asset
management, financial advisory, financing, market making and other similar
activities conducted in the ordinary course of its or their business.
2.2. Suspension of Standstill Restrictions.
(a) Upon the occurrence of a Significant Event (as defined below),
the restrictions set forth in Section 2.1 shall be suspended.
(b) "Significant Event" means any of the following:
(i) the Company agrees to enter into an agreement for, or
makes a public announcement of its intention to pursue, or the Board
authorizes the management of the Company to solicit proposals from third
parties for (A) the sale or other disposition of 33.3% or more of the
Company's outstanding Shares, (B) the sale or disposition of all or
substantially all of the Company's assets or a similar sale or change of
control transaction, or (C) any merger, consolidation, or other similar
business combination transaction (1) pursuant to which the outstanding
Shares of the Company would be converted into cash or securities of
another Person or 13D Group, (2) which would result in a third party or
13D Group Beneficially Owning, when combined with any other Shares of the
Company owned by such third party or 13D Group, 33.3% or more of the
then-outstanding Shares,
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or (3) which would result in all or a substantial portion of the Company's
assets being sold to any Person or 13D Group; or
(ii) the public announcement of a bona fide proposal by a
third party or 13D Group (other than the Company, a Stockholder, or any
Person who is then an Affiliate of a Stockholder) to acquire Voting Stock
of the Company (including pursuant to a tender or exchange offer or
merger), which, if successful, would result in such third party or 13D
Group Beneficially Owning, when combined with any other Voting Stock of
the Company owned by such third party or 13D Group, 33.3% or more of the
outstanding Voting Stock of the Company; provided, however, that the Board
either (A) has approved or recommended that the stockholders of the
Company accept such offer or (B) has not rejected or recommended that the
stockholders of the Company refrain from accepting such offer; or
(iii) a third party or 13D Group successfully consummates a
proposal of the type described in the foregoing clause 2.2(b)(ii); or
(iv) the adoption by the Board of a plan of liquidation or
dissolution.
(c) Upon the cessation of the event or events that lead to the
suspension of the restrictions in Sections 2.1 pursuant to this Section 2.2,
those restrictions shall be reinstated in accordance with their terms unless
this Agreement has been terminated in accordance with Section 7.2.
ARTICLE III. TRANSFER RESTRICTIONS; CERTAIN DISTRIBUTIONS
3.1. Limitations on Transfer.
(a) During the 90 day period following the Closing Date (such
period, the "Initial Share Holding Period"), the Majority Stockholder may not
Transfer any Subject Shares.
(b) At any time following the Initial Share Holding Period, the
Stockholders may Transfer Subject Shares solely in accordance with the
provisions of Section 3.2 hereof and Sections 3.1(c) and 3.1(d) below.
(c) During the period commencing as of the end of the Initial Share
Holding Period and ending on the one-year anniversary thereof (the "Restricted
Period"), without the prior written consent of the Company, the Stockholders may
not collectively Transfer Subject Shares representing more than 7.5% of the
then-outstanding Shares of the Company in the aggregate during any six (6) month
period; provided, that the following Transfers shall not be included in
calculating Shares Transferred for purposes of this Section 3.1(c):
(i) Transfers of Registrable Securities in underwritten Public
Offerings pursuant to Sections 4.1, 4.2 and 4.3 hereof;
(ii) Distributions of Subject Shares by the Majority
Stockholder, pursuant to Section 3.3 below;
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(iii) Transfers of Subject Shares by any Stockholder to its
Permitted Transferees pursuant to Section 3.4 below; and
(iv) Transfers of Subject Shares pursuant to Sections 3.2(g)
and (k) below.
(d) In addition to the provisions of Section 3.1(c) above, during
the Restricted Period, without the prior written consent of the Company, the
Stockholders may not collectively Transfer Subject Shares representing more than
15% of the then-outstanding Shares of the Company in the aggregate during any
six (6) month period; provided, that the following Transfers shall not be
included in calculating Shares Transferred for purposes of this Section 3.1(d):
(i) Distributions of Subject Shares by the Majority
Stockholder, pursuant to Section 3.3 below;
(ii) Transfers of Subject Shares by any Stockholder to its
Permitted Transferees pursuant to Section 3.4 below; and
(iii) Transfers of Subject Shares pursuant to Sections 3.2(g)
and (k) below.
3.2. Additional Transfer Restrictions.
Following the Initial Share Holding Period and subject to the restrictions
set forth in Sections 3.1(c) and 3.1(d) above, none of the Stockholders may
Transfer any Subject Shares, except:
(a) in compliance with Rules 144 and 145 under the Securities Act;
(b) pursuant to any underwritten Public Offerings, including,
without limitation, pursuant to Sections 4.1, 4.2 and 4.3, provided that any
such underwritten Public Offering is at least 180 days after the most recent
underwritten Public Offering in which Subject Shares were Transferred;
(c) pursuant to Public Offerings other than underwritten Public
Offerings or any other resale under an effective registration statement;
(d) in private transactions subject to applicable exemptions from
the registration requirements of the Securities Act to Persons who have not
filed and, to the knowledge of the Stockholder, would not be required to file
after the consummation of the Transfer, either: (A) a Schedule 13D under the
Exchange Act (a "Schedule 13D") , or (B) a Schedule 13G under the Exchange Act
that discloses Beneficial Ownership of 10% or more of the then-outstanding
Shares (a "10% Schedule 13G"); provided, that no more than 5% of the
then-outstanding Shares may be Transferred to any such Person, whether in a
single transaction or series of related transactions;
(e) in private transactions subject to applicable exemptions from
the registration requirements of the Securities Act to Persons who have filed
or, to the knowledge of the Stockholder, would be required to file after the
consummation of the Transfer, either: (A) a
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Schedule 13D, or (B) a 10% Schedule 13G; provided, that no more than 5% of the
then-outstanding Shares may be sold to any such Person, whether in a single
transaction or series of related transactions; provided further, that prior to
the Transfer, the Stockholder will have offered the Company the opportunity to
purchase the respective Subject Shares (in the manner set forth in Section 3.4
below), and the Company shall have failed to exercise such right of first
refusal;
(f) in transactions outside of the United States subject to
applicable exemptions from the registration requirements of the Securities Act;
(g) pursuant to any tender or exchange offer commenced under Rule
14d-2 of the Exchange Act, or any merger, consolidation, sale or other business
combination transaction involving the Company;
(h) pursuant to any distribution by the Majority Stockholder to its
Stockholders pursuant to Section 3.3 below;
(i) pursuant to any Transfer by a Stockholder to its Permitted
Transferees pursuant to Section 3.4 below;
(j) in bona fide transactions in compliance with the requirements of
the Securities Act and Exchange Act that constitute a hedge against changes in
the market price of the Shares; or
(k) the grant by X.X. Xxxxxx of a participation interest to one or
more other investment funds managed by a Controlled Affiliate of X.X. Xxxxxx
Chase & Co. without a change in record ownership.
3.3. Distributions by Majority Stockholder.
Following the Initial Share Holding Period, the Majority Stockholder may
distribute all or a portion of the Subject Shares held by the Majority
Stockholder to the stockholders of the Majority Stockholder in accordance with
the Memorandum and Articles of Association of the Majority Stockholder.
3.4. Transfer to Permitted Transferees.
(a) Following the Initial Share Holding Period, any Stockholder may
Transfer any or all of the Subject Shares held by it to any Permitted Transferee
of such Stockholder. Each Permitted Transferee will be required, at the time of
and as a condition to such Transfer, to become a party to this Agreement by
executing and delivering an Assumption Agreement and, upon executing and
delivering an Assumption Agreement, will be treated as a Stockholder for all
purposes hereof, including, but not limited to, the transfer restrictions set
forth in Article III hereof.
(b) Each Permitted Transferee of any Stockholder to which Subject
Shares are Transferred shall, and such Stockholder shall cause such Permitted
Transferee to, Transfer back to such Stockholder (or to another Permitted
Transferee of such Stockholder) any Subject Shares
12
it owns prior to such Permitted Transferee ceasing to be a Permitted Transferee
to such Stockholder.
(c) This Section 3.4 shall not apply to the grant by X.X. Xxxxxx of
a participation interest to one or more other investment funds managed by a
Controlled Affiliate of X.X. Xxxxxx without change in record ownership.
3.5. Right of First Refusal.
Prior to consummating any Transfer of any Subject Share pursuant to
Section 3.2(e) above, each Stockholder shall give the Company the opportunity to
purchase, subject to applicable law, such Subject Shares in the following
manner:
(a) The selling Stockholder shall give notice (the "Transfer
Notice") to the Company in writing of such intention, specifying the name of the
proposed purchaser or Transferee, the number of Subject Shares proposed to be
sold or transferred, the proposed price per Share therefor (the "Transfer
Price") and the other material terms upon which such disposition is proposed to
be made.
(b) The Company (or a designee of the Company in accordance with
Section 3.5(c)) shall have the right, exercisable by written notice given by the
Company to the selling Stockholder within five Business Days after receipt of
such Transfer Notice, to agree to purchase all, but not less than all, of the
Subject Shares specified in such Transfer Notice. The Company shall have the
right to pay for such Subject Shares: (i) the same amount in cash per Share,
(ii) to the extent the consideration to be paid by the third party consists of
any debt instruments, consideration per Share equivalent to that offered by the
third party, or (iii) to the extent the consideration to be paid by the third
party does not consist of cash or debt instruments, an amount of cash having
equivalent value as determined, at the expense of the Company, by an investment
banking firm mutually agreed to by the Company and the selling Stockholder.
(c) If the Company (or its designee) exercises its right of first
refusal hereunder, the closing of the purchase of the securities with respect to
which such right has been exercised shall take place within five Business Days
after the Company gives notice of such exercise, or, if later, upon the date on
which the proposed Transfer was to occur with the third party. Upon exercise by
the Company (or its designee) of its right of first refusal, the Company and the
selling Stockholder shall be legally obligated to consummate the purchase
contemplated thereby and shall use their reasonable commercial efforts to secure
any approvals required in connection therewith. The Company may elect by notice
in writing to the selling Stockholder that, at the closing of such transaction,
the Subject Shares be delivered to and payment made to the selling Stockholder
by a designee of the Company, provided that the Company shall remain liable for
its obligations under this Section 3.5 in the event such designee fails to
purchase and pay for the Subject Shares being sold.
(d) If the Company (or its designee) does not exercise its right of
first refusal hereunder within the time specified for such exercise, or if the
Company (or its designee) fails to complete the purchase of the securities on
the closing date specified in the first sentence of Section 3.5(c) (other than
by reason of a failure by the selling Stockholder to fulfill its
13
obligations with respect thereto), the selling Stockholder shall be free,
subject to the terms of Section 3.1 herein, to sell the securities specified in
such Transfer Notice at a price equal to or greater than the Transfer Price
specified in such Transfer Notice; provided that such sale is consummated within
thirty (30) days after the Company fails to exercise its right of first refusal.
3.6. Rights and Obligations of Transferees.
Any Transferee of Subject Shares (other than Transferees who acquire
Subject Shares (a) pursuant to Section 3.3, (b) pursuant to Section 3.4, (c)
pursuant to the exercise of rights set forth in Article IV, (d) in a bona fide
sale to the public pursuant to Rule 144, Rule 145 or Regulation S under the
Securities Act, (e) through a Public Offering, (f) pursuant to Section 3.2(g),
or (g) pursuant to Section 3.2(k)) will be required, at the time of and as a
condition to such Transfer, to become a party to this Agreement by executing and
delivering an Assumption Agreement and, upon executing and delivering an
Assumption Agreement, will be treated as a Stockholder for all purposes hereof;
provided, however, that no such Transferee (or its Permitted Transferees) will
acquire any rights (but will be subject to the obligations) under Articles IV or
V of this Agreement.
3.7. Other.
(a) Any Transfer of Subject Shares under this Agreement (other than
through a Public Offering) shall not be effective unless and until the Company
shall have been furnished with information reasonably satisfactory to it (which
may include an opinion from counsel) demonstrating that such Transfer is exempt
from or not subject to the provisions of Section 5 of the Securities Act and any
other applicable securities laws.
(b) In the event of any purported Transfer by a Stockholder of any
Subject Shares in violation of the provisions of this Agreement, such purported
Transfer will be void and of no effect, and the Company will not give effect to
such Transfer.
(c) The Company will be entitled to take all necessary steps to
ensure that any Subject Shares issued to the Stockholders are identified as
restricted securities within the meaning of Rules 144 and 145 promulgated under
the Securities Act and that any resales of such Subject Shares will be made in
accordance with an exemption from registration under the Securities Act or
pursuant to an effective registration statement.
(d) Each certificate representing ADSs held by a Stockholder will
bear a legend on the face thereof substantially to the following effect (with
such additions thereto or changes therein as the Company may be advised by
counsel are required by law or necessary to give full effect to this Agreement,
the "Legend"):
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO THE STOCKHOLDERS AGREEMENT AMONG BUSINESS OBJECTS,
S.A., NEW SAC, AND THE STOCKHOLDERS PARTY THERETO, DATED
AS OF JULY 18, 2003, AS AMENDED AND SUPPLEMENTED FROM
TIME TO TIME IN ACCORDANCE WITH THE TERMS THEREOF, A
COPY OF WHICH IS ON FILE WITH THE SECRETARY OF BUSINESS
OBJECTS, S.A. THE STOCKHOLDERS AGREEMENT CONTAINS, AMONG
OTHER THINGS, CERTAIN PROVISIONS RELATING TO THE
14
TRANSFER OF THE SHARES SUBJECT TO THE AGREEMENT. NO
TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR
OTHER DISPOSITION OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE, DIRECTLY OR INDIRECTLY, MAY BE MADE EXCEPT
IN ACCORDANCE WITH THE PROVISIONS OF SUCH STOCKHOLDERS
AGREEMENT. THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE
OF THIS CERTIFICATE, AGREES TO BE BOUND BY ALL OF THE
PROVISIONS OF SUCH STOCKHOLDERS AGREEMENT."
The Legend will be removed by the Company, with respect to any certificate
representing Subject Shares, by the delivery of substitute certificates without
such Legend in the event of a Transfer permitted by this Agreement and in which
the Transferee is not required to enter into an Assumption Agreement pursuant to
Section 3.4 or Section 3.6 of this Agreement.
ARTICLE IV. REGISTRATION RIGHTS
4.1. Piggyback Rights.
(a) Subject to the Transfer restrictions set forth in Sections 3.1
and 3.2, if, at any time during the period commencing as of the end of the
Initial Share Holding Period and ending on the ten-year anniversary of the
Closing, the Company proposes to register any of the Shares under the Securities
Act (other than a registration on Form S-4 or S-8, or any successor or other
forms promulgated for similar purposes), whether or not for sale for its own
account (including pursuant to Section 4.2), it will, at each such time, give
prompt written notice to the Managing Registration Rights Holders of its
intention to do so and of the Registration Rights Holders' rights under this
Section 4.1. Upon the written request of any Managing Registration Rights Holder
made within 14 days after the receipt of any such notice (which request shall
specify the number of Registrable Securities intended to be disposed of by such
Managing Registration Rights Holder and all other Registration Rights Holders
who are Permitted Transferees of such Managing Registration Rights Holder), the
Company will use its reasonable best efforts to effect the registration under
the Securities Act of all Registrable Securities which each Managing
Registration Rights Holder has so requested to be registered; provided that (i)
if, at any time after giving written notice of its intention to register any
securities and prior to the effective date of the registration statement filed
in connection with such registration, the Company or any other holder of
securities that initiated such registration (an "Initiating Holder") shall
determine for any reason not to proceed with the proposed registration of the
securities to be sold by it, the Company or such Initiating Holder may, at its
election, give written notice of such determination to the Managing Registration
Rights Holders and, thereupon, the Company shall be relieved of its obligation
to register any Registrable Securities in connection with such registration, and
(ii) if such registration involves an underwritten offering, the Registration
Rights Holders of Registrable Securities requesting to be included in the
registration must sell their Registrable Securities to the underwriters selected
by the Company, on the same terms and conditions as apply to the Company or the
Initiating Holders, as the case may be, with, in the case of a combined primary
and secondary offering, such differences, including any with respect to
indemnification and liability insurance, as may be customary or appropriate in
combined primary and secondary offerings. If a registration requested pursuant
to this Section 4.1(a) involves an underwritten Public Offering, any
Registration Rights Holder requesting to be
15
included in such registration may elect not to register all or any portion of
such securities in connection with such registration; provided that such
Registration Rights Holder gives written notice of such withdrawal to any of the
Managing Registration Rights Holders, and such Managing Registration Rights
Holder delivers such notice to the Company at least ten (10) days prior to the
effective date of the registration statement filed in connection with such
registration.
(b) The Company will pay all Registration Expenses in connection
with each registration of Registrable Securities requested pursuant to this
Section 4.1.
(c) If a registration pursuant to this Section 4.1 involves an
underwritten offering and the managing underwriter advises the Company in
writing that, in its opinion, the number of Registrable Securities and other
securities requested to be included in such registration exceeds the number
which can be sold in such offering, so as to be reasonably likely to have an
adverse effect on the price, timing or distribution of the securities offered in
such offering, then the Company will include in such registration (i) first,
100% of the securities, if any, the Company proposes to sell for its own
account, provided that the registration of Shares contemplated by this Section
4.1 was initiated by the Company with respect to Shares intended to be
registered for sale for its own account, (ii) second, the number of Registrable
Securities requested to be included by the Majority Stockholder, if any, in such
registration which in the opinion of the managing underwriter, can be sold,
without having the adverse effect referred to above, and (iii) third, such
number of Registrable Securities requested to be included in such registration
by the other Registration Rights Holders which, in the opinion of such managing
underwriter, can be sold without having the adverse effect referred to above,
which number of Registrable Securities shall be allocated pro rata among all
such requesting holders of Registrable Securities, based on the relative number
of Registrable Securities then held by each such requesting holder of
Registrable Securities. In the event that (A) the Company did not initiate the
registration of securities intended to be registered for sale for its own
account and (B) the number of Registrable Securities and Shares of other
holders, in each case entitled to registration rights with respect to such
Shares, requested to be included in such registration is less than the number
which, in the opinion of the managing underwriter, can be sold, the Company may
include in such registration securities it proposes to sell for its own account
up to the number of securities that, in the opinion of the underwriter, can be
sold.
4.2. Demand Registration.
(a) Subject to the Transfer restrictions set forth in Sections 3.1
and 3.2, at any time during the period commencing as of the end of the Initial
Share Holding Period and ending on the ten-year anniversary of the Closing Date,
and, in the case of Silver Lake, TPG or August, after the Majority Stockholder
has distributed Subject Shares pursuant to Section 3.3, upon the written request
of any of the Majority Stockholder, TPG, Silver Lake or August (a "Demand
Party") requesting that the Company effect the registration under the Securities
Act of all or part of such Demand Party's Registrable Securities (a "Demand
Registration") and specifying the amount and intended method of disposition
thereof, the Company will promptly give written notice of such requested
registration to the Managing Registration Rights Holders (each of such Managing
Registration Rights Holders will notify each of the Permitted Transferees of
such Managing Registration Rights Holder that holds Registrable Securities) and
other holders of securities entitled to notice of such registration and
thereupon will, as expeditiously as
16
reasonably possible, file a registration statement to effect the registration
under the Securities Act of:
(i) such Registrable Securities which the Company has been so
requested to register by the Demand Party;
(ii) the Registrable Securities of other Registration Rights
Holders which the Company has been requested to register by written
request given to the Company by the Managing Registration Rights Holders
within 14 days after the giving of such written notice by the Company to
the Managing Registration Rights Holders (which request shall specify the
amount and intended method of disposition of such securities);
all to the extent necessary to permit the disposition (in accordance with the
intended method thereof as aforesaid) of the Registrable Securities and such
other securities so to be registered; provided that the Company shall not be
required to effect the registration of Registrable Securities (A) at the request
of the Majority Stockholder on more than two (2) occasions, (B) at the request
of Silver Lake on more than two (2) occasions, (C) at the request of TPG on more
than two (2) occasions, or (D) at the request of August on more than one (1)
occasion; provided further, that the Company shall not be obligated to file a
registration statement relating to any registration request under this Section
4.2(a):
(1) within a period of 180 days after the effective date of
any other registration statement relating to any registration
request under this Section 4.2 or relating to any registration
statement referred to under Section 4.1 or Section 4.3 hereof; or
(2) if (x) the requested registration pursuant to this Section
4.2 involves a registration on a form other than a Form S-3 (or any
successor to Form S-3), and (y) the Registration Rights Holders,
together with the holders of any other securities of the Company
entitled to inclusion in such registration, propose to sell
Registrable Securities and such other securities (if any) at an
aggregate price to the public of less than $20,000,000; or
(3) if (x) the requested registration pursuant to this Section
4.2 involves an underwritten offering, and (y) the Registration
Rights Holders, together with the holders of any other securities of
the Company entitled to inclusion in such registration, propose to
sell Registrable Securities and such other securities (if any) at an
aggregate price to the public of less than $20,000,000; or
(4) if the Registration Rights Holders, together with the
holders of any other securities of the Company entitled to inclusion
in such registration, propose to sell Registrable Securities and
such other securities (if any) at an aggregate price to the public
of less than $5,000,000; or
(5) if with respect thereto the managing underwriter, the SEC,
the Securities Act, or the form on which the registration statement
is to be filed, would require the conduct of a Special Audit, in
which case the filing may be delayed until the completion of such
Special Audit (and the Company shall, upon
17
request of TPG, Silver Lake or August, as the case may be, use its
commercially reasonable efforts to cause such Special Audit to be
completed expeditiously and without unreasonable delay); or
(6) if the Company is in possession of material non-public
information and the Board determines in good faith that disclosure
of such information would not be in the best interests of the
Company and its stockholders, in which case the filing of the
registration statement may be delayed until the earlier of the
second Business Day after such conditions shall have ceased to exist
and the 120th day after receipt by the Company of the written
request from the Majority Stockholder, TPG, Silver Lake or August,
as the case may be, to register Registrable Securities under this
Section 4.2(a); or
(7) if the Closing Shelf Registration Statement is then
effective and available for the sale and distribution of such Demand
Party's Registrable Securities in the manner specified in such
request.
(b) The Company will pay all Registration Expenses in connection
with each registration of Registrable Securities requested pursuant to this
Section 4.2.
(c) A registration requested pursuant to this Article IV will not be
deemed to have been effected unless the registration statement filed by the
Company with the SEC in connection with such registration has been declared
effective by the SEC; provided that, if, within 100 days after it has become
effective, the offering of Registrable Securities pursuant to such registration
is interfered with by any stop order, injunction or other order or requirement
of the SEC or other governmental agency or court, then such registration will be
deemed not to have been effected.
(d) If a requested registration pursuant to this Section 4.2
involves an underwritten offering and regardless of whether the Company is
registering any securities therein, the Board shall have the right to select the
investment banker or bankers and managers to administer the offering, including
the lead managing underwriter.
(e) If a requested registration pursuant to this Section 4.2
involves an underwritten offering and the managing underwriter advises the
Company in writing that, in its opinion, the number of Registrable Securities
requested to be included in such registration exceeds the number which can be
sold in such offering, so as to be reasonably likely to have an adverse effect
on the price, timing or distribution of the securities offered in such offering,
then the Company will include in such registration such number of Registrable
Securities requested to be included in such registration which, in the opinion
of such managing underwriter, can be sold without having the adverse effect
referred to above, which number shall be allocated pro rata among all such
holders of Registrable Securities requesting to be included in such registration
based on the relative number of Registrable Securities then held by each such
holder of Registrable Securities. In the event that the number of Registrable
Securities and Shares of other holders, in each case entitled to registration
rights with respect to such Shares requested to be included in such registration
is less than the number which, in the opinion of the managing underwriter, can
be sold, the Company may include in such registration securities it proposes to
18
sell for its own account up to the number of securities that, in the opinion of
the underwriter, can be sold.
4.3. Form S-3 Registration.
Subject to the Transfer restrictions set forth in Sections 3.1 and 3.2,
if, at any time during the period commencing as of the end of the Initial Share
Holding Period and ending on the ten-year anniversary of the Closing Date, the
Company receives from the Majority Stockholder, or from Silver Lake, TPG or
August after the Majority Stockholder has distributed Subject Shares pursuant to
Section 3.3 (each an "S-3 Initiating Party"), a written request or requests that
the Company effect a registration on Form S-3 (or any successor to Form S-3) and
any related qualification or compliance with respect to all or a part of the
Registrable Securities owned by such S-3 Initiating Party or S-3 Initiating
Parties, the Company will:
(a) promptly give notice of the proposed registration, and any
related qualification or compliance, to the Managing Registration Rights Holders
(each of which Managing Registration Rights Holder will notify each of the
Permitted Transferees of such Managing Registration Rights Holder that holds
Registrable Securities); and
(b) as expeditiously as reasonably practical, effect such
registration and all such qualifications and compliances as may be so requested
and as would permit or facilitate the sale and distribution of all or such
portion of such S-3 Initiating Party's or S-3 Initiating Parties' Registrable
Securities as are specified in such request, together with all or such portion
of the Registrable Securities of any other Registration Rights Holder or
Registration Rights Holders joining in such request as are specified in a
written request delivered to the Company by the Managing Registration Rights
Holders within fourteen (14) days after receipt of such written notice from the
Company; provided that the Company shall not be obligated to effect any such
registration, qualification or compliance pursuant to this Section 4.3:
(i) if Form S-3 (or any successor form) is not available for
such offering by the Registration Rights Holders; or
(ii) if (x) the requested registration pursuant to this
Section 4.3 involves an underwritten offering, and (y) the Registration
Rights Holders, together with the holders of any other securities of the
Company entitled to inclusion in such registration, propose to sell
Registrable Securities and such other securities (if any) at an aggregate
price to the public of less than $20,000,000; or
(iii) if the Registration Rights Holders, together with the
holders of any other securities of the Company entitled to inclusion in
such registration, propose to sell Registrable Securities and such other
securities (if any) at an aggregate price to the public of less than
$5,000,000; or
(iv) if the Company is in possession of material non-public
information and the Board determines in good faith that disclosure of such
information would not be in the best interests of the Company and its
stockholders, in which case the filing of the registration statement may
be delayed until the earlier of the second Business Day after such
conditions shall have ceased to exist and the 120th day after receipt by
the Company
19
of the written request from the Majority Stockholder, TPG, Silver Lake or
August, as the case may be, to register Registrable Securities under this
Section 4.3(a); provided, that such right to delay a request shall be
exercised by the Company not more than once in any twelve (12) month
period; or
(v) if the Company has, within the twelve (12) month period
preceding the date of such request, already effected two (2) registration
statements for any of the Registration Rights Holders pursuant to this
Section 4.3, Section 4.1 or Section 4.2; or
(vi) in any particular jurisdiction in which the Company would
be required to qualify to do business or to execute a general consent to
service of process in effecting such registration, qualification or
compliance unless the Company is already subject to service in such
jurisdiction and except as may be required by the Securities Act; or
(vii) if with respect thereto, the managing underwriter, the
SEC, the Securities Act, or the form on which the registration statement
is to be filed, would require the conduct of a Special Audit, in which
case the Company shall have the right to defer the filing of the Form S-3
registration statement until the completion of such Special Audit (and the
Company shall, upon the request of the Majority Stockholder, TPG, Silver
Lake or August, as the case may be, use its commercially reasonable
efforts to cause such Special Audit to be completed expeditiously and
without unreasonable delay); or
(viii) if the Closing Shelf Registration Statement is then
effective and available for the sale and distribution of such Registration
Rights Holder's or Registration Rights Holders' Registrable Securities in
the manner specified in such request.
(c) Subject to the foregoing, the Company shall file a Form S-3
registration statement covering the Registrable Securities and other securities
so requested to be registered as expeditiously as reasonably practical after
receipt of the request or requests of the Majority Stockholder, TPG, Silver Lake
or August, as the case may be. Registrations effected pursuant to this Section
4.3 shall not be counted as demands for registration or registrations effected
pursuant to Section 4.2.
(d) If a requested registration pursuant to this Section 4.3
involves an underwritten offering and regardless of whether the Company is
registering any securities therein, the Board shall have the right to select the
investment banker or bankers and managers to administer the offering, including
the lead managing underwriter.
(e) The Company will pay all Registration Expenses in connection
with each registration of Registrable Securities requested pursuant to this
Section 4.3.
4.4. Registration Procedures.
If and whenever the Company is required to file a registration statement
with respect to, or to use its reasonable best efforts to effect or cause the
registration of, any Registrable Securities under the Securities Act as provided
in this Agreement the Company will as expeditiously as reasonably possible:
20
(a) prepare and, in any event within 120 days after the end of the
period within which a request for registration may be given to the Company
pursuant to Section 4.2 or Section 4.3, file with the SEC a registration
statement on the appropriate form with respect to such Registrable Securities
and use its reasonable efforts to cause such registration statement to be
declared effective by the SEC; provided, however, that the Company may
discontinue any registration of securities as to which it is the initiating
party at any time prior to the effective date of the registration statement
relating thereto (and, in such event, the Company shall pay the Registration
Expenses incurred in connection therewith); provided further, that not less than
five (5) Business Days before filing a registration statement or prospectus, or
any amendments or supplements thereto, the Company will furnish to counsel for
the sellers of Registrable Securities covered by such registration statement
copies of all documents proposed to be filed;
(b) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective for a period not
in excess of 100 days (unless such registration statement relates to an
underwritten Public Offering, in which event the registration statement shall
not be required to remain effective at the request of the Registration Rights
Holders for a period of in excess of 45 days) and to comply with the provisions
of the Securities Act and the Exchange Act with respect to the disposition of
all securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the seller or sellers
thereof set forth in such registration statement; provided that not less than
five (5) Business Days before filing a registration statement or prospectus, or
any amendments or supplements thereto, the Company will furnish to counsel for
the sellers of Registrable Securities covered by such registration statement
copies of all documents proposed to be filed;
(c) furnish to each Managing Registration Rights Holders of each
seller of such Registrable Securities such number of copies of such registration
statement and of each amendment and supplement thereto (in each case including
all exhibits filed therewith, including any documents incorporated by
reference), such number of copies of the prospectus included in such
registration statement (including each preliminary prospectus and summary
prospectus), in conformity with the requirements of the Securities Act, and such
other documents as such seller may reasonably request (through a Managing
Registration Rights Holder) in order to facilitate the disposition of the
Registrable Securities by such seller;
(d) use its reasonable efforts to register or qualify within the
United States such Registrable Securities covered by such registration in such
United States jurisdictions as each seller shall reasonably request, and do any
and all other acts and things which may be reasonably necessary or advisable to
enable such seller to consummate the disposition of the Registrable Securities
owned by such seller in such jurisdictions, except that the Company shall not
for any such purpose be required to qualify generally to do business as a
foreign corporation in any jurisdiction where, but for the requirements of this
subsection (d), it would not be obligated to be so qualified, to subject itself
to taxation in any such jurisdiction or to consent to general service of process
in any such jurisdiction;
(e) use its reasonable best efforts to cause such Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental
21
agencies or authorities within the United States as may be necessary to enable
the seller or sellers thereof to consummate the disposition of such Registrable
Securities;
(f) notify each Managing Registration Rights Holder of each seller
of any such Registrable Securities covered by such registration statement, at
any time when a prospectus relating thereto is required to be delivered under
the Securities Act within the appropriate period mentioned in Section 4.4(b), of
the Company's becoming aware that the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing, and at the request of any such Managing Registration Rights
Holder, prepare and furnish to such Managing Registration Rights Holder a
reasonable number of copies of an amended or supplemental prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in the light of the circumstances
then existing;
(g) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its security
holders, as soon as reasonably practicable (but not more than 15 months) after
the effective date of the registration statement, an earnings statement which
shall satisfy the provisions of Section 11(a) of the Securities Act;
(h) (i) use its reasonable best efforts to list such Registrable
Securities on any securities exchange on which the Shares are then listed if
such Registrable Securities are not already so listed and if such listing is
then permitted under the rules of such exchange; and (ii) use its reasonable
efforts to provide a transfer agent and registrar for such Registrable
Securities covered by such registration statement not later than the effective
date of such registration statement;
(i) enter into such customary agreements (including an underwriting
agreement in customary form), which may include indemnification provisions in
favor of underwriters and other Persons in addition to, or in substitution for
the indemnification provisions hereof, and take such other actions as sellers of
a majority of shares of such Registrable Securities included in such
registration statement or the underwriters, if any, reasonably request in order
to expedite or facilitate the disposition of such Registrable Securities;
(j) obtain a "cold comfort" letter or letters from the Company's
independent public auditors in customary form and covering matters of the type
customarily covered by "cold comfort" letters as the seller or sellers of a
majority of shares of such Registrable Securities included in such registration
statement shall reasonably request;
(k) make available for inspection by any Managing Registration
Rights Holder of any seller of such Registrable Securities covered by such
registration statement, by any underwriter participating in any disposition to
be effected pursuant to such registration statement and by any attorney,
accountant or other agent retained by any such seller or any such underwriter,
all pertinent financial and other records, pertinent corporate documents and
22
properties of the Company, and cause all of the Company's officers, Directors
and employees to supply all information reasonably requested by any such
Managing Registration Rights Holder, underwriter, attorney, accountant or agent
in connection with such registration statement;
(l) notify counsel for the holders of Registrable Securities
included in such registration statement and the managing underwriter or agent,
immediately, and confirm the notice in writing (i) when the registration
statement, or any post-effective amendment to the registration statement, shall
have been declared effective by the SEC, or any supplement to the prospectus or
any amendment to the prospectus shall have been filed, (ii) of the receipt of
any comments from the SEC, (iii) of any request of the SEC to amend the
registration statement or amend or supplement the prospectus or for additional
information, and (iv) of the issuance by the SEC of any stop order suspending
the effectiveness of the registration statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the registration statement for offering or sale in any
jurisdiction, or of the institution or threatening of any proceedings for any of
such purposes;
(m) use its reasonable best efforts to prevent the issuance of any
stop order suspending the effectiveness of the registration statement or of any
order preventing or suspending the use of any preliminary prospectus and, if any
such order is issued, to obtain the withdrawal of any such order at the earliest
possible moment;
(n) if requested by the managing underwriter or agent or any
Managing Registration Rights Holder of any holder of Registrable Securities
covered by the registration statement, promptly incorporate in a prospectus
supplement or post-effective amendment such information as the managing
underwriter or agent or such Managing Registration Rights Holder reasonably
requests to be included therein, including, with respect to the number of
Registrable Securities being sold by such Managing Registration Rights Holder or
its Permitted Transferees to such underwriter or agent, the purchase price being
paid therefor by such underwriter or agent and with respect to any other terms
of the underwritten offering of the Registrable Securities to be sold in such
offering (unless the Company, after consultation with counsel, reasonably
concludes that such information would be materially misleading to prospective
buyers in the Public Offering); and make all required filings of such prospectus
supplement or post-effective amendment as soon as practicable after being
notified of the matters incorporated in such prospectus supplement or
post-effective amendment;
(o) cooperate with the Managing Registration Rights Holders of the
holders of Registrable Securities covered by the registration statement and the
managing underwriter or agent, if any, to facilitate the timely preparation and
delivery of certificates (not bearing any restrictive legends) representing
securities to be sold under the registration statement, and enable such
securities to be in such denominations and registered in such names as the
managing underwriter or agent, if any, or the Managing Registration Rights
Holders may request;
(p) if requested by the applicable parties, obtain for delivery to
the Managing Registration Rights Holders of the holders of Registrable
Securities being registered and to the underwriter or agent an opinion or
opinions from counsel for the Company in customary form and in form, substance
and scope reasonably satisfactory to such Managing Registration Rights Holders,
underwriters or agents and their counsel;
23
(q) cooperate with each Managing Registration Rights Holder of each
seller of Registrable Securities and each underwriter or agent participating in
the disposition of such Registrable Securities and their respective counsel in
connection with any filings required to be made with the NASD; and
(r) with respect to underwritten Public Offerings under Section 4.2,
act in good faith to facilitate, cooperate with and participate in customary
selling efforts related thereto and provide reasonable assistance in marketing
activities with respect to the distribution of such Public Offering, which may
include, in the case of an underwritten Public Offering which proposes to sell
Registrable Securities to the public at a price of $100 million or more, causing
the senior executives of the Company (subject to the reasonable availability of
such executives) to participate in customary "road show" presentations as
reasonably requested by the managing underwriter in such Public Offering.
4.5. Other Registration-Related Matters.
(a) The Company may require any Person that is selling Subject
Shares in a Public Offering pursuant to Sections 4.1, 4.2 or 4.3 to furnish to
the Company in writing such information regarding such Person and pertinent to
the disclosure requirements relating to the registration and the distribution of
the Registrable Securities which are included in such Public Offering as the
Company may from time to time reasonably request in writing.
(b) Each Registration Rights Holder agrees, severally and not
jointly, that, upon receipt of any notice from the Company of the happening of
any event of the kind described in Section 4.4(f), it will forthwith discontinue
disposition of Registrable Securities pursuant to the registration statement
covering such Registrable Securities until its receipt of the copies of the
amended or supplemented prospectus contemplated by Section 4.4(f) and, if so
directed by the Company (through its Managing Registration Rights Holder), each
Registration Rights Holder will deliver to the Company (through its Managing
Registration Rights Holder) (at the Company's expense) all copies, other than
permanent file copies then in their possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such notice. In the
event the Company gives any such notice, the period for which the Company will
be required to keep the registration statement effective will be extended by the
number of days during the period from and including the date of the giving of
such notice pursuant to Section 4.4(f) to and including the date when each
seller of Registrable Securities covered by such registration statement has
received the copies of the supplemented or amended prospectus contemplated by
Section 4.4(f).
(c) To the extent not already subject to the restrictions in Article
III of this Agreement, each holder of Registrable Securities will, in connection
with an underwritten Public Offering of the Company's securities, upon the
request of the Company or of the underwriters managing any underwritten offering
of the Company's securities, agree in writing not to effect any sale,
disposition or distribution of Registrable Securities (other than those included
in the Public Offering) without the prior written consent of the managing
underwriter for such period of time commencing 30 days before and ending 90 days
(or such earlier date as the managing underwriter shall agree) after the
effective date of such registration; provided that (i) such registration was
effected pursuant to Sections 4.2 or 4.3 hereof, or (ii) such holder of
Registrable
24
Securities was offered the opportunity pursuant to Section 4.1 to have such
holder's Registrable Securities registered by the Company in such registration
and that the Company has not limited the number of such holder's Registrable
Shares to be included in such registration pursuant to Section 4.1(c) hereof. No
Stockholder shall be released from such lock-up period by the managing
underwriter unless all of the Stockholders are so released.
4.6. Indemnification.
(a) In the event of any registration of any securities of the
Company under the Securities Act pursuant to Sections 4.1, 4.2 or 4.3, the
Company hereby indemnifies and agrees to hold harmless, to the extent permitted
by law, the sellers of any Registrable Securities covered by such registration
statement (each a "Holder"), each Affiliate of such Holder and their respective
directors and officers, members or general and limited partners (and the
directors, officers, employees, affiliates and Controlling Persons of any of the
foregoing), each other Person who participates as an underwriter in the offering
or sale of such securities and each other Person, if any, who Controls such
Holder or any such underwriter within the meaning of the Securities Act
(collectively, the "Indemnified Parties"), against any and all losses, claims,
damages or liabilities, joint or several, and expenses to which such Indemnified
Party may become subject under the Securities Act, common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof, whether or not such Indemnified Party is a party
thereto) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such securities were registered under the Securities Act, any
preliminary, final or summary prospectus contained therein, or any amendment or
supplement thereto, or (ii) any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in light of the circumstances when they were made, and
the Company will reimburse such Indemnified Party for any legal or other
expenses reasonably incurred by it in connection with investigating or defending
any such loss, claim, liability, action or proceeding; provided that the Company
will not be liable to any Indemnified Party in any such case to the extent that
any such loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, in any such preliminary, final or summary prospectus, or
any amendment or supplement thereto in reliance upon and in conformity with
written information with respect to such Indemnified Party furnished to the
Company by such Indemnified Party expressly for use in the preparation thereof,
nor shall the Company be liable to any Indemnified Party for any amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company (which consent will
not be unreasonably withheld or delayed). Such indemnity will remain in full
force and effect regardless of any investigation made by or on behalf of such
Holder or any Indemnified Party and will survive the Transfer of such securities
by such Holder.
(b) The Company may require, as a condition to including any
Registrable Securities in any registration statement filed in accordance with
Sections 4.1, 4.2 or 4.3 that the Company shall have received an undertaking
reasonably satisfactory to it from the Holder of such Registrable Securities or
any prospective underwriter to indemnify and hold harmless (in the same manner
and to the same extent as set forth in Section 4.6(a)) the Company, all other
Holders or any prospective underwriter, as the case may be, and any of their
respective
25
Affiliates, directors, officers and Controlling Persons, with respect to any
untrue statement in or omission from such registration statement, any
preliminary, final or summary prospectus contained therein, or any amendment or
supplement, if such untrue statement or omission was made in reliance upon and
in conformity with written information with respect to such Holder or
underwriter furnished to the Company by such Holder or underwriter expressly for
use in the preparation of such registration statement, preliminary, final or
summary prospectus or amendment or supplement, or a document incorporated by
reference into any of the foregoing. Such indemnity will remain in full force
and effect regardless of any investigation made by or on behalf of the Company
or any of the Holders, or any of their respective affiliates, directors,
officers or Controlling Persons and will survive the Transfer of such securities
by such Holder. In no event shall the liability of any selling Holder of
Registrable Securities hereunder be greater in amount than the dollar amount of
the net proceeds actually received by such Holder upon the sale of the
Registrable Securities giving rise to such indemnification obligation.
(c) Promptly after receipt by an Indemnified Party hereunder of
written notice of the commencement of any action or proceeding with respect to
which a claim for indemnification may be made pursuant to this Section 4.6, such
Indemnified Party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of
such action; provided that the failure of the Indemnified Party to give notice
as provided herein will not relieve the indemnifying party of its obligations
under Section 4.6(a) or 4.6(b), except to the extent that the indemnifying party
is actually prejudiced by such failure to give notice. In case any such action
is brought against an Indemnified Party, unless in such Indemnified Party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, the indemnifying party
will be entitled to participate in and to assume the defense thereof, jointly
with any other indemnifying party similarly notified to the extent that it may
wish, with counsel reasonably satisfactory to such Indemnified Party, and after
notice from the indemnifying party to such Indemnified Party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
Indemnified Party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof other than reasonable costs of
investigation. If, in such Indemnified Party's reasonable judgment, having
common counsel would result in a conflict of interest between the interests of
such indemnified and indemnifying parties, then such Indemnified Party may
employ separate counsel reasonably acceptable to the indemnifying party to
represent or defend such Indemnified Party in such action, it being understood,
however, that the indemnifying party will not be liable for the reasonable fees
and expenses of more than one separate firm of attorneys at any time for all
such Indemnified Parties (and not more than one separate firm of local counsel
at any time for all such Indemnified Parties) in such action. No indemnifying
party will consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
of such claim or litigation.
(d) If the indemnification provided for hereunder from the
indemnifying party is unavailable to an Indemnified Party hereunder in respect
of any losses, claims, damages, liabilities or expenses referred to herein, then
the indemnifying party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages, liabilities or expenses in such proportion as
is appropriate to reflect the relative fault of the indemnifying party and
Indemnified Parties in
26
connection with the actions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of such indemnifying party and Indemnified Parties shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact, has been made by, or relates to
information supplied by, such indemnifying party or Indemnified Parties, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action. The amount paid or payable by a party under this
Section 4.6(d) as a result of the losses, claims, damages, liabilities and
expenses referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such party in connection with any investigation
or proceeding. In no event shall the liability of any selling Holder of
Registrable Securities hereunder be greater in amount than the dollar amount of
the net proceeds actually received by such Holder upon the sale of the
Registrable Securities giving rise to such contribution obligation.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 4.6(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
(e) Indemnification similar to that specified in this Section 4.6
(with appropriate modifications) shall be given by the Company and each seller
of Registrable Securities with respect to any required registration or other
qualification of securities under any law or with any governmental entity other
than as required by the Securities Act.
(f) The obligations of the parties under this Section 4.6 will be in
addition to any liability which any party may otherwise have to any other party.
4.7. S-3 Eligibility.
The Company currently meets the requirements for registration on Form S-3
under the Securities Act, and the Company shall take all reasonable efforts to
ensure that the Company meets these requirements on the initial filing date and
effective date of the registration statements filed pursuant to Section 4.3 of
this Agreement.
4.8. Reports under the Exchange Act.
With a view to making available to the Registration Rights Holders the
benefits of Rule 144 under the Securities Act and any other rule or regulation
of the SEC that may at any time permit a Registration Rights Holders to sell
Registrable Securities to the public without registration, the Company agrees
to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144, at all times;
27
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
(c) furnish to any Managing Registration Rights Holder, so long as
the Managing Registration Rights Holder or its Permitted Transferees owns any
Registrable Securities, upon request (i) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed by
the Company, and (ii) such other information as may be reasonably requested in
availing any Registration Rights Holder of any rule or regulation of the SEC
which permits the selling of any such securities without registration.
4.9. Assignment of Registration Rights.
The rights to cause the Company to register Registrable Securities
pursuant to this Agreement may not be assigned by any Registration Rights
Holder; provided, that if the Company is not eligible to use Form S-3 and the
Majority Stockholder has exhausted its right to request a Demand Registration
under Section 4.2(a)(A), then any of Silver Lake, TPG and August shall have the
right to assign its right to request one Demand Registration under Section
4.2(a)(B), (C) or (D), as the case may be, to the Majority Stockholder.
4.10. Closing Shelf Registration Statement
(a) In the event that any of the Shares issued in the Mergers are
determined to have been issued pursuant to a private placement exemption from
registration pursuant to Section 4(2) of, and/or Rule 506, under the Securities
Act, then as promptly as practicable after such event and in compliance with
applicable securities laws, the Company will, with respect to such Shares issued
pursuant to the Mergers, prepare and file a registration statement on Form S-3
(the "Closing Shelf Registration Statement") with the SEC pursuant to Rule 415
of the Securities Act. The Company shall use its commercially reasonable efforts
to cause the Closing Shelf Registration Statement to become effective no later
than the last day of the Initial Share Holding Period. Upon effectiveness, the
Company shall use its best efforts to keep the registration statement
continuously in effect for two calendar years thereafter subject to extension
for any suspension of sales as described below.
(b) The Company shall be entitled, from time to time, by providing
written notice to the Registration Rights Holders who elected to participate in
the Closing Shelf Registration Statement, to require such Registration Rights
Holders to suspend the use of such prospectus for sales of Registrable
Securities under the Closing Shelf Registration Statement for a reasonable
period of time (a "Suspension Period") if the Company shall determine that is in
possession of material non-public information and the Board determines in good
faith that disclosure of such information would not be in the best interests of
the Company and its stockholders; provided, that all Suspension Periods that
occur (i) during any ninety (90) day period shall not exceed an aggregate of
thirty (30) days and (ii) during any one-year period shall not exceed an
aggregate of seventy (70) days. Immediately upon receipt of such notice, the
Registration Rights Holders covered by the Closing Shelf Registration Statement
shall suspend the use of the prospectus until the requisite changes to the
prospectus have been made. Any Suspension Period shall terminate at such time as
the public disclosure of such information is made, subject to the maximums set
forth in the first sentence hereof. After the expiration of any
28
Suspension Period and without any further request from a Registration Rights
Holder, the Company shall as promptly as reasonably practical prepare a
post-effective amendment or supplement to the Closing Shelf Registration
Statement or the prospectus, or any document incorporated therein by reference,
or file any other required document so that, as thereafter delivered to
purchasers of the Registrable Securities included therein, the prospectus will
not include any untrue statement of material fact or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
ARTICLE V. BOARD REPRESENTATION
5.1. Board Representation.
(a) Effective as of the Closing Date, subject to applicable law, the
Majority Stockholder may designate one Person to be proposed by the Board to the
Company's stockholders to be elected a Director; provided that such designee
must be reasonably satisfactory to the Company (such determination to be made by
the Board after receiving a recommendation from the nominating committee of the
Company; provided, that for the avoidance of doubt, any Person who is a managing
director of Silver Lake Partners, L.P., a Delaware limited partnership, as of
the date hereof, shall be deemed to be satisfactory to the Company and the Board
for such purposes unless (i) any such managing director does not meet the
criteria for directors set forth in the Nasdaq National Market rules, any
corporate governance guidelines or policies adopted by the Board or any
committee thereof, or any other applicable law and regulation, or (ii) the
Company's nominating committee in good faith makes a determination that the
appointment of any such managing director to the Board would be materially
disadvantageous to the Company (the "Stockholder Representative").
(b) The Company shall take all necessary action, subject to
applicable law, to cause the size of the Board to be increased to ten (10)
members from eight (8) members, effective as of the Closing Date, and the
Company shall use reasonable best efforts, subject to applicable law, to cause
the vacancies to be filled by (i) Xxxxx X. Xxxx (or such other individual as may
be designated in writing by the Majority Stockholder at least forty-five (45)
days prior to the filling of such vacancy and in accordance with Section 5.1(a)
hereof) to be the initial Stockholder Representative, and (ii) one (1)
individual who qualifies as an "independent" director of Borg pursuant to
proposed and applicable laws and regulations. The Company agrees to consult with
the Majority Stockholder in good faith before making any other changes to the
size of the Board.
(c) At the expiration of any Stockholder Representative's designated
term as director, the Board will recommend a vote by the Company's stockholders
in favor of the reelection of such Stockholder Representative (or the election
of any replacement designated by the Majority Stockholder in accordance with
Section 5.1(a) hereof). If any Stockholder Representative or any successor
thereto ceases to be a director of the Company at any time prior to the
expiration of such Stockholder Representative's designated term as director,
whether as a result of death, resignation, retirement, disqualification, removal
from office or other cause, the Board will appoint a Stockholder Representative
to fill the vacancy so created and the Board will
29
recommend a vote by the Company's stockholders in favor of the ratification of
the appointment of such Person.
(d) Notwithstanding anything in this Agreement to the contrary, the
Board and all of the committees of the Board will operate in such a way to
permit the Company to comply with applicable law and maintain its listings on
the Nasdaq National Market and Euronext, as applicable.
(e) The Majority Stockholder shall have the right to assign its
rights under this Article V to Silver Lake in the event of a distribution of the
Subject Shares pursuant to Section 3.3 hereof.
ARTICLE VI. REPRESENTATIONS AND WARRANTIES
6.1. Representations and Warranties of Stockholders.
Each Stockholder hereby represents and warrants, severally and not
jointly, to the Company as follows:
(a) such Stockholder has the legal capacity to execute and deliver
this Agreement and to consummate the transactions contemplated hereby;
(b) in the case of any Stockholder that is a corporation, limited
partnership or limited liability company, such Stockholder is an entity duly
organized and validly existing under the laws of the jurisdiction in which it is
incorporated or constituted, and each such Stockholder has all requisite power
and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby, and has taken all necessary corporate action
to authorize the execution, delivery and performance of this Agreement;
(c) this Agreement has been validly executed and delivered by such
Stockholder and constitutes the legal, valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with its terms,
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of
creditors' rights generally, and (ii) the availability of the remedy of specific
performance or injunctive or other forms of equitable relief may be subject to
equitable defenses and would be subject to the discretion of the court before
which any proceeding therefor may be brought;
(d) neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will result in a violation
of, or a default under, or conflict with, any contract, trust, commitment,
agreement, understanding, arrangement or restriction of any kind to which such
Stockholder is a party or by which such Stockholder's assets are bound. The
consummation of the transactions contemplated hereby will not violate, or
require any consent, approval, or notice under, any provision of any judgment,
order, decree, statute, law, rule or regulation applicable to such Stockholder;
and
30
(e) such Stockholder acknowledges that the issuance of the Subject
Shares is expected to be effected pursuant to a registration statement on Form
S-4, and the resale of the Subject Shares may be subject to the restrictions set
forth in Rule 145 under the Securities Act unless such Subject Shares are
otherwise transferred pursuant to an effective registration statement under the
Securities Act or an appropriate exemption from registration.
6.2. Representations and Warranties of Company.
The Company hereby represents and warrants to the Stockholders as follows:
(a) the Company is a societe anonyme duly organized and validly
existing under the laws of France and has all requisite corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby, and has taken all necessary corporate action
to authorize the execution, delivery and performance of this Agreement;
(b) this Agreement has been duly authorized, executed and delivered
by the Company, and constitutes the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except
(i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting enforcement of creditors' rights
generally and (ii) the availability of the remedy of specific performance or
injunctive or other forms of equitable relief may be subject to equitable
defenses and would be subject to the discretion of the court before which any
proceeding therefor may be brought; and
(c) neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will result in a violation
of, or a default under, or conflict with, any contract, trust, commitment,
agreement, understanding, arrangement or restriction of any kind to which the
Company is a party or by which the Company's assets are bound. The consummation
of the transactions contemplated hereby will not violate, or require any
consent, approval, or notice under, any provision of any judgment, order,
decree, statute, law, rule or regulation applicable to the Company.
ARTICLE VII. MISCELLANEOUS
7.1. Effective Date.
This Agreement shall become effective upon consummation of the Mergers as
contemplated by the Merger Agreement and prior to such time shall have no force
or effect. If, the Merger Agreement is terminated prior to the Closing Date,
this Agreement shall terminate without any further action of the parties hereto
and no party shall have any liability to the other with the respect to the
provisions contained herein.
7.2. Termination.
All rights, remedies, obligations and liabilities of any party under (i)
Articles II, III and V of this Agreement shall terminate automatically at such
time the Stockholders collectively
31
Beneficially Own less than 10% of the then-outstanding Shares, and (ii) Article
IV of this Agreement shall terminate on the earlier of (x) the tenth-year
anniversary of the Closing Date, or (y) such time that all Registrable
Securities held by the Registration Rights Holders cease to be Registrable
Securities; provided, however, that Section 4.6 hereof shall survive any
termination of this Agreement.
7.3. Notices.
All notices, consents, requests, claims, demands and other communications
hereunder shall be in writing and shall be given or made (and shall be deemed to
have been duly given or made upon receipt) by delivery in person, by courier
service, by cable, by telecopy, by telegram, by telex or registered or certified
mail (postage prepaid, return receipt requested) as follows (or at such other
address for a party as shall be specified in a notice given in accordance with
this Section 7.3):
(a) if to the Company:
Business Objects, S.A.
c/o Business Objects Americas, Inc.
0000 Xxxxxxx Xxxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Telecopy: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx, Esq.
Xxxxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
(b) if to Silver Lake:
Silver Lake Partners, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxx
Telecopy: (000) 000-0000
32
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx, Esq.
Xxxxxxx Xxxxxx, Esq.
Telecopy: (000) 000-0000
(c) if to TPG:
SAC Investments, L.P.
c/o Texas Pacific Group
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Telecopy: (000) 000-0000
with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
(d) if to August:
August Capital
0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
(e) if to X.X. Xxxxxx:
33
X.X. Xxxxxx Partners, L.L.C.
00 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Telecopy: (000) 000-0000
with copies to:
X.X. Xxxxxx Partners, L.L.C.
Official Notices Clerk
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
-and-
Xxxxxx & Xxxxxxx
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
(f) if to GS:
GS Capital Partners III, L.P.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx
0000 Xxxxxxxxxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
(g) if to Staenberg:
Staenberg Venture Partners
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxx
Telecopy: (000) 000-0000
34
with a copy to:
Xxxxxx & Whitney LLP
U.S. Bank Centre
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
(h) if to Integral:
Integral Capital Partners
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telecopy: 000-000-0000
(i) if to Majority Stockholder:
New SAC
c/o Silver Lake Partners, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxxxxx X, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxx
Telecopy: (000) 000-0000
with copies to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx, Esq.
Xxxxxxx Xxxxxx, Esq.
Telecopy: (000) 000-0000
-and-
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
35
7.4. Further Assurances.
The parties hereto will sign such further documents, cause such meetings
to be held, resolutions passed, exercise their votes and do and perform and
cause to be done such further acts and things as may be necessary in order to
give full effect to this Agreement and every provision hereof.
7.5. Assignment.
This Agreement will inure to the benefit of and be binding on the parties
hereto and their respective successors and permitted assigns. Except as
specifically provided herein, this Agreement may not be assigned by any party
hereto without the express prior written consent of the other parties, and any
attempted assignment, without such consents, will be null and void.
7.6. Amendment; Waiver.
This Agreement may be amended, supplemented or otherwise modified only by
a written instrument executed by the parties hereto. No waiver by any party of
any of the provisions hereof will be effective unless explicitly set forth in
writing and executed by the party so waiving. Except as provided in the
preceding sentence, no action taken pursuant to this Agreement, including
without limitation, any investigation by or on behalf of any party, will be
deemed to constitute a waiver by the party taking such action of compliance with
any covenants or agreements contained herein. The waiver by any party hereto of
a breach of any provision of this Agreement will not operate or be construed as
a waiver of any subsequent breach.
7.7. Third Parties.
Except as otherwise set forth herein, this Agreement does not create any
rights, claims or benefits inuring to any Person that is not a party hereto nor
create or establish any third party beneficiary hereto.
7.8. Governing Law.
This Agreement will be governed by, and construed in accordance with, the
laws of the State of Delaware.
7.9. Binding Arbitration.
Any controversy, dispute or claim arising out of, in connection with, or
in relation to, the construction, performance, or breach of this Agreement shall
be adjudicated by arbitration conducted in accordance with the existing rules
for commercial arbitration of the American Arbitration Association, or any
successor organization in New York or California (the "AAA"), as determined by
the party initiating the arbitration. The demand for arbitration shall be
delivered in accordance with the notice provisions of this Agreement.
Arbitration hereunder shall be conducted by a single arbitrator selected jointly
by the parties hereto. If within thirty (30) days after a demand for arbitration
is made, the parties hereto are unable to agree on a single arbitrator, three
arbitrators shall be appointed. Each party shall select one arbitrator and those
two arbitrators shall then select within thirty (30) days a third neutral
arbitrator. If the arbitrators
36
selected by the parties cannot agree on the third arbitrator, they shall discuss
the qualifications of such third arbitrator with the AAA prior to selection of
such arbitrator, which selection shall be in accordance with the existing rules
of the AAA. If an arbitrator cannot continue to serve, a successor to an
arbitrator selected by the parties shall be also selected by the same party, and
a successor to a neutral arbitrator shall be selected as specified above. A full
rehearing will be held only if the neutral arbitrator is unable to continue to
serve or if the remaining arbitrators unanimously agree that such a rehearing is
appropriate. Any discovery in connection with arbitration hereunder shall be
limited to information directly relevant to the controversy or claim in
arbitration. Judgment upon any arbitration award rendered may be entered in any
court of competent jurisdiction. EACH PARTY HERETO UNCONDITIONALLY WAIVES TRIAL
BY JURY IN ANY SUIT, ACTION OR PROCEEDING RELATING TO THIS AGREEMENT.
7.10. Specific Performance.
Without limiting or waiving in any respect any rights or remedies of the
parties hereto under this Agreement now or hereinafter existing at law or in
equity or by statute, each of the parties hereto will be entitled to seek
specific performance of the obligations to be performed by the other in
accordance with the provisions of this Agreement, including during such time
prior to the final and binding decision in any arbitration contemplated by
Section 7.9.
7.11. Entire Agreement.
This Agreement sets forth the entire understanding of the parties hereto
with respect to the subject matter hereof.
7.12. Titles and Headings.
The section headings contained in this Agreement are for reference
purposes only and will not affect the meaning or interpretation of this
Agreement.
7.13. Severability.
If any provision of this Agreement is declared by any court of competent
jurisdiction to be illegal, void or unenforceable, all other provisions of this
Agreement will not be affected and will remain in full force and effect.
7.14. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which will be deemed to be an original and all of which together will be deemed
to be one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
37
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement or
caused this Agreement to be executed on its behalf as of the date first written
above.
BUSINESS OBJECTS S.A.
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
NEW SAC, as Majority Stockholder
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President, General
Counsel and Corporate Secretary
SILVER LAKE TECHNOLOGY INVESTORS CAYMAN, L.P.
By: Silver Lake (Offshore) AIV GP Ltd.,
its General Partner
By: /s/ Xxxxx Xxxx
------------------------------
Name: Xxxxx Xxxx
Title: Director
SILVER LAKE INVESTORS CAYMAN, L.P.
By: Silver Lake Technology Associates Cayman,
L.P., its General Partner
By: Silver Lake (Offshore) AIV GP Ltd.,
its General Partner
By: /s/ Xxxxx Xxxx
------------------------------
Name: Xxxxx Xxxx
Title: Director
SILVER LAKE PARTNERS CAYMAN, L.P.
By: Silver Lake Technology Associates Cayman,
L.P., its General Partner
By: Silver Lake (Offshore) AIV GP Ltd.,
its General Partner
By: /s/ Xxxxx Xxxx
------------------------------
Name: Xxxxx Xxxx
Title: Director
SAC INVESTMENTS, L.P.
By: TPG SAC GenPar III, L.P., its
General Partner
By: TPG SAC Advisors III Corp.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
AUGUST CAPITAL III, L.P. for itself
and as nominee for August Capital
Strategic Partners IV, L.P.
August Capital III Founders Fund, L.P. and
certain individuals thereof
By: August Capital Management III, L.L.C.,
its general partner
By: /s/ Xxxx X. Xxxxxx
------------------------------
Name: Xxxx X. Xxxxxx
Title: Member
X.X. XXXXXX PARTNERS (BHCA), L.P.
By: JPMP MASTER FUND MANAGER, its
General Partner
By: JPMP CAPITAL CORP, its General Partner
By: /s/ Xxxxxx X. Xxxx
------------------------------
Name: Xxxxxx X. Xxxx
Title: Managing Director
GS CAPITAL PARTNERS III, L.P.
By: GS Advisors III, L.L.C., its General Partner
By: /s/ Xxxxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
GS CAPITAL PARTNERS III OFFSHORE, L.P.
By: GS Advisors III, L.L.C., its General Partner
By: /s/ Xxxxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
XXXXXXX, SACHS & CO. VERWALTUNGS GmbH
By: /s/ Xxxxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Attorney-in-Fact
STONE STREET FUND 2000 L.P.
By: Stone Street 2000, L.L.C., its
General Partner
By: /s/ Xxxxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
BRIDGE STREET SPECIAL OPPORTUNITIES
FUND 2000, L.P.
By: Bridge Street Special Opportunities Fund
2000, L.L.C., its General Partner
By: /s/ Xxxxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
STAENBERG VENTURE PARTNERS II, L.P.
By: /s/ Xxx Xxxxxxxxx
------------------------------
Name: Xxx Xxxxxxxxx
Title: Managing Director
STAENBERG SEAGATE PARTNERS, LLC
By: /s/ Xxx Xxxxxxxxx
------------------------------
Name: Xxx Xxxxxxxxx
Title: Manager
INTEGRAL CAPITAL PARTNERS V, L.P.
By: Integral Capital Management V, LLC,
its General Partner
By: /s/ Xxxxx XxXxxxx
------------------------------
Name: Xxxxx XxXxxxx
Title: Manager
INTEGRAL CAPITAL PARTNERS V SIDE FUND, L.P.
By: ICP Management V, LLC, its General Partner
By: /s/ Xxxxx XxXxxxx
------------------------------
Name: Xxxxx XxXxxxx
Title: Manager
EXHIBIT A
ASSUMPTION AGREEMENT
In consideration of the transfer to (him)(her)(it) of [___] [ordinary
shares, nominal value EUR 0.10 per share] [American depositary shares, each
representing one ordinary share], of Business Objects, S.A. (the "Company"),
[_______] (the "Additional Stockholder"), and the Company agree that, as of the
date written below, Additional Stockholder shall become a party as a Stockholder
to that certain Stockholders Agreement, dated as of July 18, 2003, by and among
the Company, New SAC, Silver Lake Technology Investors Cayman, L.P., Silver Lake
Investors Cayman, L.P., Silver Lake Partners Cayman, L.P., SAC Investments,
L.P., August Capital III, L.P., X.X. Xxxxxx Partners (BHCA), L.P., GS Capital
Partners III, L.P., GS Capital Partners III Offshore, L.P., Xxxxxxx, Sachs & Co.
Verwaltungs GmbH, Stone Street Fund 0000 X.X., Xxxxxx Xxxxxx Special
Opportunities Fund 2000, L.P., Staenberg Venture Partners II, L.P., Staenberg
Seagate Partners, LLC, Integral Capital Partners V, L.P., and Integral Capital
Partners V Side Fund, L.P. (the "Stockholders Agreement"), and shall be bound by
all of the terms and provisions of the Stockholders Agreement, as such person or
entity was an original party thereto and was included in the definition of
"Stockholder" as used therein; provided, that any Additional Stockholder (other
than a Permitted Transferee (as defined in the Stockholders Agreement) who shall
have rights under Section 4.1 of the Stockholders Agreement) shall not be
entitled to any rights under Articles IV or V of the Stockholders Agreement.
Executed as of the [__] day of [______], [__]
[_______________________]
By:
Title:
