CONFIDENTIALITY AGREEMENT August 29, 2007
Exhibit
(d)(4)
August 29, 2007
Xx. Xxxxxxx Kagerimann
Chairman of the Executive Board, Chief Executive Officer
SAP AG, Walldorf, Germany
Xxxxxxx-Xxxx-Xxxxx 16
Walldorf, 69190
Chairman of the Executive Board, Chief Executive Officer
SAP AG, Walldorf, Germany
Xxxxxxx-Xxxx-Xxxxx 16
Walldorf, 69190
Dear Xx. Xxxxxxxxx;
In connection with your consideration of a possible business transaction (a “Transaction”)
with Business Objects SA (“Company”), Company and you expect to make available to one another
certain nonpublic information concerning their respective business, financial condition,
operations, assets and liabilities. As a condition to such information being furnished to each
party and its controlled subsidiaries, directors, officers, employees, agents or advisors
(including, without limitation, attorneys, accountants, consultants, bankers and financial
advisors) (collectively, “Representatives”), each party agrees to treat any nonpublic information
concerning the other party (whether prepared by the disclosing party, its advisors or otherwise and
irrespective of the form of communication) which is furnished hereunder to a party or to its
Representatives now or in the future by or on behalf of the disclosing party (herein collectively
referred to as the “Evaluation Material”) in accordance with the provisions of this Agreement, and
to take or abstain from taking certain other actions hereinafter set forth.
(1) Evaluation Material. The term “Evaluation Material” also shall be deemed
to include all notes, analyses, compilations, studies, interpretations or other documents prepared
by each party or its Representatives which contain, reflect or are based upon, in whole or in part,
the information furnished to such party or its Representatives pursuant hereto which is not
available to the general public. The term “Evaluation Material” does not include information which
(i) is or becomes generally available to the public other than as a result of a breach of this
Agreement by the receiving party or its Representatives, (ii) was within the receiving party’s
possession prior to its being furnished to the receiving party by or on behalf of the disclosing
party, provided that the source of such information was not known by the receiving party to be
bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of
confidentiality to the disclosing party, (iii) is or becomes available to the receiving party on a
non-confidential basis from a source other than the disclosing party or any of its Representatives,
provided that such source was not known by the receiving party to be bound by a confidentiality
agreement with or other contractual, legal or fiduciary obligation of confidentiality to the
disclosing party or any other party with respect to such information, (iv) is independently
developed by the recipient without use of Evaluation Material, (v) is disclosed under operation of
law, or (vi) is disclosed by the recipient or its
Representatives with the disclosing party’s prior
written approval.
(2) Purpose of Disclosure of Evaluation Material. It is understood and agreed to by
each party that any exchange of information under this Agreement shall be solely for the purpose of evaluating
a Transaction between the parties and not to affect, in any way, each party’s relative competitive position
to each party or to other entities. It is further agreed, that the information to be disclosed to each other shall
only be that information which is reasonably necessary to evaluate a Transaction and that information which is not
reasonably necessary for such purposes shall not be disclosed or exchanged. For purposes of determining when
information is reasonably necessary for such purpose, legal counsel to each party shall agree, in advance, to
review information requests so as to comply with such standard. In addition, review of competitively sensitive
information such as information concerning product development or marketing plans, product prices or pricing
plans, cost data, customers or similar information which has been determined to be reasonably necessary to
evaluate a Transaction, shall be limited only to those senior executives and Representatives who are involved in
evaluating or negotiating a Transaction or approving the value of a Transaction.
(3) Use of Evaluation Material. Each party hereby agrees that it and its
Representatives shall use the other’s Evaluation Material solely for the purpose of evaluating a possible Transaction
between the parties, and that the disclosing party’s Evaluation Material will be kept confidential and each party
and its Representatives will not disclose or use for purposes other than the evaluation of a Transaction any of the
other’s Evaluation Material in any manner whatsoever;
provided, however, that (i) the receiving party may
make any disclosure of such information to which the disclosing party gives its prior written consent and (ii) any of
such information may be disclosed to the receiving party’s Representatives who need to know such information for
the sole purpose of evaluating a possible Transaction between the parties, who are provided with a copy of this
Agreement and who are directed by the receiving party to treat such information confidentially.
(4) Non-Disclosure. In addition, each party agrees that, subject to paragraph (5)
below, without the prior written consent of the other party, its Representatives will not disclose to any other
person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are
taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts
with respect thereto (including the status thereof).
(5) Required Disclosure. In the event that a party or any of its Representatives are
requested pursuant to, or required by, applicable law or regulation (including, without limitation, any
rule, regulation or policy statement of any national securities exchange, market or automated quotation system on
which any of the party’s securities are listed or quoted) or by legal process (whether by oral questions,
interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other
similar process) to disclose any of the disclosing party’s Evaluation Material or any other information concerning
the other party or the Transaction, the party requested or required to make the disclosure shall provide the
disclosing party with prompt notice of such request or requirement in order to enable the disclosing party (i) to
seek an appropriate protective order or other remedy, (ii) unless prohibited by law, to consult with the party
requested or required to make the disclosure with respect to the disclosing party taking steps to resist or narrow the
scope of such request or legal process or (iii) to waive compliance with the terms of this Agreement If, in the
absence of a protective order or other remedy or the receipt of a waiver by the disclosing party, the party requested
or required to make the disclosure or any of its Representatives are nonetheless, in the opinion of counsel,
legally compelled to disclose the other party’s Evaluation Material, the party requested or required to make the
disclosure or its Representative may, without liability hereunder, disclose only that portion of the disclosing
party’s Evaluation Material which such counsel advises is legally required to be disclosed, provided that the
party requested or required to make the disclosure exercises its reasonable efforts to preserve the
confidentiality of the disclosing party’s Evaluation Material, including, without limitation, by cooperating with the disclosing
party to obtain an
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appropriate protective order or other reliable assurance that confidential treatment will be
accorded the other party’s Evaluation Material.
(6) Termination of Discussions. If either party decides that it does not wish to
proceed with a Transaction with the other party, the party so deciding will promptly inform the other party
of that decision by giving a written notice of termination. In that case, or at any time upon the request of
either disclosing party for any reason, each receiving party will promptly deliver to the disclosing party or destroy all
written Evaluation Material (and all copies thereof and extracts therefrom) furnished to the receiving party or
its Representatives by or on behalf of the disclosing party pursuant hereto. In the event of such a decision or
request, all other Evaluation Material prepared by the receiving party shall be destroyed and no copy thereof
shall be retained, and in no event shall either party be obligated to disclose or provide the Evaluation Material
prepared by it or its Representatives to the other party. Upon request of the disclosing party, a duly authorized
representative of the receiving party shall certify to the disclosing party any such destruction pursuant to the
preceding two sentences. Notwithstanding the return or destruction of the Evaluation Material, each party and its
Representatives will continue to be bound by its obligations of confidentiality and other obligations hereunder.
(7) No Representation of Accuracy. Each party understands and acknowledges that
neither party nor any of its Representatives makes any representation or warranty, express or implied, as to
the accuracy or completeness of the Evaluation Material made available by it or to it. Each party agrees that
neither party nor any of its Representatives shall have any liability to the other party or to any of its
Representatives relating to or resulting from the use of or reliance upon such other party’s Evaluation Material or any
errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive
agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may
be specified therein, will have any legal effect.
(8) Definitive Agreements. Unless explicitly agreed in a signed writing and with
reference to this agreement, each party understands and agrees that no contract or agreement providing for any
Transaction involving the parties shall be deemed to exist between the parties unless and until a final
definitive agreement has been executed and delivered. Each party also agrees that unless and until a final definitive
agreement regarding a Transaction between the parties has been executed and delivered, neither party will be under
any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except
for the matters specifically agreed to herein. For purposes of this paragraph, the term “definitive agreement”
does not include an executed letter of intent or any other preliminary written agreement. Both parties further
acknowledge and agree that each party reserves the right, in its sole discretion, to provide or not provide
Evaluation Material to the receiving party under this Agreement, to reject any and all proposals made by the other party
or any of its Representatives with regard to a Transaction between the parties, and to terminate discussions
and negotiations at any time.
(9) Standstill. For a period commencing with the date of this Agreement and ending on
the first anniversary of the date of this Agreement (the “Standstill Period”), each party and its
Representatives shall not, without the prior written consent of the
other party (the “Target”) or its board of directors:
(a) acquire, publicly offer to acquire, or agree to acquire, directly or indirectly, by
purchase or otherwise, any Voting Securities (as defined below) or direct or indirect rights to
acquire any Voting Securities of the Target or any of its subsidiaries, or of any successor to or
person in control of the Target, or any assets of other party or any subsidiary or division of the
Target or of any such successor or controlling person;
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(b) make, or in any way participate, directly or indirectly, in any “solicitation” of
“proxies” to vote (as such terms are used in Regulation 14A promulgated under the United States Securities
Exchange Act of 1934, as amended (the “Exchange Act”), or seek to advise or influence any person or entity
with respect to the voting of any Voting Securities of the Target;
(c) form, join or in any way participate in a 13D Group (as defined below), in connection with
any of the foregoing;
(d) take any action that could reasonably be expected to require the Target to make a
public announcement regarding the possibility of any of the events described in clauses (a)
through (c) above; or
(e) publicly request the Target or any of its Representatives, directly or indirectly, to
amend or waive any provision of this paragraph.
Notwithstanding the foregoing, if, at any time during the Standstill Period,
(i) any person or 13D Group (other than any person or 13D Group which includes the
party or its Representatives) acquires beneficial ownership of Voting Securities of such party
representing 20% or more of the then outstanding Voting Securities of the Target;
(ii) any person or 13D Group (other than any person or 13D Group which includes the
party or its Representatives) announces or commences a tender or exchange offer to acquire Voting
Securities of the Target which, if successful, would result in such person or 13D Group owning,
when combined with any other Voting Securities of such party owned by such person or 13D Group, 20%
or more of the then outstanding Voting Securities of the Target;
(iii) the Target enters into, or resolves to enter into, any merger, sale or other
business combination transaction pursuant to which the outstanding shares of common stock of the
Target would be converted into cash and/or securities and/or property of another person or 13D
Group or 50% or more of the then outstanding shares of common stock of the Target would be owned by
persons other than the then current holders of shares of common stock of the Target, or which would
result in all or a substantial portion of the Target’s assets being sold to any person or 13D
Group;
then the Standstill Period shall immediately terminate with respect to such party and the
provisions of subparagraphs (a) through (e) shall no longer be applicable to such party. For
purposes hereof, “Voting Securities” shall mean, with respect to each party hereto, at any time
shares of any class of capital stock of such party which are then entitled to vote generally in the
election of directors; provided, that for purposes of this definition any securities which at such
time are convertible or exchangeable into or exercisable for shares of common stock of such party
shall be deemed to have been so converted, exchanged or exercised. For purposes hereof, “13D Group”
shall mean, with respect to the Voting Securities of each party hereto, any group of persons formed
for the purpose of acquiring, holding, voting or disposing of such Voting Securities which would
require under Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder to file a statement on Schedule 13D with the Securities and Exchange Commission as a
“person” within the meaning of Section 13(d)(3) of the Exchange Act if such group beneficially
owned Voting Securities representing more than 5% of the total combined voting power of all such
Voting Securities then outstanding.
(10) Non-Solicit. For a period commencing with the date of this Agreement and
ending on the first anniversary of the date of this Agreement, each party and its Representatives
will not (and each party and its
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Representatives will not assist or encourage others to), directly or indirectly, without the prior
consent of other party, solicit for employment or employ any person who is employed in a
vice-president or more senior position by the other party or its subsidiaries; provided, however,
that the term “solicit for employment” shall not be deemed to include general solicitations of
employment not specifically directed toward employees of the other party
(11) Securities Laws. Each party is aware, and will advise its Representatives who are
informed of the matters that are the subject of this Agreement, of the restrictions imposed by the
applicable securities laws on the purchase or sale of securities by any person who has received material, non-public
information from the issuer of such securities and on the communication of such information to any other person when it is
reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance
upon such information.
(12) Waiver. It is understood and agreed that no failure or delay by either party
in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right,
power or privilege hereunder.
(13) Miscellaneous. Each party agrees to be responsible for any breach of this
Agreement by any of its Representatives. In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not
in any way be affected or impaired thereby.
(14) Injunctive Relief. It is further understood and agreed that money damages would
not be a sufficient remedy for any breach of this Agreement by either party or any of its
Representatives and that the non-breaching party shall be entitled to equitable relief, including injunction and specific
performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach
of this Agreement but shall be in addition to all other remedies available at law or equity. In the event of
litigation relating to this Agreement, if a court of competent jurisdiction determines that either party or any of its
Representatives have breached this Agreement, then the breaching party shall be liable and pay to the non-breaching
party the reasonable legal fees incurred in connection with such litigation, including an appeal
therefrom.
(15) Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware applicable to agreements made and to be performed within such
State.
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Please confirm your agreement with the foregoing by signing and returning one copy of this
Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between you
and Company.
| Very truly yours, BUSINESS OBJECTS SA |
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| /s/ XXXX XXXXXXX | ||||
| Xxxx Xxxxxxx Chief Executive Officer |
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| Accepted and agreed as of the date first written
above: SAP AG |
|||||
| /s/ XXXXXXX XXXXXXXXX | |||||
| Xxxxxxx Xxxxxxxxx Chairman of the Executive Board, Chief Executive Officer |
|||||
| /s/ XX. XXXXXX XXXXXX | |||||
| Signature | |||||
| XX. XXXXXX XXXXXX | |||||
| Name | |||||
| CHIEF FINANCIAL OFFICER | |||||
| Title | |||||
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