BUSINESS OBJECTS S.A. FORM OF STOCK SUBSCRIPTION WARRANTS AGREEMENT
Exhibit 10.84
The terms and conditions of the warrants (“the Warrants”) which give right to subscribe to a
maximum of ___ ordinary shares of 0.10 euro nominal value each of Business Objects S.A., a société
anonyme organized under the laws of French Republic (the “Company”) have been set by the Company’s
board of directors at its meeting held on June 5, 2007.
This stock subscription warrants agreement and its exhibits (the “Agreement”) is made by and
between the Company and Mr. ___(the “Holder”). For good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as set forth below.
1. General
The Holder, any subsequent holder or assigns as further defined hereunder, is entitled to subscribe
from the Company, a maximum of ___ ordinary shares of 0.10 euro nominal value each of the Company
(“the Shares”), subject to adjustment in accordance with the terms and conditions fixed by the
Company’s board of directors on June 5, 2007, at an exercise price of 29.99 euros per Share,
subject to adjustment in accordance with the terms and conditions fixed by the Company’s board of
directors on June 5, 2007, (the “Exercise Price”), and subject to the vesting provisions of section
2 hereof. These ___ Warrant Shares are underlying to the Warrants granted and issued by the
Company’s board of directors at the meeting held on June 5, 2007, in accordance to the
authorization granted by the shareholders of the Company at the general shareholders’ meeting held
on June 5, 2007.
2. Exercise period and vesting schedule
(a) To the extent the Warrants have then vested pursuant to Section 2(b) below, they shall be
exercisable in whole or in part by the Holder hereof, provided however that upon termination of the
office of the Holder as director of the Company, these Warrants shall remain exercisable for a
period of 90 days.
(b) [Xx. Xxxxxxxxx, Xx. Xxxxxxx and Xx. Xxxx] These Warrants may be exercised for up to 15,000
Shares on or after June 1, 2008, up to an additional 15,000 Shares on or after June 1, 2009, and up
to an additional 15,000 Shares on or after June 1, 2010.
(b) [Xx. Xxxxxxxxxx] These Warrants may be exercised for up to 15,000 Shares on or after June
1, 2009 and up to an additional 15,000 Shares on or after June 1, 2010.
(b) [Xx. Xxxxxxxxxxxx] These Warrants may be exercised for up to 15,000 Shares on or after
July 1, 2007, up to 15,000 Shares on or after June 1, 2008 and up to an additional 15,000 Shares on
or after June 1, 2009.
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(c) These Warrants may be exercised in one or several times, but at the latest on the earlier
of the two following dates : (i) on June 5, 2014, or (ii) in case of termination of the term of
office as director of the Company, within 90 days following such termination date.
(d) On the 91st day following such termination of his office as director of the
Company, the Holder agrees to sell to the Company any and all non-exercised Warrants for an
aggregate price of 1 euro and the Company agrees to purchase such non-exercised Warrants for an
aggregate price of 1 euro. The Holder hereby grants on his behalf and on behalf of any assignee of
the Holder, all power and authority to the Company to register in its books the transfer of all
such non-exercised warrants as from the 91st day following the termination referred to
in paragraph (c) above. Then the Company’s board of directors will cancel such repurchased
non-exercised Warrants.
3. Exercise of Warrants.
The Warrants may be exercised by the Holder hereof, in accordance with section 2 hereof, by
(i) notification of exercise by registered mail to the Company together with a share subscription
form (bulletin de souscription) in the form attached hereto, duly completed and signed by the
Holder and (ii) full payment of the Exercise Price for the Shares to be issued with respect to
which the Warrants are exercised. The exercise Price may be paid exclusively in euros, in cash, by
check or by wire transfer. The Warrants shall be deemed exercised on the date on which the Company
receives payment of the Exercise Price irrespective of the date of delivery of the notification of
exercise and/or the subscription form. Any applicable taxes shall be the sole responsibility of the
Holder and not of the Company.
4. Adjustment of Warrants .
The Company may from the date of issuance of the Warrants and in accordance with article L.
228-98 of the French Commercial Code, modify its form and its corporate purpose without needing to
obtain the prior consent of the Holder at a general meeting of the warrant holders.
In accordance with article L. 228-98 of the French Commercial Code, the Company may modify the
rules governing the allocation of profits or redeem its share capital without needing to obtain the
prior consent of the Holder at a general meeting of the warrant holders, provided that the Company
takes the necessary measures in order to maintain the rights of the Holder pursuant to the
conditions described below.
In the event of a reduction of the Company’s share capital resulting from losses, whether by
way of a reduction in the nominal value or the number of Shares composing the share capital, the
rights of the Holder to receive Shares will be reduced accordingly, as if the Holder had exercised
his rights prior to the date at which the reduction of share capital has become definitive.
In the event the Company carries out any of the following transactions after the date of
issuance of the Warrants:
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| • | Issuance, under any form, of new equity securities with preferential subscription rights in favour of its shareholders; | ||
| • | allocation of free Shares; | ||
| • | distribution of reserves in cash or in kind or of share premiums | ||
| • | modification of the allocation of profits; | ||
| • | redemption of capital; | ||
| • | repurchase of its own Shares at a price higher than the market price; or | ||
| • | takeover, merger, or spin-off; |
the Company will maintain the rights of the Holder, in accordance with articles L. 228-99, L.
228-101 and R.228-87 et seq. of the French Commercial Code by means of an adjustment of the
conditions of subscription according to the conditions described hereafter.
This adjustment will be realized in such a manner as to equalize the value of the Shares that will
be obtained upon exercise of the right after the completion of the transaction with the value of
the Shares that would have been obtained upon exercise of the Warrants prior to the transaction.
In the event of adjustments carried out in accordance with paragraphs a) to g) hereafter, the new
conversion ratio will be calculated to the nearest hundredth of a Share (with 0.005 being rounded
to the nearest superior cent). Any subsequent adjustments will be carried out on the basis of a
newly calculated and rounded conversion ratio. However, since the exercise of the Warrants may
only result in the delivery of a whole number of Shares, fractional entitlements will be settled as
specified hereafter.
To this effect, the new basis for the exercise of Warrants will be calculated by taking into
account the following:
| a) | In the event of a transaction conferring a preferential subscription right, the formula: |
| Price of the subscription right | ||||
| Share price ex-subscription right |
| For the purposes of calculating this formula, the price of the Share ex-subscription right and the price of the subscription right will be determined on the basis of the average of the opening prices quoted on Eurolist by Euronext TM for all stock exchange trading days falling in the subscription period. | |||
| b) | In the event of an allocation of free Shares: the number of Shares allocated to each existing Share. | ||
| c) | In the event of a distribution of reserves in cash or in kind, or of share premiums, the formula: |
| Amount distributed per Share | ||||
| Share price prior to the distribution |
For the purposes of calculating this formula, the Share price prior to the distribution
will be equal to the weighted average of the market prices on Eurolist by Euronext
TM of at least the three stock exchange trading days immediately preceding
the date of the distribution.
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| d) | In the event of a modification of the allocation of profits, the formula: |
| Reduction per Share in the right to profits | ||||
| Share price prior to the modification |
| For the purposes of calculating this formula, the Share price prior to the modification of the allocation of profits will be equal to the weighted average of the market prices on Eurolist by Euronext TM of at least the three stock exchange trading days immediately preceding the date of the modification. | |||
| e) | In case of a redemption of share capital, the formula: |
| Amount per Share of the redemption | ||||
| Share price prior to the redemption |
| For the purposes of calculating this formula, the Share price prior to the redemption will be equal to the weighted average of the market prices on Eurolist by Euronext TM of at least the three stock exchange trading days immediately preceding the date of the redemption. | |||
| f) | In the event of a buy-back by the Company of its own Shares at a price higher than the market price, the formula: |
| Pc % x (buy-back price minus Share price) | ||||
| Share price |
For the purposes of calculating this formula:
| - | “Share price” means the weighted average of the market prices on Eurolist by Euronext TM of at least the three stock exchange trading days immediately preceding the buy-back (or the option to buy-back); | ||
| - | “Pc %” means the percentage of capital bought back; | ||
| - | “buy-back price” means the actual price at which the Shares are bought back (by definition, this will be higher than the market price). |
| g) | In the event that the Company is taken over by another company (absorption) or is merged with one or more companies to form a new company (fusion) or is spun-off (scission), the Holder will be entitled to subscribe to shares of the acquiring company, new company, or the beneficiary companies of a spin-off on the same terms as initially provided. | ||
| The number of shares of the acquiring company or companies, new company or companies, or the beneficiary companies of a spin-off to which the Holder is entitled will be determined by adjusting the number of shares of the issuing company to which they were entitled according to the number of shares to be created by the company or the companies benefiting from the capital contribution. |
In the event that the Company carries out transactions for which an adjustment pursuant to
paragraphs a) to g) heretofore was not carried out and that a subsequently enacted French laws or
regulation would require an adjustment, or in the event that a future French law or regulation
would modify the adjustments described above, the Company will carry out such
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an adjustment in accordance with the applicable laws and regulations, taking into account the
relevant market practices in effect in France at the time.
The Company’s board of directors shall report on the components of the calculation and on the
results of any adjustment in the first annual report following such adjustment.
In the event of fractional entitlements, Holder will obtain the nearest whole number of Shares
inferior to his entitlement and the Company will pay the fractional entitlements in cash.
5. Non transferability of Warrants.
(a) Except as provided in sub-section (b) below, the Holder hereby agrees not to sell, pledge,
hypothecate, transfer, or dispose of the Warrants of in any manner other than by will or laws of
descent or distribution and that the Warrants may be exercised, during the lifetime of the Holder,
only by the Holder.
(b) The transfer of these Warrants to the Holder’s Immediate Family (as definded below) shall
be exempt from the provisions of section 5(a), provided however that the transferee agrees to be
bound by and comply with the provisions of this Agreement, and signs a consent in the form attached
hereto. « Immediate Family » as used herein shall mean the spouse, a direct descendant or
ascendant, a brother or a sister of the Holder.
(c) This Agreement is not transferable by endorsement or any other means and does not
constitute evidence of ownership. If and when allowed, assignment of all or part of these Warrants
may only be completed by notifying the form of assignment attached hereto, duly completed and
signed by the Holder.
6. Merger or public offer
In the event of merger of the Company, the Holder of the Warrants will be notified and given the
same information as if he was a shareholder in order to make an investment decision as to whether
to exercise his vested Warrants. Moreover, in the event of a merger or a public offer on the Shares
of the Company, in case of unvested Warrants, the Company’s board of directors may, in its sole
discretion and as an exception to section 2(b) hereof, decide to accelerate the vesting date for
exercise the Warrants before the vesting date specified in section 2(b) above.
7. Applicable law.
These Warrants and this Agreement are subject to the laws of the French Republic.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on ___.
All signed copies of this Agreement shall be deemed originals.
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By: Xxxx Xxxxxxx |
||||||
Chief Executive Officer |
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FORM OF SUBSCRIPTION
[to be signed upon exercise of Warrants]
[to be signed upon exercise of Warrants]
BUSINESS OBJECTS S.A.
Société anonyme
with a share capital of 9,603,885.60 euros
Registered office : 000-000 xxx Xxxxxxx Xxxxxx
92300 Levallois-Perret
R.C.S. Nanterre B 379 821 994
Société anonyme
with a share capital of 9,603,885.60 euros
Registered office : 000-000 xxx Xxxxxxx Xxxxxx
92300 Levallois-Perret
R.C.S. Nanterre B 379 821 994
I, the undersigned, Holder of Warrants in total, the issue of which was
decided by the Company’s board of directors at its meeting held on June 5, 2007 in accordance to
the authorization granted by the Shareholders of the Company at the general shareholders’ meeting
held on June 5, 2007 for an Exercise Price of euros per Share, hereby elects to
exercise Warrants and to subscribe Company’s Shares of 0.10 euro
nominal value each, and herewith makes payment of euros.
The undersigned requests that the confirmation for such Shares be issued in the name of and
delivered to
Whose address is
.
Made on this __________ day of ______________, ____________
By
| [above signature, please handwrite “Valid for subscription of shares.”] | ||
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FORM OF ASSIGNMENT AND CONSENT
[to be signed upon transfer of Warrants]
[to be signed upon transfer of Warrants]
I, the undersigned, Holder of Warrants in total, the issue of which was
decided by the Company’s board of directors at its meeting held on June 5, 2007 in accordance to
the authorization granted by the Shareholders of the Company at the general shareholders’ meeting
held on June 5, 2007 for an Exercise Price of euros per Share, hereby elects transfers
to , who is qualified as an Immediate Family member in his/her capacity as,
pursuant to the terms and conditions of the section 5 of the stock subscription warrant agreement.
Made on this __________ day of ______________, ____________
Signature of the Holder
Name
Address
* * *
I, the undersigned, [spouse, father, mother, son, daughter, brother, sister, etc] of ___, hereby
agree to be bound by, and comply with, the provisions of the Stock Subscription Agreement signed on
between Business Objects and ___.
Made on this __________ day of ______________, ____________
Signature of [spouse, father, mother, son, daughter, brother, sister, etc]
Name
Address
Agreed by Business Objects S.A.
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