Exhibit 2.5
FORM OF VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement"), is entered into as of July 18,
2003 by and among Business Objects S.A., a societe anonyme organized under the
laws of the Republic of France ("Parent"), Crystal Decisions, Inc., a Delaware
corporation (the "Company"), and the undersigned stockholder of Parent, as an
individual (the "Stockholder"). Capitalized terms used in this Agreement but not
otherwise defined shall have the meanings ascribed to them in the Merger
Agreement (defined below).
RECITALS
WHEREAS, concurrently with the execution and delivery of this Agreement,
Parent, Borg Merger Sub I, Inc., a Delaware corporation and a direct
wholly-owned subsidiary of Parent ("Merger Sub 1"), Borg Merger Sub II, Inc., a
Delaware corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub
2"), Borg Merger Sub III, Inc., a Delaware corporation and a direct wholly-owned
subsidiary of Parent ("Merger Sub 3"), Seagate Software (Cayman) Holdings, an
exempted company incorporated in the Cayman Islands ("HoldCo"), and the Company
are entering into an Agreement and Plan of Merger (the "Merger Agreement")
pursuant to which (1) Merger Sub 1 will merge with and into HoldCo (the "HoldCo
Merger"), (2) immediately following the HoldCo Merger, the surviving corporation
of the HoldCo Merger will merge with and into Merger Sub 2 (the "Second HoldCo
Merger"), (3) immediately following the Second HoldCo Merger, Merger Sub 3 will
merge with and into the Company (the "Company Merger"), and (4) 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");
WHEREAS, the Stockholder beneficially owns (as such term is defined
pursuant to Rule 13d-3(a) promulgated under the Securities Exchange Act of 1934,
as amended), such number of Parent's ordinary shares, nominal value EUR 0.10 per
share (whether held in the form of American depositary receipts or ordinary
shares, the "Parent Stock"), and holds options to purchase such number of shares
of Parent Stock, as indicated next to the Stockholder's signature on the
signature page to this Agreement;
WHEREAS, as a condition and inducement to the Company's willingness to
enter into the Merger Agreement, the Stockholder is entering into this Agreement
to vote all shares of Parent Stock beneficially owned by the Stockholder,
whether owned as of or acquired after the date of this Agreement (the "Subject
Shares"), in the manner specified in Section 1 of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the covenants,
agreements, representations and warranties set forth herein, intending to be
legally bound, the parties agree as follows:
Section 1. Voting of Subject Shares. At any meeting (whether annual
or special and whether or not an adjourned or postponed meeting) of Parent's
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stockholders, however called, or in connection with any action or approval by
written consent of Parent's stockholders, Stockholder will, in the event that
Parent is unable to vote all Subject Shares pursuant to the irrevocable proxy in
the form attached hereto as Annex I (the "Proxy") at the meeting, appear at the
meeting or otherwise cause all Subject Shares to be counted as present thereat
for purposes of establishing a quorum and vote or consent (or cause to be voted
or consented) all Subject Shares:
(a) in favor of the Parent Proposals and such other matters as
Parent reasonably believes are necessary to be approved under applicable law to
consummate the Mergers and the other transactions contemplated by the Merger
Agreement in accordance with the terms of the Merger Agreement; and
(b) against any actions (other than those actions that relate
to the Mergers and the other transactions contemplated by the Merger Agreement)
that would materially adversely affect the ability of Parent to consummate the
Mergers without material delay.
The Stockholder further agrees not to enter into any agreement or understanding
with any person to vote or give instructions in any manner inconsistent with or
violative of the terms of this Section 1.
Section 2. Transfer of Subject Shares. Except as otherwise
contemplated by the Merger Agreement or this Agreement, from and after the date
of this Agreement until the termination of this Agreement pursuant to Section 6,
the Stockholder will not, directly or indirectly, without the prior written
consent of the Company:
(a) offer for sale, sell, transfer, tender, pledge, encumber,
assign or otherwise in any way dispose of, or enter into any contract, option or
other arrangement or understanding with respect to or consent to the offer for
sale, sale, transfer, tender, pledge, encumbrance, assignment or any other
disposition of, any or all of the Subject Shares, or any interest therein;
(b) grant any proxy or powers of attorney, deposit any of the
Subject Shares into a voting trust or enter into a voting agreement with respect
to any of the Subject Shares;
(c) take any action that would reasonably be expected to have
the effect of preventing or disabling the Stockholder from performing its
obligations under this Agreement or making any representation or warranty of the
Stockholder contained in this Agreement untrue or incorrect; or
(d) enter into any agreement or arrangement providing for any
of the actions described in clause (a), (b) or (c) above;
provided, however, nothing in this Agreement shall be deemed to prohibit or
restrict any sale or other disposition of any of the Subject Shares pursuant to
the terms of a trading plan adopted pursuant to Rule 10b5-1 under the Securities
Exchange Act of 1934, as amended, in effect prior to the date hereof.
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Section 3. Representations and Warranties. The Stockholder hereby
represents and warrants to the Company as follows:
(a) Ownership. The Stockholder is, and, subject to the proviso
in Section 2, at all times prior to the termination of this Agreement in
accordance with Section 6 of this Agreement will be, the beneficial owner of the
Subject Shares. The Subject Shares constitute all of the issued and outstanding
shares of Parent capital stock owned of record or beneficially owned by the
Stockholder. Subject to the community property laws, the Stockholder has the
sole power to agree to all of the matters set forth in this Agreement, in each
case with respect to all of the Subject Shares, with no limitations,
qualifications or restrictions on such power, subject to applicable securities
laws and the terms of this Agreement. As of the date hereof, Stockholder does
not beneficially own any securities of Parent other than Parent Stock and
options to purchase such number of shares of Parent Stock, as indicated next to
the Stockholder's signature on the signature page to this Agreement.
(b) Power; Binding Agreement. The Stockholder has all
requisite legal capacity, power and authority to enter into and perform all of
its obligations under this Agreement. This Agreement has been duly and validly
executed and delivered by the Stockholder and constitutes a valid and binding
agreement of the Stockholder, enforceable against the Stockholder in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally and by general equitable principles. There is no beneficiary or
holder of a voting trust certificate or other interest of any trust of which the
Stockholder is trustee whose consent is required for the execution and delivery
of this Agreement or the consummation by the Stockholder of the transactions
contemplated hereby.
(c) No Encumbrances. All of the Subject Shares are, and, at
all times prior to the termination of this Agreement in accordance with Section
6 will be, held by the Stockholder free and clear of any Encumbrance, except as
may be created hereby.
Section 4. Irrevocable Proxy. Concurrently with the execution of
this Agreement, Stockholder agrees to deliver to Parent the Proxy, which shall
be irrevocable to the fullest extent permitted by applicable law, with respect
to the Securities.
Section 5. Further Assurances. From time to time, at the Company's
reasonable request and without further consideration, the Stockholder will
perform such further acts and execute and deliver such additional documents as
may be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Agreement.
Section 6. Termination. This Agreement will terminate upon the
earlier to occur of (i) the date on which the Merger Agreement is terminated in
accordance with the provisions of Section 10.1 of the Merger Agreement, (ii) the
Effective Time and (iii) the mutual agreement in writing of the parties hereto
to terminate this Agreement. Following termination, this Agreement will be of no
further force and effect except that
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nothing herein will relieve any party from liability for any material breach of
this Agreement.
Section 7. Stock Splits, Dividends, Etc. The Subject Shares shall be
deemed to include any shares of Company Common Stock 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.
Section 8. Miscellaneous.
(a) Amendments. This Agreement may not be amended, altered,
supplemented or otherwise modified or terminated except upon the execution and
delivery of a written agreement executed by the parties hereto.
(b) Notices. All notices and other communications hereunder
will be in writing and will be deemed duly given (i) on the date of delivery if
delivered personally, (ii) on the date of confirmation of receipt (or, the first
business day following such receipt if the date is not a business day) of
transmission by telecopy or telefacsimile, or (iii) on the date of confirmation
of receipt (or, the first business day following such receipt if the date is not
a business day) if delivered by a nationally recognized courier service. All
notices hereunder will be delivered as set forth below, or pursuant to such
other instructions as may be designated in writing by the party to receive such
notice:
(i) if to the Stockholder, to:
Xxxxxxx Xxxxxxxx
c/o Business Objects S.A.
Business Objects Americas, Inc.
0000 Xxxxxxx Xxxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Xxxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) if to Parent:
Business Objects S.A.
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Business Objects Americas, Inc.
0000 Xxxxxxx Xxxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Xxxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(iii) if to the Company, to:
Crystal Decisions, Inc.
000 Xxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Crystal Decisions, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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(c) Counterparts. This Agreement may be executed in two or
more counterparts, and by facsimile, all of which will be considered one and the
same agreement and will become effective when one or more counterparts have been
signed by each of the parties and delivered to the other party, it being
understood that all parties need not sign the same counterpart.
(d) Entire Agreement; Third Party Beneficiaries. This
Agreement and the documents and instruments and other agreements among the
parties hereto as contemplated by or referred to herein, including the exhibits
hereto, (i) constitute the entire agreement among the parties with respect to
the subject matter hereof and supersede all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof, and (ii) are not intended to confer upon any other person any rights or
remedies hereunder.
(e) Severability. In the event that any provision of this
Agreement or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the application of
such provision to other Persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further agree
to replace such void or unenforceable provision of this Agreement with a valid
and enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of such void or unenforceable provision.
(f) Specific Performance. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties will be entitled
to seek an injunction or injunctions to prevent breaches of this Agreement and
to enforce specifically the terms and provisions hereof in any court of the
United States or any state having jurisdiction, this being in addition to any
other remedy to which they are entitled at law or in equity.
(g) Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
law thereof.
(h) Rules of Construction. The parties hereto agree that they
have been represented by counsel during the negotiation and execution of this
Agreement and, therefore, waive the application of any law, regulation, holding
or rule of construction providing that ambiguities in an agreement or other
document will be construed against the party drafting such agreement or
document.
(i) Assignment. This Agreement may not be assigned by any of
the parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties. Subject to the preceding sentence, but
without relieving any party hereto of any obligation hereunder, this Agreement
will be binding upon, inure to
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the benefit of and be enforceable by the parties and their respective successors
and assigns.
(j) No Waiver; Remedies Cumulative. No failure or delay on the
part of any party hereto in the exercise of any right hereunder will impair such
right or be construed to be a waiver of, or acquiescence in, any breach of any
representation, warranty or agreement herein, nor will any single or partial
exercise of any such right preclude other or further exercise thereof or of any
other right. Any and all rights and remedies existing under this Agreement are
cumulative to, and not exclusive to, and not exclusive of, any other right or
remedy otherwise available.
(k) Descriptive Heading. The descriptive headings used herein
are for reference purposes only and will not affect in any way the meaning or
interpretation of this Agreement.
(l) Expenses. All costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such expenses.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized respective officers as of the date first
written above.
By:
---------------------------------
Name:
as the Stockholder
Shares beneficially owned:
shares of Parent Stock
------------
shares of Parent Stock
------------
issuable upon the exercise of options
BUSINESS OBJECTS S.A
By:
---------------------------------
Name:
Title:
CRYSTAL DECISIONS, INC.
By:
---------------------------------
Name:
Title:
[SIGNATURE PAGE TO VOTING AGREEMENT]
ANNEX I
IRREVOCABLE PROXY
The undersigned Stockholder of Business Objects S.A., a societe anonyme
organized under the laws of the Republic of France ("Parent"), hereby
irrevocably (to the fullest extent permitted by applicable law) appoints Xxxx
Xxxxx and Xxxxx X. Xxxxx and each of them individually, as the sole and
exclusive attorneys and proxies of the undersigned, with full power of
substitution and re-substitution, to the full extent of the undersigned's right,
with respect to the Subject Shares (as defined in the Voting Agreement dated as
of the date hereof (the "Voting Agreement") between Parent, Crystal Decisions,
Inc., a Delaware corporation (the "Company"), and the undersigned Stockholder)
until the termination of the Voting Agreement pursuant to its terms. Capitalized
terms used and not defined herein have the respective meanings ascribed to them
in the Voting Agreement. Upon the execution hereof, all prior proxies given by
the undersigned with respect to the matters set forth in clauses (a) and (b)
below are hereby revoked and no subsequent proxies will be given.
This proxy is irrevocable to the fullest extent permitted by applicable
law, is granted pursuant to the Voting Agreement and is granted in consideration
of Parent entering into the Merger Agreement. This proxy is executed and
intended to be irrevocable to the fullest extent permitted by law in accordance
with the provisions of Section 212(c) of the Delaware General Corporation Law.
The attorneys and proxies named above are empowered to exercise all voting
rights (including, without limitation, the power to execute and deliver written
consents with respect to the Subject Shares) of the undersigned at any time
prior to termination of the Voting Agreement at every annual, special or
adjourned meeting of the stockholders of Parent and in every written consent in
lieu of such meeting as follows:
(a) in favor of the Parent Proposals and such other matters as
Parent reasonably believes are necessary to be approved under applicable law to
consummate the Mergers and the other transactions contemplated by the Merger
Agreement in accordance with the terms of the Merger Agreement; and
(b) against any actions (other than those actions that relate
to the Mergers and the other transactions contemplated by the Merger Agreement)
that would materially adversely affect the ability of Parent to consummate the
Mergers without material delay.
The attorneys and proxies named above may not exercise this Proxy on any
other matter except as provided in clauses (a) and (b) above. The undersigned
Stockholder may vote the Subject Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This Proxy is coupled with an interest and is irrevocable to the fullest
extent permitted by law.
Dated: July __, 2003 Signature of Stockholder:
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Print Name of Stockholder:
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[SIGNATURE PAGE TO ANNEX I OF THE VOTING AGREEMENT,
IRREVOCABLE PROXY]
