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EXHIBIT 1.1
BUSINESS OBJECTS S.A.
FORM OF UNDERWRITING AGREEMENT
Offering of Ordinary
Shares of Business Objects S.A.
Dated as of November [2], 1999
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UNDERWRITING AGREEMENT
BETWEEN:
BUSINESS OBJECTS S.A., a limited liability company (societe anonyme) having its
principal executive offices at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇,
▇▇▇▇▇▇ (hereinafter the "Issuer"),
AND:
PARIBAS, having its registered office at ▇ ▇▇▇ ▇'▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇,
(hereinafter "Paribas");
▇▇▇▇▇▇▇ SACHS INTERNATIONAL, having its registered office at Peterborough
Court, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, (hereinafter "GSI"); and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ INC. ET CIE, having its registered office at ▇ ▇▇▇ ▇▇
▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ (hereinafter "▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇")
(Paribas and GSI being hereinafter collectively referred to as the
"International Underwriters" and each individually as an "International
Underwriter", Paribas and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ being hereinafter collectively
referred to as the "French Underwriters" and each individually as a "French
Underwriter", and the International Underwriters and the French Underwriters
being hereinafter collectively referred to as the "Underwriters" and each
individually as an "Underwriter").
WHEREAS:
The issued share capital of the Issuer currently amounts to FF[ ]
represented by [ ] ordinary shares, nominal value FF[ ] per share.
Under the articles of association (statuts) of the Issuer and a resolution duly
passed by the shareholders at an extraordinary general meeting of the Issuer
held on June 18, 1998, the board of directors of the Issuer has full power and
authority to issue up to 15,000,000 ordinary shares with a nominal value of one
French franc (the "Shares") and is not required to offer such shares first to
existing shareholders of the Issuer.
The Issuer has appointed Paribas as sponsor (etablissement introducteur) and
▇▇▇▇▇▇▇ ▇▇▇▇▇ as co-sponsor (etablissement co-introducteur) for the listing of
the Shares on the Premier marche a reglement mensuel of the Paris Bourse. In
connection with such listing, up to [ ] Shares were offered in an
open-price public offering (offre a prix ouvert, or "OPO") in France (the
"French Public Offering"). In accordance with French law, a notice was
published in the Bulletin des annonces legales et obligatoires on [ ] with
respect to the French Public Offering and the listing of the Shares on the
Premier marche a reglement mensuel of the Paris Bourse. The French Public
Offering was open for three Paris stock exchange days beginning on [October 25,
1999], during which prospective investors in France could submit binding orders
to purchase Shares. The Issuer is also offering [ ] Shares in a placement
principally to institutional investors in France and outside France (the
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"Placement"). The Underwriters have the right to subscribe for Shares in the
French Public Offering and offer such Shares for resale in the Placement.
At a meeting of the Board of Directors of the Issuer held on [October 29],
1999, the Board of Directors of the Issuer granted to its Chairman the
authority to determine the number and offering price of the Shares offered for
sale in the French Public Offering and the Placement. Pursuant to the authority
delegated to him by the Board of Directors, the Chairman decided on the date
hereof that [900,000] Shares (the "Firm Shares") may be issued and subscribed
for subject to the terms of this Agreement, including [ ] Firm Shares
[initially]1 offered in the French Public Offering ([excluding any Shares
initially offered in the French Public Offering that are being offered in the
Placement following a reduction in the aggregate number of Shares offered in
the French Public Offering,]1 the "OPO Shares") and [ ] Firm Shares
[initially]1 offered in the Placement ([including any Shares initially offered
in the French Public Offering that are being offered in the Placement following
a reduction in the aggregate number of Shares offered in the French Public
Offering,]1 the "Placement Shares"), and that the Issuer may grant the
International Underwriters an option to purchase an additional 135,000 Shares
(the "Option Shares") from the Issuer solely to cover over-allotments in the
Placement. The Firm Shares and the Option Shares are hereinafter together
referred to as the "Offered Shares."
[On [ ], 1999, the number of OPO Shares was reduced by [ ] Shares
in order to increase the number of Shares offered for sale in the Placement.]1
NOW IT IS HEREBY AGREED AS FOLLOWS:
ARTICLE 1 - UNDERWRITING
1.1 Subject to the terms and conditions herein set forth, the Issuer agrees
to issue to the International Underwriters, and each of the International
Underwriters agrees, severally and not jointly, to subscribe for the
number of Placement Shares set forth opposite the name of such
International Underwriter below, at a subscription price of [e ] per
Placement Share (the "Issue Price"), on the Closing Date (as defined
below).
International Underwriter Placement Shares
----------------------------- --------------------
Paribas [ ]
▇▇▇▇▇▇▇ ▇▇▇▇▇ International [ ]
============
Total 810,000
The relation that the number of Placement Shares set forth opposite the
name of each International Underwriter above bears to the total number of
Placement Shares is hereinafter referred to as such Underwriter's "purchase
obligation proportion."
1.2 Subject to the terms and conditions herein set forth, the Issuer agrees
to issue to the French Underwriters, and each of the French Underwriters
agrees, severally and not
-------------------------------
1 Insert if appropriate.
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jointly, to subscribe for, those of the OPO Shares that have not been
subscribed for by investors by the end of the French Public Offering, up to
the maximum number of OPO Shares set forth opposite the name of such French
Underwriter below, at the Issue Price, on the Closing Date.
French Underwriter OPO Shares
---------------------- ------------
Paribas [ ]
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ [ ]
========
Total 90,000
ARTICLE 2 - OVER-ALLOTMENT OPTION
2.1 In addition, subject to the terms and conditions herein set forth, the
Issuer grants an option to the International Underwriters to purchase up
to an additional 135,000 Option Shares at the Issue Price. The option
hereby granted will expire on the Closing Date, and may be exercised, in
whole or in part, for the sole purpose of covering sales of Shares in the
Placement in excess of the number of Placement Shares. Paribas, on behalf
of the International Underwriters, may exercise such option upon written
notice (in the form of Annex 1 hereto) provided to the Issuer by 6:00 p.m.
(Paris time) on the business day prior to the Closing Date setting forth
the aggregate number of Option Shares as to which the option is being
exercised. If the option is exercised as to all or any portion of the
Option Shares, the Option Shares as to which the option is exercised shall
be purchased by the International Underwriters, severally and not jointly,
in their respective purchase obligation proportions. The closing of this
sale shall take place by delivery of the Option Shares, against payment
thereof at the Issue Price, after the deduction of commissions under the
terms and conditions set forth in Article 9 of this Agreement. The date of
delivery of any such Option Shares shall be the Closing Date.
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES OF THE ISSUER
3.1 The Issuer represents and warrants to, and agrees with, each of the
Underwriters that:
(A) the Issuer has been duly incorporated and is validity existing as a
corporation under the laws of The Republic of France, with full power and
authority (corporate and other) to own its properties and conduct its
business as described in the Prospectuses (as defined below), and has been
duly qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each other jurisdiction in which
it owns or leases properties or conducts any business so as to require
such qualification, or is subject to no material liability or disability
by reason of the failure to be so qualified in any such jurisdiction;
(B) each of Business Objects Americas, Inc. and Business Objects (U.K.)
Limited (collectively, the "Subsidiaries") has been duly incorporated and
is validly existing as a corporation in good standing under the laws of
its respective jurisdiction of incorporation, with full power and
authority (corporate and other) to own or lease and operate its properties
and conduct its business as described in the Prospectuses, and has been
duly qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each other jurisdiction in which
it owns or leases
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properties or conducts any business so as to require such qualification, or
is subject to no material liability or disability by reason of the failure
to be so qualified in any such jurisdiction; all of the issued shares of
capital stock of each of the Subsidiaries have been duly and validly
authorized and issued and are fully paid and the Issuer owns directly
(other than directors' qualifying shares which the Issuer owns
beneficially) 100% of the issued shares of capital stock of each of its
subsidiaries, in each case free and clear of all liens, encumbrances,
equities and claims;
(C) the Issuer has an issued capitalization as set forth in the Prospectuses,
and all of the outstanding Shares of the Issuer have been duly and validly
authorized and issued, are fully paid and conform to the description of
the capital stock contained in the Prospectuses;
(D) there are no options, warrants or other rights to purchase, agreements or
other obligations to issue, or rights to convert any obligations into or
exchange any securities for, shares of capital stock of or ownership
interests in the Issuer outstanding, except as described in the
Prospectuses or issued under the benefit plans described in the
Prospectuses;
(E) the issuance of the Offered Shares has been duly and validly authorized
and, when issued and delivered against payment therefor as provided
herein, will be duly and validly issued, fully paid and will conform to
the description of the share capital contained in the Prospectuses; none
of the Offered Shares will be issued in violation of the preemptive rights
of any securities of the Issuer;
(F) this Agreement has been duly authorized, executed and delivered by the
Issuer, and constitutes a valid and legally binding agreement of the
Issuer, enforceable in accordance with its terms, subject, as to
enforceability, to bankruptcy, insolvency, reorganization and similar laws
of general applicability relating to or affecting creditors' rights and to
general equity principles; the issue and sale of the Offered Shares to be
sold by the Issuer and the compliance by the Issuer with all of the
provisions of the Agreement and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Issuer or any of its
Subsidiaries is a party or by which the Issuer or any of its Subsidiaries
is bound or to which any of the property or assets of the Issuer or any of
its Subsidiaries in subject, nor will such an action result in any
violation of the provisions of the statuts of the Issuer or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Issuer or any of its Subsidiaries or any of their
properties to an extent or in a manner which is or might be material in
the context of the offering of the Offered Shares; and no consent,
approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the issue
and sale of the Offered Shares, or the consummation by the Issuer of the
transactions contemplated by this Agreement, except the registration under
the Securities Act of 1933, as amended (the "Act") of the Offered Shares
and such consents, approvals, authorizations, registrations or
qualifications as may be required under state or foreign securities or
Blue Sky laws;
(G) neither the Issuer nor any of its Subsidiaries is in violation of its
statuts, Certificate of Incorporation or By-laws or other charter
documents or in default in the performance or
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observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease
or other agreement or instrument to which it is a party or by which it or
any of its properties may be bound, except to the extent that such
violation or default would not have a material adverse effect on the
consolidated financial position, shareholders' equity or results of
operations of the Issuer and its subsidiaries, taken as a whole, or any
adverse effect on the insurance and sale of the Offered Shares or the
consummation of the transactions contemplated hereby;
(H) the statements set forth in the Prospectuses under the captions
"Description of Share Capital" and "Renseignements de caractere generale",
insofar as they purport to constitute a summary of the terms of the share
capital, and under the captions "Taxation" and "Regime fiscal des
actions", insofar as they purport to describe the provisions of the laws
and documents referred to therein, are accurate in all material respects;
(I) neither the Issuer nor any of its Subsidiaries has sustained since the
date of the latest audited financial statements included or incorporated
by reference in the Prospectuses any material loss or interference with
its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in
the Prospectuses; and, since the respective dates as of which information
is given in the Registration Statement (as defined below) and the
Prospectuses, there has not been any change in the capital stock of the
Issuer or any decrease in working capital or any material increase in the
consolidated long-term debt of the Issuer or any material adverse change,
or any development involving a prospective material adverse change in or
materially and adversely affecting the general affairs, management,
financial position, shareholders' equity or results of operations of the
Issuer and its subsidiaries taken as a whole, otherwise than as set forth
or contemplated in the Prospectuses;
(J) the audited consolidated financial statements and notes thereto included
in the Registration Statement and the U.S. and International Prospectuses
present fairly the financial position of the Issuer as of the dates
indicated, and the results of operations, shareholders' equity and cash
flows of the Issuer for the periods specified; such financial statements
have been prepared in accordance with generally accepted accounting
principles in the United States ("U.S. GAAP"), applied on a consistent
basis throughout the periods involved (except as specified therein); the
supporting schedules, if any, included in the Registration Statement and
the U.S. and International Prospectuses present fairly in accordance with
U.S. GAAP the information required to be stated therein; the selected
financial data and summary consolidated financial information of the
Issuer included in the Registration Statement and the U.S. and
International Prospectuses present fairly the information shown therein
and have been compiled on a basis consistent with that of the audited
financial statements included in the Registration Statement and the U.S.
and International Prospectuses;
(K) the audited consolidated financial statements and notes thereto included
in the French Prospectus present fairly the financial position of the
Issuer as of the dates indicated, and the results of operations,
shareholders' equity and cash flows of the Issuer for the periods
specified; such financial statements have been prepared in accordance with
the requirements of all applicable French laws and generally accepted
accounting principles in France ("French GAAP"), applied on a consistent
basis throughout the periods involved
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(except as specified therein); the "Information Financieres Cles" of the
Issuer included in the French Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that of the
audited financial statements included in the French Prospectus;
(L) other than as set forth in the Prospectuses, there are no legal or
governmental proceedings pending to which the Issuer or any of its
Subsidiaries is a party or of which any property of the Issuer or any of
its Subsidiaries is the subject which, if determined adversely to the
Issuer or any of its Subsidiaries, would individually or in the aggregate
have a material adverse effect on the current or future financial
position, shareholders' equity or results of operations of the Issuer and
its subsidiaries taken as a whole, and, to the best of the Issuer's
knowledge, no such proceedings are threatened by any governmental agencies
or threatened by others;
(M) other than as set forth in the Prospectuses, no claims with respect to
any of the Issuer's proprietary rights and source code relating to
software (each an "Intellectual Property Right" and together the
"Intellectual Property Rights") have been asserted or, to the knowledge of
the Issuer, are threatened by any person, nor does the Issuer know of any
valid grounds for any bona fide claims (i) to the effect that the
manufacture, sale, licensing or use of any product manufactured or sold by
the Issuer or its subsidiaries infringes on any copyright, patent,
trademark, service ▇▇▇▇ or trade secret, (ii) against the use by the
Issuer or its subsidiaries of any trademarks, trade names, trade secrets,
copyrights, patents, technology, know-how or applications for any of the
foregoing used by the Issuer or any of its subsidiaries in its business as
conducted on the date hereof, or (iii) challenging the ownership, validity
or effectiveness of any of the Intellectual Property Rights that, in each
case, could have a material adverse effect on the consolidated financial
position, shareholder's equity or results of operations of the Issuer and
its subsidiaries, taken as a whole. To the knowledge of the Issuer, there
is no material unauthorized use, infringement or misappropriation of any
of the Intellectual property Rights by any third party. The Issuer and
its subsidiaries have not been sued or charged in writing as defendants in
any claim, suit, action or proceeding which involves a claim of
infringement of any patents, trademarks, service rights, copyrights or
violation of any trade secrets or other proprietary right of any third
party and which has not been finally terminated prior to the date hereof,
and the Issuer does not have any knowledge with respect to any such charge
or claim or with respect to any infringement liability of the Issuer or
any of its subsidiaries;
(N) other than as set forth in the Prospectuses, no stamp or other issuance
or transfer taxes or duties and no capital gains, income, withholding or
other taxes (other than the fixed-rate (droit fixe) and stamp duty (timbre
de dimension), the non-payment of which shall not affect the validity of
this Agreement or the Offered Shares) are payable by or on behalf of the
Underwriters to the French Republic or any political subdivision or taxing
authority thereof or therein in connection with the issuance and sale by
the Issuer of the Offered Shares to or for the respective accounts of, or
designated by, the Underwriters, provided that the sale of the Offered
Shares and the payment of commissions or fees pursuant to this Agreement
shall be subject to the applicable French tax rules;
(O) the American depositary shares ("ADSs") representing the ordinary shares
of the Issuer are quoted on the Nasdaq National Market; and the Issuer has
not received any notice of any suspension or termination of the quotation
of the ADSs on the Nasdaq National
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Market and has no knowledge of any proceedings that have been instituted or
are pending for such purpose;
(P) the deposit agreement entered into between the Issuer, The Bank of New
York, as depositary, and the holders of the ADSs (the "Deposit Agreement")
in connection with the Issuer's ADS program has been duly authorized,
executed and delivered by the Issuer and constitutes a legal, valid and
binding obligation of the Issuer enforceable against the Issuer in
accordance with its terms; the ADSs have been duly and validly issued and
the holders thereof are entitled to the rights specified therein and in
the Deposit Agreement;
(Q) neither the Issuer nor any of its subsidiaries has taken, directly or
indirectly, any action which was designed to or which has constituted or
which might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Issuer to facilitate the
sale or resale of the Offered Shares;
(R) the Issuer is not, and after giving effect to the offering and the sale
of the Offered Shares, will not be, an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended;
(S) Ernst & Young LLP, who have certified the financial statements included
in the Registration Statement, the French Prospectus and the U.S. and
International Prospectuses, are, to the best or our knowledge, independent
public accountants as required by the Act and the rules and regulations of
the Securities and Exchange Commission (the "Commission") thereunder and
in accordance with the laws of France and the applicable published rules
and regulations promulgated by the accounting profession in France;
(T) the Issuer is not a Passive Foreign Investment Company within the meaning
of Section 1296 of the United States Internal Revenue Code of 1986;
(U) the Issuer has prepared a preliminary prospectus in French, dated [October
21,] 1999 (including any and all exhibits thereto and any information
incorporated by reference therein, the "Preliminary French Prospectus"),
and a final prospectus in French, dated [November 2, ] 1999 (including any
and all exhibits thereto and any information incorporated by reference
therein, the "French Prospectus"), to be used in connection with the French
Public Offering; the COB issued visa No. [ ] on [ ], 1999 in
respect of the Preliminary French Prospectus and visa No. [ ] on [
], 1999 in respect of the French Prospectus; such documents, together with
all other documents required for the French Public Offering and the listing
of the Shares on the Premier marche a reglement mensuel of the Paris Bourse
(the "Premier Marche"), have been or will be filed with the Commission des
Operations de Bourse (the "COB") and ParisBourseSBF S.A. ("ParisBourse") on
or prior to the Closing Date in accordance with all applicable regulations;
the Shares have been approved for listing on the Premier Marche pursuant to
a notice (avis d'admission) of ParisBourse dated [ ], which notice
has not been revoked or withdrawn and is in full force and effect, and no
opposition to listing has been notified by the COB;
(V) each of the Preliminary French Prospectus and the French Prospectus
conforms in all material respects to all requirements of applicable French
laws and regulations,
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including regulations of the COB and ParisBourse; neither the Preliminary
French Prospectus nor the French Prospectus nor any amendments or
supplements thereto, at the time the Preliminary French Prospectus and the
French Prospectus or any such amendments or supplements were issued, and
(in the case of the French Prospectus) on the Closing Date, included or
will include an untrue statement of a material fact or omitted or will omit
to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Issuer by a French
Underwriter through Paribas expressly for use therein;
(W) the Issuer meets the requirements for use of Form S-3 under the Act and
filed with the Commission a registration statement on Form S-3 (No.
333-85229) (the "Initial Registration Statement") to register the Offered
Shares under the Act; the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered to
Paribas, and, excluding exhibits thereto but including all documents
incorporated by reference in the prospectus contained therein, have been
declared effective by the Commission in such form; since [October 21,]
1999, the Issuer has not filed any documents with the Commission; no stop
order suspending the effectiveness of the Registration Statement, any
post-effective amendment thereto, if any, has been issued and no
proceedings for that purpose have been instituted or are threatened by the
Commission;
for purposes of this Agreement, "Preliminary U.S. Prospectus" shall mean
any preliminary prospectus included in the Initial Registration Statement
or filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act; "U.S. Prospectus" shall mean
the final prospectus in the form first filed pursuant to Rule 424(b) under
the Act; "Registration Statement" shall mean the various parts of the
Initial Registration Statement including all exhibits thereto and including
(i) the information contained in the form of final prospectus filed with
the Commission pursuant to Rule 424(b) under the Act in accordance with
Article 6(A) hereof and deemed by virtue of Rule 430A under the Act to be
part of the Initial Registration Statement at the time it was declared
effective and (ii) the documents incorporated by reference in the
prospectus contained in the Initial Registration Statement at the time such
part of the Initial Registration Statement became effective, each as
amended at the time such part of the Initial Registration Statement became
effective or hereafter becomes effective;
any reference herein to any Preliminary U.S. Prospectus or the U.S.
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Act, as of the date of such Preliminary U.S. Prospectus or U.S. Prospectus,
as the case may be; any reference to any amendment or supplement to any
Preliminary U.S. Prospectus or the U.S. Prospectus shall be deemed to refer
to and include any documents filed after the date of such Preliminary U.S.
Prospectus or U.S. Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated by
reference in such Preliminary U.S. Prospectus or U.S. Prospectus, as the
case may be; and any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of the
Issuer filed pursuant to Section 13(a) or 15(d) of the Exchange
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Act after the effective date of the Initial Registration Statement that is
incorporated by reference in the Registration Statement;
(X) no order preventing or suspending the use of any Preliminary U.S.
Prospectus has been issued by the Commission; each Preliminary U.S.
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Issuer
by an Underwriter through Paribas expressly for use therein;
(Y) the U.S. Prospectus conforms, and any further amendments or supplements
to the U.S. Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder and does not and will not as of the applicable filing date of
the U.S. Prospectus and any amendment or supplement thereto, contain an
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Issuer by an Underwriter through
Paribas expressly for use therein;
(Z) the Registration Statement conforms, any further amendments or
supplements to the Registration Statement will conform, in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder and do not and will not as of the applicable
effective date of the Registration Statement and any amendment thereto,
contain 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; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Issuer
by an Underwriter through Paribas expressly for use therein;
(AA) the documents incorporated by reference in the U.S. Prospectus, when they
were filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the U.S.
Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the case
may be, will conform in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or
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omissions made in reliance upon and in conformity with information
furnished in writing to the Issuer by an Underwriter through Paribas
expressly for use therein; and
(BB) a registration statement on Form F-6 (No. 33-83164) relating to the ADSs
is on file with the Commission and has been declared effective under the
Act ("Form F-6 Registration Statement"); the Form F-6 Registration
Statement complies in all respects with the requirements of the Act and
does not include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading;
(CC) the Issuer has prepared a preliminary international prospectus, dated [
] (including any and all exhibits thereto and any information
incorporated by reference therein, the "Preliminary International
Prospectus"), and a final international prospectus, dated [ ]
(including any and all exhibits thereto and any information incorporated
by reference therein, the "International Prospectus"); the Preliminary
International Prospectus and the International Prospectus are identical to
the Preliminary U.S. Prospectus and the U.S. Prospectus, respectively,
except for the [cover, inside cover, back cover and the "General
Information" section (which replaces the sections "Where You Can Find More
Additional Information Regarding Business Objects", "Clearing", "Legal
Matters" and "Experts").
the Preliminary U.S. Prospectus, the Preliminary French Prospectus and the
Preliminary International Prospectus are together referred to herein as the
"Preliminary Prospectuses"; the U.S. Prospectus, the French Prospectus and
the International Prospectus are together referred to herein as the
"Prospectuses";
(DD) neither the Preliminary International Prospectus nor the International
Prospectus nor any amendments or supplements thereto, at the time the
Preliminary International Prospectus and the International Prospectus or
any such amendments or supplements were issued, and (in the case of the
International Prospectus) on the Closing Date, included or will include an
untrue statement of a material fact or omitted or will omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply
to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Issuer by an Underwriter
through Paribas expressly for use therein;
Any certificate signed by any officer of the Issuer and delivered to the
Underwriters or counsel for the Underwriters in connection with the offering of
the Offered Shares shall be deemed a representation and warranty by the Issuer,
as to matters covered thereby, to each Underwriter.
ARTICLE 5 - WARRANTIES AND UNDERTAKINGS OF THE UNDERWRITERS
5.1 Each Underwriter hereby represents and warrants to, and agrees with, the
Issuer that:
(A) it will observe all applicable laws and regulations in any non-United
States jurisdiction in which it may offer, sell or deliver the Offered
Shares;
(B) it has not offered or sold and will not offer or sell any of the Offered
Shares within the United States as part of its initial distribution of
Offered Shares;
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(C) (i) it has not offered or sold and prior to the date six months after the
Closing Date will not offer or sell any Securities to persons in the
United Kingdom except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or
agent) for the purposes of their businesses or otherwise in circumstances
which have not resulted and will not result in an offer to the public in
the United Kingdom within the meaning of the Public Offers of Securities
Regulations 1995
(ii) it has complied and will comply with all applicable provisions of the
Financial Services ▇▇▇ ▇▇▇▇ with respect to anything done by it in relation
to the Securities in, from or otherwise involving the United Kingdom;
(iii) it has only issued or passed on and will only issue or pass on in the
United Kingdom any document received by it in connection with the issue of
the Securities to a person who is of a kind described in Article 11(3) of
the Financial Services ▇▇▇ ▇▇▇▇ (Investment Advertisements) (Exemptions)
Order 1996 or is a person to whom the document may otherwise lawfully be
issued or passed on.
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ARTICLE 6 - UNDERTAKINGS OF THE ISSUER
6.1 The Issuer agrees with each of the Underwriters:
(A) During the period beginning from the date hereof and continuing to and
including the date 90 days after the date of the U.S. Prospectus, not to
offer, sell, contract to sell or otherwise dispose of, except as provided
hereunder, any securities of the Issuer that are substantially similar to
the Shares, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right to
receive, Shares or any such substantially similar securities (other than
(i) pursuant to equity-based employee benefit plans existing on, or upon
the conversion or exchange of convertible or exchangeable securities
outstanding as of, the date of this Agreement or (ii) in any Rule 145
transaction), without the prior written consent of Paribas and GSI;
(B) To use its best efforts to obtain the listing of the Shares on the
Premier Marche on or prior to the Closing Date and to maintain such
listing as well as the quotation of the ADSs on the Nasdaq National Market
so long as any Shares or ADSs remain outstanding; provided that if at any
time the Issuer shall determine that it can no longer reasonably comply
with the requirements for listing of the Shares on the Premier Marche or
the quotation of the ADSs on the Nasdaq National Market, as applicable,
and if maintenance of such listing or quotation becomes unduly onerous, it
will use its best efforts to obtain and thereafter to maintain a listing
of the Shares on such other major stock exchange in a leading financial
center; provided, however, that the Issuer will not be required to
maintain any such listing if, as a result of the acquisition of shares of
the Issuer by a party, or a group of parties, the public float of the
Issuer's shares makes a listing no longer appropriate.
(C) To use its best efforts to cause the Offered Shares to be admitted to
clearance through Sicovam S.A. ("Sicovam") as central depositary;
(D) Not to take, directly or indirectly, any action designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Issuer
to facilitate the sale or resale of the Offered Shares;
(E) To furnish the French Underwriters with copies of the French Prospectus
in such quantities as Paribas may reasonably request, and prior to the
completion of the distribution of the Offered Shares, if at such time any
events shall have occurred as a result of which the French Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made when such French Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such period to
amend or supplement the French Prospectus, to notify Paribas and upon
Paribas's request to file such document with the COB or ParisBourse as may
be required and to prepare and furnish without charge to each French
Underwriter and to any dealer in securities as many copies as Paribas may
from time to time reasonably request of an amended French Prospectus or a
supplement to the French Prospectus which will correct such statement or
omission or effect such compliance;
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(F) To furnish the International Underwriters with copies of the
International Prospectus in such quantities as Paribas may reasonably
request, and prior to the completion of the distribution of the Offered
Shares, if at such time any events shall have occurred as a result of
which the International Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such
International Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary during such period to amend or
supplement the International, to notify Paribas and upon Paribas's request
to make any filings of such document as may be required and to prepare and
furnish without charge to each International Underwriter and to any dealer
in securities as many copies as Paribas may from time to time reasonably
request of an amended International Prospectus or a supplement to the
International Prospectus which will correct such statement or omission or
effect such compliance;
(G) To prepare the U.S. Prospectus in a form approved by Paribas and to file
such U.S. Prospectus pursuant to Rule 424(b) under the Act not later than
the Commission's close of business on the second business day following
the execution and delivery of this Agreement, or, if applicable, such
earlier time as may be required by Rule 430A(a)(3) under the Act; to make
no further amendment or any supplement to the Registration Statement or
Prospectus prior to the Closing Date without first consulting with Paribas
and making reasonable efforts to ensure that any such amendment or
supplement is in a form approved by Paribas; to advise Paribas, promptly
after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the U.S. Prospectus or any amended U.S. Prospectus has been
filed and to furnish Paribas copies thereof; to file promptly all reports
required to be filed by the Issuer with the Commission pursuant to Section
13(a), 13(c) or 15(d) of the Exchange Act subsequent to the date of the
U.S. Prospectus and for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Offered Shares; to
advise Paribas, promptly after it receives notice thereof, of the issuance
by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary U.S. Prospectus or prospectus, of
the suspension of the qualification of the Offered Shares for offering or
sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission for
the amending or supplementing of the Registration Statement or U.S.
Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending the
use of any Preliminary U.S. Prospectus or prospectus or suspending any
such qualification, promptly to use its best efforts to obtain the
withdrawal of such order;
(H) To make generally available to its shareholders and to the International
Underwriters, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Issuer and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and
the rules and regulations of the Commission thereunder (including, at the
option of the Issuer, Rule 158); and
(I) During a period of three years from the effective date of the
Registration Statement, to furnish to Paribas copies of all reports or
other communications (financial or other) furnished to shareholders, and
to deliver to Paribas (i) as soon as they are available,
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copies of the Annual Report on Form 10-K, Quarterly Reports on Form 10-Q,
the Document de Reference and any other reports or financial statements
furnished to or filed with the Commission, the COB, ParisBourse or any
other securities exchange on which any class of securities of the Issuer is
listed; and (ii) such additional information concerning the business and
financial condition of the Issuer as Paribas may form time to time
reasonable request (such financial statements to be a on a consolidated
basis to the extent the accounts of the Issuer and its subsidiaries are
consolidated in reports furnished to its shareholders generally or to the
Commission, the COB or ParisBourse.
ARTICLE 7 - INDEMNIFICATION
7.1 The Issuer will indemnify and hold harmless each Underwriter against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or either of the Prospectuses, or in any amendment
thereof or supplement thereto, or in the case of the Registration
Statement arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading and in the case of
any Preliminary Prospectus or either of the Prospectuses arise out of or
are based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and will
reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending
any such action or claim as such expenses are incurred or (ii) a breach of
any of the representations and warranties of the Issuer set forth in
Articles 3 and 6 above; provided, however, that the Issuer will not be
liable in the case of (i) above to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement or the Prospectuses or
any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Issuer by any Underwriter through
Paribas expressly for use therein; and provided further, that with respect
to any untrue statement or alleged untrue statement in or omission or
alleged omission from any Preliminary Prospectus, the indemnity agreement
in this Article 7.1 shall not inure to the benefit of any Underwriter from
whom the person asserting any such losses, claims, damages or liabilities
purchased the Offered Shares concerned, to the extent that the
corresponding Prospectus relating to the Offered Shares was required to be
delivered by such Underwriter under applicable law in connection with such
purchase and any such loss, claim damage or liability of such Underwriter
results from the fact that there was not sent or given to such person at
or prior to the written confirmation of the sale of such Offered Shares to
such person, a copy of the corresponding Prospectus if the Issuer had
previously furnished copies thereof to such Underwriter.
7.2 Each Underwriter will indemnify and hold harmless the Issuer against any
losses, damages or liabilities to which the Issuer may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
(i) an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or
either of the Prospectuses, or any amendment or supplement thereto, or in
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the case of the Registration Statement arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading and in the case of any Preliminary Prospectus or either of the
Prospectuses arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, the Registration Statement
or either of the Prospectuses, or any such amendment or supplement in
reliance upon and conformity with written information furnished to the
Issuer by such Underwriter through Paribas expressly for use therein and
(ii) a breach by such Underwriter of any of the representations and
warranties of the Underwriters set forth in Article 5 above; and will
reimburse the Issuer for any legal or other expenses reasonably incurred by
the Issuer in connection with investigating or defending any such action or
claims as such expenses are incurred.
7.3 Promptly after receipt by an indemnified party under Articles 7.1 and 7.2
above of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying
party under such Article, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any
indemnified party otherwise than under such Article. In case any such
action shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to the indemnified
party (which shall not, except with the consent of the indemnified party,
be counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such Article for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party will, without the
written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to,
any pending or threatened claim or action in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such claim or
action) unless such settlement, compromise or judgment (i) includes an
unconditional release of any indemnified party from all liability arising
out of such action or claim and (ii) does not include a statement as to or
an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
7.4 The obligations of the Issuer under this Article 7 shall be in addition
to any liability which the Issuer may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Article 7 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the
Issuer and to each person, if any, who controls the Issuer within the
meaning of the Act.
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ARTICLE 8 - STABILIZATION
8.1 Paribas, on behalf of the Underwriters, may, in connection with the
distribution of the Offered Shares, over-allot and effect transactions in
the open market or otherwise with a view to stabilizing or maintaining the
market price of the Shares at levels other than those which might
otherwise prevail in the open market. As between the Issuer and the
Underwriters, any loss resulting from over-allotment and stabilization
shall be borne, and any profit arising therefrom shall be retained, by the
Underwriters. Paribas agrees that any such stabilization activities will
be conducted in compliance with applicable laws.
ARTICLE 9 - COMMISSIONS AND EXPENSES
9.1 COMMISSIONS
(A) In consideration of the agreement by the International Underwriters to
purchase the Placement Shares (and the Option Shares if the over-allotment
option is exercised in accordance with Article 2.1), the Issuer agrees to
pay to Paribas on behalf of the International Underwriters on the Closing
Date:
(a) an underwriting commission of [ ] per cent;
(b) a management commission of [ ] per cent; and
(c) a selling concession of [ ] per cent
of the aggregate Issue Price of the Placement Shares (and the Option Shares
if the over-allotment option is exercised in accordance with Article 2.1),
plus in each such case any applicable value added or other similar tax.
(B) In consideration of the agreement by the French Underwriters to purchase
the OPO Shares that have not been subscribed for by investors by the end
of the French Public Offering, the Issuer agrees to pay to Paribas on
behalf of the French Underwriters (and in the case of (c) below, on behalf
of the financial intermediaries who handle the subscription of the OPO
Shares) on the Closing Date:
(a) an underwriting commission of [ ] per cent;
(b) a management commission of [ ] per cent; and
(c) a processing commission (commission de guichet) of [ ] per cent
of the aggregate Issue Price of the OPO Shares, plus in each such case any
applicable value added or other similar tax. Paribas will distribute to
each financial intermediary the proportion of the aggregate processing
commission received which corresponds to the proportion of the number of
the total OPO Shares for which such financial intermediary handled
subscription.
9.2 EXPENSES
The Issuer covenants and agrees with the several Underwriters that the
Issuer will pay or cause to be paid the following: (a) the fees,
disbursements and expenses of the Issuer's
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counsel and accountants in connection with the registration of the Offered
Shares under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, the
Preliminary Prospectuses and the Prospectuses and any amendments or
supplements thereto, and the mailing and delivering of copies thereof to
the Underwriters and dealers; (b) all fees and expenses in connection with
the listing of the Shares on the Premier Marche; (c) all costs and
expenses incurred by or on behalf of the Issuer in promoting the sale of
the Offered Shares, including expenses associated with the "road show";
(d) the fees and expenses of any clearing and settlement system or any
other depositary used in connection with the acceptance of the Offered
Shares in the book-entry settlement system of such clearing and settlement
system or other depositary; (e) the delivery of the Offered Shares to the
Underwriters, including any stock transfer taxes payable upon the sale of
the Offered Shares to the Underwriters; (f) any stamp duty or stamp duty
reserve tax, transfer tax or other tax duty or charges imposed and payable
upon the issue of the Offered Shares or the execution and delivery of the
documents contemplated herein; (g) all other reasonable costs and expenses
incident to the performance of the obligations of the Issuer hereunder
which are not otherwise specifically provided for in this Article; (h) the
fees of counsel to the Underwriters (limited to $280,000); and (i) the
out-of-pocket expenses (including expenses of their counsel) incurred by
Paribas and GSI in connection with the transactions contemplated hereby
(limited to $30,000 for each of Paribas and GSI).
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ARTICLE 10 - CLOSING
10.1 The closing date of the sale of the Offered Shares to the Underwriters
(the "Closing Date") will be o, 1999 at 11:00 a.m. (Paris time) (the
"Original Closing Date"), or such later date as the Issuer, Paribas and
GSI jointly agree, provided that such later date shall not be in any
event later than o, 1999 and provided, further, that the closing date of
the French Public Offering shall not be later than the Original Closing
Date without the prior approval of ParisBourse.
10.2 On the Closing Date, payment of the aggregate purchase price for the
Firm Shares and, if the option granted in Article 2.2 is exercised, the
Option Shares, and delivery of the Firm Shares and the Option Shares (if
any), shall take place simultaneously as follows:
10.2.1 Each International Underwriter will pay to Paribas, for value on the
Closing Date, a sum in Euro equal to the Issue Price for the Placement
Shares and the Option Shares (if any), underwritten by it;
10.2.2. Paribas will credit to a special non-interest bearing account opened on
its books a sum in Euro equal to the Issue Price of the Firm Shares and
the Option Shares (if any), and, after the establishment of a depositary
certificate pursuant to Article 191 of the Law of July 24, 1965, credit
the account of the Issuer opened at [insert bank name] pursuant to the
instructions given by the Issuer, after deduction of the commissions as
set forth in Article 9 hereof;
10.2.3 The Issuer will give simultaneous instructions to [insert bank name] to
credit the Firm Shares and the Option Shares (if any), to the account of
Paribas, on behalf of the Underwriters.
10.3 The payment referred to in article 10.2.2 shall be made against evidence
provided by the Issuer and confirmation by Sicovam that the Issuer has
taken all necessary steps for the Firm Shares, and the Option Shares,
(if any), being entered, on the Closing Date in the books of Sicovam
acting as central depositary. Sicovam shall, on the Closing Date,
credit the accounts of the relevant Sicovam account holders. "Sicovam
account holders" shall mean any authorized financial intermediary
institution entitled to hold accounts on behalf of its customers with
Sicovam and includes the depositary banks for CedelBank and ▇▇▇▇▇▇
Guaranty Trust Company of New York, Brussels office, as operator of the
Euroclear System ("Euroclear"). Sicovam shall act as central depositary
for CedelBank, Euroclear and Sicovam.
ARTICLE 11 - CONDITIONS PRECEDENT
11.1 The obligations of the Underwriters to purchase the Firm Shares and the
Option Shares, as the case may be, hereunder shall be subject, in their
discretion, to the condition that all representations and warranties and
other statements of the Issuer herein are, at and as of the signing of
this Agreement and the Closing Date, be true and correct, the condition
that the Issuer shall have performed all of its obligations hereunder
theretofor to be performed, and the following additional conditions:
(A) The U.S. Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with
Section 5(a) hereof; no stop order suspending the
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effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information
on the part of the Commission shall have been complied with to the
reasonable satisfaction of Paribas;
(B) Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, shall
have furnished to the Underwriters their written opinion, dated the
Closing Date, in form and substance reasonably satisfactory to the
Underwriters, and such counsel shall have received such papers and
information as they may reasonably request to enable them to provide such
opinion;
(C) Wilson, Sonsini, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.C., U.S. counsel for the Issuer,
shall have furnished to the Underwriters their written opinion, dated the
Closing, in form and substance reasonably satisfactory to the
Underwriters, to the effect set forth in Annex II;
(D) Stibbe, Simont, Monahan, Duhot & ▇▇▇▇▇▇, French counsel for the Issuer,
shall have furnished to the Underwriters their written opinion, dated the
Closing, in form and substance reasonably satisfactory to the
Underwriters, to the effect set forth in Annex III;
(E) On the date of the Preliminary U.S. Prospectus and the U.S. Prospectus
prior to the execution of this Agreement and on the Closing Date, Ernst &
Young LLP shall have furnished to the Underwriters a letter or letters,
dated the respective dates of delivery thereof, in form and substance
satisfactory to the Underwriters, to the effect set forth in Annex IV
hereto;
(F) The French Prospectus shall have received the visa from the COB; notice
of the results of the French Public Offering (avis de resultat) shall have
been published by ParisBourse.
(G) Neither the Issuer nor any of its subsidiaries shall have sustained since
the date of the latest audited financial statements included or
incorporated by reference in the U.S. Prospectus any loss or interference
with its business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectuses, and (ii) since the respective dates as
of which information is given in the Prospectuses there shall not have
been any change in the capital stock of the Issuer or any decrease in
working capital or material increase in the consolidated long-term debt of
the Issuer or any material adverse change, or any development involving a
prospective material adverse change in or materially and adversely
affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Issuer and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectuses, the effect of which, in any such case described in clause
(i) or (ii), is in the judgment of both Paribas and GSI so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Offered Shares being delivered on
such Closing Date on the terms and in the manner contemplated in the
Prospectuses;
(H) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading on the New
York Stock Exchange, Nasdaq
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or ParisBourse, (ii) a suspension or material limitation in trading in the
Issuer's ADSs on the Nasdaq, (iii) a general moratorium on commercial
banking activities in New York or Paris declared either by Federal, New
York State or French authorities, (iv) the outbreak or escalation of
hostilities involving the United States or France or the declaration by the
United States or France of a national emergency or war, if the effect of
any such event specified in this clause (iv) in the judgment of both
Paribas and GSI makes it impractical or inadvisable to proceed with the
offering or delivery of the Offering Shares on the terms and in the manner
contemplated by the Prospectuses;
(I) On or after the date hereof there shall not have been, in the opinion of
both Paribas and GSI, a change in national or international financial,
political or economic conditions or currency exchange rates or exchange
controls as would in the view of Paribas or GSI be likely to prejudice
materially the success of the offering and distribution of the Offered
Shares or dealings in the Offered Shares in the secondary market; and
(J) The Issuer shall have furnished or caused to be furnished to Paribas on
the Closing Date certificates of officers of the Issuer satisfactory to
Paribas as to the accuracy of the representations and warranties of the
Issuer herein at and as of such Closing Date, as to the performance by the
Issuer of all of its respective obligations hereunder to be performed at
or prior to such Closing Date, and as to such other matters as you may
reasonably request, and the Issuer shall have furnished or caused to be
furnished certificates as to the matters set forth in subsections (A) and
(H) of this Article, and as to such other matters as you may reasonably
request.
If any of the conditions specified in this Article 11 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or
if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriters, acting through Paribas, this Agreement and
all obligations of the Underwriters hereunder may be canceled at, or at any
time prior to, the Closing Date by Paribas. Notice of such cancellation shall
be given to the Issuer in writing or by telephone or facsimile confirmed in
writing.
The documents required to be delivered by this Article 11 shall be delivered at
the office of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters,
in Paris, France, on the Closing Date.
ARTICLE 12 - DEFAULT
(A) If any Underwriter shall default in its obligation to purchase the
Offered Shares which it has agreed to purchase hereunder on the Closing
Date, Paribas may in its discretion arrange for itself or another party or
other parties to purchase such Offered Shares on the terms contained
herein. If within thirty-six hours after such default by any Underwriter
Paribas does not arrange for the purchase of such Offered Shares, then the
Issuer shall be entitled to a further period of thirty-six hours within
which to procure another party or other parties satisfactory to Paribas to
purchase such Offered Shares on such terms. In the event that, within the
respective prescribed periods, Paribas notifies the Issuer that it has so
arranged for the purchase of such Offered Shares, or the Issuer notifies
Paribas that it has so arranged for the purchase of such Offered Shares,
Paribas or the Issuer shall have the right to postpone the Closing Date
for a period of not more than seven days (provided that the closing date
of the French Public Offering shall not be later than the Original Closing
Date without the prior approval of ParisBourse), in
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22.
order to effect whatever changes may thereby be made necessary in the
Registration Statement, the U.S. Prospectus, the French Prospectus or the
International Prospectus, or in any other documents or arrangements, and
the Issuer agrees to file promptly any amendments to the Registration
Statement, the U.S. Prospectus, the French Prospectus or the International
Prospectus which in Paribas's opinion may thereby be made necessary. The
term "Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Offered
Shares.
(B) If, after giving effect to any arrangements for the purchase of the
Offered Shares of a defaulting Underwriter or Underwriters by Paribas and
the Issuer as provided in subsection (A) above, the aggregate number of
such Offered Shares which remains unpurchased does not exceed one-eleventh
of the aggregate number of all of the Offered Shares to be purchased on
such Closing Date, then the Issuer shall have the right to require each
non-defaulting Underwriter to purchase the number of Offered Shares which
such Underwriter agreed to purchase on such Closing, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share
(based on the number of Offered Shares which such Underwriter agreed to
purchase hereunder) of the Offered Shares of such defaulting Underwriter
or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for
its default.
(C) If, after giving effect to any arrangements for the purchase of the
Offered Shares of a defaulting Underwriter or Underwriters by
Representative and the Issuer as provided in subsection (A) above, the
aggregate number of Offered Shares which remains unpurchased exceeds
one-eleventh of the aggregate number of all of the Offered Shares to be
purchased on such Closing Date, or if the Issuer shall not exercise the
right described in subsection (B) above to require non-defaulting
Underwriters to purchase the Offered Shares of a defaulting Underwriter or
Underwriters, then this Agreement (or, if the option granted in Article
2.1 is exercised, the obligations of the Underwriters to purchase and of
the Issuer to sell the Option Shares) shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Issuer,
except for the expenses to be borne by the Issuer and the Underwriters as
provided in Article 9 hereof and the indemnity and contribution agreements
in Article 7 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
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23.
ARTICLE 13 - TERMINATION
13.1 If this Agreement is terminated by the Underwriters in accordance with
the provisions of Article 11 hereof or because of any refusal, inability
or failure on the part of the Issuer to perform any agreement herein or
comply with any provision hereof other than by reason of a default by any
of the Underwriters, the Issuer shall, upon presentation of relevant
invoices, reimburse the Underwriters for (a) the fees of counsel to the
Underwriters (limited to $280,000) and (b) all their reasonable
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel to the Underwriters, in an amount not in excess of $50,000 for
each of Paribas and GSI.
ARTICLE 14 - SURVIVAL
14.1 The respective indemnities, agreements, representations, warranties and
other statements of the Issuer and the Underwriters, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or
the Issuer, or any officer or director or controlling person of the
Issuer, and shall survive delivery of and payment for the Offered Shares.
ARTICLE 15 - NOTICES
15.1 All communications hereunder will be in writing and effective only on
receipt, and, if sent to the Underwriters, will be mailed, delivered or
telefaxed to Paribas at [address], or, if sent to the Issuer, will be
mailed, delivered or telefaxed to the Issuer at [address].
ARTICLE 16 - BENEFIT; STIPULATION POUR AUTRUI
16.1 This Agreement shall be binding upon, and inure solely to the benefit of,
the Underwriters, the Issuer and, to the extent provided in Articles 7 and
14 hereof, the directors, officers, employees and agents of the Issuer and
each person who controls the Issuer or any Underwriter within the meaning
of either the Act of the Exchange Act, and their respective heirs,
executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement. No
purchaser of any of the Offered Shares from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
ARTICLE 17 - GOVERNING LAW AND JURISDICTION
This Agreement is governed by and shall be interpreted in accordance with
the laws of The Republic of France.
Any dispute arising out of this Agreement will be brought before the
Commercial Court in Paris, France.
For the purposes of any legal action or proceedings arising out of or in
connection with this Agreement, each of the Underwriters elects domicile at
the office of Paribas, ▇ ▇▇▇ ▇'▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, where all writs
and other documents may be served or delivered in relation to any such
action or proceedings.
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24.
Executed in Paris
November [2], 1999
in [4] originals
BUSINESS OBJECTS S.A.
By: ............................................................
Name:
Title:
PARIBAS
By: ............................................................
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
By: ............................................................
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ INC. ET CIE
By: ............................................................
Name:
Title:
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