<PAGE>
As filed with the Securities and Exchange Commission on December 11, 1997
Registration Statement No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM S-8
Registration Statement
Under
The Securities Act of 1933
----------------
BUSINESS OBJECTS S.A.
(Exact name of Registrant as specified in its charter)
----------------
Republic of France None
------------------ ----
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1 Square Chaptal, Levallois-Perret, France 92300
(Address of Registrant's Principal Executive Offices) (Zip Code)
----------------
1995 INTERNATIONAL EMPLOYEE STOCK PURCHASE PLAN, AS AMENDED
FRENCH EMPLOYEE SAVINGS PLAN
(Full titles of the Plans)
----------------
Clifton Thomas Weatherford
Chief Financial Officer
Business Objects Americas
2870 Zanker Road
San Jose, California 95134
(408) 953-6000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
----------------
Copy to:
Kenneth M. Siegel, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
(415) 493-9300
================================================================================
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Registration
to be Registered Registered Per Share Offering Price Fee
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Ordinary Shares, nominal value
one French franc per share (1)
- - Reserved under 1995 International
Employee Stock Purchase Plan,
amended 70,000 $8.2875 $580,125 (2) $175.80
- - Reserved under French
Employee Savings Plan 100,000 $8.95012 $895,012 (3) $264.03
TOTAL 170,000 $1,475,137 $439.83
</TABLE>
- --------------------------------------------------------------------------------
(1) American Depository Shares evidenced by American Depository Receipts
issuable upon deposit of the Ordinary Shares registered hereby have been
registered pursuant to a separate Registration Statement on Form F-6 (File
No. 33-73164).
(2) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee, on the basis of $8.2875 per share (85% of
$9.75, which was the closing price of the American Depository Shares issued
by the Registrant on March 31, 1997, the first day of the current offering
period for the 1995 International Employee Stock Purchase Plan).
(3) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee, based on the price at which the Ordinary
Shares issuable pursuant to the French Employee Savings Plan may be
purchased. The estimated purchase price for the Ordinary Shares to be
registered is $8.95012 per share (80% of $11.18765, the average of the
closing prices of the American Depository Shares issued by the Registrant on
the twenty trading days prior to December 11, 1997).
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Explanatory Note
- ----------------
This Registration Statement on Form S-8 is being filed for the purpose of
registering an additional 70,000 shares of the Registrant's Ordinary Shares to
be issued pursuant to the Registrant's 1995 International Employee Stock
Purchase Plan and an additional 100,000 shares of the Registrant's Ordinary
Shares pursuant to the Registrant's French Employee Savings Plan (together, the
"Plans"). The Registration Statement on Form S-8 previously filed with the
Securities and Exchange Commission relating to the Plans (Commission File No.
333-5672) is incorporated herein by reference.
Item 3. Incorporation of Documents by Reference.
----------------------------------------
The following documents and information heretofore filed with the
Securities and Exchange Commission (the "Commission") by the Registrant are
incorporated herein by reference:
1. The Registrant's Annual Report on Form 20-F for the year ended
December 31, 1996.
2. The Registrant's Report on Form 6-K for the quarterly period
ended March 31, 1997.
3. The Registrant's Report on Form 6-K for the quarterly period
ended June 30, 1997.
4. The Registrant's Report on Form 10-Q for the quarterly period
ended September 30, 1997.
5. The description of Registrant's Ordinary Shares, nominal value
one French franc per share (the "Common Stock"), contained in the
Registrant's Registration Statement on Form 8-A (File No.
0-24720).
All documents subsequently filed by Registrant, and, to the extent
provided therein, any further documents subsequently furnished by the Registrant
(including Form 10-Qs), pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities and Exchange Act of 1934, prior to the filing of a post-effective
amendment which indicates that all securities offered under this registration
statement have been sold or which deregisters all securities then remaining
unsold hereunder, shall be deemed to be incorporated by reference herein and to
be part hereof from the date of filing of such documents.
1
<PAGE>
Item 8. Index to Exhibits.
------------------
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
- ---------- -----------------------------------------------------------------
<C> <S>
3.1 Statuts or charter of the Registrant (English translation).
4.1(1) Form of Deposit Agreement, dated as of May 8, 1996, among
Business Objects S.A., the Bank of New York, as Depositary, and
holders from time to time of American Depositary Shares issued
thereunder (including as an exhibit the form of American
Depositary Receipt and the form of side agreement).
4.2 1995 International Employee Stock Purchase Plan, amended.
4.3(2) French Employee Savings Plan.
5.1 Opinion of Stibbe, Simont, Monahan, Duhot & Giroux as to the
validity of the Ordinary Shares.
23.1 Consent of Ernst & Young LLP, independent accountants.
23.2 Consent of Stibbe, Simont, Monahan, Duhot & Giroux (included in
Exhibit 5.1).
24.1 Powers of Attorney (included on signature page).
</TABLE>
- ----------------
(1) Incorporated by Reference to Exhibit 4.1 to the Registrant's Registration
Statement on Form S-8 (File No. 333-5672).
(2) Incorporated by Reference to Exhibit 4.3 to the Registrant's Registration
Statement on Form S-8 (File No. 333-5672).
2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Paris, France, on December 11, 1997.
BUSINESS OBJECTS S.A.
By: /s/ Bernard Liautaud
----------------------------------------
Bernard Liautaud,
Chairman, President and Chief Executive
Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Bernard
Liautaud and Clifton Thomas Weatherford jointly and severally, his attorneys-
in-fact, each with the power of substitution, for him in any and all capacities,
to sign any amendments to this Registration Statement on Form S-8 and to file
the same, with exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, hereby ratifying and confirming all
that each of said attorney-in-fact, or his substitute or substitutes, may do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on December 11, 1997, by the following
persons in the capacities indicated.
<TABLE>
<CAPTION>
Name Title
- --------------------------------- -----------------------------------------------
<S> <C>
/s/ Bernard Liautaud Chairman, President and Chief Executive Officer
- ---------------------------------
Bernard Liautaud
/s/ Denis Payre Director
- ---------------------------------
Denis Payre
/s/ Clifton Thomas Weatherford Chief Financial Officer (Principal Accounting Officer)
- ---------------------------------
Clifton Thomas Weatherford
Director
- ---------------------------------
Philippe Claude
/s/ Vincent Worms Director
- ---------------------------------
Vincent Worms
/s/ Arnold S. Silverman Director
- ---------------------------------
Arnold N. Silverman
Director
- ---------------------------------
Albert Eisenstat
/s/Clifton Thomas Weatherford Authorized Representative in the United States
- ---------------------------------
Clifton Thomas Weatherford
</TABLE>
3
<PAGE>
Index to Exhibits
-----------------
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
- ------- ---------------------------------------------------------------------
<C> <S>
3.1 Statuts or charter of the Registrant (English translation).
4.1(1) Form of Deposit Agreement, dated as of May 8, 1996, among Business
Objects S.A., the Bank of New York, as Depositary, and holders from
time to time of American Depositary Shares issued thereunder
(including as an exhibit the form of American Depositary Receipt and
the form of side agreement).
4.2 1995 International Employee Stock Purchase Plan, amended.
4.3(2) French Employee Savings Plan.
5.1 Opinion of Stibbe, Simont, Monahan, Duhot & Giroux as to the validity
of the Ordinary Shares.
23.1 Consent of Ernst & Young, independent auditors.
23.2 Consent of Stibbe, Simont, Monahan, Duhot & Giroux (included in
Exhibit 5.1).
24.1 Powers of Attorney (included on signature page).
</TABLE>
- ------------------------------------------
(1) Incorporated by Reference to Exhibit 4.1 to the Registrant's Registration
Statement on Form S-8 (File No. 333-5672).
(2) Incorporated by Reference to Exhibit 4.3 to the Registrant's Registration
Statement on Form S-8 (File No. 333-5672).
<PAGE>
EXHIBIT 3.1
BUSINESS OBJECTS S.A.
A French societe anonyme
with a share capital of FF. 16,492,297
Registered office : 1 Square Chaptal
92300 Levallois-Perret
Register of Commerce and Companies Nanterre B 379 821 994
----------------
UP-DATED BY LAWS
October 1, 1997
<PAGE>
- I -
MEMORANDUM AND ARTICLES OF ASSOCIATION
--------------------------------------
TITLE I
-------
FORM - NAME - OBJECTS - REGISTERED OFFICE - DURATION
----------------------------------------------------
ARTICLE 1 - FORM
- ----------------
There is, between the owners of the shares hereinafter issued and of
those which could be subsequently issued, a corporation (societe anonyme),
governed by the law of July 24, 1966 on commercial companies and by the present
Memorandum and Articles of Association.
ARTICLE 2 - NAME
- ----------------
The name of the company is:
BUSINESS OBJECTS
In all deeds and documents emanating from the company and addressed to
third parties, this name must always be immediately preceded or followed by the
words "Societe anonyme" or the initials "S.A." and by the mention of the amount
of the capital.
ARTICLE 3 - OBJECTS
- -------------------
The objects of the company are, directly and indirectly, in France and
abroad:
- all operations relating to the design and the sale of products and
the rendering of services in the computer industries and in connected
industries;
- and generally, any financial, commercial, industrial, civil, real
estate or chattels operations related directly or indirectly to the above
activities and to any similar or connected activities as well as to any social
properties.
Directly and indirectly on its behalf or on behalf of third parties,
either alone, or with third parties, by way of creation of new companies,
contributions, partnership, subscription, purchase of securities or of social
rights, merger, association, or by way of subleasing of any properties or
rights.
<PAGE>
ARTICLE 4 - REGISTERED OFFICE
- -----------------------------
The registered office of the company is at:
1 Square Chaptal
92300 Levallois-Perret
It may be transferred to any other place within the same district
(departement) or any adjacent district by decision of the board of directors
subject to the ratification of this decision by the next ordinary general
meeting of the shareholders.
It may be transferred to any other place pursuant to a resolution of
the extraordinary general meeting of the shareholders.
ARTICLE 5 - DURATION
- --------------------
The duration of the company shall be of ninety nine (99) years from
the date of registration with the Register of Commerce and Companies, except in
the event of early dissolution or extension decided by the extraordinary meeting
of the shareholders.
*** *** ***
***
<PAGE>
TITLE II
--------
CAPITAL AND SHARES
------------------
ARTICLE 6 - CAPITAL
- -------------------
The capital of the company is of FF. 16,492,297.
It is divided into 16,492,297 shares of FF. 1 each.
Mr. Albert Eisenstat is a recipient of special advantages resulting
from the grant of 12,000 warrants each entitling to the subscription of one
share, by the shareholder meeting held on June 19, 1997. The special advantages
consist in (i) the granting of such warrants without payment as consideration
and (ii) the implementing of a fixed exercise price of FF55.328 per share
corresponding to the estimated value of a share as of April 25, 1997.
Mr. Albert Eisenstat is a recipient of special advantages resulting
from the grant of one warrant entitling to the subscription of 12,000 shares, by
the shareholder meeting held on June 21, 1995. The special advantages consist in
(i) the granting of such warrants without payment as consideration and (ii) the
implementing of a fixed exercise price of FF72.7875 per share corresponding to
the estimated value of a share as of April 25, 1995.
Mr. Vincent Worms is a recipient of special advantages resulting from
the grant of 12,000 warrants each entitling to the subscription of one share, by
the shareholder meeting held on June 19, 1997. The special advantages consist in
(i) the granting of such warrants without payment as consideration and (ii) the
implementing of a fixed exercise price of FF55.328 per share corresponding to
the estimated value of a share as of April 25, 1997.
Mr. Philippe Claude is a recipient of special advantages resulting
from the grant of 12,000 warrants each entitling to the subscription of one
share, by the shareholder meeting held on June 19, 1997. The special advantages
consist in (i) the granting of such warrants without payment as consideration
and (ii) the implementing of a fixed exercise price of FF55.328 per share
corresponding to the estimated value of a share as of April 25, 1997.
Mr. Arnold Silverman is a recipient of special advantages resulting
from the grant of 12,000 warrants each entitling to the subscription of one
share, by the shareholder meeting held on June 19, 1997. The special advantages
consist in (i) the granting of such warrants without payment as consideration
and (ii) the implementing of a fixed exercise price of FF55.328 per share
corresponding to the estimated value of a share as of April 25, 1997.
<PAGE>
Mr. Arnold Silverman is a recipient of special advantages resulting
from the grant of 30,000 warrants each entitling to the subscription of one
share, by the shareholder meeting held on April 6, 1994. The special advantages
consist in (i) the granting of such warrants without payment as consideration
and (ii) the implementing of a fixed exercise price of FF5.518 per share
corresponding to the estimated value of a share as of January 31, 1993.
ARTICLE 7 - FORM OF THE SHARES - TRANSFER OF SHARES
- ---------------------------------------------------
The shares must be in the registered form. The shares are entered into
accounts according to the provisions provided by law and regulations.
The ownership of the registered shares is evidenced by their
registration in registered accounts.
The shares entered into accounts are freely transferred by transfer
from one account to another.
Prior approval of the transferee is required only for partly paid-up
shares.
All costs resulting from the transfer shall be borne by the
transferee.
Shares with payments in arrears are not admitted to transfer.
ARTICLE 8 - RIGHTS AND OBLIGATIONS ATTACHED TO THE SHARES
- ---------------------------------------------------------
The rights and obligations attached to a share follow the share to any
transferee to whom it may be transferred and the transfer includes all the
payable and unpaid dividends and dividends to be payable, as well as, as the
case may be, the corresponding share in the reserve funds and provisions.
The ownership of the a share shall imply ipso facto the acceptance of
the present Memorandum and Articles of Association and of the decision of the
general meetings.
In addition to the right to vote which is attached by law to the
shares, each share carries a right to a share of corporate assets, of profits,
and of liquidation surplus, proportional to the number and nominal value of the
existing shares.
Each time it shall be necessary to hold a certain number of shares in
order to exercise a right, it will up be to the shareholder(s) missing such
number to take the necessary actions to group a sufficient number of shares.
The heirs, creditors, eligible parties or other representatives of a
shareholder cannot, for any reason whatsoever, request the affixing of the
assets of the
<PAGE>
company, or ask for their sharing or auction sale, or to interfere in any manner
in the management of the company; they have, in order to exercise their rights,
to refer themselves to the inventories and to the resolutions of the
shareholders meetings.
The company may require the repurchase, subject to the conditions set
forth in article 269-8 of the law of 24th July 1966, either of all of its shares
with a preferential dividend and no voting right, or of a category of such
shares, each category being determined by the date at which it has been issued.
ARTICLE 9 - PAYING UP OF THE SHARES
- -----------------------------------
The amount to be paid in cash for the subscription of the shares
issued with respect to an increase of capital shall be payable according to the
terms stipulated by the extraordinary general meeting of the shareholders.
The initial payment shall not be less than one half of the nominal
value of the shares at the time of the subscription; it shall include the whole
issuing premium, if any.
The remainder, which shall be paid-up in one or several times within a
period of five years as from the date of completion of such increase of capital,
shall be called upon by the board of directors.
Each shareholder shall be notified of the amount to be paid and of the
date at which this amount shall fall due fifteen days at least before that date.
The shareholder who will not have paid at due date the amounts due on
his share(s) shall, automatically and without formal notice, owe to the company
an interest calculated day per day commencing on due date at the legal rate in
commercial matters increased by three points, without prejudice to the personal
proceedings that the company may institute against the defaulting shareholder
and to the acts of enforcement provided by law.
*** *** ***
***
<PAGE>
TITLE III
---------
MANAGEMENT OF THE COMPANY
-------------------------
ARTICLE 10 - BOARD OF DIRECTORS
- -------------------------------
The company is managed by a board of directors composed of individuals
or legal entities, the number of which is determined by the ordinary general
meeting of the shareholders within the limits of the law.
A legal entity must, at the time of its appointment, designate an
individual who will be its permanent representative on the board of directors.
The term of office of a permanent representative is the same as that of the
director he represents. When a legal entity dismisses its permanent
representative, it must at the same time provide for its replacement. The same
applies in case of death or resignation of the permanent representative.
Each director must own at least one share during his term of office.
If, at the time of his appointment, a director does not own the
required number of shares or if, during his term of office, he ceases to be the
owner thereof, he shall have a period of three months to purchase such number of
shares, in default of which he shall be automatically deemed to have resigned.
The directors are appointed for a term of three years. A year
corresponds to the period of time between two successive annual ordinary general
meetings of shareholders. The duties of a director shall terminate at the close
of the ordinary general meeting of shareholders which acts on the accounts of
the preceding financial year and is held in the year during which the term of
office of said director comes to an end.
The members of the board are renewed in rotation so that the renewal
be as equal as possible and in any case complete for each period of three years.
Renewal takes place according to seniority. However, when required, the ordinary
general meeting may resolve that the order of renewal will be set by a toss
drawn in a board meeting.
The directors may always be re-elected; they may be revoked at any
time by decision of the general meeting of the shareholders.
In case of death or resignation of one or several directors, the board
of directors may make provisional appointments between two meetings of
shareholders.
The appointment(s) so made have to be ratified by the next general
meeting of shareholders.
<PAGE>
Should the meeting of the shareholders not ratify these provisional
appointments, this shall not affect the validity of the prior resolutions and
acts of the board of directors.
When the number of directors falls below the minimum required by law,
the remaining director(s) must immediately convene the ordinary general meeting
of the shareholders, in order to complete the membership of the board of
directors.
The director appointed in replacement of another director, whose term
of office has not come to its end shall remain in office only for the remaining
term of office of his predecessor.
A salaried employee of the company may be appointed as a director. His
employment contract shall correspond to a position actually held. In such case,
he shall not lose the benefit of his employment contract.
The number of directors bound to the company by an employment contract
may not exceed one third of the directors in office.
The number of directors who are more than seventy (70) years old may
not exceed one third of the directors in office. Should such quota be reached
during the director's term of office, the appointment of the oldest director
would be automatically terminated at the close of the nearest general meeting of
the shareholders.
ARTICLE 11 - MEETING OF THE BOARD
- ---------------------------------
11.1. The board of directors shall meet as often as required for the
interest of the company.
11.2. The meetings of the board of directors are convened by the
president. The convening may be made by any means, in oral or written form.
Moreover directors, representing one third at least of the members of
the board, may convene the board. In such case, they shall indicate the agenda
of the meeting.
When a work-committee (comite d'entreprise) has been formed, the
representatives of such committee, appointed in accordance with the provisions
of the Labor Code, shall be convened to all the meetings of the board of
directors.
The meetings of the board are held at the registered office or at any
other place, in France or abroad.
11.3. The board of directors may not transact business validly unless
at least half of its members are present.
<PAGE>
The resolutions of the board of directors shall be carried out at the
majority of the directors, present or represented.
It is specified that any and all decisions to grant options to
subscribe or to buy stock to a director holding an employment contract, to the
president or to the general manager of the Company, if this latter is a
director, pursuant to authority granted by the extraordinary general meeting,
pursuant to the provisions set forth in articles 208-1 and the following of the
Law of July 24, 1966 on commercial companies shall be adopted by the affirmative
vote of the majority of the directors present or represented at the Board
meeting, the interested director, and any other director to whom options to
subscribe or to buy stock may be granted, being conclusively refrained from
voting.
11.4. Any director may give to another director, by letter, cable or
telex, a proxy to be represented at a meeting of the board. However, each
director may only dispose of one proxy during each meeting.
11.5. The copies or extracts of the minutes of the board of directors
are validly certified by the president of the board of directors, a general
manager, the director temporarily delegated in the duties of president or by a
representative duly authorized for that purpose.
ARTICLE 12 - POWERS OF THE BOARD
- --------------------------------
The board of directors is vested with the most extensive powers to act
under all circumstances on behalf of the company, and to make any decisions
relating to all acts of administration and disposition. The board shall exercise
these powers within the limits of the purposes of the company, and of the powers
expressly granted by law to the general meetings of the shareholders.
ARTICLE 13 - GENERAL MANAGEMENT OF THE COMPANY
- ----------------------------------------------
The board of directors shall elect a president, who must be an
individual, from among its members. It shall determine his term of office, which
cannot exceed that of his office as director and may dismiss him at any time.
The board sets his remuneration.
The president of the board is responsible for the general management
of the company.
The president is vested with the most extensive powers to act under
all circumstances on behalf of the company within the limits of the goals of the
company, except for those powers expressly granted by law to the meetings of
shareholders and those specially reserved to the board of directors.
The president of the board cannot be more than sixty five (65) years
old. Should the president reach this age limit during his term of office as
president, his office
<PAGE>
would automatically terminate. Subject to this provision, the president of the
board may always be reelected.
ARTICLE 14 - GENERAL MANAGER (Directeur General)
- ------------------------------------------------
Upon proposal of the president, the board of directors may appoint one
or several individuals to assist the president as general manager. The general
manager(s) may be revoked at any time by the board of directors upon proposal of
the president.
In agreement with the president, the board of directors shall
determine the scope and the duration of the powers delegated to the general
manager. The board sets his remuneration. When a general manager is a director,
his term of office may not exceed that of his directorship.
As regards third parties, general managers have the same powers as the
president. The general managers are, among others, vested with the powers to
bring a matter to court.
Any general manager cannot be more than sixty-five (65) years old.
Should a general manager reach this age limit during his term of office as
general manager, his duties would automatically terminate. This term may be
prolonged however until the next meeting of the board during which the new
general manager will be appointed.
The board may appoint two general managers should the share capital be
of at least five hundred thousand (500,000) francs. Five general managers may be
appointed should the share capital be of at least ten million (10,000,000)
francs, provided that at least three of them are directors.
ARTICLE 15 - AGREEMENTS SUBJECT TO AUTHORIZATION
- ------------------------------------------------
15.1. Any sureties, endorsements and guarantees granted by the company
must be authorized by the board of directors as provided by law.
15.2. Any agreement to be entered into between the company and one of
its directors or general manager(s), whether directly or indirectly or through
an intermediary, must be submitted for the prior authorization of the board of
directors.
Such prior authorization is also required for agreements between the
company and another enterprise, should one of the directors or general managers
of the company be owner, partner with unlimited liability, manager, director,
general manager, member of the management committee (directoire) or supervisory
council (conseil de surveillance) of said enterprise.
Such prior authorization shall be sought as provided by law.
<PAGE>
ARTICLE 16 - PROHIBITED AGREEMENTS
- ----------------------------------
Directors, other than legal entities, are forbidden to contract, in
any form whatsoever, loans from the company, to secure an overdraft from it, as
a current account or otherwise, and to have the company guarantee or secure
their commitments toward third parties.
The same prohibition applies to general managers and to the permanent
representatives of legal entities which are directors. It also applies to
spouses, ascendants and descendants of the persons referred to in this article,
as well as to all interposed persons.
ARTICLE 17 - STATUTORY AUDITORS (Commissaires aux comptes)
- -------------------------------
Audits of the company shall be carried out, as provided by law, by one
or more statutory auditors legally entitled to be elected as such. When the
conditions provided by law are met, the company must appoint at least two
supervisory auditors.
Each statutory auditor shall be appointed by the ordinary general
meeting.
One or more deputy statutory auditors, who may be called to replace
the regular statutory auditors in the case of death, disability, resignation or
refusal to act of the latter, shall be appointed by an ordinary general meeting.
Should the general ordinary meeting of the shareholders fail to elect
a statutory auditor, any shareholder can claim in court that one be appointed,
provided that the President of the board of directors be duly informed. The term
of office of the statutory auditor appointed in court will end upon the
appointment of the statutory auditor(s) by the general ordinary meeting of the
shareholders.
*** *** ***
***
<PAGE>
TITLE IV
--------
MEETINGS OF SHAREHOLDERS
------------------------
ARTICLE 18
- ----------
The general meetings of shareholders shall be convened and held as
provided by law.
The meetings of shareholders are held at the registered office or at
any other place mentioned in the convening notices.
The right to take part in a general meeting of shareholders is subject
to the registration of the shareholder in the books of the company, at least one
business day prior to the date of the meeting.
A shareholder who cannot attend the meeting in person may choose
either:
- to give a proxy to another shareholder or to his/her spouse, or
- to vote by mail, or
- to send to the company a proxy without any indication of the name of
the representative;
within the terms and conditions provided by law and these by-laws.
To be taken into account, the proxies and the forms of vote by mail
must be deposited with the company at least one business day prior to the date
of the meeting.
Meetings of shareholders are presided over by the president of the
board of directors or in his absence, by a director specially authorized for
that purpose by the board. If no president has been appointed, the meeting
elects its president.
The two members of the meeting having the greatest number of votes and
who accept that role, are appointed as scrutineers. The officers of the meeting
appoint a secretary, who may be a non-shareholder.
An attendance sheet is drawn up, in accordance with the law.
The ordinary general meeting of the shareholders, upon first convening
notice, may transact business validly only if the shareholders present, or
represented, hold at least one fourth of the voting shares. Upon second
convening notice, the general meeting may transact business validly whatever the
number of shareholders present or represented.
<PAGE>
The resolutions of the ordinary general meeting shall be carried out
at the majority vote of the shareholders, present or represented.
The extraordinary general meetings of the shareholders, upon first
convening notice, may transact business validly only if the shareholders
present, or represented by proxy, hold at least one third of the voting shares.
Upon second convening notice, the extraordinary general meeting may transact
business validly only if the shareholders present or represented by proxy hold
at least one fourth of the voting shares.
The resolutions of the extraordinary general meeting shall be carried
out at a two third majority vote of the shareholders, present or represented.
The copies or extracts of the minutes of the meeting are certified by
the president of the board of directors, by a director acting as general
manager, or by the secretary of the meeting.
The ordinary and extraordinary meetings of shareholders exercise their
respective powers as provided by law.
*** *** ***
***
<PAGE>
TITLE V
-------
RESULTS OF THE COMPANY
----------------------
ARTICLE 19 - FINANCIAL YEAR
- ---------------------------
Each fiscal year is of one year beginning on January 1 and ending on
December 31.
ARTICLE 20 - PROFITS - LEGAL RESERVE FUNDS
- ------------------------------------------
Out of the profit of a fiscal year, reduced by prior losses if any, an
amount equal to at least 5% thereof is first deducted in order to form the legal
reserve fund provided by law. This deduction is no longer required when the
legal reserve fund amounts to one tenth of the capital of the company.
Distributable profit is the profit of a fiscal year, reduced by prior
losses and by the deduction provided for in the preceding paragraph and
increased by the profits carried forward.
ARTICLE 21 - DIVIDENDS
- ----------------------
If there results a distributable profit from the accounts of the
fiscal year, as approved by the general meeting, the general meeting may decide
to allocate it to one or several reserve funds, the appropriation or use of
which it shall determine, or to carry it forward or to distribute it as
dividends.
Furthermore, after having established the existence of reserves which
it may dispose of, the general meeting may decide the distribution of amounts
paid out of such reserves. In such case, the payments shall be made. However,
the dividends shall be set off by priority on the distributable profit of the
financial year.
The general meeting shall determine the terms of payment of dividends;
failing such determination, these terms shall be determined by the board of
directors.
However, the dividends must be declared payable no more than nine
months following the close of the financial year.
The general meeting deciding upon the accounts of a fiscal year will
be entitled to grant to each shareholder, for all or part of the distributed
dividends, an option between payment in cash or in shares.
Similarly, should the ordinary general meeting resolve the
distribution of interim dividends pursuant to article 347 of the law of 24th
July 1966, it will be entitled
<PAGE>
to grant to each shareholder an interim dividend and, for all or part of the
said interim dividend, an option between payment in cash or in shares.
The offer of payment in shares, the price and the conditions as to the
issuing of such shares, together with the request for payment in shares and the
conditions of the completion of the capital increase will be governed by the law
and regulations.
When a balance sheet, drawn up during, or at the end of the fiscal
year, and certified by the statutory auditor(s), shows that the company, since
the close of the preceding fiscal year, after having made the necessary
depreciations and provisions and after deduction of the prior losses, if any, as
well as of the amounts which are to be allocated to the reserve fund provided by
law or by the by-laws, has made profits, the board of directors may resolve the
distribution of interim dividends prior to the approval of the accounts of the
fiscal year, and may determine the amount thereof and the date of such
distribution. The amount of such interim dividends cannot exceed the amount of
the profits as defined in this paragraph. In this case, the option described in
the preceding paragraph shall not be available.
*** *** ***
***
<PAGE>
TITLE VI
--------
DISSOLUTION - LIQUIDATION
-------------------------
ARTICLE 22 - PREMATURE DISSOLUTION
- ----------------------------------
The extraordinary general meeting may at any time declare the
dissolution of the company before the expiration of its stated duration under
the present Memorandum and Articles of Association.
ARTICLE 23 - LOSS OF ONE HALF OF THE CAPITAL OF THE COMPANY
- -----------------------------------------------------------
If, as a consequence of losses showed by the company's accounts, the
net assets (capitaux propres) of the company are reduced below one half of the
capital of the company, the board of directors must, within four months from the
approval of the accounts showing this loss, convene an extraordinary general
meeting of shareholders in order to decide whether the company ought to be
dissolved before its statutory term.
If the dissolution is not declared, the capital must, at the latest at
the end of the second fiscal year following the fiscal year during which the
losses were established and subject to the legal provisions concerning the
minimum capital of societes anonymes, be reduced by an amount at least equal to
the losses which could not be charged on reserves, if during that period the net
assets have not been restored up to an amount at least equal to one half of the
capital.
In the absence of the meeting of shareholders, or in the case where
this meeting has not been able to validly act, any interested party may
institute legal proceedings to dissolve the company.
ARTICLE 24 - EFFECT OF THE DISSOLUTION OF THE COMPANY
- -----------------------------------------------------
The company is in liquidation as soon as it is dissolved for any
reason whatsover. It continues to exist as a legal entity for the needs of this
liquidation until the liquidation is completed.
During the period of the liquidation, the general meeting shall retain
the same powers it exercised during the life of the company.
The shares shall remain transferable until the completion of the
liquidation proceedings.
The dissolution of the company is only valid vis a vis third parties
as from the date at which it is published at the register of commerce.
<PAGE>
ARTICLE 25 - APPOINTMENT OF LIQUIDATORS - POWERS
- ------------------------------------------------
Upon the expiration of the term of existence of the company or in the
case of its premature dissolution, the meeting of the shareholders shall decide
the method of liquidation and appoint one or several liquidators whose powers it
will determine. The liquidators will exercise their duties according to the law.
The appointment of the liquidator(s) terminates the offices of the directors.
ARTICLE 26 - LIQUIDATION - CLOSING
- ----------------------------------
After payment of the liabilities, the remaining assets shall be used
first for the payment to the shareholders of the amount paid for their shares
and not amortized.
The balance, if any, shall be divided among all the shareholders.
The shareholders shall be convened at the end of the liquidation in
order to decide on the final accounts, to discharge the liquidator from
liability for his acts of management and the performance of his office, and to
take notice of the closing of the liquidation.
The closing of the liquidation is published as provided by law.
*** *** ***
***
<PAGE>
TITLE VII
---------
NOTIFICATIONS
-------------
ARTICLE 27 - NOTIFICATIONS
- --------------------------
All notifications provided for in the present Memorandum and Articles
of Associations shall be made either by registered mail with acknowledgment of
receipt or by process server. Simultaneously a copy of the notification shall be
sent to the recipient by ordinary mail.
*** *** ***
***
<PAGE>
EXHIBIT 4.2
BUSINESS OBJECTS S.A.
1995 INTERNATIONAL EMPLOYEE STOCK PURCHASE PLAN, AMENDED
The following constitute the provisions of the 1995 International
Employee Stock Purchase Plan of Business Objects S.A, as amended pursuant to the
extraordinary general meetings of shareholders of June 13, 1996 and June 19,
1997.
1. Purpose. The purpose of the Plan is to provide employees of the
-------
Company and its Designated Subsidiaries with an opportunity to purchase Common
Stock of the Company through accumulated payroll deductions. It is the intention
of the company to have the Plan qualify as an "Employee Stock Purchase Plan"
under Section 423 of the Internal Revenue Code of 1986, as amended. The
provisions of the Plan, accordingly, shall be construed so as to extend and
limit participation in a manner consistent with the requirements of that section
of the Code.
2. Definitions.
-----------
(A) "ADR" shall mean an American Depositary Receipt evidencing
---
American Depositary Shares corresponding to shares of Common Stock.
(B) "ADS" shall mean an American Depositary Share corresponding to
---
shares of Common Stock.
(C) "Board" shall mean the Board of Directors of Business Objects
-----
S.A.
(D) "Code" shall mean the Internal Revenue Code of 1986, as amended.
----
(E) "Common Stock" shall mean the Common Stock of the Company.
------------
(F) "Company" shall mean Business Objects S.A., a corporation
-------
organized under the laws of the Republic of France.
(G) "Compensation" shall mean all base straight time gross earnings
------------
and sales commissions, exclusive of payments for overtime, shift premium,
incentive compensation, incentive payments, bonuses and other compensation.
(H) "Custodian" shall mean Banque Paribas, or any successor or
---------
successors thereto.
(I) "Depositary" shall mean the Bank of New York, or any successor or
----------
successors thereto.
(J) "Designated Subsidiaries" shall mean the Subsidiaries which have
-----------------------
been designated by the Board from time to time in its sole discretion as
eligible to participate in the Plan.
(K) "Employee" shall mean any individual who is an Employee of the
--------
Company or a Designated Subsidiary for tax purposes. For purposes of the Plan,
the employment relationship shall be treated as continuing intact while the
individual is on sick leave or other leave of absence approved by the Company or
a Designated Subsidiary. Where the period of leave exceeds 90 days and the
individual's right to reemployment is not guaranteed either by statute or by
contract, the employment relationship will be deemed to have terminated on the
91st day of such leave.
(L) "Enrollment Date" shall mean the first day of each Offering
---------------
Period.
(M) "Exercise Date" shall mean the last day of each Offering Period.
-------------
-1-
<PAGE>
(N) "Fair Market Value" means, as of any date, the French franc value
-----------------
of the U.S. dollar value of one ADS (or such other fraction of an ADS which
corresponds, on the last Trading Day prior to the first day of the Offering
Period, or on the last Trading Day of the Offering Period, to one Share of
Common Stock) calculated with reference to the noon buying rate reported by the
----
Federal Reserve Bank of New York (expressed in francs per $1.00) on the Exercise
Date.
The U.S. $ value of one ADS (or such other appropriate fraction of an
ADS as determined in the immediately preceding paragraph) corresponding to one
Share of Common Stock shall be determined as follows:
(1) If the ADSs corresponding to Common Stock are listed on any
established stock exchange or a national market system, including without
limitation the Nasdaq National Market of the National Association of Securities
Dealers, Inc. Automated Quotation ("NASDAQ") System, the Fair Market Value of an
ADS shall be the closing price for such ADS (or the closing bid, if no sales
were reported) as quoted on such system or exchange (or the exchange with the
greatest volume of trading ADSs) on the last Trading Day prior to the first day
of the Offering Period, or on the last Trading Day of the Offering Period, as
reported in The Wall Street Journal or such other source as the Board deems
reliable;
(2) If the ADSs corresponding to Common Stock are quoted on the
NASDAQ System (but not on the Nasdaq National Market thereof) or are regularly
quoted by a recognized securities dealer but selling prices are not reported,
the Fair Market value of an ADS shall be the mean between the high bid and low
asked prices for the ADSs on the last Trading Day prior to the first day of the
Offering Period, or on the last Trading Day of the Offering Period, as reported
in The Wall Street Journal or such other source as the Board deems reliable;
(3) In the absence of an established market for the ADSs or the
Common Stock, the Fair Market Value shall be determined in good faith by the
Board.
(O) "Offering Period" shall mean a period of approximately six (6)
---------------
months, commencing on the first Trading Day on or after April 1 and terminating
on the last Trading Day in the period ending the following September 30, or
commencing on the first Trading Day on or after October 1 and terminating on the
last Trading Day in the period ending the following March 31, at the beginning
of which an option may be granted and at the end of which an option may be
exercised pursuant to the Plan. The duration of Offering Periods may be changed
pursuant to Section 4 of this Plan.
(P) "Plan" shall mean this 1995 International Employee Stock Purchase
----
Plan.
(Q) "Purchase Price" shall mean an amount equal to 85% of the Fair
--------------
Market Value of a share of Common Stock on the last Trading Day prior to the
Enrollment Date or to 85% of the Fair Market Value of a share of Common Stock on
the Exercise Date, whichever is lower.
(R) "Reserves" shall mean the maximum number of shares of Common
--------
Stock which have been authorized for issuance under the Plan pursuant to Section
12 hereof.
(S) "Subsidiary" shall mean a corporation, domestic or foreign, of
----------
which not less than 50% of the voting rights are held by the Company or a
Subsidiary, whether or not such corporation now exists or is hereafter organized
or acquired by the Company or a Subsidiary.
(T) "Trading Day" shall mean a day on which national stock exchanges
-----------
and the National Association of Securities Dealers Automated Quotation (NASDAQ)
System are open for trading.
(U) "Trust" shall mean the trust created by the Business Objects S.A.
-----
Employee Benefits Trust Agreement, attached hereto as Exhibit C.
(V) "Trustee" shall mean the trustee or trustees of the Trust.
-------
-2-
<PAGE>
3. Eligibility.
-----------
(A) Any Employee (as defined in Section 2(k)), who shall be employed
by the Company or a Designated Subsidiary on a given Enrollment Date shall be
eligible to participate in the Plan.
(B) Any provisions of the Plan to the contrary notwithstanding, no
Employee shall be granted an option under the Plan (i) to the extent,
immediately after the grant, such Employee (or any other person whose stock
would be attributed to such Employee pursuant to Section 424(d) of the Code)
would own capital stock of the Company and/or hold outstanding options to
purchase such stock possessing five percent (5%) or more of the total combined
voting power or value of all classes of the capital stock of the Company or of
any Subsidiary, or (ii) to the extent his or her rights to purchase stock under
all employee stock purchase plans of the Company and its Subsidiaries would
accrue at a rate which exceeds Twenty-Five Thousand Dollars ($25,000) worth of
stock (determined with reference to the fair market value of the ADSs at the
time such option is granted) for each calendar year in which such option is
outstanding at any time.
4. Offering Periods. The Plan shall be implemented by consecutive
----------------
Offering Periods with a new Offering Period commencing on the first Trading Day
on or after April 1 and October 1 each year, or on such other date as the Board
shall determine, and continuing thereafter until terminated in accordance with
Section 19 hereof. The Board shall have the power to change the duration of
Offering Periods (including the commencement dates thereof) with respect to
future offerings without shareholder approval if such change is announced at
least fifteen (15) days prior to the scheduled beginning of the first Offering
Period to be affected thereafter.
5. Participation.
-------------
(A) An eligible Employee may become a participant in the Plan by
completing a subscription agreement authorizing payroll deductions in the form
of Exhibit A to this Plan and filing it with the Company's or a Designated
Subsidiary's payroll office prior to the applicable Enrollment Date.
(B) Payroll deductions for a participant shall commence on the first
payroll following the Enrollment Date and shall end on the last payroll in the
Offering Period to which such authorization is applicable, unless sooner
terminated by the participant as provided in Section 10 hereof.
6. Payroll Deductions.
------------------
(A) At the time a participant files his or her subscription
agreement, he or she shall elect to have payroll deductions made on each pay day
during the Offering Period in an amount, together with amounts contributed under
the Company's Plan d'Epargne d'Entreprise (the "Employee Savings Plan"), not to
exceed ten percent (10%) of the Compensation which he or she receives on each
pay day during the Offering Period.
(B) All payroll deductions made for a participant shall be credited
to his or her account under the Plan and will be withheld in whole percentages
only. After the last payday in an Offering Period such payroll deductions shall
be transferred to the Trust as soon as practicable. Funds may be advanced by a
Designated Subsidiary to the Trust, or by the Trust to the Company, as necessary
or convenient under any applicable law or regulation. A participant may not make
any additional payments into his or her account, either with the Company, a
Designated Subsidiary, or the Trust.
(C) A participant may discontinue his or her participation in the
Plan as provided in Section 10 hereof, or may increase or decrease the rate of
his or her payroll deductions during the Offering Period by filing with the
Company or a Designated Subsidiary a new subscription agreement authorizing a
change in payroll deduction rate. The Board or board of directors of a
Subsidiary, as the case may be, may, in its discretion, limit the number of
participation rate changes during any Offering Period. The change in rate shall
be effective with the first full payroll period following five (5) business days
after the Company's or Designated Subsidiary's receipt of the new subscription
agreement unless the Company or Designated Subsidiary elects to process a given
-3-
<PAGE>
change in participation more quickly. A participant's subscription agreement
shall remain in effect for successive Offering Periods unless terminated as
provided in Section 10 hereof.
(D) Notwithstanding the foregoing, to the extent necessary to comply
with Section 423(b)(8) of the Code and Section 3(b) hereof, a participant's
payroll deductions may be decreased to 0% at such time during any Offering
Period which is scheduled to end during the current calendar year (the "Current
Offering Period") in which the aggregate of all payroll deductions which were
previously used to purchase stock under the Plan in a prior Offering Period
which ended during that calendar year plus all payroll deductions accumulated
with respect to the Current Offering Period equal $21,250. Payroll deductions
shall recommence at the rate provided in such participant's subscription
agreement at the beginning of the first Offering Period which is scheduled to
end in the following calendar year, unless terminated by the participant as
provided in Section 10 hereof.
(E) At the time the option is exercised, in whole or in part, or at
the time some or all of the Company's Common Stock issued under the Plan is
disposed of, the participant must make adequate provision for the Company's or
Designated Subsidiary's federal, state, or other tax withholding obligations, if
any, which arise upon the exercise of the option or the disposition of the
Common Stock. At any time, the Company or Designated Subsidiary may, if required
by the laws of the country of residence of the participant, withhold from the
participant's compensation the amount necessary for the Company or Designated
Subsidiary to meet applicable withholding obligations, including any withholding
required to make available to the Company or Designated Subsidiary any tax
deductions or benefits attributable to sale or early disposition of Common Stock
by the Employee.
7. Grant of Option. On the Enrollment Date of each Offering Period, each
---------------
eligible Employee participating in such Offering Period shall be granted an
option to purchase on the Exercise Date of such Offering Period (at the
applicable Purchase Price) up to a number of shares of the Company's Common
Stock (in the form of ADSs) determined by dividing such Employee's payroll
deductions accumulated and transferred to the Trust on or prior to such Exercise
Date by the applicable Purchase Price; provided that in no event shall an
Employee be permitted to purchase during each Offering Period more than 5,000
shares of Common Stock, subject to adjustment as provided in Section 18 hereof;
and provided further, that such purchase shall be subject to the limitations set
forth in Sections 3(b) and 12 hereof. Exercise of the option shall occur as
provided in Section 8 hereof, unless the participant has withdrawn pursuant to
Section 10 hereof, and shall expire on the last day of the Offering Period.
8. Exercise of Option. With respect to each Exercise Date, the Company
------------------
shall issue shares of Common Stock to the Trust in accordance with Section 1.3
of the Trust, sufficient to meet its obligations to participating Employees
under the Plan. Unless a participant withdraws from the Plan as provided in
Section 10 hereof, notice of exercise of his or her option shall be deemed to
have been given by the participant and his or her option for the purchase of
shares of Common Stock (in the form of ADSs) shall be exercised automatically by
the Trustee on the Exercise Date, and the maximum number of full shares subject
to such option shall be purchased for such participant by the Trustee at the
applicable Purchase Price with the accumulated payroll deductions in his or her
account with the Trust, and transferred to the Custodian to be deposited by the
Custodian with the Depositary as ADSs; provided, however, no shares shall be
purchased which would result in the Employee receiving a fractional ADS; any
payroll deductions accumulated in a participant's account which are not
sufficient to purchase a full ADS shall be retained in the participant's account
for use in the subsequent Offering Period, subject to earlier withdrawal by the
participant as provided in Section 10 hereof. Any other monies left over in a
participant's account (whether due to withdrawal by the participant from the
Plan pursuant to Section 10, termination of the Plan in accordance with Section
19, or otherwise) after the Exercise Date shall be returned to the participant.
During a participant's lifetime, a participant's option to purchase ADSs
hereunder is exercisable only by him or her.
9. Delivery. As promptly as practicable after each Exercise Date on which
--------
a purchase of shares occurs, the Trustee shall arrange the delivery of ADSs to
the Depositary by the Custodian representing the shares purchased upon exercise
of options by the Trustee for the participating Employees.
10. Withdrawal; Termination of Employment.
-------------------------------------
(A) A participant may withdraw all but not less than all the payroll
deductions credited to his or her account with the Company or Designated
Subsidiary at any time prior to the transfer of funds made pursuant to Section
6(b) by giving written notice to the Company or Designated Subsidiary in the
form of Exhibit B to this
-4-
<PAGE>
Plan. All of the participant's payroll deductions credited to his or her account
will be paid to such participant promptly after receipt of notice of withdrawal
and such participant's option for the Offering Period will be automatically
terminated, and no further payroll deductions for the purchase of ADSs will be
made during the Offering Period. If a participant withdraws from an Offering
Period, payroll deductions will not resume at the beginning of the succeeding
Offering Period unless the participant delivers to the Company or Designated
Subsidiary a new subscription agreement.
(B) Upon a participant's ceasing to be an Employee (as defined in
Section 2(k) hereof) for any reason, he or she will be deemed to have elected to
withdraw from the Plan and the payroll deductions credited to such participant's
account during the Offering Period but not yet used to exercise the option will
be returned to such participant or, in the case of his or her death, to the
person or persons entitled thereto under Section 14 hereof, and such
participant's option will be automatically terminated; provided, however, that
any payroll deductions held by the Trust in an individual account for an
Employee shall be subject to the terms of such Trust. The preceding sentence
notwithstanding, a participant who receives payment in lieu of notice of
termination of employment shall be treated as continuing to be an Employee for
the participant's customary number of hours per week of employment during the
period in which the participant is subject to such payment in lieu of notice.
(C) A participant's withdrawal from an Offering Period will not have
any effect upon his or her eligibility to participate in any similar plan which
may hereafter be adopted by the Company or a Designated Subsidiary or in
succeeding Offering Periods which commence after the termination of the Offering
Period from which the participant withdraws.
11. Interest. No interest shall accrue on the payroll deductions of a
--------
participant in the Plan.
12. Stock.
-----
(A) The maximum number of shares of the Company's Common Stock
authorized for sale under the Plan shall be 150,022 shares, subject to
adjustment upon changes in capitalization of the Company as provided in Section
18 hereof. Capital increases to meet the Company's obligations under the Plan
shall be determined and approved at extraordinary shareholders' meeting to be
held at the same time as the annual shareholders' meetings of the Company, as
necessary.
(B) The Board shall from time to time reserve and issue to the Trust
a number of shares sufficient to meet its obligations under the current Offering
Period of the Plan. If on a given Exercise Date the number of shares with
respect to which options are to be exercised exceeds the number of shares then
available under the Plan, the Company shall distribute all of the shares
remaining available for purchase under the Plan to the Trust, which shall make a
pro rata allocation to the participating Employees.
(C) The participant will have no interest or voting rights in shares
covered by his or her option until such option has been exercised.
(D) ADSs to be delivered to a participant under the Plan will be
registered in the name of the participant or in the name of the participant and
his or her spouse, or in street name to be deposited with a broker.
13. Administration.
--------------
(A) Administrative Body. The Plan shall be administered by the Board
-------------------
(or a committee thereof) or the board of directors of a participating Subsidiary
(or a committee thereof), as the case may be. Such board or committee shall have
full and exclusive discretionary authority to construe, interpret and apply the
terms of the Plan, to determine eligibility and to adjudicate all disputed
claims filed under the Plan with respect to any Employee of such Company or
Subsidiary; provided, however, that any such construction, interpretation,
application, determination and/or adjudication shall be subject to any terms,
constructions, conditions, provisions, interpretations, determinations,
adjudications, or decisions as may be adopted or made by the Board from time to
time. Every finding, decision and determination made by the Board or its
committee shall, to the full extent permitted by law, be final and binding upon
all parties.
-5-
<PAGE>
(B) Rule 16b-3 Limitations. Notwithstanding the provisions of
----------------------
Subsection (a) of this Section 13, in the event that Rule 16b-3 promulgated
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
any successor provision ("Rule 16b-3") provides specific requirements for the
administrators of plans of this type, and Rule 16b-3 or such successor provision
is applicable to the Plan, the Plan shall be administered only by such a body
and in such a manner as shall comply with the applicable requirements of Rule
16b-3. Unless permitted by Rule 16b-3, no discretion concerning decisions
regarding the Plan shall be afforded to any committee or person that is not
"disinterested" as that term is used in Rule 16b-3.
14. Designation of Beneficiary.
--------------------------
(A) A participant, except for a participant who is an Employee of
Business Objects U.K., may file a written designation of a beneficiary who is to
receive any ADSs and cash, if any, from the participant's account under the Plan
in the event of such participant's death subsequent to an Exercise Date on which
the option is exercised but prior to delivery to such participant of such ADSs
and cash. In addition, a participant may file a written designation of a
beneficiary who is to receive any cash from the participant's account under the
Plan in the event of such participant's death prior to exercise of the option.
If a participant is married and the designated beneficiary is not the spouse,
spousal consent shall be required for such designation to be effective.
(B) Such designation of beneficiary may be changed by the participant
at any time by written notice. In the event of the death of a participant and in
the absence of a beneficiary validly designated under the Plan who is living at
the time of such participant's death, the Company shall cause such ADSs and/or
cash to be delivered to the executor or administrator of the estate of the
participant, or if no such executor or administrator has been appointed (to the
knowledge of the Company), the Company, in its discretion, may cause such ADSs
and/or cash to be delivered to the spouse or to any one or more dependents or
relatives of the participant, or if no spouse, dependent or relative is known to
the Company, then to such other person as the Company may designate.
15. Transferability. Neither payroll deductions credited to a
---------------
participant's account nor any rights with regard to the exercise of an option or
to receive ADSs under the Plan may be assigned, transferred, pledged or
otherwise disposed of in any way (other than by will, the laws of descent and
distribution or as provided in Section 14 hereof) by the participant. Any such
attempt at assignment, transfer, pledge or other disposition shall be without
effect, except that the Company may treat such act as an election to withdraw
funds from an Offering Period in accordance with Section 10 hereof.
16. Use of Funds. All payroll deductions received or held by the Company
------------
or Subsidiary under the Plan for its Employees may be used by the Company or
such Subsidiary, as the case may be, for any corporate purpose, and the Company
or Subsidiary shall not be obligated to segregate such payroll deductions.
Notwithstanding the preceding sentence, all payroll deductions transferred to
and held by the Trust shall be used solely by the Trust as specified in the
Trust agreement attached hereto as Exhibit C.
17. Reports. Individual accounts will be maintained for each participating
-------
Employee by the Company or the Designated Subsidiary as well as the Trust.
Statements of account will be given to participating Employees at least
annually, which statements will set forth the amounts of payroll deductions, the
Purchase Price, the number of ADSs purchased and the remaining cash balance, if
any, for the period covered by such statement.
18. Adjustments Upon Changes in Capitalization.
------------------------------------------
(A) Changes in Capitalization. Subject to any required action by the
-------------------------
shareholders of the Company, the Reserves shall be proportionately adjusted for
any increase or decrease in the number of issued shares of Common Stock
resulting from a stock split, reverse stock split, combination or
reclassification of the Common Stock, or any other increase or decrease in the
number of shares of Common Stock effected without receipt of consideration by
the Company; provided, however, that conversion of any convertible securities of
the Company shall not be deemed to have been "effected without receipt of
consideration". Such adjustment shall be made by the Board, whose determination
in that respect shall be final, binding and conclusive. Except as expressly
provided herein, no issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or price
of shares of Common Stock subject to an option.
-6-
<PAGE>
(B) Dissolution or Liquidation. In the event of the proposed
--------------------------
dissolution or liquidation of the Company, the Offering Period and the Plan will
terminate immediately prior to the consummation of such proposed action and any
and all accumulated payroll deductions will be returned to the participating
Employees in accordance with Section 19(a), unless otherwise provided by the
Board.
(C) Merger or Asset Sale. In the event of a proposed sale of all or
--------------------
substantially all of the assets of the Company, or the merger of the Company
with or into another corporation, each option under the Plan shall be assumed or
an equivalent option shall be substituted by such successor corporation or a
parent or subsidiary of such successor corporation, unless the Board determines,
in the exercise of its sole discretion and in lieu of such assumption or
substitution, to shorten the Offering Period then in progress by setting a new
Exercise Date (the "New Exercise Date") or to cancel each outstanding right to
purchase and refund all sums collected from participants during the Offering
Period then in progress. If the Board shortens the Offering Period then in
progress in lieu of assumption or substitution in the event of a merger or sale
of assets, the Board shall notify each participant in writing, at least ten (10)
business days prior to the New Exercise Date, that the Exercise Date for his
option has been changed to the New Exercise Date and that his option will be
exercised automatically on the New Exercise Date, unless prior to such date he
has withdrawn from the Offering Period as provided in Section 10 hereof. For
purposes of this paragraph, an option granted under the Plan shall be deemed to
be assumed if, following the sale of assets or merger, the option confers the
right to purchase, for each share of option stock subject to the option
immediately prior to the sale of assets or merger, the consideration (whether
stock, cash or other securities or property) received in the sale of assets or
merger by holders of Common Stock for each share of Common Stock held on the
effective date of the transaction (and if such holders were offered a choice of
consideration, the type of consideration chosen by the holders of a majority of
the outstanding shares of Common Stock); provided, however, that if such
consideration received in the sale of assets or merger was not solely common
stock of the successor corporation or its parent (as defined in Section 424(e)
of the Code), the Board may, with the consent of the successor corporation,
provide for the consideration to be received upon exercise of the option to be
solely common stock of the successor corporation or its parent equal in fair
market value to the per share consideration received by holders of Common Stock
and the sale of assets or merger.
The Board may, if it so determines in the exercise of its sole discretion,
also make provision for adjusting the Reserves in the event the Company effects
one or more reorganizations, recapitalization, rights offerings or other
increases or reductions of shares of its outstanding Common Stock, and in the
event of the Company being consolidated with or merged into any other
corporation.
19. Amendment or Termination.
------------------------
(A) The Board, but not the board of directors of a Subsidiary, may at
any time and for any reason terminate or amend the Plan. Except as provided in
Section 18 hereof, no such termination can affect options previously granted,
provided that an Offering Period may be terminated by the Board on any Exercise
Date if the Board determines that the termination of the Plan is in the best
interests of the Company and its shareholders. In the event that an Offering
Period is terminated (or the Plan is terminated during an Offering Period), any
and all accumulated payroll deductions shall be returned to the participating
Employees. Except as provided in Section 18 hereof, no amendment may make any
change in any option theretofore granted which adversely affects the rights of
any participant. To the extent necessary to comply with Rule 16b-3 or under
Section 423 of the Code (or any successor rule or provision or any other
applicable law or regulation), the Company shall obtain shareholder approval in
such a manner and to such a degree as required.
(B) Without shareholder consent and without regard to whether any
participant rights may be considered to have been "adversely affected," the
Board (or its committee) shall be entitled to change the Offering Periods, limit
the frequency and/or number of changes in the amount withheld during an Offering
Period, establish the exchange ratio applicable to amounts withheld in a
currency other than U.S. dollars, permit payroll withholding in excess of the
amount designated by a participant in order to adjust for delays or mistakes in
the Company's or Designated Subsidiary's processing of properly completed
withholding elections, establish reasonable waiting and adjustment periods
and/or accounting and crediting procedures to ensure that amounts applied toward
the purchase of Common Stock for each participant properly correspond with
amounts withheld from the participant's Compensation, and establish such other
limitations or procedures as the Board (or its committee) determines in its sole
discretion advisable which are consistent with the Plan.
-7-
<PAGE>
20. Notices. All notices or other communications by a participant to the
-------
Company or Designated Subsidiary under or in connection with the Plan shall be
deemed to have been duly given when received in the form specified by the
Company or Designated Subsidiary at the location, or by the person, designated
by the Company or Designated Subsidiary for the receipt thereof.
21. Conditions Upon Issuance. Neither ADSs nor ADRs shall be issued by the
------------------------
Depositary with respect to an option unless the exercise of such option and the
issuance and delivery of such ADSs or ADRs pursuant thereto, as well as the
issuance of shares from the Company to the Trust and the transfer of shares from
the Trust to the Custodian, shall comply with all applicable provisions of law,
domestic or foreign, including, without limitation, the Securities Act of 1933,
as amended, the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder, French Law No. 66-537 of July 24, 1966
relating to commercial companies, and the requirements of any stock exchange
upon which the ADSs may then be listed, and shall be further subject to the
approval of counsel for the Company with respect to such compliance.
As a condition to the exercise of an option, the Company or Trustee may
require the person exercising such option to represent and warrant at the time
of any such exercise that the ADSs are being purchased only for investment and
without any present intention to sell or distribute such ADSs if, in the opinion
of counsel for the Company, such a representation is required by any of the
aforementioned applicable provisions of law.
22. Term of Plan. The Plan shall become effective upon the earlier to
------------
occur of its adoption by the Board of Directors or its approval by the
shareholders of the Company. It shall continue in effect for a term of ten (10)
years unless sooner terminated under Section 19 hereof.
23. Governing Law and Jurisdiction. This Plan shall be governed by and
------------------------------
construed in accordance with the laws of the State of California, except for
that body of law pertaining to conflicts of laws.
-8-
<PAGE>
Exhibit A
---------
BUSINESS OBJECTS S.A.
---------------------
1995 INTERNATIONAL EMPLOYEE STOCK PURCHASE PLAN
PARTICIPATION AGREEMENT
[U.S. Employees Only]
_____ Original Application Enrollment Date: __________
_____ Change in Payroll Deduction Rate
_____ Change of Beneficiary(ies)
1. _____________________________________ hereby elects to participate in
the Business Objects S.A. 1995 International Employee Stock Purchase
Plan (the "International Employee Stock Purchase Plan") and to purchase
ADSs of the Company in accordance with this Participation Agreement and
the International Employee Stock Purchase Plan.
2. I hereby authorize the Company or any Designated Subsidiary of which I
am an Employee to make payroll deductions from each paycheck in the
amount of ____% of my Compensation on each payday (together with
amounts contributed under the Employee Savings Plan, not to exceed 10%)
during the Offering Period in accordance with the International
Employee Stock Purchase Plan. (Please note that only whole percentages
are permitted.)
3. I understand that said payroll deductions shall be accumulated for the
purchase of ADSs at the applicable Purchase Price determined in
accordance with the International Employee Stock Purchase Plan. I
understand that if I do not withdraw from an Offering Period, any
accumulated payroll deductions will be used by the Trustee to
automatically exercise my option.
4. I have received a copy of the complete "International Employee Stock
Purchase Plan." I understand that my participation in the International
Employee Stock Purchase Plan is in all respects subject to the terms of
the Plan. I understand that the grant of the option by the Company
under this Participation Agreement may be subject to obtaining
shareholder approval of the International Employee Stock Purchase Plan,
any Exhibit thereto and/or any amendment thereto.
5. ADSs purchased for me under the Employee Stock Purchase Plan should be
issued in the name(s) of (Employee or Employee and Spouse Only):
_________________________
6. I understand that if I dispose of any ADSs received by me pursuant to
the Plan within 2 years after the Enrollment Date (the first day of the
Offering Period during which I purchased such ADSs), I will be treated
for United States federal income tax purposes (if subject to such
taxes) as having received ordinary income at the time of such
disposition in an amount equal to the excess of the fair market value
of the ADSs at the time such ADSs were purchased by me over the price
which I paid for the ADSs. I hereby agree to notify the Company in
---------------------------------------
writing within 30 days after the date of any disposition of ADSs and I
----------------------------------------------------------------------
will make adequate provision for Federal, state or other tax
------------------------------------------------------------
withholding obligations, if any, which arise upon the disposition of
--------------------------------------------------------------------
the ADSs. The Company or any of its Subsidiaries may, but will not be
--------
obligated to, withhold from my compensation the amount necessary to
meet any applicable withholding obligation including any withholding
necessary to make available to the Company or any of its Subsidiaries
any tax deductions or benefits attributable to sale or early
disposition of ADSs by me. If I dispose of such ADSs at any time after
the expiration of the 2-year holding period, I understand that I will
be treated for United States federal income tax purposes as having
received income only at the time of such disposition, and that such
income will be taxed as ordinary income only to the extent of an amount
equal to the lesser of (1) the
-9-
<PAGE>
excess of the fair market value of the ADSs at the time of such
disposition over the purchase price which I paid for the ADSs, or (2)
15% of the fair market value of the ADSs on the first day of the
Offering Period. The remainder of the gain, if any, recognized on such
disposition will be taxed as capital gain.
7. I hereby agree to be bound by the terms of the International Employee
Stock Purchase Plan. The effectiveness of this Participation Agreement
is dependent upon my eligibility to participate in the International
Employee Stock Purchase Plan.
8. In the event of my death, I hereby designate the following as my
beneficiary(ies) to receive all payments and ADSs due me under the
Employee Stock Purchase Plan:
NAME: (Please print)
----------------------------------------------------
(First) (Middle) (Last)
- ------------------------- -------------------------------------
Relationship to Employee (Address)
-------------------------------------
(Address)
NAME: (Please print)
----------------------------------------------------
(First) (Middle) (Last)
- ------------------------- -------------------------------------
Relationship to Employee (Address)
-------------------------------------
(Address)
Employee's Social
Security Number:
-------------------------------------
Employee's Address:
-------------------------------------
-------------------------------------
I UNDERSTAND THAT THIS PARTICIPATION AGREEMENT SHALL REMAIN IN EFFECT THROUGHOUT
SUCCESSIVE OFFERING PERIODS UNLESS TERMINATED BY ME.
Dated:
------------------- -------------------------------------
Signature of Employee
----------------------------------
Spouse's Signature
(If beneficiary other than spouse)
-10-
<PAGE>
Exhibit A-1
-----------
BUSINESS OBJECTS S.A.
---------------------
1995 INTERNATIONAL EMPLOYEE STOCK PURCHASE PLAN
PARTICIPATION AGREEMENT
[Non-U.S. Employees]
_____ Original Application Enrollment Date: __________
_____ Change in Payroll Deduction Rate
1. _____________________________________ hereby elects to participate in
the Business Objects S.A. 1995 International Employee Stock Purchase
Plan (the "International Employee Stock Purchase Plan").
2. I hereby authorize the Company or any Designated Subsidiary of which I
am an Employee to make payroll deductions from each paycheck in the
amount of ____% of my Compensation on each payday (together with
amounts contributed under the Company's Employee Savings Plan, not to
exceed 10%) during the Offering Period in accordance with the
International Employee Stock Purchase Plan. (Please note that only
whole percentages are permitted.)
3. I understand that said payroll deductions shall be accumulated in order
to exercise the option(s) granted to me pursuant to the International
Employee Stock Purchase Plan and to purchase ADSs representing shares
of Common Stock at the applicable Purchase Price determined in
accordance with the International Employee Stock Purchase Plan. I
understand that if I do not elect to withdraw from an Offering Period,
any accumulated payroll deductions will be used by the Trustee to
automatically exercise my option.
4. I have received a copy of the complete International Employee Stock
Purchase Plan. I understand that my participation in the International
Employee Stock Purchase Plan is in all respects subject to the terms of
the Plan. I understand that the grant of the option by the Company
under this Participation Agreement may be subject to obtaining
shareholder approval of the International Employee Stock Purchase Plan,
any Exhibit thereto and/or any amendment thereto.
5. ADSs purchased for me under the Employee Stock Purchase Plan should be
issued in the name of (Employee Only): _______________________________
6. I understand that, notwithstanding any other provision of this
Participation Agreement or the International Employee Stock Purchase
Plan:
(A) neither the International Employee Stock Purchase Plan nor
this Participation Agreement shall form any part of any
contract of employment between the Company or any Designated
Subsidiary and any Employees of any such company, and it shall
not confer on any participant any legal or equitable rights
(other than those constituting the Options themselves) against
the Company or any Designated Subsidiary, directly or
indirectly, or give rise to any cause of action in law or in
equity against the Company or any subsidiary;
(B) the benefits to participants under the Plan shall not form any
part of their wages, pay or remuneration or count as wages,
pay or remuneration for pension fund or other purposes;
(C) in no circumstances shall any Employee on ceasing to hold his
or her office or employment by virtue of which he or she is or
may be eligible to participate in the International Employee
Stock Purchase Plan be entitled to any compensation for any
loss of any right or benefit or prospective
-11-
<PAGE>
right or benefit under the Plan, which he might otherwise have
enjoyed, whether such compensation is claimed by way of
damages for wrongful dismissal or other breach of contract or
by way of compensation for loss of office or otherwise."
(D) the Company expressly retains the right to terminate the
International Employee Stock Purchase Plan at any time and
that I will have no right to continue to receive option grants
under the International Employee Stock Purchase Plan in such
event.
7. I understand that I may be subject to taxation as a result of my
participation under the International Employee Stock Purchase Plan. I
have consulted any tax advisors in connection with my participation
under the International Employee Stock Purchase Plan that I deem
advisable, and have not relied on the Company for tax advice.
8. I hereby agree to be bound by the terms of the International Employee
Stock Purchase Plan. The effectiveness of this Participation Agreement
is dependent upon my eligibility to participate in the International
Employee Stock Purchase Plan.
I UNDERSTAND THAT THIS PARTICIPATION AGREEMENT SHALL REMAIN IN EFFECT THROUGHOUT
SUCCESSIVE OFFERING PERIODS UNLESS TERMINATED BY ME.
Employee's Taxpayer
Identification Number:
-----------------------------------
Employee's Address:
-----------------------------------
-----------------------------------
-----------------------------------
Dated:
------------------- -----------------------------------
Signature of Employee
-12-
<PAGE>
Exhibit B
---------
BUSINESS OBJECTS S.A.
---------------------
1995 INTERNATIONAL EMPLOYEE STOCK PURCHASE PLAN
NOTICE OF WITHDRAWAL
The undersigned participant in the Offering Period of the Business
Objects S.A. 1995 International Employee Stock Purchase Plan which began on
___________ 19____ (the "Enrollment Date") hereby notifies the Company or
Designated Subsidiary that he or she hereby withdraws from the Offering Period.
He or she hereby directs the Company or Designated Subsidiary to pay to the
undersigned as promptly as practicable all the payroll deductions credited to
his or her account with the Company or Designated Subsidiary with respect to
such Offering Period. The undersigned understands and agrees that his or her
Option for such Offering Period will be automatically terminated. The
undersigned understands further that no further payroll deductions will be made
for the purchase of ADSs in the current Offering Period and the undersigned
shall be eligible to participate in succeeding Offering Periods only by
delivering to the Company or Designated Subsidiary a new Participation
Agreement.
Name and Address of Participant:
-------------------------------
-------------------------------
-------------------------------
Signature:
-------------------------------
Date:
-------------------------
<PAGE>
EXHIBIT 5.1
Business Objects S.A.
European Headquarters
1 Square Chaptal
92309 Levallois-Perret
France
September 26, 1997
Ladies and Gentlemen:
In connection with the registration under the Securities Act of
1993, as amended (the "Act"), of up to a maximum number of 170,000 ordinary
shares (the "Shares"), nominal value one French franc per ordinary share, of
Business Objects S.A., a societe anonyme organized under the laws of the
Republic of France (the "Company"), we, as your French Counsel, have examined
copies of the following documents:
i. a certified copy of the text of the fifteenth resolution of the
meeting of the shareholders of the Company held on June 19, 1997,
(a) deciding inter alia the issue of 100,000 ordinary new shares
and reservation of subscription to said shares to the benefit of
the salaried employees of the Company having adhered or to adhere
to the Savings Plans and (b) determining the subscription price to
said shares;
ii. a certified copy of the results of the vote at such meeting for the
fifteenth resolution established by Banque Paribas;
iii. a certified copy of the seventeenth resolution of the meeting of
the shareholders of the Company held on June 19, 1997 (a) deciding
inter alia the issue of 70,000 ordinary new shares pursuant to the
1995 International Employee Stock Purchase Plan and reservation of
subscription to said shares to the benefit of Business Objects SA
Employee Benefits Trust and (b) determining the subscription price
to said shares;
iv. a certified copy of the results of the vote at such meeting for the
sixteenth and seventeenth resolutions established by Banque
Paribas;
<PAGE>
v. the up-dated by-laws ("statuts") of the Company dated as of June
19, 1997 (the "Statuts");
vi. a certified copy of the 1995 International Employee Stock Purchase
Plan Amended,
together with such other corporate documents and such questions of law, as we
have considered necessary or appropriate for the purpose of this opinion.
In the context of such examination we have assumed:
(a) that the definitive terms and conditions of the 1995
International Employee Stock Purchase Plan Amended and the
1995 French Employee Savings Plan (together the "1995
Employee Plans") have been determined respectively in
accordance with the terms of the resolutions of the meeting
of the shareholders of the Company held on June 21, 1995 and
June 13, 1996, the Statuts and the applicable law;
(b) the genuineness of all signatures and the authenticity of all
documents submitted to us as originals and the conformity
with the originals of all documents submitted to us as
copies;
(c) that the Beneficiaries to the benefit of whom the Shares will
be issued pursuant to the 1995 International Employee Stock
Purchase Plan Amended will have validly adhered to the terms
and conditions of said Plan;
(d) that the Beneficiaries to the benefit of whom the Shares will
be issued pursuant to the 1995 French Employee Savings Plan
will have validly adhered to the terms and conditions of said
Plan; and
(e) that the definitive terms and conditions of the issue of the
Shares, including the issue price, will have been determined
by the board of directors in accordance with the terms of the
shareholders' authorizations granted at the meeting of the
shareholders of the Company referred to in paragraphs (i) and
(iii) above.
Upon the basis of such examination and subject to any matter not
disclosed to us by the parties concerned, we advise you that, in our opinion,
any Shares to be issued pursuant to the implementation of either of the 1995
Employee Plans, to the extent they are issued in compliance with the provisions
of the relevant 1995 Employees Plans, the Statuts and the then applicable law,
and are fully paid up in accordance with the provisions of the relevant 1995
Employees Plans, will be validly issued, fully paid up and nonassessable.
<PAGE>
The foregoing opinion is limited to the laws of the Republic of
France, and we are expressing no opinion as to the effect of the laws under any
other jurisdiction.
We have relied as to certain matters on information obtained from
officials of the Company and other sources believed by us to be responsible.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement. In giving such consent, we do not thereby admit that
we are in the category of persons whose consent is required under Section 7 of
the Act.
Very truly yours,
Olivier Edwards Patrick Bonvarlet
<PAGE>
Exhibit 23.1
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in the Registration Statement
on Form S-8 to be filed on December 11, 1997 pertaining to the 1995
International Employee Stock Purchase Plan as amended and French Employee
Savings Plan of Business Objects, S.A., of our report dated January 31,
1997, with respect to the consolidated financial statements and schedule of
Business Objects, S.A. included in its Annual Report (Form 20-F) for the
year ended December 31, 1996, filed with the Securities and Exchange
Commission.
ERNST & YOUNG LLP
San Jose, California
December 11, 1997
