8-K

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT
Pursuant to Section 13 OR 15(d) of the Securities Exchange Act of 1934

July 18, 2003
(Date of earliest event reported)
 

Business Objects S.A.

(Exact name of Registrant as specified in its charter)

Republic of France
(State of incorporation or organization) 0-24720
(Commission File No.) 98-0355777
(IRS Employer Identification No.)

157-159 Rue Anatole France, 92300 Levallois-Perret, France
(Address of principal executive offices)
 

(408) 953-6000
(Registrant’s telephone number, including area code)
 

N/A
(Former name or former address, if changed since last report)

TABLE OF CONTENTS

	Item 5. Other Events.
	Item 7. Exhibits.
SIGNATURE
EXHIBIT INDEX
EXHIBIT 2.1
EXHIBIT 2.2
EXHIBIT 2.3
EXHIBIT 2.4
EXHIBIT 2.5

Item 5. Other Events.

     On July 18, 2003, Business Objects S.A., a société anonyme organized under the laws of the Republic of France (“Business Objects”), Borg Merger Sub I, Inc., a Delaware corporation and wholly-owned subsidiary of Business Objects (“Merger Sub 1”), Borg Merger Sub II, Inc., a Delaware corporation and wholly-owned subsidiary of Business Objects (“Merger Sub 2”), Borg Merger Sub III, Inc., a Delaware corporation and wholly-owned subsidiary of Business Objects (“Merger Sub 3”), Seagate Software (Cayman) Holdings, an exempted company incorporated in the Cayman Islands with limited liability (“HoldCo”), and Crystal Decisions, Inc., a Delaware corporation (“Crystal Decisions”), entered into an Agreement and Plan of Merger (the “Merger Agreement”), pursuant to which, subject to satisfaction or waiver of the conditions therein, (i) Merger Sub 1 will merge with and into HoldCo (the “HoldCo Merger”), (ii) immediately following the HoldCo Merger, the surviving corporation of the HoldCo Merger will merge with and into Merger Sub 2 (the “Second HoldCo Merger”), (iii) immediately following the Second HoldCo Merger, Merger Sub 3 will merge with and into Crystal Decisions (the “Crystal Merger”), and (iv) immediately following the Crystal Merger, the surviving corporation of the Crystal Merger will merge with and into the surviving corporation of the Second HoldCo Merger (the “Second Crystal Merger,” and together with the HoldCo Merger, the Second HoldCo Merger and Crystal Merger, the “Mergers”).

     Under the terms of the Merger Agreement, upon consummation of the Mergers, holders of common stock of HoldCo and holders of common stock of Crystal Decisions (other than HoldCo and other than Crystal Decisions stockholders who exercise appraisal rights under Delaware law), in each case issued and outstanding immediately prior to the consummation of the Mergers, will receive, subject to certain adjustments, (i) a number of newly issued Business Objects American depositary shares (“ADSs”), each ADS representing one ordinary share of Business Objects (or, at the election of any such stockholder, ordinary shares of Business Objects) calculated in accordance with the provisions of the Merger Agreement based on the number of shares of Crystal Decisions common stock issued and outstanding immediately prior to the consummation of the Mergers, and (ii) cash, without interest, in an amount equal to $300,000,000 divided by the number of shares of Crystal Decisions common stock issued and outstanding immediately prior to the consummation of the Mergers. In addition, certain options to acquire Crystal Decisions common stock outstanding immediately prior to the consummation of the Mergers will, upon consummation of the Mergers, be converted into options to acquire Business Objects ADSs. Based on the shares of Crystal Decisions common stock outstanding on a fully diluted basis (calculated using the treasury share method) as of the close of business on July 18, 2003 and the market price of Business Objects ADSs as of such date, as a result of the Mergers, Business Objects would issue approximately 26.5 million ordinary shares (whether initially in the form of ordinary shares or ADSs).

     The Mergers are conditioned upon, among other things, (i) the approval of the stockholders of Business Objects and Crystal Decisions, (ii) clearance under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and the receipt of any other material approvals under applicable foreign antitrust laws, and (iii) other customary conditions. In lieu of a meeting of the stockholders of Crystal Decisions, on July 18, 2003, HoldCo, which held approximately 98.7% of the outstanding shares of Crystal Decisions common stock on such date,

executed an action by written consent approving and adopting the Merger Agreement and approving the Crystal Merger and the Second Crystal Merger.

     The parties currently expect the Mergers to close in the fourth calendar quarter of 2003; although, there can be no assurances that the Mergers will close in that time period.

     The foregoing description of the Merger Agreement does not purport to be complete, and is qualified in its entirety by reference to such agreement, a copy of which is filed as Exhibit 2.1 hereto and is incorporated herein by reference.

     In connection with the execution of the Merger Agreement, Business Objects, New SAC, the sole stockholder of HoldCo, and certain stockholders of New SAC, entered into a stockholders agreement (the “Stockholders Agreement”), which will become effective upon the completion of the Mergers. The Stockholders Agreement sets forth the rights and obligations of the parties thereto with respect to various corporate matters of Business Objects following the completion of the Mergers. Among other things, the Stockholders Agreement contains provisions that address standstill restrictions, transfer restrictions, registration rights, and board representation. The foregoing description of the Stockholders Agreement does not purport to be complete, and is qualified in its entirety by reference to such agreement, a copy of which is filed as Exhibit 2.2 hereto and is incorporated herein by reference.

     In connection with the execution of the Merger Agreement, Business Objects, Merger Sub 1, Merger Sub 2, Merger Sub 3, and New SAC, entered into a support agreement (the “Support Agreement”), pursuant to which, among other things, New SAC agreed to execute an action by written consent approving the Merger Agreement and approving the HoldCo Merger and the Second HoldCo Merger. New SAC delivered such executed action by written consent to Business Objects on July 22, 2003. The foregoing description of the Support Agreement does not purport to be complete, and is qualified in its entirety by reference to such agreement, a copy of which is filed as Exhibit 2.3 hereto and is incorporated herein by reference.

     In connection with the execution of the Merger Agreement, Business Objects, Merger Sub 1, Merger Sub 2, Merger Sub 3 and HoldCo, entered into a support agreement (the “Company Support Agreement”), pursuant to which, among other things, HoldCo agreed to execute an action by written consent approving the Merger Agreement and approving the Crystal Merger and the Second Crystal Merger. HoldCo delivered such executed action by written consent to Business Objects on July 18, 2003. The foregoing description of the Company Support Agreement does not purport to be complete, and is qualified in its entirety by reference to such agreement, a copy of which is filed as Exhibit 2.4 hereto and is incorporated herein by reference.

     In connection with the execution of the Merger Agreement, Business Objects, Crystal Decisions and certain stockholders of Business Objects entered into voting agreements (the “Voting Agreements”), pursuant to which, among other things, such Business Objects stockholders agreed to vote their shares in favor of the Mergers and certain related matters. The foregoing description of the Voting Agreements does not purport to be complete, and is qualified in its entirety by reference to such agreements, a form of which is filed as Exhibit 2.5 hereto and is incorporated herein by reference.

Item 7. Exhibits.

2.1	Agreement and Plan of Merger, dated as of July 18, 2003, by and among Business Objects, Merger Sub 1, Merger Sub 2, Merger Sub 3, HoldCo and Crystal Decisions.
2.2	Stockholders Agreement, dated as of July 18, 2003, by and among Business Objects, New SAC and certain stockholders of New SAC.
2.3	Support Agreement, dated as of July 18, 2003, by and among Business Objects, Merger Sub 1, Merger Sub 2, Merger Sub 3 and New SAC.
2.4	Company Support Agreement, dated as of July 18, 2003, by and among Business Objects, Merger Sub 1, Merger Sub 2, Merger Sub 3 and HoldCo.
2.5	Form of Voting Agreement by and among Business Objects, Crystal Decisions and certain stockholders of Business Objects.

SIGNATURE

     Pursuant to the requirements of the Securities Exchange Act of 1934, Business Objects has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

BUSINESS OBJECTS S.A.
By:	/s/ James R. Tolonen
Name: Title:	James R. Tolonen Chief Financial Officer and Senior Group Vice President

Date: July 25, 2003

EXHIBIT INDEX

Exhibit No.	Description
2.1	Agreement and Plan of Merger, dated as of July 18, 2003, by and among Business Objects, Merger Sub 1, Merger Sub 2, Merger Sub 3, HoldCo and Crystal Decisions.
2.2	Stockholders Agreement, dated as of July 18, 2003, by and among Business Objects, New SAC and certain stockholders of New SAC.
2.3	Support Agreement, dated as of July 18, 2003, by and among Business Objects, Merger Sub 1, Merger Sub 2, Merger Sub 3 and New SAC.
2.4	Company Support Agreement, dated as of July 18, 2003, by and among Business Objects, Merger Sub 1, Merger Sub 2, Merger Sub 3 and HoldCo.
2.5	Form of Voting Agreement by and among Business Objects, Crystal Decisions and certain stockholders of Business Objects.

EX-2.1 3 f91683exv2w1.txt EXHIBIT 2.1 EXHIBIT 2.1 EXECUTION COPY AGREEMENT AND PLAN OF MERGER BY AND AMONG BUSINESS OBJECTS S.A. AND BORG MERGER SUB I, INC. AND BORG MERGER SUB II, INC. AND BORG MERGER SUB III, INC. AND SEAGATE SOFTWARE (CAYMAN) HOLDINGS AND CRYSTAL DECISIONS, INC. DATED AS OF JULY 18, 2003 TABLE OF CONTENTS

PAGE ---- ARTICLE I THE MERGERS ................................................... 3 Section 1.1 The Mergers ......................................... 3 Section 1.2 Effective Times ..................................... 3 Section 1.3 Closing ............................................. 4 Section 1.4 Effects of the Mergers .............................. 5 Section 1.5 Certificates of Incorporation and Bylaws ............ 6 Section 1.6 Directors and Officers .............................. 7 ARTICLE II CONVERSION OF SECURITIES ..................................... 8 Section 2.1 HoldCo Merger - Treatment of Securities ............. 8 Section 2.2 Second HoldCo Merger - Treatment of Securities ...... 8 Section 2.3 Company Merger - Treatment of Securities ............ 9 Section 2.4 Second Company Merger - Treatment of Securities ..... 12 Section 2.5 Exchange and Payment ................................ 13 Section 2.6 Parent Shares ....................................... 14 ARTICLE III COMPANY REPRESENTATIONS AND WARRANTIES ...................... 17 Section 3.1 Organization ........................................ 17 Section 3.2 Capitalization ...................................... 18 Section 3.3 Authority; Consents and Approvals; No Violations .... 19 Section 3.4 Company SEC Filings; Financial Statements ........... 21 Section 3.5 Absence of Certain Changes .......................... 23 Section 3.6 No Undisclosed Liabilities .......................... 24 Section 3.7 Real and Personal Property .......................... 25 Section 3.8 Litigation .......................................... 25 Section 3.9 Compliance with Laws ................................ 26 Section 3.10 Intellectual Property; Privacy ...................... 26 Section 3.11 Taxes ............................................... 29 Section 3.12 Employee Benefits ................................... 31 Section 3.13 Labor ............................................... 33 Section 3.14 Environmental Matters ............................... 34 Section 3.15 Transactions with Affiliates ........................ 34 Section 3.16 Insurance ........................................... 35 Section 3.17 Certain Identified Contracts and Relationships ...... 35 Section 3.18 Brokers' and Finders' Fees .......................... 37 Section 3.19 Opinion of Financial Advisor ........................ 38 ARTICLE IV HOLDCO REPRESENTATIONS AND WARRANTIES ........................ 38 Section 4.1 Organization ........................................ 38 Section 4.2 Capitalization ...................................... 38 Section 4.3 Authority; Consents and Approvals; No Violations .... 39 Section 4.4 Business Operations ................................. 40 Section 4.5 Authority; Consents and Approvals; No Violations .... 40

-i- TABLE OF CONTENTS (CONTINUED)

PAGE ---- ARTICLE V PARENT REPRESENTATIONS AND WARRANTIES ......................... 40 Section 5.1 Organization ........................................ 40 Section 5.2 Capitalization ...................................... 41 Section 5.3 Authority; Consents and Approvals; No Violations .... 42 Section 5.4 Parent SEC Filings; Financial Statements ............ 43 Section 5.5 Absence of Certain Changes .......................... 45 Section 5.6 No Undisclosed Liabilities .......................... 45 Section 5.7 Parent Material Contracts ........................... 46 Section 5.8 Intellectual Property; Privacy ...................... 46 Section 5.9 Taxes ............................................... 47 Section 5.10 Merger Subs ......................................... 47 Section 5.11 Availability of Funds ............................... 47 Section 5.12 Litigation .......................................... 47 Section 5.13 Compliance with Laws ................................ 47 Section 5.14 Brokers' and Finders' Fees .......................... 48 Section 5.15 Opinion of Financial Advisor ........................ 48 ARTICLE VI CONDUCT OF THE COMPANY'S BUSINESS PENDING THE MERGERS ........ 48 Section 6.1 Interim Conduct of the Company ...................... 48 Section 6.2 Acquisition Proposals ............................... 53 ARTICLE VII CONDUCT OF PARENT'S BUSINESS PENDING THE MERGERS ............ 55 Section 7.1 Interim Conduct of Parent ........................... 55 Section 7.2 Acquisition Proposals ............................... 56 ARTICLE VIII ADDITIONAL AGREEMENTS ...................................... 58 Section 8.1 Approval of Transactions; Stockholders' Meetings .... 58 Section 8.2 Approval by Parent .................................. 59 Section 8.3 Parent Proxy Statement; Registration Statement ...... 60 Section 8.4 Confidentiality ..................................... 62 Section 8.5 Public Disclosure ................................... 62 Section 8.6 Listing of Parent Shares ............................ 62 Section 8.7 Form S-8 ............................................ 63 Section 8.8 Board of Directors .................................. 63 Section 8.9 Affiliates .......................................... 63 Section 8.10 Access to Information ............................... 63 Section 8.11 Notification ........................................ 64 Section 8.12 Regulatory Filings; Reasonable Efforts .............. 64 Section 8.13 Anti-Takeover Laws .................................. 67 Section 8.14 Rescission Offer .................................... 67 Section 8.15 Resignations and Appointments ....................... 67 Section 8.16 Employee Benefits ................................... 68 Section 8.17 Veritas Agreement ................................... 69 Section 8.18 Financial Statements and Consents of Accountants .... 69 Section 8.19 Subsequent Financial Statements ..................... 69

-ii- TABLE OF CONTENTS (CONTINUED)

PAGE ---- Section 8.20 Conveyance and Other Taxes .......................... 69 Section 8.21 Company Stock Options ............................... 70 Section 8.22 Section 16 Matters .................................. 70 Section 8.23 Transaction Expenses ................................ 70 Section 8.24 Indemnification ..................................... 70 Section 8.25 Treatment as Reorganization ......................... 71 Section 8.26 Merger Sub Compliance ............................... 72 Section 8.27 FIRPTA Certificate .................................. 72 Section 8.28 Withdrawal of Company Form S-1 ...................... 72 Section 8.29 280G Approval ....................................... 72 Section 8.30 HoldCo Domestication ................................ 72 Section 8.31 Transaction Structure ............................... 72 ARTICLE IX CONDITIONS ................................................... 73 Section 9.1 Conditions to Each Party's Obligation to Effect the Mergers ............................................. 73 Section 9.2 Additional Conditions to Obligations of Parent to Effect the Mergers .................................. 74 Section 9.3 Additional Conditions to Obligation of HoldCo and the Company to Effect the Mergers ....................... 76 Section 9.4 Condition to the Second HoldCo Merger ............... 78 Section 9.5 Condition to the Company Merger ..................... 78 Section 9.6 Condition to the Second Company Merger .............. 78 ARTICLE X TERMINATION ................................................... 78 Section 10.1 Termination ......................................... 78 Section 10.2 Notice of Termination; Effect of Termination ........ 80 Section 10.3 Fees and Expenses ................................... 80 Section 10.4 Amendment ........................................... 81 Section 10.5 Extension; Waiver ................................... 81 ARTICLE XI DEFINITIONS AND INTERPRETATION ............................... 82 Section 11.1 Definitions ......................................... 82 Section 11.2 Interpretation ...................................... 87 ARTICLE XII MISCELLANEOUS ............................................... 88 Section 12.1 Non-Survival of Representations and Warranties ...... 88 Section 12.2 Notices ............................................. 88 Section 12.3 Counterparts ........................................ 90 Section 12.4 Entire Agreement; Third Party Beneficiaries ......... 90 Section 12.5 Severability ........................................ 91 Section 12.6 Other Remedies; Specific Performance ................ 91 Section 12.7 Governing Law ....................................... 91 Section 12.8 Rules of Construction ............................... 91 Section 12.9 Assignment .......................................... 91 Section 12.10 No Waiver; Remedies Cumulative ...................... 92 Section 12.11 Waiver of Jury Trial ................................ 92

-iii- INDEX OF EXHIBITS Exhibit A Stockholder Agreement Exhibit B-1 HoldCo Stockholder Support Agreement Exhibit B-2 HoldCo Support Agreement Exhibit C Form of Voting Agreement AGREEMENT AND PLAN OF MERGER This AGREEMENT AND PLAN OF MERGER (this "Agreement"), is entered into as of July 18, 2003 by and among Business Objects S.A., a societe anonyme organized under the laws of the Republic of France ("Parent"), Borg Merger Sub I, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub 1"), Borg Merger Sub II, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub 2"), Borg Merger Sub III, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub 3"), Seagate Software (Cayman) Holdings, an exempted company incorporated in the Cayman Islands ("HoldCo"), and Crystal Decisions, Inc., a Delaware corporation (the "Company"). RECITALS WHEREAS, the parties to this Agreement contemplate a transaction pursuant to which (1) Merger Sub 1 will merge with and into HoldCo (the "HoldCo Merger"), (2) immediately following the HoldCo Merger, the surviving corporation of the HoldCo Merger will merge with and into Merger Sub 2 (the "Second HoldCo Merger"), (3) immediately following the Second HoldCo Merger, Merger Sub 3 will merge with and into the Company (the "Company Merger"), and (4) immediately following the Company Merger, the surviving corporation of the Company Merger will merge with and into the surviving corporation of the Second HoldCo Merger (the "Second Company Merger," and together with the HoldCo Merger, the Second HoldCo Merger and the Company Merger, the "Mergers"); WHEREAS, the board of directors of each of Parent, Merger Sub 1, Merger Sub 2, Merger Sub 3, HoldCo and the Company has approved, and deems it advisable and in the best interests of such corporation and its stockholders to consummate, to the extent applicable, the Mergers upon the terms and subject to the conditions set forth herein; WHEREAS, the board of directors of each of Parent, Merger Sub 1, Merger Sub 2, Merger Sub 3, HoldCo and the Company has unanimously approved this Agreement and the transactions contemplated hereby, including, to the extent applicable, the Mergers, in accordance with applicable law and upon the terms and subject to the conditions set forth herein; WHEREAS, the board of directors of Parent has resolved to recommend to its stockholders the approval and adoption of this Agreement and the approval of the Mergers and the other transactions contemplated hereby; WHEREAS, New SAC, a Cayman Islands corporation (the "HoldCo Stockholder"), as the sole stockholder of HoldCo, has approved and adopted this Agreement and approved the HoldCo Merger; WHEREAS, concurrently with the execution and delivery of this Agreement, and as a condition and inducement to the willingness of Parent, Merger Sub 1, Merger Sub 2, Merger Sub 3 to enter into this Agreement, HoldCo Stockholder is entering into (i) a stockholder agreement in the form attached hereto as Exhibit A and (ii) a support agreement in the form attached hereto as Exhibit B-1; WHEREAS, concurrently with the execution and delivery of this Agreement, and as a condition and inducement to the willingness of Parent, Merger Sub 1, Merger Sub 2, Merger Sub 3 to enter into this Agreement, HoldCo is entering into a support agreement in the form attached hereto as Exhibit B-2; WHEREAS, Parent, as the sole stockholder of Merger Sub1, Merger Sub 2 and Merger Sub 3, has approved and adopted this Agreement and approved the Mergers; WHEREAS, concurrently with the execution and delivery of this Agreement, and as a condition and inducement to the willingness of HoldCo and the Company to enter into this Agreement, certain of Parent's stockholders are entering into voting agreements in the form attached hereto as Exhibit C (the "Voting Agreements"); WHEREAS, concurrently with the execution and delivery of this Agreement, and as a condition and inducement to Parent's and Merger Sub's willingness to enter into this Agreement, HoldCo Stockholder is entering into an indemnification agreement; WHEREAS, for United States federal income tax purposes, the parties intend that the HoldCo Merger when taken together with the Second HoldCo Merger and the Company Merger when taken together with the Second Company Merger each qualify as a "reorganization" under the provisions of Section 368(a) of the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder (the "Code"), and the parties intend, by executing this Agreement, that this Agreement constitute a "plan of reorganization" for each such merger within the meaning of Treasury Regulation Section 1.368-2(g); and WHEREAS, Parent, Merger Sub 1, Merger Sub 2, Merger Sub 3, HoldCo and the Company each desires to make certain representations, warranties, covenants and agreements in connection with the Mergers and the other transactions contemplated hereby and also to prescribe certain conditions to the Mergers. NOW, THEREFORE, in consideration of the foregoing and the respective covenants, agreements, representations and warranties set forth herein, intending to be legally bound, the parties agree as follows: -2- ARTICLE I THE MERGERS Section 1.1 The Mergers. (a) HoldCo Merger. Subject to the terms and conditions of this Agreement and the applicable provisions of the Delaware General Corporation Law (the "DGCL"), at the HoldCo Merger Effective Time, Merger Sub 1 will be merged with and into HoldCo. As a result of the HoldCo Merger, the separate corporate existence of Merger Sub 1 will cease and HoldCo will continue as the surviving corporation in the HoldCo Merger (the "HoldCo Merger Surviving Corporation"). (b) Second HoldCo Merger. Subject to the terms and conditions of this Agreement and the applicable provisions of the DGCL, immediately after the HoldCo Merger, the HoldCo Merger Surviving Corporation will be merged with and into Merger Sub 2. As a result of the Second HoldCo Merger, the separate corporate existence of the HoldCo Merger Surviving Corporation will cease and Merger Sub 2 will continue as the surviving corporation in the Second HoldCo Merger (the "Second HoldCo Merger Surviving Corporation"). (c) Company Merger. Subject to the terms and conditions of this Agreement and the applicable provisions of the DGCL, immediately after the Second HoldCo Merger, Merger Sub 3 will be merged with and into the Company. As a result of the Company Merger, the separate corporate existence of Merger Sub 3 will cease and the Company will continue as the surviving corporation in the Company Merger (the "Company Merger Surviving Corporation"). (d) Second Company Merger. Subject to the terms and conditions of this Agreement and the applicable provisions of the DGCL, immediately after the Company Merger, the Company Merger Surviving Corporation will be merged with and into the Second HoldCo Merger Surviving Corporation. As a result of the Second Company Merger, the separate corporate existence of the Company Merger Surviving Corporation will cease and the Second HoldCo Merger Surviving Corporation will continue as the surviving corporation in the Second Company Merger (the "Surviving Corporation"). Section 1.2 Effective Times. On the Closing Date, Parent, Merger Sub 1, Merger Sub 2, Merger Sub 3 and the Company will cause the Mergers to be consummated by filing the following certificates of merger with the Secretary of State of the State of Delaware in accordance with the relevant provisions of the DGCL and other applicable law: (a) a certificate of merger with regard to the HoldCo Merger (the "HoldCo Certificate of Merger") and, immediately thereafter, a certificate of merger -3- with regard to the Second HoldCo Merger (the "Second HoldCo Certificate of Merger"); and (b) a certificate of merger with regard to the Company Merger (the "Company Certificate of Merger") and, immediately thereafter, a certificate of merger with regard to the Second Company Merger (the "Second Company Certificate of Merger"). The HoldCo Merger will become effective on the date that the HoldCo Certificate of Merger is filed with the Secretary of State of the State of Delaware, or such other time as agreed in writing by Parent and the Company and specified in the HoldCo Certificate of Merger (such time, the "HoldCo Merger Effective Time"). The Second HoldCo Merger will become effective immediately after the HoldCo Merger Effective Time, or such other time as agreed in writing by Parent and the Company and specified in the Second HoldCo Certificate of Merger (such time, the "Second HoldCo Merger Effective Time"). The Company Merger will become effective on the date that the Company Certificate of Merger is filed with the Secretary of State of the State of Delaware, or such other time as agreed in writing by Parent and the Company and specified in the Company Certificate of Merger (such time, the "Company Merger Effective Time"). The Second Company Merger will become effective immediately after the Company Merger Effective Time, or such other time as agreed in writing by Parent and the Company and specified in the Second Company Certificate of Merger (such time, the "Second Company Merger Effective Time"). Section 1.3 Closing. (a) Closing Date. Subject to the terms of Article IX, the closing of the Mergers (the "Closing") will take place at 6:00 a.m. California time at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, 525 University Avenue, Palo Alto, California, 94301, as soon as practicable, but in any event within two (2) business days after the satisfaction or waiver of all of the conditions set forth in Article IX (other than the condition specified in Section 9.1(a) and those conditions which by their terms are to be satisfied at the Closing) unless Parent, HoldCo and the Company agree in writing to another time, date or location (the "Closing Date"). (b) Closing Actions. (i) On the Closing Date the following shall occur in the following order: (1) the HoldCo Certificate of Merger shall be filed with the Secretary of State of the State of Delaware and 100% of the HoldCo Stockholder's equity interest in HoldCo, together with 100% of Option Sub's equity interest in HoldCo will be transferred to Parent (the transfer of the HoldCo's Stockholder's equity interest in HoldCo, the "HoldCo Stockholder's Contribution," the transfer of Option Sub's equity interest in HoldCo, the "Option Sub's Contribution" and, collectively with the HoldCo Stockholder's Contribution, the "HoldCo Contributions"); -4- (2) the Second HoldCo Certificate of Merger shall be filed with the Secretary of State of the State of Delaware; (3) the Company Certificate of Merger shall be filed with the Secretary of State of the State of Delaware and 100% of the equity interest of the Contributing Company Common Stockholders' interest in the Company will be transferred to Parent (the "Contributing Company Common Stockholders' Contributions" and, collectively with the HoldCo Contributions, the "Contributions"); and (4) the Second Company Certificate of Merger shall be filed with the Secretary of State of the State of Delaware; (ii) In addition, on the Closing Date the following shall also occur: (1) The Parent stockholders shall meet and approve (x) the Mergers, (y) the issuance of Parent Shares to the HoldCo Common Stockholders, Option Sub and the Contributing Company Common Stockholders in the amounts to which such stockholders are entitled pursuant to Sections 2.1(a), 2.1(b) and 2.3(a)(i) hereof in consideration of the Contributions (the "Capital Increase"), and (z) the appointment of two additional members to Parent's board of directors; and (2) Parent's board of directors shall take the necessary steps to implement the Capital Increase and cause the payment of the Per Share Cash Consideration. Section 1.4 Effects of the Mergers. (a) HoldCo Merger. At the HoldCo Merger Effective Time, the HoldCo Merger will have the effects as provided in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the HoldCo Merger Effective Time, all the property, rights, privileges, powers and franchises of Merger Sub 1 will vest in the HoldCo Merger Surviving Corporation, and all debts, liabilities, obligations, restrictions, disabilities and duties of Merger Sub 1 will become the debts, liabilities, obligations, restrictions, disabilities and duties of the HoldCo Merger Surviving Corporation. (b) Second HoldCo Merger. At the Second HoldCo Merger Effective Time, the Second HoldCo Merger will have the effects as provided in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Second HoldCo Merger Effective Time, all the property, rights, privileges, powers and franchises of the HoldCo Merger Surviving Corporation will vest in the Second HoldCo Merger Surviving Corporation, and all debts, liabilities, obligations, restrictions, disabilities and duties of the HoldCo Merger Surviving Corporation will become the debts, liabilities, obligations, restrictions, disabilities and duties of the Second HoldCo Merger Surviving Corporation. -5- (c) Company Merger. At the Company Merger Effective Time, the Company Merger will have the effect as provided in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Company Merger Effective Time, all the property, rights, privileges, powers and franchises of Merger Sub 3 will vest in Company Merger Surviving Corporation, and all debts, liabilities, obligations, restrictions, disabilities and duties of Merger Sub 3 will become the debts, liabilities, obligations, restrictions, disabilities and duties of the Company Merger Surviving Corporation. (d) Second Company Merger. At the Second Company Merger Effective Time, the Second Company Merger will have the effect as provided in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Second Company Merger Effective Time, all the property, rights, privileges, powers and franchises of the Company Merger Surviving Corporation will vest in Surviving Corporation, and all debts, liabilities, obligations, restrictions, disabilities and duties of the Company Merger Surviving Corporation will become the debts, liabilities, obligations, restrictions, disabilities and duties of the Surviving Corporation. Section 1.5 Certificates of Incorporation and Bylaws. (a) HoldCo Merger. At the HoldCo Merger Effective Time, (i) the certificate of incorporation of Merger Sub 1, as in effect immediately prior to the HoldCo Merger Effective Time, will be the certificate of incorporation of the HoldCo Merger Surviving Corporation, until thereafter amended as provided by law and such certificate of incorporation, and (ii) the bylaws of Merger Sub 1, as in effect immediately prior to the HoldCo Merger Effective Time, will be the bylaws of the HoldCo Merger Surviving Corporation until thereafter amended as provided by law, the certificate of incorporation of the HoldCo Merger Surviving Corporation and such bylaws. (b) Second HoldCo Merger. At the Second HoldCo Merger Effective Time, (i) the certificate of incorporation of Merger Sub 2, as in effect immediately prior to the Second HoldCo Merger Effective Time, will be the certificate of incorporation of the Second HoldCo Merger Surviving Corporation, until thereafter amended as provided by law and such certificate of incorporation, and (ii) the bylaws of Merger Sub 2, as in effect immediately prior to the Second HoldCo Merger Effective Time, will be the bylaws of the Second HoldCo Merger Surviving Corporation until thereafter amended as provided by law, the certificate of incorporation of the Second HoldCo Merger Surviving Corporation and such bylaws. (c) Company Merger. At the Company Merger Effective Time, (i) the certificate of incorporation of Merger Sub 3, as in effect immediately prior to the Company Merger Effective Time, will be the certificate of incorporation of the Company Merger Surviving Corporation, until thereafter amended as provided by law and such certificate of incorporation, and (ii) the bylaws of Merger Sub 3, as in effect immediately prior to the Company Merger Effective Time, will be the bylaws of the Company Merger Surviving Corporation until thereafter amended as provided by law, the -6- certificate of incorporation of the Company Merger Surviving Corporation and such bylaws. (d) Second Company Merger. At the Second Company Merger Effective Time, (i) the certificate of incorporation of the Second HoldCo Merger Surviving Corporation, as in effect immediately prior to the Second Company Merger Effective Time, will be the certificate of incorporation of the Surviving Corporation, until thereafter amended as provided by law and such certificate of incorporation, and (ii) the bylaws of the Second HoldCo Surviving Corporation, as in effect immediately prior to the Second Company Merger Effective Time, will be the bylaws of the Surviving Corporation until thereafter amended as provided by law, the certificate of incorporation of the Surviving Corporation and such bylaws. Section 1.6 Directors and Officers. (a) HoldCo Merger. The directors of Merger Sub 1 immediately prior to the HoldCo Merger Effective Time will be the initial directors of the HoldCo Merger Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the HoldCo Merger Surviving Corporation, until their respective successors are duly elected or appointed and qualified. The officers of Merger Sub 1 immediately prior to the HoldCo Merger Effective Time will be the initial officers of the HoldCo Merger Surviving Corporation until their respective successors are duly appointed. (b) Second HoldCo Merger. The directors of the HoldCo Merger Surviving Corporation immediately prior to the Second HoldCo Merger Effective Time will be the initial directors of the Second HoldCo Merger Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Second HoldCo Merger Surviving Corporation, until their respective successors are duly elected or appointed and qualified. The officers of the HoldCo Merger Surviving Corporation immediately prior to the Second HoldCo Merger Effective Time will be the initial officers of the Second HoldCo Merger Surviving Corporation until their respective successors are duly appointed. (c) Company Merger. The directors of Merger Sub 3 immediately prior to the Company Merger Effective Time will be the initial directors of the Company Merger Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Company Merger Surviving Corporation, until their respective successors are duly elected or appointed and qualified. The officers of Merger Sub 3 immediately prior to the Second Company Merger Effective Time will be the initial officers of Merger Sub 3 until their respective successors are duly appointed. (d) Second Company Merger. The directors of the Second HoldCo Merger Surviving Corporation immediately prior to the Second Company Merger Effective Time will be the initial directors of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation, until their respective successors are duly elected or appointed and -7- qualified. The officers of the Second HoldCo Merger Surviving Corporation immediately prior to the Second Company Merger Effective Time will be the initial officers of the Surviving Corporation until their respective successors are duly appointed. ARTICLE II CONVERSION OF SECURITIES Section 2.1 HoldCo Merger - Treatment of Securities. At the HoldCo Merger Effective Time, by virtue of the HoldCo Merger and without any action on the part of any party, the following will occur: (a) HoldCo Common Stock. Each share of HoldCo's common stock, par value $1.00 per share (the "HoldCo Common Stock"), issued and outstanding immediately prior to the HoldCo Merger Effective Time, will be automatically converted into the right to receive the Common Stock Merger Consideration multiplied by a fraction, (i) the numerator of which shall equal the Majority Shares and (ii) the denominator of which shall be the number of issued and outstanding shares of HoldCo Common Stock. (b) HoldCo Preferred Stock. Each share of HoldCo preferred stock, par value $0.001 per share (the "HoldCo Preferred Stock"), issued in accordance with the provisions of Section 8.21 and held by Option Sub immediately and outstanding prior to the HoldCo Merger Effective Time, will be automatically converted into the right to receive a number of Parent Shares equal to the product of the Closing Stock Option Number and the Option Exchange Ratio. (c) Capital Stock of Merger Sub 1. Each share of common stock, par value $0.001, of Merger Sub 1 issued and outstanding immediately prior to the HoldCo Merger Effective Time shall be converted into one validly issued, fully paid and nonassessable share of common stock, par value $0.001 per share, of the HoldCo Merger Surviving Corporation. Section 2.2 Second HoldCo Merger - Treatment of Securities. At the Second HoldCo Merger Effective Time, by virtue of the Second HoldCo Merger and without any action on the part of any party, the following will occur: (a) Capital Stock of HoldCo Merger Surviving Corporation. All of the shares of the HoldCo Merger Surviving Corporation common stock, par value $0.001 per share, issued and outstanding immediately prior to the Second HoldCo Merger Effective Time, will be automatically converted into the right to receive the equal number of shares of common stock, par value $0.001 per share, of Merger Sub 2; and (b) Capital Stock of Merger Sub 2. Each share of common stock, par value $0.001, of Merger Sub 2 issued and outstanding immediately prior to the Second HoldCo Merger Effective Time shall remain issued and outstanding immediately after the Second HoldCo Merger Effective Time. -8- Section 2.3 Company Merger - Treatment of Securities. At the Company Merger Effective Time, by virtue of the Company Merger and without any action on the part of any party, the following will occur: (a) Company Common Stock. Each share of the Company's common stock, par value $0.001 per share (the "Company Common Stock"), issued and outstanding immediately prior to the Company Merger Effective Time, other than Dissenting Shares (as defined in Section 2.6(i)), held by stockholders of the Company other than the Second HoldCo Merger Surviving Corporation (the "Contributing Company Common Stockholders"), will be automatically converted into the right to receive: (i) such number of validly issued and fully paid American depositary shares ("Parent ADSs"), each Parent ADS representing one validly issued and fully paid ordinary share, nominal value EUR 0.10 per share, of Parent (a "Parent Ordinary Share," referred to interchangeably with a Parent ADS in this Agreement as a "Parent Share") as is equal to the Common Stock Exchange Ratio); provided, however, that each holder of shares of Company Common Stock may elect to receive, with respect to any or all Parent ADSs to which it is entitled pursuant to this Article II, in lieu of each Parent ADS, one Parent Ordinary Share; and (ii) an amount in cash, without interest, equal to the Per Share Cash Consideration. (b) Certain Definitions. As used in this Agreement, the following terms shall be described as set forth in this Section 2.3(b). (i) "Closing Common Stock Number" shall mean the aggregate number of shares of Company Common Stock issued and outstanding immediately prior to the HoldCo Merger Effective Time. (ii) "Closing Option Exercise Proceeds" shall mean the aggregate gross cash proceeds actually received by the Company from the exercise of Company Stock Options between the date hereof and the HoldCo Merger Effective Time. (iii) "Closing Options Intrinsic Value" shall mean (i) the product of (A) the Common Stock Closing Value and (B) the Closing Stock Option Number, minus (ii) the Unexercised Options Proceeds Amount. (iv) "Common Stock Closing Value" shall mean a fraction (i) the numerator of which shall be the sum of (A) the Closing Treasury Common Stock Amount, plus (B) $300,000,000, plus (C) the Unexercised Options Proceeds Amount, plus (D) the Closing Option Exercise Proceeds, and (ii) the denominator of which shall be the sum of -9- (A) the Closing Common Stock Number and (B) the Closing Stock Option Number. (v) "Common Stock Exchange Ratio" shall mean a fraction (i) the numerator of which shall equal the total of Factor One minus Factor Two minus Factor Three plus Factor Four, and (ii) the denominator of which shall equal the Closing Common Stock Number. (vi) "Common Stock Merger Consideration" shall mean the Per Share Cash Consideration and the Common Stock Exchange Ratio. (vii) "Closing Stock Option Number" shall mean the aggregate number of shares of Company Common Stock issuable upon exercise of all Company Stock Options granted and outstanding whether or not vested immediately prior to the HoldCo Merger Effective Time other than those that terminate as a result of the transactions contemplated hereby. (viii) "Closing Treasury Common Stock Amount" shall mean the product of (i) the difference of Factor One minus Factor Two, and (ii) the Parent Share Closing Date Price. (ix) "Factor One" shall mean 40,488,135. (x) "Factor Two" shall mean a fraction (i) the numerator of which shall be $300,000,000 and (ii) the denominator of which shall be the Parent Share Signing Date Price. (xi) "Factor Three" shall mean a fraction (i) the numerator of which shall be the Closing Options Intrinsic Value and (ii) the denominator of which shall be the Parent Share Closing Date Price. (xii) "Factor Four" shall mean a fraction (i) the numerator shall be the product of (A) 0.609537 and (B) the Closing Option Exercise Proceeds and (ii) the denominator of which shall be the Parent Share Closing Date Price. (xiii) "Option Exchange Ratio" shall mean a fraction (i) the numerator of which shall be the Common Stock Closing Value and (ii) the denominator of which shall be the Parent Share Closing Date Price. (xiv) "Parent Share Closing Date Price" shall mean the average of the closing sale prices of Parent ADSs on the Nasdaq National Market for the ten (10) trading days ending on, and including, the third trading day prior to the HoldCo Merger Effective Time. -10- (xv) "Parent Share Signing Date Price" shall mean the average of the closing sale prices of Parent ADSs on the Nasdaq National Market for the ten (10) trading days ending on, and including, the third trading day prior to the date hereof. (xvi) "Per Share Cash Consideration" shall mean a fraction (i) the numerator of which shall mean the sum of (A) $300,000,000 and (B) the product of (1) 0.390463 and (2) the Closing Option Exercise Proceeds, and (ii) the denominator of which shall be the Closing Common Stock Number. (xvii) "Unexercised Options Proceeds Amount" shall mean the aggregate gross cash proceeds that would be received by the Company upon exercise of all Company Stock Options, vested or unvested, granted and outstanding immediately prior to the HoldCo Merger Effective Time other than those that terminate as a result of the transactions contemplated hereby. (c) Capital Stock of Merger Sub 3. Each share of common stock, par value $0.001, of Merger Sub 3 issued and outstanding immediately prior to the Company Merger Effective Time shall be converted into one validly issued, fully paid and nonassessable share of common stock, par value $0.001 per share, of the Company Merger Surviving Corporation. (d) Company Merger Surviving Corporation Stock Options. At the Company Merger Effective Time, each option to acquire shares of Company Common Stock outstanding immediately prior to the Company Merger Effective Time (the "Company Stock Options") granted pursuant to the Company's 1999 Stock Option Plan, other than options granted under the U.K. Subplan, whether vested or unvested, will be converted into an option to acquire such number of validly issued and fully paid Parent ADSs in accordance with this Section 2.3(d). At the Company Merger Effective Time, each Company Stock Option so converted will be deemed to constitute an option to acquire, on substantially the same terms and conditions as were applicable to such Company Stock Option, a number of Parent ADSs equal to the product (rounded down to the nearest whole Parent ADS) of (i) the number of shares of Company Common Stock that were issuable upon exercise of such Company Stock Option immediately prior to the Company Merger Effective Time multiplied by (ii) the Option Exchange Ratio; and the per share exercise price of each such Company Stock Option shall be adjusted by dividing (y) the per share exercise price of each such Company Stock Option by (z) the Option Exchange Ratio, and rounding up to the nearest cent. Except as provided in the immediately preceding sentence, the Company Stock Options will continue to be exercisable upon the same terms and conditions as were applicable to such Company Stock Options immediately prior to the Company Merger Effective Time except that, upon exercise of such Company Stock Options, the holders thereof will receive Parent ADSs held by a wholly-owned subsidiary initially formed by HoldCo (the "Option Sub"). Merger Sub 2, as holder of Option Sub, shall be obligated to distribute Option Sub to its stockholder as soon as practicable after consummation of the Mergers. It is the intention of the parties that the Company Stock Options so assumed by Parent qualify, to the -11- maximum extent permissible following the Company Merger Effective Time as incentive stock options as defined in Section 422 of the Code, to the extent the Company Stock Options so assumed qualified as incentive stock options prior to the Company Merger Effective Time. Notwithstanding the foregoing, as of the Company Merger Effective Time, all options outstanding under the 2000 Stock Option Plan and the U.K. Subplan under the 1999 Stock Option Plan shall not be assumed and shall accelerate and become fully vested and exercisable and to the extent not exercised as of the Company Merger Effective Time, together with the 2000 Stock Option Plan, shall terminate and be of no force and effect. Notwithstanding the foregoing, as of the Company Merger Effective Time, each Company Stock Option granted to each member of the board of directors of the Company pursuant to the Company Option Plans (each, a "Director Stock Option") shall accelerate and become fully vested and exercisable as to one hundred percent (100%) of the shares subject to each Director Stock Option. (e) Stock Option Notice. As soon as practicable (but in no event later than five (5) business days) after the Effective Time, Parent will, or will cause the Surviving Corporation to, deliver to the holders of Company Stock Options appropriate notices setting forth such holders' rights pursuant to the 1999 Stock Option Plan and that the agreements evidencing the grants of such options will continue in effect on the same terms and conditions (subject to the adjustments required by this Article II after giving effect to the Mergers). (f) Reclassifications, Stock Splits, etc. Without duplication of any required adjustments under applicable law, if after the date hereof and prior to the Effective Time, any change in the outstanding shares of capital stock of any party, including by reason of any reclassification, recapitalization, stock split or combination, exchange or readjustment of shares, or any stock dividend thereon with a record date during such period, the Common Stock Exchange Ratio, Per Share Cash Consideration, Option Exchange Ratio and any other amounts payable to holders of shares of capital stock of HoldCo or the Company pursuant to this Agreement will be appropriately adjusted to provide such holders the same economic effect as contemplated by this Agreement prior to such event. Section 2.4 Second Company Merger - Treatment of Securities. At the Second Company Merger Effective Time, by virtue of the Second Company Merger and without any action on the part of any party, the following will occur: (a) Capital Stock of Company Merger Surviving Corporation. All of the shares of the Company Merger Surviving Corporation common stock, par value $0.001 per share, issued and outstanding immediately prior to the Second Company Merger Effective Time, will be automatically converted into the right to receive the equal number of shares of the Surviving Corporation, par value $0.001 per share; and (b) Capital Stock of the Surviving Corporation. Each share of common stock, par value $0.001, of the Second HoldCo Merger Surviving Corporation issued and outstanding immediately prior to the Second Company Merger Effective Time shall remain issued and outstanding immediately after the Second Company Merger Effective Time. -12- Section 2.5 Exchange and Payment. (a) Depositary; Exchange Agent. Promptly following the Capital Increase, Parent shall deliver to BNP Paribas, as depositary ("BNP Paribas"), for the benefit of holders of Certificates, the Parent Ordinary Shares being issued pursuant to the Capital Increase, cash in an amount sufficient to pay the aggregate cash consideration payable pursuant to this Article II and to make any payment in lieu of fractional Parent Shares and any dividends or distributions to which holders of Certificates may be entitled. BNP Paribas, from time to time and to the extent required, shall deposit with The Bank of New York, as exchange agent ("The Bank of New York"), for the benefit of the holders of Certificates that elect to receive Parent ADSs, Parent Ordinary Shares, the underlying cash in an amount sufficient for payment in lieu of fractional Parent ADSs pursuant to Section 2.6(b) and any dividends or distributions to which holders of Certificates electing to receive Parent ADSs are entitled to receive pursuant to this Article II in exchange for Certificates (Parent Shares and cash provided to BNP Paribas, whether held by the BNP Paribas or The Bank of New York, the "Exchange Fund"). (b) Exchange Procedures. Except as set forth in Section 2.6, promptly after the Effective Time, the Surviving Corporation will cause BNP Paribas to deliver to each holder of record of a certificate or certificates that, immediately prior to the Closing, represented outstanding shares of Company Common Stock or HoldCo Common Stock (as the case may be, the "Certificates") (i) a letter of transmittal that will specify that delivery will be effected, and risk of loss and title to the Certificates will pass, only upon proper delivery of the Certificates to the BNP Paribas and which will be in the form and have such other provisions as Parent and BNP Paribas may reasonably specify and which letter of transmittal will include a form of election by which each such holder is entitled to elect to receive Parent Ordinary Shares rather than all or any portion of the Parent ADSs which such holder is entitled to receive upon surrender of a Certificate in accordance with this Section 2.5 and (ii) instructions for use in effecting the surrender of the Certificates in exchange for a number of whole Parent Shares, amount of Per Share Cash Consideration, cash in lieu of fractional Parent Shares pursuant to the terms hereof and dividends or distributions pursuant to Section 2.6(c), if any, into which the number of shares of Company Common Stock or HoldCo Common Stock, as the case may be, previously represented by such Certificate will have been converted pursuant to this Agreement. Upon surrender of a Certificate for cancellation to BNP Paribas, together with a letter of transmittal duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required by BNP Paribas, the holder of such Certificates will be entitled to receive in exchange therefor the number of whole Parent Shares for each share of Company Common Stock or HoldCo capital stock, as the case may be, formerly represented by such Certificate (after taking into account all Certificates surrendered by such holder) to which the holder is entitled pursuant to the terms hereof, which will be delivered in uncertificated form, the amount of Per Share Cash Consideration, cash in lieu of fraction of Parent Shares which the holder has the right to receive and any dividends or distributions payable, and the Certificate so surrendered will be cancelled. BNP Paribas will accept such Certificates upon compliance with such reasonable terms and conditions as BNP Paribas may impose to effect an orderly exchange thereof in accordance with normal exchange practices. No -13- interest will be paid or accrued for the benefit of holders of the Certificates on the Per Share Cash Consideration or cash payable pursuant to Section 2.6(b) and (c) below upon the surrender of the Certificates. (c) HoldCo Preferred Stock Exchange Procedures. Promptly after the Effective Time, BNP Paribas will cause to be delivered to the holder of all outstanding shares of HoldCo Preferred Stock, as reflected in the books and records of the Company at the HoldCo Merger Effective Time, the number of Parent ADSs determined pursuant to Section 2.1(b). Section 2.6 Parent Shares. (a) The Parent Shares to be issued in exchange for the shares of HoldCo Common Stock and Company Stock pursuant to this Article II will be (i) registered in the name of The Bank of New York and delivered in the form of Parent ADSs, and such Parent ADSs will be issued in accordance with the Amended and Restated Deposit Agreement, dated as of May 8, 1996, as amended and restated as of December 30, 1998, among Parent, The Bank of New York, as depositary, and the holders of Parent ADSs (as such agreement may be amended to deposit Parent Ordinary Shares being issued pursuant to this Article II and to deliver Parent ADSs being delivered hereto) or (ii) if and to the extent elected by any holder of a Certificate in the manner provided in Section 2.5(b), registered in the name of BNP Paribas and delivered in the form of Parent Ordinary Shares, in book-entry form, rather than Parent ADSs. (b) Fractional Shares. Notwithstanding any other provision of this Agreement, no fraction of a Parent Share will be issued and no dividend or other distribution, stock split or interest with respect to Parent Shares will relate to any fractional Parent Share, and no such fractional interest will entitle the owner thereof to any rights as a holder of a Parent Share. In lieu of any such fractional security, each holder of shares of HoldCo capital stock and Company Stock otherwise entitled to a fraction of Parent Share will be entitled to receive in accordance with the provisions of this Section from BNP Paribas or The Bank of New York, as the case may be (as appropriate, referred to herein as the "Exchange Agent") a cash payment representing such holder's proportionate interest in the net proceeds from the sale by the Exchange Agent on behalf of all such holders of the aggregate of the fractions of Parent Shares which would otherwise be issued (the "Excess Parent Shares"). The sale of the Excess Parent Shares by the Exchange Agent will be executed in round lots to the extent practicable. Until the net proceeds of such sale or sales have been distributed to the former holders of shares of HoldCo capital stock and Company Stock, the Exchange Agent will hold such proceeds in trust for the holders of shares of HoldCo capital stock and Company Stock. Parent will pay all commissions, transfer Taxes (other than those transfer Taxes for which the stockholders of HoldCo and the Common are solely liable) and other out-of-pocket transaction costs, including the expenses and compensation, of the Exchange Agent incurred in connection with such sale of the Excess Parent Shares. As soon as practicable after the determination of the amount of cash, if any, to be paid to holders of shares of HoldCo capital stock and Company Stock in lieu of any fractional Parent Shares, the Exchange Agent will make available such amounts to such holders of shares of HoldCo capital stock and Company Stock without interest. -14- (c) Distributions with Respect to Unexchanged HoldCo Capital Stock and Company Stock. No dividends, interest payments or other distributions declared or paid after the Effective Time with respect to Parent Shares with a record date after the Effective Time will be paid to any former holder of shares of HoldCo capital stock and Company Stock with respect to Parent Shares represented thereby until the amounts contemplated by Article II have been delivered to such holder by the Exchange Agent. Subject to escheat, Tax or other applicable law following such delivery, the Exchange Agent will deliver to the holders of Parent Shares, without interest (i) at the time of such delivery, the amount of dividends or other distributions payable in respect of such Parent Shares with a record date after the Effective Time and a payment date on or prior to the date of such delivery and (ii) at the appropriate payment date, the amount of dividends, interest payments or other distributions, with a record date after the Effective Time but a payment date occurring after delivery, payable with respect to such Parent Shares. (d) Transfers of Ownership. If amounts contemplated by Article II to be paid such that Parent Shares are to be issued to, or cash is to be remitted to, a Person other than the Person in whose name the surrendered Certificate is registered, it will be a condition of such exchange that the Certificates so surrendered will be properly endorsed and otherwise in proper form for transfer and that the Person requesting such exchange will pay to the Exchange Agent any transfer or other Taxes required by reason of the issuance of Parent Shares or payment of cash to a Person other than the registered holder of the Certificate surrendered, or established to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable. (e) Transfer Books; No Further Ownership Rights In HoldCo Common Stock. At the HoldCo Merger Effective Time, the stock transfer books of HoldCo will be closed and thereafter there will be no further registration of transfers of shares of HoldCo capital stock on the records of HoldCo. From and after the HoldCo Merger Effective Time, the former holders of shares of HoldCo capital stock will cease to have any rights with respect to such shares, except as otherwise provided for herein or by applicable law. If, after the HoldCo Merger Effective Time, Certificates in respect of HoldCo capital stock are presented for any reason, they will be cancelled and exchanged as provided in this Article II. (f) Transfer Books; No Further Ownership Rights In Company Stock. At the Company Merger Effective Time, the stock transfer books of the Company will be closed and thereafter there will be no further registration of transfers of shares of Company Stock on the records of the Company. From and after the Company Merger Effective Time, the former holders of shares of Company Stock will cease to have any rights with respect to such shares, except as otherwise provided for herein or by applicable law. If, after the Company Merger Effective Time, Certificates in respect of Company Common Stock are presented to for any reason, they will be cancelled and exchanged as provided in this Article II. (g) Termination of Exchange Fund. Any portion of the Exchange Fund which remains undistributed to the holders of Certificates six (6) months after the Effective Time will, at the request of Parent, be delivered to Parent to be held in -15- trust for such holders. Such holders of Certificates will be entitled thereafter only to look to Parent (subject to abandoned property, escheat, statute of limitations or other similar laws) only as general creditors thereof with respect to the Common Stock Merger Consideration and any cash in lieu of fractional Parent Shares and any dividends or distributions payable upon due surrender of the Certificates. Any portion of the Exchange Fund remaining unclaimed by holders of shares of Company Common Stock or HoldCo capital stock immediately prior to such time as such amounts otherwise would escheat to or become property of any Governmental Entity will, to the extent permitted by applicable law, become the property of Parent free and clear of any claims or interest of any Person previously entitled thereto. Notwithstanding anything to the contrary in this Section, neither BNP Paribas, The Bank of New York, Parent nor any party hereto will be liable to a holder of share of Company Common Stock or HoldCo capital stock for any amount properly paid to a public official pursuant to any applicable abandoned property, escheat or similar law. (h) Required Withholding. Each of BNP Paribas, The Bank of New York, Parent and the surviving corporation of any of the Mergers will be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement to any holder or former holder of Company Stock or HoldCo capital stock such amounts as may be required to be deducted or withheld therefrom under the Code or under any provision of state, local or foreign Tax law or under any other applicable law. To the extent such amounts are so deducted or withheld, the amount of such consideration will be treated for all purposes under this Agreement as having been paid to the Person to whom such consideration would otherwise have been paid. (i) Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares of Company Common Stock outstanding immediately prior to the Company Merger Effective Time and held by a holder who has not voted in favor of the Company Merger or consented thereto in writing and who has demanded appraisal for such shares in accordance with the DGCL (collectively, the "Dissenting Shares") will not be converted into the right to receive the Common Stock Merger Consideration, unless such holder fails to perfect, withdraws or otherwise loses such holder's rights to appraisal or it is determined that such holder does not have appraisal rights in accordance with applicable law. If, after the Company Merger Effective Time, such holder fails to perfect or withdraws or loses such holder's right to appraisal, or if it is determined that such holder does not have an appraisal right, such shares of Company Common Stock will be treated as if they had been converted as of the Company Merger Effective Time into the right to receive the Common Stock Merger Consideration. The Company will give Parent prompt notice of any demands received by the Company for appraisal of shares of Company Common Stock, and Parent will have the right to participate in all negotiations and proceedings with respect to such demands except as required by applicable law. The Company will not, except with prior written consent of Parent, make any payment with respect to, or settle or offer to settle, any such demands, unless and to the extent required to do so under applicable law. The Exchange Agent will withhold the Common Stock Merger Consideration with respect to each Dissenting Share and, upon Parent's request, will promptly return to Parent the Common Stock Merger -16- Consideration made available to the Exchange Agent by Parent pursuant to Section 2.5(a) to pay for shares for which appraisal rights are perfected. (j) Lost, Stolen or Destroyed Certificates. In the event any Certificates have been lost, stolen or destroyed, the Exchange Agent will issue and pay in exchange for such lost, stolen or destroyed Certificates, upon the making of an affidavit of that fact by the holder thereof, the Common Stock Merger Consideration, cash for fractional shares, if any, and any dividends or distributions payable pursuant in each case, pursuant hereto; provided, however, that Parent may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed Certificates to deliver a bond in such sum as it may reasonably direct as indemnity against any claim that may be made against Parent, the Company or the Exchange Agent with respect to the Certificates alleged to have been lost, stolen or destroyed. ARTICLE III COMPANY REPRESENTATIONS AND WARRANTIES The Company represents and warrants to Parent, Merger Sub 1, Merger Sub 2 and Merger Sub 3, subject to such exceptions as are set forth in the disclosure schedule delivered by Company to Parent on the date hereof (the "Company Disclosure Schedule"), which disclosure shall provide an exception to or otherwise qualify the representations or warranties of Company specifically referred to in the applicable numbered and lettered sections and subsections of this Article III to which each exception refers as well as such other representations and warranties to the extent that it is reasonably apparent on the face of the Company Disclosure Schedule that such disclosure is applicable. Section 3.1 Organization. (a) The Company and each Company Subsidiary (i) is a corporation or other organization duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization, (ii) has the requisite corporate power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted, and (iii) is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or license necessary, except in the cases of clauses (ii) and (iii) above, where such failure to have such power or authority or to be so qualified or licensed would not reasonably be expected to have a Company Material Adverse Effect. Section 3.1(a) of the Company Disclosure Schedule sets forth each jurisdiction where the Company or any Company Subsidiary so qualified, licensed or admitted to do business. (b) The Company has made available to Parent or its counsel complete and correct copies of the certificate of incorporation and bylaws or equivalent governing instruments of the Company and each Company Subsidiary, as is in effect on the date hereof. None of the Company or any of the Company Subsidiaries is in material -17- violation of any provision of its certificate of incorporation or bylaws or equivalent governing instruments. (c) Section 3.1(c) of the Company Disclosure Schedule sets forth a true and complete list of all of the Company Subsidiaries as of the date hereof, indicating the name, jurisdiction of organization and the Company's equity interest in, each such entity, and each of such entity's officers and directors. Other than with respect to the Company Subsidiaries, the Company does not own, directly or indirectly, any capital stock or other equity securities of any corporation, partnership, joint venture or other business association or entity, other than securities of any publicly-traded equity in amounts less than one percent (1%), which the Company holds in its investment portfolio. Other than directors' qualifying shares required under applicable law, all of the outstanding capital stock of each Company Subsidiary is owned directly or indirectly by the Company free and clear of all mortgages, pledges, claims, liens, charges, encumbrances, options or security interests of any kind or nature whatsoever (collectively, "Encumbrances"), except for restrictions imposed by applicable securities laws, and is validly issued, fully paid and nonassessable, and there are no outstanding options, rights or agreements of any kind relating to the issuance, sale or transfer of any capital stock or other equity securities (or securities convertible into or exchangeable for securities having such rights) of any such Company Subsidiary to any Person except the Company. Section 3.2 Capitalization. (a) As of the date hereof, the authorized capital stock of the Company consists of 150,000,000 shares of Company Common Stock, of which 76,106,805 shares were issued and outstanding as of July 17, 2003 and 250 shares are issued and held in the treasury of the Company. As of the date hereof, 22,700,000 shares were reserved for issuance pursuant to the Company Option Plans, and 17,764,694 shares of Company Common Stock are reserved for issuance pursuant to outstanding Company Stock Options as of July 17, 2003. As of the date hereof, 5,250,000 shares are reserved for issuance pursuant to the Company's 2002 Stock Option Plan and 2002 Director Option Plan, and no options to acquire shares of the Company Common Stock are outstanding under the 2002 Stock Option Plan and the 2002 Director Option Plan. As of the date hereof, there are no warrants outstanding to purchase shares of Company Common Stock. All of the outstanding shares of the Company Common Stock are, and all shares of Company Common Stock which may be issued pursuant to the exercise of outstanding Company Stock Options, prior to the Company Merger Effective Time will be, when issued in accordance with the terms thereof, duly authorized, validly issued, fully paid and non-assessable and not subject to any preemptive or similar rights. (b) Section 3.2(b) of the Company Disclosure Schedule sets forth a complete list of options under the 1999 Stock Option Plan and the 2000 Stock Option Plan (collectively, the "Company Option Plans") outstanding as of the date hereof, showing the date of grant, whether or not such Company Stock Option is intended to be an incentive stock option or a non-qualified stock option, the exercise price of each Company Stock Option, and the number of shares of Company Common Stock issuable upon exercise of each Company Stock Option. All of such Company Stock Options have -18- been granted to employees, directors, or consultants of the Company or a Company Subsidiary in the ordinary course of business consistent with past practices. All Company Stock Options granted under the Company Option Plans have been granted pursuant to option award agreements in substantially the form attached as an exhibit to Section 3.2(b) of the Company Disclosure Schedule. The Company has made available to Parent or its counsel complete and correct copies of the Company Option Plans and all forms of option agreements. (c) There are no bonds, debentures, notes or other indebtedness having general voting rights or which are convertible into or exchangeable for equity securities (any of the foregoing, "Convertible Debt") of the Company or any Company Subsidiary issued and outstanding as of the date hereof. As of the date hereof, (i) there are no existing options, warrants, calls, pre-emptive rights, subscriptions or other rights, agreements, arrangements or commitments of any kind relating to the issued or unissued capital stock of the Company or any Company Subsidiary obligating the Company or any Company Subsidiary to issue, transfer or sell or cause to be issued, transferred or sold any shares of capital stock or Convertible Debt of, or other equity interest in, the Company or any Company Subsidiary or securities convertible into or exchangeable for such shares or equity interests, or obligating the Company or any Company Subsidiary to grant, extend or enter into any such option, warrant, call, subscription or other right, agreement, arrangement or commitment, and (ii) there are no outstanding contractual obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any shares of the capital stock of the Company or any Company Subsidiary or any affiliate of the Company or to provide funds to make any investment (in the form of a loan, capital contribution or otherwise) in any Company Subsidiary or any other entity. (d) All outstanding shares of Company Common Stock, all outstanding Company Stock Options and all outstanding shares of capital stock of each Company Subsidiary have been issued and granted in compliance with (i) all applicable laws, including applicable securities laws, and (ii) all material requirements set forth in applicable agreements or instruments. Section 3.3 Authority; Consents and Approvals; No Violations. (a) Subject to the approval of the Company Merger by the Company's stockholders, the Company has all requisite corporate power and authority to enter into this Agreement and to consummate the Company Merger and the other transactions contemplated hereby. The execution and delivery of this Agreement and the consummation by the Company of the Company Merger and the other transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Company and no other corporate proceedings on the part of the Company are necessary to authorize this Agreement or to consummate the Company Merger and the other transactions contemplated hereby, the approval and adoption of this Agreement and the approval of the Company Merger by the requisite vote of the Company's stockholders and the filing of the Company Certificate of Merger pursuant to the DGCL. The affirmative vote or written consent of the holders of a majority of the outstanding shares of Company Common Stock to approve and adopt this Agreement and approve the -19- Company Merger is the only vote of the holders of any class or series of Company capital stock necessary to approve and adopt this Agreement and approve the Company Merger. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery hereof by Parent, Merger Sub 1, Merger Sub 2, Merger Sub 3 and HoldCo, constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms. (b) The execution and delivery of this Agreement by the Company, and the performance of this Agreement by the Company and the consummation by the Company of the Company Merger and the other transactions contemplated by this Agreement, do not and will not, (i) conflict with or violate the certificate of incorporation or bylaws of the Company or the equivalent organizational documents of any of the Company Subsidiaries, (ii) subject to obtaining the approval and adoption of this Agreement and the approval of the Company Merger by the Company's stockholders as contemplated in Section 8.1, and compliance with the requirements set forth in Section 3.3(c) below, conflict with or violate any federal, state, local, municipal, foreign or other law, statute, constitution, principle of common law, resolution, ordinance, guidance, code, order, judgment, edict, decree, rule, regulation, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Entity ("Legal Requirement") applicable to the Company or any of the Company Subsidiaries or by which the Company or any of the Company Subsidiaries or any of their respective properties is bound or affected, or (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or impair the Company's rights or alter the rights or obligations of any third party under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of an Encumbrance on any of the properties or assets of the Company or any of the Company Subsidiaries pursuant to any Company Identified Contract. (c) No consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Entity is required to be obtained or made by the Company in connection with the execution and delivery of this Agreement or the consummation by the Company of the Company Merger and the other transactions contemplated hereby, except for (i) the filing of the Company Certificate of Merger with the Secretary of State of the State of Delaware and appropriate documents with the relevant authorities of other states in which the Company is qualified to do business, (ii) the filing of an information statement or proxy statement, as the case may be (the "Company Information Statement"), with the Securities Exchange Commission (the "SEC") in accordance with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the filing and effectiveness of the Registration Statement, (iii) such consents, approvals, orders, authorizations, registrations, declarations and the filings as may be required under applicable federal, foreign and state securities (or related) laws, the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act") and, if applicable, any other antirust or competition laws of other jurisdictions (the "Foreign Antitrust Filings"), (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities or "blue sky" laws and the securities laws of any foreign country, and (v) such other -20- consents, authorizations, filings, approvals and registrations which if not obtained or made individually or in the aggregate would not be material to the Company, Parent or the Surviving Corporation or materially adversely affect the ability of the parties hereto to consummate the Company Merger within the time frame in which the Company Merger would otherwise be consummated in the absence of the need for such consent, approval, order, authorization, registration, declaration or filings. The consents, approvals, orders, authorizations, registrations, declarations and filings set forth in (i) through (iv) are referred to herein as the "Company Necessary Consents." Section 3.4 Company SEC Filings; Financial Statements. (a) The Company has filed all forms, reports and documents required to be filed by the Company with the SEC since June 30, 2000 and has made available to Parent or its counsel such forms, reports and documents in the form filed with the SEC (including the Company's registration statement on Form S-1 filed on May 23, 2003, as amended (the "Company Form S-l")), and as those documents have been amended and including such documents that the Company may file subsequent to the date hereof (the "Company SEC Filings"). As of their respective dates, the Company SEC Filings (i) were prepared and timely filed in accordance with and complied in all material respects with the requirements of the Securities Act of 1933, as amended (the "Securities Act"), or the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder and (ii) did not at the time they were filed (or if amended or superceded by a filing prior to the date hereof, then on the date of such filing) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. None of the Company's Subsidiaries is required to file any forms, reports or other documents with the SEC. (b) Each of the consolidated financial statements (including, in each case, any related notes thereto) contained in the Company SEC Filings (including such financial statements as were incorporated by reference) (the "Company Financial Statements") (i) complied in all material respects with the published rules and regulations of the SEC with respect thereto, (ii) was prepared in accordance with United States generally accepted accounting principles ("GAAP") applied on a consistent basis throughout the periods involved (except as may be indicated in the notes thereto and, in the case of unaudited interim financial statements, as may be permitted by the SEC on Form 10-Q, Form 8-K or any similar or successor form under the Exchange Act), and (iii) fairly presented in all material respects the consolidated financial position of the Company and the Company Subsidiaries as of the respective dates thereof and the consolidated results of operations and cash flows for the periods indicated therein, except that the unaudited interim financial statements may not contain footnotes and were or are subject to normal and recurring year-end adjustments. The reserves reflected in the Company Financial Statements have been calculated in accordance with GAAP. The balance sheet of the Company contained in the Company SEC Filings as of March 28, 2003 is hereinafter referred to as the "Company Balance Sheet." (c) The Company has made available to Parent or its counsel (i) a complete and correct copy of any amendments or modifications to the Company -21- Form S-1 or other Company SEC Filings, which have not yet been filed with the SEC but that the Company intends to file as of the date hereof, and (ii) complete and correct copies of any correspondence with, and inquiries from, the SEC with respect to previously filed Company SEC Filings since June 30, 2000 other than ministerial correspondence generated in connection with the submission of filings under Section 16 of the Exchange Act and requests for and responses to requests for Edgar identification codes. (d) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management's general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management's general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate actions are taken with respect to any differences. (e) All accounts receivable of the Company, whether reflected in the Company Balance Sheet or otherwise, are current and arose from valid transactions in the ordinary course of business and consistent with past practices with unrelated third parties. (f) The Company has implemented "disclosure controls and procedures" (as defined in Rules 13a-14(c) and 15d-14(c) of the Exchange Act) designed to ensure that material information relating to the Company and the Company Subsidiaries is made known to the Company's chief executive officer and chief financial officer. Each required form, report and document containing financial statements that has been filed with or submitted to the SEC since July 31, 2002, was accompanied by the certifications required to be filed or submitted by the Company's chief executive officer and chief financial officer pursuant to the Sarbanes-Oxley Act, and at the time of filing or submission of each such certification, such certification was true, accurate and complete, and complied with the Sarbanes-Oxley Act and the rules and regulations promulgated thereunder. (g) Since June 30, 2000, neither the Company nor any Company Subsidiary nor, to the Company's Knowledge, any director, officer, employee, auditor, accountant or Representative of the Company or any Company Subsidiary has received or otherwise had or obtained knowledge of any written complaint, allegation, assertion or claim regarding the accounting or auditing practices, procedures, methodologies or methods of the Company or any Company Subsidiary or their respective internal accounting controls, including any complaint, allegation, assertion or claim that the Company or any Company Subsidiary has engaged in questionable accounting or auditing practices. No attorney representing the Company or any Company Subsidiary, whether or not employed by the Company or any Company Subsidiary, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the Company's board of directors or any committee thereof or to any director or officer of the Company. -22- Section 3.5 Absence of Certain Changes. Except as disclosed in the Company SEC Filings filed since the date of the Company Balance Sheet and through the date hereof and, as contemplated by this Agreement, each of the Company and the Company Subsidiaries has conducted its respective business in all material respects only in the ordinary course of business consistent with past practices and in compliance in all material respects with all applicable laws and regulations and, specifically and without limitation of the foregoing, there has not been, with respect to the Company or any Company Subsidiaries: (a) a Company Material Adverse Effect; (b) (i) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares of capital stock, or any purchase, redemption or other acquisition of any of the shares of capital stock or any other securities or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security; (c) any (i) change in pricing or royalties set or charged to customers or licensees by the Company or any Company Subsidiary or in pricing or royalties set or charged by Persons who have licensed technology to the Company or any Company Subsidiary other than in the ordinary course of business consistent with past practices, (ii) any disposing or impairment of or permitting to lapse of any Company Intellectual Property Rights, (iii) disposing of or disclosing (except as necessary in the conduct of its business) to any Person other than Representatives of Parent any Trade Secret or other Intellectual Property Rights not theretofore a matter of public knowledge, or (iv) any material change to the Company's or any Company Subsidiary's rights to use an Intellectual Property Rights licensed from a third party, except, in the case of (i) through (iv) in the aggregate, as would not be material to the Company and the Company Subsidiaries, taken as a whole; (d) any sale, transfer, or other disposition of any material properties or assets (whether real, personal or mixed, tangible or intangible) except in the ordinary course of business consistent with past practices; (e) (i) any assumption, guarantee, endorsement or liability otherwise incurred (whether directly, contingently or otherwise) for the obligations of any other Person other than those of the Company or any Company Subsidiary, or (ii) any making of any loan, advance or capital contribution to or investment in any Person, including any director, officer or other affiliate of the Company, other than (A) loans, advances or capital contributions to or investments in wholly-owned Company Subsidiaries or entities that became wholly-owned Company Subsidiaries made in the ordinary course of business, (B) investments made in accordance with the Company's investment guidelines, a copy of which has been made available to Parent or its counsel, -23- and in the ordinary course of business and consistent with past practices, and (C) travel and entertainment expense advances in the ordinary course of business; (f) (i) any material Tax election or material change in any Tax election, any material change in annual Tax accounting period or method of Tax accounting other than as required by applicable laws or regulations, any filing of any material amended Tax Returns, any entering into of a closing agreement, settlement of or consent to any Tax claim, any surrendering of any right to claim a material refund of Taxes, or any consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim, (ii) any material change in any method of accounting, method of accounting principles or practice, except for any such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, or (iii) any revaluation of any material assets, including, without limitation, writing-off notes or accounts receivable other than in the ordinary course of business; (g) any loss of, or receipt of written notice of any intention to cancel or otherwise terminate, any Identified Contract that would be reasonably likely, individually or in the aggregate, to be material to the Company other than in the ordinary course of business consistent with past practices; (h) (i) any increase or change in any compensation, benefits or bonus paid or made payable to any of their executive officers or directors or employees earning more than $150,000 in base salary annually, or any increase in severance or termination pay, or any material modification or amendment of any currently effective employment, severance, termination or indemnification agreement or any agreement or policy the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of the nature contemplated hereby, in each case other than (A) in connection with periodic compensation or performance reviews, (B) for severance and release agreements made in connection with the termination of employment, (C) promotions, or (D) to the compensation of the sales force in the case of each of (A) through (D), in the ordinary course of business consistent with past practices, or (ii) any action taken to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice options granted under any Company Option Plans or authorization of cash payments in exchange for any options granted under any Company Option Plans; or (i) any agreement, whether in writing or otherwise, to take any action described in this Section 3.5. Section 3.6 No Undisclosed Liabilities. Except as and to the extent disclosed in the Company Financial Statements or the Company SEC Filings and except for liabilities and obligations incurred in the ordinary course of business since the date of the Company Balance Sheet and through the date hereof, neither the Company nor any Company Subsidiary has incurred any liabilities required under GAAP to be set forth on a consolidated balance sheet (absolute, accrued, contingent or otherwise) which would reasonably be expected to be material to the Company and the Company Subsidiaries, taken as a whole. -24- Section 3.7 Real and Personal Property. (a) The Company and the Company Subsidiaries do not own any real property. (b) Section 3.7(b) of the Company Disclosure Schedule sets forth a complete list of all real property leased or occupied as of the date hereof by the Company or any of the Company Subsidiaries (the "Real Property"), for each of which the Company has made available a complete and accurate copy of the lease agreement, along with all amendments to Parent or its counsel. The leases for Real Property in which the amount of rental payments that the Company or any Company Subsidiary is required to make on an annual basis exceeds $500,000 are identified on Section 3.7(b) of the Company Disclosure Schedule with an asterisk (*) (the "Identified Leases"). (c) Neither the Company nor any Company Subsidiary is a party to any lease, sublease, assignment or similar arrangement under which the Company or any Company Subsidiary is a lessor, sublessor, assignor or otherwise makes available for use by any third party any portion of the Real Property. (d) All leases of the Company and the Company Subsidiaries (i) are valid, binding and enforceable in accordance with their terms, (ii) are in full force and effect, and (iii) to the Company's Knowledge, were negotiated on an arms' length basis, and there are no existing material defaults by the Company or any Company Subsidiary thereunder and no event of default has occurred which (whether with or without notice, lapse of time or the happening or occurrence of any other event) would constitute a material default thereunder. (e) The Company and each of the Company Subsidiaries has good and valid title to all of its properties, interests in properties and assets, real and personal, reflected in the Company Balance Sheet or acquired after the date of the Company Balance Sheet (except properties, interests in properties and assets sold or otherwise disposed of since the date of the Company Balance Sheet in the ordinary course of business, consistent with past practices), or with respect to Real Properties and assets, valid leasehold interests in, free and clear of all Encumbrances, except (i) Encumbrances for current Taxes not yet due, (ii) such imperfections of title, liens and easements as do not and will not materially detract from or interfere with the use or value of the properties subject thereto or affected thereby, or otherwise materially impair business operations involving such properties, and (iii) liens securing debt which are reflected on the Company Balance Sheet. Section 3.8 Litigation. As of the date hereof, there is no action, suit, claim, binding arbitration proceeding or binding alternative dispute resolution proceeding, or investigation or proceeding by or before any court or Governmental Entity pending, or, to the Company's Knowledge, overtly threatened against, naming the Company or any Company Subsidiary or any of the Company's officers or directors (in their capacities as such) or any other party that the Company or any of the Company Subsidiaries may be obligated to indemnify as a party thereto or seeking to restrain, enjoin, alter or delay the consummation of the Company Merger or the other transactions -25- contemplated hereby. There is no pending or effective judgment, decree or order against the Company, any Company Subsidiary or any of the Company's officers or directors (in their capacities as such). There is no litigation that the Company or any Company Subsidiary has pending against other parties. There have been no claims made or, to the Company's Knowledge, overtly threatened against the Company or any Company Subsidiary under any indemnification, contribution or reimbursement agreement to which the Company or any Company Subsidiary is a party or otherwise bound. Section 3.9 Compliance with Laws. (a) The Company and the Company Subsidiaries are in compliance in all material respects with all material Legal Requirements. No investigation or review by any Governmental Entity is pending or, to the Company's Knowledge, has been overtly threatened against the Company or any Company Subsidiary. Neither the Company nor any of the Company Subsidiaries has received any written communication from a Governmental Entity (excluding routine inspections) that alleges that any of them is not in compliance with all material federal, state, foreign or local laws, rules and regulations. There is no agreement, judgment, injunction, order or decree binding upon the Company or any of the Company Subsidiaries which has or could reasonably be expected to have the effect of prohibiting or impairing any material business practice of the Company or the Company Subsidiaries, any acquisition of property material to the operation or conduct of the business of the Company and the Company Subsidiaries, taken as a whole, as currently conducted. The Company and the Company Subsidiaries hold, to the extent legally required, all licenses, permits and approvals from Government Entities that are material to the operation of the Company's and the Company Subsidiaries' business, taken as a whole, as currently conducted. The Company and the Company Subsidiaries are in compliance in all material respects with such licenses, permits and approvals. (b) None of the Company, any Company Subsidiary or, to the Company's Knowledge, any directors or officers, agents or employees of the Company or any Company Subsidiary, has (i) used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns or violated any provision of the Foreign Corrupt Practices Act of 1977, as amended, or (iii) made any payment in the nature of criminal bribery. Section 3.10 Intellectual Property; Privacy. (a) Section 3.10(a) of the Company Disclosure Schedule lists as of the date hereof all Registered Company Intellectual Property Rights (excluding patent applications). (b) Section 3.10(b) of the Company Disclosure Schedule lists as of the date hereof all existing License Agreements other than (i) Inbound License Agreements for Non-Material Computer Software, (ii) Outbound License Agreements which are nonexclusive software licenses of Computer Software to distributors, OEMs -26- and end-users (other than the top 20 end-users by revenue) in the ordinary course of the business of the Company or any Company Subsidiary, and (iii) other License Agreements which are not material to the business of the Company or any Company Subsidiary. None of the Outbound License Agreements grant any third party exclusive rights to or under any material Company Intellectual Property Rights. To the Company's Knowledge, the Company and all Company Subsidiaries are in compliance with, and have not breached any material term of any of the License Agreements listed on Section 3.10(b) and, to the Company's Knowledge, all other parties to such License Agreements are in compliance with, and have not breached any term of, such License Agreements. (c) There are no judgments or orders naming the Company or any Company Subsidiary which restrict the conduct of the business of the Company or any of the Company Subsidiaries in order to accommodate a third party's Intellectual Property Rights, other than such judgments or orders that would not have a Company Material Adverse Effect. (d) The Company or one of the Company Subsidiaries is the sole owner of all right, title, and interest, free and clear of all Encumbrances (other than non-exclusive licenses), in and to all Registered Company Intellectual Property Rights registered in the United States and listed in Section 3.10(a) of the Company Disclosure Schedule. (e) To the Company's Knowledge, the conduct of the business of the Company (including the design, development, marketing and sale of the products or services of the Company or the Company Subsidiaries) does not (except as may have been resolved) infringe, misappropriate or otherwise violate the Intellectual Property Rights of any third party or to constitute unfair competition or unfair trade practices under the laws of any jurisdiction, in each case to an extent which would reasonably be expected to have a Company Material Adverse Effect. (f) In the one (1) year period preceding the date hereof, neither the Company nor any of the Company Subsidiaries has received any written communications from any third party alleging, or which reasonably could be construed as an allegation, that the operation of the business of the Company or any of the Company Subsidiaries or any act, product or service of the Company or any of the Company Subsidiaries, has infringed or misappropriated or does infringe or misappropriate the Intellectual Property Rights of any third party or constitute unfair competition or unfair trade practices under the laws of any jurisdiction, in each case to an extent which is likely to have a Company Material Adverse Effect. (g) To the Company's Knowledge, there is no pending or threatened claim, suit, arbitration or other adversarial proceeding before any court, agency, arbitral tribunal or registration authority in any jurisdiction alleging that the conduct of the business of the Company or any Company Subsidiary has infringed or misappropriated or does infringe or misappropriate the Intellectual Property Rights of any third party or constitute unfair competition or unfair trade practices under the laws of such jurisdiction. -27- (h) To the Company's Knowledge, no Person has infringed or misappropriated, or is infringing or misappropriating, any Company Intellectual Property Rights in a manner that would have a Company Material Adverse Effect. The Company is not a joint owner of any material Company Intellectual Property Rights. (i) The Registered Company Intellectual Property Rights have not been cancelled or abandoned and have not expired or lapsed, except where the Company or a Company Subsidiary has elected, in the exercise of reasonable business judgment, not to pursue or maintain such Registered Company Intellectual Property Rights or where such rights have expired in the ordinary course. To the Company's Knowledge, all necessary registration, maintenance and renewal fees currently due in connection with any Registered Company Intellectual Property Rights have been made and all necessary documents, recordations and certificates in connection with such Intellectual Property Rights have been filed with the relevant patent, copyright, trademark or other authorities in the United States, as the case may be, for the purposes of maintaining such Registered Intellectual Property Rights. (j) To the extent that any material Computer Software or patentable inventions have been developed or created by a third party (including any current or former employee of the Company or any of the Company Subsidiaries) for the Company or any Company Subsidiary, the Company or one of the Company Subsidiaries, as the case may be, has a written agreement with such third party with respect thereto, and the Company or one of the Company Subsidiaries thereby either (i) has, pursuant to such agreement or by operation of law, obtained ownership of the Intellectual Property Rights in such Computer Software or patentable inventions in, or (ii) has obtained a valid right to exploit the Intellectual Property Rights in such Computer Software or patentable inventions, in each case sufficient for the ongoing business of the Company or the Company Subsidiaries. (k) The Company and the Company Subsidiaries have taken all reasonably necessary steps to protect their respective material Trade Secrets and any Trade Secrets of third parties provided to the Company or any of the Company Subsidiaries consistent with industry practice and otherwise to the extent deemed necessary by the Company or the Company Subsidiaries in the exercise of reasonable business judgment. Without limiting the foregoing, the Company and each of the Company Subsidiaries have enforced and do enforce a policy requiring all employees, contractors and other parties having access to such Trade Secrets to execute a proprietary information/confidentiality agreement, in substantially the form made available to Parent, with the Company or one of the Company Subsidiaries, as the case may be. (l) To the Company's Knowledge, (i) the consummation of the Company Merger will not result in Parent being bound by any non-compete or other material restriction on the operation of Parent's business or the granting by Parent of any Parent Intellectual Property Rights to a third party (including a covenant not to sue). (m) The Company and the Company Subsidiaries are in compliance with all applicable Legal Requirements relating to privacy, data protection and the collection and use of personal information and user information gathered or -28- accessed in the course of the operations of the Company or any of the Company Subsidiaries except where such failure to comply would not have a Company Material Adverse Effect. No claims have been asserted in writing against the Company or any of the Company Subsidiaries by any Person or entity alleging a violation of such Person's or entity's privacy, personal or confidentiality rights under any such Legal Requirements that could reasonably be expect to have a Company Material Adverse Effect. (n) Section 3.10(n)(i) of the Company Disclosure Schedule lists as of the date hereof all agreements pursuant to where the Company has licensed, or provided copies of, material source code of the Company to third parties. Section 3.10(n)(ii) of the Company Disclosure Schedule lists as of the date hereof all agreements pursuant to which the Company has placed material source code into escrow. The license agreement set forth in Section 3.10(n)(iii)(a), if executed prior to the date hereof, would not have been required to have been disclosed in any section of the Company Disclosure Schedule. The source code agreement set forth in Section 3.10(n)(iii)(b) is not material to the business of the Company. Section 3.11 Taxes. (a) The Company and all Company Subsidiaries (i) have timely filed (or there have been timely filed on their behalf) with the appropriate Tax Authority all material Tax Returns required to be filed by them, and such Tax Returns are true, correct and complete in all material respects, and (ii) have timely paid in full (or there has been timely paid on their behalf), all material Taxes that are due and payable on such Tax Returns to the appropriate Tax Authorities. (b) There are no liens for Taxes upon any property or assets of the Company or any Company Subsidiary thereof, except for liens for Taxes not yet due. (c) No Federal, state, local or foreign Audits are pending with regard to any material Taxes or Tax Returns of the Company or any Company Subsidiary and, to the knowledge of the Company and the Company Subsidiaries, no such Audit is threatened. (d) The Federal income Tax Returns of the Company and the Company Subsidiaries have been examined by the applicable Tax Authority (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including June 28, 2001 and as of the date hereof no deficiencies or adjustments have been threatened, proposed, asserted or assessed as a result of an Audit which have not been (x) resolved and fully paid or (y) reserved on the Company Financial Statements in accordance with GAAP. (e) Neither the Company nor any Company Subsidiary is a party to any agreement providing for the allocation, indemnification, or sharing of Taxes or liabilities or losses related to Taxes and has not assumed the Tax liability (or liability or losses related thereto) of any other Person under contract or otherwise. -29- (f) Neither the Company nor any Company Subsidiary has been a member of any "affiliated group" (as defined in Section 1504(a) of the Code) other than the affiliated group of which Company is the "parent" and is not subject to Treasury Regulation Section 1.1502-6 (or any similar provision under foreign, state, or local law) for any period other than in connection with the affiliated group of which the Company is the "parent." (g) No member of the "affiliated group" (as defined in Section 1504(a) of the Code) of which the Company is the common parent has recognized any material gain in connection with any intercompany transaction that has been and is as of the date hereof deferred for Federal, state, local or foreign income Tax purposes. (h) The charges, accruals and reserves for Taxes with respect to the Company and the Company Subsidiaries reflected on the Company Financial Statements (excluding any provision for deferred income Taxes reflecting either differences between the treatment of items for accounting and income Tax purposes or carryforwards) are adequate under GAAP to cover Tax liabilities accruing through the date of such Company Financial Statements. (i) Neither the Company nor any Company Subsidiary is or has been a United States real property holding corporation (as defined in Section 897(c)(2) of the Code) during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code. (j) The Company has made available to Parent or its counsel complete and correct copies of each of (i) all Audit reports, letter rulings, technical advice memoranda and similar documents issued by a Tax Authority relating to Taxes due from the Company or any Company Subsidiary and (ii) all closing agreements entered into by the Company or any Company Subsidiary with any Tax Authority, in each case existing on the date hereof. (k) Neither the Company nor any Company Subsidiary has received written notice of any claim made by a Tax Authority in a jurisdiction where it does not file Tax Returns that it is or may be subject to taxation by that jurisdiction. (l) Neither the Company nor any Company Subsidiary has granted any power of attorney (or similar authority) as to any matters regarding Taxes, Audits, or Tax Returns that will have effect as of the Closing Date. (m) Neither the Company nor any Company Subsidiary has waived any statutory period of limitations for the assessment of any Tax or agreed to any extension of time with respect to a Tax assessment or deficiency, in each case, which is currently outstanding, nor is any request to so waive or extend currently outstanding. (n) The Company and all Company Subsidiaries have complied in all material respects with the provisions of the Code relating to the withholding of Taxes (including maintenance of records), as well as similar provisions -30- under any other laws, and have, within the time and in the manner prescribed by law, withheld and paid over to the proper Tax Authority all such amounts required. (o) No issue relating to Taxes has been raised by any Tax Authority in any Audit, that by application of the same or similar principals, reasonably could be expected to result in a proposed deficiency for the Company or any of the Company Subsidiaries for any period not so examined. Further, to the knowledge of the Company and the Company Subsidiaries, no state of facts exist or has existed which would constitute grounds for the assessment of any material Tax liability for the Company or any of the Company Subsidiaries with respect to periods that have not been subject to an Audit, except for Tax liabilities that are adequately reflected on the Financial Statements in accordance with GAAP. (p) To the knowledge of the Company and the Company Subsidiaries, no direct or indirect stockholder of the Company will be a five percent (5%) transferee shareholder (as defined in Treasury Regulation Section 1.367(a)-3(c)(5)(ii)). Section 3.12 Employee Benefits. (a) Since the date of the Company Balance Sheet through the date of this Agreement, there has not been any adoption or amendment (or an agreement to adopt or amend) in any material respect by the Company or any Company Subsidiary of any of the Benefit Plans. There exist, as of the date hereof, no employment, consulting, severance, termination or indemnification agreements, arrangements or understandings between the Company or the Company Subsidiaries, and any current or former officer or director of the Company or any Company Subsidiary. The Company does not have any commitment to establish any new Benefit Plan, to modify any Benefit Plan (except to the extent required by law or to conform any such Benefit Plan to the requirements of any applicable law), or to adopt any Benefit Plan. (b) Section 3.12(b) of the Company Disclosure Schedule lists all Pension Plans, "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and all other Benefit Plans sponsored, maintained, contributed to or required to be contributed to, by the Company or any Commonly Controlled Entity for the benefit of any current or former employees, officers, consultants or directors of the Company or any Company Subsidiary. The Company has made available to Parent or its counsel true, complete and correct copies of (i) each Benefit Plan (or, in the case of any unwritten Benefit Plans, descriptions thereof), (ii) the three most recent annual reports on Form 5500 filed with the Internal Revenue Service with respect to each Benefit Plan (if any such report was required), (iii) the most recent summary plan description for each Benefit Plan for which such summary plan description is required (together with all summaries of modifications issued with respect thereto), (iv) each trust agreement and group annuity contract relating to any Benefit Plan, (v) the most recent actuarial valuation report with respect to each Benefit Plan (if any such report was required) and (vi) all material contracts and material written employee communications relating to each Benefit Plan. Each Benefit Plan has been administered in accordance with its terms and the Company and all the Benefit Plans are all in material compliance with all applicable -31- provisions of ERISA, the Code and other applicable laws, including without limitation, applicable federal and state securities laws. (c) All Pension Plans have been the subject of determination, notification, advisory and/or opinion letters from the Internal Revenue Service to the effect that such Pension Plans are qualified and exempt from federal income Taxes under Sections 401(a) and 501(a), respectively, of the Code or have remaining a period of time under applicable Treasury regulations or IRS pronouncements in which to apply for such a letter and make any amendments necessary to obtain a favorable determination as to the qualified status of each such Company Benefit Plan, a true, complete and correct copy of each such determination, notification, advisory and/or opinion letter has been provided to Parent, and no such determination notification, advisory and/or opinion letter has been revoked nor has any event occurred since the date of the most recent determination, notification, advisory and/or opinion letter or application therefor for each Pension Plan that would adversely affect its qualification or materially increase its costs. (d) Neither the Company, nor any Company Subsidiary, nor any Commonly Controlled Entity has at any time maintained, contributed or been obligated to contribute to any Benefit Plan that is subject to Title IV of ERISA, including any "multiemployer plan" (as defined in Section 4001(a)(3) of ERISA). (e) No current or former employee, officer, or director of the Company or any Company Subsidiary will be entitled to any additional compensation or benefits or any acceleration of the time of payment, vesting or exercisability or any other enhancement of any compensation or benefits under any Benefit Plan as a result of the transactions contemplated by this Agreement. (f) The deduction of any amount payable pursuant to the terms of the Benefit Plans will not be subject to disallowance under Section 280G or 162(m) of the Code. (g) No amount that could be received (whether in cash or property or the vesting of property) by any employee, consultant, officer or director of the Company or any Company Subsidiary would be an Excess Parachute Payment. No such person is entitled to receive any Parachute Gross-Up Payment and the Company's board of directors has not granted to any officer, director, consultant or employee of the Company any right to receive any Parachute Gross-Up Payment. (h) No Benefit Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to current or former employees, officers, consultants or directors of the Company, any Company Subsidiary or any Commonly Controlled Entity after retirement or other termination of service, other than (i) coverage mandated by applicable law, (ii) death, termination of service, or retirement benefits under any Pension Plan, (iii) deferred compensation benefits accrued as liabilities on the books of the Company, such Company Subsidiary or any Commonly Controlled Entity, (iv) benefits, the full cost of which is borne by the current or former employee, officer, consultant or director (or his beneficiary or dependent), (v) life insurance benefits for which the employee, officer, consultant or -32- director dies while in service with the Company, or (vi) any stock options that may be exercised after termination of employment or the director or consulting engagement. (i) There are no pending or, to the Company's Knowledge, threatened claims by or on behalf of any Benefit Plan, by any employee or beneficiary under any Benefit Plan or otherwise involving any Benefit Plan (other than routine claims for benefits). (j) Neither the Company nor any Company Subsidiary, nor any Commonly Controlled Entity, nor any of the Benefit Plans, nor any trust created thereunder nor any trustee or administrator thereof has engaged in a transaction or has taken or failed to take any action in connection with which the Company or any Company Subsidiary could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) or ERISA or a Tax imposed pursuant to Section 4975, 4976, or 4980B of the Code. (k) With respect to each Benefit Plan that is subject to the laws or applicable customs or rules of relevant jurisdictions other than the United States, each such Benefit Plan has been administered in all material respects in accordance with its terms and applicable law. Section 3.13 Labor. (a) There are no actions, suits, claims, charges, labor disputes or grievances pending, or to the Company's Knowledge, threatened involving the Company or any Company Subsidiary and any of their respective employees. There are no complaints, charges, lawsuits, arbitrations or other proceedings pending, or to the Company's Knowledge, threatened by or on behalf of any present or former employee of the Company or any of the Company Subsidiaries alleging any claim for material damages including breach of any express or implied contract of employment, wrongful termination, infliction of emotional distress or violation of any federal, state or local statutes or regulations concerning terms and conditions of employment, including wages and hours, employee safety, termination of employment and/or workplace discrimination and harassment. To the Company's Knowledge, no employee of the Company has violated any employment contract, nondisclosure agreement or noncompetition agreement by which such employee is bound due to such employee being employed by the Company and disclosing to the Company or using Trade Secrets of any other Person. Since June 30, 2000, to the Company's Knowledge, there has been (i) no labor union organizing or attempting to organize any employees of the Company or any Company Subsidiary into one or more collective bargaining units, or (ii) no labor dispute, strike, work slowdown, work stoppage or lock out or other collective labor action by or with respect to any employees of the Company or any Company Subsidiary, or, to the Knowledge of the Company, threatened against or affecting the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary is presently, nor has it been in the past, a party to, or bound by, any collective bargaining agreements or other agreement with any labor organization applicable to the employees of the Company or any Company Subsidiary and no such agreement is currently being negotiated. -33- (b) To the Knowledge of the Company, (i) no employee of the Company or any Company Subsidiary has provided or is providing information to any law enforcement agency regarding the commission or possible commission of any crime or the violation or possible violation of any applicable law involving the Company or any Company Subsidiary, and (ii) neither the Company nor any Company Subsidiary nor any officer, employee, contractor, subcontractor or agent of the Company or any such Company Subsidiary has discharged, demoted, suspended, threatened, harassed or in any other manner discriminated against an employee of the Company or any Company Subsidiary in the terms and conditions of employment because of any act of such employee described in 18 U.S.C. Section 1514A(a). (c) Since June 30, 2000, neither the Company nor any of the Company Subsidiaries has effectuated (i) a "plant closing" as defined in the WARN Act, affecting any site of employment or one or more facilities or operating units within any site of employment or facility of the Company or any of the Company Subsidiaries, or (ii) a "mass layoff" (as defined in the WARN Act) affecting any site of employment or facility of the Company or any of the Company Subsidiaries; nor has the Company or any of the Company Subsidiaries engaged in layoffs or employment terminations sufficient in number to trigger application of any similar state, local or foreign law or regulation similar to the WARN Act. To the Company's Knowledge, neither the Company's nor any of the Company Subsidiaries' employees has suffered an "employment loss" (as defined in the WARN Act) in the ninety (90) days prior to the date of this Agreement. Section 3.14 Environmental Matters. (a) The Company and the Company Subsidiaries are in compliance in all material respects with Environmental Laws, including compliance with any permits or other governmental authorizations or the terms and conditions thereof and, to the Company's Knowledge, there are no circumstances that may be expected to prevent or interfere with such compliance in the future. (b) To the Company's Knowledge, there are no past or present facts or circumstances that are reasonably likely to form the basis of any Environmental Claim against the Company or any Company Subsidiary or against any Person or entity whose liability for any Environmental Claim the Company or such Company Subsidiary has retained or assumed either contractually or by operation of law. (c) The Company has made available to Parent or its counsel all assessments, reports, data, results of investigations or audits, or other information that is in the possession of, or, to the Company's Knowledge, reasonably available to, the Company relating to environmental matters at, or the environmental condition of, the Real Property. Section 3.15 Transactions with Affiliates. (a) Except as set forth in the Company SEC Filings filed prior to the date hereof, there have been no transactions, agreements, arrangements or understandings between the Company or any Company Subsidiary, on the one hand, and -34- their respective affiliates, on the other hand, that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act (except for amounts due as normal salaries and bonuses and in reimbursements of ordinary expenses). (b) Except as set forth in the Company SEC Filings filed prior to the date hereof, to the Company's Knowledge, (i) no officer of the Company or any Company Subsidiary owns, directly or indirectly, any interest in (excepting not more than one percent (1%) stock holdings for investment purposes in securities of publicly-held and traded companies) or is an officer, director, employee or consultant of any Person which is a competitor, lessor, lessee, customer or supplier of the Company, and (ii) no officer or director of the Company or any of Company Subsidiary (x) has made, on behalf of the Company or any Company Subsidiary, any payment or commitment to pay any commission, fee or other amount to, or to purchase or obtain or otherwise contract to purchase or obtain any goods or services from, any other Person of which any officer or director of the Company or any Company Subsidiary, or, to the Company's Knowledge, a relative of any of the foregoing, is a partner or stockholder (except stock holdings solely for investment purposes in securities of publicly held and traded companies), or (y) owes any money to the Company or any Company Subsidiary (except for reimbursement of advances in the ordinary course of business consistent with past practices). (c) Since June 30, 2000, the Company has not, directly or indirectly, including through a Company Subsidiary, extended or maintained credit, arranged for the extension of credit, or renewed an extension of credit, in the form of a personal loan to or for any director or executive officer of the Company. Section 3.16 Insurance. Each of the Company and each Company Subsidiary has policies of insurance and bonds of the type and in amounts customarily carried by Persons conducting businesses or owning assets similar to those of the Company and the Company Subsidiaries. There is no material claim pending under any insurance policies or bonds of the Company or any Company Subsidiary as to which coverage has been questioned, denied or disputed by the underwriters of such policies or bonds. All premiums due and payable prior to the date hereof under all such policies and bonds have been paid and the Company and the Company Subsidiaries are otherwise in compliance in all material respects with the terms of such policies and bonds. The Company has no Knowledge of any threatened termination of, or material premium increase with respect to, any such policies. Section 3.16 of the Company Disclosure Schedule sets forth as of the date hereof (a) a list of all policies of fire, liability, workers' compensation, and other forms of insurance maintained by the Company and each Company Subsidiary and (b) the annual premium for the directors' and officers' liability insurance maintained by the Company. -35- Section 3.17 Certain Identified Contracts and Relationships. (a) Except as filed as an exhibit to any of the Company SEC Filings, neither the Company nor any of the Company Subsidiaries is a party to or is bound by or any commitments or understandings regarding: (i) any employment agreement or contract with any director, officer, employee or consultant, other than those that are terminable at-will by the Company or any of the Company Subsidiaries on no more than thirty (30) days' notice and without contractual liability or financial obligation (except for obligations imposed by applicable foreign laws) other than accrued wages, salary or benefits and other than any such agreement, contract or commitment pursuant to which the Company or the Company Subsidiaries have contractual liability of less than $150,000; (ii) any agreement of indemnification or guaranty outside the ordinary course of the Company's business; (iii) any agreement, contract or commitment containing any covenant limiting in any material respect the right of the Company or any of the Company Subsidiaries (i) to engage in any material line of business, (ii) to develop, market or distribute material products or services, or (iii) to compete with any Person, or granting any exclusive distribution rights with respect to a product or service material to the business of the Company and the Company Subsidiaries, taken as a whole; (iv) any lease for personal property other than those entered into in the ordinary course of business on customary terms; (v) any agreement, contract or commitment involving annual revenues to the Company or any of the Company Subsidiaries in excess of $500,000 which has not been terminated or performed in its entirety and not renewed and which may be, by its terms, terminated, without penalty, or which may, by its terms, have any of the obligations of the Company or any of the Company Subsidiaries adjusted, as a result of the execution of this Agreement or the consummation of the Company Merger, where such right of termination or adjustment would not have arisen or existed but for such execution or consummation; (vi) any agreement, contract or commitment currently in force relating to the disposition or acquisition by the Company or any of the Company Subsidiaries after the date hereof of a material amount of assets not in the ordinary course of business or pursuant to which the Company or any of the Company Subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than the Company Subsidiaries, and other than securities of any publicly-traded entity in amounts less than one percent -36- (1%), which the Company holds in its investment portfolio as reflected in the Company SEC Filings; (vii) any agreement, contract or commitment to which the Company or any of the Company Subsidiaries is a party which expressly provides for payments by the Company or any of the Company Subsidiaries on an annual basis in an amount in excess of $250,000 other than agreements, contracts and commitments which may not be cancelled by the Company or any of the Company Subsidiaries, as the case may be, without penalty in excess of $250,000 upon notice of thirty (30) days or less; or (viii) any agreements, contracts, commitments or understandings, whether written or unwritten, formal or informal, between the Company or any Company Subsidiary, on the one hand, and any of the HoldCo Stockholder, Seagate Technology LLC, VERITAS Software Corporation (or any predecessors to the respective businesses of the foregoing) or any of their respective directors, officers or affiliates (the "Seagate Affiliates"), on the other hand. (b) Set forth in Section 3.17(b) of the Company Disclosure Schedule is (i) a list as of the date hereof of all loan or credit agreements, notes, bonds, mortgages, indentures and other agreements and instruments pursuant to which any Indebtedness of the Company or any of the Company Subsidiaries in a principal amount in excess of $500,000 is outstanding or may be incurred on the terms thereof and (ii) the respective principal amounts currently outstanding thereunder as of the date hereof. (c) All contracts, policies, agreements, leases, licenses, documents, instruments, arrangements and other commitments required to be listed in Section 3.17(a) and 3.17(b) of the Company Disclosure Schedule (together with the agreements required to be filed as an exhibit to any of the Company SEC Filings and the Identified Leases (the "Identified Contracts")) are in all material respects valid and binding agreements of the Company or a Company Subsidiary and, to the Company's Knowledge, each Identified Contract (other than those which expire prior to the Company Merger Effective Time) is in full force and effect, and neither the Company, any of the Company Subsidiaries nor, to the Company's Knowledge, any other party thereto, is in default in any material respect under the terms of any such Identified Contracts. The Company has made available to Parent or its counsel true and correct copies of all Identified Contracts that are material to the Company and the Company Subsidiaries, taken as a whole. (d) During the twelve (12) month period preceding the date hereof, no customer individually accounted for more than five percent (5%) of the Company's gross revenues during such twelve (12) month period. Neither the Company nor any of the Company Subsidiaries has engaged in any fraudulent conduct with respect to any customer or supplier of the Company or any of the Company Subsidiaries. -37- Section 3.18 Brokers' and Finders' Fees. Except for the fees payable to Goldman Sachs & Co., Inc. ("Goldman Sachs") pursuant to the engagement letter dated June 14, 2003, the Company has not incurred, nor will it incur, directly or indirectly, any liability for brokerage, finders' financial advisors' or financial sponsors' fees or agents' commissions or any similar charges in connection with this Agreement or any transaction contemplated hereby. A copy of the Company's engagement letter with Goldman Sachs has been previously provided to Parent and such engagement letter reflects the entire terms of engagement with the Company. Section 3.19 Opinion of Financial Advisor. The Company has received the written opinion of Goldman Sachs, to the effect that, as of the date of such opinion, the Merger Consideration was fair to the Company's stockholders from a financial point of view, and a true and complete copy of such opinion will be delivered to Parent when available. ARTICLE IV HOLDCO REPRESENTATIONS AND WARRANTIES HoldCo represents and warrants to Parent, Merger Sub 1, Merger Sub 2 and Merger Sub 3, subject to such exceptions as are set forth in the disclosure schedule delivered by HoldCo to Parent on the date hereof (the "HoldCo Disclosure Schedule"), which disclosure shall provide an exception to or otherwise qualify the representations or warranties of HoldCo specifically referred to in the applicable numbered and lettered sections and subsections of this Article IV to which each exception refers as well as such other representations and warranties to the extent that it is reasonably apparent on the face of the HoldCo Disclosure Schedule that such disclosure is applicable. Section 4.1 Organization. (a) HoldCo (i) is a limited liability company duly organized, validly existing and in good standing under the laws of the Cayman Islands, (ii) has the requisite power and authority to own its properties and to carry on its business as it is now being conducted, and (iii) is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or license necessary, except in the cases of clauses (ii) and (iii) above, where such failure to have such power or authority or to be so qualified or licensed would not reasonably be expected to have a Company Material Adverse Effect. (b) HoldCo has made available to Parent or its counsel complete and correct copies of its certificate of incorporation and memorandum and articles of association, as is in effect on the date hereof. HoldCo is not in material violation of any provision of its memorandum and articles of association. (c) HoldCo does not own, directly or indirectly, any capital stock or other equity securities of any corporation, partnership, joint venture or other business association or entity, other than (i) directors' qualifying shares required under -38- applicable law and (ii) 75,001,000 shares of Company Common Stock, which are owned directly by HoldCo free and clear of all Encumbrances. Section 4.2 Capitalization. (a) As of the date hereof, the authorized share capital of HoldCo consists of 50,000 shares of HoldCo, of which 2,000 shares are issued and outstanding. All of the outstanding shares of HoldCo are, and prior to the HoldCo Merger Effective Time will be, when issued in accordance with the terms thereof, duly authorized, validly issued, fully paid and non-assessable and not subject to any preemptive or similar rights. (b) There is no Convertible Debt of HoldCo issued and outstanding. There are no existing options, warrants, calls, pre-emptive rights, subscriptions or other rights, agreements, arrangements or commitments of any kind relating to the issued or unissued share capital of HoldCo obligating HoldCo to issue, transfer or sell or cause to be issued, transferred or sold any shares or Convertible Debt of, or other equity interest in, HoldCo or securities convertible into or exchangeable for such shares or equity interests, or obligating HoldCo to grant, extend or enter into any such option, warrant, call, subscription or other right, agreement, arrangement or commitment, and (ii) there are no outstanding contractual obligations of HoldCo to repurchase, redeem or otherwise acquire any shares of HoldCo or any affiliate of HoldCo or to provide funds to make any investment (in the form of a loan, capital contribution or otherwise) in any entity. (c) All outstanding shares of HoldCo have been issued and granted in compliance with (i) all applicable laws, including applicable securities laws and (ii) all material requirements set forth in applicable agreements or instruments. Section 4.3 Authority; Consents and Approvals; No Violations. (a) HoldCo has all requisite corporate power and authority to enter into this Agreement and to consummate the HoldCo Merger and the other transactions contemplated hereby. The execution and delivery of this Agreement and the consummation by the HoldCo of the HoldCo Merger and the other transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of HoldCo, have been approved with respect to the de-registration of HoldCo from the Cayman Islands to the State of Delaware by the requisite number of voting shares of HoldCo in accordance with the Companies Law (2003 Revision) of the Cayman Islands (the "Companies Law") and HoldCo's memorandum and articles of association, and other corporate proceedings on the part HoldCo are necessary to authorize this Agreement or to consummate the HoldCo Merger and the other transactions contemplated hereby, subject only to the filing of the HoldCo certificate of domestication, certificate of incorporation, and HoldCo Certificate of Merger pursuant to the DGCL and the filing of the special resolution, affidavit and payment of fees required by Section 226 of the Companies Law to de-register HoldCo from the Cayman Islands. This Agreement has been duly executed and delivered by HoldCo and, assuming the due authorization, execution and delivery hereof by Parent, Merger Sub 1, Merger Sub 2, Merger Sub 3 and the Company, -39- constitutes a valid and binding agreement of HoldCo, enforceable against HoldCo in accordance with its terms. (b) The execution and delivery of this Agreement by HoldCo, and the performance of this Agreement by HoldCo and the consummation by HoldCo of the HoldCo Merger and the other transactions contemplated by this Agreement, do not and will not, (i) conflict with or violate HoldCo's memorandum and articles of association, (ii) conflict with any Legal Requirement applicable to HoldCo or by which HoldCo or any of its properties is bound or affected. (c) No consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Entity is required to be obtained or made by HoldCo in connection with the execution and delivery of this Agreement or the consummation by HoldCo of the HoldCo Merger and the other transactions contemplated hereby, except for (i) the filing of the special resolution, affidavit and payment of fees required by Section 226 of the Companies Law to de-register HoldCo from the Cayman Islands, (ii) the filing of the certificate of domestication and certificate of incorporation with the Secretary of State of the State of Delaware, and (iii) the filing of the HoldCo Certificate of Merger with the Secretary of State of the State of Delaware. Section 4.4 Business Operations. HoldCo was formed solely for the purpose of owning shares of Company Common Stock. HoldCo does not own, and has never owned, any property or assets other than the shares of Company Common Stock and has not incurred any liabilities whatsoever other than in connection with the transactions contemplated by this Agreement. HoldCo has never engaged in any business other than owning the shares of Company Common Stock. Section 4.5 Authority; Consents and Approvals; No Violations. HoldCo has timely filed (or there has been timely filed on its behalf) with the appropriate Tax Authority all material Tax Returns required to be filed by it, and such Tax Returns are true, correct and complete in all material respects. ARTICLE V PARENT REPRESENTATIONS AND WARRANTIES Parent, Merger Sub 1, Merger Sub 2 and Merger Sub 3, jointly and severally, represent and warrant to the Company, subject to such exceptions as are set forth in the disclosure schedule delivered by Parent to the Company on the date hereof (the "Parent Disclosure Schedule"), which disclosure schedule shall provide an exception to or otherwise qualify the representations or warranties of Parent, Merger Sub 1, Merger Sub 2 or Merger Sub 3, as the case may be, specifically referred to in the applicable numbered and lettered sections and subsections of this Article V to which each exception refers as well as such other representations and warranties to the extent that it is reasonably apparent on the face of the Parent Disclosure Schedule that such disclosure is applicable. -40- Section 5.1 Organization. (a) Parent is a societe anonyme duly organized and validly existing under the laws of France. Each of Merger Sub 1, Merger Sub 2 and Merger Sub 3 is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Parent and each Parent Subsidiary (i) has the requisite corporate power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted, and (ii) is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or license necessary, except where such failure to have such power or authority or to be so qualified or licensed would not reasonably be expected to have a Parent Material Adverse Effect. (b) Parent has made available to the Company or its counsel complete and correct copies of the certificate of incorporation and bylaws or equivalent governing instruments of Parent, Merger Sub 1, Merger Sub 2 and Merger Sub 3, as is in effect on the date hereof. Neither Parent nor any of Merger Sub 1, Merger Sub 2 or Merger Sub 3 is in material violation of any provision of its certificate of incorporation or bylaws or equivalent governing instruments. Section 5.2 Capitalization. (a) As of July 17, 2003, the capital stock of Parent consisted of 63,189,929 Parent Ordinary Shares, of which (i) 24,484,011 are in the form of Parent ADSs, and (ii) 1,067,675 are held in the treasury of Parent. In addition, (i) 9,158,381 Parent Shares are authorized for issuance pursuant to outstanding options ("Parent Options"), (ii) 2,591,439 Parent Shares are available for issuance pursuant to Parent's 1999 Stock Option Plan and 2001 Stock Option Plan (the "Parent Option Plans"), (iii) 67,500 Parent Shares are authorized for issuance pursuant to outstanding warrants, (iv) 683,030 are authorized for issuance pursuant to the 1995 International Employee Stock Purchase Plan and the French Employee Stock Purchase Plan, and (v) 5,000,000 Parent Shares are authorized for issuance of securities of Parent giving immediate or deferred access to share capital of Parent with or without preferential subscription rights. All of the outstanding Parent Shares are, and all Parent Shares which may be issued pursuant to the exercise of outstanding stock options and warrants will be, when issued in accordance with the respective terms thereof, duly authorized, validly issued and fully paid and not subject to preemptive rights. (b) There is no Convertible Debt of Parent or any Parent Subsidiary issued and outstanding. Except as set forth in this Section 5.2 as of the date hereof, (i) there are no existing options, warrants, calls, pre-emptive rights, subscriptions or other rights, agreements, arrangements or commitments of any kind relating to the capital stock of Parent or any Parent Subsidiary obligating Parent or any Parent Subsidiary to issue, transfer or sell or cause to be issued, transferred or sold any shares of capital stock or Convertible Debt of, or other equity interest in, Parent or any Parent Subsidiary or securities convertible into or exchangeable for such shares or equity interests, or obligating Parent or any Parent Subsidiary to grant, extend or enter into any such option, warrant, call, subscription or other right, agreement, arrangement or -41- commitment, and (ii) there are no outstanding contractual obligations of Parent or any Parent Subsidiary to repurchase, redeem or otherwise acquire any shares of the capital stock of Parent or any Parent Subsidiary or any affiliate of Parent or to provide funds to make any investment (in the form of a loan, capital contribution or otherwise) in any Parent Subsidiary or any other entity. (c) All outstanding Parent Shares, all outstanding Parent Options and all outstanding shares of capital stock of each Parent Subsidiary have been issued and granted in compliance in all material respects with (i) all applicable laws, including applicable securities laws and (ii) all requirements set forth in applicable material agreements or instruments. Section 5.3 Authority; Consents and Approvals; No Violations. (a) Subject to the approval of the Mergers and the Capital Increase by Parent's stockholders, each of Parent, Merger Sub 1, Merger Sub 2 and Merger Sub 3 has all requisite corporate power and authority to enter into this Agreement and to consummate the Mergers and the other transactions contemplated hereby. The execution and delivery of this Agreement and the consummation by Parent, Merger Sub 1, Merger Sub 2 and Merger Sub 3 of the Mergers and the other transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of Parent, Merger Sub 1, Merger Sub 2 and Merger Sub 3 and no other corporate proceedings on the part of Parent, Merger Sub 1, Merger Sub 2 and Merger Sub 3 are necessary to authorize this Agreement or to consummate the Mergers and the other transactions contemplated hereby, subject to the approval of the Mergers and the Capital Increase by the requisite vote of Parent's stockholders, the filing of the HoldCo Certificate of Merger, the Second HoldCo Certificate of Merger, the Company Certificate of Merger and the Second Company Merger Certificate of Merger (together, the "Certificates of Merger") pursuant to the DGCL. The affirmative vote of the holders of at least two-thirds of Parent Shares present or represented at Parent's stockholders meetings to approve the Mergers is the only vote of the holders of any class or series of Parent capital stock necessary to approve the Mergers. This Agreement has been duly executed and delivered by Parent, Merger Sub 1, Merger Sub 2 and Merger Sub 3 and, assuming the due authorization execution and delivery hereof by the Company, constitutes a valid and binding agreement of Parent, Merger Sub 1, Merger Sub 2 and Merger Sub 3, enforceable against each of them in accordance with its terms. The Parent Shares to be issued pursuant to the Capital Increase and the Mergers, when issued in accordance with the terms hereof, will be duly authorized, validly issued and fully paid and will not be subject to preemptive rights. (b) The execution and delivery of this Agreement by Parent, Merger Sub 1, Merger Sub 2 and Merger Sub 3 do not, and the performance of this Agreement by Parent, Merger Sub 1, Merger Sub 2 and Merger Sub 3 and the consummation by Parent, Merger Sub 1, Merger Sub 2 and Merger Sub 3 of the Mergers and the other transactions contemplated by this Agreement will not, (i) subject to obtaining the approval of the Mergers and the approval of the Capital Increase, conflict with or violate the organizational documents of Parent, Merger Sub 1, Merger Sub 2 and Merger Sub 3, (ii) subject to obtaining the approval of the Mergers and the approval of -42- the Capital Increase and issuance of Parent Shares pursuant to or in connection with the Mergers and compliance with the requirements set forth in Section 4.3(c) below, conflict with or violate any Legal Requirement applicable to Parent, Merger Sub 1, Merger Sub 2 or Merger Sub 3 or by which Parent, Merger Sub 1, Merger Sub 2 or Merger Sub 3 or their respective properties are bound or affected, or (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or impair Parent's, Merger Sub 1's, Merger Sub 2's or Merger Sub 3's rights or alter the rights or obligations of any third party under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of an Encumbrance on any of the material properties or assets of Parent or any of Parent Subsidiaries pursuant to any Parent Material Contract other than, in the case of clauses (ii) and (iii), any such conflicts, violations, breaches, defaults, rights, terminations, amendments, accelerations, cancellations or Encumbrances that individually or in the aggregate would not have a Parent Material Adverse Effect or prevent or materially adversely affect the ability of Parent to consummate the Mergers within the time frame in which the Mergers would otherwise be consummated in the absence of such conflict, violation, breach, default, right, termination, amendment, acceleration, cancellation or Encumbrance. (c) No consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Entity is required to be obtained or made by Parent in connection with the execution and delivery of this Agreement or the consummation by Parent of the Mergers and the transactions contemplated hereby, except for (i) the filing of the Certificates of Merger with the Secretary of State of the State of Delaware and appropriate documents with the relevant authorities of other jurisdictions in which Parent is qualified to do business, (ii) the filing of the Registration Statement and the Proxy Statements with the SEC in accordance with the Exchange Act and Securities Act and compliance with any other applicable requirements of the Exchange Act, the Securities Act and Nasdaq, and compliance with applicable requirements of the Commission des operations de bourse (the "COB"), Euronext Paris ("Euronext") and the Conseil des marches financiers (the "CMF," and collectively with the COB and Euronext, the "French Stock Exchange Authorities") relating to Parent Shares to be issued pursuant to the Capital Increase and compliance with any other applicable French securities or takeover laws and regulations, (iii) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable federal, foreign and state securities (or related) laws, the HSR Act and, if applicable, any Foreign Antitrust Filings, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities or "blue sky" laws and the securities laws of any foreign country, and (v) such other consents, authorizations, filings, approvals and registrations which if not obtained or made individually or in the aggregate would not be material to the Company, Parent or the Surviving Corporation or materially adversely affect the ability of the parties hereto to consummate the Mergers within the time frame in which the Mergers would otherwise be consummated in the absence of the need for such consent, approval, order, authorization, registration, declaration or filings. The consents, approvals, orders, authorizations, registrations, declarations and filings set forth in (i) through (iv) are referred to herein as the "Parent Necessary Consents." -43- Section 5.4 Parent SEC Filings; Financial Statements. (a) Parent has filed all forms, reports and documents required to be filed by Parent with the SEC since January 1, 2000 and has made available to the Company or its counsel such forms, reports and documents in the form filed with the SEC (as those documents have been amended and including those that Parent may file subsequent to the date hereof, the "Parent SEC Filings"). As of their respective dates, Parent SEC Filings (i) were prepared and timely filed in accordance with and complied in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder and (ii) did not at the time they were filed (or if amended or superseded by a filing prior to the date hereof, then on the date of such filing) contain any untrue statement of a material fact or omit to state a material fact or disclose any matter or proceeding required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. None of Parent's Subsidiaries is required to file any forms, reports or other documents with the SEC. (b) Each of the consolidated financial statements (including, in each case, any related notes thereto) contained in the Parent SEC Filings, (i) complied in all material respects with the published rules and regulations of the SEC with respect thereto, (ii) was prepared in accordance with GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes thereto and, in the case of unaudited interim financial statements, as may be permitted by the SEC on Form 10-Q, Form 8-K or any similar or successor form under the Exchange Act), and (iii) fairly presented in all material respects the consolidated financial position of Parent and Parent Subsidiaries as of the respective dates thereof and the consolidated results of operations and cash flows for the periods indicated therein, except that the unaudited interim financial statements may not contain footnotes and were or are subject to normal and recurring year-end adjustments. The reserves reflected in the Parent Financial Statements are adequate, appropriate and reasonable and have been calculated in a consistent manner in accordance with GAAP. The balance sheet of Parent contained in its quarterly report on Form 10-Q for the quarterly period ended March 31, 2003 is hereinafter referred to as the "Parent Balance Sheet." (c) Parent has made available to the Company or its counsel (i) a complete and correct copy of any amendments or modifications to the Parent SEC Filings, which have not yet been filed with the SEC but that Parent intends to file as of the date hereof, (ii) complete and correct copies of any correspondence with, and inquiries from, the SEC with respect to previously filed Parent SEC Filings since June 30, 2000 other than ministerial correspondence generated in connection with the submission of filings under Section 16 of the Exchange Act and requests for and responses to requests for Edgar identification codes, and (iii) complete and correct copies of any correspondence with, and inquiries from, Nasdaq or the French Stock Exchange Authorities which in and of themselves constitute information currently material to Parent's business. (d) Parent has implemented "disclosure controls and procedures" (as defined in Rules 13a-14(c) and 15d-14(c) of the Exchange Act) designed -44- to ensure that material information relating to Parent and Parent Subsidiaries is made known to Parent's chief executive officer and chief financial officer. Each required form, report and document containing financial statements that has been filed with or submitted to the SEC since July 31, 2002, was accompanied by the certifications required to be filed or submitted by Parent's chief executive officer and chief financial officer pursuant to the Sarbanes-Oxley Act, and at the time of filing or submission of each such certification, such certification was true, accurate and complete, and complied with the Sarbanes-Oxley Act and the rules and regulations promulgated thereunder. (e) Since June 30, 2000, neither Parent nor any Parent Subsidiary nor, to Parent's Knowledge, any director, officer, employee, auditor, accountant or Representative of Parent or any Parent Subsidiary has received or otherwise had or obtained knowledge of any written complaint, allegation, assertion or claim regarding the accounting or auditing practices, procedures, methodologies or methods of Parent or any Parent Subsidiary or their respective internal accounting controls, including any complaint, allegation, assertion or claim that Parent or any Parent Subsidiary has engaged in questionable accounting or auditing practices. No attorney representing Parent or any Parent Subsidiary, whether or not employed by Parent or any Parent Subsidiary, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by Parent or any of its officers, directors, employees or agents to Parent's board of directors or any committee thereof or to any director or officer of Parent. Section 5.5 Absence of Certain Changes. Except as disclosed in the Parent SEC Filings filed since the date of the Parent Balance Sheet and through the date hereof and, as contemplated by this Agreement, Parent has conducted its business in all material respects only in the ordinary course of business consistent with past practices and in compliance in all material respects with all applicable laws and regulations and, specifically and without limitation of the foregoing, there has not been, with respect to Parent: (a) any event, occurrence, development or state of circumstances or facts that has resulted in or constituted or that is reasonably likely to result in or constitute a Parent Material Adverse Effect; or (b) (i) any split, combination or reclassification of any capital stock, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the shares of capital stock, or any purchase, redemption or other acquisition of any of the shares of capital stock or any other securities or other partnership interests or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees or consultants following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, or (iii) any amendment of any material term of any outstanding security. Section 5.6 No Undisclosed Liabilities. Except as and to the extent disclosed in the consolidated financial statements (including, in each case, any related notes thereto) contained in the Parent SEC Filings (including such financial statements as -45- were incorporated by reference) (the "Parent Financial Statements") and except for liabilities and obligations incurred in the ordinary cause of business since the date of the Parent Balance Sheet and through the date hereof, Parent has not incurred any liabilities required under GAAP to be set forth on a consolidated balance sheet (absolute, accrued, contingent or otherwise) which would be reasonably expected to have a Parent Material Adverse Effect, except for liabilities incurred since the date of the Parent Balance Sheet in the ordinary course of business consistent with past practices. Section 5.7 Parent Material Contracts. All contracts, policies, agreements, leases, licenses, documents, instruments, arrangements and other commitments that, as of the date hereof, are required to be filed as an exhibit to the Parent SEC Filings (the "Parent Material Contracts") are in all material respects valid and binding agreements of Parent and, to Parent's Knowledge, each Parent Material Contract (other than those which expire prior to the Effective Time) is in full force and effect, and neither Parent nor, to Parent's Knowledge, any other party thereto, is in default in any material respect under the terms of any such Parent Material Contracts. Section 5.8 Intellectual Property; Privacy. (a) To Parent's Knowledge, the conduct of the business of the Parent and each Parent Subsidiary does not (except as may have been resolved) infringe or misappropriate the Intellectual Property Rights of any third party or constitute unfair competition or unfair trade practices under the laws of any jurisdiction, in each case to an extent which would reasonably be expected to have a Parent Material Adverse Effect. (b) In the one (1) year period preceding the date hereof, neither the Parent nor any of the Parent Subsidiaries has received any written communications from any third party alleging that the operation of the business of Parent or any of the Parent Subsidiaries has infringed or misappropriated or does infringe or misappropriate the Intellectual Property Rights of any third party or constitute unfair competition or unfair trade practices under the laws of any jurisdiction, in each case to an extent which is likely to have a Parent Material Adverse Effect. (c) To Parent's Knowledge there is no pending claim, suit, arbitration or other adversarial proceeding before any court, agency, arbitral tribunal or registration authority in any jurisdiction in which Parent or any Parent Subsidiary does business alleging that the conduct of the business of the Parent or any Parent Subsidiary has infringed or misappropriated or does infringe or misappropriate the Intellectual Property Rights of any third party or constitute unfair competition or unfair trade practices under the laws of such jurisdiction. (d) To Parent's Knowledge, no Person has infringed or misappropriated, or is infringing or misappropriating, any Parent Intellectual Property Rights in a manner that would have a Parent Material Adverse Effect. -46- Section 5.9 Taxes. (a) Parent and all Parent Subsidiaries (i) have timely filed (or there have been timely filed on their behalf) with the appropriate Tax Authority all material Tax Returns required to be filed by them, and such Tax Returns are true, correct and complete in all material respects, and (ii) have timely paid in full (or there has been timely paid on their behalf), all material Taxes shown as due and payable on such Tax Returns. (b) There are no material liens for Taxes upon any property or assets of Parent or any Parent Subsidiary thereof, except for liens for Taxes not yet due. (c) The charges, accruals and reserves for Taxes with respect to the Company and the Company Subsidiaries reflected on the Parent Financial Statements (excluding any provision for deferred income Taxes reflecting either differences between the treatment of items for accounting and income Tax purposes or carryforwards) are adequate under GAAP to cover Tax liabilities accruing through the date of such Parent Financial Statements. Section 5.10 Merger Subs. Each of Merger Sub 1, Merger Sub 2 and Merger Sub 3 was formed in connection with engaging in the transactions contemplated by this Agreement, and each of Merger Sub 1, Merger Sub 2 and Merger Sub 3 has engaged in no business other than in connection with the transactions contemplated hereby. Section 5.11 Availability of Funds. Parent currently has access to sufficient immediately available funds in cash or cash equivalents, and will at the Closing have sufficient immediately available funds, in cash, to pay the aggregate amount of cash consideration set forth in Article II. Section 5.12 Litigation. As of the date hereof, there is no action, suit, claim, binding arbitration proceeding or binding alternative dispute resolution proceeding, or investigation or proceeding by or before any court or Governmental Entity pending, or, to Parent's Knowledge, overtly threatened against, naming Parent or any of Parent's officers or directors (in their capacities as such) or any other party that Parent may be obligated to indemnify as a party thereto or seeking to restrain, enjoin, alter or delay the consummation of the Mergers or the other transactions contemplated hereby. There is no pending or effective judgment, decree or order against Parent, and Parent Subsidiary or any of Parent's officers or directors (in their capacities as such). There is no litigation that Parent or any Parent Subsidiary has pending against other parties. Section 5.13 Compliance with Laws. (a) Parent is in compliance in all material respects with all material Legal Requirements. No investigation or review by any Governmental Entity is pending or, to Parent's Knowledge, has been overtly threatened against Parent. Parent has not received any written communication from a Governmental Entity (excluding routine inspections) that alleges that any of them is not in compliance with all material -47- federal, state, foreign or local laws, rules and regulations. There is no agreement, judgment, injunction, order or decree binding upon Parent which has or could reasonably be expected to have the effect of prohibiting or impairing any material business practice of Parent, any acquisition of property material to the operation of the business of Parent or the conduct of business by Parent as currently conducted. The Parent holds to the extent legally required, all licenses, permits and approvals from Government Entities that are material to the operation of Parent's business as currently conducted. The Parent is in compliance in all material respects with such licenses, permits and approvals. (b) Neither Parent nor, to Parent's Knowledge, any directors or officers, agents or employees of Parent, has (i) used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns or violated any provision of the Foreign Corrupt Practices Act of 1977, as amended, or (iii) made any payment in the nature of criminal bribery. Section 5.14 Brokers' and Finders' Fees. Except for the fees payable to Thomas Weisel Partners LLC ("Thomas Weisel") pursuant to the engagement letter dated June 17, 2003, Parent has not incurred, nor will it incur, directly or indirectly, any liability for brokerage, finders' financial advisors' or financial sponsors' fees or agents' commissions or any similar charges in connection with this Agreement or any transaction contemplated hereby. Section 5.15 Opinion of Financial Advisor. Parent has received the written opinion of Thomas Weisel to the effect that the consideration to be paid by Parent to the holders of HoldCo Common Stock, Company Common Stock and options to acquire Company Common Stock, in the aggregate, pursuant to the Merger, is fair to Parent from a financial point of view as of the date of such opinion and a true and complete copy of such opinion will be delivered to Company when available. ARTICLE VI CONDUCT OF THE COMPANY'S BUSINESS PENDING THE MERGERS Section 6.1 Interim Conduct of the Company. (a) During the period from the date hereof and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, except to the extent that Parent consents in writing, the Company will, and will cause each Company Subsidiary to use all reasonable efforts to carry on its business, in all respects material to the Company and the Company Subsidiaries taken as a whole, in the usual, regular and ordinary course, in substantially the same manner as heretofore conducted and in compliance in all material respects with all applicable laws and regulations, pay its debts and Taxes when due, subject to good faith disputes over such debts or Taxes, pay or perform other material obligations when due, and use its best efforts to preserve intact its present business organization. -48- (b) In addition, without limiting the generality of Section 6.1(a), except as permitted or contemplated by the terms of this Agreement or as provided in Section 6.1(b) of the Company Disclosure Schedule, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned), during the period from the date hereof and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Company Merger Effective Time, the Company will not do, and will not permit any Company Subsidiary to do, any of the following: (i) amend its articles or certificate of incorporation or bylaws or similar organizational documents; (ii) (A) issue, sell, transfer, pledge, dispose of or encumber any shares of, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of capital stock of any class of the Company or any Company Subsidiary, other than the issuance, delivery and/or sale of (1) shares of the Company Common Stock pursuant to the exercise of stock options or warrants therefor outstanding as of the date hereof, (2) stock options or other stock-based awards of or to acquire shares of the Company Common Stock granted under the Company Option Plans that are existing as of the date hereof, in the ordinary course of business in connection with periodic compensation reviews or ordinary course promotions or to new hires and which options or stock-based awards have a vesting schedule no more favorable than the Company's customary vesting schedule (it being understood that any such stock options granted after the date hereof will not vest prior to Closing, and that no stock options will be granted following the date of effectiveness the Registration Statement) and do not accelerate, or become subject to acceleration, directly or indirectly, as a result of the approval or consummation of the Company Merger (other than, in accordance with the terms of such plan or pursuant to a change of control agreement to which the optionee is already a party) in no event to exceed an aggregate 3,000,000 shares of Company Common Stock, (B) declare, set aside or pay any dividend or other distribution payable in cash, stock or property with respect to its capital stock, or (C) redeem, purchase or otherwise acquire any shares of any class or series of its capital stock, or any instrument or security which consists of or includes a right to acquire such shares, except in connection with the exercise of repurchase rights or rights of first refusal in favor of the Company with respect to shares of the Company Common Stock issued upon exercise of Company Stock Options granted under the Company Option Plans; (iii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of any other Person other than (1) in the ordinary course of business, (2) in connection with the financing of ordinary course trade payables consistent with past practices, or (3) loans, investments or guarantees by the Company or any of the -49- Company Subsidiaries to, in or of the Company or any Company Subsidiary made in the ordinary course of business other than as contemplated by the operating plan of the Company for the fiscal year ending July 2, 2004, which has been approved by the Company's board of directors and a copy of which has been provided to Parent (the "Company 2004 Plan"), (B) make any loans, advances or capital contributions to, or investments in, any other Person (other than a Person which is a Company Subsidiary) other than customary loans or advances to employees in each case in the ordinary course of business consistent with past practices, or (C) cancel any debts or waive any material claims or rights other than customer credits in the ordinary course of business; (iv) except as required by Legal Requirements or pursuant to agreements or written policies in existence as of the date hereof or as contemplated by the Company 2004 Plan, (A) make any change in the compensation or benefits payable or to become payable to (y) any of its employees, agents or consultants or to Persons providing management services, which changes constitute a net aggregate change, or (z) its officers who report directly to the Chief Executive Officer of the Company, or members of the board of directors of the Company, (B) enter into or amend any employment, severance, consulting, termination or other agreement or employee benefit plan or make any loans to (y) any of its employees, affiliates, agents or consultants, which changes constitute a net aggregate change, or (z) its officers who report directly to the Chief Executive Officer of the Company, or members of the Company's board of directors, (C) or make any change in its existing borrowing or lending arrangements for or on behalf of any of such employees, agents, consultants or Persons providing management services, which changes constitute a net aggregate change, or its officers who report to the Chief Executive Officer of the Company and members of the board of directors of the Company, individually, pursuant to an employee benefit plan or otherwise, (D) pay or make any accrual or arrangement for payment of any pension, retirement allowance or other employee benefit pursuant to any existing plan, agreement or arrangement to any officer, director, employee or affiliate or pay or agree to pay or make any accrual or arrangement for payment to any officers, directors, employees or affiliates of any amount relating to unused vacation days, except payments and accruals made in the ordinary course of business consistent with past practices, (E) offer, grant or issue any stock options other than in a manner consistent with Section 6.1(b)(ii)(A)(2) or take any action to accelerate, amend or change the period of vesting or exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plans, (F) hire or terminate any officer who reports to the Chief Executive Officer of the Company (other than terminations for cause) or encourage any officer who would report or does report to the Chief Executive Officer of the Company -50- to resign, or increase the number of employees in the aggregate in a manner inconsistent with the Company 2004 Plan, or (G) amend in any material respect any such existing plan, agreement or arrangement in a manner inconsistent with the foregoing; (v) permit to be cancelled or terminated, without reasonable efforts to maintain coverage, or cancel or terminate any insurance policy naming it as a beneficiary or loss payee, to be cancelled or terminated any insurance policy naming it as a beneficiary or payee; (vi) (A) materially modify, amend or terminate any of the Identified Contracts that are material to the business of the Company and the Company Subsidiaries, taken as a whole, (B) waive, release or assign any material rights on claims under any of the Company Identified Contracts that are material to the business of the Company and the Company Subsidiaries, taken as a whole, (C) enter into any material commitment or transaction including entering into any material purchase, sale or lease of assets or real estate, or (D) enter into any agreement, including any material strategic alliance, material joint development or joint marketing agreement, any borrowing, capital expenditure or purchase, sale or material lease of assets or real estate, other than in the ordinary course of business consistent with past practices, (E) enter into any agreement pursuant to which Parent or the Surviving Corporation or any of their respective Subsidiaries, or, other than in the ordinary course of business consistent with past practices, the Company or any Company Subsidiary will be subject to any material exclusivity, non-compete or other similar restriction on their respective businesses following the Closing; (vii) (A) enter into any agreement or assignment which has the effect of transferring or licensing to any Person or entity or otherwise extending or modifying in any material respect the rights of any Person to use material Company Intellectual Property Rights (including the associated financial terms), other than non-exclusive licenses in the ordinary course of business consistent with past practices; (B) disclose to any Person other than Company employees and Representatives of Parent any material Trade Secret except pursuant to non-disclosure agreements or in the ordinary course of business consistent with past practices; (C) transfer, modify or terminate any agreement pursuant to which the Company has licensed Intellectual Property Rights material to the conduct of the business of the Company from any Person other than in the ordinary course of business consistent with past practices; and (D) not disclose any material source code to any third party except in the ordinary course of business consistent with past practices; (viii) fail to make in a timely manner any filings with the SEC required under the Securities Act or the Exchange Act or the rules and regulations promulgated thereunder; -51- (ix) (A) make any change in any material method of accounting, method of accounting principles or practice, except for such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, (B) make any Tax election or change any Tax election already made, adopt any Tax accounting method, except for such changes required by applicable law, rule or regulation, change any Tax accounting method, except for such changes required by applicable law, rule or regulation, enter into any closing agreement or settle any claim or assessment relating to Taxes other than settlements or assessments the result of which would not be material to the Company and the Company Subsidiaries, taken as a whole, or consent to any claim or assessment relating to Taxes or any waiver of the statute of limitations for any such claim or assessment, or (C) file the 2003 United States federal income Tax return for the taxable year ending June 27, 2003 without Parent's consent, which shall not be unreasonably withheld, or (D) revalue any of its material assets, except as required by GAAP, applicable accounting requirements or the published rules and regulations of the SEC with respect thereto in effect during the periods involved other than in the ordinary course of business consistent with past practices; (x) pay, discharge or satisfy any material claims, material liabilities or material obligations (whether absolute, accrued, contingent or otherwise), other than the payment, discharge or satisfaction of any such claims, liabilities or obligations, in the ordinary course of business consistent with past practices, or of claims, liabilities or obligations reflected or reserved against in, or contemplated by, the consolidated financial statements (or the notes thereto); (xi) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (other than the Mergers) other than liquidations, dissolutions, mergers, consolidations, restructurings, recapitalizations or other reorganizations of Company Subsidiaries that would not have a material effect on the business of the Company and the Company Subsidiaries, taken as a whole, (B) acquire or agree to acquire by purchasing any equity interest in or a material portion or all of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or, except in the ordinary course of business consistent with past practices, otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the Company and the Company Subsidiaries, taken as a whole, or (C) sell, transfer, lease, mortgage, pledge, license, encumber, or otherwise dispose of, any of its properties or assets that are material, individually or in the aggregate, to the Company and the Company Subsidiaries, taken as a whole; -52- (xii) take any action that would or is reasonably likely to result in any of the conditions to the Mergers set forth in Article IX not being satisfied, or would make many representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Company Merger Effective Time, or that would impair the ability of the Company to consummate the Company Merger in accordance with the terms hereof or materially delay such consummation; (xiii) (A) commence any litigation (except actions commenced in the ordinary course of business against third parties) or (B) except in the ordinary course of business consistent with past practices or as required by law, judicial order or decree or settle any litigation except in the ordinary course of business, it being understood that any settlement of litigation involving the payment by the Company or any Company Subsidiary of an amount in excess of $350,000 is not in the ordinary course of business; or (xiv) enter into any written or oral agreement, contract, commitment or arrangement to take any of the actions described in (i) through (xiv) above. (c) During the period commencing on the date hereof and continuing until the earlier of the Effective Time or termination of this Agreement, HoldCo will not conduct any business activities other than administrative activities in the ordinary course or activities in connection with or reasonably related to the Mergers and the other transactions contemplated by the Merger Agreement. Section 6.2 Acquisition Proposals. (a) No Solicitation. (i) The Company agrees that it will, and will cause its Representatives to, immediately cease and cause to be terminated all existing discussions, negotiations and communications with any Persons with respect to any offer or proposal for a merger, consolidation or other business combination involving the Company, any acquisition of a substantial amount of the capital stock (or securities convertible into, or exchangeable or exercisable for, capital stock) or assets of the Company, any recapitalization with respect to the Company or any other transaction similar to any of the foregoing with respect to the Company other than pursuant to the transactions contemplated by this Agreement (a "Company Acquisition Proposal"). In addition, the Company agrees that it will not authorize its employees to continue any existing discussions, negotiations or communications with any Persons with respect to any Company Acquisition Proposal. -53- (ii) Except as provided in Section 6.2(c), the Company will not, and will not authorize or permit its Representatives or authorize its employees to, directly or indirectly (A) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries with respect to, or the making of any offer or proposal which constitutes, or is reasonably likely to lead to, any Company Acquisition Proposal, (B) enter into or participate in negotiations or discussions with, or provide any information or data to, any Person (other than Parent, Merger Sub 1, Merger Sub 2, Merger Sub 3 or any of their respective affiliates or Representatives) relating to any Company Acquisition Proposal, except as to the existence of these provisions, (C) make or authorize any statement, recommendation or solicitation in support of, or approve, any Company Acquisition Proposal, (D) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Company Acquisition Proposal or transaction contemplated thereby, or (E) grant any waiver or release under any standstill or similar agreement with respect to any equity securities of the Company or any of the Company Subsidiaries. (iii) Any violation of the foregoing restrictions by any of the Company's Representatives will be deemed to be a breach of this Agreement by the Company, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of the Company. (b) Notification of Unsolicited Acquisition Proposals. The Company will promptly notify Parent orally and in writing if any proposals are received by, any information is requested from, or any negotiations or discussions are sought to be initiated or continued with the Company or any of its Representatives, in each case in connection with any Company Acquisition Proposal or a written indication that a Company Acquisition Proposal is under consideration indicating, in connection with such notice, the name of the Person making such Company Acquisition Proposal and the material terms and conditions thereof. The Company agrees that it will keep Parent informed, on a current basis, of the status and material terms of any Company Acquisition Proposal. The Company will provide Parent with forty-eight (48) hours prior notice (or such lesser prior notice as is provided to the members of the Company's board of directors) of any meeting of the Company's board of directors at which its board of directors is reasonably expected to discuss or consider any Company Acquisition Proposal. (c) Superior Proposals. Notwithstanding the foregoing, until such time as the Company Merger is approved by the Company's stockholders in accordance with applicable law, the Company may furnish information concerning its business, properties or assets to any Person pursuant to an executed confidentiality agreement with terms (i) no less favorable to the Company than those contained in the Confidentiality Agreement, (ii) which will not include any provision calling for any exclusive right to negotiate with such party and which (iii) will not have the effect of -54- prohibiting the Company from satisfying its obligations under this Agreement, and may participate in discussions and negotiations with such Person concerning any Company Acquisition Proposal if, but only if, (y) such Person has on an unsolicited basis, and in the absence of any willful or knowing violation of this Section 6.2 by the Company or any of its Representatives, submitted a bona fide written Company Acquisition Proposal to the Company, and (z) in the good faith judgment of the Company's board of directors, upon the advice of outside legal counsel to the Company, the failure to provide such information or access or to engage in such discussions or negotiations would be reasonably likely to result in a violation of its fiduciary duties under applicable law. The Company will promptly provide to Parent any material non-public information regarding the Company provided to any other party which was not previously provided to Parent, such additional information to be provided no later than the date of provision of such information to such other party. (d) Compliance with Applicable Law. Notwithstanding the foregoing, nothing contained in this Section 6.2 or any other provision hereof will prohibit the Company or the Company's board of directors from taking and disclosing to the Company's stockholders a position contemplated by Rules 14d-9 or 14e-2 promulgated under the Exchange Act, or from complying with its disclosure obligations under applicable law; provided, however, that neither the taking or disclosing to the Company's stockholders of a position contemplated by Rules 14d-9 or 14e-2 nor compliance with the Company's disclosure obligations under applicable law shall relieve the Company or the Company's board of directors of their respective obligations and restrictions under this Agreement (including those articulated in this Section 6.2), or limit, restrict or otherwise impair the rights of Parent, Merger Sub 1, Merger Sub 2 and Merger Sub 3 under this Agreement. ARTICLE VII CONDUCT OF PARENT'S BUSINESS PENDING THE MERGERS Section 7.1 Interim Conduct of Parent. (a) During the period from the date hereof and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Company Merger Effective Time, except to the extent that the Company consents in writing, Parent will use all reasonable efforts to carry on its business, in all material respects, in the usual, regular and ordinary course, in substantially the same manner as heretofore conducted and in compliance in all material respects with all applicable laws and regulations, pay its debts and Taxes when due, subject to good faith disputes over such debts or Taxes, pay or perform other material obligations when due, and use its best efforts to preserve intact its present business organization. (b) In addition, without limiting the generality of Section 7.1(a), except as permitted or contemplated by the terms of this Agreement or as provided in Section 7.1(b) of the Parent Disclosure Schedule, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), during the period from the date hereof and continuing until the earlier of the -55- termination of this Agreement pursuant to its terms or the Effective Time, Parent will not do any of the following: (i) amend its articles or certificate of incorporation or bylaws or similar organizational documents; (ii) (A) issue, sell, transfer, pledge, dispose of or encumber any shares of Parent capital stock or securities (including debt securities) convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of capital stock of any class of Parent, other than the issuance, delivery and/or sale of (1) Parent Shares pursuant to the exercise of stock options or warrants therefor outstanding as of the date hereof, (2) stock options or other stock-based awards of or to acquire Parent Shares granted under the Parent Option Plans that are granted in the ordinary course of business and (3) internal restructurings solely involving Parent and/or direct or indirect wholly-owned Parent Subsidiaries, (B) sell, transfer, pledge, dispose of or encumber any material amount of assets, (C) declare, set aside or pay any dividend or other distribution payable in cash, stock or property with respect to its capital stock other than ordinary cash dividends, or (D) redeem, purchase or otherwise acquire any shares of any class or series of its capital stock, or any instrument or security which consists of or includes a right to acquire such shares, except in connection with the exercise of repurchase rights or rights of first refusal in favor of the Parent with respect to Parent Shares issued upon exercise of Parent Options granted under the Parent Option Plans; provided, that any such redemption, purchase or otherwise acquisition of shares would not and would not reasonably be expected to result in the Parent Shares to be issued by virtue of the Mergers to be in excess of thirty-three and one-third percent (33-1/3%) of the total outstanding Parent share capital; (iii) adopt a plan of complete or partial liquidation or dissolution; (iv) take any action that would or is reasonably likely to result in any of the conditions to the Mergers set forth in Article IX not being satisfied, or that would impair the ability of Parent to consummate the Mergers in accordance with the terms hereof or materially delay such consummation; or (v) enter into any written or oral agreement, contract, commitment or arrangement to take any of the actions described in (i) through (iv) above. Section 7.2 Acquisition Proposals. (a) No Solicitation. -56- (i) Parent agrees that it will, and will cause its Representatives to, immediately cease and cause to be terminated all existing discussions, negotiations and communications with any Persons with respect to any proposal for a merger, consolidation or other business combination resulting in a change of control of Parent or sale of all or substantially all of the Parent Shares or Parent's assets that would be reasonably likely to (A) materially adversely affect the ability of Parent to consummate the transactions contemplated by this Agreement without material delay or (B) require a vote of Parent's stockholders prior to the Parent Stockholders' Meeting (a "Parent Acquisition Proposal"). In addition, Parent agrees that it will not authorize its employees to continue any existing discussions, negotiations or communications with any Persons with respect to any Parent Acquisition Proposal. (ii) Except as provided in Section 7.2(c), Parent will not, and will not authorize or permit its Representatives or authorizes its employees to, directly or indirectly, (A) initiate, solicit or knowingly encourage or knowingly facilitate any inquiries with respect to, the making of any offer or proposal which constitutes, or is reasonably likely to lead to, any Parent Acquisition Proposal, (B) enter into or participate in negotiations or discussions with, or provide any information or data to, any Person relating to any Parent Acquisition Proposal, except as to the existence of these provisions, (C) make or authorize any statement, recommendation or solicitation in support of, or approve, any Parent Acquisition Proposal, or (D) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Parent Acquisition Proposal or transaction contemplated thereby. (iii) Any violation of the foregoing restrictions by any of Parent's Representatives will be deemed to be a breach of this Agreement by Parent, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Parent. (b) Notification of Unsolicited Acquisition Proposals. Parent will promptly notify the Company orally and in writing if any offer or proposal is received by, Parent or any of its Representatives which constitutes, or is reasonably likely to lead to a Parent Acquisition Proposal. Parent will provide the Company with forty-eight (48) hours prior notice (or such lesser prior notice as is provided to the members of Parent's board of directors) of (i) any meeting of Parent's board of directors at which its board of directors is reasonably expected to discuss or consider any Parent Acquisition Proposal, (ii) the taking of any actions referred to in Sections 7.2(a)(ii)(C) or (D), or (iii) the amendment, modification, withdrawal, condition or qualification of the recommendation of the board of directors of Parent or any committee thereof. (c) Certain Parent Acquisition Proposals. -57- (i) Notwithstanding anything to the contrary in Section 7.2(a), Parent may furnish information concerning its business, properties or assets to any Person pursuant to an executed confidentiality agreement with terms no less favorable to Parent than those contained in the Confidentiality Agreement, and may take any of the actions referred to in Sections 7.2(a)(ii) (B) through (D) above concerning a Parent Acquisition Proposal if, but only if, (A) such Person has on an unsolicited basis, submitted a bona fide written Parent Acquisition Proposal to Parent, and (B) in the good faith judgment of Parent's board of directors, based on the advice of independent outside legal counsel, the failure to take any such action would be reasonably likely to result in a violation of its fiduciary duties under applicable law; provided, however, that the taking of any such action will not and shall not affect the validity or enforceability of this Agreement. (ii) Nothing in this Section 7.2 will prevent Parent from responding to any unsolicited proposal or inquiry or engaging in negotiations or discussions or entering into any agreement with respect to any transaction that is not a Parent Acquisition Proposal; provided, that any agreement relating to such transaction will not and shall not affect the validity or enforceability of this Agreement. (d) Compliance with Applicable Law. Notwithstanding the foregoing, nothing contained in this Section 7.2 or any other provision hereof will prohibit Parent or Parent's board of directors from taking and disclosing to Parent's stockholders a position contemplated by Rules 14d-9 or 14e-2 promulgated under the Exchange Act or any similar situation provided for under similar applicable French law and regulations; provided, however, that the taking or disclosing to Parent's stockholders of a position contemplated by Rules 14d-9 or 14e-2 or any similar applicable French law and regulations shall not relieve Parent or Parent's board of directors of their respective obligations and restrictions under this Agreement (including those articulated in this Section 7.2), or limit, restrict or otherwise impair the rights of the Company under this Agreement. ARTICLE VIII ADDITIONAL AGREEMENTS Section 8.1 Approval of Transactions; Stockholders' Meetings. (a) Promptly following the domestication of HoldCo as contemplated by Section 8.30, HoldCo will submit to the HoldCo Stockholder for its approval and adoption (as appropriate) this Agreement, the HoldCo Merger and the other transactions contemplated hereby (the "HoldCo Proposal"). Immediately following the execution of this Agreement by the parties, the Company will submit to HoldCo for its approval and adoption (as appropriate) this Agreement, the Company Merger and the other transactions contemplated hereby (the "Company Proposals"). The Company will use its best efforts to obtain the approval and adoption (as appropriate) of the HoldCo -58- Proposal and the Company Proposals by the HoldCo Stockholder and HoldCo, respectively, in accordance with this Section 8.1(a). (b) As promptly as practicable following the approval and adoption of the Company Proposals by HoldCo, the Company will, in accordance with the applicable law, notify each Company stockholder that the Company Proposals have been approved and adopted by HoldCo and that appraisal rights are available under the DGCL, including by filing with the SEC the Company Information Statement in accordance with the Exchange Act. Parent will furnish all information concerning itself as the Company may reasonably request in connection with such actions and the preparation of any such notice and the Company Information Statement. Parent and its counsel will be given a reasonable opportunity to review and comment on the Company Information Statement (and any amendment or supplement thereto) prior to its being filed with the SEC. (c) Notwithstanding anything to the contrary contained in this Agreement, unless this Agreement is terminated in accordance with its terms, the Company will notify its stockholders with respect to the approval and adoption of the Company Proposals in accordance with applicable law. (d) Immediately following the execution of this Agreement, Parent in its capacity as the sole stockholder of each of Merger Sub 1, Merger Sub 2 and Merger Sub 3 shall approve and adopt this Agreement and approve the Mergers. Section 8.2 Approval by Parent. (a) As promptly as practicable, Parent, through its board of directors, will convene a meeting of its stockholders (the "Parent Stockholders' Meeting") for the purpose of voting upon, and will use its reasonable best efforts to solicit from its stockholders a vote in favor of, (i) approval of the Mergers, (ii) approval of the issuance of Parent Shares pursuant to the Capital Increase, (iii) the appointment of two additional members to Parent's board of directors as contemplated by Section 8.8, and (iv) such other matters as Parent reasonably believes are necessary to be approved under applicable law to consummate the Mergers in accordance with the terms hereof (collectively, the "Parent Proposals"). Notwithstanding anything in this Agreement to the contrary, (y) Parent shall be permitted to adjourn the Parent Stockholders' Meeting, from time to time, until such time as all other conditions set forth in Article IX (other than conditions which by their terms are to be satisfied at Closing) have been satisfied or duly waived and (z) unless this Agreement is terminated in accordance with its terms, Parent will call, hold and convene the Parent Stockholders' Meeting for the purpose of considering the approval of the Parent Proposals. (b) Subject to the provisions of this Section 8.2(b), Parent's board of directors will recommend that Parent's stockholders vote in favor of the Parent Proposals. Neither Parent's board of directors nor any committee thereof will amend modify, withdraw, condition or qualify the recommendation in a manner adverse to the Company unless Parent's board of directors determines in good faith, based on the advice of independent outside legal counsel, that the failure to so amend, modify or withdraw, -59- condition or qualify the recommendation would be reasonably likely to result in a violation of its fiduciary duties under applicable law. Section 8.3 Parent Proxy Statement; Registration Statement. (a) As promptly as practicable after the execution of this Agreement, Parent will prepare and file with the SEC a registration statement on Form S-4 (together with all amendments thereto, the "Registration Statement") for the registration under the Securities Act of the Parent Shares to be issued pursuant to the Mergers. The Company will furnish all information concerning itself as Parent may reasonably request in connection with such actions and the preparation of the Registration Statement. Parent will use all reasonable efforts to cause the Registration Statement to become effective as promptly as practicable and to keep the Registration Statement effective as long as necessary to consummate the transactions contemplated by this Agreement. The Company and its counsel will be given a reasonable opportunity to review and comment on the Registration Statement (and any amendment or supplement thereto) prior to it being filed with the SEC. (b) Prior to the effective date of the Registration Statement, Parent will take all or any action required under any applicable U.S. federal or state and non-U.S. securities laws in connection with the issuance of Parent Shares pursuant to the Mergers. (c) As promptly as practicable after the execution of this Agreement, (i) Parent will seek the appointment of commissiares aux apports in connection with the Mergers, (ii) Parent will prepare, publish and/or make available, to the extent required, and in accordance with the applicable French law and regulations, to Parent's stockholders the resolutions related to the Parent Proposals, the rapport du conseil d'administration a l'assemblee and the rapport des commissaires aux apports (together with any amendments thereof or supplements thereto, the "Parent Proxy Statement") relating to the Parent's Stockholders' Meeting to be held to consider approval of the Parent Proposals, and (iii) Parent will prepare and file with the French Stock Exchange Authorities all filings required (the "Parent French Filings") in connection with the Parent Stockholders' Meeting to be held to consider approval of the Parent Proposals. The Company will promptly furnish all information concerning the Company as Parent may reasonably request in connection with such actions and the preparation of the Parent Proxy Statement and the Parent French Filings. The Company and its counsel will be given a reasonable opportunity to review and comment on the Registration Statement, the Parent Proxy Statement and the other Parent French Filings (and any amendment or supplement thereto) prior to them being filed with the applicable agency. (d) The Parent Proxy Statement will include the recommendation of Parent's board of directors to Parent's stockholders in favor of the Parent Proposals, subject to Section 8.2(b). (e) Parent will advise the Company, promptly after it receives notice thereof, of (i) the time when the Registration Statement has become effective, (ii) the issuance of any stop order, (iii) the suspension of the qualification of Parent -60- Shares issuable in connection with the Mergers for offering or sale in any jurisdiction, (iv) any request by the SEC for amendment of the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information, (v) any request by the COB or other French regulatory authority for amendment of the Parent Proxy Statement or other Parent French Filings or comments thereon and responses thereto or requests by the COB or other French regulatory authority for additional information, and (vi) the time at which the COB grants its approval, as the case may be, on the relevant Parent French Filings. (f) The information supplied by Parent for inclusion in the Registration Statement will not, at (i) the time the Registration Statement is declared effective, and (ii) the Effective Time, contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The information supplied by Parent for inclusion in the Company Information Statement will not contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. If, at any time prior to the Company Merger Effective Time, any event or circumstance relating to Parent or any Parent Subsidiary, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement, the Parent French Filings or the Company Information Statement, Parent will promptly inform the Company. All documents that Parent is responsible for filing with the SEC or the COB in connection with the Mergers or the other transactions contemplated by this Agreement will comply as to form and substance in all material aspects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder and with applicable French laws and regulations, respectively. (g) The information supplied by the Company for inclusion in the Registration Statement will not, at (i) the time the Registration Statement is declared effective, and (ii) the Effective Time, contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The information supplied by the Company for inclusion in the Parent Proxy Statement will not, at (x) the time the Parent Proxy Statement (or any amendment thereof or supplement thereto) is first mailed or made available to the stockholders of Parent, and (y) the time of the Parent Stockholders' Meeting, and the information supplied by the Company for inclusion in the Parent French Filings at the time such Parent French Filings are filed with the COB will not, contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. If, at any time prior to the Effective Time, any event or circumstance relating to the Company or any Company Subsidiary, or their respective officers or directors, should be discovered by the Company which should be set forth in an amendment or a supplement to the Registration Statement, the Proxy Statements or the Parent French Filings, the Company will promptly inform Parent. All documents that the Company is -61- responsible for filing with the SEC in connection with the Mergers or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Exchange Act and the rules and regulations thereunder. Section 8.4 Confidentiality. (a) The parties hereto acknowledge that Parent and the Company have previously executed a non-disclosure agreement dated June 17, 2003 (the "Confidentiality Agreement") which Confidentiality Agreement will continue in full force and effect in accordance with its terms. Parent agrees that its obligations with respect to confidentiality thereunder will apply to HoldCo and information concerning HoldCo to the same extent as the Company as though HoldCo were a party thereto. In addition, the parties hereto agree that the terms and conditions of the other transactions contemplated hereby, and information exchanged in connection with the execution hereof and the consummation of the other transactions contemplated hereby will be subject to the Confidentiality Agreement. Merger Sub 1, Merger Sub 2, Merger Sub 3 and HoldCo hereby agree that each will be bound by the confidentiality terms thereof to the same extent as Parent is bound by the terms thereof, as if each of them were a party thereto. (b) Notwithstanding the foregoing, the parties (and each employee, Representative, or other agent of the parties) may disclose to any and all Persons, without limitation of any kind, the Tax treatment and any facts that may be relevant to the Tax structure of the Mergers and the other transactions contemplated hereby; provided, however, that neither party (nor any employee, Representative or other agent thereof) may disclose any information that is not relevant to understanding the Tax treatment and Tax structure of the Mergers and the other transactions contemplated hereby (including the identity of any party and any information that could lead another to determine the identity of any party), or any information to the extent that such disclosure could result in a violation of any federal or state securities law. Section 8.5 Public Disclosure. The initial press release with respect to the execution of this Agreement will be a joint press release acceptable to Parent and the Company. Unless otherwise required by law (including federal, state and foreign securities laws), or, as to Parent, by the rules and regulations of the National Association of Securities Dealers, Inc. or the rules and regulations of the French Stock Exchange Authorities, no statement or other disclosure (whether or not in response to an inquiry) of the subject matter of this Agreement, including the Mergers and the other transactions contemplated hereby, will be made by any party hereto unless approved by Parent and the Company prior to release; provided, that such approval will not be unreasonably withheld or delayed. Section 8.6 Listing of Parent Shares. (a) Prior to the Effective Time, Parent will use all reasonable efforts to cause the Parent ADSs to be issued in the Mergers pursuant to the Capital Increase to be authorized for listing on the Nasdaq National Market (or such other stock exchange or trading system on which Parent ADSs are then primarily trading). -62- (b) Prior to the Effective Time, Parent will use all reasonable efforts to cause the Parent Ordinary Shares to be issued in the Mergers pursuant to the Capital Increase to be authorized for listing on Euronext. Section 8.7 Form S-8. Parent will file a registration statement on Form S-8 (or any successor or other appropriate forms that Parent is eligible to use) under the Securities Act with respect to the Parent Shares subject to the Company Stock Option Plan, to the extent Form S-8 registration is available for such Parent Shares, as soon as practicable but, in any event, within five (5) business days following the Effective Time and will maintain the effectiveness of such registration statement(s) for so long as such options remain outstanding. Section 8.8 Board of Directors. Parent will take all necessary action, subject to applicable law, to cause the number of members of Parent's board of directors to be increased by two (2) as of the Effective Time, and to use reasonable best efforts to cause the vacancies to be filled by (a) David J. Roux (or such other Person as may be designated in writing by HoldCo Stockholder at least forty-five (45) days prior to the filling of such vacancy; provided, that such Person is reasonably acceptable to Parent) and (b) one (1) individual who qualifies as an "independent" director of Parent pursuant to proposed and applicable law and regulations (the "Independent Director"). Parent's board of directors will in good faith propose and recommend for appointment one (1) current "independent" director of the Company to fill the Independent Director vacancy. The Company and its counsel will be given a reasonable opportunity to review and comment on Parent's board of directors resolution contemplated by this Section 7.8. Section 8.9 Affiliates. Schedule 8.9 sets forth those Persons who are "affiliates" of the Company within the meaning of Rule 145 promulgated under the Securities Act (each such Person, an "Affiliate"). The Company will provide Parent such information and documents as Parent will request for purposes of reviewing such list. The Company has delivered, or will use all reasonable efforts to cause to be delivered, to Parent from each of its respective Affiliates, other than the HoldCo Stockholder and Affiliates of the HoldCo Stockholder, an executed Affiliate Agreement in form and substance reasonably satisfactory to the parties. Parent, Merger Sub 1, Merger Sub 2 and Merger Sub 3 will be entitled to take all necessary steps to ensure that any Parent Shares issued to such Affiliates are identified as restricted securities within the meaning of Rule 144 promulgated under the Securities Act and that any resales of such Parent Shares will be made in accordance with an exemption from registration under the Securities Act or pursuant to an effective registration statement. Section 8.10 Access to Information. HoldCo and the Company will, and will cause each Company Subsidiary to, afford Parent and its accountants, counsel and other Representatives reasonable access during normal business hours to its properties, books, records and personnel during the period prior to the Company Merger Effective Time to obtain all information concerning its business, including the status of product development efforts, properties, results of operations and personnel (subject to such reasonable procedures as the parties may agree), as Parent may reasonably request, and, during such period, upon request by Parent, the Company will, and will cause each Company Subsidiary to furnish promptly to Parent a copy of any report, schedule, -63- registration statement and other document filed by it during such period pursuant to the requirements of federal or state securities laws and the Company will reasonably cooperate with Parent with respect to transition of employees following the Closing; provided, however, that the Company may restrict the foregoing access to the extent that any law, treaty, rule or regulation of any Governmental Entity applicable to the Company requires such party to restrict or prohibit access to any such properties or information. Notwithstanding the foregoing, (a) no information retrieved from the Company's financial reporting system will be made available to Persons who are directly involved in pricing or any other competitive activity at Parent or any Parent Subsidiary, (b) Parent shall not use any information obtained from the Company or any Company Subsidiary pursuant to the access contemplated by this Section 8.10 for any purposes other than assessing the financial condition of the Company for purposes of this Agreement, and (c) Parent will not share, provide or sell the information to any third party or use the information in any manner that could reasonably be considered a restraint on competition or result in a violation of any applicable law. In addition, any information obtained from the Company or any Company Subsidiary pursuant to the access contemplated by this Section 8.10 shall be subject to the Confidentiality Agreement. Section 8.11 Notification. (a) By the Company. The Company shall give prompt notice to Parent, Merger Sub 1, Merger Sub 2 and Merger Sub 3 of any representation or warranty made by it contained in this Agreement becoming untrue or inaccurate, or any failure of the Company to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement, in each case, such that the conditions set forth in Section 8.2(a) or 8.2(b) would not be satisfied; provided, however, that the delivery of any notice pursuant to this Section 8.11(a) will not limit or otherwise affect the remedies available hereunder to Parent or the representations, warranties or covenants of the Company or the conditions to the obligations of Parent, Merger Sub 1, Merger Sub 2 and Merger Sub 3. (b) By Parent. Parent, Merger Sub 1, Merger Sub 2 and Merger Sub 3 shall give prompt notice to the Company of any representation or warranty made by it contained in this Agreement becoming untrue or inaccurate, or any failure of Parent to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement, in each case, such that the conditions set forth in Section 8.3(a) or 8.3(b) would not be satisfied; provided, however, that the delivery of any notice pursuant to this Section 8.11(b) will not limit or otherwise affect the remedies available hereunder to the Company or the representations, warranties or covenants of Parent, Merger Sub 1, Merger Sub 2 and Merger Sub 3 or the conditions to the obligations of the Company. Section 8.12 Regulatory Filings; Reasonable Efforts. (a) Regulatory Filings. Each of Parent, Merger Sub 1, Merger Sub 2, Merger Sub 3 and the Company will coordinate and cooperate with one another and will each use all reasonable efforts to comply with, and will each refrain from taking any action that would impede compliance with, all Legal Requirements, and as promptly -64- as practicable after the date hereof, each of Parent, Merger Sub 1, Merger Sub 2, Merger Sub 3 and the Company will make all filings, notices, petitions, statements, registrations, submissions of information, application or submission of other documents required by any Governmental Entity in connection with the Mergers and the other transactions contemplated hereby, including (i) Notification and Report Forms with the United States Federal Trade Commission (the "FTC") and the Antitrust Division of the United States Department of Justice ("DOJ") as required by the HSR Act, (ii) any other filing necessary to obtain any Company Necessary Consent or Parent Necessary Consent (together, the "Necessary Consents"), (iii) filings under any other comparable pre-merger notification forms required by the merger notification or control laws of any applicable jurisdiction, as agreed by the parties hereto, and (iv) any filings required under the Securities Act, the Exchange Act, any applicable state or securities or "blue sky" laws, French company law, regulations of the French Stock Exchange Authorities and the securities laws of any foreign country, or any other Legal Requirement relating to the Mergers. Each of Parent and the Company will cause all documents that it is responsible for filing with any Governmental Entity under this Section 8.12(a) to comply in all material respects with all applicable Legal Requirements. (b) Exchange of Information. Parent, Merger Sub 1, Merger Sub 2, Merger Sub 3 and the Company each will promptly supply the other with any information which may be required in order to effectuate any filings or application pursuant to Section 8.12(a). Except where prohibited by applicable Legal Requirements, and subject to the Confidentiality Agreement, each of Parent and the Company will consult with the other prior to taking a position with respect to any such filing, will permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Entity by or on behalf of any party hereto in connection with any investigations or proceedings related solely to this Agreement or the other transactions contemplated hereby (including under any antitrust or fair trade Legal Requirement), coordinate with the other in preparing and exchanging such information and promptly provide the other (and its counsel) with copies of all filings, presentations or submissions (and a summary of any oral presentations) made by such party with any Governmental Entity related solely to this Agreement or the other transactions contemplated hereby; provided, that with respect to any such filing, presentation or submission, each of Parent and the Company need not supply the other (or its counsel) with copies (or in case of oral presentations, a summary) to the extent that any law, treaty, rule or regulation of any Governmental Entity applicable to such party may reasonably require such party or its Subsidiaries to restrict or prohibit access to any such properties or information. (c) Notification. Each of Parent, Merger Sub 1, Merger Sub 2, Merger Sub 3 and the Company will notify the other promptly upon the receipt of (i) any comments from any officials of any Governmental Entity in connection with any filings made pursuant hereto and (ii) any request by any officials of any Governmental Entity for amendments or supplements to any filings made pursuant to, or information provided to comply in all material respects with, any Legal Requirements. Whenever any event -65- occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 8.12(a), Parent, Merger Sub 1, Merger Sub 2, Merger Sub 3 or the Company, as the case may be, will promptly inform the other of such occurrence and cooperate in filing with the applicable Governmental Entity such amendment or supplement. (d) Reasonable Efforts. Subject to the express provisions of Section 8.12(e) and upon the terms and subject to the conditions set forth herein, each of the parties agrees to use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Mergers and the other transactions contemplated hereby, including using all reasonable efforts to accomplish the following (i) the taking of all reasonable acts necessary to cause the conditions precedent set forth in Article IX to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings (including registrations, declarations and filings with Governmental Entities, if any) and the taking of all reasonable steps as may be necessary to avoid any suit, claim, action, investigation or proceeding by any Governmental Entity, (iii) the obtaining of all necessary consents, approvals or waivers from third parties, including all Necessary Consents (provided, that the parties will discuss in good faith procedures to pursue third party consents with respect to the Mergers) (it being understood that failure to obtain any one or more such consents, in and of itself, shall not constitute a condition to Closing hereunder), (iv) the defending of any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers or the other transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, if, there is a reasonable possibility that the defending of such actions would result in their dismissal, removal, elimination or termination, and (v) the execution or delivery of any additional instruments necessary to consummate the transactions and to fully carry out the purposes of, this Agreement. In connection with and without limiting the foregoing, the Company and the Company's board of directors will, if any takeover statute or similar Legal Requirement is or becomes applicable to the Company Merger, this Agreement or any of the other transactions contemplated hereby, use all reasonable efforts to ensure that the Company Merger and the other transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such Legal Requirement on the Company Merger, this Agreement and the other transactions contemplated hereby. (e) Limitation on Divestiture and Litigation. Notwithstanding anything in this Agreement to the contrary, nothing contained in this Agreement will be deemed to require Parent, any Parent Subsidiary, the Company or any Company Subsidiary, or any of their respective affiliates to (i) except to the extent provided under Section 8.12(d)(iv), litigate or agree to litigate against any Governmental Entity or (ii) take or agree to take any Action of Divestiture which would be reasonably likely to materially adversely impact the benefits expected to be derived by Parent and Parent -66- Subsidiaries in connection with the Company Merger and the other transactions contemplated hereby. For purposes of this Agreement, an "Action of Divestiture" will mean (x) making proposals, executing or carrying out agreements or submitting to Legal Requirements providing for the license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets that are material to Parent, any Parent Subsidiary, the Company or any Company Subsidiary or the holding separate of Company capital stock or imposing or seeking to impose any limitation on the ability of Parent, any Parent Subsidiary, the Company or any Subsidiary, to conduct their respective businesses or own such assets or to acquire, hold or exercise full rights of ownership of the Company's business or (y) otherwise taking any step to avoid or eliminate any impediment which may be asserted under any Legal Requirement governing competition, monopolies or restrictive trade practices. Section 8.13 Anti-Takeover Laws. If any state takeover statute or similar law becomes or is deemed to become applicable to this Agreement, the Mergers or the other transactions contemplated hereby, the Company will take all action necessary to render such statute inapplicable to all of the foregoing. If any French takeover statute or similar law becomes or is deemed to become applicable to this Agreement, the Mergers or the other transactions contemplated hereby, Parent will take all action necessary to render such statute or other similar law inapplicable to all of the foregoing. Section 8.14 Rescission Offer. Prior to Closing, the Company shall use all reasonable efforts to complete a written offer to repurchase securities in accordance with applicable law in order make a rescission offer to optionees and stockholders of the Company that received options to purchase shares of Company Common Stock under the Company's 1999 Stock Option Plan while such persons were residents of the States of California, Maryland or New York (the "Rescission Offer"). In connection with such Rescission Offer, the Company will offer to repurchase with funds from the Company's available cash balances: (i) outstanding shares of Company Common Stock at the exercise price at which such Person acquired the Company Common Stock upon exercise of a Company Stock Option plus applicable statutory interest; (ii) outstanding options to acquire Company Common Stock at twenty percent (20%) of the amount equal to the exercise price of the subject Company Stock Options multiplied by the total number of shares of Company Common Stock then subject to such Company Stock Options plus applicable statutory interest. If applicable, the Company will make filings with the California Department of Corporations, as well as any other state or other agency with whom the Company is so required to file. Section 8.15 Resignations and Appointments. The Company shall use all reasonable efforts to obtain the resignations of all the members of the board of directors (or other similar governing bodies) of any Company Subsidiary which Parent lists in a written notice delivered to the Company, in the event Parent delivers such a notice, and have Persons chosen by Parent appointed as members of the board of directors (or other governing bodies) of such Company Subsidiaries effective as of the Effective Time. -67- Section 8.16 Employee Benefits(a). (a) Following the Effective Time, Parent will use all reasonable efforts to give each Continuing Employee (as defined below) credit for prior service with the Company and any Company Subsidiaries for purposes of (i) eligibility and vesting under any applicable employee benefit plans of Parent in which such Continuing Employee becomes eligible to participate at or following the Effective Time, provided that if the Company maintains a comparable Benefit Plan, service shall be credited solely to the extent that such service was or would have been credited for such purposes under such comparable plan, and (ii) determination of benefits levels under any vacation policy in which such Continuing Employee becomes eligible to participate at or following the Effective Time. Parent shall give credit under those applicable employee benefit plans of Parent that are welfare benefit plans and in which Continuing Employees become eligible to participate at or following the Effective Time, for all co-payments made, amounts credited toward deductibles and out-of-pocket maximums, and time accrued against applicable waiting periods, by Continuing Employees (including their eligible dependents), in respect of the plan year in which the Effective Time occurs but if the Company or any of its Subsidiaries maintains a comparable Benefit Plan, solely to the extent such waiting period requirements and conditions were not applicable to the particular Continuing Employee under such comparable Benefit Plan. For purposes of this Agreement, "Continuing Employees" shall mean those employees of Parent and employees of the Surviving Corporation as of the Effective Time who shall have been employees of the Company immediately prior to the Effective Time. (b) If Parent maintains as of the Effective Date, a tax-qualified defined contribution 401(k) plan that accepts eligible rollover distributions within the meaning of Section 401(a)(31) of the Code, the assets of the Continuing Employees located in the US under the defined contribution 401(k) plan of the Company may be rolled over, to the extent permitted and in the form acceptable, to the 401(k) plan of the Parent. (c) Parent agrees that the Continuing Employees may participate in the employee stock purchase plan sponsored by Parent (the "Parent ESPP"), commencing on the first date of the Offering Period (as defined in the Parent ESPP) coincident or immediately following the Effective Date and subject to the terms and conditions of the Parent ESPP, provided that no such participation is required hereunder to the extent that there are inadequate shares for such purpose under the Parent ESPP. (d) Effective as of the Effective Time, for a period of one year following the Closing Date, or if shorter, until such time as the applicable Continuing Employee ceases to be employed by Parent or the Surviving Corporation, Parent shall or shall cause the Surviving Corporation to provide to Continuing Employees, (i) employee benefits that are substantially similar in the aggregate to those benefits provided to such employees by the Company immediately prior to the date hereof, or (ii) at Parent's election, employee benefits that are substantially similar in the aggregate to those benefits provided by Parent (or its applicable Subsidiary) to similar situated employees of Parent (or its applicable Subsidiary). -68- (e) Prior to the Effective Time, Parent and the Company will together develop retention programs for Continuing Employees who are key employees whom the Parent desires to continue employment. Prior to the Effective Time, Parent and the Company will together develop severance plans for Continuing Employees who cease employment within one year of the Closing Date that are comparable to those of the Parent's standard practices. Notwithstanding the foregoing, nothing in this Agreement shall be interpreted as conferring, or intending to confer, on any Continuing Employee or other Company employee a right to continued employment with the Company, the Surviving Corporation or Parent. Section 8.17 VERITAS Agreement. The Company shall use all reasonable efforts to procure from VERITAS Software Corporation ("VERITAS"), prior to the Closing, a written release of the Company from its obligations under that certain Indemnification Agreement, dated as of March 29, 2000, as amended, by and among VERITAS, Suez Acquisition Company (Cayman) Limited and certain other persons who executed a Joinder Agreement thereto, as contemplated by Section 17 (successors) thereof; provided, however, that notwithstanding the foregoing, or anything to the contrary contained in this Agreement, the Company shall not be required to make payments, expand monies or otherwise agree to any economic arrangements or concessions to satisfy its obligations under this Section 8.17. Section 8.18 Financial Statements and Consents of Accountants. The Company will use all reasonable efforts to cause its management and its independent auditors to facilitate on a timely basis (i) the preparation of financial statements (including pro forma financial statements if required) as required by Parent to comply with applicable SEC and COB regulations, (ii) the reasonable review of any Company audit or review work papers for up to the past three (3) years, including the examination of selected financial statements and data, and (iii) the delivery of such representations from the Company's independent accountants as may be reasonably requested by Parent of its independent auditors in connection with the preparation of the Registration Statement and the Parent French Filings. Parent and the Company will each use all reasonable efforts to cause to be delivered to each other consents and certificates from their respective independent auditors, in form reasonably satisfactory to the recipient and customary in scope and substance for consents delivered by independent public accountants in connection with the Registration Statement and the Parent French Filings. Section 8.19 Subsequent Financial Statements. The Company will, if practicable, consult with Parent prior to making publicly available its financial results for any period after the date hereof and prior to filing any Company SEC Filings after the date hereof, it being understood that Parent will have no liability by reason of such consultation. Section 8.20 Conveyance and Other Taxes. Parent, Merger Sub 1, Merger Sub 2, Merger Sub 3 and the Company will cooperate in the preparation, execution and filing of all returns, questionnaires, applications or other documents regarding any real property transfer or gains, sales, use, transfer, value added, stock -69- transfer or stamp Taxes, any transfer, recording, registration or other fees or any similar Taxes which become payable in connection with the transactions contemplated by this Agreement that are required or permitted to be filed on or before the Company Merger Effective Time. All payments made pursuant to this Agreement shall be subject to any applicable withholding taxes. Section 8.21 Company Stock Options. Prior to the Company Effective Time, HoldCo will take such action as may be necessary to (a) amend and restate its certificate of incorporation to authorize the issuance of the HoldCo Preferred Stock, (b) cause Option Sub, a wholly-owned subsidiary of HoldCo, to be formed as a limited liability company, (c) issue and contribute to the capital of Option Sub such number of shares of HoldCo Preferred Stock as will, upon the consummation of the HoldCo Merger and in accordance with Section 2.1(b) hereof, result in Option Sub owning at least the maximum number of Parent Shares that may be issuable upon exercise of all outstanding Company Stock Options in accordance with the terms hereof, and (d) to the extent necessary or advisable, take such reasonable action such that, upon exercise of any Company Stock Option after the Effective Time, the Parent Shares to be issued to the holder of such Company Stock Option will be delivered by Option Sub. Section 8.22 Section 16 Matters. Prior to the Effective Time, Parent and the Company shall use all reasonable efforts to approve in advance in accordance with the procedures set forth in Rule 16b-3 promulgated under the Exchange Act any dispositions of Company Common Stock (including derivative securities with respect to Company Common Stock) to or acquisitions of Parent Shares (including derivative securities with respect to Parent Shares) resulting from the transactions contemplated by Article II of this Agreement by each officer or director of the Company or Parent who is subject to Section 16 of the Exchange Act (or who will become subject to Section 16 of the Exchange Act as a result of the transactions contemplated hereby) with respect to equity securities of the Company or Parent. Section 8.23 Transaction Expenses. The fees and expenses paid or payable by the Company in connection with the Company's previously proposed initial public offering, this Agreement, the Mergers and the other transactions contemplated hereby (including fees and expenses of the financial advisors, legal counsel and public accountants listed on Schedule 8.23) will be reasonable and customary for such transactions and, except as listed on Schedule 8.23, shall not include any fees payable to the HoldCo Stockholder or any of its stockholders, partners or Affiliates. Section 8.24 Indemnification. (a) Indemnity. From and after the Effective Time, Parent will, and will cause the Surviving Corporation to, fulfill and honor in all respects the obligations of the Company pursuant to any indemnification agreements between the Company and its directors and officers in effect immediately prior to the Effective Time (the "Indemnified Parties"), subject to applicable law. The certificate of incorporation and bylaws of the Surviving Corporation will contain provisions with respect to exculpation and indemnification that are at least as favorable to the Indemnified Parties as those contained in the certificate of incorporation and bylaws of the Company as in -70- effect on the date hereof, which provisions will not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, immediately prior to the Effective Time, were directors, officers, employees or agents of the Company, unless such modification is required by law. (b) Insurance. For a period of six (6) years after the Effective Time, Parent will cause the Surviving Corporation to use all reasonable efforts to cause to be maintained in effect, if available, directors' and officers' liability insurance maintained by the Company covering those persons who are covered by the Company's directors' and officers' liability insurance policy as of the date hereof on terms comparable to those applicable to the current directors and officers of the Company for a period of six (6) years; provided, however, that in no event will the Surviving Corporation be required to expend in excess of one hundred fifty percent (150%) of the annual premium currently paid by the Company for such coverage, and to the extent annual premium would exceed one hundred fifty percent (150%) of the annual premium currently paid by the Company for such coverage, the Surviving Corporation shall use all reasonable efforts to cause to be maintained the maximum amount of coverage as is available for such one hundred fifty percent (150%) of such annual premium. (c) Third-Party Beneficiaries. This Section 8.25 is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties and their heirs and personal representatives and shall be binding on the Company and the Surviving Corporation and its successors and assigns. In the event Parent or the Surviving Corporation or its successor or assign (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each case, proper provision shall be made so that the successor and assign of Parent or the Surviving Corporation, as the case may be, honor the obligations set forth with respect to Parent or the Surviving Corporation, as the case may be, in this Section 8.25. Section 8.25 Treatment as Reorganization. Each of the parties hereto will use all reasonable efforts to: (i) cause the Company Merger together with the Second Company Merger, and the HoldCo Merger together with the Second HoldCo Merger, each to constitute a reorganization under Section 368(a) of the Code; (ii) not take any action that would prevent or impede the Company Merger together with the Second Company Merger, and the HoldCo Merger together with the Second HoldCo Merger, from each qualifying as a reorganization within the meaning of Section 368 of the Code; and (iii) not take any action that would cause Parent to not be considered a corporation pursuant to Section 367(a) of the Code for purposes of each of the Company Merger together with the Second Company Merger, and the HoldCo Merger together with the Second HoldCo Merger. Parent shall deliver officer's certificates containing customary representations as requested by counsel for purposes of rendering the opinions described in Section 9.2 and 9.3 with respect to the Company Merger and the Second Company Merger (the "Company Merger Parent Tax Certificate") and with respect to the HoldCo Merger and the Second HoldCo Merger (the "HoldCo Merger Parent Tax Certificate"), -71- each executed as of the Closing Date. The Company shall deliver an officer's certificate containing customary representations as requested by counsel for purposes of rendering the opinions described in Sections 9.2 and 9.3 with respect to the Company Merger and the Second Company Merger (the "Company Tax Certificate"), executed as of the Closing Date. HoldCo shall deliver an officer's certificate containing customary representations as requested by counsel for purposes of rendering the opinions described in Sections 9.2 and 9.3 with respect to the HoldCo Merger and the Second HoldCo Merger (the "HoldCo Tax Certificate") executed as of the Closing Date. The parties hereto shall timely satisfy or cause to be satisfied all applicable tax reporting and filing requirements with respect to the transactions contemplated hereby, including the reporting requirements of Treasury Regulation Section 1.367(a)-3(c)(6). Section 8.26 Merger Sub Compliance. Parent shall cause each of Merger Sub 1, Merger Sub 2 and Merger Sub 3 to comply with all of its respective obligations under or relating to this Agreement. Section 8.27 FIRPTA Certificate. The Company and HoldCo shall each deliver to Parent certificates or other documents reasonably satisfactory to Parent which comply with the provisions and requirements of Section 897 of the Code and the Treasury regulations promulgated thereunder establishing that the Company and HoldCo are not a "U.S. real property interests" for purposes of Section 897 of the Code. Section 8.28 Withdrawal of Company Form S-1. The Company shall take such action as is required to formally withdraw the Company Form S-1, such withdrawal to be effective at or prior to the Effective Time. The Company shall not, prior to the Effective Time, amend the Company Form S-1. Section 8.29 280G Approval. The Company will use its reasonable best efforts to obtain the approval and adoption by HoldCo prior to the Closing of any payments or benefits that may not be deductible by reason of Section 280G of the Code, in a manner which meets the approval of Parent which approval shall not be unreasonably withheld, and in a manner which would satisfy all applicable requirements of Section 280G(b)(5)(B) of the Code and the proposed Treasury Regulations thereunder. Section 8.30 HoldCo Domestication. HoldCo shall take all such action as is necessary to effect a domestication into a Delaware corporation or a limited liability company as promptly as practicable following the date hereof. Section 8.31 Transaction Structure. The parties will consider in good faith such alternative transaction structures as may be mutually desirable in order to satisfy the conditions set forth in Sections 9.2(f) and 9.3(f) (to the extent not otherwise satisfied) to effectuate the transactions contemplated hereby to ensure that the transactions hereby comport with applicable law and otherwise carry out the intent of this Agreement in a manner that is not adverse to any party. -72- ARTICLE IX CONDITIONS Section 9.1 Conditions to Each Party's Obligation to Effect the Mergers. The obligation of each party to effect the Mergers will be subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditions, any and all of which may be waived in whole or in part by Parent, Merger Sub 1, Merger Sub 2, Merger Sub 3, HoldCo and the Company to the extent permitted by applicable law: (a) Parent Stockholder Approval. The Parent Proposals will have been approved and adopted by the requisite affirmative vote of Parent's stockholders in accordance with applicable law and Parent's organizational documents and such approval will not have been rescinded, revoked or otherwise withdrawn in any respect. (b) Company Stockholder Approval. The Company Proposals will have been approved and adopted by the requisite vote of the Company's stockholders in accordance with applicable law and the Company's organizational documents and such approval will have been obtained and will not have been rescinded, revoked or otherwise withdrawn in any respect. (c) No Order. No Governmental Entity of competent jurisdiction will have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which (i) is in effect and (ii) has the effect of making the Mergers illegal or otherwise prohibiting consummation of the Mergers. (d) Registration of Parent Shares. The Registration Statement shall have been declared effective by the SEC under the Securities Act and no stop order suspending the effectiveness of the Registration Statement shall have been issued by the SEC and no proceeding for that purpose shall have been initiated by the SEC such that all Parent Shares to be issued in the Mergers pursuant to the Capital Increase are either registered pursuant to the Registration Statement or subject to a valid exemption from registration. (e) Parent French Filings. The COB will have granted approval of the Parent French Filings, including the Document E, which require such approval. (f) Antitrust Approval. All waiting periods (and any extension thereof) under the HSR Act relating to the Mergers and the other transactions contemplated hereby will have expired or terminated early. The material foreign antitrust approvals set forth on Schedule 9.1(f) hereto will have been obtained, if so required by applicable law. (g) Listing. The Parent ADSs to be issued in the Mergers pursuant to the Capital Increase and the other transactions contemplated hereby will have -73- been authorized for listing on Nasdaq, and Parent Ordinary Shares to be issued in the Mergers pursuant to the Capital Increase will have been authorized for listing on Euronext. Section 9.2 Additional Conditions to Obligations of Parent to Effect the Mergers. The obligation of each of Parent, Merger Sub 1, Merger Sub 2 and Merger Sub 3 to effect the Mergers will be subject to the satisfaction or waiver by Parent on or prior to the Closing Date of each of the following conditions, any and all of which may be waived in whole or in part by Parent, Merger Sub 1, Merger Sub 2 or Merger Sub 3, as the case may be, to the extent permitted by applicable law: (a) Representations and Warranties. The representations and warranties of HoldCo and the Company contained in this Agreement will have been true and correct in all respects on the date hereof and will be true and correct in all respects as of the Closing Date with the same force and effect as if made on the Closing Date (except that those representations and warranties which address matters only as of a particular date will have been true and correct only as of such date), with such exceptions as do not, individually or in the aggregate, have a Company Material Adverse Effect as of the Closing Date; provided, however, that for purposes of determining the accuracy of such representations and warranties, any update of or modification to the Company Disclosure Schedule made or purported to have been made after the execution of this Agreement will be disregarded. (b) Agreements and Covenants. HoldCo and the Company will have performed or complied in all material respects with all agreements and covenants to be performed or complied with by them at or prior to the Closing Date. (c) Company Material Adverse Effect. No Company Material Adverse Effect will have occurred since the date hereof and be continuing. (d) Company Officer's Certificate. The Company will have delivered to Parent a certificate of its President or any Vice President dated as of the Closing Date to the effect that each of the conditions specified in Sections 9.2(a), (b) and (c), with respect to the Company, are satisfied. (e) HoldCo Officer's Certificate. HoldCo will have delivered to Parent a certificate of its President or any Vice President dated as of the Closing Date to the effect that each of the conditions specified in Sections 9.2(a) and (b), with respect to HoldCo, are satisfied. (f) Tax Opinions. (i) Parent will have received a written opinion from Skadden, Arps, Slate, Meagher & Flom LLP, dated as of the date of the Second HoldCo Merger Effective Time, in form and substance reasonably satisfactory to Parent, to the effect that, for U.S. federal income tax purposes, (i) the HoldCo Merger when taken together with the Second HoldCo Merger will constitute a "reorganization" within the meaning of -74- Section 368(a) of the Code and (ii) no gain or loss will be recognized by a stockholder of HoldCo (other than a stockholder of HoldCo who owns, directly or indirectly and taking into account certain attribution rules including the rules of Treasury Regulation Section 1.367(a)-3(c)(4)(i), five percent (5%) or more of the total voting power or total value of Parent's outstanding capital stock immediately after the Second HoldCo Merger) on the conversion of its shares of HoldCo Common Stock into Parent Shares except to the extent of cash received, including cash received in lieu of a fractional share of Parent Shares, provided that HoldCo (or its successor) complies with the reporting requirements contained in Treasury Regulation Section 1.367(a)-3(c)(6), and such opinion shall not have been withdrawn; provided, however, that if Skadden, Arps, Slate, Meagher & Flom LLP shall not render such opinion, this condition shall nonetheless be deemed satisfied if another law firm with a nationally recognized tax practice, as reasonably satisfactory to Parent (other than the law firm providing the opinion pursuant to Section 9.3(f) of the Agreement), shall render such opinion to Parent. In rendering such opinion, Skadden, Arps, Slate, Meagher & Flom LLP or such other law firm, as the case may be, may require and be entitled to rely on representations, covenants and rulings of Parent and HoldCo, including the HoldCo Merger Parent Tax Certificate and the HoldCo Tax Certificate. (ii) Parent will have received a written opinion from Skadden, Arps, Slate, Meagher & Flom LLP, dated as of the date of the Second Company Merger Effective Time, in form and substance reasonably satisfactory to Parent, to the effect that, for U.S. federal income tax purposes (i) the Company Merger when taken together with the Second Company Merger will constitute a "reorganization" within the meaning of Section 368(a) of the Code and (ii) no gain or loss will be recognized by a stockholder of the Company (other than a stockholder of the Company who owns, directly or indirectly and taking into account certain attribution rules including the rules of Treasury Regulation Section 1.367(a)- 3(c)(4)(i), five percent (5%) or more of the total voting power or total value of Parent's outstanding capital stock immediately after the Second Company Merger) on the conversion of its shares of Company Common Stock into Parent Shares except to the extent of cash received, including cash received in lieu of a fractional share of Parent Shares, provided that the Company (or its successor) complies with the reporting requirements contained in Treasury Regulation Section 1.367(a)-3(c)(6), and such opinion shall not have been withdrawn; provided, however, that if Skadden, Arps, Slate, Meagher & Flom LLP shall not render such opinion, this condition shall nonetheless be deemed satisfied if another law firm with a nationally recognized tax practice, as reasonably satisfactory to Parent (other than the law firm providing the opinion pursuant to Section 9.3(f) of the Agreement), shall render such opinion to Parent. In rendering such opinion, Skadden, Arps, Slate, Meagher & Flom LLP or such other law firm, as the case may be, may require and be -75- entitled to rely on representations, covenants and rulings of Parent and the Company, including the Company Merger Parent Tax Certificate and the Company Tax Certificate. (g) Governmental Restriction. There shall not be any pending or overtly threatened suit, action or proceeding asserted by any Governmental Entity (i) challenging or seeking to restrain or prohibit the consummation of the Mergers or any of the other transactions contemplated hereby the effect of which restraint or prohibition if obtained would cause the condition set forth in Section 9.1(c) not to be satisfied, or (ii) seeking to require Parent, any Parent Subsidiary, the Company or any Company Subsidiary to effect any Action of Divestiture which would have the effect set forth in clause (ii) of the first sentence of Section 8.12(e). Section 9.3 Additional Conditions to Obligation of HoldCo and the Company to Effect the Mergers. The obligation of each of the Company and HoldCo to effect the Mergers will be subject to the satisfaction or waiver by the Company on or prior to the Closing Date of each of the following conditions, any and all of which may be waived in whole or in part by the Company to the extent permitted by applicable law. (a) Representations and Warranties. The representations and warranties of Parent, Merger Sub 1, Merger Sub 2 and Merger Sub 3 contained in this Agreement will have been true and correct in all respects on the date hereof and will be true and correct in all respects as of the Closing Date with the same force and effect as if made on the Closing Date (except that those representations and warranties which address matters only as of a particular date will have been true and correct only as of such date), with such exceptions as do not, individually or in the aggregate, have a Parent Material Adverse Effect as of the Closing Date; provided, however, that for purposes of determining the accuracy of such representations and warranties, any update of or modification to the Parent Disclosure Schedule made or purported to have been made after the execution of this Agreement will be disregarded. (b) Agreements and Covenants. Parent, Merger Sub 1, Merger Sub 2 and Merger Sub 3 will have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them at or prior to the Closing Date. (c) Parent Material Adverse Effect. No Parent Material Adverse Effect will have occurred since the date hereof and be continuing. (d) Parent Officer's Certificate. Parent will have delivered to the Company a certificate of its president or chief executive officer dated as of the Closing Date to the effect that each of the conditions specified in Sections 9.3(a), (b) and (c), with respect to Parent, are satisfied. (e) Merger Subs Officer's Certificate. Each of Merger Sub 1, Merger Sub 2 and Merger Sub 3 will have delivered to the Company a certificate of its president or chief executive officer dated as of the Closing Date to the effect that each of -76- the conditions specified in Sections 9.3(a) and (b), with respect to Merger Sub 1, Merger Sub 2 and Merger Sub 3, respectively, are satisfied. (f) Tax Opinions. (i) HoldCo will have received a written opinion from Wilson Sonsini Goodrich & Rosati, a Professional Corporation, dated as of the date of the Second HoldCo Merger Effective Time, in form and substance reasonably satisfactory to HoldCo, to the effect that, for U.S. federal income tax purposes, (i) the HoldCo Merger when taken together with the Second HoldCo Merger will constitute a "reorganization" within the meaning of Section 368(a) of the Code and (ii) no gain or loss will be recognized by a stockholder of HoldCo (other than a stockholder of HoldCo who owns, directly or indirectly and taking into account certain attribution rules, five percent (5%) or more of the total voting power or total value of Parent's outstanding capital stock immediately after the Second HoldCo Merger) on the conversion of its shares of HoldCo Common Stock into Parent Shares except to the extent of cash received, including cash received in lieu of a fractional share of Parent Shares, provided that HoldCo (or its successor) complies with the reporting requirements contained in Treasury Regulation Section 1.367(a)-3(c)(6), and such opinion shall not have been withdrawn; provided, however, that if Wilson Sonsini Goodrich & Rosati shall not render such opinion, this condition shall nonetheless be deemed satisfied if another law firm with a nationally recognized tax practice, as reasonably satisfactory to HoldCo (other than the law firm providing the opinion pursuant to Section 9.2(f) of the Agreement), shall render such opinion to HoldCo. In rendering such opinion, Wilson Sonsini Goodrich & Rosati or such other law firm, as the case may be, may require and be entitled to rely on representations, covenants and rulings of Parent and HoldCo, including the HoldCo Merger Parent Tax Certificate and the HoldCo Tax Certificate. (ii) The Company will have received a written opinion from Wilson Sonsini Goodrich & Rosati, a Professional Corporation, dated as of the date of the Second Company Merger Effective Time, in form and substance reasonably satisfactory to the Company, to the effect that, for U.S. federal income tax purposes (i) the Company Merger when taken together with the Second Company Merger will constitute a "reorganization" within the meaning of Section 368(a) of the Code and (ii) no gain or loss will be recognized by a stockholder of the Company (other than a stockholder of the Company who owns, directly or indirectly and taking into account certain attribution rules including the rules of Treasury Regulation Section 1.367(a)-(c)(4)(i), five percent (5%) or more of the total voting power or total value of Parent's outstanding capital stock immediately after the Second Company Merger) on the conversion of its shares of Company Common Stock into Parent Shares -77- except to the extent of cash received, including cash received in lieu of a fractional share of Parent Shares, provided that the Company (or its successor) complies with the reporting requirements contained in Treasury Regulation Section 1.367(a)-3(c)(6), and such opinion shall not have been withdrawn; provided, however, that if Wilson Sonsini Goodrich & Rosati shall not render such opinion, this condition shall nonetheless be deemed satisfied if another law firm with a nationally recognized tax practice, as reasonably satisfactory to the Company (other than the law firm providing the opinion pursuant to Section 9.2(f) of the Agreement), shall render such opinion to the Company. In rendering such opinion, Wilson Sonsini Goodrich & Rosati or such other law firm, as the case may be, may require and be entitled to rely on representations, covenants and rulings of Parent and the Company, including the Company Merger Parent Tax Certificate and the Company Tax Certificate. Section 9.4 Condition to the Second HoldCo Merger. It shall be a condition to the respective obligations of each party to this Agreement to effect the Second HoldCo Merger that the HoldCo Merger shall have been consummated. Section 9.5 Condition to the Company Merger. It shall be a condition to the respective obligations of each party to this Agreement to effect the Company Merger that the HoldCo Merger and the Second HoldCo Merger shall have been consummated. Section 9.6 Condition to the Second Company Merger. It shall be a condition to the respective obligations of each party to this Agreement to effect the Second Company Merger that the HoldCo Merger, the Second HoldCo Merger and the Company Merger shall have been consummated. ARTICLE X TERMINATION Section 10.1 Termination. This Agreement may be terminated at any time prior to the Effective Time, by action taken or authorized by the board of directors of the terminating party or parties, and except as provided below, whether before or after the requisite approval of the stockholders of HoldCo, the Company or Parent: (a) by mutual written consent duly authorized by the boards of directors of Parent, HoldCo and the Company; (b) by either Parent, HoldCo or the Company, if the Company Effective Time has not occurred by January 31, 2004 which date may be extended by either party to March 31, 2004, if the Mergers shall not have been consummated as the result of a failure to satisfy the conditions set forth in Section 9.1(c) or Section 9.1(f)) (as appropriate, the "End Date"); provided, however, that the right to terminate this Agreement pursuant to this clause (b) and the right to extend the End Date will not be available to any party whose failure to fulfill any obligation under this Agreement has -78- been the principal cause of the failure of the Mergers to be consummated by such date and such failure constitutes a material breach of this Agreement; (c) by either the Company, HoldCo or Parent, if the required approval of the stockholders of Parent contemplated by this Agreement has not been obtained by reason of the failure to obtain the required vote at a meeting of Parent stockholders duly convened therefor or at any adjournment thereof; provided, however, that the right to terminate this Agreement under this Section 9.1(c) will not be available to Parent where the failure to obtain Parent stockholder approval has been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement; (d) by Parent, if the action by written consent of the HoldCo representing the required approval of the stockholders of the Company contemplated by this Agreement has been revoked, or if a court of competent jurisdiction has issued an order, decree or ruling, in each case that such action by written consent of the HoldCo is invalid and such order, decree or ruling has become final and non-appealable, or if either the Company or the HoldCo challenges the validity of, or attempts to revoke or repudiate, the written consent of the HoldCo or publicly discloses any intention to do any of the foregoing; (e) by either the Company, HoldCo or Parent, if a court of competent jurisdiction or other Governmental Entity will have issued an order, decree or ruling or taken any other action, in each case permanently restraining, enjoining or otherwise prohibiting the Mergers or the other transactions contemplated hereby and such order, decree, ruling or other action has become final and non-appealable; (f) by either the Company or HoldCo, upon a breach of any representation, warranty, covenant or agreement on the part of Parent set forth in this Agreement, or if any representation or warranty of Parent has become untrue, in either case such that the conditions set forth in Section 9.3(a) or (b) would not be satisfied as of the time of such breach or as of the time such representation or warranty will have become untrue; provided, that if such inaccuracy in Parent's representations and warranties or breach by Parent is curable by Parent prior to the End Date through the exercise of all reasonable efforts, then the Company may not terminate this Agreement under this Section 10.1(f) prior to thirty (30) days following the receipt of written notice from the Company to Parent of such breach; (it being understood that the Company may not terminate this Agreement pursuant to this Section 10.1(f) if it will have materially breached this Agreement or if such breach by Parent is cured so that such conditions would then be satisfied); (g) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company has become untrue, in either case such that the conditions set forth in Section 9.2(a) or (b) would not be satisfied as of the time of such breach or as of the time such representation or warranty will have become untrue; provided, that if such inaccuracy in the Company's representations and warranties or breach by the Company is curable by the Company prior to the End Date through the -79- exercise of all reasonable efforts, then Parent may not terminate this Agreement under this Section 10.1(g) prior to thirty (30) days following the receipt of written notice from Parent to the Company of such breach; (it being understood that Parent may not terminate this Agreement pursuant to this Section 10.1(g) if it will have materially breached this Agreement or if such breach by the Company is cured so that such conditions would then be satisfied); (h) by Parent, if a Company Material Adverse Effect has occurred since the date hereof and is continuing; (i) by the Company, if a Parent Material Adverse Effect has occurred since the date hereof and is continuing; (j) by Parent, at any time prior to the adoption and approval of the Company Proposals by the required vote of the stockholders of the Company, if a Company Triggering Event shall have occurred; (k) by the Company, at any time prior to the adoption and approval of the Parent Proposals by the required vote of the stockholders of Parent, if a Parent Triggering Event shall have occurred; or (l) by the Company, if Parent's board of directors recommends or Parent consummates a merger, consolidation or similar transaction with a third party, in which Parent Shares are or would be converted into the right to receive non-cash consideration which the Company's board of directors determines, in good faith based on the advice of an independent financial advisor and taking into account market value, liquidity and exchange listing, would be less valuable to the Company's stockholders than the Parent Shares that would otherwise be issued to the Company's stockholders in the Mergers and the other transactions contemplated hereby in absence of such other transaction. Section 10.2 Notice of Termination; Effect of Termination. Any termination of this Agreement under Section 10.1 above will be effective immediately upon the delivery of a valid written notice of the terminating party to the other party hereto. In the event of the termination of this Agreement as provided in Section 10.1, this Agreement will be of no further force or effect, except (i) as set forth in Section 8.4 this Section 10.2 and Section 10.3 and Article XII, each of which will survive the termination of this Agreement and (ii) nothing herein will relieve any party from liability for any material breach of this Agreement. No termination of this Agreement will affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations will survive termination of this Agreement in accordance with their terms. Section 10.3 Fees and Expenses. (a) General. All fees and expenses incurred in connection with this Agreement, the Mergers and the other transactions contemplated hereby, including fees and expenses of financial advisors, financial sponsors, legal counsel and other advisors, will be paid by the party incurring such expenses whether or not the Mergers -80- are consummated; provided, however, that Parent and the Company will share equally the filing fee for the Notification and Report Forms filed with the FTC and DOJ under the HSR Act and pre-merger notification and reports forms under similar applicable laws of other jurisdictions. (b) Payments. (i) Payment by the Company. The Company will promptly pay to Parent, but in no event later than two (2) business days after the date of such termination, a fee equal to twenty-one million dollars ($21,000,000) in immediately available funds (the "Termination Fee") in the event that this Agreement is terminated by Parent pursuant to Section 10.1(d) or 10.1(j). (ii) Payment by Parent. Parent will promptly pay to the Company, but in no event later than two (2) business days after the date of such termination, the Termination Fee in immediately available funds in the event that (A) this Agreement is terminated by the Company pursuant to Section 10.1(k) or (B) this Agreement is terminated by either the Company or Parent pursuant to Section 10.1(c); provided, that such payment will be made in the case of termination pursuant to Section 10.1(c) if but only if (1) following the date hereof, and prior to such meeting of the Parent's stockholders referred to in Section 10.1(c), there shall have been publicly disclosed an offer or proposal with respect to an Acquisition by a third party and such third party publicly discloses its lack of support for the Mergers and (2) within twelve (12) months following the termination of this Agreement, Parent executes an agreement with respect to an Acquisition and an Acquisition is consummated within twenty-four (24) months following termination of this Agreement; provided, further, that, in the case of this clause (B) above, the Termination Fee will be payable only upon the consummation of an Acquisition, in which case, such payment will be made promptly, but in no event later than two (2) business days after the consummation of such Acquisition. Section 10.4 Amendment. Subject to applicable law, this Agreement may be amended by the parties hereto, by action taken or authorized by their respective boards of directors, at any time before or after approval of the Parent Proposals by Parent's stockholders and approval of the Company Proposals by Company's stockholders, provided that after approval of the Parent Proposals by Parent's stockholders, no amendment will be made which by law or the rules of the Nasdaq National Market requires further approval by such stockholders without such further stockholder approval. This Agreement may not be amended except by execution of an instrument in writing signed on behalf of each of Parent, Merger Sub 1, Merger Sub 2, Merger Sub 3 and the Company. Section 10.5 Extension; Waiver. At any time prior to the Effective Time any party hereto, by action taken or authorized by their respective board of directors, -81- may, to the extent legally allowed (i) extend the time for the performance of any of the obligations or other acts of the other parties hereto, (ii) waive any inaccuracies in the representations and warranties made to such party contained herein or in any document delivered pursuant hereto, and (iii) waive compliance with any of the agreements or conditions for the benefit of such party contained herein. Any agreement on the part of a party hereto to any such extension or waiver will be valid only if set forth in an instrument in writing signed on behalf of such party. Delay in exercising any right under this Agreement will not constitute a waiver of such right. ARTICLE XI DEFINITIONS AND INTERPRETATION Section 11.1 Definitions. (a) "Acquisition," with respect to Parent, shall mean any of the following transactions: (i) a merger, consolidation, business combination, or similar transaction involving Parent pursuant to which the stockholders of Parent immediately preceding such transaction hold less than fifty-one percent (51%) of the aggregate equity interests in the surviving or resulting entity of such transaction or any direct or indirect parent thereof; (ii) a sale or other disposition by Parent of assets representing in excess of fifty percent (50%) of the aggregate fair market value of Parent's business immediately prior to such sale; or (iii) the acquisition by any Person or group (including by way of a tender offer or an exchange offer or issuance by Parent or such person or group), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of Parent. (b) "Audit" means any audit, assessment, or other examination relating to Taxes by any Tax Authority or any judicial or administrative proceedings relating to Taxes. (c) "Benefit Plans" means any employment or consulting agreement, collective bargaining agreement or any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, stock appreciation right or other stock-based incentive, retirement, vacation, severance, change in control or termination pay, disability, death benefit, hospitalization, medical or other insurance or any other plan, program, agreement, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer, consultant or director of the Company. (d) "Commonly Controlled Entity" means any Company Subsidiary or any Person or entity that, together with the Company or any Company Subsidiary, is treated as a single employer under Section 414(b), (c), (m) or (o) of the Code or 4001(b) of ERISA. (e) "Company Intellectual Property Rights" means any Intellectual Property Rights owned by the Company or any Company Subsidiary. -82- (f) "Company Material Adverse Effect" means any change, event, violation, inaccuracy, circumstance or effect (any such item, an "Effect"), individually or when taken together with all other Effects that have occurred during the applicable measurement period prior to the date of determination of the occurrence of the Company Material Adverse Effect, that is reasonably likely to be materially adverse to the business, assets (including intangible assets), capitalization, financial condition or results of operations of the Company taken as a whole with the Company Subsidiaries; provided, however, in no event will any of the following, alone or in combination, be deemed to constitute nor will any of the following be taken into account in determining whether there has been or will be, a Company Material Adverse Effect: (A) any Effect to the extent resulting from compliance with the terms and conditions of this Agreement; (B) any Effect to the extent resulting from the announcement or pendency of the Mergers; (C) any Effect to the extent resulting from changes affecting the industry in which the Company operates generally which changes do not have a disproportionate effect on the Company; (D) any Effect to the extent resulting from changes affecting general worldwide economic or capital market conditions which changes do not have a disproportionate effect on the Company; or (E) any stockholder litigation arising from allegations of a breach of fiduciary duty relating to this Agreement. (g) "Computer Software" means all computer programs, databases, compilations, data collections (in each case, whether in human-readable, machine readable, source code or object code form) and documentation related to the foregoing. (h) "Company Triggering Event" shall be deemed to have occurred if: (i) the Company's board of directors or any committee thereof shall for any reason have withdrawn or shall have amended or modified in a manner adverse to Parent its recommendation in favor of the adoption and approval of the Company Proposals; (ii) the board of directors of the Company fails to reaffirm (publicly, if so requested) its recommendation in favor of the adoption and approval of the Company Proposals within ten (10) business days after the other party hereto requests in writing that such recommendation be reaffirmed; or (iii) the board of directors of the Company or any committee thereof shall have approved or recommended any Company Acquisition Proposal. (i) "Effective Time" means the last to occur of each of the HoldCo Merger Effective Time, Second HoldCo Merger Effective Time, Company Merger Effective Time and the Second Company Merger Effective Time. (j) "Environmental Claim" means any claim, action, investigation (excluding any routine inspections) or notice by any Person or entity alleging potential liability for investigatory, cleanup or governmental response costs, or natural resources or property damages, or Personal injuries, attorneys' fees or penalties relating to (i) the presence, or release into the environment, of any Materials of Environmental Concern at any location owned or operated by the Company or any Company Subsidiary, now or in the past, or (ii) any violation, or alleged violation, of any Environmental Law. -83- (k) "Environmental Laws" means all federal, state, local and foreign laws and regulations relating to pollution or protection or preservation of human health or the environment, including laws and regulations relating to Materials of Environmental Concern, or otherwise relating to the generation, storage, containment (whether above ground or underground), disposal, transport or handling of Materials of Environmental Concern, or the preservation of the environment or mitigation of adverse effects thereon. (l) "ERISA" means the Employee Retirement Income Security Act of 1974. (m) "Euronext" means Euronext Paris SA. (n) "Excess Parachute Payment" means any amount that could be received (whether in cash or property or the vesting of property) by any employee, consultant, officer or director of the Company or any Company Subsidiary under any employment, consulting, severance or termination agreement, other compensation arrangement or other Benefit Plan currently in effect (as such term is defined in Section 280G(b)(1) of the Code). (o) "Governmental Entity" means any court, arbitral tribunal, administrative agency or commission or other governmental or other regulatory authority or agency, foreign or domestic. For the avoidance of doubt, Governmental Entity includes the COB. (p) "Indebtedness" means, with respect to any Person, without duplication, (i) all obligations of such Person for borrowed money, or with respect to deposits or advances of any kind to such Person, (ii) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (iii) all obligations of such Person upon which interest charges are customarily paid, (iv) all obligations of such Person under conditional sale or other title retention agreements relating to property purchased by such Person, (v) all obligations of such Person issued or assumed as the deferred purchase price of property or services (excluding obligations of such Person to creditors for raw materials, inventory, services and supplies incurred in the ordinary course of such Person's business), (vi) all capitalized lease obligations of such Person, (vii) all obligations of others secured by any Encumbrance on property or assets owned or acquired by such Person, whether or not the obligations secured thereby have been assumed, (viii) all obligations of such Person under interest rate or currency swap transactions (valued at the termination value thereof), (ix) all letters of credit issued for the account of such Person (excluding letters of credit issued for the benefit of suppliers to support accounts payable to suppliers incurred in the ordinary course of business), (x) all obligations of such Person to purchase securities (or other property) which arises out of or in connection with the sale of the same or substantially similar securities or property, and (xi) all guarantees and arrangements having the economic effect of a guarantee of such Person of any indebtedness of any other Person. (q) "Intellectual Property Rights" means any or all rights in, arising out of or associated with any of the following (i) all United States, international -84- and foreign patents and patent applications (including all reissues, reexaminations, divisionals, renewals, extensions, provisionals, continuations and continuations-in-part) and all equivalents thereof (collectively, "Patents"), (ii) all confidential technical and business information (including technology, inventions (whether patentable or not), know-how, computer software, customer lists, product and marketing plans, and all documentation relating to any of the foregoing (collectively, "Trade Secrets")), (iii) all United States and foreign copyrights, copyright registrations and applications therefor (collectively, "Copyrights"), (iv) all United States and foreign trademarks and service marks (whether or not registered) and trade names and applications for registration of any of the foregoing (collectively, "Trademarks"), and (v) Internet domain name registrations and applications therefor (collectively, "Domain Names"). (r) "License Agreements" means all written agreements between the Company or any Company Subsidiary and third parties (other than Parent) in which (i) a third party has licensed or granted to Company or any Company Subsidiary any right to use, exploit or practice any of such third party's Intellectual Property Rights or Computer Software ("Inbound License Agreements"), or (ii) the Company or any Company Subsidiary has licensed (including by means of a covenant not to sue) to a third party any right to use, exploit or practice any Company Intellectual Property Rights ("Outbound License Agreements"). (s) "Majority Shares" equals the number of shares of Company Common Stock owned by HoldCo. (t) "Materials of Environmental Concern" is defined as toxic or hazardous substances or hazardous waste, petroleum and petroleum products, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon, or lead or lead-based paints or materials. (u) "Non-Material Computer Software" means Computer Software that is generally available on commercial terms for less than $100,000 or is general purpose infrastructure Computer Software, such as human resources, accounting, financial, customer relationship and similar Computer Software. (v) "Parachute Gross-Up Payment" means any additional payment from the Company or any Company Subsidiary, the Surviving Corporation or any other Person in the event that the excise Tax of Section 4999(a) of the Code is imposed on such Person. (w) "Parent Intellectual Property Rights" means any Intellectual Property Rights owned by Parent or any Parent Subsidiary. (x) "Parent Material Adverse Effect" means any Effect, individually or when taken together with all other Effects that have occurred during the applicable measurement period prior to the date of determination of the occurrence of the Parent Material Adverse Effect, that is or is reasonably likely to be materially adverse to the business, assets (including intangible assets), capitalization, financial condition or results of operations of Parent, taken as a whole with Parent Subsidiaries; provided, -85- however, that in no event will any of the following, alone or in combination, be deemed to constitute, nor will any of the following be taken into account in determining whether there has been or will be, a Parent Material Adverse Effect: (A) any Effect to the extent resulting from compliance with the terms and conditions of this Agreement; (B) any Effect to the extent resulting from the announcement or pendency of the Mergers; (C) any Effect to the extent resulting from changes affecting any of the industries in which Parent operates generally which does not have a disproportionate effect on Parent; (D) any Effect to the extent resulting from changes affecting general worldwide economic or capital market conditions which changes do not have a disproportionate effect on Parent; (E) any change in Parent's stock price or trading volume, in and of itself; (F) any stockholder litigation arising from allegations of a breach of fiduciary duty relating to this Agreement; or (G) any failure by Parent to meet published revenue or earnings projections, which failure will have occurred in the absence of a material deterioration in the business or financial condition of Parent that would otherwise constitute a Parent Material Adverse Effect but for this clause (G). (y) "Parent Triggering Event" shall be deemed to have occurred if: (i) the board of directors of Parent or any committee thereof shall for any reason have withdrawn or shall have amended or modified in a manner adverse to the Company its recommendation in favor of the adoption and approval of the Parent Proposals; (ii) Parent shall have failed to include in the Registration Statement, Parent Proxy Statement and, to the extent required or customarily included in such documents, the applicable Parent French Filings, the recommendation of its board of directors in favor of the adoption and approval of the Parent Proposals; (iii) the board of directors of Parent fails to reaffirm (publicly, if so requested) its recommendation in favor of the adoption and approval of the Parent Proposals within ten (10) business days after the other party hereto reasonably requests in writing that such recommendation be reaffirmed; (iv) the board of directors of Parent or any committee thereof shall have approved or recommended any Parent Acquisition Proposal; or (v) the board of directors of Parent or any committee thereof shall have entered into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Parent Acquisition Proposal or transaction contemplated thereby. (z) "Pension Plans" means all "employee pension benefit plans" (as defined in Section 3(2) of ERISA). (aa) "Person" means any individual, corporation (including any non-profit corporation), general partnership, limited partnership, limited liability partnership, joint venture, estate, trust, company (including any limited liability company or joint stock company), firm or other enterprise, association, organization, entity or Governmental Entity; provided, however, that the parties to this Agreement and their respective Subsidiaries are excluded from the definition of Person. (bb) "Registered Company Intellectual Property" means Registered Intellectual Property Rights that the Company owns. -86- (cc) "Registered Intellectual Property Rights" means Patents, registered Copyrights and Copyright applications, registered Trademarks and Trademark applications and Domain Name registrations. (dd) "Registered Parent Intellectual Property Rights" means Registered Intellectual Property Rights owned by Parent. (ee) "Representatives" of a specified entity means its officers, directors, majority stockholders, agents and representatives, including any financial advisor, financial sponsor, attorney or accountant retained by any of the foregoing for any purpose. (ff) "Subsidiary" of a specified entity shall mean any corporation, partnership, limited liability company, joint venture or other legal entity of which the specified entity (either alone or through or together with any other Subsidiary) owns, directly or indirectly, fifty percent (50%) or more of the stock or other equity or partnership interests the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such corporation or other legal entity. Reference to the Subsidiaries of an entity shall be deemed to include all direct and indirect Subsidiaries of such entity. (gg) "Tax" or "Taxes" means all Federal, state, local, and foreign taxes, and other assessments of a similar nature (whether imposed directly or through withholding), including any interest, additions to tax, or penalties applicable thereto, imposed by any Tax Authority. (hh) "Tax Authority" means the Internal Revenue Service and any other domestic or foreign governmental authority responsible for the administration of any Taxes. (ii) "Tax Returns" mean all Federal, state, local, and foreign Tax returns, declarations, statements, reports, schedules, forms, and information returns and any amendments thereto. (jj) "WARN Act" means the Worker Adjustment and Retraining Notification Act. Section 11.2 Interpretation. (a) When a reference is made in this Agreement to Exhibits, such reference will be to an Exhibit to this Agreement unless otherwise indicated. When a reference is made in this Agreement to Sections, such reference will be to a Section of this Agreement unless otherwise indicated. The words "include," "includes" and "including" when used herein will be deemed in each case to be followed by the words "without limitation." The table of contents and headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement. When reference is made herein to "the business of" an entity, such -87- reference will be deemed to include the business of all direct and indirect Subsidiaries of such entity. (b) For purposes of this Agreement, whenever under the terms hereof the giving of a notice or performance of an act takes place after 12:00 noon California time, (i) the beginning of any period required for giving such notice or performing such act will be deemed to be the next full day or, if the period is measured in business days, the next full business day, rather than the day of such notice or performance, and (ii) the expiration of such required period will be deemed to be 5:00 p.m. California time on the last day or, if the period is measured in business days, last business day, of the period. By way of example, if a notice is required three (3) business days in advance and the notice is delivered at 10:00 a.m. California time on a Friday which is a business day, then the expiration of the period will be 5:00 p.m. on the following Tuesday, assuming that both Monday and Tuesday are business days. (c) For purposes of this Agreement, the term "Knowledge" means the actual knowledge, after reasonable inquiry of Persons who report directly to such individual, of the party's Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer, General Counsel, or, in the case of the Company, Vice President, Products. ARTICLE XII MISCELLANEOUS Section 12.1 Non-Survival of Representations and Warranties. The representations and warranties of the Company, Parent, Merger Sub 1, Merger Sub 2, and Merger Sub 3 contained in this Agreement will terminate at the Effective Time, and only the covenants that by their terms survive the Effective Time will survive the Effective Time. Section 12.2 Notices. All notices and other communications hereunder will be in writing and will be deemed duly given (i) on the date of delivery if delivered personally, (ii) on the date of confirmation of receipt (or, the first business day following such receipt if the date is not a business day) of transmission by telecopy or telefacsimile, or (iii) on the date of confirmation of receipt (or, the first business day following such receipt if the date is not a business day) if delivered by a nationally recognized courier service. All notices hereunder will be delivered as set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice: -88- (a) if to Parent, Merger Sub 1, Merger Sub 2 or Merger Sub 3: Business Objects S.A. c/o Business Objects Americas, Inc. 3030 Orchard Parkway San Jose, California 95134 Attention: General Counsel Telephone: (408) 953-6000 Facsimile: (408) 953-6001 with a copy at the same address to the attention of the General Counsel and Secretary and with a copy to: Skadden, Arps, Slate, Meagher & Flom LLP 525 University Avenue, Suite 1100 Palo Alto, California 94301 Attention: Marc R. Packer Kenton J. King Telephone: (650) 470-4500 Facsimile: (650) 470-4570 (b) if to the Company: Crystal Decisions, Inc. 895 Emerson Street Palo Alto, California 94301 Attention: General Counsel Telephone: (650) 838-7410 Facsimile: (650) 838-7451 with a copy to: Crystal Decisions, Inc. 840 Cambie Street Vancouver, British Columbia Canada V6B 4J2 Attention: Chief Financial Officer Telephone: (604) 681-3435 Facsimile: (604) 681-2934 -89- and with a copy to: Wilson Sonsini Goodrich & Rosati Professional Corporation 650 Page Mill Road Palo Alto, California 94304 Attention: Larry W. Sonsini Martin W. Korman Telephone: (650) 493-9300 Facsimile: (650) 493-6811 (c) if to HoldCo: Seagate Software (Cayman) Holdings c/o Seagate Technology, Inc. 920 Disc Drive, Building 14 Scotts Valley, California 95066 Attention: William L. Hudson Telephone: (831) 439-5370 Facsimile: (831) 438-6675 with a copy at the same address to the attention of the Chairman and Chief Executive Officer and with a copy to: Simpson Thacher & Bartlett LLP 3330 Hillview Avenue Palo Alto, California 94304 Attention: Richard Capelouto Kirsten Jensen Telephone: 650-251-5145 Facsimile: 650-251-5002 Section 12.3 Counterparts. This Agreement may be executed in two or more counterparts, and by facsimile, all of which will be considered one and the same agreement and will become effective when one or more counterparts have been signed by each of the parties and delivered to the other party, it being understood that all parties need not sign the same counterpart. Section 12.4 Entire Agreement; Third Party Beneficiaries. This Agreement and the documents and instruments and other agreements among the parties hereto as contemplated by or referred to herein, including the Company Disclosure Schedule and the Parent Disclosure Schedule (a) constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof, it being understood that the Confidentiality Agreement shall continue in full force and effect until the Closing and shall survive any termination of this -90- Agreement, and (b) are not intended to confer upon any other Person any rights or remedies hereunder, except as specifically provided, following the Company Merger Effective Time, in Section 8.25. Section 12.5 Severability. In the event that any provision of this Agreement or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision to other Persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto. The parties further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision. Section 12.6 Other Remedies; Specific Performance. Except as otherwise provided herein, any and all remedies herein expressly conferred upon a party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such party, and the exercise by a party of any one remedy will not preclude the exercise of any other remedy. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties will be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction, this being in addition to any other remedy to which they are entitled at law or in equity. Section 12.7 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof. In addition, each of the parties hereto (a) consents to submit itself to the Personal jurisdiction of any Delaware state court in the event any dispute arises out of this Agreement or any of the other transactions contemplated by this Agreement, (b) agrees that it will not attempt to deny or defeat such Personal jurisdiction by motion or other request for leave from any such court, and (c) agrees that it will not bring any action relating to this Agreement or any of the other transactions contemplated by this Agreement in any court other than a state court sitting in the State of Delaware. Section 12.8 Rules of Construction. The parties hereto agree that they have been represented by counsel during the negotiation and execution of this Agreement and, therefore, waive the application of any law, regulation, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document. Section 12.9 Assignment. This Agreement may not be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other parties, except any of Merger Sub 1, Merger Sub 2 and Merger Sub 3 may assign, in its sole discretion and without the consent of any other party, any or all of its rights, interests and obligations hereunder to (i) Parent, (ii) to Parent and one or more -91- direct or indirect wholly-owned Subsidiaries of Parent, or (iii) to one or more direct or indirect wholly-owned Subsidiaries of Parent (each, an "Assignee") if and only if such assignment would not in any manner adversely affect the rights, obligations and benefits of the transactions contemplated hereby of any party or any of their direct or indirect affiliates. Any such Assignee may thereafter assign in accordance with the terms of this Section 12.9. Subject to the preceding sentences, but without relieving any party hereto of any obligation hereunder, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. Section 12.10 No Waiver; Remedies Cumulative. No failure or delay on the part of any party hereto in the exercise of any right hereunder will impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty or agreement herein, nor will any single or partial exercise of any such right preclude other or further exercise thereof or of any other right. All rights and remedies existing under this Agreement are cumulative to, and not exclusive to, and not exclusive of, any rights or remedies otherwise available. Section 12.11 Waiver of Jury Trial. EACH OF PARENT, THE COMPANY AND MERGER SUB HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF PARENT, THE COMPANY OR MERGER SUB IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] -92- IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized respective officers as of the date first written above. BUSINESS OBJECTS S.A. By: /s/ Bernard Liautaud --------------------------------- Name: Bernard Liautaud Title: Chairman of the Board and Chief Executive Officer BORG MERGER SUB I, INC. By: /s/ Bernard Liautaud --------------------------------- Name: Bernard Liautaud Title: Chief Executive Officer and President BORG MERGER SUB II, INC. By: /s/ Bernard Liautaud --------------------------------- Name: Bernard Liautaud Title: Chief Executive Officer and President BORG MERGER SUB III, INC. By: /s/ Bernard Liautaud --------------------------------- Name: Bernard Liautaud Title: Chief Executive Officer and President SEAGATE SOFTWARE (CAYMAN) HOLDINGS By: /s/ William L. Hudson --------------------------------- Name: William L. Hudson Title: Executive Vice President, General Counsel and Corporate Secretary CRYSTAL DECISIONS, INC. By: /s/ Jonathan J. Judge --------------------------------- Name: Jonathan J. Judge Title: President and Chief Executive Officer [SIGNATURE PAGE TO AGREEMENT AND PLAN OF MERGER] EX-2.2 4 f91683exv2w2.txt EXHIBIT 2.2 EXHIBIT 2.2 EXECUTION COPY STOCKHOLDERS AGREEMENT BY AND AMONG BUSINESS OBJECTS, S.A., NEW SAC AND THE OTHER STOCKHOLDERS PARTY HERETO DATED AS OF JULY 18, 2003 STOCKHOLDERS AGREEMENT This STOCKHOLDERS AGREEMENT, dated as of July 18, 2003 (this "Agreement"), is entered into among Business Objects, S.A. (the "Company"), New SAC (the "Majority Stockholder"), Silver Lake Technology Investors Cayman, L.P., Silver Lake Investors Cayman, L.P., Silver Lake Partners Cayman, L.P., (collectively, "Silver Lake"), SAC Investments, L.P. ("TPG"), August Capital III, L.P. ("August"), J.P. Morgan Partners (BHCA), L.P. ("J.P. Morgan"), GS Capital Partners III, L.P., GS Capital Partners III Offshore, L.P., Goldman, Sachs & Co. Verwaltungs GmbH, Stone Street Fund 2000 L.P., Bridge Street Special Opportunities Fund 2000, L.P. (collectively, "GS"), Staenberg Venture Partners II, L.P., Staenberg Seagate Partners, LLC (collectively, "Staenberg"), and Integral Capital Partners V, L.P., Integral Capital Partners V Side Fund, L.P. (collectively, "Integral"). Each of the entities listed above other than the Company are sometimes referred to individually as a "Stockholder" and together as the "Stockholders." RECITALS WHEREAS, concurrently herewith, the Company, Borg Merger Sub I, Inc., a Delaware corporation and wholly-owned subsidiary of the Company ("Merger Sub 1"), Borg Merger Sub II, Inc., a Delaware corporation and wholly-owned subsidiary of the Company ("Merger Sub 2"), Borg Merger Sub III, Inc., a Delaware corporation and wholly-owned subsidiary of the Company ("Merger Sub 3"), Seagate Software (Cayman) Holdings, an exempted company incorporated in the Cayman Islands with limited liability ("HoldCo") and Crystal Decisions, Inc., a Delaware corporation ("Crystal"), have entered into an Agreement and Plan of Merger (the "Merger Agreement"), dated as of July 18, 2003, pursuant to which, subject to satisfaction or waiver of the conditions therein, (1) (a) Merger Sub 1 will merge with and into HoldCo (the "HoldCo Merger"), (b) immediately following the HoldCo Merger, the surviving corporation of the HoldCo Merger will merge with and into Merger Sub 2 (the "Second HoldCo Merger"), (c) immediately following the Second HoldCo Merger, Merger Sub 3 will merge with and into Crystal (the "Company Merger"), and (d) immediately following the Company Merger, the surviving corporation of the Company Merger will merge with and into the surviving corporation of the Second HoldCo Merger (the "Second Company Merger," and together with the HoldCo Merger, the Second HoldCo Merger and Company Merger, the "Mergers"), (2) the Company will issue ordinary shares, nominal value EUR 0.10 per share, of the Company or American Depository Shares of the Company, each of which represents one Ordinary Share (in either form, the "Shares") to the Majority Stockholder, as the sole stockholder of HoldCo, and to the stockholders of Crystal, and (iii) the Company will assume all then-outstanding Crystal stock options in accordance with the terms of the Merger Agreement; WHEREAS, in connection with the Mergers, the Majority Stockholder will receive Subject Shares (as defined herein); WHEREAS, upon consummation of the Mergers, the Stockholders will Beneficially Own Shares; 2 WHEREAS, the parties believe that it is in the best interests of the Company and the Stockholders to provide for certain rights and obligations of the parties with respect to various corporate matters of the Company following the Mergers; and WHEREAS, the Merger Agreement contemplates that this Agreement will be executed concurrently with the execution of the Merger Agreement, with its provisions to become effective upon consummation of the Mergers. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto agree as follows: ARTICLE I. INTRODUCTORY MATTERS 1.1. Defined Terms. In addition to the terms defined elsewhere herein, the following terms have the following meanings when used herein with initial capital letters: "13D Group" means a "group" as such term is used in Section 13(d)(3) of the Exchange Act. "AAA" has the meaning given to that term in Section 7.9 of this Agreement. "ADSs" means the American Depository Shares of the Company, each representing one Ordinary Share, deposited with the Depositary, and trading on the Nasdaq National Market. "Affiliate" has the meaning given to that term in Rule 405 promulgated under the Securities Act; provided that officers, Directors or employees of the Company will not be deemed to be Affiliates of a Stockholder for purposes hereof solely by reason of being officers, Directors or employees of the Company. "Agreement" means this Agreement, as the same may be amended, supplemented or otherwise modified from time to time in accordance with the terms hereof. "Assumption Agreement" means a writing substantially in the form of Exhibit A hereto whereby a Permitted Transferee or other Transferee pursuant to Sections 3.4 and 3.6 becomes a party to, and agrees to be bound to the same extent as its Transferor by, the terms of this Agreement. "Beneficial Owner," "Beneficially Own," "Beneficial Ownership" and words of similar import have the meanings ascribed to such terms in Rule 13d-3 under the Exchange Act. Without duplicative counting of the same securities by the same holder, securities "Beneficially Owned" by a Person includes securities "Beneficially Owned" by all other Persons with whom such Person would constitute a 13D Group with respect to securities of the same issuer. "Board" means the Board of Directors of the Company. 3 "Business Day" means a day other than a Saturday, Sunday, federal or New York or California state holiday, French national holiday or other day on which commercial banks in New York City, San Francisco or Paris are authorized or required by law to close. "Closing Date" means the "Second Company Merger Effective Time" of the Mergers as such term is defined in the Merger Agreement. "Closing Shelf Registration Statement" shall have the meaning given to such term in Section 4.10 of this Agreement. "Control," "Controlled," "Controlling," and "Under Common Control With" have the meanings ascribed to such terms in Rule 12b-2 under the Exchange Act. "Demand Party" has the meaning given to that term in Section 4.2(a) of this Agreement. "Demand Registration" has the meaning given to that term in Section 4.2(a) of this Agreement. "Depositary" means the Bank of New York or any successor depositary thereto. "Depositary Expenses" means any fees or expenses (including any taxes and governmental charges) payable (by the Company or otherwise) in connection with any deposit or withdrawal of any of the Subject Shares into or from the Depositary or its custodian after the Subject Shares have been issued to the Majority Stockholder in connection with the Mergers. "Director" means any member of the Board. "Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, as the same may be amended from time to time. "Holder" has the meaning given to that term in Section 4.5 of this Agreement. "Indemnified Parties" has the meaning given to that term in Section 4.5 of this Agreement. "Initial Share Holding Period" has the meaning given to that term in Section 3.1(a) of this Agreement. "Initiating Holder" has the meaning given to that term in Section 4.1(a) of this Agreement. "Legend" has the meaning given to that term in Section 3.7(d) of this Agreement. "Managing Registration Rights Holder" means any of the Majority Stockholder, Silver Lake, TPG, August, J.P. Morgan, GS, Staenberg, or Integral. "Mergers" has the meaning given to that term in the Recitals of this Agreement. 4 "Merger Agreement" has the meaning given to that term in the Recitals of this Agreement. "Ordinary Shares" means the ordinary shares of the Company, nominal value EUR 0.10 per share. "Permitted Transferee" means, in the case of any Stockholder, (A) any Controlled Affiliate (other than an individual) of such Stockholder or any Affiliate (other than an individual) which Controls such Stockholder (which in the case of J.P. Morgan, shall include any investment fund managed by a Controlled Affiliate of J.P. Morgan Chase & Co.), (B) any stockholder, general or limited partner, director, officer, managing or non-managing member or employee of such Stockholder or Controlled Affiliate of such Stockholder (including, in the case of Silver Lake and TPG, the general or limited partners of the general and limited partners of such Stockholders), (C) the heirs, executors, administrators, testamentary trustees, legatees or beneficiaries of any of the individuals referred to in clause (B), (D) for estate planning purposes, any trust, the beneficiaries of which include only (1) such Stockholder, (2) Permitted Transferees referred to in clauses (A), (B) and (C) and (3) spouses and lineal descendants of Permitted Transferees referred to in clause (B), and (E) a corporation, partnership, limited liability company or similar entity, a majority of the equity of which is owned and Controlled by such Stockholder and/or Permitted Transferees referred to in clauses (A), (B), (C) and (D). "Person" means any individual, corporation, limited liability company, partnership, trust, joint stock company, business trust, unincorporated association, joint venture, governmental authority or other legal entity of any nature whatsoever. "Public Offering" means the sale of any class of capital stock of the Company or equivalent securities, including ADSs or similar securities, to the public pursuant to an effective registration statement (other than a registration statement on Form S-4 or S-8 or any similar or successor form) filed under the Securities Act. "Registrable Securities" means (i) the Subject Shares and (ii) any Shares issued as (or issuable upon the conversion or exercise of any warrant, right, option or other convertible security which is issued as) a dividend, stock split or other distribution, recapitalization or reclassification with respect to, or in exchange for, or in replacement of, such Subject Shares, or upon exercise of statutory preemptive rights by the Stockholders. For purposes of this Agreement, with respect to any Stockholder, any Registrable Securities held by such Stockholder will cease to be Registrable Securities when (A) a registration statement covering such Registrable Securities has been declared effective and such Registrable Securities have been disposed of pursuant to such effective registration statement, (B) such Registrable Securities shall have been offered and sold pursuant to Rule 144 or Rule 145 (or any similar provisions then in effect) under the Securities Act, (C) all Registrable Securities held by such Stockholder are eligible for transfer to the public pursuant to Rule 144 or Rule 145 (or any similar provisions then in effect) under the Securities Act (without restriction as to manner of sale or amount sold) and are not otherwise subject to any Transfer restrictions under this Agreement, (D) such Registrable Securities are Transferred by a Person in a transaction in which rights under the provisions of this Agreement are not assigned in accordance with this Agreement, or (E) such Registrable Securities cease to be outstanding. 5 "Registration Expenses" means any and all expenses incident to performance by the Company of its obligations under Sections 4.1, 4.2 and 4.3, including without limitation (i) all SEC, stock exchange, or National Association of Securities Dealers, Inc. (the "NASD") registration and filing fees (including, if applicable, the fees and expenses of any "qualified independent underwriter," as such term is defined in Rule 2720 of the NASD, and of its counsel), (ii) all fees and expenses of complying with securities or blue sky laws (including fees and disbursements of counsel for the underwriters in connection with blue sky qualifications of the Registrable Securities), (iii) all printing, messenger and delivery expenses, (iv) all fees and expenses incurred in connection with the listing of the Registrable Securities on any securities exchange and all rating agency fees, (v) the fees and disbursements of counsel for the Company and of its independent public accountants, including the expenses of any Special Audits and/or "cold comfort" letters required by or incident to such performance and compliance, (vi) any fees and disbursements of underwriters customarily paid by the issuers or sellers of securities, including liability insurance if the Company so desires or if the underwriters so require, and the reasonable fees and expenses of any special experts retained in connection with the requested registration, but excluding underwriting discounts and commissions and transfer taxes, if any, (vii) the reasonable out-of-pocket expenses of not more than one law firm incurred by all the Registration Rights Holders in connection with any registration of Registrable Securities, and (viii) the costs and expenses of the Company relating to analyst and investor presentations or any "road show" undertaken in connection with any registration and/or marketing of the Registrable Securities, provided that nothing in this clause (viii) shall obligate the Company to engage or participate in any such presentations or road show. For the avoidance of doubt, Registration Expenses does not include Depositary Expenses. "Registration Rights Holders" means, collectively, the Stockholders (excluding any Transferee that becomes a Stockholder to this Agreement pursuant to Section 3.6 hereof), and to the extent any Registrable Securities are Transferred by any such Stockholder to any of its Permitted Transferees, such Permitted Transferees. "S-3 Initiating Party" has the meaning given to that term in Section 4.3 of this Agreement. "SEC" means the Securities and Exchange Commission. "Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, as the same may be amended from time to time. "Shares" has the meaning given to that term in the Recitals to this Agreement. "Significant Event" has the meaning given to that term in Section 2.2(b) of this Agreement. "Special Audit" means an audit of the Company other than the regular audit conducted by the Company at the end of its fiscal year. "Stockholder" has the meaning given to that term in the Recitals to this Agreement. 6 "Stockholder Representative" has the meaning given to that term in Section 5.1 of this Agreement. "Subject Shares" means the Shares issued to the Majority Stockholder in connection with the Mergers, including any Shares issued upon changes in the form of such Shares between ADSs and Ordinary Shares upon deposit or exchange with the Depositary. "Suspension Period" has the meaning given to that term in Section 4.10 of this Agreement. "Transfer" means, with respect to any Subject Share (or direct or indirect economic or other interest therein), a transfer, distribution, sale, gift, assignment, pledge, hypothecation or other disposition, whether directly or indirectly (pursuant to the creation of a derivative security or otherwise), the grant of an option or other right or the imposition of a restriction on disposition or voting or by operation of law. When used as a verb, "Transfer" shall have the correlative meaning. In addition, "Transferred" and "Transferee" shall have the correlative meanings. "Voting Stock" means the Shares and any other securities of the Company entitled to vote generally in the election of Directors of the Company. 1.2. Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party. Unless the context otherwise requires: (a) "or" is disjunctive but not exclusive, (b) words in the singular include the plural, and in the plural include the singular, and (c) the words "hereof", "herein" and "hereunder" and words of similar import when used in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section and Exhibit references are to this Agreement unless otherwise specified. ARTICLE II. STANDSTILL PROVISIONS 2.1. Restrictions. Except to the extent approved by a majority of the Directors, excluding the Stockholder Representative, subject to the provisions of Section 2.2 hereof, each Stockholder agrees that such Stockholder shall not: (a) purchase or acquire, or offer or agree to purchase or acquire, directly or indirectly, alone or in concert with any other Person, by purchase, gift or otherwise, Beneficial Ownership of any Voting Stock of the Company if such acquisition would result in the Stockholders Beneficially Owning more than (x) the number of Subject Shares (subject to adjustment for any events set forth in clause (B) below) such Stockholders collectively Beneficially Own upon consummation of the Mergers plus (y) the number of Shares (subject to adjustment for any events set forth in clause (B) below, if any) such Stockholders acquire Beneficial Ownership of from time to time during any period that the restrictions of this Section 2.1 are suspended pursuant to the provisions of Section 2.2 hereof, except (A) as specifically 7 contemplated by the Merger Agreement, (B) by way of stock dividends or distributions, rights offerings, stock-splits, reclassifications, recapitalizations, changes in capitalization, mergers, consolidations, restructurings, business combinations, exchange offers, reorganizations or any other similar action taken by the Company, (C) by reason of exercise of statutory preemptive rights or (D) for equity-based awards granted to any Stockholder or Affiliate thereof solely in such Person's capacity as a director or employee of the Company; provided, that Integral shall not be bound by the restrictions contained in this Section 2.1(a); provided further, that with respect to J.P. Morgan, in no event shall the restrictions set forth in this Section 2.1(a) be deemed to apply to any Person other than (1) J.P. Morgan or (2) any successor investment fund managed by J.P. Morgan Partners, L.L.C.; (b) join or in any way participate in or encourage the formation of any 13D Group with respect to the Beneficial Ownership of Voting Stock of the Company with any Person who is not, immediately prior to the time of formation of such 13D Group, (i) another Stockholder or (ii) an Affiliate of (A) such Stockholder or another Stockholder or (B) any other Person which is then a member of a 13D Group with such Stockholder or another Stockholder; (c) (i) make, or in any way participate in, directly or indirectly, alone or in concert with any other Person, any "solicitation" of "proxies" (as such terms are defined or used in Regulation 14A under the Exchange Act), including participation in any election contest, or (ii) otherwise communicate with the stockholders of the Company (other than (i) another Stockholder, (ii) an Affiliate of such Stockholder, or (iii) any other Person which is then a member of a 13D Group with such Stockholder or another Stockholder) in connection with or in relation to a proxy solicitation; (d) advise or seek to influence any Person (other than (i) another Stockholder, (ii) Affiliates of such Stockholder or another Stockholder or (iii) Persons who are members of any 13D Group of which such Stockholder or another Stockholder is member and which does not violate Section 2.1(b) above), with respect to the voting of any Voting Stock; (e) initiate or propose one or more stockholders' proposals, as described in Rule 14a-8 under the Exchange Act, with respect to the Company; (f) call, request or otherwise attempt to convene or cause management of the Company to convene a meeting of the stockholders of the Company; (g) initiate, propose or solicit any proposal with respect to any merger, consolidation or business combination involving the Company, any tender or exchange offer for equity securities of the Company, any sale or purchase of a substantial amount of the assets of the Company, any purchase of equity securities of the Company (other than as permitted in Section 2.1(a) above), any dissolution, liquidation, reorganization or recapitalization or similar business transaction involving the Company; (h) deposit any shares of Voting Stock of the Company in a voting trust or subject any such Voting Stock to any arrangement or agreement with respect to the voting of such Voting Stock (other than arrangements or agreements solely involving (i) another Stockholder, (ii) Affiliates of such Stockholder or another Stockholder or (iii) Persons who are 8 members of any 13D Group of which such Stockholder or another Stockholder is member and which does not violate Section 2.1(b) above); (i) propose publicly (or in a manner reasonably expected to result in public disclosure) to do, announce an intention to do, or enter into any arrangement or understanding with any other Person to do, any of the actions restricted or prohibited under this Section 2.1; or (j) propose publicly (or in a manner reasonably expected to result in public disclosure) any proposal to amend or terminate the provisions of this Section 2.1; provided that nothing in this Section 2.1 shall (i) prohibit or restrict any Stockholder or its Affiliates from taking any action required or contemplated by any other provision of this Agreement or the Merger Agreement, (ii) prohibit any individual who is serving as a Director of the Company, solely in his or her capacity as such Director, from taking any action or making any statement which, in such Director's best judgment, is in the best interests of the Company or the Company's stockholders, (iii) prohibit any individual who is serving as an officer or employee of the Company or its Controlled Affiliates, solely in his or her capacity as such, from performing his or her duties in such capacity or from participating in the employee stock purchase program (if any) of the Company or its Controlled Affiliates in which such individual is eligible to participate by virtue of such capacity, provided that any such participation does not make use of any funds provided by any third party, including without limitation any Stockholder or any Permitted Transferee thereof, or (iv) restrict any disclosure or statements required to be made by any Stockholder or its Affiliates under applicable law to the extent any such requirement does not arise from actions by such Stockholder in violation of this Agreement, and provided, further, that the restrictions set forth in Section 2.1(a) shall not be deemed to restrict any Stockholder or its Affiliates from engaging in any brokerage, investment advisory, anti-raid advisory, merger advisory, asset management, financial advisory, financing, market making and other similar activities conducted in the ordinary course of its or their business. 2.2. Suspension of Standstill Restrictions. (a) Upon the occurrence of a Significant Event (as defined below), the restrictions set forth in Section 2.1 shall be suspended. (b) "Significant Event" means any of the following: (i) the Company agrees to enter into an agreement for, or makes a public announcement of its intention to pursue, or the Board authorizes the management of the Company to solicit proposals from third parties for (A) the sale or other disposition of 33.3% or more of the Company's outstanding Shares, (B) the sale or disposition of all or substantially all of the Company's assets or a similar sale or change of control transaction, or (C) any merger, consolidation, or other similar business combination transaction (1) pursuant to which the outstanding Shares of the Company would be converted into cash or securities of another Person or 13D Group, (2) which would result in a third party or 13D Group Beneficially Owning, when combined with any other Shares of the Company owned by such third party or 13D Group, 33.3% or more of the then-outstanding Shares, 9 or (3) which would result in all or a substantial portion of the Company's assets being sold to any Person or 13D Group; or (ii) the public announcement of a bona fide proposal by a third party or 13D Group (other than the Company, a Stockholder, or any Person who is then an Affiliate of a Stockholder) to acquire Voting Stock of the Company (including pursuant to a tender or exchange offer or merger), which, if successful, would result in such third party or 13D Group Beneficially Owning, when combined with any other Voting Stock of the Company owned by such third party or 13D Group, 33.3% or more of the outstanding Voting Stock of the Company; provided, however, that the Board either (A) has approved or recommended that the stockholders of the Company accept such offer or (B) has not rejected or recommended that the stockholders of the Company refrain from accepting such offer; or (iii) a third party or 13D Group successfully consummates a proposal of the type described in the foregoing clause 2.2(b)(ii); or (iv) the adoption by the Board of a plan of liquidation or dissolution. (c) Upon the cessation of the event or events that lead to the suspension of the restrictions in Sections 2.1 pursuant to this Section 2.2, those restrictions shall be reinstated in accordance with their terms unless this Agreement has been terminated in accordance with Section 7.2. ARTICLE III. TRANSFER RESTRICTIONS; CERTAIN DISTRIBUTIONS 3.1. Limitations on Transfer. (a) During the 90 day period following the Closing Date (such period, the "Initial Share Holding Period"), the Majority Stockholder may not Transfer any Subject Shares. (b) At any time following the Initial Share Holding Period, the Stockholders may Transfer Subject Shares solely in accordance with the provisions of Section 3.2 hereof and Sections 3.1(c) and 3.1(d) below. (c) During the period commencing as of the end of the Initial Share Holding Period and ending on the one-year anniversary thereof (the "Restricted Period"), without the prior written consent of the Company, the Stockholders may not collectively Transfer Subject Shares representing more than 7.5% of the then-outstanding Shares of the Company in the aggregate during any six (6) month period; provided, that the following Transfers shall not be included in calculating Shares Transferred for purposes of this Section 3.1(c): (i) Transfers of Registrable Securities in underwritten Public Offerings pursuant to Sections 4.1, 4.2 and 4.3 hereof; (ii) Distributions of Subject Shares by the Majority Stockholder, pursuant to Section 3.3 below; 10 (iii) Transfers of Subject Shares by any Stockholder to its Permitted Transferees pursuant to Section 3.4 below; and (iv) Transfers of Subject Shares pursuant to Sections 3.2(g) and (k) below. (d) In addition to the provisions of Section 3.1(c) above, during the Restricted Period, without the prior written consent of the Company, the Stockholders may not collectively Transfer Subject Shares representing more than 15% of the then-outstanding Shares of the Company in the aggregate during any six (6) month period; provided, that the following Transfers shall not be included in calculating Shares Transferred for purposes of this Section 3.1(d): (i) Distributions of Subject Shares by the Majority Stockholder, pursuant to Section 3.3 below; (ii) Transfers of Subject Shares by any Stockholder to its Permitted Transferees pursuant to Section 3.4 below; and (iii) Transfers of Subject Shares pursuant to Sections 3.2(g) and (k) below. 3.2. Additional Transfer Restrictions. Following the Initial Share Holding Period and subject to the restrictions set forth in Sections 3.1(c) and 3.1(d) above, none of the Stockholders may Transfer any Subject Shares, except: (a) in compliance with Rules 144 and 145 under the Securities Act; (b) pursuant to any underwritten Public Offerings, including, without limitation, pursuant to Sections 4.1, 4.2 and 4.3, provided that any such underwritten Public Offering is at least 180 days after the most recent underwritten Public Offering in which Subject Shares were Transferred; (c) pursuant to Public Offerings other than underwritten Public Offerings or any other resale under an effective registration statement; (d) in private transactions subject to applicable exemptions from the registration requirements of the Securities Act to Persons who have not filed and, to the knowledge of the Stockholder, would not be required to file after the consummation of the Transfer, either: (A) a Schedule 13D under the Exchange Act (a "Schedule 13D") , or (B) a Schedule 13G under the Exchange Act that discloses Beneficial Ownership of 10% or more of the then-outstanding Shares (a "10% Schedule 13G"); provided, that no more than 5% of the then-outstanding Shares may be Transferred to any such Person, whether in a single transaction or series of related transactions; (e) in private transactions subject to applicable exemptions from the registration requirements of the Securities Act to Persons who have filed or, to the knowledge of the Stockholder, would be required to file after the consummation of the Transfer, either: (A) a 11 Schedule 13D, or (B) a 10% Schedule 13G; provided, that no more than 5% of the then-outstanding Shares may be sold to any such Person, whether in a single transaction or series of related transactions; provided further, that prior to the Transfer, the Stockholder will have offered the Company the opportunity to purchase the respective Subject Shares (in the manner set forth in Section 3.4 below), and the Company shall have failed to exercise such right of first refusal; (f) in transactions outside of the United States subject to applicable exemptions from the registration requirements of the Securities Act; (g) pursuant to any tender or exchange offer commenced under Rule 14d-2 of the Exchange Act, or any merger, consolidation, sale or other business combination transaction involving the Company; (h) pursuant to any distribution by the Majority Stockholder to its Stockholders pursuant to Section 3.3 below; (i) pursuant to any Transfer by a Stockholder to its Permitted Transferees pursuant to Section 3.4 below; (j) in bona fide transactions in compliance with the requirements of the Securities Act and Exchange Act that constitute a hedge against changes in the market price of the Shares; or (k) the grant by J.P. Morgan of a participation interest to one or more other investment funds managed by a Controlled Affiliate of J.P. Morgan Chase & Co. without a change in record ownership. 3.3. Distributions by Majority Stockholder. Following the Initial Share Holding Period, the Majority Stockholder may distribute all or a portion of the Subject Shares held by the Majority Stockholder to the stockholders of the Majority Stockholder in accordance with the Memorandum and Articles of Association of the Majority Stockholder. 3.4. Transfer to Permitted Transferees. (a) Following the Initial Share Holding Period, any Stockholder may Transfer any or all of the Subject Shares held by it to any Permitted Transferee of such Stockholder. Each Permitted Transferee will be required, at the time of and as a condition to such Transfer, to become a party to this Agreement by executing and delivering an Assumption Agreement and, upon executing and delivering an Assumption Agreement, will be treated as a Stockholder for all purposes hereof, including, but not limited to, the transfer restrictions set forth in Article III hereof. (b) Each Permitted Transferee of any Stockholder to which Subject Shares are Transferred shall, and such Stockholder shall cause such Permitted Transferee to, Transfer back to such Stockholder (or to another Permitted Transferee of such Stockholder) any Subject Shares 12 it owns prior to such Permitted Transferee ceasing to be a Permitted Transferee to such Stockholder. (c) This Section 3.4 shall not apply to the grant by J.P. Morgan of a participation interest to one or more other investment funds managed by a Controlled Affiliate of J.P. Morgan without change in record ownership. 3.5. Right of First Refusal. Prior to consummating any Transfer of any Subject Share pursuant to Section 3.2(e) above, each Stockholder shall give the Company the opportunity to purchase, subject to applicable law, such Subject Shares in the following manner: (a) The selling Stockholder shall give notice (the "Transfer Notice") to the Company in writing of such intention, specifying the name of the proposed purchaser or Transferee, the number of Subject Shares proposed to be sold or transferred, the proposed price per Share therefor (the "Transfer Price") and the other material terms upon which such disposition is proposed to be made. (b) The Company (or a designee of the Company in accordance with Section 3.5(c)) shall have the right, exercisable by written notice given by the Company to the selling Stockholder within five Business Days after receipt of such Transfer Notice, to agree to purchase all, but not less than all, of the Subject Shares specified in such Transfer Notice. The Company shall have the right to pay for such Subject Shares: (i) the same amount in cash per Share, (ii) to the extent the consideration to be paid by the third party consists of any debt instruments, consideration per Share equivalent to that offered by the third party, or (iii) to the extent the consideration to be paid by the third party does not consist of cash or debt instruments, an amount of cash having equivalent value as determined, at the expense of the Company, by an investment banking firm mutually agreed to by the Company and the selling Stockholder. (c) If the Company (or its designee) exercises its right of first refusal hereunder, the closing of the purchase of the securities with respect to which such right has been exercised shall take place within five Business Days after the Company gives notice of such exercise, or, if later, upon the date on which the proposed Transfer was to occur with the third party. Upon exercise by the Company (or its designee) of its right of first refusal, the Company and the selling Stockholder shall be legally obligated to consummate the purchase contemplated thereby and shall use their reasonable commercial efforts to secure any approvals required in connection therewith. The Company may elect by notice in writing to the selling Stockholder that, at the closing of such transaction, the Subject Shares be delivered to and payment made to the selling Stockholder by a designee of the Company, provided that the Company shall remain liable for its obligations under this Section 3.5 in the event such designee fails to purchase and pay for the Subject Shares being sold. (d) If the Company (or its designee) does not exercise its right of first refusal hereunder within the time specified for such exercise, or if the Company (or its designee) fails to complete the purchase of the securities on the closing date specified in the first sentence of Section 3.5(c) (other than by reason of a failure by the selling Stockholder to fulfill its 13 obligations with respect thereto), the selling Stockholder shall be free, subject to the terms of Section 3.1 herein, to sell the securities specified in such Transfer Notice at a price equal to or greater than the Transfer Price specified in such Transfer Notice; provided that such sale is consummated within thirty (30) days after the Company fails to exercise its right of first refusal. 3.6. Rights and Obligations of Transferees. Any Transferee of Subject Shares (other than Transferees who acquire Subject Shares (a) pursuant to Section 3.3, (b) pursuant to Section 3.4, (c) pursuant to the exercise of rights set forth in Article IV, (d) in a bona fide sale to the public pursuant to Rule 144, Rule 145 or Regulation S under the Securities Act, (e) through a Public Offering, (f) pursuant to Section 3.2(g), or (g) pursuant to Section 3.2(k)) will be required, at the time of and as a condition to such Transfer, to become a party to this Agreement by executing and delivering an Assumption Agreement and, upon executing and delivering an Assumption Agreement, will be treated as a Stockholder for all purposes hereof; provided, however, that no such Transferee (or its Permitted Transferees) will acquire any rights (but will be subject to the obligations) under Articles IV or V of this Agreement. 3.7. Other. (a) Any Transfer of Subject Shares under this Agreement (other than through a Public Offering) shall not be effective unless and until the Company shall have been furnished with information reasonably satisfactory to it (which may include an opinion from counsel) demonstrating that such Transfer is exempt from or not subject to the provisions of Section 5 of the Securities Act and any other applicable securities laws. (b) In the event of any purported Transfer by a Stockholder of any Subject Shares in violation of the provisions of this Agreement, such purported Transfer will be void and of no effect, and the Company will not give effect to such Transfer. (c) The Company will be entitled to take all necessary steps to ensure that any Subject Shares issued to the Stockholders are identified as restricted securities within the meaning of Rules 144 and 145 promulgated under the Securities Act and that any resales of such Subject Shares will be made in accordance with an exemption from registration under the Securities Act or pursuant to an effective registration statement. (d) Each certificate representing ADSs held by a Stockholder will bear a legend on the face thereof substantially to the following effect (with such additions thereto or changes therein as the Company may be advised by counsel are required by law or necessary to give full effect to this Agreement, the "Legend"): "THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE STOCKHOLDERS AGREEMENT AMONG BUSINESS OBJECTS, S.A., NEW SAC, AND THE STOCKHOLDERS PARTY THERETO, DATED AS OF JULY 18, 2003, AS AMENDED AND SUPPLEMENTED FROM TIME TO TIME IN ACCORDANCE WITH THE TERMS THEREOF, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF BUSINESS OBJECTS, S.A. THE STOCKHOLDERS AGREEMENT CONTAINS, AMONG OTHER THINGS, CERTAIN PROVISIONS RELATING TO THE 14 TRANSFER OF THE SHARES SUBJECT TO THE AGREEMENT. NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE, DIRECTLY OR INDIRECTLY, MAY BE MADE EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SUCH STOCKHOLDERS AGREEMENT. THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY ALL OF THE PROVISIONS OF SUCH STOCKHOLDERS AGREEMENT." The Legend will be removed by the Company, with respect to any certificate representing Subject Shares, by the delivery of substitute certificates without such Legend in the event of a Transfer permitted by this Agreement and in which the Transferee is not required to enter into an Assumption Agreement pursuant to Section 3.4 or Section 3.6 of this Agreement. ARTICLE IV. REGISTRATION RIGHTS 4.1. Piggyback Rights. (a) Subject to the Transfer restrictions set forth in Sections 3.1 and 3.2, if, at any time during the period commencing as of the end of the Initial Share Holding Period and ending on the ten-year anniversary of the Closing, the Company proposes to register any of the Shares under the Securities Act (other than a registration on Form S-4 or S-8, or any successor or other forms promulgated for similar purposes), whether or not for sale for its own account (including pursuant to Section 4.2), it will, at each such time, give prompt written notice to the Managing Registration Rights Holders of its intention to do so and of the Registration Rights Holders' rights under this Section 4.1. Upon the written request of any Managing Registration Rights Holder made within 14 days after the receipt of any such notice (which request shall specify the number of Registrable Securities intended to be disposed of by such Managing Registration Rights Holder and all other Registration Rights Holders who are Permitted Transferees of such Managing Registration Rights Holder), the Company will use its reasonable best efforts to effect the registration under the Securities Act of all Registrable Securities which each Managing Registration Rights Holder has so requested to be registered; provided that (i) if, at any time after giving written notice of its intention to register any securities and prior to the effective date of the registration statement filed in connection with such registration, the Company or any other holder of securities that initiated such registration (an "Initiating Holder") shall determine for any reason not to proceed with the proposed registration of the securities to be sold by it, the Company or such Initiating Holder may, at its election, give written notice of such determination to the Managing Registration Rights Holders and, thereupon, the Company shall be relieved of its obligation to register any Registrable Securities in connection with such registration, and (ii) if such registration involves an underwritten offering, the Registration Rights Holders of Registrable Securities requesting to be included in the registration must sell their Registrable Securities to the underwriters selected by the Company, on the same terms and conditions as apply to the Company or the Initiating Holders, as the case may be, with, in the case of a combined primary and secondary offering, such differences, including any with respect to indemnification and liability insurance, as may be customary or appropriate in combined primary and secondary offerings. If a registration requested pursuant to this Section 4.1(a) involves an underwritten Public Offering, any Registration Rights Holder requesting to be 15 included in such registration may elect not to register all or any portion of such securities in connection with such registration; provided that such Registration Rights Holder gives written notice of such withdrawal to any of the Managing Registration Rights Holders, and such Managing Registration Rights Holder delivers such notice to the Company at least ten (10) days prior to the effective date of the registration statement filed in connection with such registration. (b) The Company will pay all Registration Expenses in connection with each registration of Registrable Securities requested pursuant to this Section 4.1. (c) If a registration pursuant to this Section 4.1 involves an underwritten offering and the managing underwriter advises the Company in writing that, in its opinion, the number of Registrable Securities and other securities requested to be included in such registration exceeds the number which can be sold in such offering, so as to be reasonably likely to have an adverse effect on the price, timing or distribution of the securities offered in such offering, then the Company will include in such registration (i) first, 100% of the securities, if any, the Company proposes to sell for its own account, provided that the registration of Shares contemplated by this Section 4.1 was initiated by the Company with respect to Shares intended to be registered for sale for its own account, (ii) second, the number of Registrable Securities requested to be included by the Majority Stockholder, if any, in such registration which in the opinion of the managing underwriter, can be sold, without having the adverse effect referred to above, and (iii) third, such number of Registrable Securities requested to be included in such registration by the other Registration Rights Holders which, in the opinion of such managing underwriter, can be sold without having the adverse effect referred to above, which number of Registrable Securities shall be allocated pro rata among all such requesting holders of Registrable Securities, based on the relative number of Registrable Securities then held by each such requesting holder of Registrable Securities. In the event that (A) the Company did not initiate the registration of securities intended to be registered for sale for its own account and (B) the number of Registrable Securities and Shares of other holders, in each case entitled to registration rights with respect to such Shares, requested to be included in such registration is less than the number which, in the opinion of the managing underwriter, can be sold, the Company may include in such registration securities it proposes to sell for its own account up to the number of securities that, in the opinion of the underwriter, can be sold. 4.2. Demand Registration. (a) Subject to the Transfer restrictions set forth in Sections 3.1 and 3.2, at any time during the period commencing as of the end of the Initial Share Holding Period and ending on the ten-year anniversary of the Closing Date, and, in the case of Silver Lake, TPG or August, after the Majority Stockholder has distributed Subject Shares pursuant to Section 3.3, upon the written request of any of the Majority Stockholder, TPG, Silver Lake or August (a "Demand Party") requesting that the Company effect the registration under the Securities Act of all or part of such Demand Party's Registrable Securities (a "Demand Registration") and specifying the amount and intended method of disposition thereof, the Company will promptly give written notice of such requested registration to the Managing Registration Rights Holders (each of such Managing Registration Rights Holders will notify each of the Permitted Transferees of such Managing Registration Rights Holder that holds Registrable Securities) and other holders of securities entitled to notice of such registration and thereupon will, as expeditiously as 16 reasonably possible, file a registration statement to effect the registration under the Securities Act of: (i) such Registrable Securities which the Company has been so requested to register by the Demand Party; (ii) the Registrable Securities of other Registration Rights Holders which the Company has been requested to register by written request given to the Company by the Managing Registration Rights Holders within 14 days after the giving of such written notice by the Company to the Managing Registration Rights Holders (which request shall specify the amount and intended method of disposition of such securities); all to the extent necessary to permit the disposition (in accordance with the intended method thereof as aforesaid) of the Registrable Securities and such other securities so to be registered; provided that the Company shall not be required to effect the registration of Registrable Securities (A) at the request of the Majority Stockholder on more than two (2) occasions, (B) at the request of Silver Lake on more than two (2) occasions, (C) at the request of TPG on more than two (2) occasions, or (D) at the request of August on more than one (1) occasion; provided further, that the Company shall not be obligated to file a registration statement relating to any registration request under this Section 4.2(a): (1) within a period of 180 days after the effective date of any other registration statement relating to any registration request under this Section 4.2 or relating to any registration statement referred to under Section 4.1 or Section 4.3 hereof; or (2) if (x) the requested registration pursuant to this Section 4.2 involves a registration on a form other than a Form S-3 (or any successor to Form S-3), and (y) the Registration Rights Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public of less than $20,000,000; or (3) if (x) the requested registration pursuant to this Section 4.2 involves an underwritten offering, and (y) the Registration Rights Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public of less than $20,000,000; or (4) if the Registration Rights Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public of less than $5,000,000; or (5) if with respect thereto the managing underwriter, the SEC, the Securities Act, or the form on which the registration statement is to be filed, would require the conduct of a Special Audit, in which case the filing may be delayed until the completion of such Special Audit (and the Company shall, upon 17 request of TPG, Silver Lake or August, as the case may be, use its commercially reasonable efforts to cause such Special Audit to be completed expeditiously and without unreasonable delay); or (6) if the Company is in possession of material non-public information and the Board determines in good faith that disclosure of such information would not be in the best interests of the Company and its stockholders, in which case the filing of the registration statement may be delayed until the earlier of the second Business Day after such conditions shall have ceased to exist and the 120th day after receipt by the Company of the written request from the Majority Stockholder, TPG, Silver Lake or August, as the case may be, to register Registrable Securities under this Section 4.2(a); or (7) if the Closing Shelf Registration Statement is then effective and available for the sale and distribution of such Demand Party's Registrable Securities in the manner specified in such request. (b) The Company will pay all Registration Expenses in connection with each registration of Registrable Securities requested pursuant to this Section 4.2. (c) A registration requested pursuant to this Article IV will not be deemed to have been effected unless the registration statement filed by the Company with the SEC in connection with such registration has been declared effective by the SEC; provided that, if, within 100 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, then such registration will be deemed not to have been effected. (d) If a requested registration pursuant to this Section 4.2 involves an underwritten offering and regardless of whether the Company is registering any securities therein, the Board shall have the right to select the investment banker or bankers and managers to administer the offering, including the lead managing underwriter. (e) If a requested registration pursuant to this Section 4.2 involves an underwritten offering and the managing underwriter advises the Company in writing that, in its opinion, the number of Registrable Securities requested to be included in such registration exceeds the number which can be sold in such offering, so as to be reasonably likely to have an adverse effect on the price, timing or distribution of the securities offered in such offering, then the Company will include in such registration such number of Registrable Securities requested to be included in such registration which, in the opinion of such managing underwriter, can be sold without having the adverse effect referred to above, which number shall be allocated pro rata among all such holders of Registrable Securities requesting to be included in such registration based on the relative number of Registrable Securities then held by each such holder of Registrable Securities. In the event that the number of Registrable Securities and Shares of other holders, in each case entitled to registration rights with respect to such Shares requested to be included in such registration is less than the number which, in the opinion of the managing underwriter, can be sold, the Company may include in such registration securities it proposes to 18 sell for its own account up to the number of securities that, in the opinion of the underwriter, can be sold. 4.3. Form S-3 Registration. Subject to the Transfer restrictions set forth in Sections 3.1 and 3.2, if, at any time during the period commencing as of the end of the Initial Share Holding Period and ending on the ten-year anniversary of the Closing Date, the Company receives from the Majority Stockholder, or from Silver Lake, TPG or August after the Majority Stockholder has distributed Subject Shares pursuant to Section 3.3 (each an "S-3 Initiating Party"), a written request or requests that the Company effect a registration on Form S-3 (or any successor to Form S-3) and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such S-3 Initiating Party or S-3 Initiating Parties, the Company will: (a) promptly give notice of the proposed registration, and any related qualification or compliance, to the Managing Registration Rights Holders (each of which Managing Registration Rights Holder will notify each of the Permitted Transferees of such Managing Registration Rights Holder that holds Registrable Securities); and (b) as expeditiously as reasonably practical, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such S-3 Initiating Party's or S-3 Initiating Parties' Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Registration Rights Holder or Registration Rights Holders joining in such request as are specified in a written request delivered to the Company by the Managing Registration Rights Holders within fourteen (14) days after receipt of such written notice from the Company; provided that the Company shall not be obligated to effect any such registration, qualification or compliance pursuant to this Section 4.3: (i) if Form S-3 (or any successor form) is not available for such offering by the Registration Rights Holders; or (ii) if (x) the requested registration pursuant to this Section 4.3 involves an underwritten offering, and (y) the Registration Rights Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public of less than $20,000,000; or (iii) if the Registration Rights Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public of less than $5,000,000; or (iv) if the Company is in possession of material non-public information and the Board determines in good faith that disclosure of such information would not be in the best interests of the Company and its stockholders, in which case the filing of the registration statement may be delayed until the earlier of the second Business Day after such conditions shall have ceased to exist and the 120th day after receipt by the Company 19 of the written request from the Majority Stockholder, TPG, Silver Lake or August, as the case may be, to register Registrable Securities under this Section 4.3(a); provided, that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period; or (v) if the Company has, within the twelve (12) month period preceding the date of such request, already effected two (2) registration statements for any of the Registration Rights Holders pursuant to this Section 4.3, Section 4.1 or Section 4.2; or (vi) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act; or (vii) if with respect thereto, the managing underwriter, the SEC, the Securities Act, or the form on which the registration statement is to be filed, would require the conduct of a Special Audit, in which case the Company shall have the right to defer the filing of the Form S-3 registration statement until the completion of such Special Audit (and the Company shall, upon the request of the Majority Stockholder, TPG, Silver Lake or August, as the case may be, use its commercially reasonable efforts to cause such Special Audit to be completed expeditiously and without unreasonable delay); or (viii) if the Closing Shelf Registration Statement is then effective and available for the sale and distribution of such Registration Rights Holder's or Registration Rights Holders' Registrable Securities in the manner specified in such request. (c) Subject to the foregoing, the Company shall file a Form S-3 registration statement covering the Registrable Securities and other securities so requested to be registered as expeditiously as reasonably practical after receipt of the request or requests of the Majority Stockholder, TPG, Silver Lake or August, as the case may be. Registrations effected pursuant to this Section 4.3 shall not be counted as demands for registration or registrations effected pursuant to Section 4.2. (d) If a requested registration pursuant to this Section 4.3 involves an underwritten offering and regardless of whether the Company is registering any securities therein, the Board shall have the right to select the investment banker or bankers and managers to administer the offering, including the lead managing underwriter. (e) The Company will pay all Registration Expenses in connection with each registration of Registrable Securities requested pursuant to this Section 4.3. 4.4. Registration Procedures. If and whenever the Company is required to file a registration statement with respect to, or to use its reasonable best efforts to effect or cause the registration of, any Registrable Securities under the Securities Act as provided in this Agreement the Company will as expeditiously as reasonably possible: 20 (a) prepare and, in any event within 120 days after the end of the period within which a request for registration may be given to the Company pursuant to Section 4.2 or Section 4.3, file with the SEC a registration statement on the appropriate form with respect to such Registrable Securities and use its reasonable efforts to cause such registration statement to be declared effective by the SEC; provided, however, that the Company may discontinue any registration of securities as to which it is the initiating party at any time prior to the effective date of the registration statement relating thereto (and, in such event, the Company shall pay the Registration Expenses incurred in connection therewith); provided further, that not less than five (5) Business Days before filing a registration statement or prospectus, or any amendments or supplements thereto, the Company will furnish to counsel for the sellers of Registrable Securities covered by such registration statement copies of all documents proposed to be filed; (b) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period not in excess of 100 days (unless such registration statement relates to an underwritten Public Offering, in which event the registration statement shall not be required to remain effective at the request of the Registration Rights Holders for a period of in excess of 45 days) and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided that not less than five (5) Business Days before filing a registration statement or prospectus, or any amendments or supplements thereto, the Company will furnish to counsel for the sellers of Registrable Securities covered by such registration statement copies of all documents proposed to be filed; (c) furnish to each Managing Registration Rights Holders of each seller of such Registrable Securities such number of copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits filed therewith, including any documents incorporated by reference), such number of copies of the prospectus included in such registration statement (including each preliminary prospectus and summary prospectus), in conformity with the requirements of the Securities Act, and such other documents as such seller may reasonably request (through a Managing Registration Rights Holder) in order to facilitate the disposition of the Registrable Securities by such seller; (d) use its reasonable efforts to register or qualify within the United States such Registrable Securities covered by such registration in such United States jurisdictions as each seller shall reasonably request, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition of the Registrable Securities owned by such seller in such jurisdictions, except that the Company shall not for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction where, but for the requirements of this subsection (d), it would not be obligated to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction; (e) use its reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental 21 agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities; (f) notify each Managing Registration Rights Holder of each seller of any such Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within the appropriate period mentioned in Section 4.4(b), of the Company's becoming aware that the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and at the request of any such Managing Registration Rights Holder, prepare and furnish to such Managing Registration Rights Holder a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include 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 in the light of the circumstances then existing; (g) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to its security holders, as soon as reasonably practicable (but not more than 15 months) after the effective date of the registration statement, an earnings statement which shall satisfy the provisions of Section 11(a) of the Securities Act; (h) (i) use its reasonable best efforts to list such Registrable Securities on any securities exchange on which the Shares are then listed if such Registrable Securities are not already so listed and if such listing is then permitted under the rules of such exchange; and (ii) use its reasonable efforts to provide a transfer agent and registrar for such Registrable Securities covered by such registration statement not later than the effective date of such registration statement; (i) enter into such customary agreements (including an underwriting agreement in customary form), which may include indemnification provisions in favor of underwriters and other Persons in addition to, or in substitution for the indemnification provisions hereof, and take such other actions as sellers of a majority of shares of such Registrable Securities included in such registration statement or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities; (j) obtain a "cold comfort" letter or letters from the Company's independent public auditors in customary form and covering matters of the type customarily covered by "cold comfort" letters as the seller or sellers of a majority of shares of such Registrable Securities included in such registration statement shall reasonably request; (k) make available for inspection by any Managing Registration Rights Holder of any seller of such Registrable Securities covered by such registration statement, by any underwriter participating in any disposition to be effected pursuant to such registration statement and by any attorney, accountant or other agent retained by any such seller or any such underwriter, all pertinent financial and other records, pertinent corporate documents and 22 properties of the Company, and cause all of the Company's officers, Directors and employees to supply all information reasonably requested by any such Managing Registration Rights Holder, underwriter, attorney, accountant or agent in connection with such registration statement; (l) notify counsel for the holders of Registrable Securities included in such registration statement and the managing underwriter or agent, immediately, and confirm the notice in writing (i) when the registration statement, or any post-effective amendment to the registration statement, shall have been declared effective by the SEC, or any supplement to the prospectus or any amendment to the prospectus shall have been filed, (ii) of the receipt of any comments from the SEC, (iii) of any request of the SEC to amend the registration statement or amend or supplement the prospectus or for additional information, and (iv) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the registration statement for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes; (m) use its reasonable best efforts to prevent the issuance of any stop order suspending the effectiveness of the registration statement or of any order preventing or suspending the use of any preliminary prospectus and, if any such order is issued, to obtain the withdrawal of any such order at the earliest possible moment; (n) if requested by the managing underwriter or agent or any Managing Registration Rights Holder of any holder of Registrable Securities covered by the registration statement, promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or agent or such Managing Registration Rights Holder reasonably requests to be included therein, including, with respect to the number of Registrable Securities being sold by such Managing Registration Rights Holder or its Permitted Transferees to such underwriter or agent, the purchase price being paid therefor by such underwriter or agent and with respect to any other terms of the underwritten offering of the Registrable Securities to be sold in such offering (unless the Company, after consultation with counsel, reasonably concludes that such information would be materially misleading to prospective buyers in the Public Offering); and make all required filings of such prospectus supplement or post-effective amendment as soon as practicable after being notified of the matters incorporated in such prospectus supplement or post-effective amendment; (o) cooperate with the Managing Registration Rights Holders of the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legends) representing securities to be sold under the registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or agent, if any, or the Managing Registration Rights Holders may request; (p) if requested by the applicable parties, obtain for delivery to the Managing Registration Rights Holders of the holders of Registrable Securities being registered and to the underwriter or agent an opinion or opinions from counsel for the Company in customary form and in form, substance and scope reasonably satisfactory to such Managing Registration Rights Holders, underwriters or agents and their counsel; 23 (q) cooperate with each Managing Registration Rights Holder of each seller of Registrable Securities and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the NASD; and (r) with respect to underwritten Public Offerings under Section 4.2, act in good faith to facilitate, cooperate with and participate in customary selling efforts related thereto and provide reasonable assistance in marketing activities with respect to the distribution of such Public Offering, which may include, in the case of an underwritten Public Offering which proposes to sell Registrable Securities to the public at a price of $100 million or more, causing the senior executives of the Company (subject to the reasonable availability of such executives) to participate in customary "road show" presentations as reasonably requested by the managing underwriter in such Public Offering. 4.5. Other Registration-Related Matters. (a) The Company may require any Person that is selling Subject Shares in a Public Offering pursuant to Sections 4.1, 4.2 or 4.3 to furnish to the Company in writing such information regarding such Person and pertinent to the disclosure requirements relating to the registration and the distribution of the Registrable Securities which are included in such Public Offering as the Company may from time to time reasonably request in writing. (b) Each Registration Rights Holder agrees, severally and not jointly, that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 4.4(f), it will forthwith discontinue disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until its receipt of the copies of the amended or supplemented prospectus contemplated by Section 4.4(f) and, if so directed by the Company (through its Managing Registration Rights Holder), each Registration Rights Holder will deliver to the Company (through its Managing Registration Rights Holder) (at the Company's expense) all copies, other than permanent file copies then in their possession, of the prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company gives any such notice, the period for which the Company will be required to keep the registration statement effective will be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 4.4(f) to and including the date when each seller of Registrable Securities covered by such registration statement has received the copies of the supplemented or amended prospectus contemplated by Section 4.4(f). (c) To the extent not already subject to the restrictions in Article III of this Agreement, each holder of Registrable Securities will, in connection with an underwritten Public Offering of the Company's securities, upon the request of the Company or of the underwriters managing any underwritten offering of the Company's securities, agree in writing not to effect any sale, disposition or distribution of Registrable Securities (other than those included in the Public Offering) without the prior written consent of the managing underwriter for such period of time commencing 30 days before and ending 90 days (or such earlier date as the managing underwriter shall agree) after the effective date of such registration; provided that (i) such registration was effected pursuant to Sections 4.2 or 4.3 hereof, or (ii) such holder of Registrable 24 Securities was offered the opportunity pursuant to Section 4.1 to have such holder's Registrable Securities registered by the Company in such registration and that the Company has not limited the number of such holder's Registrable Shares to be included in such registration pursuant to Section 4.1(c) hereof. No Stockholder shall be released from such lock-up period by the managing underwriter unless all of the Stockholders are so released. 4.6. Indemnification. (a) In the event of any registration of any securities of the Company under the Securities Act pursuant to Sections 4.1, 4.2 or 4.3, the Company hereby indemnifies and agrees to hold harmless, to the extent permitted by law, the sellers of any Registrable Securities covered by such registration statement (each a "Holder"), each Affiliate of such Holder and their respective directors and officers, members or general and limited partners (and the directors, officers, employees, affiliates and Controlling Persons of any of the foregoing), each other Person who participates as an underwriter in the offering or sale of such securities and each other Person, if any, who Controls such Holder or any such underwriter within the meaning of the Securities Act (collectively, the "Indemnified Parties"), against any and all losses, claims, damages or liabilities, joint or several, and expenses to which such Indemnified Party may become subject under the Securities Act, common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof, whether or not such Indemnified Party is a party thereto) arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in any registration statement under which such securities were registered under the Securities Act, any preliminary, final or summary prospectus contained therein, or any amendment or supplement thereto, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances when they were made, and the Company will reimburse such Indemnified Party for any legal or other expenses reasonably incurred by it in connection with investigating or defending any such loss, claim, liability, action or proceeding; provided that the Company will not be liable to any Indemnified Party in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, in any such preliminary, final or summary prospectus, or any amendment or supplement thereto in reliance upon and in conformity with written information with respect to such Indemnified Party furnished to the Company by such Indemnified Party expressly for use in the preparation thereof, nor shall the Company be liable to any Indemnified Party for any amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Company (which consent will not be unreasonably withheld or delayed). Such indemnity will remain in full force and effect regardless of any investigation made by or on behalf of such Holder or any Indemnified Party and will survive the Transfer of such securities by such Holder. (b) The Company may require, as a condition to including any Registrable Securities in any registration statement filed in accordance with Sections 4.1, 4.2 or 4.3 that the Company shall have received an undertaking reasonably satisfactory to it from the Holder of such Registrable Securities or any prospective underwriter to indemnify and hold harmless (in the same manner and to the same extent as set forth in Section 4.6(a)) the Company, all other Holders or any prospective underwriter, as the case may be, and any of their respective 25 Affiliates, directors, officers and Controlling Persons, with respect to any untrue statement in or omission from such registration statement, any preliminary, final or summary prospectus contained therein, or any amendment or supplement, if such untrue statement or omission was made in reliance upon and in conformity with written information with respect to such Holder or underwriter furnished to the Company by such Holder or underwriter expressly for use in the preparation of such registration statement, preliminary, final or summary prospectus or amendment or supplement, or a document incorporated by reference into any of the foregoing. Such indemnity will remain in full force and effect regardless of any investigation made by or on behalf of the Company or any of the Holders, or any of their respective affiliates, directors, officers or Controlling Persons and will survive the Transfer of such securities by such Holder. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the net proceeds actually received by such Holder upon the sale of the Registrable Securities giving rise to such indemnification obligation. (c) Promptly after receipt by an Indemnified Party hereunder of written notice of the commencement of any action or proceeding with respect to which a claim for indemnification may be made pursuant to this Section 4.6, such Indemnified Party will, if a claim in respect thereof is to be made against an indemnifying party, give written notice to the latter of the commencement of such action; provided that the failure of the Indemnified Party to give notice as provided herein will not relieve the indemnifying party of its obligations under Section 4.6(a) or 4.6(b), except to the extent that the indemnifying party is actually prejudiced by such failure to give notice. In case any such action is brought against an Indemnified Party, unless in such Indemnified Party's reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist in respect of such claim, the indemnifying party will be entitled to participate in and to assume the defense thereof, jointly with any other indemnifying party similarly notified to the extent that it may wish, with counsel reasonably satisfactory to such Indemnified Party, and after notice from the indemnifying party to such Indemnified Party of its election so to assume the defense thereof, the indemnifying party will not be liable to such Indemnified Party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof other than reasonable costs of investigation. If, in such Indemnified Party's reasonable judgment, having common counsel would result in a conflict of interest between the interests of such indemnified and indemnifying parties, then such Indemnified Party may employ separate counsel reasonably acceptable to the indemnifying party to represent or defend such Indemnified Party in such action, it being understood, however, that the indemnifying party will not be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for all such Indemnified Parties (and not more than one separate firm of local counsel at any time for all such Indemnified Parties) in such action. No indemnifying party will consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect of such claim or litigation. (d) If the indemnification provided for hereunder from the indemnifying party is unavailable to an Indemnified Party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to herein, then the indemnifying party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and Indemnified Parties in 26 connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and Indemnified Parties shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or Indemnified Parties, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party under this Section 4.6(d) as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the net proceeds actually received by such Holder upon the sale of the Registrable Securities giving rise to such contribution obligation. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 4.6(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. (e) Indemnification similar to that specified in this Section 4.6 (with appropriate modifications) shall be given by the Company and each seller of Registrable Securities with respect to any required registration or other qualification of securities under any law or with any governmental entity other than as required by the Securities Act. (f) The obligations of the parties under this Section 4.6 will be in addition to any liability which any party may otherwise have to any other party. 4.7. S-3 Eligibility. The Company currently meets the requirements for registration on Form S-3 under the Securities Act, and the Company shall take all reasonable efforts to ensure that the Company meets these requirements on the initial filing date and effective date of the registration statements filed pursuant to Section 4.3 of this Agreement. 4.8. Reports under the Exchange Act. With a view to making available to the Registration Rights Holders the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit a Registration Rights Holders to sell Registrable Securities to the public without registration, the Company agrees to: (a) make and keep public information available, as those terms are understood and defined in Rule 144, at all times; 27 (b) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act; and (c) furnish to any Managing Registration Rights Holder, so long as the Managing Registration Rights Holder or its Permitted Transferees owns any Registrable Securities, upon request (i) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company, and (ii) such other information as may be reasonably requested in availing any Registration Rights Holder of any rule or regulation of the SEC which permits the selling of any such securities without registration. 4.9. Assignment of Registration Rights. The rights to cause the Company to register Registrable Securities pursuant to this Agreement may not be assigned by any Registration Rights Holder; provided, that if the Company is not eligible to use Form S-3 and the Majority Stockholder has exhausted its right to request a Demand Registration under Section 4.2(a)(A), then any of Silver Lake, TPG and August shall have the right to assign its right to request one Demand Registration under Section 4.2(a)(B), (C) or (D), as the case may be, to the Majority Stockholder. 4.10. Closing Shelf Registration Statement (a) In the event that any of the Shares issued in the Mergers are determined to have been issued pursuant to a private placement exemption from registration pursuant to Section 4(2) of, and/or Rule 506, under the Securities Act, then as promptly as practicable after such event and in compliance with applicable securities laws, the Company will, with respect to such Shares issued pursuant to the Mergers, prepare and file a registration statement on Form S-3 (the "Closing Shelf Registration Statement") with the SEC pursuant to Rule 415 of the Securities Act. The Company shall use its commercially reasonable efforts to cause the Closing Shelf Registration Statement to become effective no later than the last day of the Initial Share Holding Period. Upon effectiveness, the Company shall use its best efforts to keep the registration statement continuously in effect for two calendar years thereafter subject to extension for any suspension of sales as described below. (b) The Company shall be entitled, from time to time, by providing written notice to the Registration Rights Holders who elected to participate in the Closing Shelf Registration Statement, to require such Registration Rights Holders to suspend the use of such prospectus for sales of Registrable Securities under the Closing Shelf Registration Statement for a reasonable period of time (a "Suspension Period") if the Company shall determine that is in possession of material non-public information and the Board determines in good faith that disclosure of such information would not be in the best interests of the Company and its stockholders; provided, that all Suspension Periods that occur (i) during any ninety (90) day period shall not exceed an aggregate of thirty (30) days and (ii) during any one-year period shall not exceed an aggregate of seventy (70) days. Immediately upon receipt of such notice, the Registration Rights Holders covered by the Closing Shelf Registration Statement shall suspend the use of the prospectus until the requisite changes to the prospectus have been made. Any Suspension Period shall terminate at such time as the public disclosure of such information is made, subject to the maximums set forth in the first sentence hereof. After the expiration of any 28 Suspension Period and without any further request from a Registration Rights Holder, the Company shall as promptly as reasonably practical prepare a post-effective amendment or supplement to the Closing Shelf Registration Statement or the prospectus, or any document incorporated therein by reference, or file any other required document so that, as thereafter delivered to purchasers of the Registrable Securities included therein, the prospectus will not include any untrue statement of material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. ARTICLE V. BOARD REPRESENTATION 5.1. Board Representation. (a) Effective as of the Closing Date, subject to applicable law, the Majority Stockholder may designate one Person to be proposed by the Board to the Company's stockholders to be elected a Director; provided that such designee must be reasonably satisfactory to the Company (such determination to be made by the Board after receiving a recommendation from the nominating committee of the Company; provided, that for the avoidance of doubt, any Person who is a managing director of Silver Lake Partners, L.P., a Delaware limited partnership, as of the date hereof, shall be deemed to be satisfactory to the Company and the Board for such purposes unless (i) any such managing director does not meet the criteria for directors set forth in the Nasdaq National Market rules, any corporate governance guidelines or policies adopted by the Board or any committee thereof, or any other applicable law and regulation, or (ii) the Company's nominating committee in good faith makes a determination that the appointment of any such managing director to the Board would be materially disadvantageous to the Company (the "Stockholder Representative"). (b) The Company shall take all necessary action, subject to applicable law, to cause the size of the Board to be increased to ten (10) members from eight (8) members, effective as of the Closing Date, and the Company shall use reasonable best efforts, subject to applicable law, to cause the vacancies to be filled by (i) David J. Roux (or such other individual as may be designated in writing by the Majority Stockholder at least forty-five (45) days prior to the filling of such vacancy and in accordance with Section 5.1(a) hereof) to be the initial Stockholder Representative, and (ii) one (1) individual who qualifies as an "independent" director of Borg pursuant to proposed and applicable laws and regulations. The Company agrees to consult with the Majority Stockholder in good faith before making any other changes to the size of the Board. (c) At the expiration of any Stockholder Representative's designated term as director, the Board will recommend a vote by the Company's stockholders in favor of the reelection of such Stockholder Representative (or the election of any replacement designated by the Majority Stockholder in accordance with Section 5.1(a) hereof). If any Stockholder Representative or any successor thereto ceases to be a director of the Company at any time prior to the expiration of such Stockholder Representative's designated term as director, whether as a result of death, resignation, retirement, disqualification, removal from office or other cause, the Board will appoint a Stockholder Representative to fill the vacancy so created and the Board will 29 recommend a vote by the Company's stockholders in favor of the ratification of the appointment of such Person. (d) Notwithstanding anything in this Agreement to the contrary, the Board and all of the committees of the Board will operate in such a way to permit the Company to comply with applicable law and maintain its listings on the Nasdaq National Market and Euronext, as applicable. (e) The Majority Stockholder shall have the right to assign its rights under this Article V to Silver Lake in the event of a distribution of the Subject Shares pursuant to Section 3.3 hereof. ARTICLE VI. REPRESENTATIONS AND WARRANTIES 6.1. Representations and Warranties of Stockholders. Each Stockholder hereby represents and warrants, severally and not jointly, to the Company as follows: (a) such Stockholder has the legal capacity to execute and deliver this Agreement and to consummate the transactions contemplated hereby; (b) in the case of any Stockholder that is a corporation, limited partnership or limited liability company, such Stockholder is an entity duly organized and validly existing under the laws of the jurisdiction in which it is incorporated or constituted, and each such Stockholder has all requisite power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, and has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement; (c) this Agreement has been validly executed and delivered by such Stockholder and constitutes the legal, valid and binding obligation of such Stockholder, enforceable against such Stockholder in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors' rights generally, and (ii) the availability of the remedy of specific performance or injunctive or other forms of equitable relief may be subject to equitable defenses and would be subject to the discretion of the court before which any proceeding therefor may be brought; (d) neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will result in a violation of, or a default under, or conflict with, any contract, trust, commitment, agreement, understanding, arrangement or restriction of any kind to which such Stockholder is a party or by which such Stockholder's assets are bound. The consummation of the transactions contemplated hereby will not violate, or require any consent, approval, or notice under, any provision of any judgment, order, decree, statute, law, rule or regulation applicable to such Stockholder; and 30 (e) such Stockholder acknowledges that the issuance of the Subject Shares is expected to be effected pursuant to a registration statement on Form S-4, and the resale of the Subject Shares may be subject to the restrictions set forth in Rule 145 under the Securities Act unless such Subject Shares are otherwise transferred pursuant to an effective registration statement under the Securities Act or an appropriate exemption from registration. 6.2. Representations and Warranties of Company. The Company hereby represents and warrants to the Stockholders as follows: (a) the Company is a societe anonyme duly organized and validly existing under the laws of France and has all requisite corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, and has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement; (b) this Agreement has been duly authorized, executed and delivered by the Company, and constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors' rights generally and (ii) the availability of the remedy of specific performance or injunctive or other forms of equitable relief may be subject to equitable defenses and would be subject to the discretion of the court before which any proceeding therefor may be brought; and (c) neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will result in a violation of, or a default under, or conflict with, any contract, trust, commitment, agreement, understanding, arrangement or restriction of any kind to which the Company is a party or by which the Company's assets are bound. The consummation of the transactions contemplated hereby will not violate, or require any consent, approval, or notice under, any provision of any judgment, order, decree, statute, law, rule or regulation applicable to the Company. ARTICLE VII. MISCELLANEOUS 7.1. Effective Date. This Agreement shall become effective upon consummation of the Mergers as contemplated by the Merger Agreement and prior to such time shall have no force or effect. If, the Merger Agreement is terminated prior to the Closing Date, this Agreement shall terminate without any further action of the parties hereto and no party shall have any liability to the other with the respect to the provisions contained herein. 7.2. Termination. All rights, remedies, obligations and liabilities of any party under (i) Articles II, III and V of this Agreement shall terminate automatically at such time the Stockholders collectively 31 Beneficially Own less than 10% of the then-outstanding Shares, and (ii) Article IV of this Agreement shall terminate on the earlier of (x) the tenth-year anniversary of the Closing Date, or (y) such time that all Registrable Securities held by the Registration Rights Holders cease to be Registrable Securities; provided, however, that Section 4.6 hereof shall survive any termination of this Agreement. 7.3. Notices. All notices, consents, requests, claims, demands and other communications hereunder shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by courier service, by cable, by telecopy, by telegram, by telex or registered or certified mail (postage prepaid, return receipt requested) as follows (or at such other address for a party as shall be specified in a notice given in accordance with this Section 7.3): (a) if to the Company: Business Objects, S.A. c/o Business Objects Americas, Inc. 3030 Orchard Parkway San Jose, CA 95134 Attention: General Counsel Telecopy: (408) 953-6001 with a copy to: Skadden, Arps, Slate, Meagher & Flom LLP 525 University Avenue Palo Alto, CA 94301 Attention: Marc Packer, Esq. Kenton J. King, Esq. Telecopy: (650) 470-4570 (b) if to Silver Lake: Silver Lake Partners, L.P. 2725 Sand Hill Road Suite 150 Menlo Park, CA 94025 Attention: David Roux Telecopy: (650) 233-8125 32 with a copy to: Simpson Thacher & Bartlett 3330 Hillview Avenue Palo Alto, CA 94304 Attention: Richard Capelouto, Esq. Kirsten Jensen, Esq. Telecopy: (650) 251-5002 (c) if to TPG: SAC Investments, L.P. c/o Texas Pacific Group 301 Commerce Street Suite 3300 Fort Worth, TX 76102 Attention: Richard A. Ekleberry Telecopy: (817) 871-4080 with a copy to: Cleary, Gottlieb, Steen & Hamilton One Liberty Plaza New York, NY 10006 Attention: Paul J. Shim, Esq. Telecopy: (212) 225-3999 (d) if to August: August Capital 2480 Sand Hill Road Suite 101 Menlo Park, CA 94025 Attention: Mark Wilson Telecopy: (650) 234-9910 with a copy to: Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP 155 Constitution Drive Menlo Park, CA 94025 Attention: Steven R. Franklin, Esq. Telecopy: (650) 321-2800 (e) if to J.P. Morgan: 33 J.P. Morgan Partners, L.L.C. 50 California Street 29th Floor San Francisco, CA 94111 Attention: Shahan Soghikian Telecopy: (415) 591-1205 with copies to: J.P. Morgan Partners, L.L.C. Official Notices Clerk 1221 Avenue of the Americas New York, NY 10020 Telecopy: (212) 899-3401 -and- Latham & Watkins 135 Commonwealth Drive Menlo Park, CA 94025 Attention: Anthony J. Richmond, Esq. Telecopy: (650) 463-2600 (f) if to GS: GS Capital Partners III, L.P. 85 Broad Street, 10th Floor New York, NY 10004 Attention: Anne Musella Telecopy: (212) 357-5505 with a copy to: Sullivan & Cromwell 1870 Embarcadero Road Palo Alto, CA 94303 Attention: Matthew G. Hurd, Esq. Telecopy: (650) 461-5700 (g) if to Staenberg: Staenberg Venture Partners 2000 First Avenue, Suite 1001 Seattle, WA 98121 Attention: John Chase Telecopy: (206) 770-0117 34 with a copy to: Dorsey & Whitney LLP U.S. Bank Centre 1420 Fifth Avenue, Suite 3400 Seattle, WA 98101 Attention: Randall L. Price Telecopy: (206) 903-8820 (h) if to Integral: Integral Capital Partners 3000 Sand Hill Road Building 3, Suite 240 Menlo Park, CA 94025 Attention: Pamela Hagenah Telecopy: 650-233-0366 (i) if to Majority Stockholder: New SAC c/o Silver Lake Partners, L.P. 2725 Sand Hill Road Building C, Suite 150 Menlo Park, CA 94025 Attention: David Roux Telecopy: (650) 233-8125 with copies to: Simpson Thacher & Bartlett 3330 Hillview Avenue Palo Alto, CA 94304 Attention: Richard Capelouto, Esq. Kirsten Jensen, Esq. Telecopy: (650) 251-5002 -and- Cleary, Gottlieb, Steen & Hamilton One Liberty Plaza New York, NY 10006 Attention: Paul J. Shim, Esq. Telecopy: (212) 225-3999 35 7.4. Further Assurances. The parties hereto will sign such further documents, cause such meetings to be held, resolutions passed, exercise their votes and do and perform and cause to be done such further acts and things as may be necessary in order to give full effect to this Agreement and every provision hereof. 7.5. Assignment. This Agreement will inure to the benefit of and be binding on the parties hereto and their respective successors and permitted assigns. Except as specifically provided herein, this Agreement may not be assigned by any party hereto without the express prior written consent of the other parties, and any attempted assignment, without such consents, will be null and void. 7.6. Amendment; Waiver. This Agreement may be amended, supplemented or otherwise modified only by a written instrument executed by the parties hereto. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and executed by the party so waiving. Except as provided in the preceding sentence, no action taken pursuant to this Agreement, including without limitation, any investigation by or on behalf of any party, will be deemed to constitute a waiver by the party taking such action of compliance with any covenants or agreements contained herein. The waiver by any party hereto of a breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent breach. 7.7. Third Parties. Except as otherwise set forth herein, this Agreement does not create any rights, claims or benefits inuring to any Person that is not a party hereto nor create or establish any third party beneficiary hereto. 7.8. Governing Law. This Agreement will be governed by, and construed in accordance with, the laws of the State of Delaware. 7.9. Binding Arbitration. Any controversy, dispute or claim arising out of, in connection with, or in relation to, the construction, performance, or breach of this Agreement shall be adjudicated by arbitration conducted in accordance with the existing rules for commercial arbitration of the American Arbitration Association, or any successor organization in New York or California (the "AAA"), as determined by the party initiating the arbitration. The demand for arbitration shall be delivered in accordance with the notice provisions of this Agreement. Arbitration hereunder shall be conducted by a single arbitrator selected jointly by the parties hereto. If within thirty (30) days after a demand for arbitration is made, the parties hereto are unable to agree on a single arbitrator, three arbitrators shall be appointed. Each party shall select one arbitrator and those two arbitrators shall then select within thirty (30) days a third neutral arbitrator. If the arbitrators 36 selected by the parties cannot agree on the third arbitrator, they shall discuss the qualifications of such third arbitrator with the AAA prior to selection of such arbitrator, which selection shall be in accordance with the existing rules of the AAA. If an arbitrator cannot continue to serve, a successor to an arbitrator selected by the parties shall be also selected by the same party, and a successor to a neutral arbitrator shall be selected as specified above. A full rehearing will be held only if the neutral arbitrator is unable to continue to serve or if the remaining arbitrators unanimously agree that such a rehearing is appropriate. Any discovery in connection with arbitration hereunder shall be limited to information directly relevant to the controversy or claim in arbitration. Judgment upon any arbitration award rendered may be entered in any court of competent jurisdiction. EACH PARTY HERETO UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING RELATING TO THIS AGREEMENT. 7.10. Specific Performance. Without limiting or waiving in any respect any rights or remedies of the parties hereto under this Agreement now or hereinafter existing at law or in equity or by statute, each of the parties hereto will be entitled to seek specific performance of the obligations to be performed by the other in accordance with the provisions of this Agreement, including during such time prior to the final and binding decision in any arbitration contemplated by Section 7.9. 7.11. Entire Agreement. This Agreement sets forth the entire understanding of the parties hereto with respect to the subject matter hereof. 7.12. Titles and Headings. The section headings contained in this Agreement are for reference purposes only and will not affect the meaning or interpretation of this Agreement. 7.13. Severability. If any provision of this Agreement is declared by any court of competent jurisdiction to be illegal, void or unenforceable, all other provisions of this Agreement will not be affected and will remain in full force and effect. 7.14. Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original and all of which together will be deemed to be one and the same instrument. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 37 IN WITNESS WHEREOF, each of the undersigned has executed this Agreement or caused this Agreement to be executed on its behalf as of the date first written above. BUSINESS OBJECTS S.A. By: /s/ Bernard Liautaud ------------------------------ Name: Bernard Liautaud Title: Chairman of the Board and Chief Executive Officer NEW SAC, as Majority Stockholder By: /s/ William L. Hudson ------------------------------ Name: William L. Hudson Title: Executive Vice President, General Counsel and Corporate Secretary SILVER LAKE TECHNOLOGY INVESTORS CAYMAN, L.P. By: Silver Lake (Offshore) AIV GP Ltd., its General Partner By: /s/ David Roux ------------------------------ Name: David Roux Title: Director SILVER LAKE INVESTORS CAYMAN, L.P. By: Silver Lake Technology Associates Cayman, L.P., its General Partner By: Silver Lake (Offshore) AIV GP Ltd., its General Partner By: /s/ David Roux ------------------------------ Name: David Roux Title: Director SILVER LAKE PARTNERS CAYMAN, L.P. By: Silver Lake Technology Associates Cayman, L.P., its General Partner By: Silver Lake (Offshore) AIV GP Ltd., its General Partner By: /s/ David Roux ------------------------------ Name: David Roux Title: Director SAC INVESTMENTS, L.P. By: TPG SAC GenPar III, L.P., its General Partner By: TPG SAC Advisors III Corp., its General Partner By: /s/ Richard A. Ekleberry ------------------------------ Name: Richard A. Ekleberry Title: Vice President AUGUST CAPITAL III, L.P. for itself and as nominee for August Capital Strategic Partners IV, L.P. August Capital III Founders Fund, L.P. and certain individuals thereof By: August Capital Management III, L.L.C., its general partner By: /s/ Mark G. Wilson ------------------------------ Name: Mark G. Wilson Title: Member J.P. MORGAN PARTNERS (BHCA), L.P. By: JPMP MASTER FUND MANAGER, its General Partner By: JPMP CAPITAL CORP, its General Partner By: /s/ Andrew W. Kahn ------------------------------ Name: Andrew W. Kahn Title: Managing Director GS CAPITAL PARTNERS III, L.P. By: GS Advisors III, L.L.C., its General Partner By: /s/ Katherine B. Enquist ------------------------------ Name: Katherine B. Enquist Title: Vice President GS CAPITAL PARTNERS III OFFSHORE, L.P. By: GS Advisors III, L.L.C., its General Partner By: /s/ Katherine B. Enquist ------------------------------ Name: Katherine B. Enquist Title: Vice President GOLDMAN, SACHS & CO. VERWALTUNGS GmbH By: /s/ Katherine B. Enquist ------------------------------ Name: Katherine B. Enquist Title: Attorney-in-Fact STONE STREET FUND 2000 L.P. By: Stone Street 2000, L.L.C., its General Partner By: /s/ Katherine B. Enquist ------------------------------ Name: Katherine B. Enquist Title: Vice President BRIDGE STREET SPECIAL OPPORTUNITIES FUND 2000, L.P. By: Bridge Street Special Opportunities Fund 2000, L.L.C., its General Partner By: /s/ Katherine B. Enquist ------------------------------ Name: Katherine B. Enquist Title: Vice President STAENBERG VENTURE PARTNERS II, L.P. By: /s/ Jon Staenberg ------------------------------ Name: Jon Staenberg Title: Managing Director STAENBERG SEAGATE PARTNERS, LLC By: /s/ Jon Staenberg ------------------------------ Name: Jon Staenberg Title: Manager INTEGRAL CAPITAL PARTNERS V, L.P. By: Integral Capital Management V, LLC, its General Partner By: /s/ Roger McNamee ------------------------------ Name: Roger McNamee Title: Manager INTEGRAL CAPITAL PARTNERS V SIDE FUND, L.P. By: ICP Management V, LLC, its General Partner By: /s/ Roger McNamee ------------------------------ Name: Roger McNamee Title: Manager EXHIBIT A ASSUMPTION AGREEMENT In consideration of the transfer to (him)(her)(it) of [___] [ordinary shares, nominal value EUR 0.10 per share] [American depositary shares, each representing one ordinary share], of Business Objects, S.A. (the "Company"), [_______] (the "Additional Stockholder"), and the Company agree that, as of the date written below, Additional Stockholder shall become a party as a Stockholder to that certain Stockholders Agreement, dated as of July 18, 2003, by and among the Company, New SAC, Silver Lake Technology Investors Cayman, L.P., Silver Lake Investors Cayman, L.P., Silver Lake Partners Cayman, L.P., SAC Investments, L.P., August Capital III, L.P., J.P. Morgan Partners (BHCA), L.P., GS Capital Partners III, L.P., GS Capital Partners III Offshore, L.P., Goldman, Sachs & Co. Verwaltungs GmbH, Stone Street Fund 2000 L.P., Bridge Street Special Opportunities Fund 2000, L.P., Staenberg Venture Partners II, L.P., Staenberg Seagate Partners, LLC, Integral Capital Partners V, L.P., and Integral Capital Partners V Side Fund, L.P. (the "Stockholders Agreement"), and shall be bound by all of the terms and provisions of the Stockholders Agreement, as such person or entity was an original party thereto and was included in the definition of "Stockholder" as used therein; provided, that any Additional Stockholder (other than a Permitted Transferee (as defined in the Stockholders Agreement) who shall have rights under Section 4.1 of the Stockholders Agreement) shall not be entitled to any rights under Articles IV or V of the Stockholders Agreement. Executed as of the [__] day of [______], [__] [_______________________] By: Title: EX-2.3 5 f91683exv2w3.txt EXHIBIT 2.3 EXHIBIT 2.3 EXECUTION COPY SUPPORT AGREEMENT This SUPPORT AGREEMENT (this "Agreement"), is entered into as of July 18, 2003 by and among Business Objects S.A., a societe anonyme organized under the laws of the Republic of France ("Parent"), Borg Merger Sub I, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub 1"), Borg Merger Sub II, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub 2"), Borg Merger Sub III, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub 3" and, collectively with Merger Sub 1 and Merger Sub 2, "Merger Subs"), and New SAC ("Majority Stockholder"). Capitalized terms used in this Agreement but not otherwise defined shall have the meanings ascribed to them in the Merger Agreement (defined below). RECITALS WHEREAS, concurrently with the execution and delivery of this Agreement, Parent, Merger Subs, Seagate Software (Cayman) Holdings, an exempted company incorporated in the Cayman Islands with limited liability (together with any successor by deregistration and domestication, "HoldCo") and Crystal Decisions, Inc., a Delaware corporation (the "Company"), are entering into an Agreement and Plan of Merger, dated as of July 18, 2003 (the "Merger Agreement") which provides for a transaction pursuant to which (1) Merger Sub 1 will merge with and into HoldCo (the "HoldCo Merger"), (2) immediately following the HoldCo Merger, the surviving corporation of the HoldCo Merger will merge with and into Merger Sub 2 (the "Second HoldCo Merger" and collectively with the HoldCo Merger, the "Holdco Mergers"), (3) immediately following the Second HoldCo Merger, Merger Sub 3 will merge with and into the Company (the "Company Merger"), and (4) immediately following the Company Merger, the surviving corporation of the Company Merger will merge with and into the surviving corporation of the Second HoldCo Merger, all on the terms and subject to the conditions set forth in the Merger Agreement; WHEREAS, as of the date hereof, Majority Stockholder beneficially owns (as such term is defined pursuant to Rule 13d-3(a) promulgated under the Securities Exchange Act of 1934, as amended), 2,000 shares of capital stock of HoldCo, par value $1.00 per share (the "HoldCo Shares"), representing 100% of the current voting power of HoldCo; and WHEREAS, as a condition and inducement to Parent's and Merger Subs' willingness to enter into the Merger Agreement, Majority Stockholder is entering into this Agreement to cause HoldCo to (i) deregister pursuant to Section 226 of the Companies Law (2003 Revision) of the Cayman Islands as an exempted limited liability company incorporated under the Companies Law (2003 Revision) and be domesticated pursuant to Section 388 of the Delaware General Corporation Law as a Delaware corporation (the "Deregistration and Domestication") and (ii) immediately after the Deregistration and Domestication (x) execute and deliver the written consent of stockholders attached to this Agreement as Exhibit A (the "Written Consent") and (y) deliver to Parent the irrevocable proxy with respect to the all of the outstanding voting capital stock of HoldCo after the Deregistration and Domestication (the "Subject Shares") attached to this Agreement as Exhibit B (the "Proxy"). NOW, THEREFORE, in consideration of the foregoing and the covenants, agreements, representations and warranties set forth herein, intending to be legally bound, the parties agree as follows: Section 1. Deregistration and Domestication. Immediately following execution of the Merger Agreement, but in any event no later than seven (7) days after the date of the Merger Agreement, Majority Stockholder will cause HoldCo to deregister pursuant to Section 226 of the Companies Law (2003 Revision) of the Cayman Islands as an exempted limited liability company incorporated under the Companies Law (2003 Revision) and be domesticated pursuant to Section 388 of the Delaware General Corporation Law as a Delaware corporation. Section 2. Written Consent. Majority Stockholder agrees to execute and deliver the Written Consent immediately following the completion of the Deregistration and Domestication. Section 3. Voting of Subject Shares. At every meeting of HoldCo's shareholders and at every adjournment thereof, and on every action or approval by written consent of HoldCo's shareholders, Majority Stockholder agrees to vote, or cause to be voted, to the extent not voted by Parent as appointed by the Proxy, all of the HoldCo Shares or the Subject Shares, as the case may be: (a) in favor of the approval and adoption of the Merger Agreement and the approval of the HoldCo Mergers and the transactions contemplated by the Merger Agreement; (b) against approval of any proposal made in opposition to, or in competition with, the HoldCo Mergers and the transactions contemplated by the Merger Agreement; and (c) against any actions (other than those actions that relate to the HoldCo Mergers and the transactions contemplated by the Merger Agreement) that are intended to, or could be reasonably expected to, impair the ability of HoldCo to consummate the HoldCo Mergers or otherwise impede, interfere with, delay, postpone, discourage or adversely affect the consummation of the HoldCo Mergers in accordance with the terms of the Merger Agreement. Majority Stockholder further agrees not to enter into any agreement or understanding with any person to vote or give instructions in any manner inconsistent with or violative of the terms of this Section 3. Section 4. Irrevocable Proxy. Immediately following the completion of the Deregistration and Domestication, Majority Stockholder agrees to deliver the Proxy to Parent, which shall be irrevocable to the fullest extent permissible by applicable law, with respect to the Subject Shares. The parties agree that by reason of the Merger Agreement, the Proxy is a proxy coupled with an interest. At Parent's request, Majority Stockholder will perform such further acts and execute such further documents as may be required to vest in Parent or its Representatives the sole power to vote the Subject Shares during the term of the Proxy in accordance with its terms. 2 Section 5. Transfer of Subject Shares. Except as otherwise contemplated by the Merger Agreement or this Agreement, from and after the date of this Agreement until the termination of this Agreement, Majority Stockholder will not, directly or indirectly, without the prior written consent of Parent: (a) offer for sale, sell, transfer, tender, pledge, encumber, assign or otherwise in any way dispose of, or enter into any contract, option or other agreement (oral or written) with respect to or consent to the offer for sale, sale, transfer, tender, pledge, encumbrance, assignment or any other disposition of, any or all of the HoldCo Shares or the Subject Shares, or any interest therein; (b) grant any proxies or powers of attorney, deposit any of the HoldCo Shares or the Subject Shares into a voting trust or enter into a voting agreement with respect to any of the HoldCo Shares or the Subject Shares; (c) take any action that would reasonably be expected to have the effect of preventing or disabling Majority Stockholder from performing Majority Stockholder's obligations under this Agreement or making any representation or warranty of Majority Stockholder contained in this Agreement untrue or incorrect; or (d) enter into any agreement or arrangement providing for any of the actions described in clause (a), (b) or (c) above. For the avoidance of doubt, nothing in this Section 5 shall restrict the ability of HoldCo to conduct the Deregistration and Domestication. Section 6. Representations, Warranties and Covenants. Majority Stockholder hereby represents and warrants to Parent and Merger Subs as follows: (a) Ownership. Majority Stockholder (i) is, and at all times prior to the Deregistration and Domestication will be, the beneficial owner of the HoldCo Shares and (ii) at all times after the Deregistration and Domestication and prior to the termination of this Agreement will be, the beneficial owner of the Subject Shares. The HoldCo Shares do, and upon issuance the Subject Shares will, constitute all of the issued and outstanding shares of HoldCo capital stock owned of record or beneficially owned by Majority Stockholder. Majority Stockholder has the sole power to agree to all of the matters set forth in this Agreement, in each case with respect to all of the HoldCo Shares and Subject Shares, with no limitations, qualifications or restrictions on such rights, subject to applicable securities laws and the terms of this Agreement. (b) Power; Binding Agreement. Majority Stockholder has all requisite legal capacity, power and authority to enter into and perform all of Majority Stockholder's obligations under this Agreement. This Agreement has been duly and validly executed and delivered by Majority Stockholder and when duly and validly executed and delivered by Parent and Merger Subs will constitute a valid and binding agreement of Majority Stockholder, enforceable against Majority Stockholder in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally and by general equitable principles. There is no 3 beneficiary or holder of a voting trust certificate or other interest of any trust of which Majority Stockholder is trustee whose consent is required for the execution and delivery of this Agreement or the consummation by Majority Stockholder of the transactions contemplated hereby. (c) No Conflicts. Except for the Deregistration and Domestication or as otherwise contemplated by the Merger Agreement, no filing or registration with, and no permit, authorization, order, filing, registration consent or approval of, any federal, state, local, municipal, foreign or other public body or authority is necessary for the execution of this Agreement by Majority Stockholder and the consummation by Majority Stockholder of the transactions contemplated hereby, and none of the execution and delivery of this Agreement by Majority Stockholder, the consummation by Majority Stockholder of the transactions contemplated hereby or compliance by Majority Stockholder with any of the provisions hereof will (i) conflict with or result in any breach of any applicable organizational documents applicable to Majority Stockholder, (ii) result in a violation or breach of, or constitute (with or without notice or lapse of time or both) a default (or give rise to any third party right of termination, cancellation, material modification or acceleration) under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, license, contract, commitment, arrangement, understanding, agreement or other instrument or obligation of any kind to which Majority Stockholder is a party or by which Majority Stockholder or any of Majority Stockholder's properties or assets may be bound, except as could not reasonably be expected to impair the Majority Stockholder's ability to perform its obligations hereunder, (iii) require any material consent, authorization or approval of any Person or Governmental Entity that has not been obtained, or (iv) violate any order, writ, injunction, decree, judgment, statute, rule or regulation applicable to Majority Stockholder or any of the HoldCo Shares or Subject Shares. (d) No Encumbrances. All of the HoldCo Shares are, and at all times prior to the Deregistration and Domestication will be, held by Majority Stockholder free and clear of any Encumbrances other than any Encumbrances created under this Agreement, the Proxy or the Merger Agreement. All of the Subject Shares will be, at all times after the Deregistration and Domestication and prior to the termination of this Agreement, held by Majority Stockholder free and clear of any Encumbrances other than any Encumbrances created under this Agreement, the Proxy or the Merger Agreement. Section 7. Legends. Majority Stockholder hereby agrees that it shall not transfer the HoldCo Shares or Subject Shares during the term hereof, if and to the extent permitted pursuant to Section 5 of this Agreement, without first having a legend affixed to the certificates representing such HoldCo Shares or Subject Shares stating that they are subject to this Agreement and the Proxy. Section 8. Further Assurances. From time to time, at Parent's reasonable request and without further consideration, Majority Stockholder will perform such further acts and execute and deliver such additional documents as may be necessary or desirable to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by the Merger Agreement, this Agreement and the Proxy. Section 9. Termination. This Agreement will terminate upon the earlier to occur of (i) the date on which the Merger Agreement is terminated, (ii) the HoldCo Merger Effective Time, and (iii) the mutual agreement of the parties hereto in writing to terminate this 4 Agreement. Following termination, this Agreement will be of no further force and effect except that nothing herein will relieve any party from liability for any material breach of this Agreement. Section 10. Stock Splits, Dividends, Etc. The "HoldCo Shares" and the "Subject Shares" shall be deemed to include any HoldCo Shares or Subject Shares issued as (or issuable upon the conversion or exercise of any warrant, right, option or other convertible security which is issued as) a dividend, stock split or other distribution, recapitalization or reclassification with respect to, or in exchange for, or in replacement of, such HoldCo Shares or Subject Shares. Section 11. Miscellaneous. (a) Amendments. Subject to applicable law, this Agreement may not be amended except by execution of an instrument in writing signed on behalf of each of Parent, Merger Subs and Majority Stockholder. (b) Notices. All notices and other communications hereunder will be in writing and will be deemed duly given (i) on the date of delivery if delivered personally, (ii) on the date of confirmation of receipt (or, the first business day following such receipt if the date is not a business day) of transmission by telecopy or telefacsimile, or (iii) on the date of confirmation of receipt (or, the first business day following such receipt if the date is not a business day) if delivered by a nationally recognized courier service. All notices hereunder will be delivered as set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice: (i) if to Majority Stockholder, to: New SAC c/o Silver Lake Partners 2725 Sand Hill Road Menlo Park, Palo Alto 94025 Attention: David Roux Telephone: (650) 233-8120 Facsimile: (650) 233-8125 with a copy at the same address to the attention of the General Counsel and Secretary and with a copy to: Simpson Thacher & Bartlett LLP 3330 Hillview Avenue Palo Alto, California 94304 Attention: Richard Capelouto Kirsten Jensen Telephone: (650) 251-5000 Facsimile: (650) 251-5002 5 (ii) if to Parent or Merger Subs, to: Business Objects S.A. c/o Business Objects Americas, Inc. 3030 Orchard Parkway San Jose, CA 95134 Attention: General Counsel Telephone: (408) 953-6000 Facsimile: (408) 953-6001 with a copy at the same address to the attention of the General Counsel and Secretary and with a copy to: Skadden, Arps, Slate, Meagher & Flom LLP 525 University Avenue, Suite 1100 Palo Alto, California 94301 Attention: Marc R. Packer Kenton J. King Telephone: (650) 470-4500 Facsimile: (650) 470-4570 (c) Counterparts. This Agreement may be executed in two or more counterparts, and by facsimile, all of which will be considered one and the same agreement and will become effective when one or more counterparts have been signed by each of the parties and delivered to the other party, it being understood that all parties need not sign the same counterpart. (d) Entire Agreement; Third Party Beneficiaries. This Agreement and the documents and instruments and other agreements among the parties hereto as contemplated by or referred to herein, including the exhibits hereto, (a) constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof, and (b) are not intended to confer upon any other Person any rights or remedies hereunder. (e) Severability. In the event that any provision of this Agreement or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision to other Persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto. The parties further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision. (f) Specific Performance. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties will be entitled to seek an injunction or injunctions to prevent breaches of 6 this Agreement and to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction, this being in addition to any other remedy to which they are entitled at law or in equity. (g) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof. In addition, each of the parties hereto (i) consents to submit itself to the personal jurisdiction of any Delaware state court in the event any dispute arises out of this Agreement or any of the other transactions contemplated by this Agreement, (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court and (iii) agrees that it will not bring any action relating to this Agreement or any of the other transactions contemplated by this Agreement in any court other than a state court sitting in the State of Delaware. (h) Rules of Construction. The parties hereto agree that they have been represented by counsel during the negotiation and execution of this Agreement and, therefore, waive the application of any law, regulation, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document. (i) Assignment. This Agreement may not be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other parties, except that Parent may assign, in its sole discretion and without the consent of Majority Stockholder, any or all of its rights, interests and obligations hereunder to any of its direct or indirect wholly-owned subsidiaries. Subject to the preceding sentence, but without relieving any party hereto of any obligation hereunder, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. (j) No Waiver; Remedies Cumulative. No failure or delay on the part of any party hereto in the exercise of any right hereunder will impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty or agreement herein, nor will any single or partial exercise of any such right preclude other or further exercise thereof or of any other right. All rights and remedies existing under this Agreement are cumulative to, and not exclusive to, and not exclusive of, any rights or remedies otherwise available. (k) Waiver of Jury Trial. EACH OF PARENT, MAJORITY STOCKHOLDER AND EACH MERGER SUB HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF PARENT, MAJORITY STOCKHOLDER OR EACH MERGER SUB IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF. (l) Expenses. All fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby will be paid by the party incurring such expenses whether or not the HoldCo Mergers are consummated. 7 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized respective officers as of the date first written above. BUSINESS OBJECTS S.A By: /s/ Bernard Liautaud --------------------------------- Name: Bernard Liautaud Title: Chairman of the Board and Chief Executive Officer BORG MERGER SUB I, INC. By: /s/ Bernard Liautaud --------------------------------- Name: Bernard Liautaud Title: Chief Executive Officer and President BORG MERGER SUB II, INC. By: /s/ Bernard Liautaud --------------------------------- Name: Bernard Liautaud Title: Chief Executive Officer and President BORG MERGER SUB III, INC. By: /s/ Bernard Liautaud --------------------------------- Name: Bernard Liautaud Title: Chief Executive Officer and President [SIGNATURE PAGE TO SUPPORT AGREEMENT] NEW SAC By: /s/ William L. Hudson --------------------------------- Name: William L. Hudson Title: Executive Vice President, General Counsel and Corporate Secretary [SIGNATURE PAGE TO SUPPORT AGREEMENT] EXHIBIT A WRITTEN CONSENT IN LIEU OF A MEETING OF THE STOCKHOLDERS OF SEAGATE SOFTWARE (CAYMAN) HOLDINGS CORPORATION New SAC (the "Majority Stockholder"), a stockholder of Seagate Software (Cayman) Holdings Corporation, a Delaware corporation (the "HoldCo"), acting pursuant to Section 228 of the General Corporation Law of the State of Delaware, does hereby consent to the adoption, and does hereby adopt, the following resolutions with the same force and effect as if adopted by a vote at a duly convened meeting of the stockholders of HoldCo: WHEREAS, the Majority Stockholder holds of record 2,000 shares of the HoldCo's common stock, par value $1.00 per share (the "Common Stock"), which is the only class of capital stock of HoldCo issued and outstanding; WHEREAS, the Common Stock held of record by the Majority Stockholder represents 100% of the voting power of HoldCo; WHEREAS, Crystal Decisions, Inc. (the "Company") has entered into the Agreement and Plan of Merger by and among Business Objects S.A., a societe anonyme organized under the laws of the Republic of France ("Parent"), Borg Merger Sub I, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub 1"), Borg Merger Sub II, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub 2"), Borg Merger Sub III, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub 3"), HoldCo and the Company in substantially the form attached hereto as Exhibit A (the "Merger Agreement") which provides for a transaction pursuant to which (1) Merger Sub 1 will merge with and into HoldCo (the "HoldCo Merger"), (2) immediately following the HoldCo Merger, the surviving corporation of the HoldCo Merger will merge with and into Merger Sub 2 (the "Second HoldCo Merger" and collectively with the HoldCo Merger, the "Holdco Mergers"), (3) immediately following the Second HoldCo Merger, Merger Sub 3 will merge with and into the Company (the "Company Merger"), and (4) immediately following the Company Merger, the surviving corporation of the Company Merger will merge with and into the surviving corporation of the Second HoldCo Merger, all on the terms and subject to the conditions set forth in the Merger Agreement; WHEREAS, the board of directors of HoldCo has recommended that the stockholders of HoldCo approve and adopt the Merger Agreement and approve the HoldCo Mergers; and WHEREAS, Majority Stockholder has resolved to approve and adopt the Merger Agreement and to approve the HoldCo Mergers. NOW, THEREFORE, BE IT: RESOLVED, that the Merger Agreement is hereby approved and adopted, and the HoldCo Mergers are hereby approved, in all respects. A-1 IN WITNESS WHEREOF, the undersigned has executed this Written Consent as of the ____ day of July, 2003. NEW SAC By: -------------------------- Name: Title: A-2 EXHIBIT B IRREVOCABLE PROXY NEW SAC ("Majority Stockholder") of Seagate Software (Cayman) Holdings Corporation, a Delaware corporation ("HoldCo"), hereby irrevocably appoints Bernard Liautaud and John Olsen and each of them and any designee thereof, as the sole and exclusive attorneys and proxies of the undersigned, with full power of substitution and resubstitution, to the full extent of the undersigned's rights with respect to the voting of the Subject Shares, as such term is defined in the Support Agreement entered into concurrently herewith by and among of Business Objects S.A., a societe anonyme organized under the laws of the Republic of France ("Parent"), Borg Merger Sub I, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub 1"), Borg Merger Sub II, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub 2"), Borg Merger Sub III, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub 3" and, collectively with Merger Sub 1 and Merger Sub 2, "Merger Subs"), and Majority Stockholder (the "Support Agreement") with respect to the matters set forth below, until the earlier of (1) the date on which that certain Agreement and Plan of Merger entered into concurrently herewith (the "Merger Agreement"), by and among Parent, Merger Subs, HoldCo and Crystal Decisions, Inc. (the "Company"), which provides for a transaction pursuant to which (1) Merger Sub 1 will merge with and into HoldCo (the "HoldCo Merger"), (2) immediately following the HoldCo Merger, the surviving corporation of the HoldCo Merger will merge with and into Merger Sub 2 (the "Second HoldCo Merger" and collectively with the HoldCo Merger, the "Holdco Mergers"), (3) immediately following the Second HoldCo Merger, Merger Sub 3 will merge with and into the Company (the "Company Merger"), and (4) immediately following the Company Merger, the surviving corporation of the Company Merger will merge with and into the surviving corporation of the Second HoldCo Merger, all on the terms and subject to the conditions set forth in the Merger Agreement, is terminated or (2) the HoldCo Merger Effective Time (as defined in the Merger Agreement) (such earlier date, the "Termination Date"). Until the Termination Date, this proxy is irrevocable to the extent permitted under Section 212 of the Delaware General Corporation Law, is coupled with an interest, is granted pursuant to the Support Agreement, and is granted in consideration of Parent and Merger Subs entering into the Merger Agreement. Upon the execution hereof, all prior proxies given by the undersigned with respect to the Subject Shares are hereby revoked and no subsequent proxies will be given. The attorneys and proxies named above will be empowered at any time prior to the Termination Date to vote or cause to be voted all of the Subject Shares at every meeting of HoldCo's stockholders and at every adjournment thereof, and on every action or approval by written consent of HoldCo's stockholders: 1. in favor of the approval and adoption of the Merger Agreement and the approval of the HoldCo Mergers and the transactions contemplated by the Merger Agreement; 2. against approval of any proposal made in opposition to, or in competition with, the HoldCo Mergers and the transactions contemplated by the Merger Agreement; and B-1 3. against any actions (other than those actions that relate to the HoldCo Mergers and the transactions contemplated by the Merger Agreement) that are intended to, or could be reasonably expected to, impair the ability of HoldCo to consummate the HoldCo Mergers or otherwise impede, interfere with, delay, postpone, discourage or adversely affect the consummation of the HoldCo Mergers in accordance with the terms of the Merger Agreement. Notwithstanding anything contained in this Proxy, this Proxy shall terminate when the Support Agreement terminates. B-2 Any obligation of the undersigned hereunder will be binding upon the successors and assigns of the undersigned. Dated: July __, 2003 NEW SAC By: ------------------------------ Name: Title: **************THIS PROXY IS IRREVOCABLE.************* B-3 EX-2.4 6 f91683exv2w4.txt EXHIBIT 2.4 EXHIBIT 2.4 EXECUTION COPY COMPANY SUPPORT AGREEMENT This SUPPORT AGREEMENT (this "Agreement"), is entered into as of July 18, 2003 by and among Business Objects S.A., a societe anonyme organized under the laws of the Republic of France ("Parent"), Borg Merger Sub I, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub 1"), Borg Merger Sub II, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub 2"), Borg Merger Sub III, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub 3" and, collectively with Merger Sub 1 and Merger Sub 2, "Merger Subs"), and Seagate Software (Cayman) Holdings, an exempted company incorporated in the Cayman Islands with limited liability (together with any successor by deregistration and domestication, "HoldCo"). Capitalized terms used in this Agreement but not otherwise defined shall have the meanings ascribed to them in the Merger Agreement (defined below). RECITALS WHEREAS, concurrently with the execution and delivery of this Agreement, Parent, Merger Subs, HoldCo and Crystal Decisions, Inc., a Delaware corporation (the "Company"), are entering into an Agreement and Plan of Merger, dated as of July 18, 2003 (the "Merger Agreement") which provides for a transaction pursuant to which (1) Merger Sub 1 will merge with and into HoldCo (the "HoldCo Merger"), (2) immediately following the HoldCo Merger, the surviving corporation of the HoldCo Merger will merge with and into Merger Sub 2 (the "Second HoldCo Merger", (3) immediately following the Second HoldCo Merger, Merger Sub 3 will merge with and into the Company (the "Company Merger"), and (4) immediately following the Company Merger, the surviving corporation of the Company Merger will merge with and into the surviving corporation of the Second HoldCo Merger (the "Second Company Merger," and together with the Company Merger, the "Company Mergers"), all on the terms and subject to the conditions set forth in the Merger Agreement; WHEREAS, as of the date hereof, HoldCo beneficially owns (as such term is defined pursuant to Rule 13d-3(a) promulgated under the Securities Exchange Act of 1934, as amended), 75,001,000 shares of the Company's common stock, par value $0.001 per share (the "Company Common Stock"), representing in excess of 98% of the current voting power of the Company; and WHEREAS, as a condition and inducement to Parent's and Merger Subs' willingness to enter into the Merger Agreement, HoldCo is entering into this Agreement to (i) execute and deliver the written consent of stockholders attached to this Agreement as Exhibit A (the "Written Consent"), (ii) vote, or cause to be voted, all shares of Company Common Stock beneficially owned by HoldCo, whether owned as of or acquired after the date of this Agreement (the "Subject Shares"), in the manner specified in Section 2 of this Agreement, and (iii) deliver to Parent the irrevocable proxy with respect to the Subject Shares attached to this Agreement as Exhibit B (the "Proxy"). NOW, THEREFORE, in consideration of the foregoing and the covenants, agreements, representations and warranties set forth herein, intending to be legally bound, the parties agree as follows: Section 1. Written Consent. HoldCo agrees to execute and deliver the Written Consent immediately following the execution and delivery of the Merger Agreement. Section 2. Voting of Subject Shares. At every meeting of the Company's stockholders and at every adjournment thereof, and on every action or approval by written consent of the Company's stockholders, HoldCo agrees to vote, or cause to be voted, to the extent not voted by Parent as appointed by the Proxy, all of the Subject Shares: (a) in favor of the approval and adoption of the Merger Agreement and the approval of the Company Mergers and the transactions contemplated by the Merger Agreement; (b) against approval of any proposal made in opposition to, or in competition with, the Company Mergers and the transactions contemplated by the Merger Agreement; and (c) against any actions (other than those actions that relate to the Company Mergers and the transactions contemplated by the Merger Agreement) that are intended to, or could be reasonably expected to, impair the ability of the Company to consummate the Company Mergers or otherwise impede, interfere with, delay, postpone, discourage or adversely affect the consummation of the Company Mergers in accordance with the terms of the Merger Agreement. HoldCo further agrees not to enter into any agreement or understanding with any person to vote or give instructions in any manner inconsistent with or violative of the terms of this Section 2. Section 3. Irrevocable Proxy. Concurrently with the execution of this Agreement, HoldCo agrees to deliver the Proxy to Parent, which shall be irrevocable to the fullest extent permissible by applicable law, with respect to the Subject Shares. The parties agree that by reason of the Merger Agreement, the Proxy is a proxy coupled with an interest. At Parent's request, HoldCo will perform such further acts and execute such further documents as may be required to vest in Parent or its Representatives the sole power to vote the Subject Shares during the term of the Proxy in accordance with its terms. Section 4. Transfer of Subject Shares. Except as otherwise contemplated by the Merger Agreement or this Agreement, from and after the date of this Agreement until the termination of this Agreement, HoldCo will not, directly or indirectly, without the prior written consent of Parent: 2 (a) offer for sale, sell, transfer, tender, pledge, encumber, assign or otherwise in any way dispose of, or enter into any contract, option or other agreement (oral or written) with respect to or consent to the offer for sale, sale, transfer, tender, pledge, encumbrance, assignment or any other disposition of, any or all of the Subject Shares, or any interest therein; (b) grant any proxies or powers of attorney, deposit any of the Subject Shares into a voting trust or enter into a voting agreement with respect to any of the Subject Shares; (c) take any action that would reasonably be expected to have the effect of preventing or disabling HoldCo from performing HoldCo's obligations under this Agreement or making any representation or warranty of HoldCo contained in this Agreement untrue or incorrect; or (d) enter into any agreement or arrangement providing for any of the actions described in clause (a), (b) or (c) above. For the avoidance of doubt, nothing in this Section 4 shall restrict the ability of HoldCo to deregister pursuant to Section 226 of the Companies Law (2003 Revision) of the Cayman Islands as an exempted limited liability company incorporated under the Companies Law (2003 Revision) and be domesticated pursuant to Section 388 of the Delaware General Corporation Law as a Delaware corporation, or to change its corporate name to "Seagate Software (Cayman) Holdings Corporation" in order to comply with Delaware law in connection with such domestication (collectively, the "Deregistration and Domestication"). Section 5. Representations, Warranties and Covenants. HoldCo hereby represents and warrants to Parent and Merger Subs as follows: (a) Ownership. HoldCo is the beneficial owner of the Subject Shares, and at all times prior to the termination of this Agreement will be, the beneficial owner of the Subject Shares. The Subject Shares constitute all of the issued and outstanding shares of Company capital stock owned of record or beneficially owned by HoldCo. HoldCo has the sole power to agree to all of the matters set forth in this Agreement, in each case with respect to all of the Subject Shares, with no limitations, qualifications or restrictions on such rights, subject to applicable securities laws and the terms of this Agreement. (b) Power; Binding Agreement. HoldCo has all requisite legal capacity, power and authority to enter into and perform all of HoldCo's obligations under this Agreement. This Agreement has been duly and validly executed and delivered by HoldCo and when duly and validly executed and delivered by Parent and Merger Subs will constitute a valid and binding agreement of HoldCo, enforceable against HoldCo in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally and by general equitable principles. There is no beneficiary or holder of a 3 voting trust certificate or other interest of any trust of which HoldCo is trustee whose consent is required for the execution and delivery of this Agreement or the consummation by HoldCo of the transactions contemplated hereby. (c) No Conflicts. Except for the Deregistration and Domestication or as otherwise contemplated by the Merger Agreement, no filing or registration with, and no permit, authorization, order, filing, registration consent or approval of, any federal, state, local, municipal, foreign or other public body or authority is necessary for the execution of this Agreement by HoldCo and the consummation by HoldCo of the transactions contemplated hereby, and none of the execution and delivery of this Agreement by HoldCo, the consummation by HoldCo of the transactions contemplated hereby or compliance by HoldCo with any of the provisions hereof will (i) conflict with or result in any breach of any applicable organizational documents applicable to HoldCo, (ii) result in a violation or breach of, or constitute (with or without notice or lapse of time or both) a default (or give rise to any third party right of termination, cancellation, material modification or acceleration) under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, license, contract, commitment, arrangement, understanding, agreement or other instrument or obligation of any kind to which HoldCo is a party or by which HoldCo or any of HoldCo's properties or assets may be bound, except as could not reasonably be expected to impair the HoldCo's ability to perform its obligations hereunder, (iii) require any material consent, authorization or approval of any Person or Governmental Entity that has not been obtained, or (iv) violate any order, writ, injunction, decree, judgment, statute, rule or regulation applicable to HoldCo or any of the Subject Shares. (d) No Encumbrances. All of the Subject Shares are, and at all times prior to the termination of this Agreement will be, held by HoldCo free and clear of any Encumbrances other than any Encumbrances created under this Agreement, the Proxy or the Merger Agreement. Section 6. Legends. HoldCo hereby agrees that it shall not transfer the Subject Shares during the term hereof, if and to the extent permitted pursuant to Section 4 of this Agreement, without first having a legend affixed to the certificates representing the Subject Shares stating that they are subject to this Agreement and the Proxy. Section 7. Further Assurances. From time to time, at Parent's reasonable request and without further consideration, HoldCo will perform such further acts and execute and deliver such additional documents as may be necessary or desirable to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by the Merger Agreement, this Agreement and the Proxy. Section 8. Termination. This Agreement will terminate upon the earlier to occur of (i) the date on which the Merger Agreement is terminated, (ii) the Company Merger Effective Time, and (iii) the mutual agreement of the parties hereto in writing to terminate this Agreement. Following termination, this Agreement will be of no further force and effect except that nothing herein will relieve any party from liability for any material breach of this Agreement. 4 Section 9. Stock Splits, Dividends, Etc. The "Subject Shares" shall be deemed to include any Company Common Stock issued as (or issuable upon the conversion or exercise of any warrant, right, option or other convertible security which is issued as) a dividend, stock split or other distribution, recapitalization or reclassification with respect to, or in exchange for, or in replacement of, such Subject Shares. Section 10. Miscellaneous. (a) Amendments. Subject to applicable law, this Agreement may not be amended except by execution of an instrument in writing signed on behalf of each of Parent, Merger Subs and HoldCo. (b) Notices. All notices and other communications hereunder will be in writing and will be deemed duly given (i) on the date of delivery if delivered personally, (ii) on the date of confirmation of receipt (or, the first business day following such receipt if the date is not a business day) of transmission by telecopy or telefacsimile, or (iii) on the date of confirmation of receipt (or, the first business day following such receipt if the date is not a business day) if delivered by a nationally recognized courier service. All notices hereunder will be delivered as set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice: (i) if to HoldCo, to: Seagate Software (Cayman) Holdings c/o Seagate Technology 920 Disc Drive Scotts Valley, CA 95066 Attention: Bill Hudson Telephone: (831) 439-5370 Facsimile: (831) 438-6675 with a copy at the same address to the attention of the General Counsel and Secretary and with a copy to: Simpson Thacher & Bartlett LLP 3330 Hillview Avenue Palo Alto, California 94304 Attention: Richard Capelouto Kirsten Jensen Telephone: (650) 251-5000 Facsimile: (650) 251-5002 5 (ii) if to Parent or the Merger Subs, to: Business Objects S.A. c/o Business Objects Americas, Inc. 3030 Orchard Parkway San Jose, CA 95134 Attention: General Counsel Telephone: (408) 953-6000 Facsimile: (408) 953-6001 with a copy at the same address to the attention of the General Counsel and Secretary and with a copy to: Skadden, Arps, Slate, Meagher & Flom LLP 525 University Avenue, Suite 1100 Palo Alto, California 94301 Attention: Marc R. Packer Kenton J. King Telephone: (650) 470-4500 Facsimile: (650) 470-4570 (c) Counterparts. This Agreement may be executed in two or more counterparts, and by facsimile, all of which will be considered one and the same agreement and will become effective when one or more counterparts have been signed by each of the parties and delivered to the other party, it being understood that all parties need not sign the same counterpart. (d) Entire Agreement; Third Party Beneficiaries. This Agreement and the documents and instruments and other agreements among the parties hereto as contemplated by or referred to herein, including the exhibits hereto, (i) constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof, and (ii) are not intended to confer upon any other Person any rights or remedies hereunder. (e) Severability. In the event that any provision of this Agreement or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision to other Persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto. The parties further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision. (f) Specific Performance. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement 6 were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties will be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction, this being in addition to any other remedy to which they are entitled at law or in equity. (g) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof. In addition, each of the parties hereto (i) consents to submit itself to the personal jurisdiction of any Delaware state court in the event any dispute arises out of this Agreement or any of the other transactions contemplated by this Agreement, (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court and (iii) agrees that it will not bring any action relating to this Agreement or any of the other transactions contemplated by this Agreement in any court other than a state court sitting in the State of Delaware. (h) Rules of Construction. The parties hereto agree that they have been represented by counsel during the negotiation and execution of this Agreement and, therefore, waive the application of any law, regulation, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document. (i) Assignment. This Agreement may not be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other parties, except that Parent may assign, in its sole discretion and without the consent of HoldCo, any or all of its rights, interests and obligations hereunder to any of its direct or indirect wholly-owned subsidiaries. Subject to the preceding sentence, but without relieving any party hereto of any obligation hereunder, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. (j) No Waiver; Remedies Cumulative. No failure or delay on the part of any party hereto in the exercise of any right hereunder will impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty or agreement herein, nor will any single or partial exercise of any such right preclude other or further exercise thereof or of any other right. All rights and remedies existing under this Agreement are cumulative to, and not exclusive to, and not exclusive of, any rights or remedies otherwise available. (k) Waiver of Jury Trial. EACH OF PARENT, HOLDCO AND EACH MERGER SUB HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF PARENT, HOLDCO OR EACH MERGER SUB IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF. 7 (l) Expenses. All fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby will be paid by the party incurring such expenses whether or not the Company Mergers are consummated. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 8 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized respective officers as of the date first written above. BUSINESS OBJECTS S.A By: /s/ Bernard Liautaud --------------------------------- Name: Bernard Liautaud Title: Chairman of the Board and Chief Executive Officer BORG MERGER SUB I, INC. By: /s/ Bernard Liautaud --------------------------------- Name: Bernard Liautaud Title: Chief Executive Officer and President BORG MERGER SUB II, INC. By: /s/ Bernard Liautaud --------------------------------- Name: Bernard Liautaud Title: Chief Executive Officer and President BORG MERGER SUB III, INC. By: /s/ Bernard Liautaud --------------------------------- Name: Bernard Liautaud Title: Chief Executive Officer and President [SIGNATURE PAGE TO COMPANY SUPPORT AGREEMENT] SEAGATE SOFTWARE (CAYMAN) HOLDINGS By: /s/ William L. Hudson --------------------------------- Name: William L. Hudson Title: Executive Vice President, General Counsel and Corporate Secretary [SIGNATURE PAGE TO COMPANY SUPPORT AGREEMENT] EXHIBIT A WRITTEN CONSENT IN LIEU OF A MEETING OF THE STOCKHOLDERS OF CRYSTAL DECISIONS, INC. Seagate Software (Cayman) Holdings ("HoldCo"), a stockholder of Crystal Decisions, Inc., a Delaware corporation (the "Company"), acting pursuant to Section 228 of the General Corporation Law of the State of Delaware, does hereby consent to the adoption, and does hereby adopt, the following resolutions with the same force and effect as if adopted by a vote at a duly convened meeting of the stockholders of the Company: WHEREAS, HoldCo holds of record 75,001,000 shares of Company common stock, par value $0.001 per share (the "Common Stock"), which is the only class of capital stock of the Company issued and outstanding; WHEREAS, the Common Stock held of record by HoldCo represents in excess of 98% of the voting power of the Company; WHEREAS, the Company has entered into the Agreement and Plan of Merger by and among Business Objects S.A., a societe anonyme organized under the laws of the Republic of France ("Parent"), Borg Merger Sub I, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub 1"), Borg Merger Sub II, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub 2"), Borg Merger Sub III, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub 3"), HoldCo and the Company in substantially the form attached hereto as Exhibit A (the "Merger Agreement") which provides for a transaction pursuant to which (1) Merger Sub 1 will merge with and into HoldCo (the "HoldCo Merger"), (2) immediately following the HoldCo Merger, the surviving corporation of the HoldCo Merger will merge with and into Merger Sub 2 (the "Second HoldCo Merger", (3) immediately following the Second HoldCo Merger, Merger Sub 3 will merge with and into the Company (the "Company Merger"), and (4) immediately following the Company Merger, the surviving corporation of the Company Merger will merge with and into the surviving corporation of the Second HoldCo Merger (the "Second Company Merger," and together with the Company Merger, the "Company Mergers"), all on the terms and subject to the conditions set forth in the Merger Agreement; WHEREAS, the board of directors of the Company has recommended that the stockholders of the Company approve and adopt the Merger Agreement and approve the Company Mergers; and WHEREAS, HoldCo has resolved to approve and adopt the Merger Agreement and to approve the Company Mergers. A-1 NOW, THEREFORE, BE IT: RESOLVED, that the Merger Agreement is hereby approved and adopted, and the Company Mergers are hereby approved, in all respects. A-2 IN WITNESS WHEREOF, the undersigned has executed this Written Consent as of the ____ day of July, 2003. SEAGATE SOFTWARE (CAYMAN) HOLDINGS By: -------------------------- Name: Title: A-3 EXHIBIT B IRREVOCABLE PROXY Seagate Software (Cayman) Holdings ("HoldCo"), a stockholder of Crystal Decisions, Inc., a Delaware corporation ("Company"), hereby irrevocably appoints Bernard Liautaud and John Olsen and each of them and any designee thereof, as the sole and exclusive attorneys and proxies of the undersigned, with full power of substitution and resubstitution, to the full extent of the undersigned's rights with respect to the voting of the Subject Shares, as such term is defined in the Support Agreement entered into concurrently herewith by and among of Business Objects S.A., a societe anonyme organized under the laws of the Republic of France ("Parent"), Borg Merger Sub I, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub 1"), Borg Merger Sub II, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub 2"), Borg Merger Sub III, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub 3" and, collectively with Merger Sub 1 and Merger Sub 2, "Merger Subs"), and HoldCo (the "Support Agreement") with respect to the matters set forth below, until the earlier of (1) the date on which that certain Agreement and Plan of Merger entered into concurrently herewith, by and among Parent, Merger Subs, HoldCo and the Company (the "Merger Agreement"), which provides for a transaction pursuant to which (1) Merger Sub 1 will merge with and into HoldCo (the "HoldCo Merger"), (2) immediately following the HoldCo Merger, the surviving corporation of the HoldCo Merger will merge with and into Merger Sub 2 (the "Second HoldCo Merger"), (3) immediately following the Second HoldCo Merger, Merger Sub 3 will merge with and into the Company (the "Company Merger"), and (4) immediately following the Company Merger, the surviving corporation of the Company Merger will merge with and into the surviving corporation of the Second HoldCo Merger (the "Second Company Merger," and together with the Company Merger, the "Company Mergers"), all on the terms and subject to the conditions set forth in the Merger Agreement, is terminated or (2) the Company Merger Effective Time (as defined in the Merger Agreement) (such earlier date, the "Termination Date"). Until the Termination Date, this proxy is irrevocable to the extent permitted under Section 212 of the Delaware General Corporation Law, is coupled with an interest, is granted pursuant to the Support Agreement, and is granted in consideration of Parent and Merger Subs entering into the Merger Agreement. Upon the execution hereof, all prior proxies given by the undersigned with respect to the Subject Shares are hereby revoked and no subsequent proxies will be given. The attorneys and proxies named above will be empowered at any time prior to the Termination Date to vote or cause to be voted all of the Subject Shares at every meeting of the Company's stockholders and at every adjournment thereof, and on every action or approval by written consent of the Company's stockholders: 1. in favor of the approval and adoption of the Merger Agreement and the approval of the Company Mergers and the transactions contemplated by the Merger Agreement; B-1 2. against approval of any proposal made in opposition to, or in competition with, the Company Mergers and the transactions contemplated by the Merger Agreement; and 3. against any actions (other than those actions that relate to the Company Mergers and the transactions contemplated by the Merger Agreement) that are intended to, or could be reasonably expected to, impair the ability of the Company to consummate the Company Mergers or otherwise impede, interfere with, delay, postpone, discourage or adversely affect the consummation of the Company Mergers in accordance with the terms of the Merger Agreement. Notwithstanding anything contained in this Proxy, this Proxy shall terminate when the Support Agreement terminates. B-2 Any obligation of the undersigned hereunder will be binding upon the successors and assigns of the undersigned. Dated: July __, 2003 SEAGATE SOFTWARE (CAYMAN) HOLDINGS By: ------------------------------ Name: Title: **************THIS PROXY IS IRREVOCABLE.************* B-3 EX-2.5 7 f91683exv2w5.txt EXHIBIT 2.5 Exhibit 2.5 FORM OF VOTING AGREEMENT This VOTING AGREEMENT (this "Agreement"), is entered into as of July 18, 2003 by and among Business Objects S.A., a societe anonyme organized under the laws of the Republic of France ("Parent"), Crystal Decisions, Inc., a Delaware corporation (the "Company"), and the undersigned stockholder of Parent, as an individual (the "Stockholder"). Capitalized terms used in this Agreement but not otherwise defined shall have the meanings ascribed to them in the Merger Agreement (defined below). RECITALS WHEREAS, concurrently with the execution and delivery of this Agreement, Parent, Borg Merger Sub I, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub 1"), Borg Merger Sub II, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub 2"), Borg Merger Sub III, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub 3"), Seagate Software (Cayman) Holdings, an exempted company incorporated in the Cayman Islands ("HoldCo"), and the Company are entering into an Agreement and Plan of Merger (the "Merger Agreement") pursuant to which (1) Merger Sub 1 will merge with and into HoldCo (the "HoldCo Merger"), (2) immediately following the HoldCo Merger, the surviving corporation of the HoldCo Merger will merge with and into Merger Sub 2 (the "Second HoldCo Merger"), (3) immediately following the Second HoldCo Merger, Merger Sub 3 will merge with and into the Company (the "Company Merger"), and (4) immediately following the Company Merger, the surviving corporation of the Company Merger will merge with and into the surviving corporation of the Second HoldCo Merger (the "Second Company Merger," and together with the HoldCo Merger, the Second HoldCo Merger and Company Merger, the "Mergers"); WHEREAS, the Stockholder beneficially owns (as such term is defined pursuant to Rule 13d-3(a) promulgated under the Securities Exchange Act of 1934, as amended), such number of Parent's ordinary shares, nominal value EUR 0.10 per share (whether held in the form of American depositary receipts or ordinary shares, the "Parent Stock"), and holds options to purchase such number of shares of Parent Stock, as indicated next to the Stockholder's signature on the signature page to this Agreement; WHEREAS, as a condition and inducement to the Company's willingness to enter into the Merger Agreement, the Stockholder is entering into this Agreement to vote all shares of Parent Stock beneficially owned by the Stockholder, whether owned as of or acquired after the date of this Agreement (the "Subject Shares"), in the manner specified in Section 1 of this Agreement. NOW, THEREFORE, in consideration of the foregoing and the covenants, agreements, representations and warranties set forth herein, intending to be legally bound, the parties agree as follows: Section 1. Voting of Subject Shares. At any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of Parent's 1 stockholders, however called, or in connection with any action or approval by written consent of Parent's stockholders, Stockholder will, in the event that Parent is unable to vote all Subject Shares pursuant to the irrevocable proxy in the form attached hereto as Annex I (the "Proxy") at the meeting, appear at the meeting or otherwise cause all Subject Shares to be counted as present thereat for purposes of establishing a quorum and vote or consent (or cause to be voted or consented) all Subject Shares: (a) in favor of the Parent Proposals and such other matters as Parent reasonably believes are necessary to be approved under applicable law to consummate the Mergers and the other transactions contemplated by the Merger Agreement in accordance with the terms of the Merger Agreement; and (b) against any actions (other than those actions that relate to the Mergers and the other transactions contemplated by the Merger Agreement) that would materially adversely affect the ability of Parent to consummate the Mergers without material delay. The Stockholder further agrees not to enter into any agreement or understanding with any person to vote or give instructions in any manner inconsistent with or violative of the terms of this Section 1. Section 2. Transfer of Subject Shares. Except as otherwise contemplated by the Merger Agreement or this Agreement, from and after the date of this Agreement until the termination of this Agreement pursuant to Section 6, the Stockholder will not, directly or indirectly, without the prior written consent of the Company: (a) offer for sale, sell, transfer, tender, pledge, encumber, assign or otherwise in any way dispose of, or enter into any contract, option or other arrangement or understanding with respect to or consent to the offer for sale, sale, transfer, tender, pledge, encumbrance, assignment or any other disposition of, any or all of the Subject Shares, or any interest therein; (b) grant any proxy or powers of attorney, deposit any of the Subject Shares into a voting trust or enter into a voting agreement with respect to any of the Subject Shares; (c) take any action that would reasonably be expected to have the effect of preventing or disabling the Stockholder from performing its obligations under this Agreement or making any representation or warranty of the Stockholder contained in this Agreement untrue or incorrect; or (d) enter into any agreement or arrangement providing for any of the actions described in clause (a), (b) or (c) above; provided, however, nothing in this Agreement shall be deemed to prohibit or restrict any sale or other disposition of any of the Subject Shares pursuant to the terms of a trading plan adopted pursuant to Rule 10b5-1 under the Securities Exchange Act of 1934, as amended, in effect prior to the date hereof. 2 Section 3. Representations and Warranties. The Stockholder hereby represents and warrants to the Company as follows: (a) Ownership. The Stockholder is, and, subject to the proviso in Section 2, at all times prior to the termination of this Agreement in accordance with Section 6 of this Agreement will be, the beneficial owner of the Subject Shares. The Subject Shares constitute all of the issued and outstanding shares of Parent capital stock owned of record or beneficially owned by the Stockholder. Subject to the community property laws, the Stockholder has the sole power to agree to all of the matters set forth in this Agreement, in each case with respect to all of the Subject Shares, with no limitations, qualifications or restrictions on such power, subject to applicable securities laws and the terms of this Agreement. As of the date hereof, Stockholder does not beneficially own any securities of Parent other than Parent Stock and options to purchase such number of shares of Parent Stock, as indicated next to the Stockholder's signature on the signature page to this Agreement. (b) Power; Binding Agreement. The Stockholder has all requisite legal capacity, power and authority to enter into and perform all of its obligations under this Agreement. This Agreement has been duly and validly executed and delivered by the Stockholder and constitutes a valid and binding agreement of the Stockholder, enforceable against the Stockholder in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally and by general equitable principles. There is no beneficiary or holder of a voting trust certificate or other interest of any trust of which the Stockholder is trustee whose consent is required for the execution and delivery of this Agreement or the consummation by the Stockholder of the transactions contemplated hereby. (c) No Encumbrances. All of the Subject Shares are, and, at all times prior to the termination of this Agreement in accordance with Section 6 will be, held by the Stockholder free and clear of any Encumbrance, except as may be created hereby. Section 4. Irrevocable Proxy. Concurrently with the execution of this Agreement, Stockholder agrees to deliver to Parent the Proxy, which shall be irrevocable to the fullest extent permitted by applicable law, with respect to the Securities. Section 5. Further Assurances. From time to time, at the Company's reasonable request and without further consideration, the Stockholder will perform such further acts and execute and deliver such additional documents as may be necessary or desirable to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement. Section 6. Termination. This Agreement will terminate upon the earlier to occur of (i) the date on which the Merger Agreement is terminated in accordance with the provisions of Section 10.1 of the Merger Agreement, (ii) the Effective Time and (iii) the mutual agreement in writing of the parties hereto to terminate this Agreement. Following termination, this Agreement will be of no further force and effect except that 3 nothing herein will relieve any party from liability for any material breach of this Agreement. Section 7. Stock Splits, Dividends, Etc. The Subject Shares shall be deemed to include any shares of Company Common Stock issued as (or issuable upon the conversion or exercise of any warrant, right, option or other convertible security which is issued as) a dividend, stock split or other distribution, recapitalization or reclassification with respect to, or in exchange for, or in replacement of, such Subject Shares. Section 8. Miscellaneous. (a) Amendments. This Agreement may not be amended, altered, supplemented or otherwise modified or terminated except upon the execution and delivery of a written agreement executed by the parties hereto. (b) Notices. All notices and other communications hereunder will be in writing and will be deemed duly given (i) on the date of delivery if delivered personally, (ii) on the date of confirmation of receipt (or, the first business day following such receipt if the date is not a business day) of transmission by telecopy or telefacsimile, or (iii) on the date of confirmation of receipt (or, the first business day following such receipt if the date is not a business day) if delivered by a nationally recognized courier service. All notices hereunder will be delivered as set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice: (i) if to the Stockholder, to: Bernard Liautaud c/o Business Objects S.A. Business Objects Americas, Inc. 3030 Orchard Parkway San Jose, California 95134 Attention: General Counsel Telephone: (408) 953-6000 Facsimile: (408) 953-6001 with a copy to: Skadden, Arps, Slate, Meagher & Flom LLP 525 University Avenue, Suite 1100 Palo Alto, California 94301 Attention: Marc R. Packer Kenton J. King Telephone: (650) 470-4500 Facsimile: (650) 470-4570 (ii) if to Parent: Business Objects S.A. 4 Business Objects Americas, Inc. 3031 Orchard Parkway San Jose, California 95134 Attention: General Counsel Telephone: (408) 953-6000 Facsimile: (408) 953-6001 with a copy to: Skadden, Arps, Slate, Meagher & Flom LLP 525 University Avenue, Suite 1100 Palo Alto, California 94301 Attention: Marc R. Packer Kenton J. King Telephone: (650) 470-4500 Facsimile: (650) 470-4570 (iii) if to the Company, to: Crystal Decisions, Inc. 895 Emerson Street Palo Alto, California 94301 Attention: General Counsel Telephone: (650) 838-7410 Facsimile: (650) 838-7451 with a copy to: Crystal Decisions, Inc. 8840 Cambie Street Vancouver, British Columbia Canada V6B 4J2 Attention: Chief Financial Officer Telephone: (604) 681-3435 Facsimile: (604) 681-2934 and with a copy to: Wilson Sonsini Goodrich & Rosati Professional Corporation 650 Page Mill Road Palo Alto, California 94304 Attention: Larry W. Sonsini Martin W. Korman Telephone: (650) 493-9300 Facsimile: (650) 493-6811 5 (c) Counterparts. This Agreement may be executed in two or more counterparts, and by facsimile, all of which will be considered one and the same agreement and will become effective when one or more counterparts have been signed by each of the parties and delivered to the other party, it being understood that all parties need not sign the same counterpart. (d) Entire Agreement; Third Party Beneficiaries. This Agreement and the documents and instruments and other agreements among the parties hereto as contemplated by or referred to herein, including the exhibits hereto, (i) constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof, and (ii) are not intended to confer upon any other person any rights or remedies hereunder. (e) Severability. In the event that any provision of this Agreement or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision to other Persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto. The parties further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision. (f) Specific Performance. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties will be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction, this being in addition to any other remedy to which they are entitled at law or in equity. (g) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof. (h) Rules of Construction. The parties hereto agree that they have been represented by counsel during the negotiation and execution of this Agreement and, therefore, waive the application of any law, regulation, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document. (i) Assignment. This Agreement may not be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other parties. Subject to the preceding sentence, but without relieving any party hereto of any obligation hereunder, this Agreement will be binding upon, inure to 6 the benefit of and be enforceable by the parties and their respective successors and assigns. (j) No Waiver; Remedies Cumulative. No failure or delay on the part of any party hereto in the exercise of any right hereunder will impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty or agreement herein, nor will any single or partial exercise of any such right preclude other or further exercise thereof or of any other right. Any and all rights and remedies existing under this Agreement are cumulative to, and not exclusive to, and not exclusive of, any other right or remedy otherwise available. (k) Descriptive Heading. The descriptive headings used herein are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement. (l) Expenses. All costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such expenses. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 7 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized respective officers as of the date first written above. By: --------------------------------- Name: as the Stockholder Shares beneficially owned: shares of Parent Stock ------------ shares of Parent Stock ------------ issuable upon the exercise of options BUSINESS OBJECTS S.A By: --------------------------------- Name: Title: CRYSTAL DECISIONS, INC. By: --------------------------------- Name: Title: [SIGNATURE PAGE TO VOTING AGREEMENT] ANNEX I IRREVOCABLE PROXY The undersigned Stockholder of Business Objects S.A., a societe anonyme organized under the laws of the Republic of France ("Parent"), hereby irrevocably (to the fullest extent permitted by applicable law) appoints Eric Patel and Susan J. Wolfe and each of them individually, as the sole and exclusive attorneys and proxies of the undersigned, with full power of substitution and re-substitution, to the full extent of the undersigned's right, with respect to the Subject Shares (as defined in the Voting Agreement dated as of the date hereof (the "Voting Agreement") between Parent, Crystal Decisions, Inc., a Delaware corporation (the "Company"), and the undersigned Stockholder) until the termination of the Voting Agreement pursuant to its terms. Capitalized terms used and not defined herein have the respective meanings ascribed to them in the Voting Agreement. Upon the execution hereof, all prior proxies given by the undersigned with respect to the matters set forth in clauses (a) and (b) below are hereby revoked and no subsequent proxies will be given. This proxy is irrevocable to the fullest extent permitted by applicable law, is granted pursuant to the Voting Agreement and is granted in consideration of Parent entering into the Merger Agreement. This proxy is executed and intended to be irrevocable to the fullest extent permitted by law in accordance with the provisions of Section 212(c) of the Delaware General Corporation Law. The attorneys and proxies named above are empowered to exercise all voting rights (including, without limitation, the power to execute and deliver written consents with respect to the Subject Shares) of the undersigned at any time prior to termination of the Voting Agreement at every annual, special or adjourned meeting of the stockholders of Parent and in every written consent in lieu of such meeting as follows: (a) in favor of the Parent Proposals and such other matters as Parent reasonably believes are necessary to be approved under applicable law to consummate the Mergers and the other transactions contemplated by the Merger Agreement in accordance with the terms of the Merger Agreement; and (b) against any actions (other than those actions that relate to the Mergers and the other transactions contemplated by the Merger Agreement) that would materially adversely affect the ability of Parent to consummate the Mergers without material delay. The attorneys and proxies named above may not exercise this Proxy on any other matter except as provided in clauses (a) and (b) above. The undersigned Stockholder may vote the Subject Shares on all other matters. Any obligation of the undersigned hereunder shall be binding upon the successors and assigns of the undersigned. This Proxy is coupled with an interest and is irrevocable to the fullest extent permitted by law. Dated: July __, 2003 Signature of Stockholder: ------------------------------------------ Print Name of Stockholder: ------------------------------------------ [SIGNATURE PAGE TO ANNEX I OF THE VOTING AGREEMENT, IRREVOCABLE PROXY] -----END PRIVACY-ENHANCED MESSAGE-----

EX-2.1

                                                                     EXHIBIT 2.1


                                                                  EXECUTION COPY

                          AGREEMENT AND PLAN OF MERGER

                                  BY AND AMONG

                              BUSINESS OBJECTS S.A.

                                       AND

                             BORG MERGER SUB I, INC.

                                       AND

                            BORG MERGER SUB II, INC.

                                       AND

                            BORG MERGER SUB III, INC.

                                       AND

                       SEAGATE SOFTWARE (CAYMAN) HOLDINGS

                                       AND

                             CRYSTAL DECISIONS, INC.





                            DATED AS OF JULY 18, 2003





                                TABLE OF CONTENTS



                                                                            PAGE
                                                                            ----
                                                                         

ARTICLE I THE MERGERS ...................................................     3
      Section 1.1   The Mergers .........................................     3
      Section 1.2   Effective Times .....................................     3
      Section 1.3   Closing .............................................     4
      Section 1.4   Effects of the Mergers ..............................     5
      Section 1.5   Certificates of Incorporation and Bylaws ............     6
      Section 1.6   Directors and Officers ..............................     7
ARTICLE II CONVERSION OF SECURITIES .....................................     8
      Section 2.1   HoldCo Merger - Treatment of Securities .............     8
      Section 2.2   Second HoldCo Merger - Treatment of Securities ......     8
      Section 2.3   Company Merger - Treatment of Securities ............     9
      Section 2.4   Second Company Merger - Treatment of Securities .....    12
      Section 2.5   Exchange and Payment ................................    13
      Section 2.6   Parent Shares .......................................    14
ARTICLE III COMPANY REPRESENTATIONS AND WARRANTIES ......................    17
      Section 3.1   Organization ........................................    17
      Section 3.2   Capitalization ......................................    18
      Section 3.3   Authority; Consents and Approvals; No Violations ....    19
      Section 3.4   Company SEC Filings; Financial Statements ...........    21
      Section 3.5   Absence of Certain Changes ..........................    23
      Section 3.6   No Undisclosed Liabilities ..........................    24
      Section 3.7   Real and Personal Property ..........................    25
      Section 3.8   Litigation ..........................................    25
      Section 3.9   Compliance with Laws ................................    26
      Section 3.10  Intellectual Property; Privacy ......................    26
      Section 3.11  Taxes ...............................................    29
      Section 3.12  Employee Benefits ...................................    31
      Section 3.13  Labor ...............................................    33
      Section 3.14  Environmental Matters ...............................    34
      Section 3.15  Transactions with Affiliates ........................    34
      Section 3.16  Insurance ...........................................    35
      Section 3.17  Certain Identified Contracts and Relationships ......    35
      Section 3.18  Brokers' and Finders' Fees ..........................    37
      Section 3.19  Opinion of Financial Advisor ........................    38
ARTICLE IV HOLDCO REPRESENTATIONS AND WARRANTIES ........................    38
      Section 4.1   Organization ........................................    38
      Section 4.2   Capitalization ......................................    38
      Section 4.3   Authority; Consents and Approvals; No Violations ....    39
      Section 4.4   Business Operations .................................    40
      Section 4.5   Authority; Consents and Approvals; No Violations ....    40


                                                                             -i-



                                TABLE OF CONTENTS
                                   (CONTINUED)



                                                                            PAGE
                                                                            ----
                                                                         

ARTICLE V PARENT REPRESENTATIONS AND WARRANTIES .........................    40
      Section 5.1   Organization ........................................    40
      Section 5.2   Capitalization ......................................    41
      Section 5.3   Authority; Consents and Approvals; No Violations ....    42
      Section 5.4   Parent SEC Filings; Financial Statements ............    43
      Section 5.5   Absence of Certain Changes ..........................    45
      Section 5.6   No Undisclosed Liabilities ..........................    45
      Section 5.7   Parent Material Contracts ...........................    46
      Section 5.8   Intellectual Property; Privacy ......................    46
      Section 5.9   Taxes ...............................................    47
      Section 5.10  Merger Subs .........................................    47
      Section 5.11  Availability of Funds ...............................    47
      Section 5.12  Litigation ..........................................    47
      Section 5.13  Compliance with Laws ................................    47
      Section 5.14  Brokers' and Finders' Fees ..........................    48
      Section 5.15  Opinion of Financial Advisor ........................    48
ARTICLE VI CONDUCT OF THE COMPANY'S BUSINESS PENDING THE MERGERS ........    48
      Section 6.1   Interim Conduct of the Company ......................    48
      Section 6.2   Acquisition Proposals ...............................    53
ARTICLE VII CONDUCT OF PARENT'S BUSINESS PENDING THE MERGERS ............    55
      Section 7.1   Interim Conduct of Parent ...........................    55
      Section 7.2   Acquisition Proposals ...............................    56
ARTICLE VIII ADDITIONAL AGREEMENTS ......................................    58
      Section 8.1   Approval of Transactions; Stockholders' Meetings ....    58
      Section 8.2   Approval by Parent ..................................    59
      Section 8.3   Parent Proxy Statement; Registration Statement ......    60
      Section 8.4   Confidentiality .....................................    62
      Section 8.5   Public Disclosure ...................................    62
      Section 8.6   Listing of Parent Shares ............................    62
      Section 8.7   Form S-8 ............................................    63
      Section 8.8   Board of Directors ..................................    63
      Section 8.9   Affiliates ..........................................    63
      Section 8.10  Access to Information ...............................    63
      Section 8.11  Notification ........................................    64
      Section 8.12  Regulatory Filings; Reasonable Efforts ..............    64
      Section 8.13  Anti-Takeover Laws ..................................    67
      Section 8.14  Rescission Offer ....................................    67
      Section 8.15  Resignations and Appointments .......................    67
      Section 8.16  Employee Benefits ...................................    68
      Section 8.17  Veritas Agreement ...................................    69
      Section 8.18  Financial Statements and Consents of Accountants ....    69
      Section 8.19  Subsequent Financial Statements .....................    69



                                                                            -ii-


                                TABLE OF CONTENTS
                                   (CONTINUED)



                                                                            PAGE
                                                                            ----
                                                                         

      Section 8.20  Conveyance and Other Taxes ..........................    69
      Section 8.21  Company Stock Options ...............................    70
      Section 8.22  Section 16 Matters ..................................    70
      Section 8.23  Transaction Expenses ................................    70
      Section 8.24  Indemnification .....................................    70
      Section 8.25  Treatment as Reorganization .........................    71
      Section 8.26  Merger Sub Compliance ...............................    72
      Section 8.27  FIRPTA Certificate ..................................    72
      Section 8.28  Withdrawal of Company Form S-1 ......................    72
      Section 8.29  280G Approval .......................................    72
      Section 8.30  HoldCo Domestication ................................    72
      Section 8.31  Transaction Structure ...............................    72
ARTICLE IX CONDITIONS ...................................................    73
      Section 9.1   Conditions to Each Party's Obligation to Effect the
                    Mergers .............................................    73
      Section 9.2   Additional Conditions to Obligations of Parent to
                    Effect the Mergers ..................................    74
      Section 9.3   Additional Conditions to Obligation of HoldCo and the
                    Company to Effect the Mergers .......................    76
      Section 9.4   Condition to the Second HoldCo Merger ...............    78
      Section 9.5   Condition to the Company Merger .....................    78
      Section 9.6   Condition to the Second Company Merger ..............    78
ARTICLE X TERMINATION ...................................................    78
      Section 10.1  Termination .........................................    78
      Section 10.2  Notice of Termination; Effect of Termination ........    80
      Section 10.3  Fees and Expenses ...................................    80
      Section 10.4  Amendment ...........................................    81
      Section 10.5  Extension; Waiver ...................................    81
ARTICLE XI DEFINITIONS AND INTERPRETATION ...............................    82
      Section 11.1  Definitions .........................................    82
      Section 11.2  Interpretation ......................................    87
ARTICLE XII MISCELLANEOUS ...............................................    88
      Section 12.1  Non-Survival of Representations and Warranties ......    88
      Section 12.2  Notices .............................................    88
      Section 12.3  Counterparts ........................................    90
      Section 12.4  Entire Agreement; Third Party Beneficiaries .........    90
      Section 12.5  Severability ........................................    91
      Section 12.6  Other Remedies; Specific Performance ................    91
      Section 12.7  Governing Law .......................................    91
      Section 12.8  Rules of Construction ...............................    91
      Section 12.9  Assignment ..........................................    91
      Section 12.10 No Waiver; Remedies Cumulative ......................    92
      Section 12.11 Waiver of Jury Trial ................................    92



                                                                           -iii-




                                INDEX OF EXHIBITS

     Exhibit A     Stockholder Agreement

     Exhibit B-1   HoldCo Stockholder Support Agreement

     Exhibit B-2   HoldCo Support Agreement

     Exhibit C     Form of Voting Agreement



                          AGREEMENT AND PLAN OF MERGER

            This AGREEMENT AND PLAN OF MERGER (this "Agreement"), is entered
into as of July 18, 2003 by and among Business Objects S.A., a societe anonyme
organized under the laws of the Republic of France ("Parent"), Borg Merger Sub
I, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Parent
("Merger Sub 1"), Borg Merger Sub II, Inc., a Delaware corporation and a direct
wholly-owned subsidiary of Parent ("Merger Sub 2"), Borg Merger Sub III, Inc., a
Delaware corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub
3"), Seagate Software (Cayman) Holdings, an exempted company incorporated in the
Cayman Islands ("HoldCo"), and Crystal Decisions, Inc., a Delaware corporation
(the "Company").

                                    RECITALS

            WHEREAS, the parties to this Agreement contemplate a transaction
pursuant to which (1) Merger Sub 1 will merge with and into HoldCo (the "HoldCo
Merger"), (2) immediately following the HoldCo Merger, the surviving corporation
of the HoldCo Merger will merge with and into Merger Sub 2 (the "Second HoldCo
Merger"), (3) immediately following the Second HoldCo Merger, Merger Sub 3 will
merge with and into the Company (the "Company Merger"), and (4) immediately
following the Company Merger, the surviving corporation of the Company Merger
will merge with and into the surviving corporation of the Second HoldCo Merger
(the "Second Company Merger," and together with the HoldCo Merger, the Second
HoldCo Merger and the Company Merger, the "Mergers");

            WHEREAS, the board of directors of each of Parent, Merger Sub 1,
Merger Sub 2, Merger Sub 3, HoldCo and the Company has approved, and deems it
advisable and in the best interests of such corporation and its stockholders to
consummate, to the extent applicable, the Mergers upon the terms and subject to
the conditions set forth herein;

            WHEREAS, the board of directors of each of Parent, Merger Sub 1,
Merger Sub 2, Merger Sub 3, HoldCo and the Company has unanimously approved this
Agreement and the transactions contemplated hereby, including, to the extent
applicable, the Mergers, in accordance with applicable law and upon the terms
and subject to the conditions set forth herein;

            WHEREAS, the board of directors of Parent has resolved to recommend
to its stockholders the approval and adoption of this Agreement and the approval
of the Mergers and the other transactions contemplated hereby;

            WHEREAS, New SAC, a Cayman Islands corporation (the "HoldCo
Stockholder"), as the sole stockholder of HoldCo, has approved and adopted this
Agreement and approved the HoldCo Merger;

            WHEREAS, concurrently with the execution and delivery of this
Agreement, and as a condition and inducement to the willingness of Parent,
Merger Sub 1, Merger Sub 2, Merger Sub 3 to enter into this Agreement, HoldCo
Stockholder is



entering into (i) a stockholder agreement in the form attached hereto as Exhibit
A and (ii) a support agreement in the form attached hereto as Exhibit B-1;

            WHEREAS, concurrently with the execution and delivery of this
Agreement, and as a condition and inducement to the willingness of Parent,
Merger Sub 1, Merger Sub 2, Merger Sub 3 to enter into this Agreement, HoldCo is
entering into a support agreement in the form attached hereto as Exhibit B-2;

            WHEREAS, Parent, as the sole stockholder of Merger Sub1, Merger Sub
2 and Merger Sub 3, has approved and adopted this Agreement and approved the
Mergers;

            WHEREAS, concurrently with the execution and delivery of this
Agreement, and as a condition and inducement to the willingness of HoldCo and
the Company to enter into this Agreement, certain of Parent's stockholders are
entering into voting agreements in the form attached hereto as Exhibit C (the
"Voting Agreements");

            WHEREAS, concurrently with the execution and delivery of this
Agreement, and as a condition and inducement to Parent's and Merger Sub's
willingness to enter into this Agreement, HoldCo Stockholder is entering into an
indemnification agreement;

            WHEREAS, for United States federal income tax purposes, the parties
intend that the HoldCo Merger when taken together with the Second HoldCo Merger
and the Company Merger when taken together with the Second Company Merger each
qualify as a "reorganization" under the provisions of Section 368(a) of the
Internal Revenue Code of 1986, as amended, and the rules and regulations
promulgated thereunder (the "Code"), and the parties intend, by executing this
Agreement, that this Agreement constitute a "plan of reorganization" for each
such merger within the meaning of Treasury Regulation Section 1.368-2(g); and

            WHEREAS, Parent, Merger Sub 1, Merger Sub 2, Merger Sub 3, HoldCo
and the Company each desires to make certain representations, warranties,
covenants and agreements in connection with the Mergers and the other
transactions contemplated hereby and also to prescribe certain conditions to the
Mergers.

            NOW, THEREFORE, in consideration of the foregoing and the respective
covenants, agreements, representations and warranties set forth herein,
intending to be legally bound, the parties agree as follows:


                                                                             -2-





                                    ARTICLE I

                                   THE MERGERS

            Section 1.1 The Mergers.

                  (a) HoldCo Merger. Subject to the terms and conditions of this
Agreement and the applicable provisions of the Delaware General Corporation Law
(the "DGCL"), at the HoldCo Merger Effective Time, Merger Sub 1 will be merged
with and into HoldCo. As a result of the HoldCo Merger, the separate corporate
existence of Merger Sub 1 will cease and HoldCo will continue as the surviving
corporation in the HoldCo Merger (the "HoldCo Merger Surviving Corporation").

                  (b) Second HoldCo Merger. Subject to the terms and conditions
of this Agreement and the applicable provisions of the DGCL, immediately after
the HoldCo Merger, the HoldCo Merger Surviving Corporation will be merged with
and into Merger Sub 2. As a result of the Second HoldCo Merger, the separate
corporate existence of the HoldCo Merger Surviving Corporation will cease and
Merger Sub 2 will continue as the surviving corporation in the Second HoldCo
Merger (the "Second HoldCo Merger Surviving Corporation").

                  (c) Company Merger. Subject to the terms and conditions of
this Agreement and the applicable provisions of the DGCL, immediately after the
Second HoldCo Merger, Merger Sub 3 will be merged with and into the Company. As
a result of the Company Merger, the separate corporate existence of Merger Sub 3
will cease and the Company will continue as the surviving corporation in the
Company Merger (the "Company Merger Surviving Corporation").

                  (d) Second Company Merger. Subject to the terms and conditions
of this Agreement and the applicable provisions of the DGCL, immediately after
the Company Merger, the Company Merger Surviving Corporation will be merged with
and into the Second HoldCo Merger Surviving Corporation. As a result of the
Second Company Merger, the separate corporate existence of the Company Merger
Surviving Corporation will cease and the Second HoldCo Merger Surviving
Corporation will continue as the surviving corporation in the Second Company
Merger (the "Surviving Corporation").

            Section 1.2 Effective Times. On the Closing Date, Parent, Merger Sub
1, Merger Sub 2, Merger Sub 3 and the Company will cause the Mergers to be
consummated by filing the following certificates of merger with the Secretary of
State of the State of Delaware in accordance with the relevant provisions of the
DGCL and other applicable law:

                  (a) a certificate of merger with regard to the HoldCo Merger
(the "HoldCo Certificate of Merger") and, immediately thereafter, a certificate
of merger


                                                                             -3-



with regard to the Second HoldCo Merger (the "Second HoldCo Certificate of
Merger"); and

                  (b) a certificate of merger with regard to the Company Merger
(the "Company Certificate of Merger") and, immediately thereafter, a certificate
of merger with regard to the Second Company Merger (the "Second Company
Certificate of Merger").

                  The HoldCo Merger will become effective on the date that the
HoldCo Certificate of Merger is filed with the Secretary of State of the State
of Delaware, or such other time as agreed in writing by Parent and the Company
and specified in the HoldCo Certificate of Merger (such time, the "HoldCo Merger
Effective Time"). The Second HoldCo Merger will become effective immediately
after the HoldCo Merger Effective Time, or such other time as agreed in writing
by Parent and the Company and specified in the Second HoldCo Certificate of
Merger (such time, the "Second HoldCo Merger Effective Time"). The Company
Merger will become effective on the date that the Company Certificate of Merger
is filed with the Secretary of State of the State of Delaware, or such other
time as agreed in writing by Parent and the Company and specified in the Company
Certificate of Merger (such time, the "Company Merger Effective Time"). The
Second Company Merger will become effective immediately after the Company Merger
Effective Time, or such other time as agreed in writing by Parent and the
Company and specified in the Second Company Certificate of Merger (such time,
the "Second Company Merger Effective Time").

            Section 1.3 Closing.

                  (a) Closing Date. Subject to the terms of Article IX, the
closing of the Mergers (the "Closing") will take place at 6:00 a.m. California
time at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, 525 University
Avenue, Palo Alto, California, 94301, as soon as practicable, but in any event
within two (2) business days after the satisfaction or waiver of all of the
conditions set forth in Article IX (other than the condition specified in
Section 9.1(a) and those conditions which by their terms are to be satisfied at
the Closing) unless Parent, HoldCo and the Company agree in writing to another
time, date or location (the "Closing Date").

                  (b) Closing Actions.

                        (i) On the Closing Date the following shall occur in the
      following order:

                              (1) the HoldCo Certificate of Merger shall be
      filed with the Secretary of State of the State of Delaware and 100% of the
      HoldCo Stockholder's equity interest in HoldCo, together with 100% of
      Option Sub's equity interest in HoldCo will be transferred to Parent (the
      transfer of the HoldCo's Stockholder's equity interest in HoldCo, the
      "HoldCo Stockholder's Contribution," the transfer of Option Sub's equity
      interest in HoldCo, the "Option Sub's Contribution" and, collectively with
      the HoldCo Stockholder's Contribution, the "HoldCo Contributions");



                                                                             -4-


                              (2) the Second HoldCo Certificate of Merger shall
      be filed with the Secretary of State of the State of Delaware;

                              (3) the Company Certificate of Merger shall be
      filed with the Secretary of State of the State of Delaware and 100% of the
      equity interest of the Contributing Company Common Stockholders' interest
      in the Company will be transferred to Parent (the "Contributing Company
      Common Stockholders' Contributions" and, collectively with the HoldCo
      Contributions, the "Contributions"); and

                              (4) the Second Company Certificate of Merger shall
      be filed with the Secretary of State of the State of Delaware;

                        (ii) In addition, on the Closing Date the following
      shall also occur:

                              (1) The Parent stockholders shall meet and approve
      (x) the Mergers, (y) the issuance of Parent Shares to the HoldCo Common
      Stockholders, Option Sub and the Contributing Company Common Stockholders
      in the amounts to which such stockholders are entitled pursuant to
      Sections 2.1(a), 2.1(b) and 2.3(a)(i) hereof in consideration of the
      Contributions (the "Capital Increase"), and (z) the appointment of two
      additional members to Parent's board of directors; and

                              (2) Parent's board of directors shall take the
      necessary steps to implement the Capital Increase and cause the payment of
      the Per Share Cash Consideration.

            Section 1.4 Effects of the Mergers.

                  (a) HoldCo Merger. At the HoldCo Merger Effective Time, the
HoldCo Merger will have the effects as provided in this Agreement and the
applicable provisions of the DGCL. Without limiting the generality of the
foregoing, and subject thereto, at the HoldCo Merger Effective Time, all the
property, rights, privileges, powers and franchises of Merger Sub 1 will vest in
the HoldCo Merger Surviving Corporation, and all debts, liabilities,
obligations, restrictions, disabilities and duties of Merger Sub 1 will become
the debts, liabilities, obligations, restrictions, disabilities and duties of
the HoldCo Merger Surviving Corporation.

                  (b) Second HoldCo Merger. At the Second HoldCo Merger
Effective Time, the Second HoldCo Merger will have the effects as provided in
this Agreement and the applicable provisions of the DGCL. Without limiting the
generality of the foregoing, and subject thereto, at the Second HoldCo Merger
Effective Time, all the property, rights, privileges, powers and franchises of
the HoldCo Merger Surviving Corporation will vest in the Second HoldCo Merger
Surviving Corporation, and all debts, liabilities, obligations, restrictions,
disabilities and duties of the HoldCo Merger Surviving Corporation will become
the debts, liabilities, obligations, restrictions, disabilities and duties of
the Second HoldCo Merger Surviving Corporation.



                                                                             -5-


                  (c) Company Merger. At the Company Merger Effective Time, the
Company Merger will have the effect as provided in this Agreement and the
applicable provisions of the DGCL. Without limiting the generality of the
foregoing, and subject thereto, at the Company Merger Effective Time, all the
property, rights, privileges, powers and franchises of Merger Sub 3 will vest in
Company Merger Surviving Corporation, and all debts, liabilities, obligations,
restrictions, disabilities and duties of Merger Sub 3 will become the debts,
liabilities, obligations, restrictions, disabilities and duties of the Company
Merger Surviving Corporation.

                  (d) Second Company Merger. At the Second Company Merger
Effective Time, the Second Company Merger will have the effect as provided in
this Agreement and the applicable provisions of the DGCL. Without limiting the
generality of the foregoing, and subject thereto, at the Second Company Merger
Effective Time, all the property, rights, privileges, powers and franchises of
the Company Merger Surviving Corporation will vest in Surviving Corporation, and
all debts, liabilities, obligations, restrictions, disabilities and duties of
the Company Merger Surviving Corporation will become the debts, liabilities,
obligations, restrictions, disabilities and duties of the Surviving Corporation.

            Section 1.5 Certificates of Incorporation and Bylaws.

                  (a) HoldCo Merger. At the HoldCo Merger Effective Time, (i)
the certificate of incorporation of Merger Sub 1, as in effect immediately prior
to the HoldCo Merger Effective Time, will be the certificate of incorporation of
the HoldCo Merger Surviving Corporation, until thereafter amended as provided by
law and such certificate of incorporation, and (ii) the bylaws of Merger Sub 1,
as in effect immediately prior to the HoldCo Merger Effective Time, will be the
bylaws of the HoldCo Merger Surviving Corporation until thereafter amended as
provided by law, the certificate of incorporation of the HoldCo Merger Surviving
Corporation and such bylaws.

                  (b) Second HoldCo Merger. At the Second HoldCo Merger
Effective Time, (i) the certificate of incorporation of Merger Sub 2, as in
effect immediately prior to the Second HoldCo Merger Effective Time, will be the
certificate of incorporation of the Second HoldCo Merger Surviving Corporation,
until thereafter amended as provided by law and such certificate of
incorporation, and (ii) the bylaws of Merger Sub 2, as in effect immediately
prior to the Second HoldCo Merger Effective Time, will be the bylaws of the
Second HoldCo Merger Surviving Corporation until thereafter amended as provided
by law, the certificate of incorporation of the Second HoldCo Merger Surviving
Corporation and such bylaws.

                  (c) Company Merger. At the Company Merger Effective Time, (i)
the certificate of incorporation of Merger Sub 3, as in effect immediately prior
to the Company Merger Effective Time, will be the certificate of incorporation
of the Company Merger Surviving Corporation, until thereafter amended as
provided by law and such certificate of incorporation, and (ii) the bylaws of
Merger Sub 3, as in effect immediately prior to the Company Merger Effective
Time, will be the bylaws of the Company Merger Surviving Corporation until
thereafter amended as provided by law, the


                                                                             -6-


certificate of incorporation of the Company Merger Surviving Corporation and
such bylaws.

                  (d) Second Company Merger. At the Second Company Merger
Effective Time, (i) the certificate of incorporation of the Second HoldCo Merger
Surviving Corporation, as in effect immediately prior to the Second Company
Merger Effective Time, will be the certificate of incorporation of the Surviving
Corporation, until thereafter amended as provided by law and such certificate of
incorporation, and (ii) the bylaws of the Second HoldCo Surviving Corporation,
as in effect immediately prior to the Second Company Merger Effective Time, will
be the bylaws of the Surviving Corporation until thereafter amended as provided
by law, the certificate of incorporation of the Surviving Corporation and such
bylaws.

            Section 1.6 Directors and Officers.

                  (a) HoldCo Merger. The directors of Merger Sub 1 immediately
prior to the HoldCo Merger Effective Time will be the initial directors of the
HoldCo Merger Surviving Corporation, each to hold office in accordance with the
certificate of incorporation and bylaws of the HoldCo Merger Surviving
Corporation, until their respective successors are duly elected or appointed and
qualified. The officers of Merger Sub 1 immediately prior to the HoldCo Merger
Effective Time will be the initial officers of the HoldCo Merger Surviving
Corporation until their respective successors are duly appointed.

                  (b) Second HoldCo Merger. The directors of the HoldCo Merger
Surviving Corporation immediately prior to the Second HoldCo Merger Effective
Time will be the initial directors of the Second HoldCo Merger Surviving
Corporation, each to hold office in accordance with the certificate of
incorporation and bylaws of the Second HoldCo Merger Surviving Corporation,
until their respective successors are duly elected or appointed and qualified.
The officers of the HoldCo Merger Surviving Corporation immediately prior to the
Second HoldCo Merger Effective Time will be the initial officers of the Second
HoldCo Merger Surviving Corporation until their respective successors are duly
appointed.

                  (c) Company Merger. The directors of Merger Sub 3 immediately
prior to the Company Merger Effective Time will be the initial directors of the
Company Merger Surviving Corporation, each to hold office in accordance with the
certificate of incorporation and bylaws of the Company Merger Surviving
Corporation, until their respective successors are duly elected or appointed and
qualified. The officers of Merger Sub 3 immediately prior to the Second Company
Merger Effective Time will be the initial officers of Merger Sub 3 until their
respective successors are duly appointed.

                  (d) Second Company Merger. The directors of the Second HoldCo
Merger Surviving Corporation immediately prior to the Second Company Merger
Effective Time will be the initial directors of the Surviving Corporation, each
to hold office in accordance with the certificate of incorporation and bylaws of
the Surviving Corporation, until their respective successors are duly elected or
appointed and


                                                                             -7-


qualified. The officers of the Second HoldCo Merger Surviving Corporation
immediately prior to the Second Company Merger Effective Time will be the
initial officers of the Surviving Corporation until their respective successors
are duly appointed.

                                   ARTICLE II

                            CONVERSION OF SECURITIES

            Section 2.1 HoldCo Merger - Treatment of Securities. At the HoldCo
Merger Effective Time, by virtue of the HoldCo Merger and without any action on
the part of any party, the following will occur:

                  (a) HoldCo Common Stock. Each share of HoldCo's common stock,
par value $1.00 per share (the "HoldCo Common Stock"), issued and outstanding
immediately prior to the HoldCo Merger Effective Time, will be automatically
converted into the right to receive the Common Stock Merger Consideration
multiplied by a fraction, (i) the numerator of which shall equal the Majority
Shares and (ii) the denominator of which shall be the number of issued and
outstanding shares of HoldCo Common Stock.

                  (b) HoldCo Preferred Stock. Each share of HoldCo preferred
stock, par value $0.001 per share (the "HoldCo Preferred Stock"), issued in
accordance with the provisions of Section 8.21 and held by Option Sub
immediately and outstanding prior to the HoldCo Merger Effective Time, will be
automatically converted into the right to receive a number of Parent Shares
equal to the product of the Closing Stock Option Number and the Option Exchange
Ratio.

                  (c) Capital Stock of Merger Sub 1. Each share of common stock,
par value $0.001, of Merger Sub 1 issued and outstanding immediately prior to
the HoldCo Merger Effective Time shall be converted into one validly issued,
fully paid and nonassessable share of common stock, par value $0.001 per share,
of the HoldCo Merger Surviving Corporation.

            Section 2.2 Second HoldCo Merger - Treatment of Securities. At the
Second HoldCo Merger Effective Time, by virtue of the Second HoldCo Merger and
without any action on the part of any party, the following will occur:

                  (a) Capital Stock of HoldCo Merger Surviving Corporation. All
of the shares of the HoldCo Merger Surviving Corporation common stock, par value
$0.001 per share, issued and outstanding immediately prior to the Second HoldCo
Merger Effective Time, will be automatically converted into the right to receive
the equal number of shares of common stock, par value $0.001 per share, of
Merger Sub 2; and

                  (b) Capital Stock of Merger Sub 2. Each share of common stock,
par value $0.001, of Merger Sub 2 issued and outstanding immediately prior to
the Second HoldCo Merger Effective Time shall remain issued and outstanding
immediately after the Second HoldCo Merger Effective Time.



                                                                             -8-


            Section 2.3 Company Merger - Treatment of Securities. At the Company
Merger Effective Time, by virtue of the Company Merger and without any action on
the part of any party, the following will occur:

                  (a) Company Common Stock. Each share of the Company's common
stock, par value $0.001 per share (the "Company Common Stock"), issued and
outstanding immediately prior to the Company Merger Effective Time, other than
Dissenting Shares (as defined in Section 2.6(i)), held by stockholders of the
Company other than the Second HoldCo Merger Surviving Corporation (the
"Contributing Company Common Stockholders"), will be automatically converted
into the right to receive:

                        (i) such number of validly issued and fully paid
      American depositary shares ("Parent ADSs"), each Parent ADS representing
      one validly issued and fully paid ordinary share, nominal value EUR 0.10
      per share, of Parent (a "Parent Ordinary Share," referred to
      interchangeably with a Parent ADS in this Agreement as a "Parent Share")
      as is equal to the Common Stock Exchange Ratio); provided, however, that
      each holder of shares of Company Common Stock may elect to receive, with
      respect to any or all Parent ADSs to which it is entitled pursuant to this
      Article II, in lieu of each Parent ADS, one Parent Ordinary Share; and

                        (ii) an amount in cash, without interest, equal to the
      Per Share Cash Consideration.

                  (b) Certain Definitions. As used in this Agreement, the
following terms shall be described as set forth in this Section 2.3(b).

                        (i) "Closing Common Stock Number" shall mean the
      aggregate number of shares of Company Common Stock issued and outstanding
      immediately prior to the HoldCo Merger Effective Time.

                        (ii) "Closing Option Exercise Proceeds" shall mean the
      aggregate gross cash proceeds actually received by the Company from the
      exercise of Company Stock Options between the date hereof and the HoldCo
      Merger Effective Time.

                        (iii) "Closing Options Intrinsic Value" shall mean (i)
      the product of (A) the Common Stock Closing Value and (B) the Closing
      Stock Option Number, minus (ii) the Unexercised Options Proceeds Amount.

                        (iv) "Common Stock Closing Value" shall mean a fraction
      (i) the numerator of which shall be the sum of (A) the Closing Treasury
      Common Stock Amount, plus (B) $300,000,000, plus (C) the Unexercised
      Options Proceeds Amount, plus (D) the Closing Option Exercise Proceeds,
      and (ii) the denominator of which shall be the sum of


                                                                             -9-


      (A) the Closing Common Stock Number and (B) the Closing Stock Option
      Number.

                        (v) "Common Stock Exchange Ratio" shall mean a fraction
      (i) the numerator of which shall equal the total of Factor One minus
      Factor Two minus Factor Three plus Factor Four, and (ii) the denominator
      of which shall equal the Closing Common Stock Number.

                        (vi) "Common Stock Merger Consideration" shall mean the
      Per Share Cash Consideration and the Common Stock Exchange Ratio.

                        (vii) "Closing Stock Option Number" shall mean the
      aggregate number of shares of Company Common Stock issuable upon exercise
      of all Company Stock Options granted and outstanding whether or not vested
      immediately prior to the HoldCo Merger Effective Time other than those
      that terminate as a result of the transactions contemplated hereby.

                        (viii) "Closing Treasury Common Stock Amount" shall mean
      the product of (i) the difference of Factor One minus Factor Two, and (ii)
      the Parent Share Closing Date Price.

                        (ix) "Factor One" shall mean 40,488,135.

                        (x) "Factor Two" shall mean a fraction (i) the numerator
      of which shall be $300,000,000 and (ii) the denominator of which shall be
      the Parent Share Signing Date Price.

                        (xi) "Factor Three" shall mean a fraction (i) the
      numerator of which shall be the Closing Options Intrinsic Value and (ii)
      the denominator of which shall be the Parent Share Closing Date Price.

                        (xii) "Factor Four" shall mean a fraction (i) the
      numerator shall be the product of (A) 0.609537 and (B) the Closing Option
      Exercise Proceeds and (ii) the denominator of which shall be the Parent
      Share Closing Date Price.

                        (xiii) "Option Exchange Ratio" shall mean a fraction (i)
      the numerator of which shall be the Common Stock Closing Value and (ii)
      the denominator of which shall be the Parent Share Closing Date Price.

                        (xiv) "Parent Share Closing Date Price" shall mean the
      average of the closing sale prices of Parent ADSs on the Nasdaq National
      Market for the ten (10) trading days ending on, and including, the third
      trading day prior to the HoldCo Merger Effective Time.



                                                                            -10-


                        (xv) "Parent Share Signing Date Price" shall mean the
      average of the closing sale prices of Parent ADSs on the Nasdaq National
      Market for the ten (10) trading days ending on, and including, the third
      trading day prior to the date hereof.

                        (xvi) "Per Share Cash Consideration" shall mean a
      fraction (i) the numerator of which shall mean the sum of (A) $300,000,000
      and (B) the product of (1) 0.390463 and (2) the Closing Option Exercise
      Proceeds, and (ii) the denominator of which shall be the Closing Common
      Stock Number.

                        (xvii) "Unexercised Options Proceeds Amount" shall mean
      the aggregate gross cash proceeds that would be received by the Company
      upon exercise of all Company Stock Options, vested or unvested, granted
      and outstanding immediately prior to the HoldCo Merger Effective Time
      other than those that terminate as a result of the transactions
      contemplated hereby.

                  (c) Capital Stock of Merger Sub 3. Each share of common stock,
par value $0.001, of Merger Sub 3 issued and outstanding immediately prior to
the Company Merger Effective Time shall be converted into one validly issued,
fully paid and nonassessable share of common stock, par value $0.001 per share,
of the Company Merger Surviving Corporation.

                  (d) Company Merger Surviving Corporation Stock Options. At the
Company Merger Effective Time, each option to acquire shares of Company Common
Stock outstanding immediately prior to the Company Merger Effective Time (the
"Company Stock Options") granted pursuant to the Company's 1999 Stock Option
Plan, other than options granted under the U.K. Subplan, whether vested or
unvested, will be converted into an option to acquire such number of validly
issued and fully paid Parent ADSs in accordance with this Section 2.3(d). At the
Company Merger Effective Time, each Company Stock Option so converted will be
deemed to constitute an option to acquire, on substantially the same terms and
conditions as were applicable to such Company Stock Option, a number of Parent
ADSs equal to the product (rounded down to the nearest whole Parent ADS) of (i)
the number of shares of Company Common Stock that were issuable upon exercise of
such Company Stock Option immediately prior to the Company Merger Effective Time
multiplied by (ii) the Option Exchange Ratio; and the per share exercise price
of each such Company Stock Option shall be adjusted by dividing (y) the per
share exercise price of each such Company Stock Option by (z) the Option
Exchange Ratio, and rounding up to the nearest cent. Except as provided in the
immediately preceding sentence, the Company Stock Options will continue to be
exercisable upon the same terms and conditions as were applicable to such
Company Stock Options immediately prior to the Company Merger Effective Time
except that, upon exercise of such Company Stock Options, the holders thereof
will receive Parent ADSs held by a wholly-owned subsidiary initially formed by
HoldCo (the "Option Sub"). Merger Sub 2, as holder of Option Sub, shall be
obligated to distribute Option Sub to its stockholder as soon as practicable
after consummation of the Mergers. It is the intention of the parties that the
Company Stock Options so assumed by Parent qualify, to the


                                                                            -11-


maximum extent permissible following the Company Merger Effective Time as
incentive stock options as defined in Section 422 of the Code, to the extent the
Company Stock Options so assumed qualified as incentive stock options prior to
the Company Merger Effective Time. Notwithstanding the foregoing, as of the
Company Merger Effective Time, all options outstanding under the 2000 Stock
Option Plan and the U.K. Subplan under the 1999 Stock Option Plan shall not be
assumed and shall accelerate and become fully vested and exercisable and to the
extent not exercised as of the Company Merger Effective Time, together with the
2000 Stock Option Plan, shall terminate and be of no force and effect.
Notwithstanding the foregoing, as of the Company Merger Effective Time, each
Company Stock Option granted to each member of the board of directors of the
Company pursuant to the Company Option Plans (each, a "Director Stock Option")
shall accelerate and become fully vested and exercisable as to one hundred
percent (100%) of the shares subject to each Director Stock Option.

                  (e) Stock Option Notice. As soon as practicable (but in no
event later than five (5) business days) after the Effective Time, Parent will,
or will cause the Surviving Corporation to, deliver to the holders of Company
Stock Options appropriate notices setting forth such holders' rights pursuant to
the 1999 Stock Option Plan and that the agreements evidencing the grants of such
options will continue in effect on the same terms and conditions (subject to the
adjustments required by this Article II after giving effect to the Mergers).

                  (f) Reclassifications, Stock Splits, etc. Without duplication
of any required adjustments under applicable law, if after the date hereof and
prior to the Effective Time, any change in the outstanding shares of capital
stock of any party, including by reason of any reclassification,
recapitalization, stock split or combination, exchange or readjustment of
shares, or any stock dividend thereon with a record date during such period, the
Common Stock Exchange Ratio, Per Share Cash Consideration, Option Exchange Ratio
and any other amounts payable to holders of shares of capital stock of HoldCo or
the Company pursuant to this Agreement will be appropriately adjusted to provide
such holders the same economic effect as contemplated by this Agreement prior to
such event.

            Section 2.4 Second Company Merger - Treatment of Securities. At the
Second Company Merger Effective Time, by virtue of the Second Company Merger and
without any action on the part of any party, the following will occur:

                  (a) Capital Stock of Company Merger Surviving Corporation. All
of the shares of the Company Merger Surviving Corporation common stock, par
value $0.001 per share, issued and outstanding immediately prior to the Second
Company Merger Effective Time, will be automatically converted into the right to
receive the equal number of shares of the Surviving Corporation, par value
$0.001 per share; and

                  (b) Capital Stock of the Surviving Corporation. Each share of
common stock, par value $0.001, of the Second HoldCo Merger Surviving
Corporation issued and outstanding immediately prior to the Second Company
Merger Effective Time shall remain issued and outstanding immediately after the
Second Company Merger Effective Time.



                                                                            -12-


            Section 2.5 Exchange and Payment.

                  (a) Depositary; Exchange Agent. Promptly following the Capital
Increase, Parent shall deliver to BNP Paribas, as depositary ("BNP Paribas"),
for the benefit of holders of Certificates, the Parent Ordinary Shares being
issued pursuant to the Capital Increase, cash in an amount sufficient to pay the
aggregate cash consideration payable pursuant to this Article II and to make any
payment in lieu of fractional Parent Shares and any dividends or distributions
to which holders of Certificates may be entitled. BNP Paribas, from time to time
and to the extent required, shall deposit with The Bank of New York, as exchange
agent ("The Bank of New York"), for the benefit of the holders of Certificates
that elect to receive Parent ADSs, Parent Ordinary Shares, the underlying cash
in an amount sufficient for payment in lieu of fractional Parent ADSs pursuant
to Section 2.6(b) and any dividends or distributions to which holders of
Certificates electing to receive Parent ADSs are entitled to receive pursuant to
this Article II in exchange for Certificates (Parent Shares and cash provided to
BNP Paribas, whether held by the BNP Paribas or The Bank of New York, the
"Exchange Fund").

                  (b) Exchange Procedures. Except as set forth in Section 2.6,
promptly after the Effective Time, the Surviving Corporation will cause BNP
Paribas to deliver to each holder of record of a certificate or certificates
that, immediately prior to the Closing, represented outstanding shares of
Company Common Stock or HoldCo Common Stock (as the case may be, the
"Certificates") (i) a letter of transmittal that will specify that delivery will
be effected, and risk of loss and title to the Certificates will pass, only upon
proper delivery of the Certificates to the BNP Paribas and which will be in the
form and have such other provisions as Parent and BNP Paribas may reasonably
specify and which letter of transmittal will include a form of election by which
each such holder is entitled to elect to receive Parent Ordinary Shares rather
than all or any portion of the Parent ADSs which such holder is entitled to
receive upon surrender of a Certificate in accordance with this Section 2.5 and
(ii) instructions for use in effecting the surrender of the Certificates in
exchange for a number of whole Parent Shares, amount of Per Share Cash
Consideration, cash in lieu of fractional Parent Shares pursuant to the terms
hereof and dividends or distributions pursuant to Section 2.6(c), if any, into
which the number of shares of Company Common Stock or HoldCo Common Stock, as
the case may be, previously represented by such Certificate will have been
converted pursuant to this Agreement. Upon surrender of a Certificate for
cancellation to BNP Paribas, together with a letter of transmittal duly
completed and validly executed in accordance with the instructions thereto, and
such other documents as may be reasonably required by BNP Paribas, the holder of
such Certificates will be entitled to receive in exchange therefor the number of
whole Parent Shares for each share of Company Common Stock or HoldCo capital
stock, as the case may be, formerly represented by such Certificate (after
taking into account all Certificates surrendered by such holder) to which the
holder is entitled pursuant to the terms hereof, which will be delivered in
uncertificated form, the amount of Per Share Cash Consideration, cash in lieu of
fraction of Parent Shares which the holder has the right to receive and any
dividends or distributions payable, and the Certificate so surrendered will be
cancelled. BNP Paribas will accept such Certificates upon compliance with such
reasonable terms and conditions as BNP Paribas may impose to effect an orderly
exchange thereof in accordance with normal exchange practices. No


                                                                            -13-


interest will be paid or accrued for the benefit of holders of the Certificates
on the Per Share Cash Consideration or cash payable pursuant to Section 2.6(b)
and (c) below upon the surrender of the Certificates.

                  (c) HoldCo Preferred Stock Exchange Procedures. Promptly after
the Effective Time, BNP Paribas will cause to be delivered to the holder of all
outstanding shares of HoldCo Preferred Stock, as reflected in the books and
records of the Company at the HoldCo Merger Effective Time, the number of Parent
ADSs determined pursuant to Section 2.1(b).

            Section 2.6 Parent Shares.

                  (a) The Parent Shares to be issued in exchange for the shares
of HoldCo Common Stock and Company Stock pursuant to this Article II will be (i)
registered in the name of The Bank of New York and delivered in the form of
Parent ADSs, and such Parent ADSs will be issued in accordance with the Amended
and Restated Deposit Agreement, dated as of May 8, 1996, as amended and restated
as of December 30, 1998, among Parent, The Bank of New York, as depositary, and
the holders of Parent ADSs (as such agreement may be amended to deposit Parent
Ordinary Shares being issued pursuant to this Article II and to deliver Parent
ADSs being delivered hereto) or (ii) if and to the extent elected by any holder
of a Certificate in the manner provided in Section 2.5(b), registered in the
name of BNP Paribas and delivered in the form of Parent Ordinary Shares, in
book-entry form, rather than Parent ADSs.

                  (b) Fractional Shares. Notwithstanding any other provision of
this Agreement, no fraction of a Parent Share will be issued and no dividend or
other distribution, stock split or interest with respect to Parent Shares will
relate to any fractional Parent Share, and no such fractional interest will
entitle the owner thereof to any rights as a holder of a Parent Share. In lieu
of any such fractional security, each holder of shares of HoldCo capital stock
and Company Stock otherwise entitled to a fraction of Parent Share will be
entitled to receive in accordance with the provisions of this Section from BNP
Paribas or The Bank of New York, as the case may be (as appropriate, referred to
herein as the "Exchange Agent") a cash payment representing such holder's
proportionate interest in the net proceeds from the sale by the Exchange Agent
on behalf of all such holders of the aggregate of the fractions of Parent Shares
which would otherwise be issued (the "Excess Parent Shares"). The sale of the
Excess Parent Shares by the Exchange Agent will be executed in round lots to the
extent practicable. Until the net proceeds of such sale or sales have been
distributed to the former holders of shares of HoldCo capital stock and Company
Stock, the Exchange Agent will hold such proceeds in trust for the holders of
shares of HoldCo capital stock and Company Stock. Parent will pay all
commissions, transfer Taxes (other than those transfer Taxes for which the
stockholders of HoldCo and the Common are solely liable) and other out-of-pocket
transaction costs, including the expenses and compensation, of the Exchange
Agent incurred in connection with such sale of the Excess Parent Shares. As soon
as practicable after the determination of the amount of cash, if any, to be paid
to holders of shares of HoldCo capital stock and Company Stock in lieu of any
fractional Parent Shares, the Exchange Agent will make available such amounts to
such holders of shares of HoldCo capital stock and Company Stock without
interest.



                                                                            -14-


                  (c) Distributions with Respect to Unexchanged HoldCo Capital
Stock and Company Stock. No dividends, interest payments or other distributions
declared or paid after the Effective Time with respect to Parent Shares with a
record date after the Effective Time will be paid to any former holder of shares
of HoldCo capital stock and Company Stock with respect to Parent Shares
represented thereby until the amounts contemplated by Article II have been
delivered to such holder by the Exchange Agent. Subject to escheat, Tax or other
applicable law following such delivery, the Exchange Agent will deliver to the
holders of Parent Shares, without interest (i) at the time of such delivery, the
amount of dividends or other distributions payable in respect of such Parent
Shares with a record date after the Effective Time and a payment date on or
prior to the date of such delivery and (ii) at the appropriate payment date, the
amount of dividends, interest payments or other distributions, with a record
date after the Effective Time but a payment date occurring after delivery,
payable with respect to such Parent Shares.

                  (d) Transfers of Ownership. If amounts contemplated by Article
II to be paid such that Parent Shares are to be issued to, or cash is to be
remitted to, a Person other than the Person in whose name the surrendered
Certificate is registered, it will be a condition of such exchange that the
Certificates so surrendered will be properly endorsed and otherwise in proper
form for transfer and that the Person requesting such exchange will pay to the
Exchange Agent any transfer or other Taxes required by reason of the issuance of
Parent Shares or payment of cash to a Person other than the registered holder of
the Certificate surrendered, or established to the satisfaction of the Exchange
Agent that such Tax has been paid or is not payable.

                  (e) Transfer Books; No Further Ownership Rights In HoldCo
Common Stock. At the HoldCo Merger Effective Time, the stock transfer books of
HoldCo will be closed and thereafter there will be no further registration of
transfers of shares of HoldCo capital stock on the records of HoldCo. From and
after the HoldCo Merger Effective Time, the former holders of shares of HoldCo
capital stock will cease to have any rights with respect to such shares, except
as otherwise provided for herein or by applicable law. If, after the HoldCo
Merger Effective Time, Certificates in respect of HoldCo capital stock are
presented for any reason, they will be cancelled and exchanged as provided in
this Article II.

                  (f) Transfer Books; No Further Ownership Rights In Company
Stock. At the Company Merger Effective Time, the stock transfer books of the
Company will be closed and thereafter there will be no further registration of
transfers of shares of Company Stock on the records of the Company. From and
after the Company Merger Effective Time, the former holders of shares of Company
Stock will cease to have any rights with respect to such shares, except as
otherwise provided for herein or by applicable law. If, after the Company Merger
Effective Time, Certificates in respect of Company Common Stock are presented to
for any reason, they will be cancelled and exchanged as provided in this Article
II.

                  (g) Termination of Exchange Fund. Any portion of the Exchange
Fund which remains undistributed to the holders of Certificates six (6) months
after the Effective Time will, at the request of Parent, be delivered to Parent
to be held in


                                                                            -15-


trust for such holders. Such holders of Certificates will be entitled thereafter
only to look to Parent (subject to abandoned property, escheat, statute of
limitations or other similar laws) only as general creditors thereof with
respect to the Common Stock Merger Consideration and any cash in lieu of
fractional Parent Shares and any dividends or distributions payable upon due
surrender of the Certificates. Any portion of the Exchange Fund remaining
unclaimed by holders of shares of Company Common Stock or HoldCo capital stock
immediately prior to such time as such amounts otherwise would escheat to or
become property of any Governmental Entity will, to the extent permitted by
applicable law, become the property of Parent free and clear of any claims or
interest of any Person previously entitled thereto. Notwithstanding anything to
the contrary in this Section, neither BNP Paribas, The Bank of New York, Parent
nor any party hereto will be liable to a holder of share of Company Common Stock
or HoldCo capital stock for any amount properly paid to a public official
pursuant to any applicable abandoned property, escheat or similar law.

                  (h) Required Withholding. Each of BNP Paribas, The Bank of New
York, Parent and the surviving corporation of any of the Mergers will be
entitled to deduct and withhold from any consideration payable or otherwise
deliverable pursuant to this Agreement to any holder or former holder of Company
Stock or HoldCo capital stock such amounts as may be required to be deducted or
withheld therefrom under the Code or under any provision of state, local or
foreign Tax law or under any other applicable law. To the extent such amounts
are so deducted or withheld, the amount of such consideration will be treated
for all purposes under this Agreement as having been paid to the Person to whom
such consideration would otherwise have been paid.

                  (i) Dissenting Shares. Notwithstanding anything in this
Agreement to the contrary, shares of Company Common Stock outstanding
immediately prior to the Company Merger Effective Time and held by a holder who
has not voted in favor of the Company Merger or consented thereto in writing and
who has demanded appraisal for such shares in accordance with the DGCL
(collectively, the "Dissenting Shares") will not be converted into the right to
receive the Common Stock Merger Consideration, unless such holder fails to
perfect, withdraws or otherwise loses such holder's rights to appraisal or it is
determined that such holder does not have appraisal rights in accordance with
applicable law. If, after the Company Merger Effective Time, such holder fails
to perfect or withdraws or loses such holder's right to appraisal, or if it is
determined that such holder does not have an appraisal right, such shares of
Company Common Stock will be treated as if they had been converted as of the
Company Merger Effective Time into the right to receive the Common Stock Merger
Consideration. The Company will give Parent prompt notice of any demands
received by the Company for appraisal of shares of Company Common Stock, and
Parent will have the right to participate in all negotiations and proceedings
with respect to such demands except as required by applicable law. The Company
will not, except with prior written consent of Parent, make any payment with
respect to, or settle or offer to settle, any such demands, unless and to the
extent required to do so under applicable law. The Exchange Agent will withhold
the Common Stock Merger Consideration with respect to each Dissenting Share and,
upon Parent's request, will promptly return to Parent the Common Stock Merger


                                                                            -16-


Consideration made available to the Exchange Agent by Parent pursuant to Section
2.5(a) to pay for shares for which appraisal rights are perfected.

                  (j) Lost, Stolen or Destroyed Certificates. In the event any
Certificates have been lost, stolen or destroyed, the Exchange Agent will issue
and pay in exchange for such lost, stolen or destroyed Certificates, upon the
making of an affidavit of that fact by the holder thereof, the Common Stock
Merger Consideration, cash for fractional shares, if any, and any dividends or
distributions payable pursuant in each case, pursuant hereto; provided, however,
that Parent may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed Certificates to
deliver a bond in such sum as it may reasonably direct as indemnity against any
claim that may be made against Parent, the Company or the Exchange Agent with
respect to the Certificates alleged to have been lost, stolen or destroyed.

                                   ARTICLE III

                     COMPANY REPRESENTATIONS AND WARRANTIES

            The Company represents and warrants to Parent, Merger Sub 1, Merger
Sub 2 and Merger Sub 3, subject to such exceptions as are set forth in the
disclosure schedule delivered by Company to Parent on the date hereof (the
"Company Disclosure Schedule"), which disclosure shall provide an exception to
or otherwise qualify the representations or warranties of Company specifically
referred to in the applicable numbered and lettered sections and subsections of
this Article III to which each exception refers as well as such other
representations and warranties to the extent that it is reasonably apparent on
the face of the Company Disclosure Schedule that such disclosure is applicable.

            Section 3.1 Organization.

                  (a) The Company and each Company Subsidiary (i) is a
corporation or other organization duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation or organization,
(ii) has the requisite corporate power and authority to own, lease and operate
its properties and to carry on its business as it is now being conducted, and
(iii) is duly qualified or licensed to do business and is in good standing in
each jurisdiction in which the property owned, leased or operated by it or the
nature of the business conducted by it makes such qualification or license
necessary, except in the cases of clauses (ii) and (iii) above, where such
failure to have such power or authority or to be so qualified or licensed would
not reasonably be expected to have a Company Material Adverse Effect. Section
3.1(a) of the Company Disclosure Schedule sets forth each jurisdiction where the
Company or any Company Subsidiary so qualified, licensed or admitted to do
business.

                  (b) The Company has made available to Parent or its counsel
complete and correct copies of the certificate of incorporation and bylaws or
equivalent governing instruments of the Company and each Company Subsidiary, as
is in effect on the date hereof. None of the Company or any of the Company
Subsidiaries is in material


                                                                            -17-


violation of any provision of its certificate of incorporation or bylaws or
equivalent governing instruments.

                  (c) Section 3.1(c) of the Company Disclosure Schedule sets
forth a true and complete list of all of the Company Subsidiaries as of the date
hereof, indicating the name, jurisdiction of organization and the Company's
equity interest in, each such entity, and each of such entity's officers and
directors. Other than with respect to the Company Subsidiaries, the Company does
not own, directly or indirectly, any capital stock or other equity securities of
any corporation, partnership, joint venture or other business association or
entity, other than securities of any publicly-traded equity in amounts less than
one percent (1%), which the Company holds in its investment portfolio. Other
than directors' qualifying shares required under applicable law, all of the
outstanding capital stock of each Company Subsidiary is owned directly or
indirectly by the Company free and clear of all mortgages, pledges, claims,
liens, charges, encumbrances, options or security interests of any kind or
nature whatsoever (collectively, "Encumbrances"), except for restrictions
imposed by applicable securities laws, and is validly issued, fully paid and
nonassessable, and there are no outstanding options, rights or agreements of any
kind relating to the issuance, sale or transfer of any capital stock or other
equity securities (or securities convertible into or exchangeable for securities
having such rights) of any such Company Subsidiary to any Person except the
Company.

            Section 3.2 Capitalization.

                  (a) As of the date hereof, the authorized capital stock of the
Company consists of 150,000,000 shares of Company Common Stock, of which
76,106,805 shares were issued and outstanding as of July 17, 2003 and 250 shares
are issued and held in the treasury of the Company. As of the date hereof,
22,700,000 shares were reserved for issuance pursuant to the Company Option
Plans, and 17,764,694 shares of Company Common Stock are reserved for issuance
pursuant to outstanding Company Stock Options as of July 17, 2003. As of the
date hereof, 5,250,000 shares are reserved for issuance pursuant to the
Company's 2002 Stock Option Plan and 2002 Director Option Plan, and no options
to acquire shares of the Company Common Stock are outstanding under the 2002
Stock Option Plan and the 2002 Director Option Plan. As of the date hereof,
there are no warrants outstanding to purchase shares of Company Common Stock.
All of the outstanding shares of the Company Common Stock are, and all shares of
Company Common Stock which may be issued pursuant to the exercise of outstanding
Company Stock Options, prior to the Company Merger Effective Time will be, when
issued in accordance with the terms thereof, duly authorized, validly issued,
fully paid and non-assessable and not subject to any preemptive or similar
rights.

                  (b) Section 3.2(b) of the Company Disclosure Schedule sets
forth a complete list of options under the 1999 Stock Option Plan and the 2000
Stock Option Plan (collectively, the "Company Option Plans") outstanding as of
the date hereof, showing the date of grant, whether or not such Company Stock
Option is intended to be an incentive stock option or a non-qualified stock
option, the exercise price of each Company Stock Option, and the number of
shares of Company Common Stock issuable upon exercise of each Company Stock
Option. All of such Company Stock Options have


                                                                            -18-


been granted to employees, directors, or consultants of the Company or a Company
Subsidiary in the ordinary course of business consistent with past practices.
All Company Stock Options granted under the Company Option Plans have been
granted pursuant to option award agreements in substantially the form attached
as an exhibit to Section 3.2(b) of the Company Disclosure Schedule. The Company
has made available to Parent or its counsel complete and correct copies of the
Company Option Plans and all forms of option agreements.

                  (c) There are no bonds, debentures, notes or other
indebtedness having general voting rights or which are convertible into or
exchangeable for equity securities (any of the foregoing, "Convertible Debt") of
the Company or any Company Subsidiary issued and outstanding as of the date
hereof. As of the date hereof, (i) there are no existing options, warrants,
calls, pre-emptive rights, subscriptions or other rights, agreements,
arrangements or commitments of any kind relating to the issued or unissued
capital stock of the Company or any Company Subsidiary obligating the Company or
any Company Subsidiary to issue, transfer or sell or cause to be issued,
transferred or sold any shares of capital stock or Convertible Debt of, or other
equity interest in, the Company or any Company Subsidiary or securities
convertible into or exchangeable for such shares or equity interests, or
obligating the Company or any Company Subsidiary to grant, extend or enter into
any such option, warrant, call, subscription or other right, agreement,
arrangement or commitment, and (ii) there are no outstanding contractual
obligations of the Company or any Company Subsidiary to repurchase, redeem or
otherwise acquire any shares of the capital stock of the Company or any Company
Subsidiary or any affiliate of the Company or to provide funds to make any
investment (in the form of a loan, capital contribution or otherwise) in any
Company Subsidiary or any other entity.

                  (d) All outstanding shares of Company Common Stock, all
outstanding Company Stock Options and all outstanding shares of capital stock of
each Company Subsidiary have been issued and granted in compliance with (i) all
applicable laws, including applicable securities laws, and (ii) all material
requirements set forth in applicable agreements or instruments.

            Section 3.3 Authority; Consents and Approvals; No Violations.

                  (a) Subject to the approval of the Company Merger by the
Company's stockholders, the Company has all requisite corporate power and
authority to enter into this Agreement and to consummate the Company Merger and
the other transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation by the Company of the Company Merger and the
other transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of the Company and no other corporate
proceedings on the part of the Company are necessary to authorize this Agreement
or to consummate the Company Merger and the other transactions contemplated
hereby, the approval and adoption of this Agreement and the approval of the
Company Merger by the requisite vote of the Company's stockholders and the
filing of the Company Certificate of Merger pursuant to the DGCL. The
affirmative vote or written consent of the holders of a majority of the
outstanding shares of Company Common Stock to approve and adopt this Agreement
and approve the


                                                                            -19-


Company Merger is the only vote of the holders of any class or series of Company
capital stock necessary to approve and adopt this Agreement and approve the
Company Merger. This Agreement has been duly executed and delivered by the
Company and, assuming the due authorization, execution and delivery hereof by
Parent, Merger Sub 1, Merger Sub 2, Merger Sub 3 and HoldCo, constitutes a valid
and binding agreement of the Company, enforceable against the Company in
accordance with its terms.

                  (b) The execution and delivery of this Agreement by the
Company, and the performance of this Agreement by the Company and the
consummation by the Company of the Company Merger and the other transactions
contemplated by this Agreement, do not and will not, (i) conflict with or
violate the certificate of incorporation or bylaws of the Company or the
equivalent organizational documents of any of the Company Subsidiaries, (ii)
subject to obtaining the approval and adoption of this Agreement and the
approval of the Company Merger by the Company's stockholders as contemplated in
Section 8.1, and compliance with the requirements set forth in Section 3.3(c)
below, conflict with or violate any federal, state, local, municipal, foreign or
other law, statute, constitution, principle of common law, resolution,
ordinance, guidance, code, order, judgment, edict, decree, rule, regulation,
ruling or requirement issued, enacted, adopted, promulgated, implemented or
otherwise put into effect by or under the authority of any Governmental Entity
("Legal Requirement") applicable to the Company or any of the Company
Subsidiaries or by which the Company or any of the Company Subsidiaries or any
of their respective properties is bound or affected, or (iii) result in any
breach of or constitute a default (or an event that with notice or lapse of time
or both would become a default) under, or impair the Company's rights or alter
the rights or obligations of any third party under, or give to others any rights
of termination, amendment, acceleration or cancellation of, or result in the
creation of an Encumbrance on any of the properties or assets of the Company or
any of the Company Subsidiaries pursuant to any Company Identified Contract.

                  (c) No consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Entity is required to
be obtained or made by the Company in connection with the execution and delivery
of this Agreement or the consummation by the Company of the Company Merger and
the other transactions contemplated hereby, except for (i) the filing of the
Company Certificate of Merger with the Secretary of State of the State of
Delaware and appropriate documents with the relevant authorities of other states
in which the Company is qualified to do business, (ii) the filing of an
information statement or proxy statement, as the case may be (the "Company
Information Statement"), with the Securities Exchange Commission (the "SEC") in
accordance with the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the filing and effectiveness of the Registration Statement, (iii)
such consents, approvals, orders, authorizations, registrations, declarations
and the filings as may be required under applicable federal, foreign and state
securities (or related) laws, the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended (the "HSR Act") and, if applicable, any other antirust or
competition laws of other jurisdictions (the "Foreign Antitrust Filings"), (iv)
such consents, approvals, orders, authorizations, registrations, declarations
and filings as may be required under applicable state securities or "blue sky"
laws and the securities laws of any foreign country, and (v) such other


                                                                            -20-


consents, authorizations, filings, approvals and registrations which if not
obtained or made individually or in the aggregate would not be material to the
Company, Parent or the Surviving Corporation or materially adversely affect the
ability of the parties hereto to consummate the Company Merger within the time
frame in which the Company Merger would otherwise be consummated in the absence
of the need for such consent, approval, order, authorization, registration,
declaration or filings. The consents, approvals, orders, authorizations,
registrations, declarations and filings set forth in (i) through (iv) are
referred to herein as the "Company Necessary Consents."

            Section 3.4 Company SEC Filings; Financial Statements.

                  (a) The Company has filed all forms, reports and documents
required to be filed by the Company with the SEC since June 30, 2000 and has
made available to Parent or its counsel such forms, reports and documents in the
form filed with the SEC (including the Company's registration statement on Form
S-1 filed on May 23, 2003, as amended (the "Company Form S-l")), and as those
documents have been amended and including such documents that the Company may
file subsequent to the date hereof (the "Company SEC Filings"). As of their
respective dates, the Company SEC Filings (i) were prepared and timely filed in
accordance with and complied in all material respects with the requirements of
the Securities Act of 1933, as amended (the "Securities Act"), or the Exchange
Act, as the case may be, and the rules and regulations of the SEC thereunder and
(ii) did not at the time they were filed (or if amended or superceded by a
filing prior to the date hereof, then on the date of such filing) contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. None of
the Company's Subsidiaries is required to file any forms, reports or other
documents with the SEC.

                  (b) Each of the consolidated financial statements (including,
in each case, any related notes thereto) contained in the Company SEC Filings
(including such financial statements as were incorporated by reference) (the
"Company Financial Statements") (i) complied in all material respects with the
published rules and regulations of the SEC with respect thereto, (ii) was
prepared in accordance with United States generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the periods
involved (except as may be indicated in the notes thereto and, in the case of
unaudited interim financial statements, as may be permitted by the SEC on Form
10-Q, Form 8-K or any similar or successor form under the Exchange Act), and
(iii) fairly presented in all material respects the consolidated financial
position of the Company and the Company Subsidiaries as of the respective dates
thereof and the consolidated results of operations and cash flows for the
periods indicated therein, except that the unaudited interim financial
statements may not contain footnotes and were or are subject to normal and
recurring year-end adjustments. The reserves reflected in the Company Financial
Statements have been calculated in accordance with GAAP. The balance sheet of
the Company contained in the Company SEC Filings as of March 28, 2003 is
hereinafter referred to as the "Company Balance Sheet."

                  (c) The Company has made available to Parent or its counsel
(i) a complete and correct copy of any amendments or modifications to the
Company


                                                                            -21-


Form S-1 or other Company SEC Filings, which have not yet been filed with the
SEC but that the Company intends to file as of the date hereof, and (ii)
complete and correct copies of any correspondence with, and inquiries from, the
SEC with respect to previously filed Company SEC Filings since June 30, 2000
other than ministerial correspondence generated in connection with the
submission of filings under Section 16 of the Exchange Act and requests for and
responses to requests for Edgar identification codes.

                  (d) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific authorizations,
(ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain asset accountability, (iii)
access to assets is permitted only in accordance with management's general or
specific authorization, and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
actions are taken with respect to any differences.

                  (e) All accounts receivable of the Company, whether reflected
in the Company Balance Sheet or otherwise, are current and arose from valid
transactions in the ordinary course of business and consistent with past
practices with unrelated third parties.

                  (f) The Company has implemented "disclosure controls and
procedures" (as defined in Rules 13a-14(c) and 15d-14(c) of the Exchange Act)
designed to ensure that material information relating to the Company and the
Company Subsidiaries is made known to the Company's chief executive officer and
chief financial officer. Each required form, report and document containing
financial statements that has been filed with or submitted to the SEC since July
31, 2002, was accompanied by the certifications required to be filed or
submitted by the Company's chief executive officer and chief financial officer
pursuant to the Sarbanes-Oxley Act, and at the time of filing or submission of
each such certification, such certification was true, accurate and complete, and
complied with the Sarbanes-Oxley Act and the rules and regulations promulgated
thereunder.

                  (g) Since June 30, 2000, neither the Company nor any Company
Subsidiary nor, to the Company's Knowledge, any director, officer, employee,
auditor, accountant or Representative of the Company or any Company Subsidiary
has received or otherwise had or obtained knowledge of any written complaint,
allegation, assertion or claim regarding the accounting or auditing practices,
procedures, methodologies or methods of the Company or any Company Subsidiary or
their respective internal accounting controls, including any complaint,
allegation, assertion or claim that the Company or any Company Subsidiary has
engaged in questionable accounting or auditing practices. No attorney
representing the Company or any Company Subsidiary, whether or not employed by
the Company or any Company Subsidiary, has reported evidence of a violation of
securities laws, breach of fiduciary duty or similar violation by the Company or
any of its officers, directors, employees or agents to the Company's board of
directors or any committee thereof or to any director or officer of the Company.



                                                                            -22-


            Section 3.5 Absence of Certain Changes. Except as disclosed in the
Company SEC Filings filed since the date of the Company Balance Sheet and
through the date hereof and, as contemplated by this Agreement, each of the
Company and the Company Subsidiaries has conducted its respective business in
all material respects only in the ordinary course of business consistent with
past practices and in compliance in all material respects with all applicable
laws and regulations and, specifically and without limitation of the foregoing,
there has not been, with respect to the Company or any Company Subsidiaries:

                  (a) a Company Material Adverse Effect;

                  (b) (i) any split, combination or reclassification of any
capital stock, (ii) any declaration, setting aside or payment of any dividend
on, or other distribution (whether in cash, stock or property) in respect of,
any of the shares of capital stock, or any purchase, redemption or other
acquisition of any of the shares of capital stock or any other securities or
other partnership interests or any options, warrants, calls or rights to acquire
any such shares or other securities except for repurchases from employees or
consultants following their termination pursuant to the terms of their
pre-existing stock option or purchase agreements, or (iii) any amendment of any
material term of any outstanding security;

                  (c) any (i) change in pricing or royalties set or charged to
customers or licensees by the Company or any Company Subsidiary or in pricing or
royalties set or charged by Persons who have licensed technology to the Company
or any Company Subsidiary other than in the ordinary course of business
consistent with past practices, (ii) any disposing or impairment of or
permitting to lapse of any Company Intellectual Property Rights, (iii) disposing
of or disclosing (except as necessary in the conduct of its business) to any
Person other than Representatives of Parent any Trade Secret or other
Intellectual Property Rights not theretofore a matter of public knowledge, or
(iv) any material change to the Company's or any Company Subsidiary's rights to
use an Intellectual Property Rights licensed from a third party, except, in the
case of (i) through (iv) in the aggregate, as would not be material to the
Company and the Company Subsidiaries, taken as a whole;

                  (d) any sale, transfer, or other disposition of any material
properties or assets (whether real, personal or mixed, tangible or intangible)
except in the ordinary course of business consistent with past practices;

                  (e) (i) any assumption, guarantee, endorsement or liability
otherwise incurred (whether directly, contingently or otherwise) for the
obligations of any other Person other than those of the Company or any Company
Subsidiary, or (ii) any making of any loan, advance or capital contribution to
or investment in any Person, including any director, officer or other affiliate
of the Company, other than (A) loans, advances or capital contributions to or
investments in wholly-owned Company Subsidiaries or entities that became
wholly-owned Company Subsidiaries made in the ordinary course of business, (B)
investments made in accordance with the Company's investment guidelines, a copy
of which has been made available to Parent or its counsel,


                                                                            -23-


and in the ordinary course of business and consistent with past practices, and
(C) travel and entertainment expense advances in the ordinary course of
business;

                  (f) (i) any material Tax election or material change in any
Tax election, any material change in annual Tax accounting period or method of
Tax accounting other than as required by applicable laws or regulations, any
filing of any material amended Tax Returns, any entering into of a closing
agreement, settlement of or consent to any Tax claim, any surrendering of any
right to claim a material refund of Taxes, or any consent to any extension or
waiver of the statutory period of limitation applicable to any material Tax
claim, (ii) any material change in any method of accounting, method of
accounting principles or practice, except for any such change required by reason
of a concurrent change in GAAP or compliance with the applicable requirements of
the rules and regulations promulgated by the SEC, or (iii) any revaluation of
any material assets, including, without limitation, writing-off notes or
accounts receivable other than in the ordinary course of business;

                  (g) any loss of, or receipt of written notice of any intention
to cancel or otherwise terminate, any Identified Contract that would be
reasonably likely, individually or in the aggregate, to be material to the
Company other than in the ordinary course of business consistent with past
practices;

                  (h) (i) any increase or change in any compensation, benefits
or bonus paid or made payable to any of their executive officers or directors or
employees earning more than $150,000 in base salary annually, or any increase in
severance or termination pay, or any material modification or amendment of any
currently effective employment, severance, termination or indemnification
agreement or any agreement or policy the benefits of which are contingent, or
the terms of which are materially altered, upon the occurrence of a transaction
involving the Company of the nature contemplated hereby, in each case other than
(A) in connection with periodic compensation or performance reviews, (B) for
severance and release agreements made in connection with the termination of
employment, (C) promotions, or (D) to the compensation of the sales force in the
case of each of (A) through (D), in the ordinary course of business consistent
with past practices, or (ii) any action taken to accelerate, amend or change the
period of vesting or exercisability of options or restricted stock, or reprice
options granted under any Company Option Plans or authorization of cash payments
in exchange for any options granted under any Company Option Plans; or

                  (i) any agreement, whether in writing or otherwise, to take
any action described in this Section 3.5.

            Section 3.6 No Undisclosed Liabilities. Except as and to the extent
disclosed in the Company Financial Statements or the Company SEC Filings and
except for liabilities and obligations incurred in the ordinary course of
business since the date of the Company Balance Sheet and through the date
hereof, neither the Company nor any Company Subsidiary has incurred any
liabilities required under GAAP to be set forth on a consolidated balance sheet
(absolute, accrued, contingent or otherwise) which would reasonably be expected
to be material to the Company and the Company Subsidiaries, taken as a whole.



                                                                            -24-


            Section 3.7 Real and Personal Property.

                  (a) The Company and the Company Subsidiaries do not own any
real property.

                  (b) Section 3.7(b) of the Company Disclosure Schedule sets
forth a complete list of all real property leased or occupied as of the date
hereof by the Company or any of the Company Subsidiaries (the "Real Property"),
for each of which the Company has made available a complete and accurate copy of
the lease agreement, along with all amendments to Parent or its counsel. The
leases for Real Property in which the amount of rental payments that the Company
or any Company Subsidiary is required to make on an annual basis exceeds
$500,000 are identified on Section 3.7(b) of the Company Disclosure Schedule
with an asterisk (*) (the "Identified Leases").

                  (c) Neither the Company nor any Company Subsidiary is a party
to any lease, sublease, assignment or similar arrangement under which the
Company or any Company Subsidiary is a lessor, sublessor, assignor or otherwise
makes available for use by any third party any portion of the Real Property.

                  (d) All leases of the Company and the Company Subsidiaries (i)
are valid, binding and enforceable in accordance with their terms, (ii) are in
full force and effect, and (iii) to the Company's Knowledge, were negotiated on
an arms' length basis, and there are no existing material defaults by the
Company or any Company Subsidiary thereunder and no event of default has
occurred which (whether with or without notice, lapse of time or the happening
or occurrence of any other event) would constitute a material default
thereunder.

                  (e) The Company and each of the Company Subsidiaries has good
and valid title to all of its properties, interests in properties and assets,
real and personal, reflected in the Company Balance Sheet or acquired after the
date of the Company Balance Sheet (except properties, interests in properties
and assets sold or otherwise disposed of since the date of the Company Balance
Sheet in the ordinary course of business, consistent with past practices), or
with respect to Real Properties and assets, valid leasehold interests in, free
and clear of all Encumbrances, except (i) Encumbrances for current Taxes not yet
due, (ii) such imperfections of title, liens and easements as do not and will
not materially detract from or interfere with the use or value of the properties
subject thereto or affected thereby, or otherwise materially impair business
operations involving such properties, and (iii) liens securing debt which are
reflected on the Company Balance Sheet.

            Section 3.8 Litigation. As of the date hereof, there is no action,
suit, claim, binding arbitration proceeding or binding alternative dispute
resolution proceeding, or investigation or proceeding by or before any court or
Governmental Entity pending, or, to the Company's Knowledge, overtly threatened
against, naming the Company or any Company Subsidiary or any of the Company's
officers or directors (in their capacities as such) or any other party that the
Company or any of the Company Subsidiaries may be obligated to indemnify as a
party thereto or seeking to restrain, enjoin, alter or delay the consummation of
the Company Merger or the other transactions


                                                                            -25-


contemplated hereby. There is no pending or effective judgment, decree or order
against the Company, any Company Subsidiary or any of the Company's officers or
directors (in their capacities as such). There is no litigation that the Company
or any Company Subsidiary has pending against other parties. There have been no
claims made or, to the Company's Knowledge, overtly threatened against the
Company or any Company Subsidiary under any indemnification, contribution or
reimbursement agreement to which the Company or any Company Subsidiary is a
party or otherwise bound.

            Section 3.9 Compliance with Laws.

                  (a) The Company and the Company Subsidiaries are in compliance
in all material respects with all material Legal Requirements. No investigation
or review by any Governmental Entity is pending or, to the Company's Knowledge,
has been overtly threatened against the Company or any Company Subsidiary.
Neither the Company nor any of the Company Subsidiaries has received any written
communication from a Governmental Entity (excluding routine inspections) that
alleges that any of them is not in compliance with all material federal, state,
foreign or local laws, rules and regulations. There is no agreement, judgment,
injunction, order or decree binding upon the Company or any of the Company
Subsidiaries which has or could reasonably be expected to have the effect of
prohibiting or impairing any material business practice of the Company or the
Company Subsidiaries, any acquisition of property material to the operation or
conduct of the business of the Company and the Company Subsidiaries, taken as a
whole, as currently conducted. The Company and the Company Subsidiaries hold, to
the extent legally required, all licenses, permits and approvals from Government
Entities that are material to the operation of the Company's and the Company
Subsidiaries' business, taken as a whole, as currently conducted. The Company
and the Company Subsidiaries are in compliance in all material respects with
such licenses, permits and approvals.

                  (b) None of the Company, any Company Subsidiary or, to the
Company's Knowledge, any directors or officers, agents or employees of the
Company or any Company Subsidiary, has (i) used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to
political activity, (ii) made any unlawful payment to foreign or domestic
government officials or employees or to foreign or domestic political parties or
campaigns or violated any provision of the Foreign Corrupt Practices Act of
1977, as amended, or (iii) made any payment in the nature of criminal bribery.

            Section 3.10 Intellectual Property; Privacy.

                  (a) Section 3.10(a) of the Company Disclosure Schedule lists
as of the date hereof all Registered Company Intellectual Property Rights
(excluding patent applications).

                  (b) Section 3.10(b) of the Company Disclosure Schedule lists
as of the date hereof all existing License Agreements other than (i) Inbound
License Agreements for Non-Material Computer Software, (ii) Outbound License
Agreements which are nonexclusive software licenses of Computer Software to
distributors, OEMs


                                                                            -26-


and end-users (other than the top 20 end-users by revenue) in the ordinary
course of the business of the Company or any Company Subsidiary, and (iii) other
License Agreements which are not material to the business of the Company or any
Company Subsidiary. None of the Outbound License Agreements grant any third
party exclusive rights to or under any material Company Intellectual Property
Rights. To the Company's Knowledge, the Company and all Company Subsidiaries are
in compliance with, and have not breached any material term of any of the
License Agreements listed on Section 3.10(b) and, to the Company's Knowledge,
all other parties to such License Agreements are in compliance with, and have
not breached any term of, such License Agreements.

                  (c) There are no judgments or orders naming the Company or any
Company Subsidiary which restrict the conduct of the business of the Company or
any of the Company Subsidiaries in order to accommodate a third party's
Intellectual Property Rights, other than such judgments or orders that would not
have a Company Material Adverse Effect.

                  (d) The Company or one of the Company Subsidiaries is the sole
owner of all right, title, and interest, free and clear of all Encumbrances
(other than non-exclusive licenses), in and to all Registered Company
Intellectual Property Rights registered in the United States and listed in
Section 3.10(a) of the Company Disclosure Schedule.

                  (e) To the Company's Knowledge, the conduct of the business of
the Company (including the design, development, marketing and sale of the
products or services of the Company or the Company Subsidiaries) does not
(except as may have been resolved) infringe, misappropriate or otherwise violate
the Intellectual Property Rights of any third party or to constitute unfair
competition or unfair trade practices under the laws of any jurisdiction, in
each case to an extent which would reasonably be expected to have a Company
Material Adverse Effect.

                  (f) In the one (1) year period preceding the date hereof,
neither the Company nor any of the Company Subsidiaries has received any written
communications from any third party alleging, or which reasonably could be
construed as an allegation, that the operation of the business of the Company or
any of the Company Subsidiaries or any act, product or service of the Company or
any of the Company Subsidiaries, has infringed or misappropriated or does
infringe or misappropriate the Intellectual Property Rights of any third party
or constitute unfair competition or unfair trade practices under the laws of any
jurisdiction, in each case to an extent which is likely to have a Company
Material Adverse Effect.

                  (g) To the Company's Knowledge, there is no pending or
threatened claim, suit, arbitration or other adversarial proceeding before any
court, agency, arbitral tribunal or registration authority in any jurisdiction
alleging that the conduct of the business of the Company or any Company
Subsidiary has infringed or misappropriated or does infringe or misappropriate
the Intellectual Property Rights of any third party or constitute unfair
competition or unfair trade practices under the laws of such jurisdiction.



                                                                            -27-


                  (h) To the Company's Knowledge, no Person has infringed or
misappropriated, or is infringing or misappropriating, any Company Intellectual
Property Rights in a manner that would have a Company Material Adverse Effect.
The Company is not a joint owner of any material Company Intellectual Property
Rights.

                  (i) The Registered Company Intellectual Property Rights have
not been cancelled or abandoned and have not expired or lapsed, except where the
Company or a Company Subsidiary has elected, in the exercise of reasonable
business judgment, not to pursue or maintain such Registered Company
Intellectual Property Rights or where such rights have expired in the ordinary
course. To the Company's Knowledge, all necessary registration, maintenance and
renewal fees currently due in connection with any Registered Company
Intellectual Property Rights have been made and all necessary documents,
recordations and certificates in connection with such Intellectual Property
Rights have been filed with the relevant patent, copyright, trademark or other
authorities in the United States, as the case may be, for the purposes of
maintaining such Registered Intellectual Property Rights.

                  (j) To the extent that any material Computer Software or
patentable inventions have been developed or created by a third party (including
any current or former employee of the Company or any of the Company
Subsidiaries) for the Company or any Company Subsidiary, the Company or one of
the Company Subsidiaries, as the case may be, has a written agreement with such
third party with respect thereto, and the Company or one of the Company
Subsidiaries thereby either (i) has, pursuant to such agreement or by operation
of law, obtained ownership of the Intellectual Property Rights in such Computer
Software or patentable inventions in, or (ii) has obtained a valid right to
exploit the Intellectual Property Rights in such Computer Software or patentable
inventions, in each case sufficient for the ongoing business of the Company or
the Company Subsidiaries.

                  (k) The Company and the Company Subsidiaries have taken all
reasonably necessary steps to protect their respective material Trade Secrets
and any Trade Secrets of third parties provided to the Company or any of the
Company Subsidiaries consistent with industry practice and otherwise to the
extent deemed necessary by the Company or the Company Subsidiaries in the
exercise of reasonable business judgment. Without limiting the foregoing, the
Company and each of the Company Subsidiaries have enforced and do enforce a
policy requiring all employees, contractors and other parties having access to
such Trade Secrets to execute a proprietary information/confidentiality
agreement, in substantially the form made available to Parent, with the Company
or one of the Company Subsidiaries, as the case may be.

                  (l) To the Company's Knowledge, (i) the consummation of the
Company Merger will not result in Parent being bound by any non-compete or other
material restriction on the operation of Parent's business or the granting by
Parent of any Parent Intellectual Property Rights to a third party (including a
covenant not to sue).

                  (m) The Company and the Company Subsidiaries are in compliance
with all applicable Legal Requirements relating to privacy, data protection and
the collection and use of personal information and user information gathered or


                                                                            -28-


accessed in the course of the operations of the Company or any of the Company
Subsidiaries except where such failure to comply would not have a Company
Material Adverse Effect. No claims have been asserted in writing against the
Company or any of the Company Subsidiaries by any Person or entity alleging a
violation of such Person's or entity's privacy, personal or confidentiality
rights under any such Legal Requirements that could reasonably be expect to have
a Company Material Adverse Effect.

                  (n) Section 3.10(n)(i) of the Company Disclosure Schedule
lists as of the date hereof all agreements pursuant to where the Company has
licensed, or provided copies of, material source code of the Company to third
parties. Section 3.10(n)(ii) of the Company Disclosure Schedule lists as of the
date hereof all agreements pursuant to which the Company has placed material
source code into escrow. The license agreement set forth in Section
3.10(n)(iii)(a), if executed prior to the date hereof, would not have been
required to have been disclosed in any section of the Company Disclosure
Schedule. The source code agreement set forth in Section 3.10(n)(iii)(b) is not
material to the business of the Company.

            Section 3.11 Taxes.

                  (a) The Company and all Company Subsidiaries (i) have timely
filed (or there have been timely filed on their behalf) with the appropriate Tax
Authority all material Tax Returns required to be filed by them, and such Tax
Returns are true, correct and complete in all material respects, and (ii) have
timely paid in full (or there has been timely paid on their behalf), all
material Taxes that are due and payable on such Tax Returns to the appropriate
Tax Authorities.

                  (b) There are no liens for Taxes upon any property or assets
of the Company or any Company Subsidiary thereof, except for liens for Taxes not
yet due.

                  (c) No Federal, state, local or foreign Audits are pending
with regard to any material Taxes or Tax Returns of the Company or any Company
Subsidiary and, to the knowledge of the Company and the Company Subsidiaries, no
such Audit is threatened.

                  (d) The Federal income Tax Returns of the Company and the
Company Subsidiaries have been examined by the applicable Tax Authority (or the
applicable statutes of limitation for the assessment of Taxes for such periods
have expired) for all periods through and including June 28, 2001 and as of the
date hereof no deficiencies or adjustments have been threatened, proposed,
asserted or assessed as a result of an Audit which have not been (x) resolved
and fully paid or (y) reserved on the Company Financial Statements in accordance
with GAAP.

                  (e) Neither the Company nor any Company Subsidiary is a party
to any agreement providing for the allocation, indemnification, or sharing of
Taxes or liabilities or losses related to Taxes and has not assumed the Tax
liability (or liability or losses related thereto) of any other Person under
contract or otherwise.



                                                                            -29-


                  (f) Neither the Company nor any Company Subsidiary has been a
member of any "affiliated group" (as defined in Section 1504(a) of the Code)
other than the affiliated group of which Company is the "parent" and is not
subject to Treasury Regulation Section 1.1502-6 (or any similar provision under
foreign, state, or local law) for any period other than in connection with the
affiliated group of which the Company is the "parent."

                  (g) No member of the "affiliated group" (as defined in Section
1504(a) of the Code) of which the Company is the common parent has recognized
any material gain in connection with any intercompany transaction that has been
and is as of the date hereof deferred for Federal, state, local or foreign
income Tax purposes.

                  (h) The charges, accruals and reserves for Taxes with respect
to the Company and the Company Subsidiaries reflected on the Company Financial
Statements (excluding any provision for deferred income Taxes reflecting either
differences between the treatment of items for accounting and income Tax
purposes or carryforwards) are adequate under GAAP to cover Tax liabilities
accruing through the date of such Company Financial Statements.

                  (i) Neither the Company nor any Company Subsidiary is or has
been a United States real property holding corporation (as defined in Section
897(c)(2) of the Code) during the applicable period specified in Section
897(c)(1)(A)(ii) of the Code.

                  (j) The Company has made available to Parent or its counsel
complete and correct copies of each of (i) all Audit reports, letter rulings,
technical advice memoranda and similar documents issued by a Tax Authority
relating to Taxes due from the Company or any Company Subsidiary and (ii) all
closing agreements entered into by the Company or any Company Subsidiary with
any Tax Authority, in each case existing on the date hereof.

                  (k) Neither the Company nor any Company Subsidiary has
received written notice of any claim made by a Tax Authority in a jurisdiction
where it does not file Tax Returns that it is or may be subject to taxation by
that jurisdiction.

                  (l) Neither the Company nor any Company Subsidiary has granted
any power of attorney (or similar authority) as to any matters regarding Taxes,
Audits, or Tax Returns that will have effect as of the Closing Date.

                  (m) Neither the Company nor any Company Subsidiary has waived
any statutory period of limitations for the assessment of any Tax or agreed to
any extension of time with respect to a Tax assessment or deficiency, in each
case, which is currently outstanding, nor is any request to so waive or extend
currently outstanding.

                  (n) The Company and all Company Subsidiaries have complied in
all material respects with the provisions of the Code relating to the
withholding of Taxes (including maintenance of records), as well as similar
provisions


                                                                            -30-


under any other laws, and have, within the time and in the manner prescribed by
law, withheld and paid over to the proper Tax Authority all such amounts
required.

                  (o) No issue relating to Taxes has been raised by any Tax
Authority in any Audit, that by application of the same or similar principals,
reasonably could be expected to result in a proposed deficiency for the Company
or any of the Company Subsidiaries for any period not so examined. Further, to
the knowledge of the Company and the Company Subsidiaries, no state of facts
exist or has existed which would constitute grounds for the assessment of any
material Tax liability for the Company or any of the Company Subsidiaries with
respect to periods that have not been subject to an Audit, except for Tax
liabilities that are adequately reflected on the Financial Statements in
accordance with GAAP.

                  (p) To the knowledge of the Company and the Company
Subsidiaries, no direct or indirect stockholder of the Company will be a five
percent (5%) transferee shareholder (as defined in Treasury Regulation Section
1.367(a)-3(c)(5)(ii)).

            Section 3.12 Employee Benefits.

                  (a) Since the date of the Company Balance Sheet through the
date of this Agreement, there has not been any adoption or amendment (or an
agreement to adopt or amend) in any material respect by the Company or any
Company Subsidiary of any of the Benefit Plans. There exist, as of the date
hereof, no employment, consulting, severance, termination or indemnification
agreements, arrangements or understandings between the Company or the Company
Subsidiaries, and any current or former officer or director of the Company or
any Company Subsidiary. The Company does not have any commitment to establish
any new Benefit Plan, to modify any Benefit Plan (except to the extent required
by law or to conform any such Benefit Plan to the requirements of any applicable
law), or to adopt any Benefit Plan.

                  (b) Section 3.12(b) of the Company Disclosure Schedule lists
all Pension Plans, "employee welfare benefit plans" (as defined in Section 3(1)
of ERISA) and all other Benefit Plans sponsored, maintained, contributed to or
required to be contributed to, by the Company or any Commonly Controlled Entity
for the benefit of any current or former employees, officers, consultants or
directors of the Company or any Company Subsidiary. The Company has made
available to Parent or its counsel true, complete and correct copies of (i) each
Benefit Plan (or, in the case of any unwritten Benefit Plans, descriptions
thereof), (ii) the three most recent annual reports on Form 5500 filed with the
Internal Revenue Service with respect to each Benefit Plan (if any such report
was required), (iii) the most recent summary plan description for each Benefit
Plan for which such summary plan description is required (together with all
summaries of modifications issued with respect thereto), (iv) each trust
agreement and group annuity contract relating to any Benefit Plan, (v) the most
recent actuarial valuation report with respect to each Benefit Plan (if any such
report was required) and (vi) all material contracts and material written
employee communications relating to each Benefit Plan. Each Benefit Plan has
been administered in accordance with its terms and the Company and all the
Benefit Plans are all in material compliance with all applicable


                                                                            -31-


provisions of ERISA, the Code and other applicable laws, including without
limitation, applicable federal and state securities laws.

                  (c) All Pension Plans have been the subject of determination,
notification, advisory and/or opinion letters from the Internal Revenue Service
to the effect that such Pension Plans are qualified and exempt from federal
income Taxes under Sections 401(a) and 501(a), respectively, of the Code or have
remaining a period of time under applicable Treasury regulations or IRS
pronouncements in which to apply for such a letter and make any amendments
necessary to obtain a favorable determination as to the qualified status of each
such Company Benefit Plan, a true, complete and correct copy of each such
determination, notification, advisory and/or opinion letter has been provided to
Parent, and no such determination notification, advisory and/or opinion letter
has been revoked nor has any event occurred since the date of the most recent
determination, notification, advisory and/or opinion letter or application
therefor for each Pension Plan that would adversely affect its qualification or
materially increase its costs.

                  (d) Neither the Company, nor any Company Subsidiary, nor any
Commonly Controlled Entity has at any time maintained, contributed or been
obligated to contribute to any Benefit Plan that is subject to Title IV of
ERISA, including any "multiemployer plan" (as defined in Section 4001(a)(3) of
ERISA).

                  (e) No current or former employee, officer, or director of the
Company or any Company Subsidiary will be entitled to any additional
compensation or benefits or any acceleration of the time of payment, vesting or
exercisability or any other enhancement of any compensation or benefits under
any Benefit Plan as a result of the transactions contemplated by this Agreement.

                  (f) The deduction of any amount payable pursuant to the terms
of the Benefit Plans will not be subject to disallowance under Section 280G or
162(m) of the Code.

                  (g) No amount that could be received (whether in cash or
property or the vesting of property) by any employee, consultant, officer or
director of the Company or any Company Subsidiary would be an Excess Parachute
Payment. No such person is entitled to receive any Parachute Gross-Up Payment
and the Company's board of directors has not granted to any officer, director,
consultant or employee of the Company any right to receive any Parachute
Gross-Up Payment.

                  (h) No Benefit Plan provides benefits, including without
limitation death or medical benefits (whether or not insured), with respect to
current or former employees, officers, consultants or directors of the Company,
any Company Subsidiary or any Commonly Controlled Entity after retirement or
other termination of service, other than (i) coverage mandated by applicable
law, (ii) death, termination of service, or retirement benefits under any
Pension Plan, (iii) deferred compensation benefits accrued as liabilities on the
books of the Company, such Company Subsidiary or any Commonly Controlled Entity,
(iv) benefits, the full cost of which is borne by the current or former
employee, officer, consultant or director (or his beneficiary or dependent), (v)
life insurance benefits for which the employee, officer, consultant or


                                                                            -32-

director dies while in service with the Company, or (vi) any stock options that
may be exercised after termination of employment or the director or consulting
engagement.

                  (i) There are no pending or, to the Company's Knowledge,
threatened claims by or on behalf of any Benefit Plan, by any employee or
beneficiary under any Benefit Plan or otherwise involving any Benefit Plan
(other than routine claims for benefits).

                  (j) Neither the Company nor any Company Subsidiary, nor any
Commonly Controlled Entity, nor any of the Benefit Plans, nor any trust created
thereunder nor any trustee or administrator thereof has engaged in a transaction
or has taken or failed to take any action in connection with which the Company
or any Company Subsidiary could be subject to either a civil penalty assessed
pursuant to Section 409 or 502(i) or ERISA or a Tax imposed pursuant to Section
4975, 4976, or 4980B of the Code.

                  (k) With respect to each Benefit Plan that is subject to the
laws or applicable customs or rules of relevant jurisdictions other than the
United States, each such Benefit Plan has been administered in all material
respects in accordance with its terms and applicable law.

            Section 3.13 Labor.

                  (a) There are no actions, suits, claims, charges, labor
disputes or grievances pending, or to the Company's Knowledge, threatened
involving the Company or any Company Subsidiary and any of their respective
employees. There are no complaints, charges, lawsuits, arbitrations or other
proceedings pending, or to the Company's Knowledge, threatened by or on behalf
of any present or former employee of the Company or any of the Company
Subsidiaries alleging any claim for material damages including breach of any
express or implied contract of employment, wrongful termination, infliction of
emotional distress or violation of any federal, state or local statutes or
regulations concerning terms and conditions of employment, including wages and
hours, employee safety, termination of employment and/or workplace
discrimination and harassment. To the Company's Knowledge, no employee of the
Company has violated any employment contract, nondisclosure agreement or
noncompetition agreement by which such employee is bound due to such employee
being employed by the Company and disclosing to the Company or using Trade
Secrets of any other Person. Since June 30, 2000, to the Company's Knowledge,
there has been (i) no labor union organizing or attempting to organize any
employees of the Company or any Company Subsidiary into one or more collective
bargaining units, or (ii) no labor dispute, strike, work slowdown, work stoppage
or lock out or other collective labor action by or with respect to any employees
of the Company or any Company Subsidiary, or, to the Knowledge of the Company,
threatened against or affecting the Company or any Company Subsidiary. Neither
the Company nor any Company Subsidiary is presently, nor has it been in the
past, a party to, or bound by, any collective bargaining agreements or other
agreement with any labor organization applicable to the employees of the Company
or any Company Subsidiary and no such agreement is currently being negotiated.



                                                                            -33-


                  (b) To the Knowledge of the Company, (i) no employee of the
Company or any Company Subsidiary has provided or is providing information to
any law enforcement agency regarding the commission or possible commission of
any crime or the violation or possible violation of any applicable law involving
the Company or any Company Subsidiary, and (ii) neither the Company nor any
Company Subsidiary nor any officer, employee, contractor, subcontractor or agent
of the Company or any such Company Subsidiary has discharged, demoted,
suspended, threatened, harassed or in any other manner discriminated against an
employee of the Company or any Company Subsidiary in the terms and conditions of
employment because of any act of such employee described in 18 U.S.C. Section
1514A(a).

                  (c) Since June 30, 2000, neither the Company nor any of the
Company Subsidiaries has effectuated (i) a "plant closing" as defined in the
WARN Act, affecting any site of employment or one or more facilities or
operating units within any site of employment or facility of the Company or any
of the Company Subsidiaries, or (ii) a "mass layoff" (as defined in the WARN
Act) affecting any site of employment or facility of the Company or any of the
Company Subsidiaries; nor has the Company or any of the Company Subsidiaries
engaged in layoffs or employment terminations sufficient in number to trigger
application of any similar state, local or foreign law or regulation similar to
the WARN Act. To the Company's Knowledge, neither the Company's nor any of the
Company Subsidiaries' employees has suffered an "employment loss" (as defined in
the WARN Act) in the ninety (90) days prior to the date of this Agreement.

            Section 3.14 Environmental Matters.

                  (a) The Company and the Company Subsidiaries are in compliance
in all material respects with Environmental Laws, including compliance with any
permits or other governmental authorizations or the terms and conditions thereof
and, to the Company's Knowledge, there are no circumstances that may be expected
to prevent or interfere with such compliance in the future.

                  (b) To the Company's Knowledge, there are no past or present
facts or circumstances that are reasonably likely to form the basis of any
Environmental Claim against the Company or any Company Subsidiary or against any
Person or entity whose liability for any Environmental Claim the Company or such
Company Subsidiary has retained or assumed either contractually or by operation
of law.

                  (c) The Company has made available to Parent or its counsel
all assessments, reports, data, results of investigations or audits, or other
information that is in the possession of, or, to the Company's Knowledge,
reasonably available to, the Company relating to environmental matters at, or
the environmental condition of, the Real Property.

            Section 3.15 Transactions with Affiliates.

                  (a) Except as set forth in the Company SEC Filings filed prior
to the date hereof, there have been no transactions, agreements, arrangements or
understandings between the Company or any Company Subsidiary, on the one hand,
and


                                                                            -34-


their respective affiliates, on the other hand, that would be required to be
disclosed under Item 404 of Regulation S-K under the Securities Act (except for
amounts due as normal salaries and bonuses and in reimbursements of ordinary
expenses).

                  (b) Except as set forth in the Company SEC Filings filed prior
to the date hereof, to the Company's Knowledge, (i) no officer of the Company or
any Company Subsidiary owns, directly or indirectly, any interest in (excepting
not more than one percent (1%) stock holdings for investment purposes in
securities of publicly-held and traded companies) or is an officer, director,
employee or consultant of any Person which is a competitor, lessor, lessee,
customer or supplier of the Company, and (ii) no officer or director of the
Company or any of Company Subsidiary (x) has made, on behalf of the Company or
any Company Subsidiary, any payment or commitment to pay any commission, fee or
other amount to, or to purchase or obtain or otherwise contract to purchase or
obtain any goods or services from, any other Person of which any officer or
director of the Company or any Company Subsidiary, or, to the Company's
Knowledge, a relative of any of the foregoing, is a partner or stockholder
(except stock holdings solely for investment purposes in securities of publicly
held and traded companies), or (y) owes any money to the Company or any Company
Subsidiary (except for reimbursement of advances in the ordinary course of
business consistent with past practices).

                  (c) Since June 30, 2000, the Company has not, directly or
indirectly, including through a Company Subsidiary, extended or maintained
credit, arranged for the extension of credit, or renewed an extension of credit,
in the form of a personal loan to or for any director or executive officer of
the Company.

            Section 3.16 Insurance. Each of the Company and each Company
Subsidiary has policies of insurance and bonds of the type and in amounts
customarily carried by Persons conducting businesses or owning assets similar to
those of the Company and the Company Subsidiaries. There is no material claim
pending under any insurance policies or bonds of the Company or any Company
Subsidiary as to which coverage has been questioned, denied or disputed by the
underwriters of such policies or bonds. All premiums due and payable prior to
the date hereof under all such policies and bonds have been paid and the Company
and the Company Subsidiaries are otherwise in compliance in all material
respects with the terms of such policies and bonds. The Company has no Knowledge
of any threatened termination of, or material premium increase with respect to,
any such policies. Section 3.16 of the Company Disclosure Schedule sets forth as
of the date hereof (a) a list of all policies of fire, liability, workers'
compensation, and other forms of insurance maintained by the Company and each
Company Subsidiary and (b) the annual premium for the directors' and officers'
liability insurance maintained by the Company.



                                                                            -35-

            Section 3.17 Certain Identified Contracts and Relationships.

                  (a) Except as filed as an exhibit to any of the Company SEC
Filings, neither the Company nor any of the Company Subsidiaries is a party to
or is bound by or any commitments or understandings regarding:

                        (i) any employment agreement or contract with any
      director, officer, employee or consultant, other than those that are
      terminable at-will by the Company or any of the Company Subsidiaries on no
      more than thirty (30) days' notice and without contractual liability or
      financial obligation (except for obligations imposed by applicable foreign
      laws) other than accrued wages, salary or benefits and other than any such
      agreement, contract or commitment pursuant to which the Company or the
      Company Subsidiaries have contractual liability of less than $150,000;

                        (ii) any agreement of indemnification or guaranty
      outside the ordinary course of the Company's business;

                        (iii) any agreement, contract or commitment containing
      any covenant limiting in any material respect the right of the Company or
      any of the Company Subsidiaries (i) to engage in any material line of
      business, (ii) to develop, market or distribute material products or
      services, or (iii) to compete with any Person, or granting any exclusive
      distribution rights with respect to a product or service material to the
      business of the Company and the Company Subsidiaries, taken as a whole;

                        (iv) any lease for personal property other than those
      entered into in the ordinary course of business on customary terms;

                        (v) any agreement, contract or commitment involving
      annual revenues to the Company or any of the Company Subsidiaries in
      excess of $500,000 which has not been terminated or performed in its
      entirety and not renewed and which may be, by its terms, terminated,
      without penalty, or which may, by its terms, have any of the obligations
      of the Company or any of the Company Subsidiaries adjusted, as a result of
      the execution of this Agreement or the consummation of the Company Merger,
      where such right of termination or adjustment would not have arisen or
      existed but for such execution or consummation;

                        (vi) any agreement, contract or commitment currently in
      force relating to the disposition or acquisition by the Company or any of
      the Company Subsidiaries after the date hereof of a material amount of
      assets not in the ordinary course of business or pursuant to which the
      Company or any of the Company Subsidiaries has any material ownership
      interest in any corporation, partnership, joint venture or other business
      enterprise other than the Company Subsidiaries, and other than securities
      of any publicly-traded entity in amounts less than one percent


                                                                            -36-

      (1%), which the Company holds in its investment portfolio as reflected in
      the Company SEC Filings;

                        (vii) any agreement, contract or commitment to which the
      Company or any of the Company Subsidiaries is a party which expressly
      provides for payments by the Company or any of the Company Subsidiaries on
      an annual basis in an amount in excess of $250,000 other than agreements,
      contracts and commitments which may not be cancelled by the Company or any
      of the Company Subsidiaries, as the case may be, without penalty in excess
      of $250,000 upon notice of thirty (30) days or less; or

                        (viii) any agreements, contracts, commitments or
      understandings, whether written or unwritten, formal or informal, between
      the Company or any Company Subsidiary, on the one hand, and any of the
      HoldCo Stockholder, Seagate Technology LLC, VERITAS Software Corporation
      (or any predecessors to the respective businesses of the foregoing) or any
      of their respective directors, officers or affiliates (the "Seagate
      Affiliates"), on the other hand.

                  (b) Set forth in Section 3.17(b) of the Company Disclosure
Schedule is (i) a list as of the date hereof of all loan or credit agreements,
notes, bonds, mortgages, indentures and other agreements and instruments
pursuant to which any Indebtedness of the Company or any of the Company
Subsidiaries in a principal amount in excess of $500,000 is outstanding or may
be incurred on the terms thereof and (ii) the respective principal amounts
currently outstanding thereunder as of the date hereof.

                  (c) All contracts, policies, agreements, leases, licenses,
documents, instruments, arrangements and other commitments required to be listed
in Section 3.17(a) and 3.17(b) of the Company Disclosure Schedule (together with
the agreements required to be filed as an exhibit to any of the Company SEC
Filings and the Identified Leases (the "Identified Contracts")) are in all
material respects valid and binding agreements of the Company or a Company
Subsidiary and, to the Company's Knowledge, each Identified Contract (other than
those which expire prior to the Company Merger Effective Time) is in full force
and effect, and neither the Company, any of the Company Subsidiaries nor, to the
Company's Knowledge, any other party thereto, is in default in any material
respect under the terms of any such Identified Contracts. The Company has made
available to Parent or its counsel true and correct copies of all Identified
Contracts that are material to the Company and the Company Subsidiaries, taken
as a whole.

                  (d) During the twelve (12) month period preceding the date
hereof, no customer individually accounted for more than five percent (5%) of
the Company's gross revenues during such twelve (12) month period. Neither the
Company nor any of the Company Subsidiaries has engaged in any fraudulent
conduct with respect to any customer or supplier of the Company or any of the
Company Subsidiaries.


                                                                            -37-

            Section 3.18 Brokers' and Finders' Fees. Except for the fees payable
to Goldman Sachs & Co., Inc. ("Goldman Sachs") pursuant to the engagement letter
dated June 14, 2003, the Company has not incurred, nor will it incur, directly
or indirectly, any liability for brokerage, finders' financial advisors' or
financial sponsors' fees or agents' commissions or any similar charges in
connection with this Agreement or any transaction contemplated hereby. A copy of
the Company's engagement letter with Goldman Sachs has been previously provided
to Parent and such engagement letter reflects the entire terms of engagement
with the Company.

            Section 3.19 Opinion of Financial Advisor. The Company has received
the written opinion of Goldman Sachs, to the effect that, as of the date of such
opinion, the Merger Consideration was fair to the Company's stockholders from a
financial point of view, and a true and complete copy of such opinion will be
delivered to Parent when available.

                                   ARTICLE IV

                     HOLDCO REPRESENTATIONS AND WARRANTIES

            HoldCo represents and warrants to Parent, Merger Sub 1, Merger Sub 2
and Merger Sub 3, subject to such exceptions as are set forth in the disclosure
schedule delivered by HoldCo to Parent on the date hereof (the "HoldCo
Disclosure Schedule"), which disclosure shall provide an exception to or
otherwise qualify the representations or warranties of HoldCo specifically
referred to in the applicable numbered and lettered sections and subsections of
this Article IV to which each exception refers as well as such other
representations and warranties to the extent that it is reasonably apparent on
the face of the HoldCo Disclosure Schedule that such disclosure is applicable.

            Section 4.1 Organization.

                  (a) HoldCo (i) is a limited liability company duly organized,
validly existing and in good standing under the laws of the Cayman Islands, (ii)
has the requisite power and authority to own its properties and to carry on its
business as it is now being conducted, and (iii) is duly qualified or licensed
to do business and is in good standing in each jurisdiction in which the
property owned, leased or operated by it or the nature of the business conducted
by it makes such qualification or license necessary, except in the cases of
clauses (ii) and (iii) above, where such failure to have such power or authority
or to be so qualified or licensed would not reasonably be expected to have a
Company Material Adverse Effect.

                  (b) HoldCo has made available to Parent or its counsel
complete and correct copies of its certificate of incorporation and memorandum
and articles of association, as is in effect on the date hereof. HoldCo is not
in material violation of any provision of its memorandum and articles of
association.

                  (c) HoldCo does not own, directly or indirectly, any capital
stock or other equity securities of any corporation, partnership, joint venture
or other business association or entity, other than (i) directors' qualifying
shares required under


                                                                            -38-

applicable law and (ii) 75,001,000 shares of Company Common Stock, which are
owned directly by HoldCo free and clear of all Encumbrances.

            Section 4.2 Capitalization.

                  (a) As of the date hereof, the authorized share capital of
HoldCo consists of 50,000 shares of HoldCo, of which 2,000 shares are issued and
outstanding. All of the outstanding shares of HoldCo are, and prior to the
HoldCo Merger Effective Time will be, when issued in accordance with the terms
thereof, duly authorized, validly issued, fully paid and non-assessable and not
subject to any preemptive or similar rights.

                  (b) There is no Convertible Debt of HoldCo issued and
outstanding. There are no existing options, warrants, calls, pre-emptive rights,
subscriptions or other rights, agreements, arrangements or commitments of any
kind relating to the issued or unissued share capital of HoldCo obligating
HoldCo to issue, transfer or sell or cause to be issued, transferred or sold any
shares or Convertible Debt of, or other equity interest in, HoldCo or securities
convertible into or exchangeable for such shares or equity interests, or
obligating HoldCo to grant, extend or enter into any such option, warrant, call,
subscription or other right, agreement, arrangement or commitment, and (ii)
there are no outstanding contractual obligations of HoldCo to repurchase, redeem
or otherwise acquire any shares of HoldCo or any affiliate of HoldCo or to
provide funds to make any investment (in the form of a loan, capital
contribution or otherwise) in any entity.

                  (c) All outstanding shares of HoldCo have been issued and
granted in compliance with (i) all applicable laws, including applicable
securities laws and (ii) all material requirements set forth in applicable
agreements or instruments.

            Section 4.3 Authority; Consents and Approvals; No Violations.

                  (a) HoldCo has all requisite corporate power and authority to
enter into this Agreement and to consummate the HoldCo Merger and the other
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation by the HoldCo of the HoldCo Merger and the other
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of HoldCo, have been approved with respect to the
de-registration of HoldCo from the Cayman Islands to the State of Delaware by
the requisite number of voting shares of HoldCo in accordance with the Companies
Law (2003 Revision) of the Cayman Islands (the "Companies Law") and HoldCo's
memorandum and articles of association, and other corporate proceedings on the
part HoldCo are necessary to authorize this Agreement or to consummate the
HoldCo Merger and the other transactions contemplated hereby, subject only to
the filing of the HoldCo certificate of domestication, certificate of
incorporation, and HoldCo Certificate of Merger pursuant to the DGCL and the
filing of the special resolution, affidavit and payment of fees required by
Section 226 of the Companies Law to de-register HoldCo from the Cayman Islands.
This Agreement has been duly executed and delivered by HoldCo and, assuming the
due authorization, execution and delivery hereof by Parent, Merger Sub 1, Merger
Sub 2, Merger Sub 3 and the Company,


                                                                            -39-

constitutes a valid and binding agreement of HoldCo, enforceable against HoldCo
in accordance with its terms.

                  (b) The execution and delivery of this Agreement by HoldCo,
and the performance of this Agreement by HoldCo and the consummation by HoldCo
of the HoldCo Merger and the other transactions contemplated by this Agreement,
do not and will not, (i) conflict with or violate HoldCo's memorandum and
articles of association, (ii) conflict with any Legal Requirement applicable to
HoldCo or by which HoldCo or any of its properties is bound or affected.

                  (c) No consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Entity is required to
be obtained or made by HoldCo in connection with the execution and delivery of
this Agreement or the consummation by HoldCo of the HoldCo Merger and the other
transactions contemplated hereby, except for (i) the filing of the special
resolution, affidavit and payment of fees required by Section 226 of the
Companies Law to de-register HoldCo from the Cayman Islands, (ii) the filing of
the certificate of domestication and certificate of incorporation with the
Secretary of State of the State of Delaware, and (iii) the filing of the HoldCo
Certificate of Merger with the Secretary of State of the State of Delaware.

            Section 4.4 Business Operations. HoldCo was formed solely for the
purpose of owning shares of Company Common Stock. HoldCo does not own, and has
never owned, any property or assets other than the shares of Company Common
Stock and has not incurred any liabilities whatsoever other than in connection
with the transactions contemplated by this Agreement. HoldCo has never engaged
in any business other than owning the shares of Company Common Stock.

            Section 4.5 Authority; Consents and Approvals; No Violations. HoldCo
has timely filed (or there has been timely filed on its behalf) with the
appropriate Tax Authority all material Tax Returns required to be filed by it,
and such Tax Returns are true, correct and complete in all material respects.

                                   ARTICLE V

                     PARENT REPRESENTATIONS AND WARRANTIES

            Parent, Merger Sub 1, Merger Sub 2 and Merger Sub 3, jointly and
severally, represent and warrant to the Company, subject to such exceptions as
are set forth in the disclosure schedule delivered by Parent to the Company on
the date hereof (the "Parent Disclosure Schedule"), which disclosure schedule
shall provide an exception to or otherwise qualify the representations or
warranties of Parent, Merger Sub 1, Merger Sub 2 or Merger Sub 3, as the case
may be, specifically referred to in the applicable numbered and lettered
sections and subsections of this Article V to which each exception refers as
well as such other representations and warranties to the extent that it is
reasonably apparent on the face of the Parent Disclosure Schedule that such
disclosure is applicable.


                                                                            -40-

            Section 5.1 Organization.

                  (a) Parent is a societe anonyme duly organized and validly
existing under the laws of France. Each of Merger Sub 1, Merger Sub 2 and Merger
Sub 3 is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware. Parent and each Parent Subsidiary (i)
has the requisite corporate power and authority to own, lease and operate its
properties and to carry on its business as it is now being conducted, and (ii)
is duly qualified or licensed to do business and is in good standing in each
jurisdiction in which the property owned, leased or operated by it or the nature
of the business conducted by it makes such qualification or license necessary,
except where such failure to have such power or authority or to be so qualified
or licensed would not reasonably be expected to have a Parent Material Adverse
Effect.

                  (b) Parent has made available to the Company or its counsel
complete and correct copies of the certificate of incorporation and bylaws or
equivalent governing instruments of Parent, Merger Sub 1, Merger Sub 2 and
Merger Sub 3, as is in effect on the date hereof. Neither Parent nor any of
Merger Sub 1, Merger Sub 2 or Merger Sub 3 is in material violation of any
provision of its certificate of incorporation or bylaws or equivalent governing
instruments.

            Section 5.2 Capitalization.

                  (a) As of July 17, 2003, the capital stock of Parent consisted
of 63,189,929 Parent Ordinary Shares, of which (i) 24,484,011 are in the form of
Parent ADSs, and (ii) 1,067,675 are held in the treasury of Parent. In addition,
(i) 9,158,381 Parent Shares are authorized for issuance pursuant to outstanding
options ("Parent Options"), (ii) 2,591,439 Parent Shares are available for
issuance pursuant to Parent's 1999 Stock Option Plan and 2001 Stock Option Plan
(the "Parent Option Plans"), (iii) 67,500 Parent Shares are authorized for
issuance pursuant to outstanding warrants, (iv) 683,030 are authorized for
issuance pursuant to the 1995 International Employee Stock Purchase Plan and the
French Employee Stock Purchase Plan, and (v) 5,000,000 Parent Shares are
authorized for issuance of securities of Parent giving immediate or deferred
access to share capital of Parent with or without preferential subscription
rights. All of the outstanding Parent Shares are, and all Parent Shares which
may be issued pursuant to the exercise of outstanding stock options and warrants
will be, when issued in accordance with the respective terms thereof, duly
authorized, validly issued and fully paid and not subject to preemptive rights.

                  (b) There is no Convertible Debt of Parent or any Parent
Subsidiary issued and outstanding. Except as set forth in this Section 5.2 as of
the date hereof, (i) there are no existing options, warrants, calls, pre-emptive
rights, subscriptions or other rights, agreements, arrangements or commitments
of any kind relating to the capital stock of Parent or any Parent Subsidiary
obligating Parent or any Parent Subsidiary to issue, transfer or sell or cause
to be issued, transferred or sold any shares of capital stock or Convertible
Debt of, or other equity interest in, Parent or any Parent Subsidiary or
securities convertible into or exchangeable for such shares or equity interests,
or obligating Parent or any Parent Subsidiary to grant, extend or enter into any
such option, warrant, call, subscription or other right, agreement, arrangement
or


                                                                            -41-

commitment, and (ii) there are no outstanding contractual obligations of Parent
or any Parent Subsidiary to repurchase, redeem or otherwise acquire any shares
of the capital stock of Parent or any Parent Subsidiary or any affiliate of
Parent or to provide funds to make any investment (in the form of a loan,
capital contribution or otherwise) in any Parent Subsidiary or any other entity.

                  (c) All outstanding Parent Shares, all outstanding Parent
Options and all outstanding shares of capital stock of each Parent Subsidiary
have been issued and granted in compliance in all material respects with (i) all
applicable laws, including applicable securities laws and (ii) all requirements
set forth in applicable material agreements or instruments.

            Section 5.3 Authority; Consents and Approvals; No Violations.

                  (a) Subject to the approval of the Mergers and the Capital
Increase by Parent's stockholders, each of Parent, Merger Sub 1, Merger Sub 2
and Merger Sub 3 has all requisite corporate power and authority to enter into
this Agreement and to consummate the Mergers and the other transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation by Parent, Merger Sub 1, Merger Sub 2 and Merger Sub 3 of the
Mergers and the other transactions contemplated hereby have been duly authorized
by all necessary corporate action on the part of Parent, Merger Sub 1, Merger
Sub 2 and Merger Sub 3 and no other corporate proceedings on the part of Parent,
Merger Sub 1, Merger Sub 2 and Merger Sub 3 are necessary to authorize this
Agreement or to consummate the Mergers and the other transactions contemplated
hereby, subject to the approval of the Mergers and the Capital Increase by the
requisite vote of Parent's stockholders, the filing of the HoldCo Certificate of
Merger, the Second HoldCo Certificate of Merger, the Company Certificate of
Merger and the Second Company Merger Certificate of Merger (together, the
"Certificates of Merger") pursuant to the DGCL. The affirmative vote of the
holders of at least two-thirds of Parent Shares present or represented at
Parent's stockholders meetings to approve the Mergers is the only vote of the
holders of any class or series of Parent capital stock necessary to approve the
Mergers. This Agreement has been duly executed and delivered by Parent, Merger
Sub 1, Merger Sub 2 and Merger Sub 3 and, assuming the due authorization
execution and delivery hereof by the Company, constitutes a valid and binding
agreement of Parent, Merger Sub 1, Merger Sub 2 and Merger Sub 3, enforceable
against each of them in accordance with its terms. The Parent Shares to be
issued pursuant to the Capital Increase and the Mergers, when issued in
accordance with the terms hereof, will be duly authorized, validly issued and
fully paid and will not be subject to preemptive rights.

                  (b) The execution and delivery of this Agreement by Parent,
Merger Sub 1, Merger Sub 2 and Merger Sub 3 do not, and the performance of this
Agreement by Parent, Merger Sub 1, Merger Sub 2 and Merger Sub 3 and the
consummation by Parent, Merger Sub 1, Merger Sub 2 and Merger Sub 3 of the
Mergers and the other transactions contemplated by this Agreement will not, (i)
subject to obtaining the approval of the Mergers and the approval of the Capital
Increase, conflict with or violate the organizational documents of Parent,
Merger Sub 1, Merger Sub 2 and Merger Sub 3, (ii) subject to obtaining the
approval of the Mergers and the approval of


                                                                            -42-

the Capital Increase and issuance of Parent Shares pursuant to or in connection
with the Mergers and compliance with the requirements set forth in Section
4.3(c) below, conflict with or violate any Legal Requirement applicable to
Parent, Merger Sub 1, Merger Sub 2 or Merger Sub 3 or by which Parent, Merger
Sub 1, Merger Sub 2 or Merger Sub 3 or their respective properties are bound or
affected, or (iii) result in any breach of or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, or
impair Parent's, Merger Sub 1's, Merger Sub 2's or Merger Sub 3's rights or
alter the rights or obligations of any third party under, or give to others any
rights of termination, amendment, acceleration or cancellation of, or result in
the creation of an Encumbrance on any of the material properties or assets of
Parent or any of Parent Subsidiaries pursuant to any Parent Material Contract
other than, in the case of clauses (ii) and (iii), any such conflicts,
violations, breaches, defaults, rights, terminations, amendments, accelerations,
cancellations or Encumbrances that individually or in the aggregate would not
have a Parent Material Adverse Effect or prevent or materially adversely affect
the ability of Parent to consummate the Mergers within the time frame in which
the Mergers would otherwise be consummated in the absence of such conflict,
violation, breach, default, right, termination, amendment, acceleration,
cancellation or Encumbrance.

                  (c) No consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Entity is required to
be obtained or made by Parent in connection with the execution and delivery of
this Agreement or the consummation by Parent of the Mergers and the transactions
contemplated hereby, except for (i) the filing of the Certificates of Merger
with the Secretary of State of the State of Delaware and appropriate documents
with the relevant authorities of other jurisdictions in which Parent is
qualified to do business, (ii) the filing of the Registration Statement and the
Proxy Statements with the SEC in accordance with the Exchange Act and Securities
Act and compliance with any other applicable requirements of the Exchange Act,
the Securities Act and Nasdaq, and compliance with applicable requirements of
the Commission des operations de bourse (the "COB"), Euronext Paris ("Euronext")
and the Conseil des marches financiers (the "CMF," and collectively with the COB
and Euronext, the "French Stock Exchange Authorities") relating to Parent Shares
to be issued pursuant to the Capital Increase and compliance with any other
applicable French securities or takeover laws and regulations, (iii) such
consents, approvals, orders, authorizations, registrations, declarations and
filings as may be required under applicable federal, foreign and state
securities (or related) laws, the HSR Act and, if applicable, any Foreign
Antitrust Filings, (iv) such consents, approvals, orders, authorizations,
registrations, declarations and filings as may be required under applicable
state securities or "blue sky" laws and the securities laws of any foreign
country, and (v) such other consents, authorizations, filings, approvals and
registrations which if not obtained or made individually or in the aggregate
would not be material to the Company, Parent or the Surviving Corporation or
materially adversely affect the ability of the parties hereto to consummate the
Mergers within the time frame in which the Mergers would otherwise be
consummated in the absence of the need for such consent, approval, order,
authorization, registration, declaration or filings. The consents, approvals,
orders, authorizations, registrations, declarations and filings set forth in (i)
through (iv) are referred to herein as the "Parent Necessary Consents."


                                                                            -43-

            Section 5.4 Parent SEC Filings; Financial Statements.

                  (a) Parent has filed all forms, reports and documents required
to be filed by Parent with the SEC since January 1, 2000 and has made available
to the Company or its counsel such forms, reports and documents in the form
filed with the SEC (as those documents have been amended and including those
that Parent may file subsequent to the date hereof, the "Parent SEC Filings").
As of their respective dates, Parent SEC Filings (i) were prepared and timely
filed in accordance with and complied in all material respects with the
requirements of the Securities Act or the Exchange Act, as the case may be, and
the rules and regulations of the SEC thereunder and (ii) did not at the time
they were filed (or if amended or superseded by a filing prior to the date
hereof, then on the date of such filing) contain any untrue statement of a
material fact or omit to state a material fact or disclose any matter or
proceeding required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. None of Parent's Subsidiaries is required to file any
forms, reports or other documents with the SEC.

                  (b) Each of the consolidated financial statements (including,
in each case, any related notes thereto) contained in the Parent SEC Filings,
(i) complied in all material respects with the published rules and regulations
of the SEC with respect thereto, (ii) was prepared in accordance with GAAP
applied on a consistent basis throughout the periods involved (except as may be
indicated in the notes thereto and, in the case of unaudited interim financial
statements, as may be permitted by the SEC on Form 10-Q, Form 8-K or any similar
or successor form under the Exchange Act), and (iii) fairly presented in all
material respects the consolidated financial position of Parent and Parent
Subsidiaries as of the respective dates thereof and the consolidated results of
operations and cash flows for the periods indicated therein, except that the
unaudited interim financial statements may not contain footnotes and were or are
subject to normal and recurring year-end adjustments. The reserves reflected in
the Parent Financial Statements are adequate, appropriate and reasonable and
have been calculated in a consistent manner in accordance with GAAP. The balance
sheet of Parent contained in its quarterly report on Form 10-Q for the quarterly
period ended March 31, 2003 is hereinafter referred to as the "Parent Balance
Sheet."

                  (c) Parent has made available to the Company or its counsel
(i) a complete and correct copy of any amendments or modifications to the Parent
SEC Filings, which have not yet been filed with the SEC but that Parent intends
to file as of the date hereof, (ii) complete and correct copies of any
correspondence with, and inquiries from, the SEC with respect to previously
filed Parent SEC Filings since June 30, 2000 other than ministerial
correspondence generated in connection with the submission of filings under
Section 16 of the Exchange Act and requests for and responses to requests for
Edgar identification codes, and (iii) complete and correct copies of any
correspondence with, and inquiries from, Nasdaq or the French Stock Exchange
Authorities which in and of themselves constitute information currently material
to Parent's business.

                  (d) Parent has implemented "disclosure controls and
procedures" (as defined in Rules 13a-14(c) and 15d-14(c) of the Exchange Act)
designed


                                                                            -44-

to ensure that material information relating to Parent and Parent Subsidiaries
is made known to Parent's chief executive officer and chief financial officer.
Each required form, report and document containing financial statements that has
been filed with or submitted to the SEC since July 31, 2002, was accompanied by
the certifications required to be filed or submitted by Parent's chief executive
officer and chief financial officer pursuant to the Sarbanes-Oxley Act, and at
the time of filing or submission of each such certification, such certification
was true, accurate and complete, and complied with the Sarbanes-Oxley Act and
the rules and regulations promulgated thereunder.

                  (e) Since June 30, 2000, neither Parent nor any Parent
Subsidiary nor, to Parent's Knowledge, any director, officer, employee, auditor,
accountant or Representative of Parent or any Parent Subsidiary has received or
otherwise had or obtained knowledge of any written complaint, allegation,
assertion or claim regarding the accounting or auditing practices, procedures,
methodologies or methods of Parent or any Parent Subsidiary or their respective
internal accounting controls, including any complaint, allegation, assertion or
claim that Parent or any Parent Subsidiary has engaged in questionable
accounting or auditing practices. No attorney representing Parent or any Parent
Subsidiary, whether or not employed by Parent or any Parent Subsidiary, has
reported evidence of a violation of securities laws, breach of fiduciary duty or
similar violation by Parent or any of its officers, directors, employees or
agents to Parent's board of directors or any committee thereof or to any
director or officer of Parent.

            Section 5.5 Absence of Certain Changes. Except as disclosed in the
Parent SEC Filings filed since the date of the Parent Balance Sheet and through
the date hereof and, as contemplated by this Agreement, Parent has conducted its
business in all material respects only in the ordinary course of business
consistent with past practices and in compliance in all material respects with
all applicable laws and regulations and, specifically and without limitation of
the foregoing, there has not been, with respect to Parent:

                  (a) any event, occurrence, development or state of
circumstances or facts that has resulted in or constituted or that is reasonably
likely to result in or constitute a Parent Material Adverse Effect; or

                  (b) (i) any split, combination or reclassification of any
capital stock, (ii) any declaration, setting aside or payment of any dividend
on, or other distribution (whether in cash, stock or property) in respect of,
any of the shares of capital stock, or any purchase, redemption or other
acquisition of any of the shares of capital stock or any other securities or
other partnership interests or any options, warrants, calls or rights to acquire
any such shares or other securities except for repurchases from employees or
consultants following their termination pursuant to the terms of their
pre-existing stock option or purchase agreements, or (iii) any amendment of any
material term of any outstanding security.

            Section 5.6 No Undisclosed Liabilities. Except as and to the extent
disclosed in the consolidated financial statements (including, in each case, any
related notes thereto) contained in the Parent SEC Filings (including such
financial statements as


                                                                            -45-

were incorporated by reference) (the "Parent Financial Statements") and except
for liabilities and obligations incurred in the ordinary cause of business since
the date of the Parent Balance Sheet and through the date hereof, Parent has not
incurred any liabilities required under GAAP to be set forth on a consolidated
balance sheet (absolute, accrued, contingent or otherwise) which would be
reasonably expected to have a Parent Material Adverse Effect, except for
liabilities incurred since the date of the Parent Balance Sheet in the ordinary
course of business consistent with past practices.

            Section 5.7 Parent Material Contracts. All contracts, policies,
agreements, leases, licenses, documents, instruments, arrangements and other
commitments that, as of the date hereof, are required to be filed as an exhibit
to the Parent SEC Filings (the "Parent Material Contracts") are in all material
respects valid and binding agreements of Parent and, to Parent's Knowledge, each
Parent Material Contract (other than those which expire prior to the Effective
Time) is in full force and effect, and neither Parent nor, to Parent's
Knowledge, any other party thereto, is in default in any material respect under
the terms of any such Parent Material Contracts.

            Section 5.8 Intellectual Property; Privacy.

                  (a) To Parent's Knowledge, the conduct of the business of the
Parent and each Parent Subsidiary does not (except as may have been resolved)
infringe or misappropriate the Intellectual Property Rights of any third party
or constitute unfair competition or unfair trade practices under the laws of any
jurisdiction, in each case to an extent which would reasonably be expected to
have a Parent Material Adverse Effect.

                  (b) In the one (1) year period preceding the date hereof,
neither the Parent nor any of the Parent Subsidiaries has received any written
communications from any third party alleging that the operation of the business
of Parent or any of the Parent Subsidiaries has infringed or misappropriated or
does infringe or misappropriate the Intellectual Property Rights of any third
party or constitute unfair competition or unfair trade practices under the laws
of any jurisdiction, in each case to an extent which is likely to have a Parent
Material Adverse Effect.

                  (c) To Parent's Knowledge there is no pending claim, suit,
arbitration or other adversarial proceeding before any court, agency, arbitral
tribunal or registration authority in any jurisdiction in which Parent or any
Parent Subsidiary does business alleging that the conduct of the business of the
Parent or any Parent Subsidiary has infringed or misappropriated or does
infringe or misappropriate the Intellectual Property Rights of any third party
or constitute unfair competition or unfair trade practices under the laws of
such jurisdiction.

                  (d) To Parent's Knowledge, no Person has infringed or
misappropriated, or is infringing or misappropriating, any Parent Intellectual
Property Rights in a manner that would have a Parent Material Adverse Effect.


                                                                            -46-

            Section 5.9 Taxes.

                  (a) Parent and all Parent Subsidiaries (i) have timely filed
(or there have been timely filed on their behalf) with the appropriate Tax
Authority all material Tax Returns required to be filed by them, and such Tax
Returns are true, correct and complete in all material respects, and (ii) have
timely paid in full (or there has been timely paid on their behalf), all
material Taxes shown as due and payable on such Tax Returns.

                  (b) There are no material liens for Taxes upon any property or
assets of Parent or any Parent Subsidiary thereof, except for liens for Taxes
not yet due.

                  (c) The charges, accruals and reserves for Taxes with respect
to the Company and the Company Subsidiaries reflected on the Parent Financial
Statements (excluding any provision for deferred income Taxes reflecting either
differences between the treatment of items for accounting and income Tax
purposes or carryforwards) are adequate under GAAP to cover Tax liabilities
accruing through the date of such Parent Financial Statements.

            Section 5.10 Merger Subs. Each of Merger Sub 1, Merger Sub 2 and
Merger Sub 3 was formed in connection with engaging in the transactions
contemplated by this Agreement, and each of Merger Sub 1, Merger Sub 2 and
Merger Sub 3 has engaged in no business other than in connection with the
transactions contemplated hereby.

            Section 5.11 Availability of Funds. Parent currently has access to
sufficient immediately available funds in cash or cash equivalents, and will at
the Closing have sufficient immediately available funds, in cash, to pay the
aggregate amount of cash consideration set forth in Article II.

            Section 5.12 Litigation. As of the date hereof, there is no action,
suit, claim, binding arbitration proceeding or binding alternative dispute
resolution proceeding, or investigation or proceeding by or before any court or
Governmental Entity pending, or, to Parent's Knowledge, overtly threatened
against, naming Parent or any of Parent's officers or directors (in their
capacities as such) or any other party that Parent may be obligated to indemnify
as a party thereto or seeking to restrain, enjoin, alter or delay the
consummation of the Mergers or the other transactions contemplated hereby. There
is no pending or effective judgment, decree or order against Parent, and Parent
Subsidiary or any of Parent's officers or directors (in their capacities as
such). There is no litigation that Parent or any Parent Subsidiary has pending
against other parties.

            Section 5.13 Compliance with Laws.

                  (a) Parent is in compliance in all material respects with all
material Legal Requirements. No investigation or review by any Governmental
Entity is pending or, to Parent's Knowledge, has been overtly threatened against
Parent. Parent has not received any written communication from a Governmental
Entity (excluding routine inspections) that alleges that any of them is not in
compliance with all material


                                                                            -47-

federal, state, foreign or local laws, rules and regulations. There is no
agreement, judgment, injunction, order or decree binding upon Parent which has
or could reasonably be expected to have the effect of prohibiting or impairing
any material business practice of Parent, any acquisition of property material
to the operation of the business of Parent or the conduct of business by Parent
as currently conducted. The Parent holds to the extent legally required, all
licenses, permits and approvals from Government Entities that are material to
the operation of Parent's business as currently conducted. The Parent is in
compliance in all material respects with such licenses, permits and approvals.

                  (b) Neither Parent nor, to Parent's Knowledge, any directors
or officers, agents or employees of Parent, has (i) used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to
political activity, (ii) made any unlawful payment to foreign or domestic
government officials or employees or to foreign or domestic political parties or
campaigns or violated any provision of the Foreign Corrupt Practices Act of
1977, as amended, or (iii) made any payment in the nature of criminal bribery.

            Section 5.14 Brokers' and Finders' Fees. Except for the fees payable
to Thomas Weisel Partners LLC ("Thomas Weisel") pursuant to the engagement
letter dated June 17, 2003, Parent has not incurred, nor will it incur, directly
or indirectly, any liability for brokerage, finders' financial advisors' or
financial sponsors' fees or agents' commissions or any similar charges in
connection with this Agreement or any transaction contemplated hereby.

            Section 5.15 Opinion of Financial Advisor. Parent has received the
written opinion of Thomas Weisel to the effect that the consideration to be paid
by Parent to the holders of HoldCo Common Stock, Company Common Stock and
options to acquire Company Common Stock, in the aggregate, pursuant to the
Merger, is fair to Parent from a financial point of view as of the date of such
opinion and a true and complete copy of such opinion will be delivered to
Company when available.

                                   ARTICLE VI

             CONDUCT OF THE COMPANY'S BUSINESS PENDING THE MERGERS

            Section 6.1 Interim Conduct of the Company.

                  (a) During the period from the date hereof and continuing
until the earlier of the termination of this Agreement pursuant to its terms or
the Effective Time, except to the extent that Parent consents in writing, the
Company will, and will cause each Company Subsidiary to use all reasonable
efforts to carry on its business, in all respects material to the Company and
the Company Subsidiaries taken as a whole, in the usual, regular and ordinary
course, in substantially the same manner as heretofore conducted and in
compliance in all material respects with all applicable laws and regulations,
pay its debts and Taxes when due, subject to good faith disputes over such debts
or Taxes, pay or perform other material obligations when due, and use its best
efforts to preserve intact its present business organization.


                                                                            -48-

                  (b) In addition, without limiting the generality of Section
6.1(a), except as permitted or contemplated by the terms of this Agreement or as
provided in Section 6.1(b) of the Company Disclosure Schedule, without the prior
written consent of Parent (which consent shall not be unreasonably withheld,
delayed or conditioned), during the period from the date hereof and continuing
until the earlier of the termination of this Agreement pursuant to its terms or
the Company Merger Effective Time, the Company will not do, and will not permit
any Company Subsidiary to do, any of the following:

                        (i) amend its articles or certificate of incorporation
      or bylaws or similar organizational documents;

                        (ii) (A) issue, sell, transfer, pledge, dispose of or
      encumber any shares of, or securities convertible into or exchangeable
      for, or options, warrants, calls, commitments or rights of any kind to
      acquire, any shares of capital stock of any class of the Company or any
      Company Subsidiary, other than the issuance, delivery and/or sale of (1)
      shares of the Company Common Stock pursuant to the exercise of stock
      options or warrants therefor outstanding as of the date hereof, (2) stock
      options or other stock-based awards of or to acquire shares of the Company
      Common Stock granted under the Company Option Plans that are existing as
      of the date hereof, in the ordinary course of business in connection with
      periodic compensation reviews or ordinary course promotions or to new
      hires and which options or stock-based awards have a vesting schedule no
      more favorable than the Company's customary vesting schedule (it being
      understood that any such stock options granted after the date hereof will
      not vest prior to Closing, and that no stock options will be granted
      following the date of effectiveness the Registration Statement) and do not
      accelerate, or become subject to acceleration, directly or indirectly, as
      a result of the approval or consummation of the Company Merger (other
      than, in accordance with the terms of such plan or pursuant to a change of
      control agreement to which the optionee is already a party) in no event to
      exceed an aggregate 3,000,000 shares of Company Common Stock, (B) declare,
      set aside or pay any dividend or other distribution payable in cash, stock
      or property with respect to its capital stock, or (C) redeem, purchase or
      otherwise acquire any shares of any class or series of its capital stock,
      or any instrument or security which consists of or includes a right to
      acquire such shares, except in connection with the exercise of repurchase
      rights or rights of first refusal in favor of the Company with respect to
      shares of the Company Common Stock issued upon exercise of Company Stock
      Options granted under the Company Option Plans;

                        (iii) (A) incur any indebtedness for borrowed money or
      guarantee any such indebtedness of any other Person other than (1) in the
      ordinary course of business, (2) in connection with the financing of
      ordinary course trade payables consistent with past practices, or (3)
      loans, investments or guarantees by the Company or any of the


                                                                            -49-

      Company Subsidiaries to, in or of the Company or any Company Subsidiary
      made in the ordinary course of business other than as contemplated by the
      operating plan of the Company for the fiscal year ending July 2, 2004,
      which has been approved by the Company's board of directors and a copy of
      which has been provided to Parent (the "Company 2004 Plan"), (B) make any
      loans, advances or capital contributions to, or investments in, any other
      Person (other than a Person which is a Company Subsidiary) other than
      customary loans or advances to employees in each case in the ordinary
      course of business consistent with past practices, or (C) cancel any debts
      or waive any material claims or rights other than customer credits in the
      ordinary course of business;

                        (iv) except as required by Legal Requirements or
      pursuant to agreements or written policies in existence as of the date
      hereof or as contemplated by the Company 2004 Plan, (A) make any change in
      the compensation or benefits payable or to become payable to (y) any of
      its employees, agents or consultants or to Persons providing management
      services, which changes constitute a net aggregate change, or (z) its
      officers who report directly to the Chief Executive Officer of the
      Company, or members of the board of directors of the Company, (B) enter
      into or amend any employment, severance, consulting, termination or other
      agreement or employee benefit plan or make any loans to (y) any of its
      employees, affiliates, agents or consultants, which changes constitute a
      net aggregate change, or (z) its officers who report directly to the Chief
      Executive Officer of the Company, or members of the Company's board of
      directors, (C) or make any change in its existing borrowing or lending
      arrangements for or on behalf of any of such employees, agents,
      consultants or Persons providing management services, which changes
      constitute a net aggregate change, or its officers who report to the Chief
      Executive Officer of the Company and members of the board of directors of
      the Company, individually, pursuant to an employee benefit plan or
      otherwise, (D) pay or make any accrual or arrangement for payment of any
      pension, retirement allowance or other employee benefit pursuant to any
      existing plan, agreement or arrangement to any officer, director, employee
      or affiliate or pay or agree to pay or make any accrual or arrangement for
      payment to any officers, directors, employees or affiliates of any amount
      relating to unused vacation days, except payments and accruals made in the
      ordinary course of business consistent with past practices, (E) offer,
      grant or issue any stock options other than in a manner consistent with
      Section 6.1(b)(ii)(A)(2) or take any action to accelerate, amend or change
      the period of vesting or exercisability of options or restricted stock, or
      reprice options granted under any employee, consultant, director or other
      stock plans or authorize cash payments in exchange for any options granted
      under any of such plans, (F) hire or terminate any officer who reports to
      the Chief Executive Officer of the Company (other than terminations for
      cause) or encourage any officer who would report or does report to the
      Chief Executive Officer of the Company


                                                                            -50-

      to resign, or increase the number of employees in the aggregate in a
      manner inconsistent with the Company 2004 Plan, or (G) amend in any
      material respect any such existing plan, agreement or arrangement in a
      manner inconsistent with the foregoing;

                        (v) permit to be cancelled or terminated, without
      reasonable efforts to maintain coverage, or cancel or terminate any
      insurance policy naming it as a beneficiary or loss payee, to be cancelled
      or terminated any insurance policy naming it as a beneficiary or payee;

                        (vi) (A) materially modify, amend or terminate any of
      the Identified Contracts that are material to the business of the Company
      and the Company Subsidiaries, taken as a whole, (B) waive, release or
      assign any material rights on claims under any of the Company Identified
      Contracts that are material to the business of the Company and the Company
      Subsidiaries, taken as a whole, (C) enter into any material commitment or
      transaction including entering into any material purchase, sale or lease
      of assets or real estate, or (D) enter into any agreement, including any
      material strategic alliance, material joint development or joint marketing
      agreement, any borrowing, capital expenditure or purchase, sale or
      material lease of assets or real estate, other than in the ordinary course
      of business consistent with past practices, (E) enter into any agreement
      pursuant to which Parent or the Surviving Corporation or any of their
      respective Subsidiaries, or, other than in the ordinary course of business
      consistent with past practices, the Company or any Company Subsidiary will
      be subject to any material exclusivity, non-compete or other similar
      restriction on their respective businesses following the Closing;

                        (vii) (A) enter into any agreement or assignment which
      has the effect of transferring or licensing to any Person or entity or
      otherwise extending or modifying in any material respect the rights of any
      Person to use material Company Intellectual Property Rights (including the
      associated financial terms), other than non-exclusive licenses in the
      ordinary course of business consistent with past practices; (B) disclose
      to any Person other than Company employees and Representatives of Parent
      any material Trade Secret except pursuant to non-disclosure agreements or
      in the ordinary course of business consistent with past practices; (C)
      transfer, modify or terminate any agreement pursuant to which the Company
      has licensed Intellectual Property Rights material to the conduct of the
      business of the Company from any Person other than in the ordinary course
      of business consistent with past practices; and (D) not disclose any
      material source code to any third party except in the ordinary course of
      business consistent with past practices;

                        (viii) fail to make in a timely manner any filings with
      the SEC required under the Securities Act or the Exchange Act or the rules
      and regulations promulgated thereunder;


                                                                            -51-

                        (ix) (A) make any change in any material method of
      accounting, method of accounting principles or practice, except for such
      change required by reason of a concurrent change in GAAP or compliance
      with the applicable requirements of the rules and regulations promulgated
      by the SEC, (B) make any Tax election or change any Tax election already
      made, adopt any Tax accounting method, except for such changes required by
      applicable law, rule or regulation, change any Tax accounting method,
      except for such changes required by applicable law, rule or regulation,
      enter into any closing agreement or settle any claim or assessment
      relating to Taxes other than settlements or assessments the result of
      which would not be material to the Company and the Company Subsidiaries,
      taken as a whole, or consent to any claim or assessment relating to Taxes
      or any waiver of the statute of limitations for any such claim or
      assessment, or (C) file the 2003 United States federal income Tax return
      for the taxable year ending June 27, 2003 without Parent's consent, which
      shall not be unreasonably withheld, or (D) revalue any of its material
      assets, except as required by GAAP, applicable accounting requirements or
      the published rules and regulations of the SEC with respect thereto in
      effect during the periods involved other than in the ordinary course of
      business consistent with past practices;

                        (x) pay, discharge or satisfy any material claims,
      material liabilities or material obligations (whether absolute, accrued,
      contingent or otherwise), other than the payment, discharge or
      satisfaction of any such claims, liabilities or obligations, in the
      ordinary course of business consistent with past practices, or of claims,
      liabilities or obligations reflected or reserved against in, or
      contemplated by, the consolidated financial statements (or the notes
      thereto);

                        (xi) (A) adopt a plan of complete or partial
      liquidation, dissolution, merger, consolidation, restructuring,
      recapitalization or other reorganization (other than the Mergers) other
      than liquidations, dissolutions, mergers, consolidations, restructurings,
      recapitalizations or other reorganizations of Company Subsidiaries that
      would not have a material effect on the business of the Company and the
      Company Subsidiaries, taken as a whole, (B) acquire or agree to acquire by
      purchasing any equity interest in or a material portion or all of the
      assets of, or by any other manner, any business or any corporation,
      partnership, association or other business organization or division
      thereof, or, except in the ordinary course of business consistent with
      past practices, otherwise acquire or agree to acquire any assets which are
      material, individually or in the aggregate, to the Company and the Company
      Subsidiaries, taken as a whole, or (C) sell, transfer, lease, mortgage,
      pledge, license, encumber, or otherwise dispose of, any of its properties
      or assets that are material, individually or in the aggregate, to the
      Company and the Company Subsidiaries, taken as a whole;


                                                                            -52-

                        (xii) take any action that would or is reasonably likely
      to result in any of the conditions to the Mergers set forth in Article IX
      not being satisfied, or would make many representation or warranty of the
      Company contained herein inaccurate in any material respect at, or as of
      any time prior to, the Company Merger Effective Time, or that would impair
      the ability of the Company to consummate the Company Merger in accordance
      with the terms hereof or materially delay such consummation;

                        (xiii) (A) commence any litigation (except actions
      commenced in the ordinary course of business against third parties) or (B)
      except in the ordinary course of business consistent with past practices
      or as required by law, judicial order or decree or settle any litigation
      except in the ordinary course of business, it being understood that any
      settlement of litigation involving the payment by the Company or any
      Company Subsidiary of an amount in excess of $350,000 is not in the
      ordinary course of business; or

                        (xiv) enter into any written or oral agreement,
      contract, commitment or arrangement to take any of the actions described
      in (i) through (xiv) above.

                  (c) During the period commencing on the date hereof and
continuing until the earlier of the Effective Time or termination of this
Agreement, HoldCo will not conduct any business activities other than
administrative activities in the ordinary course or activities in connection
with or reasonably related to the Mergers and the other transactions
contemplated by the Merger Agreement.

            Section 6.2 Acquisition Proposals.

                  (a) No Solicitation.

                        (i) The Company agrees that it will, and will cause its
      Representatives to, immediately cease and cause to be terminated all
      existing discussions, negotiations and communications with any Persons
      with respect to any offer or proposal for a merger, consolidation or other
      business combination involving the Company, any acquisition of a
      substantial amount of the capital stock (or securities convertible into,
      or exchangeable or exercisable for, capital stock) or assets of the
      Company, any recapitalization with respect to the Company or any other
      transaction similar to any of the foregoing with respect to the Company
      other than pursuant to the transactions contemplated by this Agreement (a
      "Company Acquisition Proposal"). In addition, the Company agrees that it
      will not authorize its employees to continue any existing discussions,
      negotiations or communications with any Persons with respect to any
      Company Acquisition Proposal.


                                                                            -53-

                        (ii) Except as provided in Section 6.2(c), the Company
      will not, and will not authorize or permit its Representatives or
      authorize its employees to, directly or indirectly (A) initiate, solicit,
      knowingly encourage or knowingly facilitate any inquiries with respect to,
      or the making of any offer or proposal which constitutes, or is reasonably
      likely to lead to, any Company Acquisition Proposal, (B) enter into or
      participate in negotiations or discussions with, or provide any
      information or data to, any Person (other than Parent, Merger Sub 1,
      Merger Sub 2, Merger Sub 3 or any of their respective affiliates or
      Representatives) relating to any Company Acquisition Proposal, except as
      to the existence of these provisions, (C) make or authorize any statement,
      recommendation or solicitation in support of, or approve, any Company
      Acquisition Proposal, (D) enter into any letter of intent or similar
      document or any contract, agreement or commitment contemplating or
      otherwise relating to any Company Acquisition Proposal or transaction
      contemplated thereby, or (E) grant any waiver or release under any
      standstill or similar agreement with respect to any equity securities of
      the Company or any of the Company Subsidiaries.

                        (iii) Any violation of the foregoing restrictions by any
      of the Company's Representatives will be deemed to be a breach of this
      Agreement by the Company, whether or not such Representative is so
      authorized and whether or not such Representative is purporting to act on
      behalf of the Company.

                  (b) Notification of Unsolicited Acquisition Proposals. The
Company will promptly notify Parent orally and in writing if any proposals are
received by, any information is requested from, or any negotiations or
discussions are sought to be initiated or continued with the Company or any of
its Representatives, in each case in connection with any Company Acquisition
Proposal or a written indication that a Company Acquisition Proposal is under
consideration indicating, in connection with such notice, the name of the Person
making such Company Acquisition Proposal and the material terms and conditions
thereof. The Company agrees that it will keep Parent informed, on a current
basis, of the status and material terms of any Company Acquisition Proposal. The
Company will provide Parent with forty-eight (48) hours prior notice (or such
lesser prior notice as is provided to the members of the Company's board of
directors) of any meeting of the Company's board of directors at which its board
of directors is reasonably expected to discuss or consider any Company
Acquisition Proposal.

                  (c) Superior Proposals. Notwithstanding the foregoing, until
such time as the Company Merger is approved by the Company's stockholders in
accordance with applicable law, the Company may furnish information concerning
its business, properties or assets to any Person pursuant to an executed
confidentiality agreement with terms (i) no less favorable to the Company than
those contained in the Confidentiality Agreement, (ii) which will not include
any provision calling for any exclusive right to negotiate with such party and
which (iii) will not have the effect of


                                                                            -54-

prohibiting the Company from satisfying its obligations under this Agreement,
and may participate in discussions and negotiations with such Person concerning
any Company Acquisition Proposal if, but only if, (y) such Person has on an
unsolicited basis, and in the absence of any willful or knowing violation of
this Section 6.2 by the Company or any of its Representatives, submitted a bona
fide written Company Acquisition Proposal to the Company, and (z) in the good
faith judgment of the Company's board of directors, upon the advice of outside
legal counsel to the Company, the failure to provide such information or access
or to engage in such discussions or negotiations would be reasonably likely to
result in a violation of its fiduciary duties under applicable law. The Company
will promptly provide to Parent any material non-public information regarding
the Company provided to any other party which was not previously provided to
Parent, such additional information to be provided no later than the date of
provision of such information to such other party.

                  (d) Compliance with Applicable Law. Notwithstanding the
foregoing, nothing contained in this Section 6.2 or any other provision hereof
will prohibit the Company or the Company's board of directors from taking and
disclosing to the Company's stockholders a position contemplated by Rules 14d-9
or 14e-2 promulgated under the Exchange Act, or from complying with its
disclosure obligations under applicable law; provided, however, that neither the
taking or disclosing to the Company's stockholders of a position contemplated by
Rules 14d-9 or 14e-2 nor compliance with the Company's disclosure obligations
under applicable law shall relieve the Company or the Company's board of
directors of their respective obligations and restrictions under this Agreement
(including those articulated in this Section 6.2), or limit, restrict or
otherwise impair the rights of Parent, Merger Sub 1, Merger Sub 2 and Merger Sub
3 under this Agreement.

                                   ARTICLE VII

                CONDUCT OF PARENT'S BUSINESS PENDING THE MERGERS

            Section 7.1 Interim Conduct of Parent.

                  (a) During the period from the date hereof and continuing
until the earlier of the termination of this Agreement pursuant to its terms or
the Company Merger Effective Time, except to the extent that the Company
consents in writing, Parent will use all reasonable efforts to carry on its
business, in all material respects, in the usual, regular and ordinary course,
in substantially the same manner as heretofore conducted and in compliance in
all material respects with all applicable laws and regulations, pay its debts
and Taxes when due, subject to good faith disputes over such debts or Taxes, pay
or perform other material obligations when due, and use its best efforts to
preserve intact its present business organization.

                  (b) In addition, without limiting the generality of Section
7.1(a), except as permitted or contemplated by the terms of this Agreement or as
provided in Section 7.1(b) of the Parent Disclosure Schedule, without the prior
written consent of the Company (which consent shall not be unreasonably
withheld, delayed or conditioned), during the period from the date hereof and
continuing until the earlier of the


                                                                            -55-

termination of this Agreement pursuant to its terms or the Effective Time,
Parent will not do any of the following:

                        (i) amend its articles or certificate of incorporation
      or bylaws or similar organizational documents;

                        (ii) (A) issue, sell, transfer, pledge, dispose of or
      encumber any shares of Parent capital stock or securities (including debt
      securities) convertible into or exchangeable for, or options, warrants,
      calls, commitments or rights of any kind to acquire, any shares of capital
      stock of any class of Parent, other than the issuance, delivery and/or
      sale of (1) Parent Shares pursuant to the exercise of stock options or
      warrants therefor outstanding as of the date hereof, (2) stock options or
      other stock-based awards of or to acquire Parent Shares granted under the
      Parent Option Plans that are granted in the ordinary course of business
      and (3) internal restructurings solely involving Parent and/or direct or
      indirect wholly-owned Parent Subsidiaries, (B) sell, transfer, pledge,
      dispose of or encumber any material amount of assets, (C) declare, set
      aside or pay any dividend or other distribution payable in cash, stock or
      property with respect to its capital stock other than ordinary cash
      dividends, or (D) redeem, purchase or otherwise acquire any shares of any
      class or series of its capital stock, or any instrument or security which
      consists of or includes a right to acquire such shares, except in
      connection with the exercise of repurchase rights or rights of first
      refusal in favor of the Parent with respect to Parent Shares issued upon
      exercise of Parent Options granted under the Parent Option Plans;
      provided, that any such redemption, purchase or otherwise acquisition of
      shares would not and would not reasonably be expected to result in the
      Parent Shares to be issued by virtue of the Mergers to be in excess of
      thirty-three and one-third percent (33-1/3%) of the total outstanding
      Parent share capital;

                        (iii) adopt a plan of complete or partial liquidation or
      dissolution;

                        (iv) take any action that would or is reasonably likely
      to result in any of the conditions to the Mergers set forth in Article IX
      not being satisfied, or that would impair the ability of Parent to
      consummate the Mergers in accordance with the terms hereof or materially
      delay such consummation; or

                        (v) enter into any written or oral agreement, contract,
      commitment or arrangement to take any of the actions described in (i)
      through (iv) above.

            Section 7.2 Acquisition Proposals.

                  (a) No Solicitation.


                                                                            -56-

                        (i) Parent agrees that it will, and will cause its
      Representatives to, immediately cease and cause to be terminated all
      existing discussions, negotiations and communications with any Persons
      with respect to any proposal for a merger, consolidation or other business
      combination resulting in a change of control of Parent or sale of all or
      substantially all of the Parent Shares or Parent's assets that would be
      reasonably likely to (A) materially adversely affect the ability of Parent
      to consummate the transactions contemplated by this Agreement without
      material delay or (B) require a vote of Parent's stockholders prior to the
      Parent Stockholders' Meeting (a "Parent Acquisition Proposal"). In
      addition, Parent agrees that it will not authorize its employees to
      continue any existing discussions, negotiations or communications with any
      Persons with respect to any Parent Acquisition Proposal.

                        (ii) Except as provided in Section 7.2(c), Parent will
      not, and will not authorize or permit its Representatives or authorizes
      its employees to, directly or indirectly, (A) initiate, solicit or
      knowingly encourage or knowingly facilitate any inquiries with respect to,
      the making of any offer or proposal which constitutes, or is reasonably
      likely to lead to, any Parent Acquisition Proposal, (B) enter into or
      participate in negotiations or discussions with, or provide any
      information or data to, any Person relating to any Parent Acquisition
      Proposal, except as to the existence of these provisions, (C) make or
      authorize any statement, recommendation or solicitation in support of, or
      approve, any Parent Acquisition Proposal, or (D) enter into any letter of
      intent or similar document or any contract, agreement or commitment
      contemplating or otherwise relating to any Parent Acquisition Proposal or
      transaction contemplated thereby.

                        (iii) Any violation of the foregoing restrictions by any
      of Parent's Representatives will be deemed to be a breach of this
      Agreement by Parent, whether or not such Representative is so authorized
      and whether or not such Representative is purporting to act on behalf of
      Parent.

                  (b) Notification of Unsolicited Acquisition Proposals. Parent
will promptly notify the Company orally and in writing if any offer or proposal
is received by, Parent or any of its Representatives which constitutes, or is
reasonably likely to lead to a Parent Acquisition Proposal. Parent will provide
the Company with forty-eight (48) hours prior notice (or such lesser prior
notice as is provided to the members of Parent's board of directors) of (i) any
meeting of Parent's board of directors at which its board of directors is
reasonably expected to discuss or consider any Parent Acquisition Proposal, (ii)
the taking of any actions referred to in Sections 7.2(a)(ii)(C) or (D), or (iii)
the amendment, modification, withdrawal, condition or qualification of the
recommendation of the board of directors of Parent or any committee thereof.

                  (c) Certain Parent Acquisition Proposals.


                                                                            -57-

                        (i) Notwithstanding anything to the contrary in Section
      7.2(a), Parent may furnish information concerning its business, properties
      or assets to any Person pursuant to an executed confidentiality agreement
      with terms no less favorable to Parent than those contained in the
      Confidentiality Agreement, and may take any of the actions referred to in
      Sections 7.2(a)(ii) (B) through (D) above concerning a Parent Acquisition
      Proposal if, but only if, (A) such Person has on an unsolicited basis,
      submitted a bona fide written Parent Acquisition Proposal to Parent, and
      (B) in the good faith judgment of Parent's board of directors, based on
      the advice of independent outside legal counsel, the failure to take any
      such action would be reasonably likely to result in a violation of its
      fiduciary duties under applicable law; provided, however, that the taking
      of any such action will not and shall not affect the validity or
      enforceability of this Agreement.

                        (ii) Nothing in this Section 7.2 will prevent Parent
      from responding to any unsolicited proposal or inquiry or engaging in
      negotiations or discussions or entering into any agreement with respect to
      any transaction that is not a Parent Acquisition Proposal; provided, that
      any agreement relating to such transaction will not and shall not affect
      the validity or enforceability of this Agreement.

                  (d) Compliance with Applicable Law. Notwithstanding the
foregoing, nothing contained in this Section 7.2 or any other provision hereof
will prohibit Parent or Parent's board of directors from taking and disclosing
to Parent's stockholders a position contemplated by Rules 14d-9 or 14e-2
promulgated under the Exchange Act or any similar situation provided for under
similar applicable French law and regulations; provided, however, that the
taking or disclosing to Parent's stockholders of a position contemplated by
Rules 14d-9 or 14e-2 or any similar applicable French law and regulations shall
not relieve Parent or Parent's board of directors of their respective
obligations and restrictions under this Agreement (including those articulated
in this Section 7.2), or limit, restrict or otherwise impair the rights of the
Company under this Agreement.

                                  ARTICLE VIII

                             ADDITIONAL AGREEMENTS

            Section 8.1 Approval of Transactions; Stockholders' Meetings.

                  (a) Promptly following the domestication of HoldCo as
contemplated by Section 8.30, HoldCo will submit to the HoldCo Stockholder for
its approval and adoption (as appropriate) this Agreement, the HoldCo Merger and
the other transactions contemplated hereby (the "HoldCo Proposal"). Immediately
following the execution of this Agreement by the parties, the Company will
submit to HoldCo for its approval and adoption (as appropriate) this Agreement,
the Company Merger and the other transactions contemplated hereby (the "Company
Proposals"). The Company will use its best efforts to obtain the approval and
adoption (as appropriate) of the HoldCo


                                                                            -58-

Proposal and the Company Proposals by the HoldCo Stockholder and HoldCo,
respectively, in accordance with this Section 8.1(a).

                  (b) As promptly as practicable following the approval and
adoption of the Company Proposals by HoldCo, the Company will, in accordance
with the applicable law, notify each Company stockholder that the Company
Proposals have been approved and adopted by HoldCo and that appraisal rights are
available under the DGCL, including by filing with the SEC the Company
Information Statement in accordance with the Exchange Act. Parent will furnish
all information concerning itself as the Company may reasonably request in
connection with such actions and the preparation of any such notice and the
Company Information Statement. Parent and its counsel will be given a reasonable
opportunity to review and comment on the Company Information Statement (and any
amendment or supplement thereto) prior to its being filed with the SEC.

                  (c) Notwithstanding anything to the contrary contained in this
Agreement, unless this Agreement is terminated in accordance with its terms, the
Company will notify its stockholders with respect to the approval and adoption
of the Company Proposals in accordance with applicable law.

                  (d) Immediately following the execution of this Agreement,
Parent in its capacity as the sole stockholder of each of Merger Sub 1, Merger
Sub 2 and Merger Sub 3 shall approve and adopt this Agreement and approve the
Mergers.

            Section 8.2 Approval by Parent.

                  (a) As promptly as practicable, Parent, through its board of
directors, will convene a meeting of its stockholders (the "Parent Stockholders'
Meeting") for the purpose of voting upon, and will use its reasonable best
efforts to solicit from its stockholders a vote in favor of, (i) approval of the
Mergers, (ii) approval of the issuance of Parent Shares pursuant to the Capital
Increase, (iii) the appointment of two additional members to Parent's board of
directors as contemplated by Section 8.8, and (iv) such other matters as Parent
reasonably believes are necessary to be approved under applicable law to
consummate the Mergers in accordance with the terms hereof (collectively, the
"Parent Proposals"). Notwithstanding anything in this Agreement to the contrary,
(y) Parent shall be permitted to adjourn the Parent Stockholders' Meeting, from
time to time, until such time as all other conditions set forth in Article IX
(other than conditions which by their terms are to be satisfied at Closing) have
been satisfied or duly waived and (z) unless this Agreement is terminated in
accordance with its terms, Parent will call, hold and convene the Parent
Stockholders' Meeting for the purpose of considering the approval of the Parent
Proposals.

                  (b) Subject to the provisions of this Section 8.2(b), Parent's
board of directors will recommend that Parent's stockholders vote in favor of
the Parent Proposals. Neither Parent's board of directors nor any committee
thereof will amend modify, withdraw, condition or qualify the recommendation in
a manner adverse to the Company unless Parent's board of directors determines in
good faith, based on the advice of independent outside legal counsel, that the
failure to so amend, modify or withdraw,


                                                                            -59-

condition or qualify the recommendation would be reasonably likely to result in
a violation of its fiduciary duties under applicable law.

            Section 8.3 Parent Proxy Statement; Registration Statement.

                  (a) As promptly as practicable after the execution of this
Agreement, Parent will prepare and file with the SEC a registration statement on
Form S-4 (together with all amendments thereto, the "Registration Statement")
for the registration under the Securities Act of the Parent Shares to be issued
pursuant to the Mergers. The Company will furnish all information concerning
itself as Parent may reasonably request in connection with such actions and the
preparation of the Registration Statement. Parent will use all reasonable
efforts to cause the Registration Statement to become effective as promptly as
practicable and to keep the Registration Statement effective as long as
necessary to consummate the transactions contemplated by this Agreement. The
Company and its counsel will be given a reasonable opportunity to review and
comment on the Registration Statement (and any amendment or supplement thereto)
prior to it being filed with the SEC.

                  (b) Prior to the effective date of the Registration Statement,
Parent will take all or any action required under any applicable U.S. federal or
state and non-U.S. securities laws in connection with the issuance of Parent
Shares pursuant to the Mergers.

                  (c) As promptly as practicable after the execution of this
Agreement, (i) Parent will seek the appointment of commissiares aux apports in
connection with the Mergers, (ii) Parent will prepare, publish and/or make
available, to the extent required, and in accordance with the applicable French
law and regulations, to Parent's stockholders the resolutions related to the
Parent Proposals, the rapport du conseil d'administration a l'assemblee and the
rapport des commissaires aux apports (together with any amendments thereof or
supplements thereto, the "Parent Proxy Statement") relating to the Parent's
Stockholders' Meeting to be held to consider approval of the Parent Proposals,
and (iii) Parent will prepare and file with the French Stock Exchange
Authorities all filings required (the "Parent French Filings") in connection
with the Parent Stockholders' Meeting to be held to consider approval of the
Parent Proposals. The Company will promptly furnish all information concerning
the Company as Parent may reasonably request in connection with such actions and
the preparation of the Parent Proxy Statement and the Parent French Filings. The
Company and its counsel will be given a reasonable opportunity to review and
comment on the Registration Statement, the Parent Proxy Statement and the other
Parent French Filings (and any amendment or supplement thereto) prior to them
being filed with the applicable agency.

                  (d) The Parent Proxy Statement will include the recommendation
of Parent's board of directors to Parent's stockholders in favor of the Parent
Proposals, subject to Section 8.2(b).

                  (e) Parent will advise the Company, promptly after it receives
notice thereof, of (i) the time when the Registration Statement has become
effective, (ii) the issuance of any stop order, (iii) the suspension of the
qualification of Parent


                                                                            -60-

Shares issuable in connection with the Mergers for offering or sale in any
jurisdiction, (iv) any request by the SEC for amendment of the Registration
Statement or comments thereon and responses thereto or requests by the SEC for
additional information, (v) any request by the COB or other French regulatory
authority for amendment of the Parent Proxy Statement or other Parent French
Filings or comments thereon and responses thereto or requests by the COB or
other French regulatory authority for additional information, and (vi) the time
at which the COB grants its approval, as the case may be, on the relevant Parent
French Filings.

                  (f) The information supplied by Parent for inclusion in the
Registration Statement will not, at (i) the time the Registration Statement is
declared effective, and (ii) the Effective Time, contain any untrue statement of
a material fact or fail to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The information
supplied by Parent for inclusion in the Company Information Statement will not
contain any untrue statement of a material fact or fail to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. If, at any time prior to the Company Merger Effective Time, any
event or circumstance relating to Parent or any Parent Subsidiary, or their
respective officers or directors, should be discovered by Parent which should be
set forth in an amendment or a supplement to the Registration Statement, the
Parent French Filings or the Company Information Statement, Parent will promptly
inform the Company. All documents that Parent is responsible for filing with the
SEC or the COB in connection with the Mergers or the other transactions
contemplated by this Agreement will comply as to form and substance in all
material aspects with the applicable requirements of the Securities Act and the
rules and regulations thereunder and the Exchange Act and the rules and
regulations thereunder and with applicable French laws and regulations,
respectively.

                  (g) The information supplied by the Company for inclusion in
the Registration Statement will not, at (i) the time the Registration Statement
is declared effective, and (ii) the Effective Time, contain any untrue statement
of a material fact or fail to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The information
supplied by the Company for inclusion in the Parent Proxy Statement will not, at
(x) the time the Parent Proxy Statement (or any amendment thereof or supplement
thereto) is first mailed or made available to the stockholders of Parent, and
(y) the time of the Parent Stockholders' Meeting, and the information supplied
by the Company for inclusion in the Parent French Filings at the time such
Parent French Filings are filed with the COB will not, contain any untrue
statement of a material fact or fail to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. If, at any time
prior to the Effective Time, any event or circumstance relating to the Company
or any Company Subsidiary, or their respective officers or directors, should be
discovered by the Company which should be set forth in an amendment or a
supplement to the Registration Statement, the Proxy Statements or the Parent
French Filings, the Company will promptly inform Parent. All documents that the
Company is


                                                                            -61-

responsible for filing with the SEC in connection with the Mergers or the other
transactions contemplated by this Agreement will comply as to form and substance
in all material respects with the applicable requirements of the Exchange Act
and the rules and regulations thereunder.

            Section 8.4 Confidentiality.

                  (a) The parties hereto acknowledge that Parent and the Company
have previously executed a non-disclosure agreement dated June 17, 2003 (the
"Confidentiality Agreement") which Confidentiality Agreement will continue in
full force and effect in accordance with its terms. Parent agrees that its
obligations with respect to confidentiality thereunder will apply to HoldCo and
information concerning HoldCo to the same extent as the Company as though HoldCo
were a party thereto. In addition, the parties hereto agree that the terms and
conditions of the other transactions contemplated hereby, and information
exchanged in connection with the execution hereof and the consummation of the
other transactions contemplated hereby will be subject to the Confidentiality
Agreement. Merger Sub 1, Merger Sub 2, Merger Sub 3 and HoldCo hereby agree that
each will be bound by the confidentiality terms thereof to the same extent as
Parent is bound by the terms thereof, as if each of them were a party thereto.

                  (b) Notwithstanding the foregoing, the parties (and each
employee, Representative, or other agent of the parties) may disclose to any and
all Persons, without limitation of any kind, the Tax treatment and any facts
that may be relevant to the Tax structure of the Mergers and the other
transactions contemplated hereby; provided, however, that neither party (nor any
employee, Representative or other agent thereof) may disclose any information
that is not relevant to understanding the Tax treatment and Tax structure of the
Mergers and the other transactions contemplated hereby (including the identity
of any party and any information that could lead another to determine the
identity of any party), or any information to the extent that such disclosure
could result in a violation of any federal or state securities law.

            Section 8.5 Public Disclosure. The initial press release with
respect to the execution of this Agreement will be a joint press release
acceptable to Parent and the Company. Unless otherwise required by law
(including federal, state and foreign securities laws), or, as to Parent, by the
rules and regulations of the National Association of Securities Dealers, Inc. or
the rules and regulations of the French Stock Exchange Authorities, no statement
or other disclosure (whether or not in response to an inquiry) of the subject
matter of this Agreement, including the Mergers and the other transactions
contemplated hereby, will be made by any party hereto unless approved by Parent
and the Company prior to release; provided, that such approval will not be
unreasonably withheld or delayed.

            Section 8.6 Listing of Parent Shares.

                  (a) Prior to the Effective Time, Parent will use all
reasonable efforts to cause the Parent ADSs to be issued in the Mergers pursuant
to the Capital Increase to be authorized for listing on the Nasdaq National
Market (or such other stock exchange or trading system on which Parent ADSs are
then primarily trading).


                                                                            -62-

                  (b) Prior to the Effective Time, Parent will use all
reasonable efforts to cause the Parent Ordinary Shares to be issued in the
Mergers pursuant to the Capital Increase to be authorized for listing on
Euronext.

            Section 8.7 Form S-8. Parent will file a registration statement on
Form S-8 (or any successor or other appropriate forms that Parent is eligible to
use) under the Securities Act with respect to the Parent Shares subject to the
Company Stock Option Plan, to the extent Form S-8 registration is available for
such Parent Shares, as soon as practicable but, in any event, within five (5)
business days following the Effective Time and will maintain the effectiveness
of such registration statement(s) for so long as such options remain
outstanding.

            Section 8.8 Board of Directors. Parent will take all necessary
action, subject to applicable law, to cause the number of members of Parent's
board of directors to be increased by two (2) as of the Effective Time, and to
use reasonable best efforts to cause the vacancies to be filled by (a) David J.
Roux (or such other Person as may be designated in writing by HoldCo Stockholder
at least forty-five (45) days prior to the filling of such vacancy; provided,
that such Person is reasonably acceptable to Parent) and (b) one (1) individual
who qualifies as an "independent" director of Parent pursuant to proposed and
applicable law and regulations (the "Independent Director"). Parent's board of
directors will in good faith propose and recommend for appointment one (1)
current "independent" director of the Company to fill the Independent Director
vacancy. The Company and its counsel will be given a reasonable opportunity to
review and comment on Parent's board of directors resolution contemplated by
this Section 7.8.

            Section 8.9 Affiliates. Schedule 8.9 sets forth those Persons who
are "affiliates" of the Company within the meaning of Rule 145 promulgated under
the Securities Act (each such Person, an "Affiliate"). The Company will provide
Parent such information and documents as Parent will request for purposes of
reviewing such list. The Company has delivered, or will use all reasonable
efforts to cause to be delivered, to Parent from each of its respective
Affiliates, other than the HoldCo Stockholder and Affiliates of the HoldCo
Stockholder, an executed Affiliate Agreement in form and substance reasonably
satisfactory to the parties. Parent, Merger Sub 1, Merger Sub 2 and Merger Sub 3
will be entitled to take all necessary steps to ensure that any Parent Shares
issued to such Affiliates are identified as restricted securities within the
meaning of Rule 144 promulgated under the Securities Act and that any resales of
such Parent Shares will be made in accordance with an exemption from
registration under the Securities Act or pursuant to an effective registration
statement.

            Section 8.10 Access to Information. HoldCo and the Company will, and
will cause each Company Subsidiary to, afford Parent and its accountants,
counsel and other Representatives reasonable access during normal business hours
to its properties, books, records and personnel during the period prior to the
Company Merger Effective Time to obtain all information concerning its business,
including the status of product development efforts, properties, results of
operations and personnel (subject to such reasonable procedures as the parties
may agree), as Parent may reasonably request, and, during such period, upon
request by Parent, the Company will, and will cause each Company Subsidiary to
furnish promptly to Parent a copy of any report, schedule,


                                                                            -63-

registration statement and other document filed by it during such period
pursuant to the requirements of federal or state securities laws and the Company
will reasonably cooperate with Parent with respect to transition of employees
following the Closing; provided, however, that the Company may restrict the
foregoing access to the extent that any law, treaty, rule or regulation of any
Governmental Entity applicable to the Company requires such party to restrict or
prohibit access to any such properties or information. Notwithstanding the
foregoing, (a) no information retrieved from the Company's financial reporting
system will be made available to Persons who are directly involved in pricing or
any other competitive activity at Parent or any Parent Subsidiary, (b) Parent
shall not use any information obtained from the Company or any Company
Subsidiary pursuant to the access contemplated by this Section 8.10 for any
purposes other than assessing the financial condition of the Company for
purposes of this Agreement, and (c) Parent will not share, provide or sell the
information to any third party or use the information in any manner that could
reasonably be considered a restraint on competition or result in a violation of
any applicable law. In addition, any information obtained from the Company or
any Company Subsidiary pursuant to the access contemplated by this Section 8.10
shall be subject to the Confidentiality Agreement.

            Section 8.11 Notification.

                  (a) By the Company. The Company shall give prompt notice to
Parent, Merger Sub 1, Merger Sub 2 and Merger Sub 3 of any representation or
warranty made by it contained in this Agreement becoming untrue or inaccurate,
or any failure of the Company to comply with or satisfy in any material respect
any covenant, condition or agreement to be complied with or satisfied by it
under this Agreement, in each case, such that the conditions set forth in
Section 8.2(a) or 8.2(b) would not be satisfied; provided, however, that the
delivery of any notice pursuant to this Section 8.11(a) will not limit or
otherwise affect the remedies available hereunder to Parent or the
representations, warranties or covenants of the Company or the conditions to the
obligations of Parent, Merger Sub 1, Merger Sub 2 and Merger Sub 3.

                  (b) By Parent. Parent, Merger Sub 1, Merger Sub 2 and Merger
Sub 3 shall give prompt notice to the Company of any representation or warranty
made by it contained in this Agreement becoming untrue or inaccurate, or any
failure of Parent to comply with or satisfy in any material respect any
covenant, condition or agreement to be complied with or satisfied by it under
this Agreement, in each case, such that the conditions set forth in Section
8.3(a) or 8.3(b) would not be satisfied; provided, however, that the delivery of
any notice pursuant to this Section 8.11(b) will not limit or otherwise affect
the remedies available hereunder to the Company or the representations,
warranties or covenants of Parent, Merger Sub 1, Merger Sub 2 and Merger Sub 3
or the conditions to the obligations of the Company.

            Section 8.12 Regulatory Filings; Reasonable Efforts.

                  (a) Regulatory Filings. Each of Parent, Merger Sub 1, Merger
Sub 2, Merger Sub 3 and the Company will coordinate and cooperate with one
another and will each use all reasonable efforts to comply with, and will each
refrain from taking any action that would impede compliance with, all Legal
Requirements, and as promptly


                                                                            -64-

as practicable after the date hereof, each of Parent, Merger Sub 1, Merger Sub
2, Merger Sub 3 and the Company will make all filings, notices, petitions,
statements, registrations, submissions of information, application or submission
of other documents required by any Governmental Entity in connection with the
Mergers and the other transactions contemplated hereby, including (i)
Notification and Report Forms with the United States Federal Trade Commission
(the "FTC") and the Antitrust Division of the United States Department of
Justice ("DOJ") as required by the HSR Act, (ii) any other filing necessary to
obtain any Company Necessary Consent or Parent Necessary Consent (together, the
"Necessary Consents"), (iii) filings under any other comparable pre-merger
notification forms required by the merger notification or control laws of any
applicable jurisdiction, as agreed by the parties hereto, and (iv) any filings
required under the Securities Act, the Exchange Act, any applicable state or
securities or "blue sky" laws, French company law, regulations of the French
Stock Exchange Authorities and the securities laws of any foreign country, or
any other Legal Requirement relating to the Mergers. Each of Parent and the
Company will cause all documents that it is responsible for filing with any
Governmental Entity under this Section 8.12(a) to comply in all material
respects with all applicable Legal Requirements.

                  (b) Exchange of Information. Parent, Merger Sub 1, Merger Sub
2, Merger Sub 3 and the Company each will promptly supply the other with any
information which may be required in order to effectuate any filings or
application pursuant to Section 8.12(a). Except where prohibited by applicable
Legal Requirements, and subject to the Confidentiality Agreement, each of Parent
and the Company will consult with the other prior to taking a position with
respect to any such filing, will permit the other to review and discuss in
advance, and consider in good faith the views of the other in connection with
any analyses, appearances, presentations, memoranda, briefs, white papers,
arguments, opinions and proposals before making or submitting any of the
foregoing to any Governmental Entity by or on behalf of any party hereto in
connection with any investigations or proceedings related solely to this
Agreement or the other transactions contemplated hereby (including under any
antitrust or fair trade Legal Requirement), coordinate with the other in
preparing and exchanging such information and promptly provide the other (and
its counsel) with copies of all filings, presentations or submissions (and a
summary of any oral presentations) made by such party with any Governmental
Entity related solely to this Agreement or the other transactions contemplated
hereby; provided, that with respect to any such filing, presentation or
submission, each of Parent and the Company need not supply the other (or its
counsel) with copies (or in case of oral presentations, a summary) to the extent
that any law, treaty, rule or regulation of any Governmental Entity applicable
to such party may reasonably require such party or its Subsidiaries to restrict
or prohibit access to any such properties or information.

                  (c) Notification. Each of Parent, Merger Sub 1, Merger Sub 2,
Merger Sub 3 and the Company will notify the other promptly upon the receipt of
(i) any comments from any officials of any Governmental Entity in connection
with any filings made pursuant hereto and (ii) any request by any officials of
any Governmental Entity for amendments or supplements to any filings made
pursuant to, or information provided to comply in all material respects with,
any Legal Requirements. Whenever any event


                                                                            -65-

occurs that is required to be set forth in an amendment or supplement to any
filing made pursuant to Section 8.12(a), Parent, Merger Sub 1, Merger Sub 2,
Merger Sub 3 or the Company, as the case may be, will promptly inform the other
of such occurrence and cooperate in filing with the applicable Governmental
Entity such amendment or supplement.

                  (d) Reasonable Efforts. Subject to the express provisions of
Section 8.12(e) and upon the terms and subject to the conditions set forth
herein, each of the parties agrees to use all reasonable efforts to take, or
cause to be taken, all actions, and to do, or cause to be done, and to assist
and cooperate with the other parties in doing, all things necessary, proper or
advisable to consummate and make effective, in the most expeditious manner
practicable, the Mergers and the other transactions contemplated hereby,
including using all reasonable efforts to accomplish the following (i) the
taking of all reasonable acts necessary to cause the conditions precedent set
forth in Article IX to be satisfied, (ii) the obtaining of all necessary actions
or nonactions, waivers, consents, approvals, orders and authorizations from
Governmental Entities and the making of all necessary registrations,
declarations and filings (including registrations, declarations and filings with
Governmental Entities, if any) and the taking of all reasonable steps as may be
necessary to avoid any suit, claim, action, investigation or proceeding by any
Governmental Entity, (iii) the obtaining of all necessary consents, approvals or
waivers from third parties, including all Necessary Consents (provided, that the
parties will discuss in good faith procedures to pursue third party consents
with respect to the Mergers) (it being understood that failure to obtain any one
or more such consents, in and of itself, shall not constitute a condition to
Closing hereunder), (iv) the defending of any suits, claims, actions,
investigations or proceedings, whether judicial or administrative, challenging
this Agreement or the consummation of the Mergers or the other transactions
contemplated hereby, including seeking to have any stay or temporary restraining
order entered by any court or other Governmental Entity vacated or reversed, if,
there is a reasonable possibility that the defending of such actions would
result in their dismissal, removal, elimination or termination, and (v) the
execution or delivery of any additional instruments necessary to consummate the
transactions and to fully carry out the purposes of, this Agreement. In
connection with and without limiting the foregoing, the Company and the
Company's board of directors will, if any takeover statute or similar Legal
Requirement is or becomes applicable to the Company Merger, this Agreement or
any of the other transactions contemplated hereby, use all reasonable efforts to
ensure that the Company Merger and the other transactions contemplated by this
Agreement may be consummated as promptly as practicable on the terms
contemplated by this Agreement and otherwise to minimize the effect of such
Legal Requirement on the Company Merger, this Agreement and the other
transactions contemplated hereby.

                  (e) Limitation on Divestiture and Litigation. Notwithstanding
anything in this Agreement to the contrary, nothing contained in this Agreement
will be deemed to require Parent, any Parent Subsidiary, the Company or any
Company Subsidiary, or any of their respective affiliates to (i) except to the
extent provided under Section 8.12(d)(iv), litigate or agree to litigate against
any Governmental Entity or (ii) take or agree to take any Action of Divestiture
which would be reasonably likely to materially adversely impact the benefits
expected to be derived by Parent and Parent


                                                                            -66-

Subsidiaries in connection with the Company Merger and the other transactions
contemplated hereby. For purposes of this Agreement, an "Action of Divestiture"
will mean (x) making proposals, executing or carrying out agreements or
submitting to Legal Requirements providing for the license, sale or other
disposition or holding separate (through the establishment of a trust or
otherwise) of any assets or categories of assets that are material to Parent,
any Parent Subsidiary, the Company or any Company Subsidiary or the holding
separate of Company capital stock or imposing or seeking to impose any
limitation on the ability of Parent, any Parent Subsidiary, the Company or any
Subsidiary, to conduct their respective businesses or own such assets or to
acquire, hold or exercise full rights of ownership of the Company's business or
(y) otherwise taking any step to avoid or eliminate any impediment which may be
asserted under any Legal Requirement governing competition, monopolies or
restrictive trade practices.

            Section 8.13 Anti-Takeover Laws. If any state takeover statute or
similar law becomes or is deemed to become applicable to this Agreement, the
Mergers or the other transactions contemplated hereby, the Company will take all
action necessary to render such statute inapplicable to all of the foregoing. If
any French takeover statute or similar law becomes or is deemed to become
applicable to this Agreement, the Mergers or the other transactions contemplated
hereby, Parent will take all action necessary to render such statute or other
similar law inapplicable to all of the foregoing.

            Section 8.14 Rescission Offer. Prior to Closing, the Company shall
use all reasonable efforts to complete a written offer to repurchase securities
in accordance with applicable law in order make a rescission offer to optionees
and stockholders of the Company that received options to purchase shares of
Company Common Stock under the Company's 1999 Stock Option Plan while such
persons were residents of the States of California, Maryland or New York (the
"Rescission Offer"). In connection with such Rescission Offer, the Company will
offer to repurchase with funds from the Company's available cash balances: (i)
outstanding shares of Company Common Stock at the exercise price at which such
Person acquired the Company Common Stock upon exercise of a Company Stock Option
plus applicable statutory interest; (ii) outstanding options to acquire Company
Common Stock at twenty percent (20%) of the amount equal to the exercise price
of the subject Company Stock Options multiplied by the total number of shares of
Company Common Stock then subject to such Company Stock Options plus applicable
statutory interest. If applicable, the Company will make filings with the
California Department of Corporations, as well as any other state or other
agency with whom the Company is so required to file.

            Section 8.15 Resignations and Appointments. The Company shall use
all reasonable efforts to obtain the resignations of all the members of the
board of directors (or other similar governing bodies) of any Company Subsidiary
which Parent lists in a written notice delivered to the Company, in the event
Parent delivers such a notice, and have Persons chosen by Parent appointed as
members of the board of directors (or other governing bodies) of such Company
Subsidiaries effective as of the Effective Time.


                                                                            -67-

            Section 8.16 Employee Benefits(a).

                  (a) Following the Effective Time, Parent will use all
reasonable efforts to give each Continuing Employee (as defined below) credit
for prior service with the Company and any Company Subsidiaries for purposes of
(i) eligibility and vesting under any applicable employee benefit plans of
Parent in which such Continuing Employee becomes eligible to participate at or
following the Effective Time, provided that if the Company maintains a
comparable Benefit Plan, service shall be credited solely to the extent that
such service was or would have been credited for such purposes under such
comparable plan, and (ii) determination of benefits levels under any vacation
policy in which such Continuing Employee becomes eligible to participate at or
following the Effective Time. Parent shall give credit under those applicable
employee benefit plans of Parent that are welfare benefit plans and in which
Continuing Employees become eligible to participate at or following the
Effective Time, for all co-payments made, amounts credited toward deductibles
and out-of-pocket maximums, and time accrued against applicable waiting periods,
by Continuing Employees (including their eligible dependents), in respect of the
plan year in which the Effective Time occurs but if the Company or any of its
Subsidiaries maintains a comparable Benefit Plan, solely to the extent such
waiting period requirements and conditions were not applicable to the particular
Continuing Employee under such comparable Benefit Plan. For purposes of this
Agreement, "Continuing Employees" shall mean those employees of Parent and
employees of the Surviving Corporation as of the Effective Time who shall have
been employees of the Company immediately prior to the Effective Time.

                  (b) If Parent maintains as of the Effective Date, a
tax-qualified defined contribution 401(k) plan that accepts eligible rollover
distributions within the meaning of Section 401(a)(31) of the Code, the assets
of the Continuing Employees located in the US under the defined contribution
401(k) plan of the Company may be rolled over, to the extent permitted and in
the form acceptable, to the 401(k) plan of the Parent.

                  (c) Parent agrees that the Continuing Employees may
participate in the employee stock purchase plan sponsored by Parent (the "Parent
ESPP"), commencing on the first date of the Offering Period (as defined in the
Parent ESPP) coincident or immediately following the Effective Date and subject
to the terms and conditions of the Parent ESPP, provided that no such
participation is required hereunder to the extent that there are inadequate
shares for such purpose under the Parent ESPP.

                  (d) Effective as of the Effective Time, for a period of one
year following the Closing Date, or if shorter, until such time as the
applicable Continuing Employee ceases to be employed by Parent or the Surviving
Corporation, Parent shall or shall cause the Surviving Corporation to provide to
Continuing Employees, (i) employee benefits that are substantially similar in
the aggregate to those benefits provided to such employees by the Company
immediately prior to the date hereof, or (ii) at Parent's election, employee
benefits that are substantially similar in the aggregate to those benefits
provided by Parent (or its applicable Subsidiary) to similar situated employees
of Parent (or its applicable Subsidiary).


                                                                            -68-

                  (e) Prior to the Effective Time, Parent and the Company will
together develop retention programs for Continuing Employees who are key
employees whom the Parent desires to continue employment. Prior to the Effective
Time, Parent and the Company will together develop severance plans for
Continuing Employees who cease employment within one year of the Closing Date
that are comparable to those of the Parent's standard practices.

                  Notwithstanding the foregoing, nothing in this Agreement shall
be interpreted as conferring, or intending to confer, on any Continuing Employee
or other Company employee a right to continued employment with the Company, the
Surviving Corporation or Parent.

            Section 8.17 VERITAS Agreement. The Company shall use all reasonable
efforts to procure from VERITAS Software Corporation ("VERITAS"), prior to the
Closing, a written release of the Company from its obligations under that
certain Indemnification Agreement, dated as of March 29, 2000, as amended, by
and among VERITAS, Suez Acquisition Company (Cayman) Limited and certain other
persons who executed a Joinder Agreement thereto, as contemplated by Section 17
(successors) thereof; provided, however, that notwithstanding the foregoing, or
anything to the contrary contained in this Agreement, the Company shall not be
required to make payments, expand monies or otherwise agree to any economic
arrangements or concessions to satisfy its obligations under this Section 8.17.

            Section 8.18 Financial Statements and Consents of Accountants. The
Company will use all reasonable efforts to cause its management and its
independent auditors to facilitate on a timely basis (i) the preparation of
financial statements (including pro forma financial statements if required) as
required by Parent to comply with applicable SEC and COB regulations, (ii) the
reasonable review of any Company audit or review work papers for up to the past
three (3) years, including the examination of selected financial statements and
data, and (iii) the delivery of such representations from the Company's
independent accountants as may be reasonably requested by Parent of its
independent auditors in connection with the preparation of the Registration
Statement and the Parent French Filings. Parent and the Company will each use
all reasonable efforts to cause to be delivered to each other consents and
certificates from their respective independent auditors, in form reasonably
satisfactory to the recipient and customary in scope and substance for consents
delivered by independent public accountants in connection with the Registration
Statement and the Parent French Filings.

            Section 8.19 Subsequent Financial Statements. The Company will, if
practicable, consult with Parent prior to making publicly available its
financial results for any period after the date hereof and prior to filing any
Company SEC Filings after the date hereof, it being understood that Parent will
have no liability by reason of such consultation.

            Section 8.20 Conveyance and Other Taxes. Parent, Merger Sub 1,
Merger Sub 2, Merger Sub 3 and the Company will cooperate in the preparation,
execution and filing of all returns, questionnaires, applications or other
documents regarding any real property transfer or gains, sales, use, transfer,
value added, stock


                                                                            -69-

transfer or stamp Taxes, any transfer, recording, registration or other fees or
any similar Taxes which become payable in connection with the transactions
contemplated by this Agreement that are required or permitted to be filed on or
before the Company Merger Effective Time. All payments made pursuant to this
Agreement shall be subject to any applicable withholding taxes.

            Section 8.21 Company Stock Options. Prior to the Company Effective
Time, HoldCo will take such action as may be necessary to (a) amend and restate
its certificate of incorporation to authorize the issuance of the HoldCo
Preferred Stock, (b) cause Option Sub, a wholly-owned subsidiary of HoldCo, to
be formed as a limited liability company, (c) issue and contribute to the
capital of Option Sub such number of shares of HoldCo Preferred Stock as will,
upon the consummation of the HoldCo Merger and in accordance with Section 2.1(b)
hereof, result in Option Sub owning at least the maximum number of Parent Shares
that may be issuable upon exercise of all outstanding Company Stock Options in
accordance with the terms hereof, and (d) to the extent necessary or advisable,
take such reasonable action such that, upon exercise of any Company Stock Option
after the Effective Time, the Parent Shares to be issued to the holder of such
Company Stock Option will be delivered by Option Sub.

            Section 8.22 Section 16 Matters. Prior to the Effective Time, Parent
and the Company shall use all reasonable efforts to approve in advance in
accordance with the procedures set forth in Rule 16b-3 promulgated under the
Exchange Act any dispositions of Company Common Stock (including derivative
securities with respect to Company Common Stock) to or acquisitions of Parent
Shares (including derivative securities with respect to Parent Shares) resulting
from the transactions contemplated by Article II of this Agreement by each
officer or director of the Company or Parent who is subject to Section 16 of the
Exchange Act (or who will become subject to Section 16 of the Exchange Act as a
result of the transactions contemplated hereby) with respect to equity
securities of the Company or Parent.

            Section 8.23 Transaction Expenses. The fees and expenses paid or
payable by the Company in connection with the Company's previously proposed
initial public offering, this Agreement, the Mergers and the other transactions
contemplated hereby (including fees and expenses of the financial advisors,
legal counsel and public accountants listed on Schedule 8.23) will be reasonable
and customary for such transactions and, except as listed on Schedule 8.23,
shall not include any fees payable to the HoldCo Stockholder or any of its
stockholders, partners or Affiliates.

            Section 8.24 Indemnification.

                  (a) Indemnity. From and after the Effective Time, Parent will,
and will cause the Surviving Corporation to, fulfill and honor in all respects
the obligations of the Company pursuant to any indemnification agreements
between the Company and its directors and officers in effect immediately prior
to the Effective Time (the "Indemnified Parties"), subject to applicable law.
The certificate of incorporation and bylaws of the Surviving Corporation will
contain provisions with respect to exculpation and indemnification that are at
least as favorable to the Indemnified Parties as those contained in the
certificate of incorporation and bylaws of the Company as in


                                                                            -70-

effect on the date hereof, which provisions will not be amended, repealed or
otherwise modified for a period of six (6) years from the Effective Time in any
manner that would adversely affect the rights thereunder of individuals who,
immediately prior to the Effective Time, were directors, officers, employees or
agents of the Company, unless such modification is required by law.

                  (b) Insurance. For a period of six (6) years after the
Effective Time, Parent will cause the Surviving Corporation to use all
reasonable efforts to cause to be maintained in effect, if available, directors'
and officers' liability insurance maintained by the Company covering those
persons who are covered by the Company's directors' and officers' liability
insurance policy as of the date hereof on terms comparable to those applicable
to the current directors and officers of the Company for a period of six (6)
years; provided, however, that in no event will the Surviving Corporation be
required to expend in excess of one hundred fifty percent (150%) of the annual
premium currently paid by the Company for such coverage, and to the extent
annual premium would exceed one hundred fifty percent (150%) of the annual
premium currently paid by the Company for such coverage, the Surviving
Corporation shall use all reasonable efforts to cause to be maintained the
maximum amount of coverage as is available for such one hundred fifty percent
(150%) of such annual premium.

                  (c) Third-Party Beneficiaries. This Section 8.25 is intended
to be for the benefit of, and shall be enforceable by, the Indemnified Parties
and their heirs and personal representatives and shall be binding on the Company
and the Surviving Corporation and its successors and assigns. In the event
Parent or the Surviving Corporation or its successor or assign (i) consolidates
with or merges into any other Person and shall not be the continuing or
surviving corporation or entity in such consolidation or merger or (ii)
transfers all or substantially all of its properties and assets to any Person,
then, and in each case, proper provision shall be made so that the successor and
assign of Parent or the Surviving Corporation, as the case may be, honor the
obligations set forth with respect to Parent or the Surviving Corporation, as
the case may be, in this Section 8.25.

            Section 8.25 Treatment as Reorganization. Each of the parties hereto
will use all reasonable efforts to: (i) cause the Company Merger together with
the Second Company Merger, and the HoldCo Merger together with the Second HoldCo
Merger, each to constitute a reorganization under Section 368(a) of the Code;
(ii) not take any action that would prevent or impede the Company Merger
together with the Second Company Merger, and the HoldCo Merger together with the
Second HoldCo Merger, from each qualifying as a reorganization within the
meaning of Section 368 of the Code; and (iii) not take any action that would
cause Parent to not be considered a corporation pursuant to Section 367(a) of
the Code for purposes of each of the Company Merger together with the Second
Company Merger, and the HoldCo Merger together with the Second HoldCo Merger.
Parent shall deliver officer's certificates containing customary representations
as requested by counsel for purposes of rendering the opinions described in
Section 9.2 and 9.3 with respect to the Company Merger and the Second Company
Merger (the "Company Merger Parent Tax Certificate") and with respect to the
HoldCo Merger and the Second HoldCo Merger (the "HoldCo Merger Parent Tax
Certificate"),


                                                                            -71-

each executed as of the Closing Date. The Company shall deliver an officer's
certificate containing customary representations as requested by counsel for
purposes of rendering the opinions described in Sections 9.2 and 9.3 with
respect to the Company Merger and the Second Company Merger (the "Company Tax
Certificate"), executed as of the Closing Date. HoldCo shall deliver an
officer's certificate containing customary representations as requested by
counsel for purposes of rendering the opinions described in Sections 9.2 and 9.3
with respect to the HoldCo Merger and the Second HoldCo Merger (the "HoldCo Tax
Certificate") executed as of the Closing Date. The parties hereto shall timely
satisfy or cause to be satisfied all applicable tax reporting and filing
requirements with respect to the transactions contemplated hereby, including the
reporting requirements of Treasury Regulation Section 1.367(a)-3(c)(6).

            Section 8.26 Merger Sub Compliance. Parent shall cause each of
Merger Sub 1, Merger Sub 2 and Merger Sub 3 to comply with all of its respective
obligations under or relating to this Agreement.

            Section 8.27 FIRPTA Certificate. The Company and HoldCo shall each
deliver to Parent certificates or other documents reasonably satisfactory to
Parent which comply with the provisions and requirements of Section 897 of the
Code and the Treasury regulations promulgated thereunder establishing that the
Company and HoldCo are not a "U.S. real property interests" for purposes of
Section 897 of the Code.

            Section 8.28 Withdrawal of Company Form S-1. The Company shall take
such action as is required to formally withdraw the Company Form S-1, such
withdrawal to be effective at or prior to the Effective Time. The Company shall
not, prior to the Effective Time, amend the Company Form S-1.

            Section 8.29 280G Approval. The Company will use its reasonable best
efforts to obtain the approval and adoption by HoldCo prior to the Closing of
any payments or benefits that may not be deductible by reason of Section 280G of
the Code, in a manner which meets the approval of Parent which approval shall
not be unreasonably withheld, and in a manner which would satisfy all applicable
requirements of Section 280G(b)(5)(B) of the Code and the proposed Treasury
Regulations thereunder.

            Section 8.30 HoldCo Domestication. HoldCo shall take all such action
as is necessary to effect a domestication into a Delaware corporation or a
limited liability company as promptly as practicable following the date hereof.

            Section 8.31 Transaction Structure. The parties will consider in
good faith such alternative transaction structures as may be mutually desirable
in order to satisfy the conditions set forth in Sections 9.2(f) and 9.3(f) (to
the extent not otherwise satisfied) to effectuate the transactions contemplated
hereby to ensure that the transactions hereby comport with applicable law and
otherwise carry out the intent of this Agreement in a manner that is not adverse
to any party.


                                                                            -72-

                                   ARTICLE IX

                                   CONDITIONS

            Section 9.1 Conditions to Each Party's Obligation to Effect the
Mergers. The obligation of each party to effect the Mergers will be subject to
the satisfaction or waiver on or prior to the Closing Date of each of the
following conditions, any and all of which may be waived in whole or in part by
Parent, Merger Sub 1, Merger Sub 2, Merger Sub 3, HoldCo and the Company to the
extent permitted by applicable law:

                  (a) Parent Stockholder Approval. The Parent Proposals will
have been approved and adopted by the requisite affirmative vote of Parent's
stockholders in accordance with applicable law and Parent's organizational
documents and such approval will not have been rescinded, revoked or otherwise
withdrawn in any respect.

                  (b) Company Stockholder Approval. The Company Proposals will
have been approved and adopted by the requisite vote of the Company's
stockholders in accordance with applicable law and the Company's organizational
documents and such approval will have been obtained and will not have been
rescinded, revoked or otherwise withdrawn in any respect.

                  (c) No Order. No Governmental Entity of competent jurisdiction
will have enacted, issued, promulgated, enforced or entered any statute, rule,
regulation, executive order, decree, injunction or other order (whether
temporary, preliminary or permanent) which (i) is in effect and (ii) has the
effect of making the Mergers illegal or otherwise prohibiting consummation of
the Mergers.

                  (d) Registration of Parent Shares. The Registration Statement
shall have been declared effective by the SEC under the Securities Act and no
stop order suspending the effectiveness of the Registration Statement shall have
been issued by the SEC and no proceeding for that purpose shall have been
initiated by the SEC such that all Parent Shares to be issued in the Mergers
pursuant to the Capital Increase are either registered pursuant to the
Registration Statement or subject to a valid exemption from registration.

                  (e) Parent French Filings. The COB will have granted approval
of the Parent French Filings, including the Document E, which require such
approval.

                  (f) Antitrust Approval. All waiting periods (and any extension
thereof) under the HSR Act relating to the Mergers and the other transactions
contemplated hereby will have expired or terminated early. The material foreign
antitrust approvals set forth on Schedule 9.1(f) hereto will have been obtained,
if so required by applicable law.

                  (g) Listing. The Parent ADSs to be issued in the Mergers
pursuant to the Capital Increase and the other transactions contemplated hereby
will have


                                                                            -73-

been authorized for listing on Nasdaq, and Parent Ordinary Shares to be issued
in the Mergers pursuant to the Capital Increase will have been authorized for
listing on Euronext.

            Section 9.2 Additional Conditions to Obligations of Parent to Effect
the Mergers. The obligation of each of Parent, Merger Sub 1, Merger Sub 2 and
Merger Sub 3 to effect the Mergers will be subject to the satisfaction or waiver
by Parent on or prior to the Closing Date of each of the following conditions,
any and all of which may be waived in whole or in part by Parent, Merger Sub 1,
Merger Sub 2 or Merger Sub 3, as the case may be, to the extent permitted by
applicable law:

                  (a) Representations and Warranties. The representations and
warranties of HoldCo and the Company contained in this Agreement will have been
true and correct in all respects on the date hereof and will be true and correct
in all respects as of the Closing Date with the same force and effect as if made
on the Closing Date (except that those representations and warranties which
address matters only as of a particular date will have been true and correct
only as of such date), with such exceptions as do not, individually or in the
aggregate, have a Company Material Adverse Effect as of the Closing Date;
provided, however, that for purposes of determining the accuracy of such
representations and warranties, any update of or modification to the Company
Disclosure Schedule made or purported to have been made after the execution of
this Agreement will be disregarded.

                  (b) Agreements and Covenants. HoldCo and the Company will have
performed or complied in all material respects with all agreements and covenants
to be performed or complied with by them at or prior to the Closing Date.

                  (c) Company Material Adverse Effect. No Company Material
Adverse Effect will have occurred since the date hereof and be continuing.

                  (d) Company Officer's Certificate. The Company will have
delivered to Parent a certificate of its President or any Vice President dated
as of the Closing Date to the effect that each of the conditions specified in
Sections 9.2(a), (b) and (c), with respect to the Company, are satisfied.

                  (e) HoldCo Officer's Certificate. HoldCo will have delivered
to Parent a certificate of its President or any Vice President dated as of the
Closing Date to the effect that each of the conditions specified in Sections
9.2(a) and (b), with respect to HoldCo, are satisfied.

                  (f) Tax Opinions.

                        (i) Parent will have received a written opinion from
      Skadden, Arps, Slate, Meagher & Flom LLP, dated as of the date of the
      Second HoldCo Merger Effective Time, in form and substance reasonably
      satisfactory to Parent, to the effect that, for U.S. federal income tax
      purposes, (i) the HoldCo Merger when taken together with the Second HoldCo
      Merger will constitute a "reorganization" within the meaning of


                                                                            -74-

      Section 368(a) of the Code and (ii) no gain or loss will be recognized by
      a stockholder of HoldCo (other than a stockholder of HoldCo who owns,
      directly or indirectly and taking into account certain attribution rules
      including the rules of Treasury Regulation Section 1.367(a)-3(c)(4)(i),
      five percent (5%) or more of the total voting power or total value of
      Parent's outstanding capital stock immediately after the Second HoldCo
      Merger) on the conversion of its shares of HoldCo Common Stock into Parent
      Shares except to the extent of cash received, including cash received in
      lieu of a fractional share of Parent Shares, provided that HoldCo (or its
      successor) complies with the reporting requirements contained in Treasury
      Regulation Section 1.367(a)-3(c)(6), and such opinion shall not have been
      withdrawn; provided, however, that if Skadden, Arps, Slate, Meagher & Flom
      LLP shall not render such opinion, this condition shall nonetheless be
      deemed satisfied if another law firm with a nationally recognized tax
      practice, as reasonably satisfactory to Parent (other than the law firm
      providing the opinion pursuant to Section 9.3(f) of the Agreement), shall
      render such opinion to Parent. In rendering such opinion, Skadden, Arps,
      Slate, Meagher & Flom LLP or such other law firm, as the case may be, may
      require and be entitled to rely on representations, covenants and rulings
      of Parent and HoldCo, including the HoldCo Merger Parent Tax Certificate
      and the HoldCo Tax Certificate.

                        (ii) Parent will have received a written opinion from
      Skadden, Arps, Slate, Meagher & Flom LLP, dated as of the date of the
      Second Company Merger Effective Time, in form and substance reasonably
      satisfactory to Parent, to the effect that, for U.S. federal income tax
      purposes (i) the Company Merger when taken together with the Second
      Company Merger will constitute a "reorganization" within the meaning of
      Section 368(a) of the Code and (ii) no gain or loss will be recognized by
      a stockholder of the Company (other than a stockholder of the Company who
      owns, directly or indirectly and taking into account certain attribution
      rules including the rules of Treasury Regulation Section 1.367(a)-
      3(c)(4)(i), five percent (5%) or more of the total voting power or total
      value of Parent's outstanding capital stock immediately after the Second
      Company Merger) on the conversion of its shares of Company Common Stock
      into Parent Shares except to the extent of cash received, including cash
      received in lieu of a fractional share of Parent Shares, provided that the
      Company (or its successor) complies with the reporting requirements
      contained in Treasury Regulation Section 1.367(a)-3(c)(6), and such
      opinion shall not have been withdrawn; provided, however, that if Skadden,
      Arps, Slate, Meagher & Flom LLP shall not render such opinion, this
      condition shall nonetheless be deemed satisfied if another law firm with a
      nationally recognized tax practice, as reasonably satisfactory to Parent
      (other than the law firm providing the opinion pursuant to Section 9.3(f)
      of the Agreement), shall render such opinion to Parent. In rendering such
      opinion, Skadden, Arps, Slate, Meagher & Flom LLP or such other law firm,
      as the case may be, may require and be


                                                                            -75-

      entitled to rely on representations, covenants and rulings of Parent and
      the Company, including the Company Merger Parent Tax Certificate and the
      Company Tax Certificate.

                  (g) Governmental Restriction. There shall not be any pending
or overtly threatened suit, action or proceeding asserted by any Governmental
Entity (i) challenging or seeking to restrain or prohibit the consummation of
the Mergers or any of the other transactions contemplated hereby the effect of
which restraint or prohibition if obtained would cause the condition set forth
in Section 9.1(c) not to be satisfied, or (ii) seeking to require Parent, any
Parent Subsidiary, the Company or any Company Subsidiary to effect any Action of
Divestiture which would have the effect set forth in clause (ii) of the first
sentence of Section 8.12(e).

            Section 9.3 Additional Conditions to Obligation of HoldCo and the
Company to Effect the Mergers. The obligation of each of the Company and HoldCo
to effect the Mergers will be subject to the satisfaction or waiver by the
Company on or prior to the Closing Date of each of the following conditions, any
and all of which may be waived in whole or in part by the Company to the extent
permitted by applicable law.

                  (a) Representations and Warranties. The representations and
warranties of Parent, Merger Sub 1, Merger Sub 2 and Merger Sub 3 contained in
this Agreement will have been true and correct in all respects on the date
hereof and will be true and correct in all respects as of the Closing Date with
the same force and effect as if made on the Closing Date (except that those
representations and warranties which address matters only as of a particular
date will have been true and correct only as of such date), with such exceptions
as do not, individually or in the aggregate, have a Parent Material Adverse
Effect as of the Closing Date; provided, however, that for purposes of
determining the accuracy of such representations and warranties, any update of
or modification to the Parent Disclosure Schedule made or purported to have been
made after the execution of this Agreement will be disregarded.

                  (b) Agreements and Covenants. Parent, Merger Sub 1, Merger Sub
2 and Merger Sub 3 will have performed or complied in all material respects with
all agreements and covenants required by this Agreement to be performed or
complied with by them at or prior to the Closing Date.

                  (c) Parent Material Adverse Effect. No Parent Material Adverse
Effect will have occurred since the date hereof and be continuing.

                  (d) Parent Officer's Certificate. Parent will have delivered
to the Company a certificate of its president or chief executive officer dated
as of the Closing Date to the effect that each of the conditions specified in
Sections 9.3(a), (b) and (c), with respect to Parent, are satisfied.

                  (e) Merger Subs Officer's Certificate. Each of Merger Sub 1,
Merger Sub 2 and Merger Sub 3 will have delivered to the Company a certificate
of its president or chief executive officer dated as of the Closing Date to the
effect that each of


                                                                            -76-

the conditions specified in Sections 9.3(a) and (b), with respect to Merger Sub
1, Merger Sub 2 and Merger Sub 3, respectively, are satisfied.

                  (f) Tax Opinions.

                        (i) HoldCo will have received a written opinion from
      Wilson Sonsini Goodrich & Rosati, a Professional Corporation, dated as of
      the date of the Second HoldCo Merger Effective Time, in form and substance
      reasonably satisfactory to HoldCo, to the effect that, for U.S. federal
      income tax purposes, (i) the HoldCo Merger when taken together with the
      Second HoldCo Merger will constitute a "reorganization" within the meaning
      of Section 368(a) of the Code and (ii) no gain or loss will be recognized
      by a stockholder of HoldCo (other than a stockholder of HoldCo who owns,
      directly or indirectly and taking into account certain attribution rules,
      five percent (5%) or more of the total voting power or total value of
      Parent's outstanding capital stock immediately after the Second HoldCo
      Merger) on the conversion of its shares of HoldCo Common Stock into Parent
      Shares except to the extent of cash received, including cash received in
      lieu of a fractional share of Parent Shares, provided that HoldCo (or its
      successor) complies with the reporting requirements contained in Treasury
      Regulation Section 1.367(a)-3(c)(6), and such opinion shall not have been
      withdrawn; provided, however, that if Wilson Sonsini Goodrich & Rosati
      shall not render such opinion, this condition shall nonetheless be deemed
      satisfied if another law firm with a nationally recognized tax practice,
      as reasonably satisfactory to HoldCo (other than the law firm providing
      the opinion pursuant to Section 9.2(f) of the Agreement), shall render
      such opinion to HoldCo. In rendering such opinion, Wilson Sonsini Goodrich
      & Rosati or such other law firm, as the case may be, may require and be
      entitled to rely on representations, covenants and rulings of Parent and
      HoldCo, including the HoldCo Merger Parent Tax Certificate and the HoldCo
      Tax Certificate.

                        (ii) The Company will have received a written opinion
      from Wilson Sonsini Goodrich & Rosati, a Professional Corporation, dated
      as of the date of the Second Company Merger Effective Time, in form and
      substance reasonably satisfactory to the Company, to the effect that, for
      U.S. federal income tax purposes (i) the Company Merger when taken
      together with the Second Company Merger will constitute a "reorganization"
      within the meaning of Section 368(a) of the Code and (ii) no gain or loss
      will be recognized by a stockholder of the Company (other than a
      stockholder of the Company who owns, directly or indirectly and taking
      into account certain attribution rules including the rules of Treasury
      Regulation Section 1.367(a)-(c)(4)(i), five percent (5%) or more of the
      total voting power or total value of Parent's outstanding capital stock
      immediately after the Second Company Merger) on the conversion of its
      shares of Company Common Stock into Parent Shares


                                                                            -77-

      except to the extent of cash received, including cash received in lieu of
      a fractional share of Parent Shares, provided that the Company (or its
      successor) complies with the reporting requirements contained in Treasury
      Regulation Section 1.367(a)-3(c)(6), and such opinion shall not have been
      withdrawn; provided, however, that if Wilson Sonsini Goodrich & Rosati
      shall not render such opinion, this condition shall nonetheless be deemed
      satisfied if another law firm with a nationally recognized tax practice,
      as reasonably satisfactory to the Company (other than the law firm
      providing the opinion pursuant to Section 9.2(f) of the Agreement), shall
      render such opinion to the Company. In rendering such opinion, Wilson
      Sonsini Goodrich & Rosati or such other law firm, as the case may be, may
      require and be entitled to rely on representations, covenants and rulings
      of Parent and the Company, including the Company Merger Parent Tax
      Certificate and the Company Tax Certificate.

            Section 9.4 Condition to the Second HoldCo Merger. It shall be a
condition to the respective obligations of each party to this Agreement to
effect the Second HoldCo Merger that the HoldCo Merger shall have been
consummated.

            Section 9.5 Condition to the Company Merger. It shall be a condition
to the respective obligations of each party to this Agreement to effect the
Company Merger that the HoldCo Merger and the Second HoldCo Merger shall have
been consummated.

            Section 9.6 Condition to the Second Company Merger. It shall be a
condition to the respective obligations of each party to this Agreement to
effect the Second Company Merger that the HoldCo Merger, the Second HoldCo
Merger and the Company Merger shall have been consummated.

                                   ARTICLE X

                                  TERMINATION

            Section 10.1 Termination. This Agreement may be terminated at any
time prior to the Effective Time, by action taken or authorized by the board of
directors of the terminating party or parties, and except as provided below,
whether before or after the requisite approval of the stockholders of HoldCo,
the Company or Parent:

                  (a) by mutual written consent duly authorized by the boards of
directors of Parent, HoldCo and the Company;

                  (b) by either Parent, HoldCo or the Company, if the Company
Effective Time has not occurred by January 31, 2004 which date may be extended
by either party to March 31, 2004, if the Mergers shall not have been
consummated as the result of a failure to satisfy the conditions set forth in
Section 9.1(c) or Section 9.1(f)) (as appropriate, the "End Date"); provided,
however, that the right to terminate this Agreement pursuant to this clause (b)
and the right to extend the End Date will not be available to any party whose
failure to fulfill any obligation under this Agreement has


                                                                            -78-

been the principal cause of the failure of the Mergers to be consummated by such
date and such failure constitutes a material breach of this Agreement;

                  (c) by either the Company, HoldCo or Parent, if the required
approval of the stockholders of Parent contemplated by this Agreement has not
been obtained by reason of the failure to obtain the required vote at a meeting
of Parent stockholders duly convened therefor or at any adjournment thereof;
provided, however, that the right to terminate this Agreement under this Section
9.1(c) will not be available to Parent where the failure to obtain Parent
stockholder approval has been caused by the action or failure to act of Parent
and such action or failure to act constitutes a material breach by Parent of
this Agreement;

                  (d) by Parent, if the action by written consent of the HoldCo
representing the required approval of the stockholders of the Company
contemplated by this Agreement has been revoked, or if a court of competent
jurisdiction has issued an order, decree or ruling, in each case that such
action by written consent of the HoldCo is invalid and such order, decree or
ruling has become final and non-appealable, or if either the Company or the
HoldCo challenges the validity of, or attempts to revoke or repudiate, the
written consent of the HoldCo or publicly discloses any intention to do any of
the foregoing;

                  (e) by either the Company, HoldCo or Parent, if a court of
competent jurisdiction or other Governmental Entity will have issued an order,
decree or ruling or taken any other action, in each case permanently
restraining, enjoining or otherwise prohibiting the Mergers or the other
transactions contemplated hereby and such order, decree, ruling or other action
has become final and non-appealable;

                  (f) by either the Company or HoldCo, upon a breach of any
representation, warranty, covenant or agreement on the part of Parent set forth
in this Agreement, or if any representation or warranty of Parent has become
untrue, in either case such that the conditions set forth in Section 9.3(a) or
(b) would not be satisfied as of the time of such breach or as of the time such
representation or warranty will have become untrue; provided, that if such
inaccuracy in Parent's representations and warranties or breach by Parent is
curable by Parent prior to the End Date through the exercise of all reasonable
efforts, then the Company may not terminate this Agreement under this Section
10.1(f) prior to thirty (30) days following the receipt of written notice from
the Company to Parent of such breach; (it being understood that the Company may
not terminate this Agreement pursuant to this Section 10.1(f) if it will have
materially breached this Agreement or if such breach by Parent is cured so that
such conditions would then be satisfied);

                  (g) by Parent, upon a breach of any representation, warranty,
covenant or agreement on the part of the Company set forth in this Agreement, or
if any representation or warranty of the Company has become untrue, in either
case such that the conditions set forth in Section 9.2(a) or (b) would not be
satisfied as of the time of such breach or as of the time such representation or
warranty will have become untrue; provided, that if such inaccuracy in the
Company's representations and warranties or breach by the Company is curable by
the Company prior to the End Date through the


                                                                            -79-

exercise of all reasonable efforts, then Parent may not terminate this Agreement
under this Section 10.1(g) prior to thirty (30) days following the receipt of
written notice from Parent to the Company of such breach; (it being understood
that Parent may not terminate this Agreement pursuant to this Section 10.1(g) if
it will have materially breached this Agreement or if such breach by the Company
is cured so that such conditions would then be satisfied);

                  (h) by Parent, if a Company Material Adverse Effect has
occurred since the date hereof and is continuing;

                  (i) by the Company, if a Parent Material Adverse Effect has
occurred since the date hereof and is continuing;

                  (j) by Parent, at any time prior to the adoption and approval
of the Company Proposals by the required vote of the stockholders of the
Company, if a Company Triggering Event shall have occurred;

                  (k) by the Company, at any time prior to the adoption and
approval of the Parent Proposals by the required vote of the stockholders of
Parent, if a Parent Triggering Event shall have occurred; or

                  (l) by the Company, if Parent's board of directors recommends
or Parent consummates a merger, consolidation or similar transaction with a
third party, in which Parent Shares are or would be converted into the right to
receive non-cash consideration which the Company's board of directors
determines, in good faith based on the advice of an independent financial
advisor and taking into account market value, liquidity and exchange listing,
would be less valuable to the Company's stockholders than the Parent Shares that
would otherwise be issued to the Company's stockholders in the Mergers and the
other transactions contemplated hereby in absence of such other transaction.

            Section 10.2 Notice of Termination; Effect of Termination. Any
termination of this Agreement under Section 10.1 above will be effective
immediately upon the delivery of a valid written notice of the terminating party
to the other party hereto. In the event of the termination of this Agreement as
provided in Section 10.1, this Agreement will be of no further force or effect,
except (i) as set forth in Section 8.4 this Section 10.2 and Section 10.3 and
Article XII, each of which will survive the termination of this Agreement and
(ii) nothing herein will relieve any party from liability for any material
breach of this Agreement. No termination of this Agreement will affect the
obligations of the parties contained in the Confidentiality Agreement, all of
which obligations will survive termination of this Agreement in accordance with
their terms.

            Section 10.3 Fees and Expenses.

                  (a) General. All fees and expenses incurred in connection with
this Agreement, the Mergers and the other transactions contemplated hereby,
including fees and expenses of financial advisors, financial sponsors, legal
counsel and other advisors, will be paid by the party incurring such expenses
whether or not the Mergers


                                                                            -80-

are consummated; provided, however, that Parent and the Company will share
equally the filing fee for the Notification and Report Forms filed with the FTC
and DOJ under the HSR Act and pre-merger notification and reports forms under
similar applicable laws of other jurisdictions.

                  (b) Payments.

                        (i) Payment by the Company. The Company will promptly
      pay to Parent, but in no event later than two (2) business days after the
      date of such termination, a fee equal to twenty-one million dollars
      ($21,000,000) in immediately available funds (the "Termination Fee") in
      the event that this Agreement is terminated by Parent pursuant to Section
      10.1(d) or 10.1(j).

                        (ii) Payment by Parent. Parent will promptly pay to the
      Company, but in no event later than two (2) business days after the date
      of such termination, the Termination Fee in immediately available funds in
      the event that (A) this Agreement is terminated by the Company pursuant to
      Section 10.1(k) or (B) this Agreement is terminated by either the Company
      or Parent pursuant to Section 10.1(c); provided, that such payment will be
      made in the case of termination pursuant to Section 10.1(c) if but only if
      (1) following the date hereof, and prior to such meeting of the Parent's
      stockholders referred to in Section 10.1(c), there shall have been
      publicly disclosed an offer or proposal with respect to an Acquisition by
      a third party and such third party publicly discloses its lack of support
      for the Mergers and (2) within twelve (12) months following the
      termination of this Agreement, Parent executes an agreement with respect
      to an Acquisition and an Acquisition is consummated within twenty-four
      (24) months following termination of this Agreement; provided, further,
      that, in the case of this clause (B) above, the Termination Fee will be
      payable only upon the consummation of an Acquisition, in which case, such
      payment will be made promptly, but in no event later than two (2) business
      days after the consummation of such Acquisition.

            Section 10.4 Amendment. Subject to applicable law, this Agreement
may be amended by the parties hereto, by action taken or authorized by their
respective boards of directors, at any time before or after approval of the
Parent Proposals by Parent's stockholders and approval of the Company Proposals
by Company's stockholders, provided that after approval of the Parent Proposals
by Parent's stockholders, no amendment will be made which by law or the rules of
the Nasdaq National Market requires further approval by such stockholders
without such further stockholder approval. This Agreement may not be amended
except by execution of an instrument in writing signed on behalf of each of
Parent, Merger Sub 1, Merger Sub 2, Merger Sub 3 and the Company.

            Section 10.5 Extension; Waiver. At any time prior to the Effective
Time any party hereto, by action taken or authorized by their respective board
of directors,


                                                                            -81-

may, to the extent legally allowed (i) extend the time for the performance of
any of the obligations or other acts of the other parties hereto, (ii) waive any
inaccuracies in the representations and warranties made to such party contained
herein or in any document delivered pursuant hereto, and (iii) waive compliance
with any of the agreements or conditions for the benefit of such party contained
herein. Any agreement on the part of a party hereto to any such extension or
waiver will be valid only if set forth in an instrument in writing signed on
behalf of such party. Delay in exercising any right under this Agreement will
not constitute a waiver of such right.

                                   ARTICLE XI

                         DEFINITIONS AND INTERPRETATION

            Section 11.1 Definitions.

                  (a) "Acquisition," with respect to Parent, shall mean any of
the following transactions: (i) a merger, consolidation, business combination,
or similar transaction involving Parent pursuant to which the stockholders of
Parent immediately preceding such transaction hold less than fifty-one percent
(51%) of the aggregate equity interests in the surviving or resulting entity of
such transaction or any direct or indirect parent thereof; (ii) a sale or other
disposition by Parent of assets representing in excess of fifty percent (50%) of
the aggregate fair market value of Parent's business immediately prior to such
sale; or (iii) the acquisition by any Person or group (including by way of a
tender offer or an exchange offer or issuance by Parent or such person or
group), directly or indirectly, of beneficial ownership or a right to acquire
beneficial ownership of shares representing in excess of fifty percent (50%) of
the voting power of the then outstanding shares of capital stock of Parent.

                  (b) "Audit" means any audit, assessment, or other examination
relating to Taxes by any Tax Authority or any judicial or administrative
proceedings relating to Taxes.

                  (c) "Benefit Plans" means any employment or consulting
agreement, collective bargaining agreement or any bonus, pension, profit
sharing, deferred compensation, incentive compensation, stock ownership, stock
purchase, stock option, phantom stock, stock appreciation right or other
stock-based incentive, retirement, vacation, severance, change in control or
termination pay, disability, death benefit, hospitalization, medical or other
insurance or any other plan, program, agreement, arrangement or understanding
(whether or not legally binding) providing benefits to any current or former
employee, officer, consultant or director of the Company.

                  (d) "Commonly Controlled Entity" means any Company Subsidiary
or any Person or entity that, together with the Company or any Company
Subsidiary, is treated as a single employer under Section 414(b), (c), (m) or
(o) of the Code or 4001(b) of ERISA.

                  (e) "Company Intellectual Property Rights" means any
Intellectual Property Rights owned by the Company or any Company Subsidiary.


                                                                            -82-

                  (f) "Company Material Adverse Effect" means any change, event,
violation, inaccuracy, circumstance or effect (any such item, an "Effect"),
individually or when taken together with all other Effects that have occurred
during the applicable measurement period prior to the date of determination of
the occurrence of the Company Material Adverse Effect, that is reasonably likely
to be materially adverse to the business, assets (including intangible assets),
capitalization, financial condition or results of operations of the Company
taken as a whole with the Company Subsidiaries; provided, however, in no event
will any of the following, alone or in combination, be deemed to constitute nor
will any of the following be taken into account in determining whether there has
been or will be, a Company Material Adverse Effect: (A) any Effect to the extent
resulting from compliance with the terms and conditions of this Agreement; (B)
any Effect to the extent resulting from the announcement or pendency of the
Mergers; (C) any Effect to the extent resulting from changes affecting the
industry in which the Company operates generally which changes do not have a
disproportionate effect on the Company; (D) any Effect to the extent resulting
from changes affecting general worldwide economic or capital market conditions
which changes do not have a disproportionate effect on the Company; or (E) any
stockholder litigation arising from allegations of a breach of fiduciary duty
relating to this Agreement.

                  (g) "Computer Software" means all computer programs,
databases, compilations, data collections (in each case, whether in
human-readable, machine readable, source code or object code form) and
documentation related to the foregoing.

                  (h) "Company Triggering Event" shall be deemed to have
occurred if: (i) the Company's board of directors or any committee thereof shall
for any reason have withdrawn or shall have amended or modified in a manner
adverse to Parent its recommendation in favor of the adoption and approval of
the Company Proposals; (ii) the board of directors of the Company fails to
reaffirm (publicly, if so requested) its recommendation in favor of the adoption
and approval of the Company Proposals within ten (10) business days after the
other party hereto requests in writing that such recommendation be reaffirmed;
or (iii) the board of directors of the Company or any committee thereof shall
have approved or recommended any Company Acquisition Proposal.

                  (i) "Effective Time" means the last to occur of each of the
HoldCo Merger Effective Time, Second HoldCo Merger Effective Time, Company
Merger Effective Time and the Second Company Merger Effective Time.

                  (j) "Environmental Claim" means any claim, action,
investigation (excluding any routine inspections) or notice by any Person or
entity alleging potential liability for investigatory, cleanup or governmental
response costs, or natural resources or property damages, or Personal injuries,
attorneys' fees or penalties relating to (i) the presence, or release into the
environment, of any Materials of Environmental Concern at any location owned or
operated by the Company or any Company Subsidiary, now or in the past, or (ii)
any violation, or alleged violation, of any Environmental Law.


                                                                            -83-

                  (k) "Environmental Laws" means all federal, state, local and
foreign laws and regulations relating to pollution or protection or preservation
of human health or the environment, including laws and regulations relating to
Materials of Environmental Concern, or otherwise relating to the generation,
storage, containment (whether above ground or underground), disposal, transport
or handling of Materials of Environmental Concern, or the preservation of the
environment or mitigation of adverse effects thereon.

                  (l) "ERISA" means the Employee Retirement Income Security Act
of 1974.

                  (m) "Euronext" means Euronext Paris SA.

                  (n) "Excess Parachute Payment" means any amount that could be
received (whether in cash or property or the vesting of property) by any
employee, consultant, officer or director of the Company or any Company
Subsidiary under any employment, consulting, severance or termination agreement,
other compensation arrangement or other Benefit Plan currently in effect (as
such term is defined in Section 280G(b)(1) of the Code).

                  (o) "Governmental Entity" means any court, arbitral tribunal,
administrative agency or commission or other governmental or other regulatory
authority or agency, foreign or domestic. For the avoidance of doubt,
Governmental Entity includes the COB.

                  (p) "Indebtedness" means, with respect to any Person, without
duplication, (i) all obligations of such Person for borrowed money, or with
respect to deposits or advances of any kind to such Person, (ii) all obligations
of such Person evidenced by bonds, debentures, notes or similar instruments,
(iii) all obligations of such Person upon which interest charges are customarily
paid, (iv) all obligations of such Person under conditional sale or other title
retention agreements relating to property purchased by such Person, (v) all
obligations of such Person issued or assumed as the deferred purchase price of
property or services (excluding obligations of such Person to creditors for raw
materials, inventory, services and supplies incurred in the ordinary course of
such Person's business), (vi) all capitalized lease obligations of such Person,
(vii) all obligations of others secured by any Encumbrance on property or assets
owned or acquired by such Person, whether or not the obligations secured thereby
have been assumed, (viii) all obligations of such Person under interest rate or
currency swap transactions (valued at the termination value thereof), (ix) all
letters of credit issued for the account of such Person (excluding letters of
credit issued for the benefit of suppliers to support accounts payable to
suppliers incurred in the ordinary course of business), (x) all obligations of
such Person to purchase securities (or other property) which arises out of or in
connection with the sale of the same or substantially similar securities or
property, and (xi) all guarantees and arrangements having the economic effect of
a guarantee of such Person of any indebtedness of any other Person.

                  (q) "Intellectual Property Rights" means any or all rights in,
arising out of or associated with any of the following (i) all United States,
international


                                                                            -84-

and foreign patents and patent applications (including all reissues,
reexaminations, divisionals, renewals, extensions, provisionals, continuations
and continuations-in-part) and all equivalents thereof (collectively,
"Patents"), (ii) all confidential technical and business information (including
technology, inventions (whether patentable or not), know-how, computer software,
customer lists, product and marketing plans, and all documentation relating to
any of the foregoing (collectively, "Trade Secrets")), (iii) all United States
and foreign copyrights, copyright registrations and applications therefor
(collectively, "Copyrights"), (iv) all United States and foreign trademarks and
service marks (whether or not registered) and trade names and applications for
registration of any of the foregoing (collectively, "Trademarks"), and (v)
Internet domain name registrations and applications therefor (collectively,
"Domain Names").

                  (r) "License Agreements" means all written agreements between
the Company or any Company Subsidiary and third parties (other than Parent) in
which (i) a third party has licensed or granted to Company or any Company
Subsidiary any right to use, exploit or practice any of such third party's
Intellectual Property Rights or Computer Software ("Inbound License
Agreements"), or (ii) the Company or any Company Subsidiary has licensed
(including by means of a covenant not to sue) to a third party any right to use,
exploit or practice any Company Intellectual Property Rights ("Outbound License
Agreements").

                  (s) "Majority Shares" equals the number of shares of Company
Common Stock owned by HoldCo.

                  (t) "Materials of Environmental Concern" is defined as toxic
or hazardous substances or hazardous waste, petroleum and petroleum products,
asbestos or asbestos-containing materials, polychlorinated biphenyls, radon, or
lead or lead-based paints or materials.

                  (u) "Non-Material Computer Software" means Computer Software
that is generally available on commercial terms for less than $100,000 or is
general purpose infrastructure Computer Software, such as human resources,
accounting, financial, customer relationship and similar Computer Software.

                  (v) "Parachute Gross-Up Payment" means any additional payment
from the Company or any Company Subsidiary, the Surviving Corporation or any
other Person in the event that the excise Tax of Section 4999(a) of the Code is
imposed on such Person.

                  (w) "Parent Intellectual Property Rights" means any
Intellectual Property Rights owned by Parent or any Parent Subsidiary.

                  (x) "Parent Material Adverse Effect" means any Effect,
individually or when taken together with all other Effects that have occurred
during the applicable measurement period prior to the date of determination of
the occurrence of the Parent Material Adverse Effect, that is or is reasonably
likely to be materially adverse to the business, assets (including intangible
assets), capitalization, financial condition or results of operations of Parent,
taken as a whole with Parent Subsidiaries; provided,


                                                                            -85-

however, that in no event will any of the following, alone or in combination, be
deemed to constitute, nor will any of the following be taken into account in
determining whether there has been or will be, a Parent Material Adverse Effect:
(A) any Effect to the extent resulting from compliance with the terms and
conditions of this Agreement; (B) any Effect to the extent resulting from the
announcement or pendency of the Mergers; (C) any Effect to the extent resulting
from changes affecting any of the industries in which Parent operates generally
which does not have a disproportionate effect on Parent; (D) any Effect to the
extent resulting from changes affecting general worldwide economic or capital
market conditions which changes do not have a disproportionate effect on Parent;
(E) any change in Parent's stock price or trading volume, in and of itself; (F)
any stockholder litigation arising from allegations of a breach of fiduciary
duty relating to this Agreement; or (G) any failure by Parent to meet published
revenue or earnings projections, which failure will have occurred in the absence
of a material deterioration in the business or financial condition of Parent
that would otherwise constitute a Parent Material Adverse Effect but for this
clause (G).

                  (y) "Parent Triggering Event" shall be deemed to have occurred
if: (i) the board of directors of Parent or any committee thereof shall for any
reason have withdrawn or shall have amended or modified in a manner adverse to
the Company its recommendation in favor of the adoption and approval of the
Parent Proposals; (ii) Parent shall have failed to include in the Registration
Statement, Parent Proxy Statement and, to the extent required or customarily
included in such documents, the applicable Parent French Filings, the
recommendation of its board of directors in favor of the adoption and approval
of the Parent Proposals; (iii) the board of directors of Parent fails to
reaffirm (publicly, if so requested) its recommendation in favor of the adoption
and approval of the Parent Proposals within ten (10) business days after the
other party hereto reasonably requests in writing that such recommendation be
reaffirmed; (iv) the board of directors of Parent or any committee thereof shall
have approved or recommended any Parent Acquisition Proposal; or (v) the board
of directors of Parent or any committee thereof shall have entered into any
letter of intent or similar document or any contract, agreement or commitment
contemplating or otherwise relating to any Parent Acquisition Proposal or
transaction contemplated thereby.

                  (z) "Pension Plans" means all "employee pension benefit plans"
(as defined in Section 3(2) of ERISA).

                  (aa) "Person" means any individual, corporation (including any
non-profit corporation), general partnership, limited partnership, limited
liability partnership, joint venture, estate, trust, company (including any
limited liability company or joint stock company), firm or other enterprise,
association, organization, entity or Governmental Entity; provided, however,
that the parties to this Agreement and their respective Subsidiaries are
excluded from the definition of Person.

                  (bb) "Registered Company Intellectual Property" means
Registered Intellectual Property Rights that the Company owns.


                                                                            -86-

                  (cc) "Registered Intellectual Property Rights" means Patents,
registered Copyrights and Copyright applications, registered Trademarks and
Trademark applications and Domain Name registrations.

                  (dd) "Registered Parent Intellectual Property Rights" means
Registered Intellectual Property Rights owned by Parent.

                  (ee) "Representatives" of a specified entity means its
officers, directors, majority stockholders, agents and representatives,
including any financial advisor, financial sponsor, attorney or accountant
retained by any of the foregoing for any purpose.

                  (ff) "Subsidiary" of a specified entity shall mean any
corporation, partnership, limited liability company, joint venture or other
legal entity of which the specified entity (either alone or through or together
with any other Subsidiary) owns, directly or indirectly, fifty percent (50%) or
more of the stock or other equity or partnership interests the holders of which
are generally entitled to vote for the election of the board of directors or
other governing body of such corporation or other legal entity. Reference to the
Subsidiaries of an entity shall be deemed to include all direct and indirect
Subsidiaries of such entity.

                  (gg) "Tax" or "Taxes" means all Federal, state, local, and
foreign taxes, and other assessments of a similar nature (whether imposed
directly or through withholding), including any interest, additions to tax, or
penalties applicable thereto, imposed by any Tax Authority.

                  (hh) "Tax Authority" means the Internal Revenue Service and
any other domestic or foreign governmental authority responsible for the
administration of any Taxes.

                  (ii) "Tax Returns" mean all Federal, state, local, and foreign
Tax returns, declarations, statements, reports, schedules, forms, and
information returns and any amendments thereto.

                  (jj) "WARN Act" means the Worker Adjustment and Retraining
Notification Act.

            Section 11.2 Interpretation.

                  (a) When a reference is made in this Agreement to Exhibits,
such reference will be to an Exhibit to this Agreement unless otherwise
indicated. When a reference is made in this Agreement to Sections, such
reference will be to a Section of this Agreement unless otherwise indicated. The
words "include," "includes" and "including" when used herein will be deemed in
each case to be followed by the words "without limitation." The table of
contents and headings contained in this Agreement are for reference purposes
only and will not affect in any way the meaning or interpretation of this
Agreement. When reference is made herein to "the business of" an entity, such


                                                                            -87-

reference will be deemed to include the business of all direct and indirect
Subsidiaries of such entity.

                  (b) For purposes of this Agreement, whenever under the terms
hereof the giving of a notice or performance of an act takes place after 12:00
noon California time, (i) the beginning of any period required for giving such
notice or performing such act will be deemed to be the next full day or, if the
period is measured in business days, the next full business day, rather than the
day of such notice or performance, and (ii) the expiration of such required
period will be deemed to be 5:00 p.m. California time on the last day or, if the
period is measured in business days, last business day, of the period. By way of
example, if a notice is required three (3) business days in advance and the
notice is delivered at 10:00 a.m. California time on a Friday which is a
business day, then the expiration of the period will be 5:00 p.m. on the
following Tuesday, assuming that both Monday and Tuesday are business days.

                  (c) For purposes of this Agreement, the term "Knowledge" means
the actual knowledge, after reasonable inquiry of Persons who report directly to
such individual, of the party's Chief Executive Officer, Chief Financial
Officer, Chief Accounting Officer, General Counsel, or, in the case of the
Company, Vice President, Products.

                                  ARTICLE XII

                                 MISCELLANEOUS

            Section 12.1 Non-Survival of Representations and Warranties. The
representations and warranties of the Company, Parent, Merger Sub 1, Merger Sub
2, and Merger Sub 3 contained in this Agreement will terminate at the Effective
Time, and only the covenants that by their terms survive the Effective Time will
survive the Effective Time.

            Section 12.2 Notices. All notices and other communications hereunder
will be in writing and will be deemed duly given (i) on the date of delivery if
delivered personally, (ii) on the date of confirmation of receipt (or, the first
business day following such receipt if the date is not a business day) of
transmission by telecopy or telefacsimile, or (iii) on the date of confirmation
of receipt (or, the first business day following such receipt if the date is not
a business day) if delivered by a nationally recognized courier service. All
notices hereunder will be delivered as set forth below, or pursuant to such
other instructions as may be designated in writing by the party to receive such
notice:


                                                                            -88-

                  (a) if to Parent, Merger Sub 1, Merger Sub 2 or Merger Sub 3:

                  Business Objects S.A.
                  c/o Business Objects Americas, Inc.
                  3030 Orchard Parkway
                  San Jose, California  95134
                  Attention:  General Counsel
                  Telephone:  (408) 953-6000
                  Facsimile:  (408) 953-6001

with a copy at the same address to the attention of the General Counsel and
Secretary and with a copy to:

                  Skadden, Arps, Slate, Meagher & Flom LLP
                  525 University Avenue, Suite 1100
                  Palo Alto, California  94301
                  Attention:  Marc R. Packer
                              Kenton J. King
                  Telephone:  (650) 470-4500
                  Facsimile:  (650) 470-4570

                  (b) if to the Company:

                  Crystal Decisions, Inc.
                  895 Emerson Street
                  Palo Alto, California  94301
                  Attention:  General Counsel
                  Telephone:  (650) 838-7410
                  Facsimile:  (650) 838-7451

with a copy to:

                  Crystal Decisions, Inc.
                  840 Cambie Street
                  Vancouver, British Columbia
                  Canada  V6B 4J2
                  Attention:  Chief Financial Officer
                  Telephone:  (604) 681-3435
                  Facsimile:  (604) 681-2934


                                                                            -89-

and with a copy to:

                  Wilson Sonsini Goodrich & Rosati
                  Professional Corporation
                  650 Page Mill Road
                  Palo Alto, California  94304
                  Attention:  Larry W. Sonsini
                              Martin W. Korman
                  Telephone:  (650) 493-9300
                  Facsimile:  (650) 493-6811

                  (c) if to HoldCo:

                  Seagate Software (Cayman) Holdings
                  c/o Seagate Technology, Inc.
                  920 Disc Drive, Building 14
                  Scotts Valley, California  95066
                  Attention:  William L. Hudson
                  Telephone:  (831) 439-5370
                  Facsimile:  (831) 438-6675

with a copy at the same address to the attention of the Chairman and Chief
Executive Officer and with a copy to:

                  Simpson Thacher & Bartlett LLP
                  3330 Hillview Avenue
                  Palo Alto, California  94304
                  Attention:  Richard Capelouto
                              Kirsten Jensen
                  Telephone:  650-251-5145
                  Facsimile:  650-251-5002

            Section 12.3 Counterparts. This Agreement may be executed in two or
more counterparts, and by facsimile, all of which will be considered one and the
same agreement and will become effective when one or more counterparts have been
signed by each of the parties and delivered to the other party, it being
understood that all parties need not sign the same counterpart.

            Section 12.4 Entire Agreement; Third Party Beneficiaries. This
Agreement and the documents and instruments and other agreements among the
parties hereto as contemplated by or referred to herein, including the Company
Disclosure Schedule and the Parent Disclosure Schedule (a) constitute the entire
agreement among the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof, it being understood that
the Confidentiality Agreement shall continue in full force and effect until the
Closing and shall survive any termination of this


                                                                            -90-

Agreement, and (b) are not intended to confer upon any other Person any rights
or remedies hereunder, except as specifically provided, following the Company
Merger Effective Time, in Section 8.25.

            Section 12.5 Severability. In the event that any provision of this
Agreement or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the application of
such provision to other Persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further agree
to replace such void or unenforceable provision of this Agreement with a valid
and enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of such void or unenforceable provision.

            Section 12.6 Other Remedies; Specific Performance. Except as
otherwise provided herein, any and all remedies herein expressly conferred upon
a party will be deemed cumulative with and not exclusive of any other remedy
conferred hereby, or by law or equity upon such party, and the exercise by a
party of any one remedy will not preclude the exercise of any other remedy. The
parties hereto agree that irreparable damage would occur in the event that any
of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties will be entitled to seek an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
hereof in any court of the United States or any state having jurisdiction, this
being in addition to any other remedy to which they are entitled at law or in
equity.

            Section 12.7 Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
law thereof. In addition, each of the parties hereto (a) consents to submit
itself to the Personal jurisdiction of any Delaware state court in the event any
dispute arises out of this Agreement or any of the other transactions
contemplated by this Agreement, (b) agrees that it will not attempt to deny or
defeat such Personal jurisdiction by motion or other request for leave from any
such court, and (c) agrees that it will not bring any action relating to this
Agreement or any of the other transactions contemplated by this Agreement in any
court other than a state court sitting in the State of Delaware.

            Section 12.8 Rules of Construction. The parties hereto agree that
they have been represented by counsel during the negotiation and execution of
this Agreement and, therefore, waive the application of any law, regulation,
holding or rule of construction providing that ambiguities in an agreement or
other document will be construed against the party drafting such agreement or
document.

            Section 12.9 Assignment. This Agreement may not be assigned by any
of the parties hereto (whether by operation of law or otherwise) without the
prior written consent of the other parties, except any of Merger Sub 1, Merger
Sub 2 and Merger Sub 3 may assign, in its sole discretion and without the
consent of any other party, any or all of its rights, interests and obligations
hereunder to (i) Parent, (ii) to Parent and one or more


                                                                            -91-

direct or indirect wholly-owned Subsidiaries of Parent, or (iii) to one or more
direct or indirect wholly-owned Subsidiaries of Parent (each, an "Assignee") if
and only if such assignment would not in any manner adversely affect the rights,
obligations and benefits of the transactions contemplated hereby of any party or
any of their direct or indirect affiliates. Any such Assignee may thereafter
assign in accordance with the terms of this Section 12.9. Subject to the
preceding sentences, but without relieving any party hereto of any obligation
hereunder, this Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors and assigns.

            Section 12.10 No Waiver; Remedies Cumulative. No failure or delay on
the part of any party hereto in the exercise of any right hereunder will impair
such right or be construed to be a waiver of, or acquiescence in, any breach of
any representation, warranty or agreement herein, nor will any single or partial
exercise of any such right preclude other or further exercise thereof or of any
other right. All rights and remedies existing under this Agreement are
cumulative to, and not exclusive to, and not exclusive of, any rights or
remedies otherwise available.

            Section 12.11 Waiver of Jury Trial. EACH OF PARENT, THE COMPANY AND
MERGER SUB HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF PARENT, THE
COMPANY OR MERGER SUB IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND
ENFORCEMENT HEREOF.

                  [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


                                                                            -92-

            IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized respective officers as of the date first
written above.

                                            BUSINESS OBJECTS S.A.


                                            By: /s/ Bernard Liautaud
                                               ---------------------------------
                                            Name:  Bernard Liautaud
                                            Title: Chairman of the Board and
                                                   Chief Executive Officer

                                            BORG MERGER SUB I, INC.


                                            By: /s/ Bernard Liautaud
                                               ---------------------------------
                                            Name:  Bernard Liautaud
                                            Title: Chief Executive Officer and
                                                   President

                                            BORG MERGER SUB II, INC.


                                            By: /s/ Bernard Liautaud
                                               ---------------------------------
                                            Name:  Bernard Liautaud
                                            Title: Chief Executive Officer and
                                                   President


                                            BORG MERGER SUB III, INC.


                                            By: /s/ Bernard Liautaud
                                               ---------------------------------
                                            Name:  Bernard Liautaud
                                            Title: Chief Executive Officer and
                                                   President


                                            SEAGATE SOFTWARE (CAYMAN) HOLDINGS


                                            By: /s/ William L. Hudson
                                               ---------------------------------
                                            Name:  William L. Hudson
                                            Title: Executive Vice President,
                                                   General Counsel and
                                                   Corporate Secretary


                                            CRYSTAL DECISIONS, INC.


                                            By: /s/ Jonathan J. Judge
                                               ---------------------------------
                                            Name:  Jonathan J. Judge
                                            Title: President and Chief Executive
                                                   Officer



                [SIGNATURE PAGE TO AGREEMENT AND PLAN OF MERGER]

EX-2.2

                                                                     EXHIBIT 2.2


                                                                  EXECUTION COPY


                             STOCKHOLDERS AGREEMENT

                                  BY AND AMONG

                             BUSINESS OBJECTS, S.A.,

                                     NEW SAC

                                     AND THE

                               OTHER STOCKHOLDERS

                                  PARTY HERETO

                            DATED AS OF JULY 18, 2003








                             STOCKHOLDERS AGREEMENT

      This STOCKHOLDERS AGREEMENT, dated as of July 18, 2003 (this "Agreement"),
is entered into among Business Objects, S.A. (the "Company"), New SAC (the
"Majority Stockholder"), Silver Lake Technology Investors Cayman, L.P., Silver
Lake Investors Cayman, L.P., Silver Lake Partners Cayman, L.P., (collectively,
"Silver Lake"), SAC Investments, L.P. ("TPG"), August Capital III, L.P.
("August"), J.P. Morgan Partners (BHCA), L.P. ("J.P. Morgan"), GS Capital
Partners III, L.P., GS Capital Partners III Offshore, L.P., Goldman, Sachs & Co.
Verwaltungs GmbH, Stone Street Fund 2000 L.P., Bridge Street Special
Opportunities Fund 2000, L.P. (collectively, "GS"), Staenberg Venture Partners
II, L.P., Staenberg Seagate Partners, LLC (collectively, "Staenberg"), and
Integral Capital Partners V, L.P., Integral Capital Partners V Side Fund, L.P.
(collectively, "Integral"). Each of the entities listed above other than the
Company are sometimes referred to individually as a "Stockholder" and together
as the "Stockholders."

                                    RECITALS

      WHEREAS, concurrently herewith, the Company, Borg Merger Sub I, Inc., a
Delaware corporation and wholly-owned subsidiary of the Company ("Merger Sub
1"), Borg Merger Sub II, Inc., a Delaware corporation and wholly-owned
subsidiary of the Company ("Merger Sub 2"), Borg Merger Sub III, Inc., a
Delaware corporation and wholly-owned subsidiary of the Company ("Merger Sub
3"), Seagate Software (Cayman) Holdings, an exempted company incorporated in the
Cayman Islands with limited liability ("HoldCo") and Crystal Decisions, Inc., a
Delaware corporation ("Crystal"), have entered into an Agreement and Plan of
Merger (the "Merger Agreement"), dated as of July 18, 2003, pursuant to which,
subject to satisfaction or waiver of the conditions therein, (1) (a) Merger Sub
1 will merge with and into HoldCo (the "HoldCo Merger"), (b) immediately
following the HoldCo Merger, the surviving corporation of the HoldCo Merger will
merge with and into Merger Sub 2 (the "Second HoldCo Merger"), (c) immediately
following the Second HoldCo Merger, Merger Sub 3 will merge with and into
Crystal (the "Company Merger"), and (d) immediately following the Company
Merger, the surviving corporation of the Company Merger will merge with and into
the surviving corporation of the Second HoldCo Merger (the "Second Company
Merger," and together with the HoldCo Merger, the Second HoldCo Merger and
Company Merger, the "Mergers"), (2) the Company will issue ordinary shares,
nominal value EUR 0.10 per share, of the Company or American Depository Shares
of the Company, each of which represents one Ordinary Share (in either form, the
"Shares") to the Majority Stockholder, as the sole stockholder of HoldCo, and to
the stockholders of Crystal, and (iii) the Company will assume all
then-outstanding Crystal stock options in accordance with the terms of the
Merger Agreement;

      WHEREAS, in connection with the Mergers, the Majority Stockholder will
receive Subject Shares (as defined herein);

      WHEREAS, upon consummation of the Mergers, the Stockholders will
Beneficially Own Shares;



                                       2



      WHEREAS, the parties believe that it is in the best interests of the
Company and the Stockholders to provide for certain rights and obligations of
the parties with respect to various corporate matters of the Company following
the Mergers; and

      WHEREAS, the Merger Agreement contemplates that this Agreement will be
executed concurrently with the execution of the Merger Agreement, with its
provisions to become effective upon consummation of the Mergers.

      NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:

                         ARTICLE I. INTRODUCTORY MATTERS

            1.1. Defined Terms.

      In addition to the terms defined elsewhere herein, the following terms
have the following meanings when used herein with initial capital letters:

      "13D Group" means a "group" as such term is used in Section 13(d)(3) of
the Exchange Act.

      "AAA" has the meaning given to that term in Section 7.9 of this Agreement.

      "ADSs" means the American Depository Shares of the Company, each
representing one Ordinary Share, deposited with the Depositary, and trading on
the Nasdaq National Market.

      "Affiliate" has the meaning given to that term in Rule 405 promulgated
under the Securities Act; provided that officers, Directors or employees of the
Company will not be deemed to be Affiliates of a Stockholder for purposes hereof
solely by reason of being officers, Directors or employees of the Company.

      "Agreement" means this Agreement, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with the terms hereof.

      "Assumption Agreement" means a writing substantially in the form of
Exhibit A hereto whereby a Permitted Transferee or other Transferee pursuant to
Sections 3.4 and 3.6 becomes a party to, and agrees to be bound to the same
extent as its Transferor by, the terms of this Agreement.

      "Beneficial Owner," "Beneficially Own," "Beneficial Ownership" and words
of similar import have the meanings ascribed to such terms in Rule 13d-3 under
the Exchange Act. Without duplicative counting of the same securities by the
same holder, securities "Beneficially Owned" by a Person includes securities
"Beneficially Owned" by all other Persons with whom such Person would constitute
a 13D Group with respect to securities of the same issuer.

      "Board" means the Board of Directors of the Company.



                                       3


      "Business Day" means a day other than a Saturday, Sunday, federal or New
York or California state holiday, French national holiday or other day on which
commercial banks in New York City, San Francisco or Paris are authorized or
required by law to close.

      "Closing Date" means the "Second Company Merger Effective Time" of the
Mergers as such term is defined in the Merger Agreement.

      "Closing Shelf Registration Statement" shall have the meaning given to
such term in Section 4.10 of this Agreement.

      "Control," "Controlled," "Controlling," and "Under Common Control With"
have the meanings ascribed to such terms in Rule 12b-2 under the Exchange Act.

      "Demand Party" has the meaning given to that term in Section 4.2(a) of
this Agreement.

      "Demand Registration" has the meaning given to that term in Section 4.2(a)
of this Agreement.

      "Depositary" means the Bank of New York or any successor depositary
thereto.

      "Depositary Expenses" means any fees or expenses (including any taxes and
governmental charges) payable (by the Company or otherwise) in connection with
any deposit or withdrawal of any of the Subject Shares into or from the
Depositary or its custodian after the Subject Shares have been issued to the
Majority Stockholder in connection with the Mergers.

      "Director" means any member of the Board.

      "Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder, as the same may be amended
from time to time.

      "Holder" has the meaning given to that term in Section 4.5 of this
Agreement.

      "Indemnified Parties" has the meaning given to that term in Section 4.5 of
this Agreement.

      "Initial Share Holding Period" has the meaning given to that term in
Section 3.1(a) of this Agreement.

      "Initiating Holder" has the meaning given to that term in Section 4.1(a)
of this Agreement.

      "Legend" has the meaning given to that term in Section 3.7(d) of this
Agreement.

      "Managing Registration Rights Holder" means any of the Majority
Stockholder, Silver Lake, TPG, August, J.P. Morgan, GS, Staenberg, or Integral.

      "Mergers" has the meaning given to that term in the Recitals of this
Agreement.



                                       4


      "Merger Agreement" has the meaning given to that term in the Recitals of
this Agreement.

      "Ordinary Shares" means the ordinary shares of the Company, nominal value
EUR 0.10 per share.

      "Permitted Transferee" means, in the case of any Stockholder, (A) any
Controlled Affiliate (other than an individual) of such Stockholder or any
Affiliate (other than an individual) which Controls such Stockholder (which in
the case of J.P. Morgan, shall include any investment fund managed by a
Controlled Affiliate of J.P. Morgan Chase & Co.), (B) any stockholder, general
or limited partner, director, officer, managing or non-managing member or
employee of such Stockholder or Controlled Affiliate of such Stockholder
(including, in the case of Silver Lake and TPG, the general or limited partners
of the general and limited partners of such Stockholders), (C) the heirs,
executors, administrators, testamentary trustees, legatees or beneficiaries of
any of the individuals referred to in clause (B), (D) for estate planning
purposes, any trust, the beneficiaries of which include only (1) such
Stockholder, (2) Permitted Transferees referred to in clauses (A), (B) and (C)
and (3) spouses and lineal descendants of Permitted Transferees referred to in
clause (B), and (E) a corporation, partnership, limited liability company or
similar entity, a majority of the equity of which is owned and Controlled by
such Stockholder and/or Permitted Transferees referred to in clauses (A), (B),
(C) and (D).

      "Person" means any individual, corporation, limited liability company,
partnership, trust, joint stock company, business trust, unincorporated
association, joint venture, governmental authority or other legal entity of any
nature whatsoever.

      "Public Offering" means the sale of any class of capital stock of the
Company or equivalent securities, including ADSs or similar securities, to the
public pursuant to an effective registration statement (other than a
registration statement on Form S-4 or S-8 or any similar or successor form)
filed under the Securities Act.

      "Registrable Securities" means (i) the Subject Shares and (ii) any Shares
issued as (or issuable upon the conversion or exercise of any warrant, right,
option or other convertible security which is issued as) a dividend, stock split
or other distribution, recapitalization or reclassification with respect to, or
in exchange for, or in replacement of, such Subject Shares, or upon exercise of
statutory preemptive rights by the Stockholders. For purposes of this Agreement,
with respect to any Stockholder, any Registrable Securities held by such
Stockholder will cease to be Registrable Securities when (A) a registration
statement covering such Registrable Securities has been declared effective and
such Registrable Securities have been disposed of pursuant to such effective
registration statement, (B) such Registrable Securities shall have been offered
and sold pursuant to Rule 144 or Rule 145 (or any similar provisions then in
effect) under the Securities Act, (C) all Registrable Securities held by such
Stockholder are eligible for transfer to the public pursuant to Rule 144 or Rule
145 (or any similar provisions then in effect) under the Securities Act (without
restriction as to manner of sale or amount sold) and are not otherwise subject
to any Transfer restrictions under this Agreement, (D) such Registrable
Securities are Transferred by a Person in a transaction in which rights under
the provisions of this Agreement are not assigned in accordance with this
Agreement, or (E) such Registrable Securities cease to be outstanding.



                                       5


      "Registration Expenses" means any and all expenses incident to performance
by the Company of its obligations under Sections 4.1, 4.2 and 4.3, including
without limitation (i) all SEC, stock exchange, or National Association of
Securities Dealers, Inc. (the "NASD") registration and filing fees (including,
if applicable, the fees and expenses of any "qualified independent underwriter,"
as such term is defined in Rule 2720 of the NASD, and of its counsel), (ii) all
fees and expenses of complying with securities or blue sky laws (including fees
and disbursements of counsel for the underwriters in connection with blue sky
qualifications of the Registrable Securities), (iii) all printing, messenger and
delivery expenses, (iv) all fees and expenses incurred in connection with the
listing of the Registrable Securities on any securities exchange and all rating
agency fees, (v) the fees and disbursements of counsel for the Company and of
its independent public accountants, including the expenses of any Special Audits
and/or "cold comfort" letters required by or incident to such performance and
compliance, (vi) any fees and disbursements of underwriters customarily paid by
the issuers or sellers of securities, including liability insurance if the
Company so desires or if the underwriters so require, and the reasonable fees
and expenses of any special experts retained in connection with the requested
registration, but excluding underwriting discounts and commissions and transfer
taxes, if any, (vii) the reasonable out-of-pocket expenses of not more than one
law firm incurred by all the Registration Rights Holders in connection with any
registration of Registrable Securities, and (viii) the costs and expenses of the
Company relating to analyst and investor presentations or any "road show"
undertaken in connection with any registration and/or marketing of the
Registrable Securities, provided that nothing in this clause (viii) shall
obligate the Company to engage or participate in any such presentations or road
show. For the avoidance of doubt, Registration Expenses does not include
Depositary Expenses.

      "Registration Rights Holders" means, collectively, the Stockholders
(excluding any Transferee that becomes a Stockholder to this Agreement pursuant
to Section 3.6 hereof), and to the extent any Registrable Securities are
Transferred by any such Stockholder to any of its Permitted Transferees, such
Permitted Transferees.

      "S-3 Initiating Party" has the meaning given to that term in Section 4.3
of this Agreement.

      "SEC" means the Securities and Exchange Commission.

      "Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder, as the same may be amended from
time to time.

      "Shares" has the meaning given to that term in the Recitals to this
Agreement.

      "Significant Event" has the meaning given to that term in Section 2.2(b)
of this Agreement.

      "Special Audit" means an audit of the Company other than the regular audit
conducted by the Company at the end of its fiscal year.

      "Stockholder" has the meaning given to that term in the Recitals to this
Agreement.



                                       6

      "Stockholder Representative" has the meaning given to that term in Section
5.1 of this Agreement.

      "Subject Shares" means the Shares issued to the Majority Stockholder in
connection with the Mergers, including any Shares issued upon changes in the
form of such Shares between ADSs and Ordinary Shares upon deposit or exchange
with the Depositary.

      "Suspension Period" has the meaning given to that term in Section 4.10 of
this Agreement.

      "Transfer" means, with respect to any Subject Share (or direct or indirect
economic or other interest therein), a transfer, distribution, sale, gift,
assignment, pledge, hypothecation or other disposition, whether directly or
indirectly (pursuant to the creation of a derivative security or otherwise), the
grant of an option or other right or the imposition of a restriction on
disposition or voting or by operation of law. When used as a verb, "Transfer"
shall have the correlative meaning. In addition, "Transferred" and "Transferee"
shall have the correlative meanings.

      "Voting Stock" means the Shares and any other securities of the Company
entitled to vote generally in the election of Directors of the Company.

            1.2. Construction.

      The language used in this Agreement will be deemed to be the language
chosen by the parties to express their mutual intent, and no rule of strict
construction will be applied against any party. Unless the context otherwise
requires: (a) "or" is disjunctive but not exclusive, (b) words in the singular
include the plural, and in the plural include the singular, and (c) the words
"hereof", "herein" and "hereunder" and words of similar import when used in this
Agreement refer to this Agreement as a whole and not to any particular provision
of this Agreement, and Section and Exhibit references are to this Agreement
unless otherwise specified.

                        ARTICLE II. STANDSTILL PROVISIONS

            2.1. Restrictions.

      Except to the extent approved by a majority of the Directors, excluding
the Stockholder Representative, subject to the provisions of Section 2.2 hereof,
each Stockholder agrees that such Stockholder shall not:

            (a) purchase or acquire, or offer or agree to purchase or acquire,
directly or indirectly, alone or in concert with any other Person, by purchase,
gift or otherwise, Beneficial Ownership of any Voting Stock of the Company if
such acquisition would result in the Stockholders Beneficially Owning more than
(x) the number of Subject Shares (subject to adjustment for any events set forth
in clause (B) below) such Stockholders collectively Beneficially Own upon
consummation of the Mergers plus (y) the number of Shares (subject to adjustment
for any events set forth in clause (B) below, if any) such Stockholders acquire
Beneficial Ownership of from time to time during any period that the
restrictions of this Section 2.1 are suspended pursuant to the provisions of
Section 2.2 hereof, except (A) as specifically


                                       7


contemplated by the Merger Agreement, (B) by way of stock dividends or
distributions, rights offerings, stock-splits, reclassifications,
recapitalizations, changes in capitalization, mergers, consolidations,
restructurings, business combinations, exchange offers, reorganizations or any
other similar action taken by the Company, (C) by reason of exercise of
statutory preemptive rights or (D) for equity-based awards granted to any
Stockholder or Affiliate thereof solely in such Person's capacity as a director
or employee of the Company; provided, that Integral shall not be bound by the
restrictions contained in this Section 2.1(a); provided further, that with
respect to J.P. Morgan, in no event shall the restrictions set forth in this
Section 2.1(a) be deemed to apply to any Person other than (1) J.P. Morgan or
(2) any successor investment fund managed by J.P. Morgan Partners, L.L.C.;

            (b) join or in any way participate in or encourage the formation of
any 13D Group with respect to the Beneficial Ownership of Voting Stock of the
Company with any Person who is not, immediately prior to the time of formation
of such 13D Group, (i) another Stockholder or (ii) an Affiliate of (A) such
Stockholder or another Stockholder or (B) any other Person which is then a
member of a 13D Group with such Stockholder or another Stockholder;

            (c) (i) make, or in any way participate in, directly or indirectly,
alone or in concert with any other Person, any "solicitation" of "proxies" (as
such terms are defined or used in Regulation 14A under the Exchange Act),
including participation in any election contest, or (ii) otherwise communicate
with the stockholders of the Company (other than (i) another Stockholder, (ii)
an Affiliate of such Stockholder, or (iii) any other Person which is then a
member of a 13D Group with such Stockholder or another Stockholder) in
connection with or in relation to a proxy solicitation;

            (d) advise or seek to influence any Person (other than (i) another
Stockholder, (ii) Affiliates of such Stockholder or another Stockholder or (iii)
Persons who are members of any 13D Group of which such Stockholder or another
Stockholder is member and which does not violate Section 2.1(b) above), with
respect to the voting of any Voting Stock;

            (e) initiate or propose one or more stockholders' proposals, as
described in Rule 14a-8 under the Exchange Act, with respect to the Company;

            (f) call, request or otherwise attempt to convene or cause
management of the Company to convene a meeting of the stockholders of the
Company;

            (g) initiate, propose or solicit any proposal with respect to any
merger, consolidation or business combination involving the Company, any tender
or exchange offer for equity securities of the Company, any sale or purchase of
a substantial amount of the assets of the Company, any purchase of equity
securities of the Company (other than as permitted in Section 2.1(a) above), any
dissolution, liquidation, reorganization or recapitalization or similar business
transaction involving the Company;

            (h) deposit any shares of Voting Stock of the Company in a voting
trust or subject any such Voting Stock to any arrangement or agreement with
respect to the voting of such Voting Stock (other than arrangements or
agreements solely involving (i) another Stockholder, (ii) Affiliates of such
Stockholder or another Stockholder or (iii) Persons who are


                                       8


members of any 13D Group of which such Stockholder or another Stockholder is
member and which does not violate Section 2.1(b) above);

            (i) propose publicly (or in a manner reasonably expected to result
in public disclosure) to do, announce an intention to do, or enter into any
arrangement or understanding with any other Person to do, any of the actions
restricted or prohibited under this Section 2.1; or

            (j) propose publicly (or in a manner reasonably expected to result
in public disclosure) any proposal to amend or terminate the provisions of this
Section 2.1;

provided that nothing in this Section 2.1 shall (i) prohibit or restrict any
Stockholder or its Affiliates from taking any action required or contemplated by
any other provision of this Agreement or the Merger Agreement, (ii) prohibit any
individual who is serving as a Director of the Company, solely in his or her
capacity as such Director, from taking any action or making any statement which,
in such Director's best judgment, is in the best interests of the Company or the
Company's stockholders, (iii) prohibit any individual who is serving as an
officer or employee of the Company or its Controlled Affiliates, solely in his
or her capacity as such, from performing his or her duties in such capacity or
from participating in the employee stock purchase program (if any) of the
Company or its Controlled Affiliates in which such individual is eligible to
participate by virtue of such capacity, provided that any such participation
does not make use of any funds provided by any third party, including without
limitation any Stockholder or any Permitted Transferee thereof, or (iv) restrict
any disclosure or statements required to be made by any Stockholder or its
Affiliates under applicable law to the extent any such requirement does not
arise from actions by such Stockholder in violation of this Agreement, and
provided, further, that the restrictions set forth in Section 2.1(a) shall not
be deemed to restrict any Stockholder or its Affiliates from engaging in any
brokerage, investment advisory, anti-raid advisory, merger advisory, asset
management, financial advisory, financing, market making and other similar
activities conducted in the ordinary course of its or their business.

            2.2. Suspension of Standstill Restrictions.

            (a) Upon the occurrence of a Significant Event (as defined below),
the restrictions set forth in Section 2.1 shall be suspended.

            (b) "Significant Event" means any of the following:

                  (i) the Company agrees to enter into an agreement for, or
      makes a public announcement of its intention to pursue, or the Board
      authorizes the management of the Company to solicit proposals from third
      parties for (A) the sale or other disposition of 33.3% or more of the
      Company's outstanding Shares, (B) the sale or disposition of all or
      substantially all of the Company's assets or a similar sale or change of
      control transaction, or (C) any merger, consolidation, or other similar
      business combination transaction (1) pursuant to which the outstanding
      Shares of the Company would be converted into cash or securities of
      another Person or 13D Group, (2) which would result in a third party or
      13D Group Beneficially Owning, when combined with any other Shares of the
      Company owned by such third party or 13D Group, 33.3% or more of the
      then-outstanding Shares,


                                       9


      or (3) which would result in all or a substantial portion of the Company's
      assets being sold to any Person or 13D Group; or

                  (ii) the public announcement of a bona fide proposal by a
      third party or 13D Group (other than the Company, a Stockholder, or any
      Person who is then an Affiliate of a Stockholder) to acquire Voting Stock
      of the Company (including pursuant to a tender or exchange offer or
      merger), which, if successful, would result in such third party or 13D
      Group Beneficially Owning, when combined with any other Voting Stock of
      the Company owned by such third party or 13D Group, 33.3% or more of the
      outstanding Voting Stock of the Company; provided, however, that the Board
      either (A) has approved or recommended that the stockholders of the
      Company accept such offer or (B) has not rejected or recommended that the
      stockholders of the Company refrain from accepting such offer; or

                  (iii) a third party or 13D Group successfully consummates a
      proposal of the type described in the foregoing clause 2.2(b)(ii); or

                  (iv) the adoption by the Board of a plan of liquidation or
      dissolution.

            (c) Upon the cessation of the event or events that lead to the
suspension of the restrictions in Sections 2.1 pursuant to this Section 2.2,
those restrictions shall be reinstated in accordance with their terms unless
this Agreement has been terminated in accordance with Section 7.2.

           ARTICLE III. TRANSFER RESTRICTIONS; CERTAIN DISTRIBUTIONS

            3.1. Limitations on Transfer.

            (a) During the 90 day period following the Closing Date (such
period, the "Initial Share Holding Period"), the Majority Stockholder may not
Transfer any Subject Shares.

            (b) At any time following the Initial Share Holding Period, the
Stockholders may Transfer Subject Shares solely in accordance with the
provisions of Section 3.2 hereof and Sections 3.1(c) and 3.1(d) below.

            (c) During the period commencing as of the end of the Initial Share
Holding Period and ending on the one-year anniversary thereof (the "Restricted
Period"), without the prior written consent of the Company, the Stockholders may
not collectively Transfer Subject Shares representing more than 7.5% of the
then-outstanding Shares of the Company in the aggregate during any six (6) month
period; provided, that the following Transfers shall not be included in
calculating Shares Transferred for purposes of this Section 3.1(c):

                  (i) Transfers of Registrable Securities in underwritten Public
      Offerings pursuant to Sections 4.1, 4.2 and 4.3 hereof;

                  (ii) Distributions of Subject Shares by the Majority
      Stockholder, pursuant to Section 3.3 below;



                                       10


                  (iii) Transfers of Subject Shares by any Stockholder to its
      Permitted Transferees pursuant to Section 3.4 below; and

                  (iv) Transfers of Subject Shares pursuant to Sections 3.2(g)
      and (k) below.

            (d) In addition to the provisions of Section 3.1(c) above, during
the Restricted Period, without the prior written consent of the Company, the
Stockholders may not collectively Transfer Subject Shares representing more than
15% of the then-outstanding Shares of the Company in the aggregate during any
six (6) month period; provided, that the following Transfers shall not be
included in calculating Shares Transferred for purposes of this Section 3.1(d):

                  (i) Distributions of Subject Shares by the Majority
      Stockholder, pursuant to Section 3.3 below;

                  (ii) Transfers of Subject Shares by any Stockholder to its
      Permitted Transferees pursuant to Section 3.4 below; and

                  (iii) Transfers of Subject Shares pursuant to Sections 3.2(g)
      and (k) below.

            3.2. Additional Transfer Restrictions.

      Following the Initial Share Holding Period and subject to the restrictions
set forth in Sections 3.1(c) and 3.1(d) above, none of the Stockholders may
Transfer any Subject Shares, except:

            (a) in compliance with Rules 144 and 145 under the Securities Act;

            (b) pursuant to any underwritten Public Offerings, including,
without limitation, pursuant to Sections 4.1, 4.2 and 4.3, provided that any
such underwritten Public Offering is at least 180 days after the most recent
underwritten Public Offering in which Subject Shares were Transferred;

            (c) pursuant to Public Offerings other than underwritten Public
Offerings or any other resale under an effective registration statement;

            (d) in private transactions subject to applicable exemptions from
the registration requirements of the Securities Act to Persons who have not
filed and, to the knowledge of the Stockholder, would not be required to file
after the consummation of the Transfer, either: (A) a Schedule 13D under the
Exchange Act (a "Schedule 13D") , or (B) a Schedule 13G under the Exchange Act
that discloses Beneficial Ownership of 10% or more of the then-outstanding
Shares (a "10% Schedule 13G"); provided, that no more than 5% of the
then-outstanding Shares may be Transferred to any such Person, whether in a
single transaction or series of related transactions;

            (e) in private transactions subject to applicable exemptions from
the registration requirements of the Securities Act to Persons who have filed
or, to the knowledge of the Stockholder, would be required to file after the
consummation of the Transfer, either: (A) a


                                       11


Schedule 13D, or (B) a 10% Schedule 13G; provided, that no more than 5% of the
then-outstanding Shares may be sold to any such Person, whether in a single
transaction or series of related transactions; provided further, that prior to
the Transfer, the Stockholder will have offered the Company the opportunity to
purchase the respective Subject Shares (in the manner set forth in Section 3.4
below), and the Company shall have failed to exercise such right of first
refusal;

            (f) in transactions outside of the United States subject to
applicable exemptions from the registration requirements of the Securities Act;

            (g) pursuant to any tender or exchange offer commenced under Rule
14d-2 of the Exchange Act, or any merger, consolidation, sale or other business
combination transaction involving the Company;

            (h) pursuant to any distribution by the Majority Stockholder to its
Stockholders pursuant to Section 3.3 below;

            (i) pursuant to any Transfer by a Stockholder to its Permitted
Transferees pursuant to Section 3.4 below;

            (j) in bona fide transactions in compliance with the requirements of
the Securities Act and Exchange Act that constitute a hedge against changes in
the market price of the Shares; or

            (k) the grant by J.P. Morgan of a participation interest to one or
more other investment funds managed by a Controlled Affiliate of J.P. Morgan
Chase & Co. without a change in record ownership.

            3.3. Distributions by Majority Stockholder.

      Following the Initial Share Holding Period, the Majority Stockholder may
distribute all or a portion of the Subject Shares held by the Majority
Stockholder to the stockholders of the Majority Stockholder in accordance with
the Memorandum and Articles of Association of the Majority Stockholder.

            3.4. Transfer to Permitted Transferees.

            (a) Following the Initial Share Holding Period, any Stockholder may
Transfer any or all of the Subject Shares held by it to any Permitted Transferee
of such Stockholder. Each Permitted Transferee will be required, at the time of
and as a condition to such Transfer, to become a party to this Agreement by
executing and delivering an Assumption Agreement and, upon executing and
delivering an Assumption Agreement, will be treated as a Stockholder for all
purposes hereof, including, but not limited to, the transfer restrictions set
forth in Article III hereof.

            (b) Each Permitted Transferee of any Stockholder to which Subject
Shares are Transferred shall, and such Stockholder shall cause such Permitted
Transferee to, Transfer back to such Stockholder (or to another Permitted
Transferee of such Stockholder) any Subject Shares


                                       12


it owns prior to such Permitted Transferee ceasing to be a Permitted Transferee
to such Stockholder.

            (c) This Section 3.4 shall not apply to the grant by J.P. Morgan of
a participation interest to one or more other investment funds managed by a
Controlled Affiliate of J.P. Morgan without change in record ownership.

            3.5. Right of First Refusal.

      Prior to consummating any Transfer of any Subject Share pursuant to
Section 3.2(e) above, each Stockholder shall give the Company the opportunity to
purchase, subject to applicable law, such Subject Shares in the following
manner:

            (a) The selling Stockholder shall give notice (the "Transfer
Notice") to the Company in writing of such intention, specifying the name of the
proposed purchaser or Transferee, the number of Subject Shares proposed to be
sold or transferred, the proposed price per Share therefor (the "Transfer
Price") and the other material terms upon which such disposition is proposed to
be made.

            (b) The Company (or a designee of the Company in accordance with
Section 3.5(c)) shall have the right, exercisable by written notice given by the
Company to the selling Stockholder within five Business Days after receipt of
such Transfer Notice, to agree to purchase all, but not less than all, of the
Subject Shares specified in such Transfer Notice. The Company shall have the
right to pay for such Subject Shares: (i) the same amount in cash per Share,
(ii) to the extent the consideration to be paid by the third party consists of
any debt instruments, consideration per Share equivalent to that offered by the
third party, or (iii) to the extent the consideration to be paid by the third
party does not consist of cash or debt instruments, an amount of cash having
equivalent value as determined, at the expense of the Company, by an investment
banking firm mutually agreed to by the Company and the selling Stockholder.

            (c) If the Company (or its designee) exercises its right of first
refusal hereunder, the closing of the purchase of the securities with respect to
which such right has been exercised shall take place within five Business Days
after the Company gives notice of such exercise, or, if later, upon the date on
which the proposed Transfer was to occur with the third party. Upon exercise by
the Company (or its designee) of its right of first refusal, the Company and the
selling Stockholder shall be legally obligated to consummate the purchase
contemplated thereby and shall use their reasonable commercial efforts to secure
any approvals required in connection therewith. The Company may elect by notice
in writing to the selling Stockholder that, at the closing of such transaction,
the Subject Shares be delivered to and payment made to the selling Stockholder
by a designee of the Company, provided that the Company shall remain liable for
its obligations under this Section 3.5 in the event such designee fails to
purchase and pay for the Subject Shares being sold.

            (d) If the Company (or its designee) does not exercise its right of
first refusal hereunder within the time specified for such exercise, or if the
Company (or its designee) fails to complete the purchase of the securities on
the closing date specified in the first sentence of Section 3.5(c) (other than
by reason of a failure by the selling Stockholder to fulfill its


                                       13


obligations with respect thereto), the selling Stockholder shall be free,
subject to the terms of Section 3.1 herein, to sell the securities specified in
such Transfer Notice at a price equal to or greater than the Transfer Price
specified in such Transfer Notice; provided that such sale is consummated within
thirty (30) days after the Company fails to exercise its right of first refusal.

            3.6. Rights and Obligations of Transferees.

      Any Transferee of Subject Shares (other than Transferees who acquire
Subject Shares (a) pursuant to Section 3.3, (b) pursuant to Section 3.4, (c)
pursuant to the exercise of rights set forth in Article IV, (d) in a bona fide
sale to the public pursuant to Rule 144, Rule 145 or Regulation S under the
Securities Act, (e) through a Public Offering, (f) pursuant to Section 3.2(g),
or (g) pursuant to Section 3.2(k)) will be required, at the time of and as a
condition to such Transfer, to become a party to this Agreement by executing and
delivering an Assumption Agreement and, upon executing and delivering an
Assumption Agreement, will be treated as a Stockholder for all purposes hereof;
provided, however, that no such Transferee (or its Permitted Transferees) will
acquire any rights (but will be subject to the obligations) under Articles IV or
V of this Agreement.

            3.7. Other.

            (a) Any Transfer of Subject Shares under this Agreement (other than
through a Public Offering) shall not be effective unless and until the Company
shall have been furnished with information reasonably satisfactory to it (which
may include an opinion from counsel) demonstrating that such Transfer is exempt
from or not subject to the provisions of Section 5 of the Securities Act and any
other applicable securities laws.

            (b) In the event of any purported Transfer by a Stockholder of any
Subject Shares in violation of the provisions of this Agreement, such purported
Transfer will be void and of no effect, and the Company will not give effect to
such Transfer.

            (c) The Company will be entitled to take all necessary steps to
ensure that any Subject Shares issued to the Stockholders are identified as
restricted securities within the meaning of Rules 144 and 145 promulgated under
the Securities Act and that any resales of such Subject Shares will be made in
accordance with an exemption from registration under the Securities Act or
pursuant to an effective registration statement.

            (d) Each certificate representing ADSs held by a Stockholder will
bear a legend on the face thereof substantially to the following effect (with
such additions thereto or changes therein as the Company may be advised by
counsel are required by law or necessary to give full effect to this Agreement,
the "Legend"):

            "THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
            TO THE STOCKHOLDERS AGREEMENT AMONG BUSINESS OBJECTS,
            S.A., NEW SAC, AND THE STOCKHOLDERS PARTY THERETO, DATED
            AS OF JULY 18, 2003, AS AMENDED AND SUPPLEMENTED FROM
            TIME TO TIME IN ACCORDANCE WITH THE TERMS THEREOF, A
            COPY OF WHICH IS ON FILE WITH THE SECRETARY OF BUSINESS
            OBJECTS, S.A. THE STOCKHOLDERS AGREEMENT CONTAINS, AMONG
            OTHER THINGS, CERTAIN PROVISIONS RELATING TO THE


                                       14


            TRANSFER OF THE SHARES SUBJECT TO THE AGREEMENT. NO
            TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR
            OTHER DISPOSITION OF THE SECURITIES REPRESENTED BY THIS
            CERTIFICATE, DIRECTLY OR INDIRECTLY, MAY BE MADE EXCEPT
            IN ACCORDANCE WITH THE PROVISIONS OF SUCH STOCKHOLDERS
            AGREEMENT. THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE
            OF THIS CERTIFICATE, AGREES TO BE BOUND BY ALL OF THE
            PROVISIONS OF SUCH STOCKHOLDERS AGREEMENT."

The Legend will be removed by the Company, with respect to any certificate
representing Subject Shares, by the delivery of substitute certificates without
such Legend in the event of a Transfer permitted by this Agreement and in which
the Transferee is not required to enter into an Assumption Agreement pursuant to
Section 3.4 or Section 3.6 of this Agreement.

                        ARTICLE IV. REGISTRATION RIGHTS

            4.1. Piggyback Rights.

            (a) Subject to the Transfer restrictions set forth in Sections 3.1
and 3.2, if, at any time during the period commencing as of the end of the
Initial Share Holding Period and ending on the ten-year anniversary of the
Closing, the Company proposes to register any of the Shares under the Securities
Act (other than a registration on Form S-4 or S-8, or any successor or other
forms promulgated for similar purposes), whether or not for sale for its own
account (including pursuant to Section 4.2), it will, at each such time, give
prompt written notice to the Managing Registration Rights Holders of its
intention to do so and of the Registration Rights Holders' rights under this
Section 4.1. Upon the written request of any Managing Registration Rights Holder
made within 14 days after the receipt of any such notice (which request shall
specify the number of Registrable Securities intended to be disposed of by such
Managing Registration Rights Holder and all other Registration Rights Holders
who are Permitted Transferees of such Managing Registration Rights Holder), the
Company will use its reasonable best efforts to effect the registration under
the Securities Act of all Registrable Securities which each Managing
Registration Rights Holder has so requested to be registered; provided that (i)
if, at any time after giving written notice of its intention to register any
securities and prior to the effective date of the registration statement filed
in connection with such registration, the Company or any other holder of
securities that initiated such registration (an "Initiating Holder") shall
determine for any reason not to proceed with the proposed registration of the
securities to be sold by it, the Company or such Initiating Holder may, at its
election, give written notice of such determination to the Managing Registration
Rights Holders and, thereupon, the Company shall be relieved of its obligation
to register any Registrable Securities in connection with such registration, and
(ii) if such registration involves an underwritten offering, the Registration
Rights Holders of Registrable Securities requesting to be included in the
registration must sell their Registrable Securities to the underwriters selected
by the Company, on the same terms and conditions as apply to the Company or the
Initiating Holders, as the case may be, with, in the case of a combined primary
and secondary offering, such differences, including any with respect to
indemnification and liability insurance, as may be customary or appropriate in
combined primary and secondary offerings. If a registration requested pursuant
to this Section 4.1(a) involves an underwritten Public Offering, any
Registration Rights Holder requesting to be



                                       15


included in such registration may elect not to register all or any portion of
such securities in connection with such registration; provided that such
Registration Rights Holder gives written notice of such withdrawal to any of the
Managing Registration Rights Holders, and such Managing Registration Rights
Holder delivers such notice to the Company at least ten (10) days prior to the
effective date of the registration statement filed in connection with such
registration.

            (b) The Company will pay all Registration Expenses in connection
with each registration of Registrable Securities requested pursuant to this
Section 4.1.

            (c) If a registration pursuant to this Section 4.1 involves an
underwritten offering and the managing underwriter advises the Company in
writing that, in its opinion, the number of Registrable Securities and other
securities requested to be included in such registration exceeds the number
which can be sold in such offering, so as to be reasonably likely to have an
adverse effect on the price, timing or distribution of the securities offered in
such offering, then the Company will include in such registration (i) first,
100% of the securities, if any, the Company proposes to sell for its own
account, provided that the registration of Shares contemplated by this Section
4.1 was initiated by the Company with respect to Shares intended to be
registered for sale for its own account, (ii) second, the number of Registrable
Securities requested to be included by the Majority Stockholder, if any, in such
registration which in the opinion of the managing underwriter, can be sold,
without having the adverse effect referred to above, and (iii) third, such
number of Registrable Securities requested to be included in such registration
by the other Registration Rights Holders which, in the opinion of such managing
underwriter, can be sold without having the adverse effect referred to above,
which number of Registrable Securities shall be allocated pro rata among all
such requesting holders of Registrable Securities, based on the relative number
of Registrable Securities then held by each such requesting holder of
Registrable Securities. In the event that (A) the Company did not initiate the
registration of securities intended to be registered for sale for its own
account and (B) the number of Registrable Securities and Shares of other
holders, in each case entitled to registration rights with respect to such
Shares, requested to be included in such registration is less than the number
which, in the opinion of the managing underwriter, can be sold, the Company may
include in such registration securities it proposes to sell for its own account
up to the number of securities that, in the opinion of the underwriter, can be
sold.

            4.2. Demand Registration.

            (a) Subject to the Transfer restrictions set forth in Sections 3.1
and 3.2, at any time during the period commencing as of the end of the Initial
Share Holding Period and ending on the ten-year anniversary of the Closing Date,
and, in the case of Silver Lake, TPG or August, after the Majority Stockholder
has distributed Subject Shares pursuant to Section 3.3, upon the written request
of any of the Majority Stockholder, TPG, Silver Lake or August (a "Demand
Party") requesting that the Company effect the registration under the Securities
Act of all or part of such Demand Party's Registrable Securities (a "Demand
Registration") and specifying the amount and intended method of disposition
thereof, the Company will promptly give written notice of such requested
registration to the Managing Registration Rights Holders (each of such Managing
Registration Rights Holders will notify each of the Permitted Transferees of
such Managing Registration Rights Holder that holds Registrable Securities) and
other holders of securities entitled to notice of such registration and
thereupon will, as expeditiously as


                                       16


reasonably possible, file a registration statement to effect the registration
under the Securities Act of:

                  (i) such Registrable Securities which the Company has been so
      requested to register by the Demand Party;

                  (ii) the Registrable Securities of other Registration Rights
      Holders which the Company has been requested to register by written
      request given to the Company by the Managing Registration Rights Holders
      within 14 days after the giving of such written notice by the Company to
      the Managing Registration Rights Holders (which request shall specify the
      amount and intended method of disposition of such securities);

all to the extent necessary to permit the disposition (in accordance with the
intended method thereof as aforesaid) of the Registrable Securities and such
other securities so to be registered; provided that the Company shall not be
required to effect the registration of Registrable Securities (A) at the request
of the Majority Stockholder on more than two (2) occasions, (B) at the request
of Silver Lake on more than two (2) occasions, (C) at the request of TPG on more
than two (2) occasions, or (D) at the request of August on more than one (1)
occasion; provided further, that the Company shall not be obligated to file a
registration statement relating to any registration request under this Section
4.2(a):

                  (1) within a period of 180 days after the effective date of
            any other registration statement relating to any registration
            request under this Section 4.2 or relating to any registration
            statement referred to under Section 4.1 or Section 4.3 hereof; or

                  (2) if (x) the requested registration pursuant to this Section
            4.2 involves a registration on a form other than a Form S-3 (or any
            successor to Form S-3), and (y) the Registration Rights Holders,
            together with the holders of any other securities of the Company
            entitled to inclusion in such registration, propose to sell
            Registrable Securities and such other securities (if any) at an
            aggregate price to the public of less than $20,000,000; or

                  (3) if (x) the requested registration pursuant to this Section
            4.2 involves an underwritten offering, and (y) the Registration
            Rights Holders, together with the holders of any other securities of
            the Company entitled to inclusion in such registration, propose to
            sell Registrable Securities and such other securities (if any) at an
            aggregate price to the public of less than $20,000,000; or

                  (4) if the Registration Rights Holders, together with the
            holders of any other securities of the Company entitled to inclusion
            in such registration, propose to sell Registrable Securities and
            such other securities (if any) at an aggregate price to the public
            of less than $5,000,000; or

                  (5) if with respect thereto the managing underwriter, the SEC,
            the Securities Act, or the form on which the registration statement
            is to be filed, would require the conduct of a Special Audit, in
            which case the filing may be delayed until the completion of such
            Special Audit (and the Company shall, upon


                                       17


            request of TPG, Silver Lake or August, as the case may be, use its
            commercially reasonable efforts to cause such Special Audit to be
            completed expeditiously and without unreasonable delay); or

                  (6) if the Company is in possession of material non-public
            information and the Board determines in good faith that disclosure
            of such information would not be in the best interests of the
            Company and its stockholders, in which case the filing of the
            registration statement may be delayed until the earlier of the
            second Business Day after such conditions shall have ceased to exist
            and the 120th day after receipt by the Company of the written
            request from the Majority Stockholder, TPG, Silver Lake or August,
            as the case may be, to register Registrable Securities under this
            Section 4.2(a); or

                  (7) if the Closing Shelf Registration Statement is then
            effective and available for the sale and distribution of such Demand
            Party's Registrable Securities in the manner specified in such
            request.

            (b) The Company will pay all Registration Expenses in connection
with each registration of Registrable Securities requested pursuant to this
Section 4.2.

            (c) A registration requested pursuant to this Article IV will not be
deemed to have been effected unless the registration statement filed by the
Company with the SEC in connection with such registration has been declared
effective by the SEC; provided that, if, within 100 days after it has become
effective, the offering of Registrable Securities pursuant to such registration
is interfered with by any stop order, injunction or other order or requirement
of the SEC or other governmental agency or court, then such registration will be
deemed not to have been effected.

            (d) If a requested registration pursuant to this Section 4.2
involves an underwritten offering and regardless of whether the Company is
registering any securities therein, the Board shall have the right to select the
investment banker or bankers and managers to administer the offering, including
the lead managing underwriter.

            (e) If a requested registration pursuant to this Section 4.2
involves an underwritten offering and the managing underwriter advises the
Company in writing that, in its opinion, the number of Registrable Securities
requested to be included in such registration exceeds the number which can be
sold in such offering, so as to be reasonably likely to have an adverse effect
on the price, timing or distribution of the securities offered in such offering,
then the Company will include in such registration such number of Registrable
Securities requested to be included in such registration which, in the opinion
of such managing underwriter, can be sold without having the adverse effect
referred to above, which number shall be allocated pro rata among all such
holders of Registrable Securities requesting to be included in such registration
based on the relative number of Registrable Securities then held by each such
holder of Registrable Securities. In the event that the number of Registrable
Securities and Shares of other holders, in each case entitled to registration
rights with respect to such Shares requested to be included in such registration
is less than the number which, in the opinion of the managing underwriter, can
be sold, the Company may include in such registration securities it proposes to


                                       18


sell for its own account up to the number of securities that, in the opinion of
the underwriter, can be sold.

            4.3. Form S-3 Registration.

      Subject to the Transfer restrictions set forth in Sections 3.1 and 3.2,
if, at any time during the period commencing as of the end of the Initial Share
Holding Period and ending on the ten-year anniversary of the Closing Date, the
Company receives from the Majority Stockholder, or from Silver Lake, TPG or
August after the Majority Stockholder has distributed Subject Shares pursuant to
Section 3.3 (each an "S-3 Initiating Party"), a written request or requests that
the Company effect a registration on Form S-3 (or any successor to Form S-3) and
any related qualification or compliance with respect to all or a part of the
Registrable Securities owned by such S-3 Initiating Party or S-3 Initiating
Parties, the Company will:

            (a) promptly give notice of the proposed registration, and any
related qualification or compliance, to the Managing Registration Rights Holders
(each of which Managing Registration Rights Holder will notify each of the
Permitted Transferees of such Managing Registration Rights Holder that holds
Registrable Securities); and

            (b) as expeditiously as reasonably practical, effect such
registration and all such qualifications and compliances as may be so requested
and as would permit or facilitate the sale and distribution of all or such
portion of such S-3 Initiating Party's or S-3 Initiating Parties' Registrable
Securities as are specified in such request, together with all or such portion
of the Registrable Securities of any other Registration Rights Holder or
Registration Rights Holders joining in such request as are specified in a
written request delivered to the Company by the Managing Registration Rights
Holders within fourteen (14) days after receipt of such written notice from the
Company; provided that the Company shall not be obligated to effect any such
registration, qualification or compliance pursuant to this Section 4.3:

                  (i) if Form S-3 (or any successor form) is not available for
      such offering by the Registration Rights Holders; or

                  (ii) if (x) the requested registration pursuant to this
      Section 4.3 involves an underwritten offering, and (y) the Registration
      Rights Holders, together with the holders of any other securities of the
      Company entitled to inclusion in such registration, propose to sell
      Registrable Securities and such other securities (if any) at an aggregate
      price to the public of less than $20,000,000; or

                  (iii) if the Registration Rights Holders, together with the
      holders of any other securities of the Company entitled to inclusion in
      such registration, propose to sell Registrable Securities and such other
      securities (if any) at an aggregate price to the public of less than
      $5,000,000; or

                  (iv) if the Company is in possession of material non-public
      information and the Board determines in good faith that disclosure of such
      information would not be in the best interests of the Company and its
      stockholders, in which case the filing of the registration statement may
      be delayed until the earlier of the second Business Day after such
      conditions shall have ceased to exist and the 120th day after receipt by
      the Company


                                       19


      of the written request from the Majority Stockholder, TPG, Silver Lake or
      August, as the case may be, to register Registrable Securities under this
      Section 4.3(a); provided, that such right to delay a request shall be
      exercised by the Company not more than once in any twelve (12) month
      period; or

                  (v) if the Company has, within the twelve (12) month period
      preceding the date of such request, already effected two (2) registration
      statements for any of the Registration Rights Holders pursuant to this
      Section 4.3, Section 4.1 or Section 4.2; or

                  (vi) in any particular jurisdiction in which the Company would
      be required to qualify to do business or to execute a general consent to
      service of process in effecting such registration, qualification or
      compliance unless the Company is already subject to service in such
      jurisdiction and except as may be required by the Securities Act; or

                  (vii) if with respect thereto, the managing underwriter, the
      SEC, the Securities Act, or the form on which the registration statement
      is to be filed, would require the conduct of a Special Audit, in which
      case the Company shall have the right to defer the filing of the Form S-3
      registration statement until the completion of such Special Audit (and the
      Company shall, upon the request of the Majority Stockholder, TPG, Silver
      Lake or August, as the case may be, use its commercially reasonable
      efforts to cause such Special Audit to be completed expeditiously and
      without unreasonable delay); or

                  (viii) if the Closing Shelf Registration Statement is then
      effective and available for the sale and distribution of such Registration
      Rights Holder's or Registration Rights Holders' Registrable Securities in
      the manner specified in such request.

            (c) Subject to the foregoing, the Company shall file a Form S-3
registration statement covering the Registrable Securities and other securities
so requested to be registered as expeditiously as reasonably practical after
receipt of the request or requests of the Majority Stockholder, TPG, Silver Lake
or August, as the case may be. Registrations effected pursuant to this Section
4.3 shall not be counted as demands for registration or registrations effected
pursuant to Section 4.2.

            (d) If a requested registration pursuant to this Section 4.3
involves an underwritten offering and regardless of whether the Company is
registering any securities therein, the Board shall have the right to select the
investment banker or bankers and managers to administer the offering, including
the lead managing underwriter.

            (e) The Company will pay all Registration Expenses in connection
with each registration of Registrable Securities requested pursuant to this
Section 4.3.

            4.4. Registration Procedures.

      If and whenever the Company is required to file a registration statement
with respect to, or to use its reasonable best efforts to effect or cause the
registration of, any Registrable Securities under the Securities Act as provided
in this Agreement the Company will as expeditiously as reasonably possible:



                                       20


            (a) prepare and, in any event within 120 days after the end of the
period within which a request for registration may be given to the Company
pursuant to Section 4.2 or Section 4.3, file with the SEC a registration
statement on the appropriate form with respect to such Registrable Securities
and use its reasonable efforts to cause such registration statement to be
declared effective by the SEC; provided, however, that the Company may
discontinue any registration of securities as to which it is the initiating
party at any time prior to the effective date of the registration statement
relating thereto (and, in such event, the Company shall pay the Registration
Expenses incurred in connection therewith); provided further, that not less than
five (5) Business Days before filing a registration statement or prospectus, or
any amendments or supplements thereto, the Company will furnish to counsel for
the sellers of Registrable Securities covered by such registration statement
copies of all documents proposed to be filed;

            (b) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective for a period not
in excess of 100 days (unless such registration statement relates to an
underwritten Public Offering, in which event the registration statement shall
not be required to remain effective at the request of the Registration Rights
Holders for a period of in excess of 45 days) and to comply with the provisions
of the Securities Act and the Exchange Act with respect to the disposition of
all securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the seller or sellers
thereof set forth in such registration statement; provided that not less than
five (5) Business Days before filing a registration statement or prospectus, or
any amendments or supplements thereto, the Company will furnish to counsel for
the sellers of Registrable Securities covered by such registration statement
copies of all documents proposed to be filed;

            (c) furnish to each Managing Registration Rights Holders of each
seller of such Registrable Securities such number of copies of such registration
statement and of each amendment and supplement thereto (in each case including
all exhibits filed therewith, including any documents incorporated by
reference), such number of copies of the prospectus included in such
registration statement (including each preliminary prospectus and summary
prospectus), in conformity with the requirements of the Securities Act, and such
other documents as such seller may reasonably request (through a Managing
Registration Rights Holder) in order to facilitate the disposition of the
Registrable Securities by such seller;

            (d) use its reasonable efforts to register or qualify within the
United States such Registrable Securities covered by such registration in such
United States jurisdictions as each seller shall reasonably request, and do any
and all other acts and things which may be reasonably necessary or advisable to
enable such seller to consummate the disposition of the Registrable Securities
owned by such seller in such jurisdictions, except that the Company shall not
for any such purpose be required to qualify generally to do business as a
foreign corporation in any jurisdiction where, but for the requirements of this
subsection (d), it would not be obligated to be so qualified, to subject itself
to taxation in any such jurisdiction or to consent to general service of process
in any such jurisdiction;

            (e) use its reasonable best efforts to cause such Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental


                                       21


agencies or authorities within the United States as may be necessary to enable
the seller or sellers thereof to consummate the disposition of such Registrable
Securities;

            (f) notify each Managing Registration Rights Holder of each seller
of any such Registrable Securities covered by such registration statement, at
any time when a prospectus relating thereto is required to be delivered under
the Securities Act within the appropriate period mentioned in Section 4.4(b), of
the Company's becoming aware that the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing, and at the request of any such Managing Registration Rights
Holder, prepare and furnish to such Managing Registration Rights Holder a
reasonable number of copies of an amended or supplemental prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus shall not include 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 in the light of the circumstances
then existing;

            (g) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its security
holders, as soon as reasonably practicable (but not more than 15 months) after
the effective date of the registration statement, an earnings statement which
shall satisfy the provisions of Section 11(a) of the Securities Act;

            (h) (i) use its reasonable best efforts to list such Registrable
Securities on any securities exchange on which the Shares are then listed if
such Registrable Securities are not already so listed and if such listing is
then permitted under the rules of such exchange; and (ii) use its reasonable
efforts to provide a transfer agent and registrar for such Registrable
Securities covered by such registration statement not later than the effective
date of such registration statement;

            (i) enter into such customary agreements (including an underwriting
agreement in customary form), which may include indemnification provisions in
favor of underwriters and other Persons in addition to, or in substitution for
the indemnification provisions hereof, and take such other actions as sellers of
a majority of shares of such Registrable Securities included in such
registration statement or the underwriters, if any, reasonably request in order
to expedite or facilitate the disposition of such Registrable Securities;

            (j) obtain a "cold comfort" letter or letters from the Company's
independent public auditors in customary form and covering matters of the type
customarily covered by "cold comfort" letters as the seller or sellers of a
majority of shares of such Registrable Securities included in such registration
statement shall reasonably request;

            (k) make available for inspection by any Managing Registration
Rights Holder of any seller of such Registrable Securities covered by such
registration statement, by any underwriter participating in any disposition to
be effected pursuant to such registration statement and by any attorney,
accountant or other agent retained by any such seller or any such underwriter,
all pertinent financial and other records, pertinent corporate documents and


                                       22


properties of the Company, and cause all of the Company's officers, Directors
and employees to supply all information reasonably requested by any such
Managing Registration Rights Holder, underwriter, attorney, accountant or agent
in connection with such registration statement;

            (l) notify counsel for the holders of Registrable Securities
included in such registration statement and the managing underwriter or agent,
immediately, and confirm the notice in writing (i) when the registration
statement, or any post-effective amendment to the registration statement, shall
have been declared effective by the SEC, or any supplement to the prospectus or
any amendment to the prospectus shall have been filed, (ii) of the receipt of
any comments from the SEC, (iii) of any request of the SEC to amend the
registration statement or amend or supplement the prospectus or for additional
information, and (iv) of the issuance by the SEC of any stop order suspending
the effectiveness of the registration statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the registration statement for offering or sale in any
jurisdiction, or of the institution or threatening of any proceedings for any of
such purposes;

            (m) use its reasonable best efforts to prevent the issuance of any
stop order suspending the effectiveness of the registration statement or of any
order preventing or suspending the use of any preliminary prospectus and, if any
such order is issued, to obtain the withdrawal of any such order at the earliest
possible moment;

            (n) if requested by the managing underwriter or agent or any
Managing Registration Rights Holder of any holder of Registrable Securities
covered by the registration statement, promptly incorporate in a prospectus
supplement or post-effective amendment such information as the managing
underwriter or agent or such Managing Registration Rights Holder reasonably
requests to be included therein, including, with respect to the number of
Registrable Securities being sold by such Managing Registration Rights Holder or
its Permitted Transferees to such underwriter or agent, the purchase price being
paid therefor by such underwriter or agent and with respect to any other terms
of the underwritten offering of the Registrable Securities to be sold in such
offering (unless the Company, after consultation with counsel, reasonably
concludes that such information would be materially misleading to prospective
buyers in the Public Offering); and make all required filings of such prospectus
supplement or post-effective amendment as soon as practicable after being
notified of the matters incorporated in such prospectus supplement or
post-effective amendment;

            (o) cooperate with the Managing Registration Rights Holders of the
holders of Registrable Securities covered by the registration statement and the
managing underwriter or agent, if any, to facilitate the timely preparation and
delivery of certificates (not bearing any restrictive legends) representing
securities to be sold under the registration statement, and enable such
securities to be in such denominations and registered in such names as the
managing underwriter or agent, if any, or the Managing Registration Rights
Holders may request;

            (p) if requested by the applicable parties, obtain for delivery to
the Managing Registration Rights Holders of the holders of Registrable
Securities being registered and to the underwriter or agent an opinion or
opinions from counsel for the Company in customary form and in form, substance
and scope reasonably satisfactory to such Managing Registration Rights Holders,
underwriters or agents and their counsel;



                                       23


            (q) cooperate with each Managing Registration Rights Holder of each
seller of Registrable Securities and each underwriter or agent participating in
the disposition of such Registrable Securities and their respective counsel in
connection with any filings required to be made with the NASD; and

            (r) with respect to underwritten Public Offerings under Section 4.2,
act in good faith to facilitate, cooperate with and participate in customary
selling efforts related thereto and provide reasonable assistance in marketing
activities with respect to the distribution of such Public Offering, which may
include, in the case of an underwritten Public Offering which proposes to sell
Registrable Securities to the public at a price of $100 million or more, causing
the senior executives of the Company (subject to the reasonable availability of
such executives) to participate in customary "road show" presentations as
reasonably requested by the managing underwriter in such Public Offering.

            4.5. Other Registration-Related Matters.

            (a) The Company may require any Person that is selling Subject
Shares in a Public Offering pursuant to Sections 4.1, 4.2 or 4.3 to furnish to
the Company in writing such information regarding such Person and pertinent to
the disclosure requirements relating to the registration and the distribution of
the Registrable Securities which are included in such Public Offering as the
Company may from time to time reasonably request in writing.

            (b) Each Registration Rights Holder agrees, severally and not
jointly, that, upon receipt of any notice from the Company of the happening of
any event of the kind described in Section 4.4(f), it will forthwith discontinue
disposition of Registrable Securities pursuant to the registration statement
covering such Registrable Securities until its receipt of the copies of the
amended or supplemented prospectus contemplated by Section 4.4(f) and, if so
directed by the Company (through its Managing Registration Rights Holder), each
Registration Rights Holder will deliver to the Company (through its Managing
Registration Rights Holder) (at the Company's expense) all copies, other than
permanent file copies then in their possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such notice. In the
event the Company gives any such notice, the period for which the Company will
be required to keep the registration statement effective will be extended by the
number of days during the period from and including the date of the giving of
such notice pursuant to Section 4.4(f) to and including the date when each
seller of Registrable Securities covered by such registration statement has
received the copies of the supplemented or amended prospectus contemplated by
Section 4.4(f).

            (c) To the extent not already subject to the restrictions in Article
III of this Agreement, each holder of Registrable Securities will, in connection
with an underwritten Public Offering of the Company's securities, upon the
request of the Company or of the underwriters managing any underwritten offering
of the Company's securities, agree in writing not to effect any sale,
disposition or distribution of Registrable Securities (other than those included
in the Public Offering) without the prior written consent of the managing
underwriter for such period of time commencing 30 days before and ending 90 days
(or such earlier date as the managing underwriter shall agree) after the
effective date of such registration; provided that (i) such registration was
effected pursuant to Sections 4.2 or 4.3 hereof, or (ii) such holder of
Registrable


                                       24


Securities was offered the opportunity pursuant to Section 4.1 to have such
holder's Registrable Securities registered by the Company in such registration
and that the Company has not limited the number of such holder's Registrable
Shares to be included in such registration pursuant to Section 4.1(c) hereof. No
Stockholder shall be released from such lock-up period by the managing
underwriter unless all of the Stockholders are so released.

            4.6. Indemnification.

            (a) In the event of any registration of any securities of the
Company under the Securities Act pursuant to Sections 4.1, 4.2 or 4.3, the
Company hereby indemnifies and agrees to hold harmless, to the extent permitted
by law, the sellers of any Registrable Securities covered by such registration
statement (each a "Holder"), each Affiliate of such Holder and their respective
directors and officers, members or general and limited partners (and the
directors, officers, employees, affiliates and Controlling Persons of any of the
foregoing), each other Person who participates as an underwriter in the offering
or sale of such securities and each other Person, if any, who Controls such
Holder or any such underwriter within the meaning of the Securities Act
(collectively, the "Indemnified Parties"), against any and all losses, claims,
damages or liabilities, joint or several, and expenses to which such Indemnified
Party may become subject under the Securities Act, common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof, whether or not such Indemnified Party is a party
thereto) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such securities were registered under the Securities Act, any
preliminary, final or summary prospectus contained therein, or any amendment or
supplement thereto, or (ii) any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in light of the circumstances when they were made, and
the Company will reimburse such Indemnified Party for any legal or other
expenses reasonably incurred by it in connection with investigating or defending
any such loss, claim, liability, action or proceeding; provided that the Company
will not be liable to any Indemnified Party in any such case to the extent that
any such loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, in any such preliminary, final or summary prospectus, or
any amendment or supplement thereto in reliance upon and in conformity with
written information with respect to such Indemnified Party furnished to the
Company by such Indemnified Party expressly for use in the preparation thereof,
nor shall the Company be liable to any Indemnified Party for any amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company (which consent will
not be unreasonably withheld or delayed). Such indemnity will remain in full
force and effect regardless of any investigation made by or on behalf of such
Holder or any Indemnified Party and will survive the Transfer of such securities
by such Holder.

            (b) The Company may require, as a condition to including any
Registrable Securities in any registration statement filed in accordance with
Sections 4.1, 4.2 or 4.3 that the Company shall have received an undertaking
reasonably satisfactory to it from the Holder of such Registrable Securities or
any prospective underwriter to indemnify and hold harmless (in the same manner
and to the same extent as set forth in Section 4.6(a)) the Company, all other
Holders or any prospective underwriter, as the case may be, and any of their
respective


                                       25


Affiliates, directors, officers and Controlling Persons, with respect to any
untrue statement in or omission from such registration statement, any
preliminary, final or summary prospectus contained therein, or any amendment or
supplement, if such untrue statement or omission was made in reliance upon and
in conformity with written information with respect to such Holder or
underwriter furnished to the Company by such Holder or underwriter expressly for
use in the preparation of such registration statement, preliminary, final or
summary prospectus or amendment or supplement, or a document incorporated by
reference into any of the foregoing. Such indemnity will remain in full force
and effect regardless of any investigation made by or on behalf of the Company
or any of the Holders, or any of their respective affiliates, directors,
officers or Controlling Persons and will survive the Transfer of such securities
by such Holder. In no event shall the liability of any selling Holder of
Registrable Securities hereunder be greater in amount than the dollar amount of
the net proceeds actually received by such Holder upon the sale of the
Registrable Securities giving rise to such indemnification obligation.

            (c) Promptly after receipt by an Indemnified Party hereunder of
written notice of the commencement of any action or proceeding with respect to
which a claim for indemnification may be made pursuant to this Section 4.6, such
Indemnified Party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of
such action; provided that the failure of the Indemnified Party to give notice
as provided herein will not relieve the indemnifying party of its obligations
under Section 4.6(a) or 4.6(b), except to the extent that the indemnifying party
is actually prejudiced by such failure to give notice. In case any such action
is brought against an Indemnified Party, unless in such Indemnified Party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, the indemnifying party
will be entitled to participate in and to assume the defense thereof, jointly
with any other indemnifying party similarly notified to the extent that it may
wish, with counsel reasonably satisfactory to such Indemnified Party, and after
notice from the indemnifying party to such Indemnified Party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
Indemnified Party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof other than reasonable costs of
investigation. If, in such Indemnified Party's reasonable judgment, having
common counsel would result in a conflict of interest between the interests of
such indemnified and indemnifying parties, then such Indemnified Party may
employ separate counsel reasonably acceptable to the indemnifying party to
represent or defend such Indemnified Party in such action, it being understood,
however, that the indemnifying party will not be liable for the reasonable fees
and expenses of more than one separate firm of attorneys at any time for all
such Indemnified Parties (and not more than one separate firm of local counsel
at any time for all such Indemnified Parties) in such action. No indemnifying
party will consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
of such claim or litigation.

            (d) If the indemnification provided for hereunder from the
indemnifying party is unavailable to an Indemnified Party hereunder in respect
of any losses, claims, damages, liabilities or expenses referred to herein, then
the indemnifying party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages, liabilities or expenses in such proportion as
is appropriate to reflect the relative fault of the indemnifying party and
Indemnified Parties in


                                       26


connection with the actions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of such indemnifying party and Indemnified Parties shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact, has been made by, or relates to
information supplied by, such indemnifying party or Indemnified Parties, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action. The amount paid or payable by a party under this
Section 4.6(d) as a result of the losses, claims, damages, liabilities and
expenses referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such party in connection with any investigation
or proceeding. In no event shall the liability of any selling Holder of
Registrable Securities hereunder be greater in amount than the dollar amount of
the net proceeds actually received by such Holder upon the sale of the
Registrable Securities giving rise to such contribution obligation.

            The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 4.6(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.

            (e) Indemnification similar to that specified in this Section 4.6
(with appropriate modifications) shall be given by the Company and each seller
of Registrable Securities with respect to any required registration or other
qualification of securities under any law or with any governmental entity other
than as required by the Securities Act.

            (f) The obligations of the parties under this Section 4.6 will be in
addition to any liability which any party may otherwise have to any other party.

            4.7. S-3 Eligibility.

      The Company currently meets the requirements for registration on Form S-3
under the Securities Act, and the Company shall take all reasonable efforts to
ensure that the Company meets these requirements on the initial filing date and
effective date of the registration statements filed pursuant to Section 4.3 of
this Agreement.

            4.8. Reports under the Exchange Act.

      With a view to making available to the Registration Rights Holders the
benefits of Rule 144 under the Securities Act and any other rule or regulation
of the SEC that may at any time permit a Registration Rights Holders to sell
Registrable Securities to the public without registration, the Company agrees
to:

            (a) make and keep public information available, as those terms are
understood and defined in Rule 144, at all times;



                                       27


            (b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and

            (c) furnish to any Managing Registration Rights Holder, so long as
the Managing Registration Rights Holder or its Permitted Transferees owns any
Registrable Securities, upon request (i) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed by
the Company, and (ii) such other information as may be reasonably requested in
availing any Registration Rights Holder of any rule or regulation of the SEC
which permits the selling of any such securities without registration.

            4.9. Assignment of Registration Rights.

      The rights to cause the Company to register Registrable Securities
pursuant to this Agreement may not be assigned by any Registration Rights
Holder; provided, that if the Company is not eligible to use Form S-3 and the
Majority Stockholder has exhausted its right to request a Demand Registration
under Section 4.2(a)(A), then any of Silver Lake, TPG and August shall have the
right to assign its right to request one Demand Registration under Section
4.2(a)(B), (C) or (D), as the case may be, to the Majority Stockholder.

            4.10. Closing Shelf Registration Statement

            (a) In the event that any of the Shares issued in the Mergers are
determined to have been issued pursuant to a private placement exemption from
registration pursuant to Section 4(2) of, and/or Rule 506, under the Securities
Act, then as promptly as practicable after such event and in compliance with
applicable securities laws, the Company will, with respect to such Shares issued
pursuant to the Mergers, prepare and file a registration statement on Form S-3
(the "Closing Shelf Registration Statement") with the SEC pursuant to Rule 415
of the Securities Act. The Company shall use its commercially reasonable efforts
to cause the Closing Shelf Registration Statement to become effective no later
than the last day of the Initial Share Holding Period. Upon effectiveness, the
Company shall use its best efforts to keep the registration statement
continuously in effect for two calendar years thereafter subject to extension
for any suspension of sales as described below.

            (b) The Company shall be entitled, from time to time, by providing
written notice to the Registration Rights Holders who elected to participate in
the Closing Shelf Registration Statement, to require such Registration Rights
Holders to suspend the use of such prospectus for sales of Registrable
Securities under the Closing Shelf Registration Statement for a reasonable
period of time (a "Suspension Period") if the Company shall determine that is in
possession of material non-public information and the Board determines in good
faith that disclosure of such information would not be in the best interests of
the Company and its stockholders; provided, that all Suspension Periods that
occur (i) during any ninety (90) day period shall not exceed an aggregate of
thirty (30) days and (ii) during any one-year period shall not exceed an
aggregate of seventy (70) days. Immediately upon receipt of such notice, the
Registration Rights Holders covered by the Closing Shelf Registration Statement
shall suspend the use of the prospectus until the requisite changes to the
prospectus have been made. Any Suspension Period shall terminate at such time as
the public disclosure of such information is made, subject to the maximums set
forth in the first sentence hereof. After the expiration of any


                                       28


Suspension Period and without any further request from a Registration Rights
Holder, the Company shall as promptly as reasonably practical prepare a
post-effective amendment or supplement to the Closing Shelf Registration
Statement or the prospectus, or any document incorporated therein by reference,
or file any other required document so that, as thereafter delivered to
purchasers of the Registrable Securities included therein, the prospectus will
not include any untrue statement of material fact or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.

                        ARTICLE V. BOARD REPRESENTATION

            5.1. Board Representation.

            (a) Effective as of the Closing Date, subject to applicable law, the
Majority Stockholder may designate one Person to be proposed by the Board to the
Company's stockholders to be elected a Director; provided that such designee
must be reasonably satisfactory to the Company (such determination to be made by
the Board after receiving a recommendation from the nominating committee of the
Company; provided, that for the avoidance of doubt, any Person who is a managing
director of Silver Lake Partners, L.P., a Delaware limited partnership, as of
the date hereof, shall be deemed to be satisfactory to the Company and the Board
for such purposes unless (i) any such managing director does not meet the
criteria for directors set forth in the Nasdaq National Market rules, any
corporate governance guidelines or policies adopted by the Board or any
committee thereof, or any other applicable law and regulation, or (ii) the
Company's nominating committee in good faith makes a determination that the
appointment of any such managing director to the Board would be materially
disadvantageous to the Company (the "Stockholder Representative").

            (b) The Company shall take all necessary action, subject to
applicable law, to cause the size of the Board to be increased to ten (10)
members from eight (8) members, effective as of the Closing Date, and the
Company shall use reasonable best efforts, subject to applicable law, to cause
the vacancies to be filled by (i) David J. Roux (or such other individual as may
be designated in writing by the Majority Stockholder at least forty-five (45)
days prior to the filling of such vacancy and in accordance with Section 5.1(a)
hereof) to be the initial Stockholder Representative, and (ii) one (1)
individual who qualifies as an "independent" director of Borg pursuant to
proposed and applicable laws and regulations. The Company agrees to consult with
the Majority Stockholder in good faith before making any other changes to the
size of the Board.

            (c) At the expiration of any Stockholder Representative's designated
term as director, the Board will recommend a vote by the Company's stockholders
in favor of the reelection of such Stockholder Representative (or the election
of any replacement designated by the Majority Stockholder in accordance with
Section 5.1(a) hereof). If any Stockholder Representative or any successor
thereto ceases to be a director of the Company at any time prior to the
expiration of such Stockholder Representative's designated term as director,
whether as a result of death, resignation, retirement, disqualification, removal
from office or other cause, the Board will appoint a Stockholder Representative
to fill the vacancy so created and the Board will


                                       29


recommend a vote by the Company's stockholders in favor of the ratification of
the appointment of such Person.

            (d) Notwithstanding anything in this Agreement to the contrary, the
Board and all of the committees of the Board will operate in such a way to
permit the Company to comply with applicable law and maintain its listings on
the Nasdaq National Market and Euronext, as applicable.

            (e) The Majority Stockholder shall have the right to assign its
rights under this Article V to Silver Lake in the event of a distribution of the
Subject Shares pursuant to Section 3.3 hereof.

                   ARTICLE VI. REPRESENTATIONS AND WARRANTIES

            6.1. Representations and Warranties of Stockholders.

      Each Stockholder hereby represents and warrants, severally and not
jointly, to the Company as follows:

            (a) such Stockholder has the legal capacity to execute and deliver
this Agreement and to consummate the transactions contemplated hereby;

            (b) in the case of any Stockholder that is a corporation, limited
partnership or limited liability company, such Stockholder is an entity duly
organized and validly existing under the laws of the jurisdiction in which it is
incorporated or constituted, and each such Stockholder has all requisite power
and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby, and has taken all necessary corporate action
to authorize the execution, delivery and performance of this Agreement;

            (c) this Agreement has been validly executed and delivered by such
Stockholder and constitutes the legal, valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with its terms,
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of
creditors' rights generally, and (ii) the availability of the remedy of specific
performance or injunctive or other forms of equitable relief may be subject to
equitable defenses and would be subject to the discretion of the court before
which any proceeding therefor may be brought;

            (d) neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will result in a violation
of, or a default under, or conflict with, any contract, trust, commitment,
agreement, understanding, arrangement or restriction of any kind to which such
Stockholder is a party or by which such Stockholder's assets are bound. The
consummation of the transactions contemplated hereby will not violate, or
require any consent, approval, or notice under, any provision of any judgment,
order, decree, statute, law, rule or regulation applicable to such Stockholder;
and



                                       30


            (e) such Stockholder acknowledges that the issuance of the Subject
Shares is expected to be effected pursuant to a registration statement on Form
S-4, and the resale of the Subject Shares may be subject to the restrictions set
forth in Rule 145 under the Securities Act unless such Subject Shares are
otherwise transferred pursuant to an effective registration statement under the
Securities Act or an appropriate exemption from registration.

            6.2. Representations and Warranties of Company.

      The Company hereby represents and warrants to the Stockholders as follows:

            (a) the Company is a societe anonyme duly organized and validly
existing under the laws of France and has all requisite corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby, and has taken all necessary corporate action
to authorize the execution, delivery and performance of this Agreement;

            (b) this Agreement has been duly authorized, executed and delivered
by the Company, and constitutes the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except
(i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting enforcement of creditors' rights
generally and (ii) the availability of the remedy of specific performance or
injunctive or other forms of equitable relief may be subject to equitable
defenses and would be subject to the discretion of the court before which any
proceeding therefor may be brought; and

            (c) neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will result in a violation
of, or a default under, or conflict with, any contract, trust, commitment,
agreement, understanding, arrangement or restriction of any kind to which the
Company is a party or by which the Company's assets are bound. The consummation
of the transactions contemplated hereby will not violate, or require any
consent, approval, or notice under, any provision of any judgment, order,
decree, statute, law, rule or regulation applicable to the Company.

                           ARTICLE VII. MISCELLANEOUS

            7.1. Effective Date.

      This Agreement shall become effective upon consummation of the Mergers as
contemplated by the Merger Agreement and prior to such time shall have no force
or effect. If, the Merger Agreement is terminated prior to the Closing Date,
this Agreement shall terminate without any further action of the parties hereto
and no party shall have any liability to the other with the respect to the
provisions contained herein.

            7.2. Termination.

      All rights, remedies, obligations and liabilities of any party under (i)
Articles II, III and V of this Agreement shall terminate automatically at such
time the Stockholders collectively


                                       31


Beneficially Own less than 10% of the then-outstanding Shares, and (ii) Article
IV of this Agreement shall terminate on the earlier of (x) the tenth-year
anniversary of the Closing Date, or (y) such time that all Registrable
Securities held by the Registration Rights Holders cease to be Registrable
Securities; provided, however, that Section 4.6 hereof shall survive any
termination of this Agreement.

            7.3. Notices.

      All notices, consents, requests, claims, demands and other communications
hereunder shall be in writing and shall be given or made (and shall be deemed to
have been duly given or made upon receipt) by delivery in person, by courier
service, by cable, by telecopy, by telegram, by telex or registered or certified
mail (postage prepaid, return receipt requested) as follows (or at such other
address for a party as shall be specified in a notice given in accordance with
this Section 7.3):

            (a) if to the Company:

            Business Objects, S.A.
            c/o Business Objects Americas, Inc.
            3030 Orchard Parkway
            San Jose, CA  95134
            Attention: General Counsel
            Telecopy:  (408) 953-6001

            with a copy to:

            Skadden, Arps, Slate, Meagher & Flom LLP
            525 University Avenue
            Palo Alto, CA 94301
            Attention: Marc Packer, Esq.
                       Kenton J. King, Esq.
            Telecopy:  (650) 470-4570

            (b) if to Silver Lake:

            Silver Lake Partners, L.P.
            2725 Sand Hill Road
            Suite 150
            Menlo Park, CA  94025
            Attention: David Roux
            Telecopy:  (650) 233-8125



                                       32


            with a copy to:

            Simpson Thacher & Bartlett
            3330 Hillview Avenue
            Palo Alto, CA  94304
            Attention: Richard Capelouto, Esq.
                       Kirsten Jensen, Esq.
            Telecopy:  (650) 251-5002

            (c) if to TPG:

            SAC Investments, L.P.
            c/o Texas Pacific Group
            301 Commerce Street
            Suite 3300
            Fort Worth, TX  76102
            Attention: Richard A. Ekleberry
            Telecopy:  (817) 871-4080

            with a copy to:

            Cleary, Gottlieb, Steen & Hamilton
            One Liberty Plaza
            New York, NY  10006
            Attention: Paul J. Shim, Esq.
            Telecopy:  (212) 225-3999

            (d) if to August:

            August Capital
            2480 Sand Hill Road
            Suite 101
            Menlo Park, CA  94025
            Attention: Mark Wilson
            Telecopy:  (650) 234-9910

            with a copy to:

            Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP
            155 Constitution Drive
            Menlo Park, CA 94025
            Attention: Steven R. Franklin, Esq.
            Telecopy:  (650) 321-2800

            (e) if to J.P. Morgan:



                                       33


            J.P. Morgan Partners, L.L.C.
            50 California Street
            29th Floor
            San Francisco, CA  94111
            Attention: Shahan Soghikian
            Telecopy:  (415) 591-1205

            with copies to:

            J.P. Morgan Partners, L.L.C.
            Official Notices Clerk
            1221 Avenue of the Americas
            New York, NY  10020
            Telecopy:  (212) 899-3401

            -and-

            Latham & Watkins
            135 Commonwealth Drive
            Menlo Park, CA  94025
            Attention: Anthony J. Richmond, Esq.
            Telecopy:  (650) 463-2600

            (f) if to GS:

            GS Capital Partners III, L.P.
            85 Broad Street, 10th Floor
            New York, NY 10004
            Attention: Anne Musella
            Telecopy: (212) 357-5505

            with a copy to:

            Sullivan & Cromwell
            1870 Embarcadero Road
            Palo Alto, CA 94303
            Attention: Matthew G. Hurd, Esq.
            Telecopy:  (650) 461-5700

            (g) if to Staenberg:

            Staenberg Venture Partners
            2000 First Avenue, Suite 1001
            Seattle, WA  98121
            Attention: John Chase
            Telecopy:  (206) 770-0117



                                       34


            with a copy to:

            Dorsey & Whitney LLP
            U.S. Bank Centre
            1420 Fifth Avenue, Suite 3400
            Seattle, WA 98101
            Attention:  Randall L. Price
            Telecopy:  (206) 903-8820

            (h) if to Integral:

            Integral Capital Partners
            3000 Sand Hill Road
            Building 3, Suite 240
            Menlo Park, CA  94025
            Attention: Pamela Hagenah
            Telecopy:  650-233-0366

            (i) if to Majority Stockholder:

            New SAC

            c/o Silver Lake Partners, L.P.
            2725 Sand Hill Road
            Building C, Suite 150
            Menlo Park, CA  94025
            Attention: David Roux
            Telecopy:  (650) 233-8125

            with copies to:

            Simpson Thacher & Bartlett
            3330 Hillview Avenue
            Palo Alto, CA 94304
            Attention: Richard Capelouto, Esq.
                       Kirsten Jensen, Esq.
            Telecopy:  (650) 251-5002

            -and-

            Cleary, Gottlieb, Steen & Hamilton
            One Liberty Plaza
            New York, NY  10006
            Attention: Paul J. Shim, Esq.
            Telecopy:  (212) 225-3999



                                       35


            7.4. Further Assurances.

      The parties hereto will sign such further documents, cause such meetings
to be held, resolutions passed, exercise their votes and do and perform and
cause to be done such further acts and things as may be necessary in order to
give full effect to this Agreement and every provision hereof.

            7.5. Assignment.

      This Agreement will inure to the benefit of and be binding on the parties
hereto and their respective successors and permitted assigns. Except as
specifically provided herein, this Agreement may not be assigned by any party
hereto without the express prior written consent of the other parties, and any
attempted assignment, without such consents, will be null and void.

            7.6. Amendment; Waiver.

      This Agreement may be amended, supplemented or otherwise modified only by
a written instrument executed by the parties hereto. No waiver by any party of
any of the provisions hereof will be effective unless explicitly set forth in
writing and executed by the party so waiving. Except as provided in the
preceding sentence, no action taken pursuant to this Agreement, including
without limitation, any investigation by or on behalf of any party, will be
deemed to constitute a waiver by the party taking such action of compliance with
any covenants or agreements contained herein. The waiver by any party hereto of
a breach of any provision of this Agreement will not operate or be construed as
a waiver of any subsequent breach.

            7.7. Third Parties.

      Except as otherwise set forth herein, this Agreement does not create any
rights, claims or benefits inuring to any Person that is not a party hereto nor
create or establish any third party beneficiary hereto.

            7.8. Governing Law.

      This Agreement will be governed by, and construed in accordance with, the
laws of the State of Delaware.

            7.9. Binding Arbitration.

      Any controversy, dispute or claim arising out of, in connection with, or
in relation to, the construction, performance, or breach of this Agreement shall
be adjudicated by arbitration conducted in accordance with the existing rules
for commercial arbitration of the American Arbitration Association, or any
successor organization in New York or California (the "AAA"), as determined by
the party initiating the arbitration. The demand for arbitration shall be
delivered in accordance with the notice provisions of this Agreement.
Arbitration hereunder shall be conducted by a single arbitrator selected jointly
by the parties hereto. If within thirty (30) days after a demand for arbitration
is made, the parties hereto are unable to agree on a single arbitrator, three
arbitrators shall be appointed. Each party shall select one arbitrator and those
two arbitrators shall then select within thirty (30) days a third neutral
arbitrator. If the arbitrators


                                       36


selected by the parties cannot agree on the third arbitrator, they shall discuss
the qualifications of such third arbitrator with the AAA prior to selection of
such arbitrator, which selection shall be in accordance with the existing rules
of the AAA. If an arbitrator cannot continue to serve, a successor to an
arbitrator selected by the parties shall be also selected by the same party, and
a successor to a neutral arbitrator shall be selected as specified above. A full
rehearing will be held only if the neutral arbitrator is unable to continue to
serve or if the remaining arbitrators unanimously agree that such a rehearing is
appropriate. Any discovery in connection with arbitration hereunder shall be
limited to information directly relevant to the controversy or claim in
arbitration. Judgment upon any arbitration award rendered may be entered in any
court of competent jurisdiction. EACH PARTY HERETO UNCONDITIONALLY WAIVES TRIAL
BY JURY IN ANY SUIT, ACTION OR PROCEEDING RELATING TO THIS AGREEMENT.

            7.10. Specific Performance.

      Without limiting or waiving in any respect any rights or remedies of the
parties hereto under this Agreement now or hereinafter existing at law or in
equity or by statute, each of the parties hereto will be entitled to seek
specific performance of the obligations to be performed by the other in
accordance with the provisions of this Agreement, including during such time
prior to the final and binding decision in any arbitration contemplated by
Section 7.9.

            7.11. Entire Agreement.

      This Agreement sets forth the entire understanding of the parties hereto
with respect to the subject matter hereof.

            7.12. Titles and Headings.

      The section headings contained in this Agreement are for reference
purposes only and will not affect the meaning or interpretation of this
Agreement.

            7.13. Severability.

      If any provision of this Agreement is declared by any court of competent
jurisdiction to be illegal, void or unenforceable, all other provisions of this
Agreement will not be affected and will remain in full force and effect.

            7.14. Counterparts.

      This Agreement may be executed in any number of counterparts, each of
which will be deemed to be an original and all of which together will be deemed
to be one and the same instrument.

                  [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]





                                       37


      IN WITNESS WHEREOF, each of the undersigned has executed this Agreement or
caused this Agreement to be executed on its behalf as of the date first written
above.

                                BUSINESS OBJECTS S.A.



                                By: /s/ Bernard Liautaud
                                    ------------------------------
                                    Name: Bernard Liautaud
                                    Title: Chairman of the Board and
                                           Chief Executive Officer





                                NEW SAC, as Majority Stockholder

                                By: /s/ William L. Hudson
                                    ------------------------------
                                    Name:  William L. Hudson
                                    Title: Executive Vice President, General
                                           Counsel and Corporate Secretary



                                SILVER LAKE TECHNOLOGY INVESTORS CAYMAN, L.P.

                                By: Silver Lake (Offshore) AIV GP Ltd.,
                                    its General Partner

                                By: /s/ David Roux
                                    ------------------------------
                                    Name:  David Roux
                                    Title: Director



                                SILVER LAKE INVESTORS CAYMAN, L.P.

                                By: Silver Lake Technology Associates Cayman,
                                    L.P., its General Partner

                                By: Silver Lake (Offshore) AIV GP Ltd.,
                                    its General Partner

                                By: /s/ David Roux
                                    ------------------------------
                                    Name:  David Roux
                                    Title: Director






                                SILVER LAKE PARTNERS CAYMAN, L.P.

                                By: Silver Lake Technology Associates Cayman,
                                    L.P., its General Partner

                                By: Silver Lake (Offshore) AIV GP Ltd.,
                                    its General Partner

                                By: /s/ David Roux
                                    ------------------------------
                                    Name: David Roux
                                    Title: Director



                                SAC INVESTMENTS, L.P.

                                By: TPG SAC GenPar III, L.P., its
                                    General Partner

                                By: TPG SAC Advisors III Corp.,
                                    its General Partner



                                By: /s/ Richard A. Ekleberry
                                    ------------------------------
                                    Name: Richard A. Ekleberry
                                    Title: Vice President


                                AUGUST CAPITAL III, L.P. for itself
                                and as nominee for August Capital
                                Strategic Partners IV, L.P.

                                August Capital III Founders Fund, L.P. and
                                certain individuals thereof

                                By: August Capital Management III, L.L.C.,
                                its general partner

                                By: /s/ Mark G. Wilson
                                    ------------------------------
                                    Name: Mark G. Wilson
                                    Title: Member






                                J.P. MORGAN PARTNERS (BHCA), L.P.

                                By: JPMP MASTER FUND MANAGER, its
                                    General Partner

                                By: JPMP CAPITAL CORP, its General Partner


                                By: /s/ Andrew W. Kahn
                                    ------------------------------
                                    Name: Andrew W. Kahn
                                    Title: Managing Director



                                GS CAPITAL PARTNERS III, L.P.

                                By: GS Advisors III, L.L.C., its General Partner



                                By: /s/ Katherine B. Enquist
                                    ------------------------------
                                    Name: Katherine B. Enquist
                                    Title: Vice President


                                GS CAPITAL PARTNERS III OFFSHORE, L.P.

                                By: GS Advisors III, L.L.C., its General Partner



                                By: /s/ Katherine B. Enquist
                                    ------------------------------
                                    Name: Katherine B. Enquist
                                    Title: Vice President


                                GOLDMAN, SACHS & CO. VERWALTUNGS GmbH



                                By: /s/ Katherine B. Enquist
                                    ------------------------------
                                    Name: Katherine B. Enquist
                                    Title: Attorney-in-Fact


                                STONE STREET FUND 2000 L.P.

                                By: Stone Street 2000, L.L.C., its
                                    General Partner

                                By: /s/ Katherine B. Enquist
                                    ------------------------------
                                    Name: Katherine B. Enquist
                                    Title: Vice President


                                BRIDGE STREET SPECIAL OPPORTUNITIES
                                FUND 2000, L.P.

                                By: Bridge Street Special Opportunities Fund
                                    2000, L.L.C., its General Partner

                                By: /s/ Katherine B. Enquist
                                    ------------------------------
                                    Name: Katherine B. Enquist
                                    Title: Vice President





                                STAENBERG VENTURE PARTNERS II, L.P.



                                By: /s/ Jon Staenberg
                                    ------------------------------
                                    Name: Jon Staenberg
                                    Title: Managing Director



                                STAENBERG SEAGATE PARTNERS, LLC



                                By: /s/ Jon Staenberg
                                    ------------------------------
                                    Name: Jon Staenberg
                                    Title: Manager








                                INTEGRAL CAPITAL PARTNERS V, L.P.

                                By: Integral Capital Management V, LLC,
                                    its General Partner

                                By: /s/ Roger McNamee
                                    ------------------------------
                                    Name: Roger McNamee
                                    Title: Manager



                                INTEGRAL CAPITAL PARTNERS V SIDE FUND, L.P.

                                By: ICP Management V, LLC, its General Partner

                                By: /s/ Roger McNamee
                                    ------------------------------
                                    Name: Roger McNamee
                                    Title: Manager




                                                                       EXHIBIT A

                              ASSUMPTION AGREEMENT

      In consideration of the transfer to (him)(her)(it) of [___] [ordinary
shares, nominal value EUR 0.10 per share] [American depositary shares, each
representing one ordinary share], of Business Objects, S.A. (the "Company"),
[_______] (the "Additional Stockholder"), and the Company agree that, as of the
date written below, Additional Stockholder shall become a party as a Stockholder
to that certain Stockholders Agreement, dated as of July 18, 2003, by and among
the Company, New SAC, Silver Lake Technology Investors Cayman, L.P., Silver Lake
Investors Cayman, L.P., Silver Lake Partners Cayman, L.P., SAC Investments,
L.P., August Capital III, L.P., J.P. Morgan Partners (BHCA), L.P., GS Capital
Partners III, L.P., GS Capital Partners III Offshore, L.P., Goldman, Sachs & Co.
Verwaltungs GmbH, Stone Street Fund 2000 L.P., Bridge Street Special
Opportunities Fund 2000, L.P., Staenberg Venture Partners II, L.P., Staenberg
Seagate Partners, LLC, Integral Capital Partners V, L.P., and Integral Capital
Partners V Side Fund, L.P. (the "Stockholders Agreement"), and shall be bound by
all of the terms and provisions of the Stockholders Agreement, as such person or
entity was an original party thereto and was included in the definition of
"Stockholder" as used therein; provided, that any Additional Stockholder (other
than a Permitted Transferee (as defined in the Stockholders Agreement) who shall
have rights under Section 4.1 of the Stockholders Agreement) shall not be
entitled to any rights under Articles IV or V of the Stockholders Agreement.

                  Executed as of the [__] day of [______], [__]


                                          [_______________________]

                                          By:


                                          Title:

EX-2.3

                                                                     EXHIBIT 2.3

                                                                  EXECUTION COPY

                                SUPPORT AGREEMENT

            This SUPPORT AGREEMENT (this "Agreement"), is entered into as of
July 18, 2003 by and among Business Objects S.A., a societe anonyme organized
under the laws of the Republic of France ("Parent"), Borg Merger Sub I, Inc., a
Delaware corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub
1"), Borg Merger Sub II, Inc., a Delaware corporation and a direct wholly-owned
subsidiary of Parent ("Merger Sub 2"), Borg Merger Sub III, Inc., a Delaware
corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub 3" and,
collectively with Merger Sub 1 and Merger Sub 2, "Merger Subs"), and New SAC
("Majority Stockholder"). Capitalized terms used in this Agreement but not
otherwise defined shall have the meanings ascribed to them in the Merger
Agreement (defined below).

                                    RECITALS

            WHEREAS, concurrently with the execution and delivery of this
Agreement, Parent, Merger Subs, Seagate Software (Cayman) Holdings, an exempted
company incorporated in the Cayman Islands with limited liability (together with
any successor by deregistration and domestication, "HoldCo") and Crystal
Decisions, Inc., a Delaware corporation (the "Company"), are entering into an
Agreement and Plan of Merger, dated as of July 18, 2003 (the "Merger Agreement")
which provides for a transaction pursuant to which (1) Merger Sub 1 will merge
with and into HoldCo (the "HoldCo Merger"), (2) immediately following the HoldCo
Merger, the surviving corporation of the HoldCo Merger will merge with and into
Merger Sub 2 (the "Second HoldCo Merger" and collectively with the HoldCo
Merger, the "Holdco Mergers"), (3) immediately following the Second HoldCo
Merger, Merger Sub 3 will merge with and into the Company (the "Company
Merger"), and (4) immediately following the Company Merger, the surviving
corporation of the Company Merger will merge with and into the surviving
corporation of the Second HoldCo Merger, all on the terms and subject to the
conditions set forth in the Merger Agreement;

            WHEREAS, as of the date hereof, Majority Stockholder beneficially
owns (as such term is defined pursuant to Rule 13d-3(a) promulgated under the
Securities Exchange Act of 1934, as amended), 2,000 shares of capital stock of
HoldCo, par value $1.00 per share (the "HoldCo Shares"), representing 100% of
the current voting power of HoldCo; and

            WHEREAS, as a condition and inducement to Parent's and Merger Subs'
willingness to enter into the Merger Agreement, Majority Stockholder is entering
into this Agreement to cause HoldCo to (i) deregister pursuant to Section 226 of
the Companies Law (2003 Revision) of the Cayman Islands as an exempted limited
liability company incorporated under the Companies Law (2003 Revision) and be
domesticated pursuant to Section 388 of the Delaware General Corporation Law as
a Delaware corporation (the "Deregistration and Domestication") and (ii)
immediately after the Deregistration and Domestication (x) execute and deliver
the written consent of stockholders attached to this Agreement as Exhibit A (the
"Written Consent") and (y) deliver to Parent the irrevocable proxy with respect
to the all of the outstanding voting capital stock of HoldCo after the
Deregistration and Domestication (the "Subject Shares") attached to this
Agreement as Exhibit B (the "Proxy").




            NOW, THEREFORE, in consideration of the foregoing and the covenants,
agreements, representations and warranties set forth herein, intending to be
legally bound, the parties agree as follows:

            Section 1. Deregistration and Domestication. Immediately following
execution of the Merger Agreement, but in any event no later than seven (7) days
after the date of the Merger Agreement, Majority Stockholder will cause HoldCo
to deregister pursuant to Section 226 of the Companies Law (2003 Revision) of
the Cayman Islands as an exempted limited liability company incorporated under
the Companies Law (2003 Revision) and be domesticated pursuant to Section 388 of
the Delaware General Corporation Law as a Delaware corporation.

            Section 2. Written Consent. Majority Stockholder agrees to execute
and deliver the Written Consent immediately following the completion of the
Deregistration and Domestication.

            Section 3. Voting of Subject Shares. At every meeting of HoldCo's
shareholders and at every adjournment thereof, and on every action or approval
by written consent of HoldCo's shareholders, Majority Stockholder agrees to
vote, or cause to be voted, to the extent not voted by Parent as appointed by
the Proxy, all of the HoldCo Shares or the Subject Shares, as the case may be:

                  (a) in favor of the approval and adoption of the Merger
Agreement and the approval of the HoldCo Mergers and the transactions
contemplated by the Merger Agreement;

                  (b) against approval of any proposal made in opposition to, or
in competition with, the HoldCo Mergers and the transactions contemplated by the
Merger Agreement; and

                  (c) against any actions (other than those actions that relate
to the HoldCo Mergers and the transactions contemplated by the Merger Agreement)
that are intended to, or could be reasonably expected to, impair the ability of
HoldCo to consummate the HoldCo Mergers or otherwise impede, interfere with,
delay, postpone, discourage or adversely affect the consummation of the HoldCo
Mergers in accordance with the terms of the Merger Agreement.

Majority Stockholder further agrees not to enter into any agreement or
understanding with any person to vote or give instructions in any manner
inconsistent with or violative of the terms of this Section 3.

            Section 4. Irrevocable Proxy. Immediately following the completion
of the Deregistration and Domestication, Majority Stockholder agrees to deliver
the Proxy to Parent, which shall be irrevocable to the fullest extent
permissible by applicable law, with respect to the Subject Shares. The parties
agree that by reason of the Merger Agreement, the Proxy is a proxy coupled with
an interest. At Parent's request, Majority Stockholder will perform such further
acts and execute such further documents as may be required to vest in Parent or
its Representatives the sole power to vote the Subject Shares during the term of
the Proxy in accordance with its terms.


                                       2


            Section 5. Transfer of Subject Shares. Except as otherwise
contemplated by the Merger Agreement or this Agreement, from and after the date
of this Agreement until the termination of this Agreement, Majority Stockholder
will not, directly or indirectly, without the prior written consent of Parent:

                  (a) offer for sale, sell, transfer, tender, pledge, encumber,
assign or otherwise in any way dispose of, or enter into any contract, option or
other agreement (oral or written) with respect to or consent to the offer for
sale, sale, transfer, tender, pledge, encumbrance, assignment or any other
disposition of, any or all of the HoldCo Shares or the Subject Shares, or any
interest therein;

                  (b) grant any proxies or powers of attorney, deposit any of
the HoldCo Shares or the Subject Shares into a voting trust or enter into a
voting agreement with respect to any of the HoldCo Shares or the Subject Shares;

                  (c) take any action that would reasonably be expected to have
the effect of preventing or disabling Majority Stockholder from performing
Majority Stockholder's obligations under this Agreement or making any
representation or warranty of Majority Stockholder contained in this Agreement
untrue or incorrect; or

                  (d) enter into any agreement or arrangement providing for any
of the actions described in clause (a), (b) or (c) above.

For the avoidance of doubt, nothing in this Section 5 shall restrict the ability
of HoldCo to conduct the Deregistration and Domestication.

            Section 6. Representations, Warranties and Covenants. Majority
Stockholder hereby represents and warrants to Parent and Merger Subs as follows:

                  (a) Ownership. Majority Stockholder (i) is, and at all times
prior to the Deregistration and Domestication will be, the beneficial owner of
the HoldCo Shares and (ii) at all times after the Deregistration and
Domestication and prior to the termination of this Agreement will be, the
beneficial owner of the Subject Shares. The HoldCo Shares do, and upon issuance
the Subject Shares will, constitute all of the issued and outstanding shares of
HoldCo capital stock owned of record or beneficially owned by Majority
Stockholder. Majority Stockholder has the sole power to agree to all of the
matters set forth in this Agreement, in each case with respect to all of the
HoldCo Shares and Subject Shares, with no limitations, qualifications or
restrictions on such rights, subject to applicable securities laws and the terms
of this Agreement.

                  (b) Power; Binding Agreement. Majority Stockholder has all
requisite legal capacity, power and authority to enter into and perform all of
Majority Stockholder's obligations under this Agreement. This Agreement has been
duly and validly executed and delivered by Majority Stockholder and when duly
and validly executed and delivered by Parent and Merger Subs will constitute a
valid and binding agreement of Majority Stockholder, enforceable against
Majority Stockholder in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally and by general equitable principles.
There is no


                                       3


beneficiary or holder of a voting trust certificate or other interest of any
trust of which Majority Stockholder is trustee whose consent is required for the
execution and delivery of this Agreement or the consummation by Majority
Stockholder of the transactions contemplated hereby.

                  (c) No Conflicts. Except for the Deregistration and
Domestication or as otherwise contemplated by the Merger Agreement, no filing or
registration with, and no permit, authorization, order, filing, registration
consent or approval of, any federal, state, local, municipal, foreign or other
public body or authority is necessary for the execution of this Agreement by
Majority Stockholder and the consummation by Majority Stockholder of the
transactions contemplated hereby, and none of the execution and delivery of this
Agreement by Majority Stockholder, the consummation by Majority Stockholder of
the transactions contemplated hereby or compliance by Majority Stockholder with
any of the provisions hereof will (i) conflict with or result in any breach of
any applicable organizational documents applicable to Majority Stockholder, (ii)
result in a violation or breach of, or constitute (with or without notice or
lapse of time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind to which Majority Stockholder is a party or
by which Majority Stockholder or any of Majority Stockholder's properties or
assets may be bound, except as could not reasonably be expected to impair the
Majority Stockholder's ability to perform its obligations hereunder, (iii)
require any material consent, authorization or approval of any Person or
Governmental Entity that has not been obtained, or (iv) violate any order, writ,
injunction, decree, judgment, statute, rule or regulation applicable to Majority
Stockholder or any of the HoldCo Shares or Subject Shares.

                  (d) No Encumbrances. All of the HoldCo Shares are, and at all
times prior to the Deregistration and Domestication will be, held by Majority
Stockholder free and clear of any Encumbrances other than any Encumbrances
created under this Agreement, the Proxy or the Merger Agreement. All of the
Subject Shares will be, at all times after the Deregistration and Domestication
and prior to the termination of this Agreement, held by Majority Stockholder
free and clear of any Encumbrances other than any Encumbrances created under
this Agreement, the Proxy or the Merger Agreement.

            Section 7. Legends. Majority Stockholder hereby agrees that it shall
not transfer the HoldCo Shares or Subject Shares during the term hereof, if and
to the extent permitted pursuant to Section 5 of this Agreement, without first
having a legend affixed to the certificates representing such HoldCo Shares or
Subject Shares stating that they are subject to this Agreement and the Proxy.

            Section 8. Further Assurances. From time to time, at Parent's
reasonable request and without further consideration, Majority Stockholder will
perform such further acts and execute and deliver such additional documents as
may be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by the Merger
Agreement, this Agreement and the Proxy.

            Section 9. Termination. This Agreement will terminate upon the
earlier to occur of (i) the date on which the Merger Agreement is terminated,
(ii) the HoldCo Merger Effective Time, and (iii) the mutual agreement of the
parties hereto in writing to terminate this


                                       4


Agreement. Following termination, this Agreement will be of no further force and
effect except that nothing herein will relieve any party from liability for any
material breach of this Agreement.

            Section 10. Stock Splits, Dividends, Etc. The "HoldCo Shares" and
the "Subject Shares" shall be deemed to include any HoldCo Shares or Subject
Shares issued as (or issuable upon the conversion or exercise of any warrant,
right, option or other convertible security which is issued as) a dividend,
stock split or other distribution, recapitalization or reclassification with
respect to, or in exchange for, or in replacement of, such HoldCo Shares or
Subject Shares.

            Section 11. Miscellaneous.

                  (a) Amendments. Subject to applicable law, this Agreement may
not be amended except by execution of an instrument in writing signed on behalf
of each of Parent, Merger Subs and Majority Stockholder.

                  (b) Notices. All notices and other communications hereunder
will be in writing and will be deemed duly given (i) on the date of delivery if
delivered personally, (ii) on the date of confirmation of receipt (or, the first
business day following such receipt if the date is not a business day) of
transmission by telecopy or telefacsimile, or (iii) on the date of confirmation
of receipt (or, the first business day following such receipt if the date is not
a business day) if delivered by a nationally recognized courier service. All
notices hereunder will be delivered as set forth below, or pursuant to such
other instructions as may be designated in writing by the party to receive such
notice:

                        (i) if to Majority Stockholder, to:

                        New SAC
                        c/o Silver Lake Partners
                        2725 Sand Hill Road
                        Menlo Park, Palo Alto 94025
                        Attention: David Roux
                        Telephone: (650) 233-8120
                        Facsimile: (650) 233-8125

with a copy at the same address to the attention of the General Counsel and
Secretary and with a copy to:

                        Simpson Thacher & Bartlett LLP
                        3330 Hillview Avenue
                        Palo Alto, California 94304
                        Attention: Richard Capelouto
                                   Kirsten Jensen
                        Telephone: (650) 251-5000
                        Facsimile: (650) 251-5002



                                       5


                        (ii) if to Parent or Merger Subs, to:

                        Business Objects S.A.
                        c/o Business Objects Americas, Inc.
                        3030 Orchard Parkway
                        San Jose, CA 95134
                        Attention: General Counsel
                        Telephone: (408) 953-6000
                        Facsimile: (408) 953-6001

with a copy at the same address to the attention of the General Counsel and
Secretary and with a copy to:

                        Skadden, Arps, Slate, Meagher & Flom LLP
                        525 University Avenue, Suite 1100
                        Palo Alto, California 94301
                        Attention: Marc R. Packer
                                   Kenton J. King
                        Telephone: (650) 470-4500
                        Facsimile: (650) 470-4570

                  (c) Counterparts. This Agreement may be executed in two or
more counterparts, and by facsimile, all of which will be considered one and the
same agreement and will become effective when one or more counterparts have been
signed by each of the parties and delivered to the other party, it being
understood that all parties need not sign the same counterpart.

                  (d) Entire Agreement; Third Party Beneficiaries. This
Agreement and the documents and instruments and other agreements among the
parties hereto as contemplated by or referred to herein, including the exhibits
hereto, (a) constitute the entire agreement among the parties with respect to
the subject matter hereof and supersede all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof, and (b) are not intended to confer upon any other Person any rights or
remedies hereunder.

                  (e) Severability. In the event that any provision of this
Agreement or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the application of
such provision to other Persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further agree
to replace such void or unenforceable provision of this Agreement with a valid
and enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of such void or unenforceable provision.

                  (f) Specific Performance. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties will be entitled
to seek an injunction or injunctions to prevent breaches of


                                       6


this Agreement and to enforce specifically the terms and provisions hereof in
any court of the United States or any state having jurisdiction, this being in
addition to any other remedy to which they are entitled at law or in equity.

                  (g) Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
law thereof. In addition, each of the parties hereto (i) consents to submit
itself to the personal jurisdiction of any Delaware state court in the event any
dispute arises out of this Agreement or any of the other transactions
contemplated by this Agreement, (ii) agrees that it will not attempt to deny or
defeat such personal jurisdiction by motion or other request for leave from any
such court and (iii) agrees that it will not bring any action relating to this
Agreement or any of the other transactions contemplated by this Agreement in any
court other than a state court sitting in the State of Delaware.

                  (h) Rules of Construction. The parties hereto agree that they
have been represented by counsel during the negotiation and execution of this
Agreement and, therefore, waive the application of any law, regulation, holding
or rule of construction providing that ambiguities in an agreement or other
document will be construed against the party drafting such agreement or
document.

                  (i) Assignment. This Agreement may not be assigned by any of
the parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties, except that Parent may assign, in its sole
discretion and without the consent of Majority Stockholder, any or all of its
rights, interests and obligations hereunder to any of its direct or indirect
wholly-owned subsidiaries. Subject to the preceding sentence, but without
relieving any party hereto of any obligation hereunder, this Agreement will be
binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors and assigns.

                  (j) No Waiver; Remedies Cumulative. No failure or delay on the
part of any party hereto in the exercise of any right hereunder will impair such
right or be construed to be a waiver of, or acquiescence in, any breach of any
representation, warranty or agreement herein, nor will any single or partial
exercise of any such right preclude other or further exercise thereof or of any
other right. All rights and remedies existing under this Agreement are
cumulative to, and not exclusive to, and not exclusive of, any rights or
remedies otherwise available.

                  (k) Waiver of Jury Trial. EACH OF PARENT, MAJORITY STOCKHOLDER
AND EACH MERGER SUB HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF
PARENT, MAJORITY STOCKHOLDER OR EACH MERGER SUB IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.

                  (l) Expenses. All fees and expenses incurred in connection
with this Agreement and the transactions contemplated hereby will be paid by the
party incurring such expenses whether or not the HoldCo Mergers are consummated.



                                       7



            IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized respective officers as of the date first
written above.

                                    BUSINESS OBJECTS S.A


                                    By: /s/ Bernard Liautaud
                                       ---------------------------------
                                    Name: Bernard Liautaud
                                    Title: Chairman of the Board and
                                           Chief Executive Officer



                                    BORG MERGER SUB I, INC.


                                    By: /s/ Bernard Liautaud
                                       ---------------------------------
                                    Name: Bernard Liautaud
                                    Title: Chief Executive Officer
                                           and President


                                    BORG MERGER SUB II, INC.


                                    By: /s/ Bernard Liautaud
                                       ---------------------------------
                                    Name: Bernard Liautaud
                                    Title: Chief Executive Officer
                                           and President


                                    BORG MERGER SUB III, INC.


                                    By: /s/ Bernard Liautaud
                                       ---------------------------------
                                    Name: Bernard Liautaud
                                    Title: Chief Executive Officer
                                           and President


                      [SIGNATURE PAGE TO SUPPORT AGREEMENT]





                                    NEW SAC


                                    By: /s/ William L. Hudson
                                       ---------------------------------
                                    Name: William L. Hudson
                                    Title: Executive Vice President, General
                                           Counsel and Corporate Secretary


















                      [SIGNATURE PAGE TO SUPPORT AGREEMENT]





                                                                       EXHIBIT A

                     WRITTEN CONSENT IN LIEU OF A MEETING OF
                               THE STOCKHOLDERS OF
                 SEAGATE SOFTWARE (CAYMAN) HOLDINGS CORPORATION

            New SAC (the "Majority Stockholder"), a stockholder of Seagate
Software (Cayman) Holdings Corporation, a Delaware corporation (the "HoldCo"),
acting pursuant to Section 228 of the General Corporation Law of the State of
Delaware, does hereby consent to the adoption, and does hereby adopt, the
following resolutions with the same force and effect as if adopted by a vote at
a duly convened meeting of the stockholders of HoldCo:

            WHEREAS, the Majority Stockholder holds of record 2,000 shares of
the HoldCo's common stock, par value $1.00 per share (the "Common Stock"),
which is the only class of capital stock of HoldCo issued and outstanding;

            WHEREAS, the Common Stock held of record by the Majority Stockholder
represents 100% of the voting power of HoldCo;

            WHEREAS, Crystal Decisions, Inc. (the "Company") has entered into
the Agreement and Plan of Merger by and among Business Objects S.A., a societe
anonyme organized under the laws of the Republic of France ("Parent"), Borg
Merger Sub I, Inc., a Delaware corporation and a direct wholly-owned subsidiary
of Parent ("Merger Sub 1"), Borg Merger Sub II, Inc., a Delaware corporation and
a direct wholly-owned subsidiary of Parent ("Merger Sub 2"), Borg Merger Sub
III, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Parent
("Merger Sub 3"), HoldCo and the Company in substantially the form attached
hereto as Exhibit A (the "Merger Agreement") which provides for a transaction
pursuant to which (1) Merger Sub 1 will merge with and into HoldCo (the "HoldCo
Merger"), (2) immediately following the HoldCo Merger, the surviving corporation
of the HoldCo Merger will merge with and into Merger Sub 2 (the "Second HoldCo
Merger" and collectively with the HoldCo Merger, the "Holdco Mergers"), (3)
immediately following the Second HoldCo Merger, Merger Sub 3 will merge with and
into the Company (the "Company Merger"), and (4) immediately following the
Company Merger, the surviving corporation of the Company Merger will merge with
and into the surviving corporation of the Second HoldCo Merger, all on the terms
and subject to the conditions set forth in the Merger Agreement;

            WHEREAS, the board of directors of HoldCo has recommended that the
stockholders of HoldCo approve and adopt the Merger Agreement and approve the
HoldCo Mergers; and

            WHEREAS, Majority Stockholder has resolved to approve and adopt the
Merger Agreement and to approve the HoldCo Mergers.

            NOW, THEREFORE, BE IT:

            RESOLVED, that the Merger Agreement is hereby approved and adopted,
and the HoldCo Mergers are hereby approved, in all respects.


                                      A-1



            IN WITNESS WHEREOF, the undersigned has executed this Written
Consent as of the ____ day of July, 2003.

                                    NEW SAC


                                    By:
                                        --------------------------
                                    Name:
                                    Title:





                                      A-2





                                                                       EXHIBIT B

                                IRREVOCABLE PROXY

            NEW SAC ("Majority Stockholder") of Seagate Software (Cayman)
Holdings Corporation, a Delaware corporation ("HoldCo"), hereby irrevocably
appoints Bernard Liautaud and John Olsen and each of them and any designee
thereof, as the sole and exclusive attorneys and proxies of the undersigned,
with full power of substitution and resubstitution, to the full extent of the
undersigned's rights with respect to the voting of the Subject Shares, as such
term is defined in the Support Agreement entered into concurrently herewith by
and among of Business Objects S.A., a societe anonyme organized under the laws
of the Republic of France ("Parent"), Borg Merger Sub I, Inc., a Delaware
corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub 1"),
Borg Merger Sub II, Inc., a Delaware corporation and a direct wholly-owned
subsidiary of Parent ("Merger Sub 2"), Borg Merger Sub III, Inc., a Delaware
corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub 3" and,
collectively with Merger Sub 1 and Merger Sub 2, "Merger Subs"), and Majority
Stockholder (the "Support Agreement") with respect to the matters set forth
below, until the earlier of (1) the date on which that certain Agreement and
Plan of Merger entered into concurrently herewith (the "Merger Agreement"), by
and among Parent, Merger Subs, HoldCo and Crystal Decisions, Inc. (the
"Company"), which provides for a transaction pursuant to which (1) Merger Sub 1
will merge with and into HoldCo (the "HoldCo Merger"), (2) immediately following
the HoldCo Merger, the surviving corporation of the HoldCo Merger will merge
with and into Merger Sub 2 (the "Second HoldCo Merger" and collectively with the
HoldCo Merger, the "Holdco Mergers"), (3) immediately following the Second
HoldCo Merger, Merger Sub 3 will merge with and into the Company (the "Company
Merger"), and (4) immediately following the Company Merger, the surviving
corporation of the Company Merger will merge with and into the surviving
corporation of the Second HoldCo Merger, all on the terms and subject to the
conditions set forth in the Merger Agreement, is terminated or (2) the HoldCo
Merger Effective Time (as defined in the Merger Agreement) (such earlier date,
the "Termination Date").

            Until the Termination Date, this proxy is irrevocable to the extent
permitted under Section 212 of the Delaware General Corporation Law, is coupled
with an interest, is granted pursuant to the Support Agreement, and is granted
in consideration of Parent and Merger Subs entering into the Merger Agreement.
Upon the execution hereof, all prior proxies given by the undersigned with
respect to the Subject Shares are hereby revoked and no subsequent proxies will
be given. The attorneys and proxies named above will be empowered at any time
prior to the Termination Date to vote or cause to be voted all of the Subject
Shares at every meeting of HoldCo's stockholders and at every adjournment
thereof, and on every action or approval by written consent of HoldCo's
stockholders:

            1. in favor of the approval and adoption of the Merger Agreement and
the approval of the HoldCo Mergers and the transactions contemplated by the
Merger Agreement;

            2. against approval of any proposal made in opposition to, or in
competition with, the HoldCo Mergers and the transactions contemplated by the
Merger Agreement; and



                                       B-1


            3. against any actions (other than those actions that relate to the
HoldCo Mergers and the transactions contemplated by the Merger Agreement) that
are intended to, or could be reasonably expected to, impair the ability of
HoldCo to consummate the HoldCo Mergers or otherwise impede, interfere with,
delay, postpone, discourage or adversely affect the consummation of the HoldCo
Mergers in accordance with the terms of the Merger Agreement.

            Notwithstanding anything contained in this Proxy, this Proxy shall
terminate when the Support Agreement terminates.





                                      B-2



Any obligation of the undersigned hereunder will be binding upon the successors
and assigns of the undersigned.


Dated:   July __, 2003



                                 NEW SAC


                                 By:
                                      ------------------------------
                                 Name:
                                 Title:






















              **************THIS PROXY IS IRREVOCABLE.*************




                                      B-3

EX-2.4

                                                                     EXHIBIT 2.4


                                                                  EXECUTION COPY

                            COMPANY SUPPORT AGREEMENT

            This SUPPORT AGREEMENT (this "Agreement"), is entered into as of
July 18, 2003 by and among Business Objects S.A., a societe anonyme organized
under the laws of the Republic of France ("Parent"), Borg Merger Sub I, Inc., a
Delaware corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub
1"), Borg Merger Sub II, Inc., a Delaware corporation and a direct wholly-owned
subsidiary of Parent ("Merger Sub 2"), Borg Merger Sub III, Inc., a Delaware
corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub 3" and,
collectively with Merger Sub 1 and Merger Sub 2, "Merger Subs"), and Seagate
Software (Cayman) Holdings, an exempted company incorporated in the Cayman
Islands with limited liability (together with any successor by deregistration
and domestication, "HoldCo"). Capitalized terms used in this Agreement but not
otherwise defined shall have the meanings ascribed to them in the Merger
Agreement (defined below).

                                    RECITALS

            WHEREAS, concurrently with the execution and delivery of this
Agreement, Parent, Merger Subs, HoldCo and Crystal Decisions, Inc., a Delaware
corporation (the "Company"), are entering into an Agreement and Plan of Merger,
dated as of July 18, 2003 (the "Merger Agreement") which provides for a
transaction pursuant to which (1) Merger Sub 1 will merge with and into HoldCo
(the "HoldCo Merger"), (2) immediately following the HoldCo Merger, the
surviving corporation of the HoldCo Merger will merge with and into Merger Sub 2
(the "Second HoldCo Merger", (3) immediately following the Second HoldCo Merger,
Merger Sub 3 will merge with and into the Company (the "Company Merger"), and
(4) immediately following the Company Merger, the surviving corporation of the
Company Merger will merge with and into the surviving corporation of the Second
HoldCo Merger (the "Second Company Merger," and together with the Company
Merger, the "Company Mergers"), all on the terms and subject to the conditions
set forth in the Merger Agreement;

            WHEREAS, as of the date hereof, HoldCo beneficially owns (as such
term is defined pursuant to Rule 13d-3(a) promulgated under the Securities
Exchange Act of 1934, as amended), 75,001,000 shares of the Company's common
stock, par value $0.001 per share (the "Company Common Stock"), representing in
excess of 98% of the current voting power of the Company; and

            WHEREAS, as a condition and inducement to Parent's and Merger Subs'
willingness to enter into the Merger Agreement, HoldCo is entering into this
Agreement to (i) execute and deliver the written consent of stockholders
attached to this Agreement as Exhibit A (the "Written Consent"), (ii) vote, or
cause to be voted, all shares of Company Common Stock beneficially owned by
HoldCo, whether owned as of or acquired after the date of this Agreement (the
"Subject Shares"), in the manner specified in Section 2 of this Agreement, and
(iii) deliver to Parent the irrevocable proxy with respect to the Subject Shares
attached to this Agreement as Exhibit B (the "Proxy").




            NOW, THEREFORE, in consideration of the foregoing and the covenants,
agreements, representations and warranties set forth herein, intending to be
legally bound, the parties agree as follows:

            Section 1. Written Consent. HoldCo agrees to execute and deliver the
Written Consent immediately following the execution and delivery of the Merger
Agreement.

            Section 2. Voting of Subject Shares. At every meeting of the
Company's stockholders and at every adjournment thereof, and on every action or
approval by written consent of the Company's stockholders, HoldCo agrees to
vote, or cause to be voted, to the extent not voted by Parent as appointed by
the Proxy, all of the Subject Shares:

                  (a) in favor of the approval and adoption of the Merger
Agreement and the approval of the Company Mergers and the transactions
contemplated by the Merger Agreement;

                  (b) against approval of any proposal made in opposition to, or
in competition with, the Company Mergers and the transactions contemplated by
the Merger Agreement; and

                  (c) against any actions (other than those actions that relate
to the Company Mergers and the transactions contemplated by the Merger
Agreement) that are intended to, or could be reasonably expected to, impair the
ability of the Company to consummate the Company Mergers or otherwise impede,
interfere with, delay, postpone, discourage or adversely affect the consummation
of the Company Mergers in accordance with the terms of the Merger Agreement.

HoldCo further agrees not to enter into any agreement or understanding with any
person to vote or give instructions in any manner inconsistent with or violative
of the terms of this Section 2.

            Section 3. Irrevocable Proxy. Concurrently with the execution of
this Agreement, HoldCo agrees to deliver the Proxy to Parent, which shall be
irrevocable to the fullest extent permissible by applicable law, with respect to
the Subject Shares. The parties agree that by reason of the Merger Agreement,
the Proxy is a proxy coupled with an interest. At Parent's request, HoldCo will
perform such further acts and execute such further documents as may be required
to vest in Parent or its Representatives the sole power to vote the Subject
Shares during the term of the Proxy in accordance with its terms.

            Section 4. Transfer of Subject Shares. Except as otherwise
contemplated by the Merger Agreement or this Agreement, from and after the date
of this Agreement until the termination of this Agreement, HoldCo will not,
directly or indirectly, without the prior written consent of Parent:



                                       2


                  (a) offer for sale, sell, transfer, tender, pledge, encumber,
assign or otherwise in any way dispose of, or enter into any contract, option or
other agreement (oral or written) with respect to or consent to the offer for
sale, sale, transfer, tender, pledge, encumbrance, assignment or any other
disposition of, any or all of the Subject Shares, or any interest therein;

                  (b) grant any proxies or powers of attorney, deposit any of
the Subject Shares into a voting trust or enter into a voting agreement with
respect to any of the Subject Shares;

                  (c) take any action that would reasonably be expected to have
the effect of preventing or disabling HoldCo from performing HoldCo's
obligations under this Agreement or making any representation or warranty of
HoldCo contained in this Agreement untrue or incorrect; or

                  (d) enter into any agreement or arrangement providing for any
of the actions described in clause (a), (b) or (c) above.

For the avoidance of doubt, nothing in this Section 4 shall restrict the ability
of HoldCo to deregister pursuant to Section 226 of the Companies Law (2003
Revision) of the Cayman Islands as an exempted limited liability company
incorporated under the Companies Law (2003 Revision) and be domesticated
pursuant to Section 388 of the Delaware General Corporation Law as a Delaware
corporation, or to change its corporate name to "Seagate Software (Cayman)
Holdings Corporation" in order to comply with Delaware law in connection with
such domestication (collectively, the "Deregistration and Domestication").

            Section 5. Representations, Warranties and Covenants. HoldCo hereby
represents and warrants to Parent and Merger Subs as follows:

                  (a) Ownership. HoldCo is the beneficial owner of the Subject
Shares, and at all times prior to the termination of this Agreement will be, the
beneficial owner of the Subject Shares. The Subject Shares constitute all of the
issued and outstanding shares of Company capital stock owned of record or
beneficially owned by HoldCo. HoldCo has the sole power to agree to all of the
matters set forth in this Agreement, in each case with respect to all of the
Subject Shares, with no limitations, qualifications or restrictions on such
rights, subject to applicable securities laws and the terms of this Agreement.

                  (b) Power; Binding Agreement. HoldCo has all requisite legal
capacity, power and authority to enter into and perform all of HoldCo's
obligations under this Agreement. This Agreement has been duly and validly
executed and delivered by HoldCo and when duly and validly executed and
delivered by Parent and Merger Subs will constitute a valid and binding
agreement of HoldCo, enforceable against HoldCo in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights generally
and by general equitable principles. There is no beneficiary or holder of a


                                       3


voting trust certificate or other interest of any trust of which HoldCo is
trustee whose consent is required for the execution and delivery of this
Agreement or the consummation by HoldCo of the transactions contemplated hereby.

                  (c) No Conflicts. Except for the Deregistration and
Domestication or as otherwise contemplated by the Merger Agreement, no filing or
registration with, and no permit, authorization, order, filing, registration
consent or approval of, any federal, state, local, municipal, foreign or other
public body or authority is necessary for the execution of this Agreement by
HoldCo and the consummation by HoldCo of the transactions contemplated hereby,
and none of the execution and delivery of this Agreement by HoldCo, the
consummation by HoldCo of the transactions contemplated hereby or compliance by
HoldCo with any of the provisions hereof will (i) conflict with or result in any
breach of any applicable organizational documents applicable to HoldCo, (ii)
result in a violation or breach of, or constitute (with or without notice or
lapse of time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind to which HoldCo is a party or by which
HoldCo or any of HoldCo's properties or assets may be bound, except as could not
reasonably be expected to impair the HoldCo's ability to perform its obligations
hereunder, (iii) require any material consent, authorization or approval of any
Person or Governmental Entity that has not been obtained, or (iv) violate any
order, writ, injunction, decree, judgment, statute, rule or regulation
applicable to HoldCo or any of the Subject Shares.

                  (d) No Encumbrances. All of the Subject Shares are, and at all
times prior to the termination of this Agreement will be, held by HoldCo free
and clear of any Encumbrances other than any Encumbrances created under this
Agreement, the Proxy or the Merger Agreement.

            Section 6. Legends. HoldCo hereby agrees that it shall not transfer
the Subject Shares during the term hereof, if and to the extent permitted
pursuant to Section 4 of this Agreement, without first having a legend affixed
to the certificates representing the Subject Shares stating that they are
subject to this Agreement and the Proxy.

            Section 7. Further Assurances. From time to time, at Parent's
reasonable request and without further consideration, HoldCo will perform such
further acts and execute and deliver such additional documents as may be
necessary or desirable to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by the Merger Agreement, this
Agreement and the Proxy.

            Section 8. Termination. This Agreement will terminate upon the
earlier to occur of (i) the date on which the Merger Agreement is terminated,
(ii) the Company Merger Effective Time, and (iii) the mutual agreement of the
parties hereto in writing to terminate this Agreement. Following termination,
this Agreement will be of no further force and effect except that nothing herein
will relieve any party from liability for any material breach of this Agreement.



                                       4


            Section 9. Stock Splits, Dividends, Etc. The "Subject Shares" shall
be deemed to include any Company Common Stock issued as (or issuable upon the
conversion or exercise of any warrant, right, option or other convertible
security which is issued as) a dividend, stock split or other distribution,
recapitalization or reclassification with respect to, or in exchange for, or in
replacement of, such Subject Shares.

            Section 10. Miscellaneous.

                  (a) Amendments. Subject to applicable law, this Agreement may
not be amended except by execution of an instrument in writing signed on behalf
of each of Parent, Merger Subs and HoldCo.

                  (b) Notices. All notices and other communications hereunder
will be in writing and will be deemed duly given (i) on the date of delivery if
delivered personally, (ii) on the date of confirmation of receipt (or, the first
business day following such receipt if the date is not a business day) of
transmission by telecopy or telefacsimile, or (iii) on the date of confirmation
of receipt (or, the first business day following such receipt if the date is not
a business day) if delivered by a nationally recognized courier service. All
notices hereunder will be delivered as set forth below, or pursuant to such
other instructions as may be designated in writing by the party to receive such
notice:

                        (i) if to HoldCo, to:

                        Seagate Software (Cayman) Holdings
                        c/o Seagate Technology
                        920 Disc Drive
                        Scotts Valley, CA 95066
                        Attention: Bill Hudson
                        Telephone: (831) 439-5370
                        Facsimile: (831) 438-6675

with a copy at the same address to the attention of the General Counsel and
Secretary and with a copy to:

                        Simpson Thacher & Bartlett LLP
                        3330 Hillview Avenue
                        Palo Alto, California 94304
                        Attention: Richard Capelouto
                                   Kirsten Jensen
                        Telephone: (650) 251-5000
                        Facsimile: (650) 251-5002



                                       5


                        (ii) if to Parent or the Merger Subs, to:

                        Business Objects S.A.
                        c/o Business Objects Americas, Inc.
                        3030 Orchard Parkway
                        San Jose, CA 95134
                        Attention: General Counsel
                        Telephone: (408) 953-6000
                        Facsimile: (408) 953-6001

with a copy at the same address to the attention of the General Counsel and
Secretary and with a copy to:

                        Skadden, Arps, Slate, Meagher & Flom LLP
                        525 University Avenue, Suite 1100
                        Palo Alto, California 94301
                        Attention: Marc R. Packer
                                   Kenton J. King
                        Telephone: (650) 470-4500
                        Facsimile: (650) 470-4570

                  (c) Counterparts. This Agreement may be executed in two or
more counterparts, and by facsimile, all of which will be considered one and the
same agreement and will become effective when one or more counterparts have been
signed by each of the parties and delivered to the other party, it being
understood that all parties need not sign the same counterpart.

                  (d) Entire Agreement; Third Party Beneficiaries. This
Agreement and the documents and instruments and other agreements among the
parties hereto as contemplated by or referred to herein, including the exhibits
hereto, (i) constitute the entire agreement among the parties with respect to
the subject matter hereof and supersede all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof, and (ii) are not intended to confer upon any other Person any rights or
remedies hereunder.

                  (e) Severability. In the event that any provision of this
Agreement or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the application of
such provision to other Persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further agree
to replace such void or unenforceable provision of this Agreement with a valid
and enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of such void or unenforceable provision.

                  (f) Specific Performance. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement


                                       6


were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties will be entitled to seek an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any court of the United States
or any state having jurisdiction, this being in addition to any other remedy to
which they are entitled at law or in equity.

                  (g) Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
law thereof. In addition, each of the parties hereto (i) consents to submit
itself to the personal jurisdiction of any Delaware state court in the event any
dispute arises out of this Agreement or any of the other transactions
contemplated by this Agreement, (ii) agrees that it will not attempt to deny or
defeat such personal jurisdiction by motion or other request for leave from any
such court and (iii) agrees that it will not bring any action relating to this
Agreement or any of the other transactions contemplated by this Agreement in any
court other than a state court sitting in the State of Delaware.

                  (h) Rules of Construction. The parties hereto agree that they
have been represented by counsel during the negotiation and execution of this
Agreement and, therefore, waive the application of any law, regulation, holding
or rule of construction providing that ambiguities in an agreement or other
document will be construed against the party drafting such agreement or
document.

                  (i) Assignment. This Agreement may not be assigned by any of
the parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties, except that Parent may assign, in its sole
discretion and without the consent of HoldCo, any or all of its rights,
interests and obligations hereunder to any of its direct or indirect
wholly-owned subsidiaries. Subject to the preceding sentence, but without
relieving any party hereto of any obligation hereunder, this Agreement will be
binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors and assigns.

                  (j) No Waiver; Remedies Cumulative. No failure or delay on the
part of any party hereto in the exercise of any right hereunder will impair such
right or be construed to be a waiver of, or acquiescence in, any breach of any
representation, warranty or agreement herein, nor will any single or partial
exercise of any such right preclude other or further exercise thereof or of any
other right. All rights and remedies existing under this Agreement are
cumulative to, and not exclusive to, and not exclusive of, any rights or
remedies otherwise available.

                  (k) Waiver of Jury Trial. EACH OF PARENT, HOLDCO AND EACH
MERGER SUB HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF PARENT, HOLDCO OR
EACH MERGER SUB IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT
HEREOF.



                                       7


                  (l) Expenses. All fees and expenses incurred in connection
with this Agreement and the transactions contemplated hereby will be paid by the
party incurring such expenses whether or not the Company Mergers are
consummated.

                  [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]









                                       8


            IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized respective officers as of the date first
written above.

                                    BUSINESS OBJECTS S.A


                                    By: /s/ Bernard Liautaud
                                       ---------------------------------
                                    Name: Bernard Liautaud
                                    Title: Chairman of the Board and
                                           Chief Executive Officer



                                    BORG MERGER SUB I, INC.


                                    By: /s/ Bernard Liautaud
                                       ---------------------------------
                                    Name: Bernard Liautaud
                                    Title: Chief Executive Officer
                                           and President


                                    BORG MERGER SUB II, INC.


                                    By: /s/ Bernard Liautaud
                                       ---------------------------------
                                    Name: Bernard Liautaud
                                    Title: Chief Executive Officer
                                           and President


                                    BORG MERGER SUB III, INC.


                                    By: /s/ Bernard Liautaud
                                       ---------------------------------
                                    Name: Bernard Liautaud
                                    Title: Chief Executive Officer
                                           and President






                  [SIGNATURE PAGE TO COMPANY SUPPORT AGREEMENT]




                                    SEAGATE SOFTWARE
                                    (CAYMAN) HOLDINGS


                                    By: /s/ William L. Hudson
                                       ---------------------------------
                                    Name: William L. Hudson
                                    Title: Executive Vice President, General
                                           Counsel and Corporate Secretary

















                  [SIGNATURE PAGE TO COMPANY SUPPORT AGREEMENT]






                                                                       EXHIBIT A

                     WRITTEN CONSENT IN LIEU OF A MEETING OF
                               THE STOCKHOLDERS OF
                             CRYSTAL DECISIONS, INC.

            Seagate Software (Cayman) Holdings ("HoldCo"), a stockholder of
Crystal Decisions, Inc., a Delaware corporation (the "Company"), acting pursuant
to Section 228 of the General Corporation Law of the State of Delaware, does
hereby consent to the adoption, and does hereby adopt, the following resolutions
with the same force and effect as if adopted by a vote at a duly convened
meeting of the stockholders of the Company:

            WHEREAS, HoldCo holds of record 75,001,000 shares of Company common
stock, par value $0.001 per share (the "Common Stock"), which is the only class
of capital stock of the Company issued and outstanding;

            WHEREAS, the Common Stock held of record by HoldCo represents in
excess of 98% of the voting power of the Company;

            WHEREAS, the Company has entered into the Agreement and Plan of
Merger by and among Business Objects S.A., a societe anonyme organized under the
laws of the Republic of France ("Parent"), Borg Merger Sub I, Inc., a Delaware
corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub 1"),
Borg Merger Sub II, Inc., a Delaware corporation and a direct wholly-owned
subsidiary of Parent ("Merger Sub 2"), Borg Merger Sub III, Inc., a Delaware
corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub 3"),
HoldCo and the Company in substantially the form attached hereto as Exhibit A
(the "Merger Agreement") which provides for a transaction pursuant to which (1)
Merger Sub 1 will merge with and into HoldCo (the "HoldCo Merger"), (2)
immediately following the HoldCo Merger, the surviving corporation of the HoldCo
Merger will merge with and into Merger Sub 2 (the "Second HoldCo Merger", (3)
immediately following the Second HoldCo Merger, Merger Sub 3 will merge with and
into the Company (the "Company Merger"), and (4) immediately following the
Company Merger, the surviving corporation of the Company Merger will merge with
and into the surviving corporation of the Second HoldCo Merger (the "Second
Company Merger," and together with the Company Merger, the "Company Mergers"),
all on the terms and subject to the conditions set forth in the Merger
Agreement;

            WHEREAS, the board of directors of the Company has recommended that
the stockholders of the Company approve and adopt the Merger Agreement and
approve the Company Mergers; and

            WHEREAS, HoldCo has resolved to approve and adopt the Merger
Agreement and to approve the Company Mergers.



                                      A-1


            NOW, THEREFORE, BE IT:

            RESOLVED, that the Merger Agreement is hereby approved and adopted,
and the Company Mergers are hereby approved, in all respects.






                                      A-2



            IN WITNESS WHEREOF, the undersigned has executed this Written
Consent as of the ____ day of July, 2003.





                                    SEAGATE SOFTWARE
                                    (CAYMAN) HOLDINGS


                                    By:
                                        --------------------------
                                    Name:
                                    Title:






                                      A-3



                                                                       EXHIBIT B

                                IRREVOCABLE PROXY

            Seagate Software (Cayman) Holdings ("HoldCo"), a stockholder of
Crystal Decisions, Inc., a Delaware corporation ("Company"), hereby irrevocably
appoints Bernard Liautaud and John Olsen and each of them and any designee
thereof, as the sole and exclusive attorneys and proxies of the undersigned,
with full power of substitution and resubstitution, to the full extent of the
undersigned's rights with respect to the voting of the Subject Shares, as such
term is defined in the Support Agreement entered into concurrently herewith by
and among of Business Objects S.A., a societe anonyme organized under the laws
of the Republic of France ("Parent"), Borg Merger Sub I, Inc., a Delaware
corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub 1"),
Borg Merger Sub II, Inc., a Delaware corporation and a direct wholly-owned
subsidiary of Parent ("Merger Sub 2"), Borg Merger Sub III, Inc., a Delaware
corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub 3" and,
collectively with Merger Sub 1 and Merger Sub 2, "Merger Subs"), and HoldCo (the
"Support Agreement") with respect to the matters set forth below, until the
earlier of (1) the date on which that certain Agreement and Plan of Merger
entered into concurrently herewith, by and among Parent, Merger Subs, HoldCo and
the Company (the "Merger Agreement"), which provides for a transaction pursuant
to which (1) Merger Sub 1 will merge with and into HoldCo (the "HoldCo Merger"),
(2) immediately following the HoldCo Merger, the surviving corporation of the
HoldCo Merger will merge with and into Merger Sub 2 (the "Second HoldCo
Merger"), (3) immediately following the Second HoldCo Merger, Merger Sub 3 will
merge with and into the Company (the "Company Merger"), and (4) immediately
following the Company Merger, the surviving corporation of the Company Merger
will merge with and into the surviving corporation of the Second HoldCo Merger
(the "Second Company Merger," and together with the Company Merger, the "Company
Mergers"), all on the terms and subject to the conditions set forth in the
Merger Agreement, is terminated or (2) the Company Merger Effective Time (as
defined in the Merger Agreement) (such earlier date, the "Termination Date").

            Until the Termination Date, this proxy is irrevocable to the extent
permitted under Section 212 of the Delaware General Corporation Law, is coupled
with an interest, is granted pursuant to the Support Agreement, and is granted
in consideration of Parent and Merger Subs entering into the Merger Agreement.
Upon the execution hereof, all prior proxies given by the undersigned with
respect to the Subject Shares are hereby revoked and no subsequent proxies will
be given. The attorneys and proxies named above will be empowered at any time
prior to the Termination Date to vote or cause to be voted all of the Subject
Shares at every meeting of the Company's stockholders and at every adjournment
thereof, and on every action or approval by written consent of the Company's
stockholders:

            1. in favor of the approval and adoption of the Merger Agreement and
the approval of the Company Mergers and the transactions contemplated by the
Merger Agreement;



                                      B-1


            2. against approval of any proposal made in opposition to, or in
competition with, the Company Mergers and the transactions contemplated by the
Merger Agreement; and

            3. against any actions (other than those actions that relate to the
Company Mergers and the transactions contemplated by the Merger Agreement) that
are intended to, or could be reasonably expected to, impair the ability of the
Company to consummate the Company Mergers or otherwise impede, interfere with,
delay, postpone, discourage or adversely affect the consummation of the Company
Mergers in accordance with the terms of the Merger Agreement.

            Notwithstanding anything contained in this Proxy, this Proxy shall
terminate when the Support Agreement terminates.






                                      B-2



Any obligation of the undersigned hereunder will be binding upon the successors
and assigns of the undersigned.

Dated:   July __, 2003




                                 SEAGATE SOFTWARE
                                 (CAYMAN) HOLDINGS


                                 By:
                                      ------------------------------
                                 Name:
                                 Title:












              **************THIS PROXY IS IRREVOCABLE.*************



                                      B-3

EX-2.5

                                                                     Exhibit 2.5

                            FORM OF VOTING AGREEMENT

      This VOTING AGREEMENT (this "Agreement"), is entered into as of July 18,
2003 by and among Business Objects S.A., a societe anonyme organized under the
laws of the Republic of France ("Parent"), Crystal Decisions, Inc., a Delaware
corporation (the "Company"), and the undersigned stockholder of Parent, as an
individual (the "Stockholder"). Capitalized terms used in this Agreement but not
otherwise defined shall have the meanings ascribed to them in the Merger
Agreement (defined below).

                                    RECITALS

      WHEREAS, concurrently with the execution and delivery of this Agreement,
Parent, Borg Merger Sub I, Inc., a Delaware corporation and a direct
wholly-owned subsidiary of Parent ("Merger Sub 1"), Borg Merger Sub II, Inc., a
Delaware corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub
2"), Borg Merger Sub III, Inc., a Delaware corporation and a direct wholly-owned
subsidiary of Parent ("Merger Sub 3"), Seagate Software (Cayman) Holdings, an
exempted company incorporated in the Cayman Islands ("HoldCo"), and the Company
are entering into an Agreement and Plan of Merger (the "Merger Agreement")
pursuant to which (1) Merger Sub 1 will merge with and into HoldCo (the "HoldCo
Merger"), (2) immediately following the HoldCo Merger, the surviving corporation
of the HoldCo Merger will merge with and into Merger Sub 2 (the "Second HoldCo
Merger"), (3) immediately following the Second HoldCo Merger, Merger Sub 3 will
merge with and into the Company (the "Company Merger"), and (4) immediately
following the Company Merger, the surviving corporation of the Company Merger
will merge with and into the surviving corporation of the Second HoldCo Merger
(the "Second Company Merger," and together with the HoldCo Merger, the Second
HoldCo Merger and Company Merger, the "Mergers");

      WHEREAS, the Stockholder beneficially owns (as such term is defined
pursuant to Rule 13d-3(a) promulgated under the Securities Exchange Act of 1934,
as amended), such number of Parent's ordinary shares, nominal value EUR 0.10 per
share (whether held in the form of American depositary receipts or ordinary
shares, the "Parent Stock"), and holds options to purchase such number of shares
of Parent Stock, as indicated next to the Stockholder's signature on the
signature page to this Agreement;

      WHEREAS, as a condition and inducement to the Company's willingness to
enter into the Merger Agreement, the Stockholder is entering into this Agreement
to vote all shares of Parent Stock beneficially owned by the Stockholder,
whether owned as of or acquired after the date of this Agreement (the "Subject
Shares"), in the manner specified in Section 1 of this Agreement.

      NOW, THEREFORE, in consideration of the foregoing and the covenants,
agreements, representations and warranties set forth herein, intending to be
legally bound, the parties agree as follows:

            Section 1. Voting of Subject Shares. At any meeting (whether annual
or special and whether or not an adjourned or postponed meeting) of Parent's


                                       1

stockholders, however called, or in connection with any action or approval by
written consent of Parent's stockholders, Stockholder will, in the event that
Parent is unable to vote all Subject Shares pursuant to the irrevocable proxy in
the form attached hereto as Annex I (the "Proxy") at the meeting, appear at the
meeting or otherwise cause all Subject Shares to be counted as present thereat
for purposes of establishing a quorum and vote or consent (or cause to be voted
or consented) all Subject Shares:

                  (a) in favor of the Parent Proposals and such other matters as
Parent reasonably believes are necessary to be approved under applicable law to
consummate the Mergers and the other transactions contemplated by the Merger
Agreement in accordance with the terms of the Merger Agreement; and

                  (b) against any actions (other than those actions that relate
to the Mergers and the other transactions contemplated by the Merger Agreement)
that would materially adversely affect the ability of Parent to consummate the
Mergers without material delay.

The Stockholder further agrees not to enter into any agreement or understanding
with any person to vote or give instructions in any manner inconsistent with or
violative of the terms of this Section 1.

            Section 2. Transfer of Subject Shares. Except as otherwise
contemplated by the Merger Agreement or this Agreement, from and after the date
of this Agreement until the termination of this Agreement pursuant to Section 6,
the Stockholder will not, directly or indirectly, without the prior written
consent of the Company:

                  (a) offer for sale, sell, transfer, tender, pledge, encumber,
assign or otherwise in any way dispose of, or enter into any contract, option or
other arrangement or understanding with respect to or consent to the offer for
sale, sale, transfer, tender, pledge, encumbrance, assignment or any other
disposition of, any or all of the Subject Shares, or any interest therein;

                  (b) grant any proxy or powers of attorney, deposit any of the
Subject Shares into a voting trust or enter into a voting agreement with respect
to any of the Subject Shares;

                  (c) take any action that would reasonably be expected to have
the effect of preventing or disabling the Stockholder from performing its
obligations under this Agreement or making any representation or warranty of the
Stockholder contained in this Agreement untrue or incorrect; or

                  (d) enter into any agreement or arrangement providing for any
of the actions described in clause (a), (b) or (c) above;

provided, however, nothing in this Agreement shall be deemed to prohibit or
restrict any sale or other disposition of any of the Subject Shares pursuant to
the terms of a trading plan adopted pursuant to Rule 10b5-1 under the Securities
Exchange Act of 1934, as amended, in effect prior to the date hereof.


                                       2

            Section 3. Representations and Warranties. The Stockholder hereby
represents and warrants to the Company as follows:

                  (a) Ownership. The Stockholder is, and, subject to the proviso
in Section 2, at all times prior to the termination of this Agreement in
accordance with Section 6 of this Agreement will be, the beneficial owner of the
Subject Shares. The Subject Shares constitute all of the issued and outstanding
shares of Parent capital stock owned of record or beneficially owned by the
Stockholder. Subject to the community property laws, the Stockholder has the
sole power to agree to all of the matters set forth in this Agreement, in each
case with respect to all of the Subject Shares, with no limitations,
qualifications or restrictions on such power, subject to applicable securities
laws and the terms of this Agreement. As of the date hereof, Stockholder does
not beneficially own any securities of Parent other than Parent Stock and
options to purchase such number of shares of Parent Stock, as indicated next to
the Stockholder's signature on the signature page to this Agreement.

                  (b) Power; Binding Agreement. The Stockholder has all
requisite legal capacity, power and authority to enter into and perform all of
its obligations under this Agreement. This Agreement has been duly and validly
executed and delivered by the Stockholder and constitutes a valid and binding
agreement of the Stockholder, enforceable against the Stockholder in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally and by general equitable principles. There is no beneficiary or
holder of a voting trust certificate or other interest of any trust of which the
Stockholder is trustee whose consent is required for the execution and delivery
of this Agreement or the consummation by the Stockholder of the transactions
contemplated hereby.

                  (c) No Encumbrances. All of the Subject Shares are, and, at
all times prior to the termination of this Agreement in accordance with Section
6 will be, held by the Stockholder free and clear of any Encumbrance, except as
may be created hereby.

            Section 4. Irrevocable Proxy. Concurrently with the execution of
this Agreement, Stockholder agrees to deliver to Parent the Proxy, which shall
be irrevocable to the fullest extent permitted by applicable law, with respect
to the Securities.

            Section 5. Further Assurances. From time to time, at the Company's
reasonable request and without further consideration, the Stockholder will
perform such further acts and execute and deliver such additional documents as
may be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Agreement.

            Section 6. Termination. This Agreement will terminate upon the
earlier to occur of (i) the date on which the Merger Agreement is terminated in
accordance with the provisions of Section 10.1 of the Merger Agreement, (ii) the
Effective Time and (iii) the mutual agreement in writing of the parties hereto
to terminate this Agreement. Following termination, this Agreement will be of no
further force and effect except that


                                       3

nothing herein will relieve any party from liability for any material breach of
this Agreement.

            Section 7. Stock Splits, Dividends, Etc. The Subject Shares shall be
deemed to include any shares of Company Common Stock issued as (or issuable upon
the conversion or exercise of any warrant, right, option or other convertible
security which is issued as) a dividend, stock split or other distribution,
recapitalization or reclassification with respect to, or in exchange for, or in
replacement of, such Subject Shares.

            Section 8. Miscellaneous.

                  (a) Amendments. This Agreement may not be amended, altered,
supplemented or otherwise modified or terminated except upon the execution and
delivery of a written agreement executed by the parties hereto.

                  (b) Notices. All notices and other communications hereunder
will be in writing and will be deemed duly given (i) on the date of delivery if
delivered personally, (ii) on the date of confirmation of receipt (or, the first
business day following such receipt if the date is not a business day) of
transmission by telecopy or telefacsimile, or (iii) on the date of confirmation
of receipt (or, the first business day following such receipt if the date is not
a business day) if delivered by a nationally recognized courier service. All
notices hereunder will be delivered as set forth below, or pursuant to such
other instructions as may be designated in writing by the party to receive such
notice:

                        (i) if to the Stockholder, to:

                        Bernard Liautaud
                        c/o Business Objects S.A.
                        Business Objects Americas, Inc.
                        3030 Orchard Parkway
                        San Jose, California 95134
                        Attention: General Counsel
                        Telephone: (408) 953-6000
                        Facsimile: (408) 953-6001

                        with a copy to:

                        Skadden, Arps, Slate, Meagher & Flom LLP
                        525 University Avenue, Suite 1100
                        Palo Alto, California 94301
                        Attention: Marc R. Packer
                                   Kenton J. King
                        Telephone: (650) 470-4500
                        Facsimile: (650) 470-4570

                        (ii) if to Parent:

                        Business Objects S.A.


                                       4

                        Business Objects Americas, Inc.
                        3031 Orchard Parkway
                        San Jose, California 95134
                        Attention: General Counsel
                        Telephone: (408) 953-6000
                        Facsimile: (408) 953-6001

                        with a copy to:

                        Skadden, Arps, Slate, Meagher & Flom LLP
                        525 University Avenue, Suite 1100
                        Palo Alto, California 94301
                        Attention: Marc R. Packer
                                   Kenton J. King
                        Telephone: (650) 470-4500
                        Facsimile: (650) 470-4570

                        (iii) if to the Company, to:

                        Crystal Decisions, Inc.
                        895 Emerson Street
                        Palo Alto, California  94301
                        Attention:  General Counsel
                        Telephone:  (650) 838-7410
                        Facsimile:  (650) 838-7451

                        with a copy to:

                        Crystal Decisions, Inc.
                        8840 Cambie Street
                        Vancouver, British Columbia
                        Canada  V6B 4J2
                        Attention:  Chief Financial Officer
                        Telephone:  (604) 681-3435
                        Facsimile:  (604) 681-2934

                        and with a copy to:

                        Wilson Sonsini Goodrich & Rosati
                        Professional Corporation
                        650 Page Mill Road
                        Palo Alto, California 94304
                        Attention: Larry W. Sonsini
                                   Martin W. Korman
                        Telephone: (650) 493-9300
                        Facsimile: (650) 493-6811


                                       5

                  (c) Counterparts. This Agreement may be executed in two or
more counterparts, and by facsimile, all of which will be considered one and the
same agreement and will become effective when one or more counterparts have been
signed by each of the parties and delivered to the other party, it being
understood that all parties need not sign the same counterpart.

                  (d) Entire Agreement; Third Party Beneficiaries. This
Agreement and the documents and instruments and other agreements among the
parties hereto as contemplated by or referred to herein, including the exhibits
hereto, (i) constitute the entire agreement among the parties with respect to
the subject matter hereof and supersede all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof, and (ii) are not intended to confer upon any other person any rights or
remedies hereunder.

                  (e) Severability. In the event that any provision of this
Agreement or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the application of
such provision to other Persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further agree
to replace such void or unenforceable provision of this Agreement with a valid
and enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of such void or unenforceable provision.

                  (f) Specific Performance. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties will be entitled
to seek an injunction or injunctions to prevent breaches of this Agreement and
to enforce specifically the terms and provisions hereof in any court of the
United States or any state having jurisdiction, this being in addition to any
other remedy to which they are entitled at law or in equity.

                  (g) Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
law thereof.

                  (h) Rules of Construction. The parties hereto agree that they
have been represented by counsel during the negotiation and execution of this
Agreement and, therefore, waive the application of any law, regulation, holding
or rule of construction providing that ambiguities in an agreement or other
document will be construed against the party drafting such agreement or
document.

                  (i) Assignment. This Agreement may not be assigned by any of
the parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties. Subject to the preceding sentence, but
without relieving any party hereto of any obligation hereunder, this Agreement
will be binding upon, inure to


                                       6

the benefit of and be enforceable by the parties and their respective successors
and assigns.

                  (j) No Waiver; Remedies Cumulative. No failure or delay on the
part of any party hereto in the exercise of any right hereunder will impair such
right or be construed to be a waiver of, or acquiescence in, any breach of any
representation, warranty or agreement herein, nor will any single or partial
exercise of any such right preclude other or further exercise thereof or of any
other right. Any and all rights and remedies existing under this Agreement are
cumulative to, and not exclusive to, and not exclusive of, any other right or
remedy otherwise available.

                  (k) Descriptive Heading. The descriptive headings used herein
are for reference purposes only and will not affect in any way the meaning or
interpretation of this Agreement.

                  (l) Expenses. All costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such expenses.

                  [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


                                       7

      IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized respective officers as of the date first
written above.

                                    By:
                                       ---------------------------------
                                    Name:
                                    as the Stockholder

                                    Shares beneficially owned:
                                                 shares of Parent Stock
                                    ------------
                                                 shares of Parent Stock
                                    ------------
                                       issuable upon the exercise of options


                                    BUSINESS OBJECTS S.A


                                    By:
                                       ---------------------------------
                                    Name:
                                    Title:


                                    CRYSTAL DECISIONS, INC.


                                    By:
                                       ---------------------------------
                                    Name:
                                    Title:


                      [SIGNATURE PAGE TO VOTING AGREEMENT]

                                     ANNEX I

                                IRREVOCABLE PROXY

      The undersigned Stockholder of Business Objects S.A., a societe anonyme
organized under the laws of the Republic of France ("Parent"), hereby
irrevocably (to the fullest extent permitted by applicable law) appoints Eric
Patel and Susan J. Wolfe and each of them individually, as the sole and
exclusive attorneys and proxies of the undersigned, with full power of
substitution and re-substitution, to the full extent of the undersigned's right,
with respect to the Subject Shares (as defined in the Voting Agreement dated as
of the date hereof (the "Voting Agreement") between Parent, Crystal Decisions,
Inc., a Delaware corporation (the "Company"), and the undersigned Stockholder)
until the termination of the Voting Agreement pursuant to its terms. Capitalized
terms used and not defined herein have the respective meanings ascribed to them
in the Voting Agreement. Upon the execution hereof, all prior proxies given by
the undersigned with respect to the matters set forth in clauses (a) and (b)
below are hereby revoked and no subsequent proxies will be given.

      This proxy is irrevocable to the fullest extent permitted by applicable
law, is granted pursuant to the Voting Agreement and is granted in consideration
of Parent entering into the Merger Agreement. This proxy is executed and
intended to be irrevocable to the fullest extent permitted by law in accordance
with the provisions of Section 212(c) of the Delaware General Corporation Law.
The attorneys and proxies named above are empowered to exercise all voting
rights (including, without limitation, the power to execute and deliver written
consents with respect to the Subject Shares) of the undersigned at any time
prior to termination of the Voting Agreement at every annual, special or
adjourned meeting of the stockholders of Parent and in every written consent in
lieu of such meeting as follows:

                  (a) in favor of the Parent Proposals and such other matters as
Parent reasonably believes are necessary to be approved under applicable law to
consummate the Mergers and the other transactions contemplated by the Merger
Agreement in accordance with the terms of the Merger Agreement; and

                  (b) against any actions (other than those actions that relate
to the Mergers and the other transactions contemplated by the Merger Agreement)
that would materially adversely affect the ability of Parent to consummate the
Mergers without material delay.

      The attorneys and proxies named above may not exercise this Proxy on any
other matter except as provided in clauses (a) and (b) above. The undersigned
Stockholder may vote the Subject Shares on all other matters.

      Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.

      This Proxy is coupled with an interest and is irrevocable to the fullest
extent permitted by law.

Dated: July __, 2003                Signature of Stockholder:

                                    ------------------------------------------


                                    Print Name of Stockholder:

                                    ------------------------------------------




                [SIGNATURE PAGE TO ANNEX I OF THE VOTING AGREEMENT,
                               IRREVOCABLE PROXY]