-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HgQZ3jl4TMGx0QgP5JjUnInpUWU+v1Luqs/OwUCToHq7joynT0leot6bMM4wNl8X h44htTHrUO3NaH5aKe+ZmA== 0000950142-02-000886.txt : 20020917 0000950142-02-000886.hdr.sgml : 20020917 20020917162944 ACCESSION NUMBER: 0000950142-02-000886 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20020917 GROUP MEMBERS: GAP (BERMUDA) LIMITED GROUP MEMBERS: GAP COINVESTMENT PARTNERS II, L.P. GROUP MEMBERS: GAPCO GMBH &CO KG GROUP MEMBERS: GAPCO MANAGEMENT GMBH GROUP MEMBERS: GAPSTAR, LLC GROUP MEMBERS: GENERAL ATLANTIC PARTNERS (BERMUDA), L.P. GROUP MEMBERS: GENERAL ATLANTIC PARTNERS, LLC SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: IXOS SOFTWARE AG CENTRAL INDEX KEY: 0001070394 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER INTEGRATED SYSTEMS DESIGN [7373] IRS NUMBER: 000000000 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-54821 FILM NUMBER: 02766130 BUSINESS ADDRESS: STREET 1: BRETONISCHER RING 12 STREET 2: GRASBRUNN MUNICH CITY: FEDERAL REPUBLIC OF GERMANY STATE: I8 ZIP: D 85630 BUSINESS PHONE: 4989460050 FORMER COMPANY: FORMER CONFORMED NAME: IXOS SOFTWARE STOCK CORP DATE OF NAME CHANGE: 19980915 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GENERAL ATLANTIC PARTNERS LLC CENTRAL INDEX KEY: 0001017645 STATE OF INCORPORATION: DE FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 3 PICKWICK STREET 2: 3 PICKWICK PLAZA CITY: GREENWICH STATE: CT ZIP: 08330 BUSINESS PHONE: 2036223050 MAIL ADDRESS: STREET 1: 3 PICKWICK STREET 2: 3 PICKWICK PLAZA CITY: GREENWICH STATE: CT ZIP: 08330 SC 13D 1 sc13d-ixos.txt SCHEDULE 13D ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------------- SCHEDULE 13D Under the Securities Exchange Act of 1934 ----------------------- IXOS SOFTWARE AG (Name of Issuer) BEARER ORDINARY SHARES (Title of Class of Securities) 46600V108 (CUSIP Number) THOMAS J. MURPHY C/O GENERAL ATLANTIC SERVICE CORPORATION 3 PICKWICK PLAZA GREENWICH, CONNECTICUT 06830 TEL. NO.: (203) 629-8600 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) ----------------------- SEPTEMBER 12, 2002 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 1(f) or 1(g), check the following box [_]. Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-1(a) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). ================================================================================ - ----------------------------- ----------------------------- 101388106 Page 2 of 20 - ----------------------------- ----------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON General Atlantic Partners, LLC - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (b) [_] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS OO - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF SHARES -0- BENEFICIALLY OWNED BY EACH ------------------------------------------------ REPORTING 8 SHARED VOTING POWER PERSON WITH 5,400,000 ------------------------------------------------ 9 SOLE DISPOSITIVE POWER -0- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 5,400,000 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,400,000 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 25.1% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON OO - -------------------------------------------------------------------------------- - ----------------------------- ----------------------------- 101388106 Page 3 of 20 - ----------------------------- ----------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON General Atlantic Partners (Bermuda), L.P. - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (b) [_] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS OO - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Bermuda - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF SHARES -0- BENEFICIALLY OWNED BY EACH ------------------------------------------------ REPORTING 8 SHARED VOTING POWER PERSON WITH 5,400,000 ------------------------------------------------ 9 SOLE DISPOSITIVE POWER -0- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 5,400,000 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,400,000 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 25.1% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- - ----------------------------- ----------------------------- 101388106 Page 4 of 20 - ----------------------------- ----------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON GAP (Bermuda) Limited - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (b) [_] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS OO - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Bermuda - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF SHARES -0- BENEFICIALLY OWNED BY EACH ------------------------------------------------ REPORTING 8 SHARED VOTING POWER PERSON WITH 5,400,000 ------------------------------------------------ 9 SOLE DISPOSITIVE POWER -0- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 5,400,000 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,400,000 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 25.1% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON CO - -------------------------------------------------------------------------------- - ----------------------------- ----------------------------- 101388106 Page 5 of 20 - ----------------------------- ----------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON GapStar, LLC - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (b) [_] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS OO - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Bermuda - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF SHARES -0- BENEFICIALLY OWNED BY EACH ------------------------------------------------ REPORTING 8 SHARED VOTING POWER PERSON WITH 5,400,000 ------------------------------------------------ 9 SOLE DISPOSITIVE POWER -0- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 5,400,000 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,400,000 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 25.1% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON OO - -------------------------------------------------------------------------------- - ----------------------------- ----------------------------- 101388106 Page 6 of 20 - ----------------------------- ----------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON GAP Coinvestment Partners II, L.P. - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (b) [_] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS OO - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF SHARES -0- BENEFICIALLY OWNED BY EACH ------------------------------------------------ REPORTING 8 SHARED VOTING POWER PERSON WITH 5,400,000 ------------------------------------------------ 9 SOLE DISPOSITIVE POWER -0- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 5,400,000 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,400,000 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 25.1% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- - ----------------------------- ----------------------------- 101388106 Page 7 of 20 - ----------------------------- ----------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON GAPCO GmbH & Co. KG - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (b) [_] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS OO - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Germany - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF SHARES -0- BENEFICIALLY OWNED BY EACH ------------------------------------------------ REPORTING 8 SHARED VOTING POWER PERSON WITH 5,400,000 ------------------------------------------------ 9 SOLE DISPOSITIVE POWER -0- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 5,400,000 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,400,000 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 25.1% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- - ----------------------------- ----------------------------- 101388106 Page 8 of 20 - ----------------------------- ----------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON GAPCO Management GmbH - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (b) [_] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS OO - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Germany - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF SHARES -0- BENEFICIALLY OWNED BY EACH ------------------------------------------------ REPORTING 8 SHARED VOTING POWER PERSON WITH 5,400,000 ------------------------------------------------ 9 SOLE DISPOSITIVE POWER -0- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 5,400,000 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,400,000 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 25.1% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON CO - -------------------------------------------------------------------------------- - ----------------------------- ----------------------------- 101388106 Page 9 of 20 - ----------------------------- ----------------------------- ITEM 1. SECURITY AND ISSUER. This statement on Schedule 13D relates to the bearer ordinary shares, no par value (the "Bearer Ordinary Shares"), of IXOS Software AG, a German stock corporation (the "Company"). The address of the principal executive office of the Company is Bretonischer Ring 12, D-85630 Grasbrunn/Munich, Germany. ITEM 2. IDENTITY AND BACKGROUND. This statement is being filed by a group, as defined in Rule 13d-5 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). The members of the group are General Atlantic Partners, LLC, a Delaware limited liability company ("GAP"), General Atlantic Partners (Bermuda), L.P., a Bermuda limited partnership ("GAP LP"), GAP (Bermuda) Limited, a Bermuda exempted company ("GAP Bermuda GenPar"), GapStar, LLC, a Delaware limited liability company ("GapStar"), GAP Coinvestment Partners II, L.P., a Delaware limited partnership ("GAPCO II"), GAPCO GmbH & Co. KG, a German limited partnership ("KG"), and GAPCO Management GmbH, a German corporation ("GmbH Management" and, collectively with GAP, GAP LP, GAP Bermuda GenPar, GapStar, GAPCO II and KG, the "Reporting Persons"). The Reporting Persons (other than GAP LP, GAP Bermuda GenPar, KG and GmbH Management) are located at 3 Pickwick Plaza, Greenwich, Connecticut 06830. GAP LP and GAP Bermuda GenPar are located at Clarendon House, Church Street, Hamilton HM 11, Bermuda. KG and GmbH Management are located c/o General Atlantic Partners GmbH, Koenigsallee 62, 40212 Duesseldorf, Germany. Each of the Reporting Persons is engaged in acquiring, holding and disposing of interests in various companies for investment purposes. - ----------------------------- ----------------------------- 101388106 Page 10 of 20 - ----------------------------- ----------------------------- The general partner of GAP LP is GAP Bermuda GenPar. GAP is the managing member of GapStar. GmbH Management is the general partner of KG. The managing members of GAP are Steven A. Denning, Peter L. Bloom, Peter Currie, Mark F. Dzialga, Erik Engstrom, Klaus Esser, William E. Ford, William O. Grabe, David C. Hodgson, Braden R. Kelly, Rene M. Kern, William J. Lansing, Matthew Nimetz, Clifton S. Robbins, Franchon M. Smithson, Tom C. Tinsely, Florian Wendelstadt and John Wong (collectively, the "GAP Managing Members"). The GAP Managing Members (other than Mr. Esser) are the general partners of GAPCO II. Each of the GAP Managing Members is a director and a Vice President of GAP Bermuda GenPar, except for Mr. Denning, who is a director and the President of GAP Bermuda GenPar. The business address of each of the GAP Managing Members (other than Messrs. Esser, Currie, Kelly, Lansing, Wendelstadt and Wong) is 3 Pickwick Plaza, Greenwich, Connecticut 06830. The business address of Mr. Esser is Koenigsallee 62, 40212, Duesseldorf, Germany. The business address of Mr. Wendelstadt is 83 Pall Mall, Sixth Floor, London SW1Y 5ES, United Kingdom. The business address of Messrs. Currie, Kelly and Lansing is 228 Hamilton Avenue, Palo Alto, California 94301. The business address of Mr. Wong is 24 Raffles Place, 29-04 Clifford Center, Singapore 048621. Messrs. Esser, Kern and Wendelstadt are citizens of Germany; Mr. Engstrom is a citizen of Sweden; and Mr. Wong is a citizen of Singapore. The present principal occupation or employment of each of the GAP Managing Members is as a managing member of GAP. Each of the GAP Managing Members, other than Messrs. Engstrom, Esser, Kern, Wendelstadt and Wong, is a citizen of the United States. None of the Reporting Persons and none of the above individuals has, during the last five years, been (i) convicted in a criminal proceeding (excluding traffic - ----------------------------- ----------------------------- 101388106 Page 11 of 20 - ----------------------------- ----------------------------- violations or similar misdemeanors) or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction or subject to any judgment, decree or final order finding any violation of federal or state securities laws or enjoining future violations of, or prohibiting or mandating activities subject to, such laws. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. Pursuant to (i) a Participation Agreement, dated August 12, 2002, by and among the Company, GAP LP, GapStar, GAPCO II and KG (the "Participation Agreement"), the Company agreed to sell to GAP LP, GapStar, GAPCO II and KG, and GAP LP, GapStar, GAPCO II and KG agreed to purchase from the Company, an aggregate of 1,800,000 Bearer Ordinary Shares for an aggregate purchase price of (euro)10,620,000, (ii) a Share Purchase Agreement, dated August 12, 2002, by and among GAP LP, GapStar, GAPCO II, KG, Eberhard Farber and Helga Farber (the "Farber Share Purchase Agreement"), Eberhard Farber and Helga Farber (collectively, the "Farbers") agreed to sell to GAP LP, GapStar, GAPCO II and KG, and GAP LP, GapStar, GAPCO II and KG agreed to purchase from the Farbers, an aggregate of 1,800,000 Bearer Ordinary Shares for an aggregate purchase price of (euro)11,700,000 and (iii) a Share Purchase Agreement, dated August 12, 2002, by and among GAP LP, GapStar, GAPCO II, KG, Hans Strack-Zimmermann and Sibylle Strack-Zimmermann (the "Zimmermann Share Purchase Agreement" and, together with the Participation Agreement and the Farber Share Purchase Agreement, the "Transaction Documents"), Hans Strack-Zimmermann and Sibylle Strack-Zimmermann (collectively, the "Zimmermanns") agreed to sell to GAP LP, GapStar, GAPCO II and KG, and GAP LP, GapStar, GAPCO II and KG agreed to purchase from the Zimmermanns, an aggregate of 1,800,000 Bearer Ordinary Shares for an aggregate purchase price of (euro)11,700,000. GAP LP, GapStar, - ----------------------------- ----------------------------- 101388106 Page 12 of 20 - ----------------------------- ----------------------------- GAPCO II and KG funded their subscription from the Company of 1,800,00 Bearer Ordinary Shares on September 17, 2002. The funding and consummation of the transactions contemplated by the Farber Share Purchase Agreement and the Zimmermann Share Purchase Agreement is expected to occur on or about September 23, 2002. See Item 6 for a more complete description. The consummation of the transactions contemplated by the Transaction Documents was subject to the approval of Germany's Federal Cartel Office (the "Cartel Office"), a material condition to closing (the "FCO Condition"). The FCO Condition was satisfied on September 12, 2002, upon the receipt of the Cartel Office's authorization to complete the transactions. All of the funds to purchase the Bearer Ordinary Shares from the Company, the Farbers and the Zimmermanns were obtained from contributions from partners of GAP LP, GAPCO II and KG, and advances under an existing credit facility for GapStar. ITEM 4. PURPOSE OF TRANSACTION. The Reporting Persons acquired beneficial ownership of the Bearer Ordinary Shares described in this Schedule 13D for investment purposes. From time to time the Reporting Persons may acquire additional Bearer Ordinary Shares and dispose of some or all of the Bearer Ordinary Shares owned by them. None of the Reporting Persons has any other plans which relate to or would result in any of the items listed in paragraphs (a) through (j) of Item 4. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. (a) As of the date hereof, GAP, GAP LP, GapStar, GAPCO II, KG and GmbH Management each own of record no Bearer Ordinary Shares, 4,689,222 - ----------------------------- ----------------------------- 101388106 Page 13 of 20 - ----------------------------- ----------------------------- Bearer Ordinary Shares, 350,394 Bearer Ordinary Shares, 352,824 Bearer Ordinary Shares, 7,560 Bearer Ordinary Shares and no Bearer Ordinary Shares, respectively, 0.0%, 21.8%, 1.6%, 1.66%, 0.04% and 0.0%, respectively, of the Company's issued and outstanding Bearer Ordinary Shares. By virtue of the fact that (i) the GAP Managing Members are the directors of GAP Bermuda GenPar and the senior executive officers (President, in the case of Mr. Denning, and Vice President, in the case of each of the other GAP Managing Members), (ii) GAP Bermuda GenPar is the general partner of GAP LP, (iii) the GAP Managing Members (other than Mr. Esser) are also the general partners authorized and empowered to vote and dispose of the securities held by GAPCO II, (iv) GAP is the managing member of GapStar and (v) the GAP Managing Members are authorized and empowered to vote and dispose of the securities held by KG, the Reporting Persons may be deemed to share voting power and the power to direct the disposition of the Bearer Ordinary Shares, which each owns of record. As of the date hereof, each of the Reporting Persons may be deemed to own beneficially an aggregate of 5,400,000 Bearer Ordinary Shares, or 25.1% of the issued and outstanding Bearer Ordinary Shares. (b) Each of the Reporting Persons has the shared power to direct the vote and the shared power to direct the disposition of the 5,400,000 Bearer Ordinary Shares that may be deemed to be owned beneficially by each of them. (c) Except as set forth herein, to the knowledge of the Reporting Persons with respect to the persons named in response to paragraph (a), none of the persons named in response to paragraph (a) has effected any transactions in Bearer Ordinary Shares during the past 60 days. - ----------------------------- ----------------------------- 101388106 Page 14 of 20 - ----------------------------- ----------------------------- (d) No person other than the persons listed is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, any securities owned by any member of the group. (e) Not Applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIP WITH RESPECT TO THE ISSUER. As noted in Item 5 above, GAP Bermuda GenPar is authorized and empowered to vote and dispose of the securities held by GAP LP, the GAP Managing Members (other than Mr. Esser) are authorized and empowered to vote and dispose of the securities held by GAPCO II, GAP is authorized and empowered to vote and dispose of the securities held by GapStar and the GAP Managing Members are authorized and empowered to vote and dispose of the securities held by KG. Accordingly, GAP Bermuda GenPar, GAP and the GAP Managing Members may, from time to time, consult among themselves and coordinate the voting and disposition of the Bearer Ordinary Shares, as well as such other action taken on behalf of the Reporting Persons with respect to the Bearer Ordinary Shares as they deem to be in the collective interest of the Reporting Persons. As described in Item 3 above, on August 12, 2002, GAP LP, GapStar, GAPCO II and KG entered into (i) the Participation Agreement, pursuant to which GAP LP, GapStar, GAPCO II and KG agreed to purchase from the Company, subject to the satisfaction of certain material conditions, including, without limitation, the FCO Condition, an aggregate of 1,800,000 Bearer Ordinary Shares for an aggregate purchase price of (euro)10,620,000, (ii) the Farber Share Purchase Agreement, pursuant to which GAP LP, GapStar, GAPCO II and KG agreed to purchase from the Farbers, subject to the - ----------------------------- ----------------------------- 101388106 Page 15 of 20 - ----------------------------- ----------------------------- satisfaction of the FCO Condition, an aggregate of 1,800,000 Bearer Ordinary Shares for an aggregate purchase price of (euro)11,700,000 and (iii) the Zimmermann Share Purchase Agreement, pursuant to which GAP LP, GapStar, GAPCO II and KG agreed to purchase from the Zimmermanns, subject to the satisfaction of the FCO Condition, an aggregate of 1,800,000 Bearer Ordinary Shares for an aggregate purchase price of (euro)11,700,000. The FCO Condition was satisfied on September 12, 2002, upon the receipt of the Cartel Office's authorization to complete the transactions. GAP LP, GapStar, GAPCO II and KG funded their subscription from the Company of 1,800,000 Bearer Ordinary Shares on September 17, 2002. The funding and consummation of the transactions contemplated by the Farber Share Purchase Agreement and the Zimmermann Share Purchase Agreement is expected to occur on or about September 23, 2002. Pursuant to the Participation Agreement, the Company agreed that at the next shareholders meeting (the "Shareholders Meeting"), it will nominate a designee of GAP LP, GapStar, GAPCO II and KG, collectively, to be elected to the supervisory board of the Company. In addition, GAP LP, GapStar, GAPCO II and KG, collectively, have the right to nominate a second designee to be elected as a substitute member of the supervisory board. If a member of the supervisory board leaves office after the Shareholders Meeting, then such substitute member shall replace the departing member of the supervisory board. In addition, pursuant to the Participation Agreement, for a period of 12 months after the consummation of the Participation Agreement has been registered in Germany's commercial register, GAP LP, GapStar, GAPCO II and KG shall not, without the prior written consent of the supervisory board, offer, sell, contract to sell or otherwise dispose of any of its Bearer Ordinary Shares, provided that the foregoing shall in no way - ----------------------------- ----------------------------- 101388106 Page 16 of 20 - ----------------------------- ----------------------------- prevent or restrict (i) any of GAP LP, GapStar, GAPCO II or KG from making a disposition of its Bearer Ordinary Shares (x) in connection with a sale of the Company or (y) to its affiliates or distributing the Bearer Ordinary Shares to its partners, members or investors (provided that the transferee agrees to be bound by the restrictions described in this sentence) or (ii) GapStar from pledging and granting a security interest in all or any portion of its Bearer Ordinary Shares to a lender to secure its obligations under a loan made to acquire such Bearer Ordinary Shares. Pursuant to the Farber Share Purchase Agreement, if either Eberhard Farber or Helga Farber wishes to sell any of his or her remaining shares in the Company, then Eberhard Farber or Helga Farber, as the case may be, must first offer such shares to each of GAP LP, GapStar, GAPCO II and KG, who have the right to purchase all or some of such shares. Pursuant to the Zimmermann Share Purchase Agreement, if Hans Strack-Zimmermann or Sibylle Strack-Zimmermann wishes to sell any of his or her remaining shares in the Company, then Hans Strack-Zimmermann or Sibylle Strack-Zimmermann, as the case may be, must first offer such shares to each of GAP LP, GapStar, GAPCO II and KG, who have the right to purchase all or some of such shares. The foregoing summaries of the Participation Agreement, the Farber Share Purchase Agreement and the Zimmermann Share Purchase Agreement are qualified in their entirety by reference to Exhibits 4, 5 and 6. Simultaneously with the consummation of the transactions contemplated by the Participation Agreement, the Company, GAP LP, - ----------------------------- ----------------------------- 101388106 Page 17 of 20 - ----------------------------- ----------------------------- GapStar, GAPCO II and KG entered into the Registration Rights Agreement, dated September 17, 2002 (the "Registration Rights Agreement"), pursuant to which the Company granted to GAP LP, GapStar, GAPCO II and KG, as a group, two long-form demand registration rights for an underwritten offering, three short-form registrations on Form F-3 or Form S-3 and customary "piggy-back" registration rights with respect to both primary and secondary offerings initiated by the Company or other stockholders of the Company. The foregoing summary of the Registration Rights Agreement is qualified in its entirety by reference to Exhibit 7. ITEM 7. MATERIALS TO BE FILED AS EXHIBITS. Exhibit 1: Agreement relating to the filing of joint acquisition statements as required by Rule 13d-1(k)(1) under the Securities Exchange Act of 1934, as amended. Exhibit 2: Power of Attorney dated January 7, 2002 appointing Thomas J. Murphy, Attorney-in-Fact for GAP (filed as Exhibit 2 to the Schedule 13D filed by GAP regarding Bottomline Technologies (DE), Inc. (File No. 005-57585)) is hereby incorporated by reference. Exhibit 3: Power of Attorney dated January 7, 2002 appointing Thomas J. Murphy, Attorney-in-Fact for GAPCO II (filed as Exhibit 3 to the Schedule 13D filed by GAP regarding Bottomline Technologies (DE), Inc. (File No. 005-57585)) is hereby incorporated by reference. Exhibit 4: Participation Agreement, dated August 12, 2002, by and among IXOS Software AG, General Atlantic Partners (Bermuda), L.P., GAP Coinvestment Partners II, L.P., GapStar, LLC and GAPCO GmbH & Co. KG. Exhibit 5: Share Purchase Agreement, dated August 12, 2002, by and among General Atlantic Partners (Bermuda), L.P., GAP Coinvestment Partners II, L.P., GapStar, LLC, GAPCO GmbH & Co. KG., Eberhard Farber and Helga Farber. - ----------------------------- ----------------------------- 101388106 Page 18 of 20 - ----------------------------- ----------------------------- Exhibit 6: Share Purchase Agreement, dated August 12, 2002, by and among General Atlantic Partners (Bermuda), L.P., GAP Coinvestment Partners II, L.P., GapStar, LLC, GAPCO GmbH & Co. KG., Hans Strack-Zimmermann and Sibylle Strack-Zimmermann. Exhibit 7: Registration Rights Agreement, dated September 17, 2002, among the Company, General Atlantic Partners (Bermuda) L.P., GAP Coinvestment Partners II, L.P., GapStar, LLC and GAPCO GmbH & Co. KG. - ----------------------------- ----------------------------- 101388106 Page 19 of 20 - ----------------------------- ----------------------------- SIGNATURES After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated September 17, 2002. GENERAL ATLANTIC PARTNERS, LLC By: /s/ Thomas J. Murphy --------------------------------------- Name: Thomas J. Murphy Title: Attorney-in-Fact GENERAL ATLANTIC PARTNERS (BERMUDA), L.P. By: GAP (Bermuda) Limited, Its general partner By: /s/ Matthew Nimetz --------------------------------------- Name: Matthew Nimetz Title: Vice President GAP (BERMUDA) LIMITED By: /s/ Matthew Nimetz --------------------------------------- Name: Matthew Nimetz Title: Vice President GAPSTAR, LLC By: General Atlantic Partners, LLC, Its managing member By: /s/ Thomas J. Murphy --------------------------------------- Name: Thomas J. Murphy Title: Attorney-in-Fact GAP COINVESTMENT PARTNERS II, L.P. By: /s/ Thomas J. Murphy --------------------------------------- Name: Thomas J. Murphy Title: Attorney-in-Fact - ----------------------------- ----------------------------- 101388106 Page 20 of 20 - ----------------------------- ----------------------------- GAPCO GMBH & CO. KG By: GAPCO Management GmBH, Its general partner By: /s/ Thomas J. Murphy --------------------------------------- Name: Thomas J. Murphy Title: Procuration Officer GAPCO MANAGEMENT GMBH By: /s/ Thomas J. Murphy --------------------------------------- Name: Thomas J. Murphy Title: Procuration Officer EX-99 3 ex1sc13d-ixos.txt EXHIBIT 1 EXHIBIT 1 to SCHEDULE 13D JOINT ACQUISITION STATEMENT PURSUANT TO RULE 13D-(k)(1) The undersigned acknowledge and agree that the foregoing statement on Schedule 13D is filed on behalf of each of the undersigned and that all subsequent amendments to this statement on Schedule 13D shall be filed on behalf of each of the undersigned without the necessity of filing additional joint acquisition statements. The undersigned acknowledge that each shall be responsible for the timely filing of such amendments, and for the completeness and accuracy of the information concerning him, her or it contained herein, but shall not be responsible for the completeness and accuracy of the information concerning the other entities or persons, except to the extent that he, she or it knows or has reason to believe that such information is accurate. Dated: September 17, 2002 GENERAL ATLANTIC PARTNERS, LLC By: /s/ Thomas J. Murphy --------------------------------------- Name: Thomas J. Murphy Title: Attorney-in-Fact GENERAL ATLANTIC PARTNERS (BERMUDA), L.P. By: GAP (Bermuda) Limited, Its general partner By: /s/ Matthew Nimetz --------------------------------------- Name: Matthew Nimetz Title: Vice President GAP (BERMUDA) LIMITED By: /s/ Matthew Nimetz --------------------------------------- Name: Matthew Nimetz Title: Vice President GAPSTAR, LLC By: General Atlantic Partners, LLC, Its managing member By: /s/ Thomas J. Murphy --------------------------------------- Name: Thomas J. Murphy Title: Attorney-in-Fact GAP COINVESTMENT PARTNERS II, L.P. By: /s/ Thomas J. Murphy --------------------------------------- Name: Thomas J. Murphy Title: Attorney-in-Fact GAPCO GMBH & CO. KG By: GAPCO Management GmBH, Its general partner By: /s/ Thomas J. Murphy --------------------------------------- Name: Thomas J. Murphy Title: Procuration Officer GAPCO MANAGEMENT GMBH By: /s/ Thomas J. Murphy --------------------------------------- Name: Thomas J. Murphy Title: Procuration Officer EX-99 4 ex4sc13d-ixos.txt EXHIBIT 4 EXHIBIT 4 to SCHEDULE 13D PARTICIPATION AGREEMENT By and between 1. General Atlantic Partners (Bermuda), L.P. Clarendon House, 2 Church Street Hamilton HM 11 Bermuda as "GAP LP" 2. GAP Coinvestment Partners II, L.P. c/o General Atlantic Service Corporation 3 Pickwick Plaza Greenwich, Connecticut 06830 USA as "GAP COINVESTMENT" 3. GapStar, LLC c/o General Atlantic Service Corporation 3 Pickwick Plaza Greenwich, Connecticut 06830 USA as "GAPSTAR" 4. GAPCO GmbH & Co. KG c/o General Atlantic Partners GmbH Konigsallee 62 40212 Dusseldorf as "GAPCO KG" GAP LP, GAP Coinvestment, GapStar and GAPCO KG, collectively, as "GENERAL ATLANTIC" 2/19 and 5. IXOS SOFTWARE AG Bretonischer Ring 12 85630 Grasbrunn/Munchen as the "COMPANY" - GAP LP, GAP Coinvestment, GapStar, GAPCO KG, and the Company each a "PARTY" and collectively the "PARTIES" - dated August 12, 2002 3/19 PREAMBLE A. IXOS SOFTWARE AG is a German stock corporation with its corporate seat in Grasbrunn and registered in the commercial register at the lower court Munich under HRB 116846. The share capital of the Company amounts to Euro 19,724,659.00 per June 30, 2002 and is split into 19,724,659 non-par value bearer shares (NENNWERTLOSE, AUF DEN INHABER LAUTENDE STUCKAKTIEN) with a nominal participation in the share capital of Euro 1.00 per share. The shares are fully paid up and have not been repaid. The shares are listed on the Regulated Market with trading in the Neuer Markt segment of the Frankfurt Stock Exchange (listing number 506150) and have a quotation on the Nasdaq National Market (listing number 916742) through an ADR program in the United States. The shares of the Company are evidenced in three global share certificates (GLOBALURKUNDEN) and in three global dividend certificates related hereto (SAMMELGEWINNANTEILSSCHEINE) which are held in trust by Clearstream Banking AG, Frankfurt. B. The Company holds participations in the following direct and indirect subsidiaries (collectively the "SUBSIDIARIES"): - IXOS SOFTWARE Australia Pty. Ltd., Melbourne - IXOS SOFTWARE (Austria) GmbH, Wien - IXOS SOFTWARE s.r.o., Prague - IXOS SOFTWARE K.K., Tokyo - IXOS SOFTWARE SDN.BHD., Kuala Lumpur - IXOS SOFTWARE Asia Pte. Ltd., Singapore - IXOS SOFTWARE (International) AG, Biel - IXOS SOFTWARE Ltd., Maidenhead - IXOS SOFTWARE, Inc., San Mateo, CA - IXOS (Netherlands) B.V., Hilversum. 4/19 C. To the best knowledge of the management board of the Company the shares of the Company are held as follows (record date: June 30th, 2002): SHAREHOLDER NUMBER OF SHARES Eberhard Farber 1,570,083 Helga Farber 1,175,590 Hans Strack-Zimmermann 1,652,926 Sibylle Strack-Zimmermann 1,175,590 Management / Employees 1,972,466 SAP 952,701 Free Float 11,225,303 D. Pursuant to Section 5 (5) of the articles of association the management board (VORSTAND) of the Company is entitled with the consent of the supervisory board (AUFSICHTSRAT) for a period until November 25, 2004 to increase the share capital up to EUR 1,800,000.00 and to issue up to 1,800,000 new shares against cash contributions ("GENEHMIGTES KAPITAL I"); in this context, the management board is authorized to exclude the pre-emption rights of the shareholders if the subscription price is not materially lower than the stock exchange price (BORSENKURS). E. General Atlantic wishes to invest certain funds in the Company in consideration of new shares in the Company. F. The weighted average stock exchange price (GEWICHTETER DURCHSCHNITTLICHER BORSENKURS) at the close of business (SCHLUSSKURS) at the Frankfurt Stock Exchange (Xetra) of the Company's shares during the last 5 consecutive trading days prior to the signing of this Agreement ("SIGNING") was EUR 5.09. The Parties thus agree as follows: 5/19 SECTION 1 CAPITAL INCREASE; REGISTRATION IN THE COMMERCIAL REGISTER 1.1 In order to implement the participation of General Atlantic in the Company, the management board of the Company and the supervisory board of the Company shall resolve to increase the Company's share capital from EUR 19,724,659.00 by EUR 1,800,000.00 to EUR 21,524,659.00 using authorized capital (GENEHMIGTES KAPITAL) (the "CAPITAL INCREASE"). General Atlantic shall exclusively be admitted to subscribe for the 1,800,000.00 new shares (the "NEW SHARES") and the respective pre-emption rights of the shareholders shall be excluded in accordance with Section 5 (5) of the Company's articles of association. The total subscription price shall be EUR 10.620.000 (the "SUBSCRIPTION PRICE"). The Subscription Price comprises of the nominal amount of EUR 1,800,000.00 plus the additional purchase price (AUFGELD). The New Shares and the Subscription Price thereof shall be allocated among GAP LP, GAP Coinvestment, GapStar and GAPCO KG as set forth on ANNEX I hereto. The respective resolutions of the management board and the supervisory board shall be taken substantially in the form attached hereto as ANNEX II (German version and English convenience translation) and ANNEX III (German version and English convenience translation). 1.2 General Atlantic shall subscribe for the New Shares immediately, latest within three Banking Days (as defined in Section 5.2 below), after (i) the resolutions by both the management board and the supervisory board (Annex II and III) have been delivered to General Atlantic, and (ii) all of the following conditions precedent (AUFSCHIEBENDE BEDINGUNGEN) (each a "CONDITION PRECEDENT" or, collectively, the "CONDITIONS PRECEDENT") have been fulfilled: 1.2.1 One of the following must take place: (i) Notification from the Federal Cartel Office (BUNDESKARTELLAMT, the "FCO") that the prohibition requirements according to Sec. 36 GWB are not fulfilled; or 6/19 (ii) Expiry of the one month time limit from submission of a complete notification to the FCO as laid down in Sec. 40 para 1 GWB, without the Parties having been notified by the FCO that it has entered into the examination of the proposed concentration; or (iii) Expiry of the four-month time limit, or an extended time limit, from submission of a complete notification to the FCO as laid down in Sec. 40 para 2 GWB, without the FCO having issued a prohibition order. 1.2.2 Dr. Christopher Schonberger and the substitute member (ERSATZMITGLIED), Mr. Klaus-Dieter Laidig, have declared their resignation from their office as member and substitute member of the supervisory board with effect as of October 31, 2002 and the Company has provided General Atlantic with copies of the respective resignation letters (telecopy is sufficient). 1.2.3 The Company's Guarantees set forth in Section 3 of this Agreement are true and correct. On the Subscription Date (as defined below), the Company shall deliver to General Atlantic a certificate signed by a duly authorized officer of the Company certifying that the Company's Guarantees set forth in Section 3 of this Agreement are true and correct as of the Subscription Date (for clarification only, acceptance of this statement by General Atlantic and the payment of the Subscription Price shall not be deemed a waiver of General Atlantic's rights under Section 3a if a Company's Guarantee are not true or correct). 1.2.4 There has been no material adverse change in the business, assets or prospects of the Company between Signing and August 31, 2002. General Atlantic is free to waive the fulfillment of the conditions set forth in Sections 1.2.2 through 1.2.4 above. The date upon which General Atlantic subscribes for the New Shares is referred to hereinafter as the "SUBSCRIPTION DATE". Immediately upon Subscription Date General Atlantic shall provide the Company with two copies of the subscription declarations (ZEICHNUNGSSCHEINE) which shall be executed substantially in the form attached hereto as ANNEX IV (German version and English convenience translation). 7/19 1.3 General Atlantic shall pay the Subscription Price, i.e. the nominal amount (i.e. EUR 1,800,000.00) and the additional subscription price (i.e. EUR 8.820.000 to the special account named "Processing Account/Abwicklungskonto" of the Company at Commerzbank in Munchen, account number 5909973, routing number 700 400 41, SWIFT-Code COBA DEFF 700 not later than seven Banking Days after the Subscription Date, but in any event not earlier than August 23, 2002. The date upon which the Company receives the Subscription Price shall be referred to as the "PAYMENT DATE". 1.4 The Company shall file for the registration of the consummation of the Capital Increase in the commercial register (EINTRAGUNG DER DURCHFUHRUNG DER KAPITALERHOHUNG IM HANDELSREGISTER) immediately after (i) General Atlantic has handed over the subscription declarations in accordance with Section 1.2 above and (ii) General Atlantic has paid the Subscription Price to the Company's account in accordance with Section 1.3 above. The Company shall undertake all measures necessary to ensure that the consummation of the Capital Increase is registered in the commercial register. 1.5 After the Company has filed for the registration of the consummation of the Capital Increase in the commercial register (the "FILING") and after the consummation of the Capital Increase has been registered in the commercial register (the "CLOSING") the Company shall immediately provide General Atlantic with a copy of the registration notification by the commercial register. 1.6 The Parties undertake to use all reasonable endeavors and to render to each other all reasonably necessary support and cooperation to ensure that the Conditions Precedent (in particular, without limitations, the Condition Precedent set forth in Section 1.2.1) are fulfilled as soon as possible after Signing. The Parties shall inform each other in writing without undue delay if the Conditions Precedent are fulfilled or duly waived. 8/19 SECTION 2 LISTING OF THE NEW SHARES 2.1 Immediately upon Closing, the Company shall together with an adequate banking institute to be agreed upon with General Atlantic file a motion with Deutsche Borse AG to list the New Shares on the Regulated Market with trading to be commenced in the Neuer Markt segment of the Frankfurt Stock Exchange. The Company shall explicitly apply for a waiver of the requirement to publish a prospectus in accordance with ss.ss. 73 (3) German Securities Exchange Act (BORSG), 65 BorsO, 45 no. 3 lit. b BorsZulV and Section 5.2 no. 3 lit. b) Listing Rules Neuer Markt (REGELWERK NEUER MARKT). The Company shall take all measures necessary to ensure the listing of the New Shares on the Regulated Market with trading in the Neuer Markt segment of the Frankfurt Stock Exchange, including, without limitations, the preparation and publication of a prospectus if so required by Deutsche Borse AG. 2.2 Immediately upon Closing, the Company shall through BHF-Bank or another self-selected bank institute deliver to Clearstream Banking AG a global share certificate (GLOBALURKUNDEN) for the New Shares and a global dividend certificate related hereto (SAMMELGEWINNANTEILSSCHEINE) in order to ensure the crediting of the New Shares to General Atlantic's depository account. 2.3 With respect to the listing and registration rights of the New Shares in the U.S., the Parties shall immediately upon Signing execute a Registration Rights Agreement in the form attached hereto as ANNEX V. SECTION 3 REPRESENTATION AND WARRANTIES BY THE COMPANY The Company hereby guarantees by way of an independent guarantee pursuant to ss. 311 German Civil Code (BGB) and subject to the limitations set forth in Section 3a that the statements set forth hereinafter are true and correct as of Signing and, unless explicitly specified below otherwise, of Closing (the "COMPANY'S Guarantees"): 9/19 3.1 The Company is duly incorporated and validly existing under the laws of Germany. The statements in Preamble A, B and D are correct. 3.2 The management board and the supervisory board have each taken all actions required by law, articles of association, bylaws or otherwise to validly authorize the execution of this Agreement. No other corporate action is necessary on the part of the Company to authorize the execution of this Agreement. This Agreement, when executed, constitutes a legal, valid, and binding obligation of the Company enforceable under German law to consummate the transactions contemplated hereby. 3.3 Neither the execution nor the consummation of transactions contemplated hereby directly or indirectly contravene (i) any governmental authorization, legal requirement or order to which the Company is bound or subject, (ii) any provision of the Company's organizational documents, (iii) any resolution adopted by the respective supervisory board or management board or stockholders of the Company, or (iv) any agreement to which the Company is a party to, including, but not limited to, license agreements or agreements which would entitle a third party to demand from the Company the grant of a security interest or to amend an existing security. 3.4 As of the respective dates of their filing with the Regulatory Authorities (as defined below), all reports, registration statements and other filings, together with any amendments thereto, filed by the Company with the Regulatory Authorities since January 1, 1999 (the "REPORTS"), complied in all material respects with the applicable requirements of (1) (a) to the best knowledge of the board of management of the Company in the case of filings made prior to June 1, 2000 with the Federal Financial Supervisory Authority (BUNDESANSTALT FUR FINANZDIENSTLEISTUNGEN) and its predecessors, with Deutsche Borse AG or with the commercial register (HANDELSREGISTER), the rules and regulations of the German Stock Corporation Act (AKTG), the German Stock Exchange Act (BORSG) and the German Securities Trading Act (WPHG) and the administrative regulations (RECHTSVERORDNUNGEN) promulgated thereunder and did not 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 10/19 light of the circumstances under which they were made, not misleading and (b) in case of filings made on or after June 1, 2000 with the Federal Financial Supervisory Authority (BUNDESANSTALT FUR FINANZDIENSTLEISTUNGEN) and its predecessors, with Deutsche Borse AG or with the commercial register (HANDELSREGISTER), the rules and regulations of the German Stock Corporation Act (AKTG), the German Stock Exchange Act (BORSG) and the German Securities Trading Act (WPHG) and the administrative regulations (RECHTSVERORDNUNGEN) promulgated thereunder and did not 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, (2) (a) to the best knowledge of the management board of the Company in the case of filings made prior to January 1, 2001 with the United States Securities and Exchange Commission, the United States Securities Act of 1933, the United States Securities Exchange Act of 1934, and the rules and regulations promulgated thereunder and did not 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 and (b) in the case of filings made on or after January 1, 2001 with the United States Securities and Exchange Commission, the United States Securities Act of 1933, the United States Securities Exchange Act of 1934, and the rules and regulations promulgated thereunder and did not 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 and (3) in the case of filings made with the Nasdaq Stock Market, Inc. ("NASDAQ"), the rules and regulations of Nasdaq. "REGULATORY AUTHORITIES" shall be defined as the government of any nation, state, city, locality or other political subdivision thereof, and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government including, without limitation, the Deutsche Borse AG. 11/19 3.5 The audited consolidated financial statements of the Company and its Subsidiaries (balance sheet and statements of operations, cash flow and stockholders' equity, together with the notes thereto) for the fiscal year ended June 30, 2001 which contains the unqualified report of Arthur Andersen Wirtschaftsprufungsgesellschaft Steuerberatungsgesellschaft mbH (the "AUDITED FINANCIAL STATEMENTS") and the unaudited consolidated financial statements of the Company and its Subsidiaries (balance sheet and statements of operations) for the fiscal quarters ended September 30, 2001, ended December 31, 2001, ended March 31, 2002 and ended June 30, 2002 and for the fiscal year ended June 30, 2002 (the "UNAUDITED FINANCIAL STATEMENTS" and, together with the Audited Financial Statements, the "FINANCIAL STATEMENTS") set forth in the Reports are complete and correct in all material respects and have been prepared in accordance with US GAAP applied on a consistent basis throughout the periods indicated and with each other, except that the Unaudited Financial Statements do not contain footnotes or normal year-end adjustments. The Financial Statements fairly present in all material respects the financial condition, operating results and cash flows of the Company and its Subsidiaries as of the respective dates and for the respective periods indicated in accordance with GAAP, except that the Unaudited Financial Statements do not contain footnotes or normal year-end adjustments. 3.6 Except for labor law affairs relating to the dismissal of employees (KUNDIGUNGSSCHUTZKLAGEN) not exceeding a potential liability of EUR 50,000.00 and except as disclosed in the Reports or in ANNEX 3.6 hereto, there are no actions, suits, proceedings, claims (including, without limitation, claims involving the prior employment of any of the Company's or any of its Subsidiaries' employees, their use in connection with the Company's or any of its Subsidiaries' business of any information or techniques allegedly proprietary to any of their former employers or their obligations under any agreements with prior employers), complaints, disputes, arbitrations or investigations pending or, to the best knowledge of the management board of the Company, threatened against the Company or any of its Subsidiaries nor is the Company or any of its Subsidiaries aware that there is any basis for any of the foregoing that could reasonably be expected to have a material adverse effect on the assets, business, properties, operations or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole. 12/19 3.7 Neither the Company nor the Subsidiaries are insolvent or indebted and there are no reasons to believe that such insolvency or indebtedness is imminent. SECTION 3A REMEDIES 3a.1 In the event of any breach or non-fulfillment by the Company of any of the Company's Guarantees, the Company shall be liable for putting General Atlantic into the same position that they would have been in if the Company's Guarantees had been correct or had not been breached (NATURALRESTITUTION), or, at the election of General Atlantic, by payment of the amount necessary to restore the damage suffered by General Atlantic to the warranted position (SCHADENSERSATZ). 3a.2 All claims of General Atlantic arising under this Agreement shall be time-barred 24 months after Closing, except for all claims of General Atlantic relating to the breach of the Company's Guarantees set forth in Sections 3.1, 3.2 and 3.3 which shall be time barred on the seventh anniversary of Closing. 3a.3 General Atlantic shall have the right to claim damages because of breach of Company's Guarantees only, if the aggregate amount of all claims exceeds EUR 500,000.00, but then for the full amount of such claims (FREIGRENZE). The liability of the Company under Section 3a.1 is in any event limited to 50% of the Subscription Price, provided that any claims of General Atlantic arising from a breach of the Company's Guarantees contained in Sections 3.1, 3.2 and 3.3 shall not be limited to 50% of the Subscription Price. 3a.4 The Company shall not be liable for a breach of the Company's Guarantees if and to the extent that the matter to which the claim of General Atlantic relates has been taken into account in the Financial Statements by way of a specific liability (VERBINDLICHKEIT), specific provision (RUCKSTELLUNG), depreciation (ABSCHREIBUNG) or exceptional depreciation (AUSSERPLANMASSIGE Abschreibung). 13/19 3a.5 The Company shall not be liable for a breach of the Company's Guarantees if and to the extent that the matter to which General Atlantic's claim relates has been disclosed explicitly and in writing by the Company to General Atlantic at Signing. 3a.6 The Parties are in agreement that the remedies that General Atlantic may have against the Company for breach of obligations set forth in this Agreement are solely governed by this Agreement, and the remedies provided for by this Agreement shall be the exclusive remedies available to General Atlantic (i.e., any further rights and claims for breach of obligations set forth in this Agreement General Atlantic may have, including but not limited to any rights of repeated performance (NACHERFULLUNG), any rights of rescission e.g. for non-fulfillment (in part), any right to rescind (RUCKTRITT) this Agreement or to require the winding-up (RUCKABWICKLUNG) or the alteration (Anpassung) of the transaction contemplated hereunder (e. g. by way of SCHADENSERSATZ STATT DER LEISTUNG or STORUNG ODER WEGFALL DER GESCHAFTSGRUNDLAGE), or the reduction of the purchase price (MINDERUNG) and/or any claims for breach of pre-contractual obligations (CULPA IN CONTRAHENDO), or incilliary obligations (POSITIVE FORDERUNGSVERLETZUNG) or reimbursement of costs (AUFWENDUNGSERSATZ) other than expressly regulated under this Agreement are hereby expressly excluded and waived by General Atlantic). The Parties are further in agreement that under no circumstances shall to the Company's Guarantees be construed as representations of the Company with respect to the quality of the New Shares within the meaning of Section 443 German Civil Code (GARANTIE FUR DIE BESCHAFFENHEIT DER SACHE) and therefore, General Atlantic explicitly waive the application of Section 444 German Civil Code. SECTION 4 SUPERVISORY BOARD 4.1 If so requested by General Atlantic, the Company shall start proceedings pursuant to SECTION 104 German Stock Corporation Act (AKTG) and file a motion with the respective court to appoint a person nominated by General Atlantic (the "FIRST GA NOMINEE") as the new member of the supervisory board of the Company. 14/19 4.2 The Company shall in the next general shareholders meeting (the "NEXT SHAREHOLDERS MEETING") nominate the First GA Nominee to be elected member of the supervisory board and shall further nominate a second person to be elected substitute member of the supervisory board of the Company (the "SECOND GA NOMINEE"). The Next Shareholders Meeting is scheduled to take place on November 19, 2002. If a member of the supervisory board (other than Messrs. Schonberger and Laidig, see Section 1.2.2 above) leaves office after the Next Shareholders Meeting, the Second GA Nominee shall replace such member of the supervisory board. SECTION 4A PRESS RELEASES 4a.1 Neither Party shall, without the prior written consent of the other Parties, disclose the contents of this Agreement to third parties or make any information relating thereto available to third parties. This shall not, however, apply to the extent a Party or any affiliate of a Party may be obliged to make any announcement or disclosure under applicable laws or regulations (including, but not limited to the rules of relevant stock exchanges). In addition, General Atlantic may disclose (i) this Agreement and the transactions contemplated hereby to their investors in order to satisfy their periodic reporting obligations and internally consistent with past practice and (ii) disclose on its worldwide web page the name of the Company, the Company's logo, the name of the Chief Executive Officer of the Company and the aggregate amount of General Atlantic's investment in the Company. 4a.2 Except for disclosures or statements required under applicable laws or regulations, any press releases or public statements by one Party in connection with this Agreement shall be mutually agreed upon between the Parties prior to the release hereof. 4a.3 The Company shall not issue a press release or public announcement concerning General Atlantic without the prior written consent of General Atlantic. 15/19 SECTION 4B RESCISSION RIGHTS (RUCKTRITTSRECHTE) 4b.1 General Atlantic shall have the right to rescind (ZURUCKTRETEN) this Agreement without any liability to the Company if Filing has not occurred on or prior to five (5) Banking Days after the Payment Date without any liability to the Company, provided that the Company shall repay to General Atlantic any amount already paid by General Atlantic in accordance with Section 1.3 above. 4b.2 In case Filing shall not have occurred on or prior to October 31, 2002 (the "RESCISSION DATE"), each Party shall have the right to rescind (ZURUCKTRETEN) this Agreement without liability to any of the Parties. General Atlantic shall in this case further have the right to rescind the subscription declarations for the New Shares (see Section 1.2 above) and the Company shall repay to General Atlantic any amount already paid by General Atlantic in accordance with Section 1.3 above, provided, however, that if Filing has not occurred on or prior to the Rescission Date because the Condition Precedent stated in Section 1.2.1 above has not been fulfilled by that date, then the Rescission Date shall be extended to December 31, 2002, i.e. the Parties may rescind this Agreement only if Filing has not occurred on or prior to December 31, 2002. 4b.3 The Parties shall further have the rescission rights of Section 4b.2 if the Condition Precedent of Section 1.2.1 is fulfilled after October 31, 2002, but Closing has not taken place on or prior to December 31, 2002. SECTION 4C LOCK-UP General Atlantic will not, without the prior written consent of the supervisory board of the Company, offer, sell, contract to sell or otherwise dispose of any of its shares of the Company (each of the foregoing, a "DISPOSITION") for a period of 12 months after Closing, provided, however, that nothing in this Section 4c shall prevent or restrict (i) General Atlantic from making a Disposition of its shares in connection with a sale of the Company, (ii) General Atlantic from making a Disposition of its shares to its affiliates or distributing 16/19 the shares to its partners, members or investors (provided that the transferee agrees to be bound by the terms of this Section 4c) or (iii) GapStar from pledging and granting a security interest in all or any portion of its shares to a lender to secure its obligations under a loan made to acquire such shares. SECTION 5 MISCELLANEOUS 5.1 Each Party shall bear the costs of its advisors. The Company shall bear the costs of (i) the Capital Increase including registration of its consummation in the commercial register, (ii) the listing/registration of the New Shares and (iii) the proceeding in accordance with SECTION 104 GermaN Stock Corporation Act (AKTG), if any. 5.2 "BANKING DAYS" shall mean days banks are open for business in Frankfurt/Main. 5.3 In this Agreement the headings are inserted for convenience only and shall not affect the interpretation of this Agreement; where a German term has been inserted in italics it alone (and not the English term to which it relates) shall be authoritative for the purpose of the interpretation of the relevant English term in this Agreement. 5.4 This Agreement, including this provision, may only be amended by written (including telecopy) or, if necessary, notarial instrument. 5.5 All notices and other communications hereunder shall - unless expressly provided otherwise - be made in writing and shall be delivered or sent by registered mail or courier to the addresses below or to such other addresses which may be specified by any Party to the other Party in the future in writing: for General Atlantic: c/o General Atlantic Service Corporation 3 Pickwick Plaza Greenwich, Connecticut 06830 17/19 USA Attn: Matthew Nimetz Telecopy: +01-203-618-9207 with copy to: Freshfields Bruckhaus Deringer Prannerstrasse 10 80333 Munich Germany Attn: Dr. Peter Nussbaum Telecopy: +49-89-20702-100 and Paul, Weiss, Rifkind, Wharton & Garrison 1285 Avenue of the Americas New York, New York 10019-6064 USA Attn: Douglas A. Cifu, Esq. Telecopy: +01-212-757-3990 for the Company Bretonischer Ring 12 85630 Grasbrunn Germany Attn.: Dr. Manuel Dohr Telecopy: +49 89-4629-33-1868 with copy to: Baker & McKenzie Theatinerstrasse 23 80333 Munich 18/19 Germany Attn.: Dr. Andreas Hoffmann Telecopy: +49 89 55238 199 5.6 Should any provision of this Agreement be held wholly or in part invalid or unenforceable, the validity or enforceability of the other parts shall not be affected thereby. In place of the invalid or unenforceable provision the Parties shall agree on an appropriate valid and enforceable provision which serves best the economic interest of the contract Parties originally pursued by the invalid or unenforceable provision. 19/19 5.7 This Agreement shall be governed by and construed in accordance with the laws of Germany. The exclusive jurisdiction for legal actions from or in connection with this Agreement is Munich. Grasbrunn, August 12, 2002 General Atlantic Partners GAP Coinvestment Partners II, L.P.: (Bermuda), L.P.: By: GAP (Bermuda) Limited its general partner By: /s/ Frank Henkelmann By: /s/ Frank Henkelmann --------------------------- --------------------------- Name: Frank Henkelmann Name: Frank Henkelmann --------------------------- --------------------------- GapStar, LLC GAPCO GmbH & Co. KG: By: General Atlantic Partners, LLC, By: GAPCO Management GmbH, its managing member its general partner By: /s/ Frank Henkelmann By: /s/ Klaus Esser --------------------------- --------------------------- Name: Frank Henkelmann Name: Klaus Esser --------------------------- --------------------------- IXOS SOFTWARE AG IXOS SOFTWARE AG /s/ Peter Rau /s/ Hartmut Schaper --------------------------- --------------------------- Name: Peter Rau Name: Hartmut Schaper --------------------------- --------------------------- ANNEX I ZUM PARTICIPATION AGREEMENT NEW SHARES AND SUBSCRIPTION PRICE --------------------------------- GENERAL ATLANTIC NEW SHARES SUBSCRIPTION PRICE ---------------- ---------- ------------------ (IN EUR) GAP LP 1,563,074 9,222,136.60 GAP Coinvestment 117,608 693,887.20 GapStar 116,798 689,108.20 GAPCO KG 2,520 14,868 Total 1,800,000 10,620,000 EX-99 5 ex5sc13d-ixos.txt EXHIBIT 5 EXHIBIT 5 to SCHEDULE 13D SHARE PURCHASE AGREEMENT By and between 1. General Atlantic Partners (Bermuda), L.P. Clarendon House, 2 Church Street Hamilton HM 11 Bermuda as "GAP LP" 2. GAP Coinvestment Partners II, L.P. c/o General Atlantic Service Corporation 3 Pickwick Plaza Greenwich, Connecticut 06830 USA as "GAP COINVESTMENT" 3. GapStar, LLC c/o General Atlantic Service Corporation 3 Pickwick Plaza Greenwich, Connecticut 06830 USA as "GAPSTAR" 4. GAPCO GmbH & Co. KG c/o General Atlantic Partners GmbH Konigsallee 62 40212 Dusseldorf as "GAPCO KG" GAP LP, GAP Coinvestment, GapStar and GAPCO KG, collectively, as the "PURCHASERS" [GRAPHIC OMITTED - LOGO] FRESHFIELDS BRUCKHAUS DERINGER 2/23 5. Eberhard Farber Knobelstra(beta)e 8a 80538 Munchen 6. Helga Farber Knobelstra(beta)e 8a 80538 Munchen the Parties to 5. through 6., collectively, as the "SELLING STOCKHOLDERS" dated August 12, 2002 3/23 PREAMBLE A. IXOS SOFTWARE AG is a German stock corporation with its corporate seat in Grasbrunn and registered in the commercial register at the lower court Munich under HRB 116846 (the "Company"). The share capital of the Company amounts to Euro 19,724,659.00 and is split into 19,724,659 non-par value bearer shares (NENNWERTLOSE, AUF DEN INHABER LAUTENDE STUCKAKTIEN) with a nominal participation in the share capital of Euro 1.00 per share. The shares are listed on the Regulated Market with trading at the Neuer Markt Segment of the Frankfurt Stock Exchange (listing number 506150) and have a quotation on the Nasdaq National Market (listing number 916742) through an ADR program in the United States. The Company's shares are evidenced in three global share certificates (GLOBALURKUNDEN) and in three global dividend certificates related hereto (SAMMELGEWINNANTEILSSCHEINE) (collectively "CERTIFICATES"). The Certificates are held in trust by Clearstream Banking AG, Frankfurt. B. The Selling Stockholders hold the following shares in the Company: ----------------------------------------------------------------------- SELLING STOCKHOLDER NUMBER OF SHARES ----------------------------------------------------------------------- Eberhard Farber 1,569,050 ----------------------------------------------------------------------- Helga Farber 1,176,500 ----------------------------------------------------------------------- All shares held by the Selling Stockholders are collectively referred to hereinafter as "SELLING STOCKHOLDERS' SHARES". C. Purchasers are interested to acquire up to approx. 29.9% of the shares of the Company by (i) subscribing for up to 1,800,000 new shares to be issued to Purchasers in a capital increase from authorized capital (GENEHMIGTES KAPITAL) with exclusion of the pre-emption rights in accordance with Section 5.5 of the Company's articles of association (the "CAPITAL INCREASE") and (ii) acquiring shares directly from the Selling Stockholders and from Hans and Sibylle Strack-Zimmermann (the "OTHER STOCKHOLDERS") by entering into a share purchase agreement with the Other Stockholders (the "OTHER AGREEMENT"). For purposes of subscribing for the new shares in the context of the Capital Increase Purchasers and the Company envisage to enter into a participation 4/23 agreement outlining their respective obligations in the course of the Capital Increase (the "PARTICIPATION AGREEMENT"). The Parties are aware and know that the Purchasers and the Selling Stockholders may possess certain non-public information concerning the Company and its subsidiaries. The Parties hereby explicitly confirm that they have entered into this Agreement irrespective of any non-public information and that the purchase price to be paid by the Purchasers to the Selling Stockholders under this Agreement has been determined on a valuation of the Company which is independent from the stock exchange price for the Company's shares. D. The Selling Stockholders wish to sell an aggregate of 1,800,000 Selling Stockholders' Shares (the "PURCHASED SHARES") to Purchasers, and Purchasers wish to purchase the Purchased Shares at a price equal to EUR 6.50 per share. The Selling Stockholder' Shares which remain with the Selling Stockholders and are not sold to the Purchasers are set forth in ANNEX I and are collectively referred to hereinafter as the "REMAINING SHARES". Now, therefore, the Parties agree as follows: SECTION 1 SALE AND ASSIGNMENT OF PURCHASED SHARES 1.1 Selling Stockholders hereby sell and assign their respective Purchased Shares (see Preamble D. above and Annex I) to Purchasers with all rights and obligations pertaining thereto. Moreover, Selling Stockholders hereby assign to Purchasers their respective claims for delivery (HERAUSGABEANSPRUCH) of the Certificates vis-a-vis Clearstream Banking AG. The Purchased Shares shall be allocated among GAP LP, GAP Coinvestment, GapStar and GAPCO KG as set forth in the ANNEX II hereto. Purchasers hereby accept these sales and assignments. 5/23/ 1.2 The sale and assignment of the respective Purchased Shares and the assignment of the claims for delivery of the Certificates is subject to all Conditions Precedent (as defined in Section 3.2 below) and to the conditions precedent set forth in Section 7c. The assignment of the respective Purchased Shares is also subject to (additional condition precedent; AUFSCHIEBENDE BEDINGUNG) the payment of the respective Individual Purchase Price (as defined in Section 2.2 below) in accordance with Section 2 below. 1.3 Purchasers shall inform Selling Stockholders in writing without undue delay that the Conditions Precedent (as defined in Section 3.2 below) and the conditions precedent set forth in Section 7c have been fulfilled. For purposes of this notification, Peters, Schonberger & Partner, attn: Dr. Klaus D. Hofner (see Section 8.7 below) shall act as a representative of the Selling Stockholders (EMPFANGSBEVOLLMACHTIGTER). Without undue delay after receipt of this notification, the Selling Stockholders shall give irrevocable instructions to their respective deposit bank (with a copy to Freshfields Bruckhaus Deringer, attn. Dr. Peter Nussbaum (see below Section 8.7)) to transfer the Purchased Shares to a single depository account of Purchasers to be notified to Selling Stockholders by Purchasers prior to Closing against simultaneous (ZUG-UM-ZUG) payment of the Individual Purchase Price (as defined in Section 2.2). 1.4 Purchasers are exclusively entitled to the profits of the current business year as well as the profits of preceding business years not yet distributed to the Selling Stockholders (i.e. profits carried forward and profits of preceding business years with respect to which no resolution to distribute the profits has been passed). SECTION 2 PURCHASE PRICE 2.1 As purchase price for the sale and assignment of the Purchased Shares pursuant to Section 1.1 above Purchasers shall pay to Selling Stockholders a cash consideration of EUR 6.50 (in words: Euro six and fifty cents) per Purchased Share. The purchase prices paid to the Selling Stockholders shall be allocated among GAP LP, GAP Coinvestment, GapStar and GAPCO KG as set forth in the ANNEX II hereto. 6/23 2.2 The purchase price paid to each Selling Stockholder according to the preceding Section 2.1 and Annex II (the "INDIVIDUAL PURCHASE PRICE") shall be made by wire transfer against simultaneous (ZUG-UM-ZUG) transfer of the Purchased Shares to the depository accounts of Purchasers (see Section 1.3 above) to the following Selling Stockholder's bank accounts: Eberhard Farber Bank: Dresdner Bank, Munchen Bank Sorting Code : 700 800 00 Account No.: 368964500 Helga Farber Bank: Dresdner Bank, Munchen Bank Sorting Code : 700 800 00 Account No.: 322889700 2.3 Each Individual Purchase Price is payable on the date of Closing (as defined in Section 3.1). 2.4. In the event that an Individual Purchase Price is not paid in accordance with this Section 2, Purchasers shall pay to the affected Selling Stockholders 4 % p.a. interest above the prevailing three months Frankfurt EURIBOR rate as published on Closing for the prior Banking Day in the BORSEN-ZEITUNG on any outstanding portion thereof. SECTION 3 SIGNING, CLOSING, CONDITIONS PRECEDENT 3.1 Signing and Closing shall each have the following meaning: 3.1.1 "SIGNING" shall be the day on which this Agreement has been duly executed. 3.1.2 "CLOSING" shall be not later than five Banking Days (as defined in Section 8.3) after the Conditions Precedent (as defined in the Section 7/23 3.2) and the conditions precedent set forth in Section 7c have been fulfilled. 3.2 The sale and assignment of the Purchased Shares to Purchasers is - in addition to the payment of the Individual Purchase Price (see Section 2.2 above) - subject to the following conditions precedent (AUFSCHIEBENDE BEDINGUNGEN) (the "CONDITIONS PRECEDENT"), unless one or all of them have been duly waived by the Purchasers: 3.2.1 The Purchasers have subscribed for up to 1,800,000 new shares of the Company to be issued in the Capital Increase as contemplated in the Participation Agreement and the Company has filed for the registration of the consummation of the Capital Increase in the commercial register. 3.2.2 In so far as the proposed concentration is subject to the German Act against Restraints on Competition (GWB), one of the following must take place: (i) Notification from the Federal Cartel Office (FCO) that the prohibition requirements according to Sec. 36 GWB are not fulfilled; or (ii) Expiry of the one month time limit from submission of a complete notification to the FCO as laid down in Sec. 40 para 1 GWB, without the parties having been notified by the FCO that it has entered into the examination of the proposed concentration; or (iii) Expiry of the four month time limit, or an extended time limit, from submission of a complete notification to the FCO as laid down in Sec. 40 para 2 GWB, without the FCO having issued a prohibition order. 3.2.3 Insofar as the planned concentration has to be notified in other countries in accordance with the anti-trust laws applicable in those countries and execution of the proposed concentration is prohibited until the proposed concentration has been approved by the appropriate 8/23 national cartel authorities, the national cartel authorities in these countries must have give all the necessary approvals. 3.2.4 The conditions precedent set forth in Section 7c shall have been satisfied. SECTION 4 SELLING STOCKHOLDERS' GUARANTEES 4.1 Each of the Selling Stockholders guarantees (GARANTIERT) to Purchasers by way of an independent guarantee pursuant to ss. 311 (1) German Civil Code (BGB) and subject to the limitations seT forth in Section 5 that the following statements are true and correct as of Signing and of Closing (collectively "SELLING STOCKHOLDERS' GUARANTEES"): 4.1.1 Such Selling Stockholder has the legal capacity to execute, deliver and perform his or its obligations under this Agreement. 4.1.2 The execution, delivery and performance by such Selling Stockholder of this Agreement and the transactions of such Selling Stockholder contemplated hereby, (i) if applicable, have been duly authorized by all necessary action of the Selling Stockholder, (ii) do not violate, conflict with or result in any breach or contravention of, or the creation of any security interest under, any contractual obligation of such Selling Stockholder, or any legal requirement or order applicable to such Selling Stockholder, and (iii) do not violate any judgment, injunction, award, decree or order of any nature or any agreement against, or binding upon, such Selling Stockholder. Such Selling Stockholder is not party to, or bound by, any agreement that is currently in effect, granting rights to any third party which are inconsistent with the rights to be granted by such Selling Stockholder in this Agreement. 4.1.3 The Company is duly incorporated and validly existing under the laws of Germany. The Purchased Shares as described in Annex II and all rights pertaining thereto (i) exist in the amounts set out herein and (ii) are fully paid-up and have not been repaid. 9/23 4.1.4 Such Selling Stockholder owns beneficially its Purchased Shares being sold to the Purchasers and has good and valid title to such Purchased Shares which are free and clear of any third party rights, and are not pledged, assigned, charged or used as a security. Such Selling Stockholder has the unrestricted power and authority to transfer its Purchased Shares to the Purchasers. 4.1.5 Except for any filings mandatory under statutory law (e.g., without limitations, filings in accordance with the German Securities Trading Act (WPHG)) or any waiting periods under the current insider trading policy of the Company to which the Selling Stockholders are subject (if applicable), no approval, compliance, exemption, or other action by, or notice to, or filing with, any Regulatory Authority or any other third party, and no lapse of a waiting period under any legal requirement, order or contractual obligation is necessary or required in connection with the execution, delivery or performance, by or enforcement against such Selling Stockholder of this Agreement or the transactions of such Selling Stockholder contemplated hereby. 4.1.6 This Agreement has been duly executed and delivered by such Selling Stockholder and constitutes the legal, valid and binding obligation of such Selling Stockholder, enforceable against such Selling Stockholder under German law in accordance with its terms, except as enforceability may be limited by applicable insolvency or other similar laws relating to or affecting the rights of creditors. 4.1.7 There are no actions, suits, proceedings, claims, arbitrations or investigations pending or, to the knowledge of such Selling Stockholder, threatened, against such Selling Stockholder which could impact the validity of the transfer of title to the Purchased Shares and/or the clearance of the Purchased Shares of any third party rights. 4.1.8 This Agreement does not contain any untrue statements by the Selling Stockholders. 4.1.9 Such Selling Stockholder (i) knows that the Purchasers may possess certain non-public information concerning the Company and/or its subsidiaries that may or may not be independently known to such 10/23 Selling Stockholder (all of such non-public information referred to in this paragraph is hereinafter referred to as the "NON-PUBLIC Information"), (ii) has entered into this Agreement and agrees to consummate the transactions contemplated by this Agreement notwithstanding that it is aware that the Non-Public Information may exist and that the Non-Public Information has not been disclosed to such Selling Stockholder, (iii) confirms and acknowledges that neither the existence of Non-Public Information, the substance of any Non-Public Information nor the fact that Non-Public Information has not been disclosed to such Selling Stockholder is material to it or to its determination to enter into this Agreement and consummate the transactions contemplated hereby, (iv) acknowledges that it is a sophisticated seller with respect to the Purchased Shares and has independently and without reliance upon the Purchasers or the Company and based on such information as such Selling Stockholder has deemed appropriate in its independent judgment made its own analysis and decision to enter into this Agreement and (v) acknowledges that the Purchasers have not made and do not make any representation or warranty, whether express or implied, of any kind or character except as expressly set forth in this Agreement and the Purchasers have no obligations to such Selling Stockholder, whether express or implied, including, without limitation, fiduciary obligations, except for those express obligations set forth herein. 4.2 "REGULATORY AUTHORITY" shall be defined as the government of any nation, state, city, locality or other political subdivision thereof, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including, without limitations, the Deutsche Borse AG. 4.3 Except for the Selling Stockholder's Guarantees as set forth in Section 4.1 the Selling Stockholders do not give any additional guarantees in respect to the Purchased Shares and/or the Company. 11/23 SECTION 4A PURCHASERS' GUARANTEES 4a.1 Each of the Purchasers guarantees (GARANTIERT) to Selling Stockholders by way of an independent guarantee pursuant to ss. 311 (1) German Civil Code (BGB) and subject to the limitations seT forth in Section 5a that the following statements are true and correct as of Signing and of Closing (collectively "PURCHASERS' GUARANTEES"): 4a.1.1 Such Purchaser has the power and authority to execute, deliver and perform its obligations under this Agreement. 4a.1.2 The execution, delivery and performance by such Purchaser of this Agreement and the transactions of such Purchaser contemplated hereby, (i) have been duly authorized by all necessary action of the Purchaser, (ii) do not contravene the terms of the organizational documents, or any amendment thereof, of such Purchaser, (iii) do not violate, conflict with or result in any breach or contravention of, or the creation of any security interest under, any contractual obligation of such Purchaser, or any legal requirement or order applicable to such Purchaser, and (iv) do not violate any judgment, injunction, award, decree or order of any nature or agreement against, or binding upon, such Purchaser. Such Purchaser is not party to, or bound by, any agreement that is currently in effect, granting rights to any third party which are inconsistent with the rights to be granted by such Purchaser in this Agreement. 4a.1.3 Except for any mandatory statutory law measures (e.g., without limitations, antitrust approval (see Section 3.2.1) or filings in accordance with the German Securities Trading Act (WPHG)), no approval, compliance, exemption, authorization, or other action by, or notice to, or filing with, any Regulatory Authority or any other third party, and no lapse of a waiting period under any legal requirement, order or contractual obligation is necessary or required in connection with the execution, delivery or performance, by or enforcement against such Purchaser of this Agreement or the transactions of such Purchaser contemplated hereby. 12/23 4a.1.4 This Agreement has been duly executed and delivered by such Purchaser and constitutes the legal, valid and binding obligation of such Purchaser, enforceable against such Purchaser in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or other similar laws relating to or affecting the rights of creditors. 4a.1.5 There are no actions, suits, proceedings, claims, arbitrations or investigations pending or, to the knowledge of such Purchaser, threatened, against such Purchaser purporting to enjoin or restrain the execution, delivery or performance by such Purchaser of this Agreement. 4a.1.6 This Agreement does not contain any untrue statements of a material fact by the Purchasers. 4a.2 Except for the Purchasers' Guarantees as set forth in Section 4a.1, Purchasers do not give any additional guarantees in respect to this Agreement. SECTION 5 REMEDIES FOR PURCHASERS 5.1 In the event of any breach or non-fulfillment by Selling Stockholders of any of the Selling Stockholders' Guarantees listed in Section 4.1, Selling Stockholders shall be liable for putting Purchasers into the same position that they would have been in if the Selling Stockholders' Guarantees had been correct or had not been breached (NATURALRESTITUTION), or, at the election of Purchasers, by payment of the amount necessary to restore the damage suffered by the respective Purchaser to the warranted position (SCHADENSERSATZ). 5.2 All claims of Purchasers arising under this Agreement shall be time-barred on the second anniversary of Closing, except for all claims of Purchasers in respect of liabilities for defects of title arising from a breach in respect of Section 4.1.1 through 4.1.4 and 4.1.6 which shall be time barred on the seventh anniversary of Closing. 13/23 5.3 Purchasers have the right to claim damages because of breach of Selling Stockholders' Guarantees only, if the aggregate amount of all claims exceeds EUR 500,000.00 but then for the full amount of such claims (FREIGRENZE). The aggregate liability of the Selling Stockholders under Section 5.1 is in any event limited to 50 % of the respective Individual Purchase Price, provided that any claims of Purchasers arising from a breach of the Selling Stockholders' Guarantees contained in Sections 4.1.3 and 4.1.4 shall be limited to the respective Individual Purchase Price. 5.4 The Parties are in agreement that the remedies that Purchasers may have against Selling Stockholders for breach of obligations set forth in this Agreement are solely governed by this Agreement, and the remedies provided for by this Agreement shall be the exclusive remedies available to Purchasers. The Parties are further in agreement that under no circumstances shall Selling Stockholders' Guarantees be construed as representations of Selling Stockholders with respect to the quality of the Purchased Shares within the meaning of Section 443 German Civil Code (GARANTIE FUR DIE BESCHAFFENHEIT DER SACHE) and therefore, Purchasers explicitly waive the application of Section 444 German Civil Code. SECTION 5A REMEDIES FOR SELLING STOCKHOLDERS 5a.1 In the event of any breach or non-fulfillment by Purchasers of any of the Purchasers' Guarantees listed in Section 4a.1 Purchasers shall be liable for putting Selling Stockholders into the same position that they would have been in if the Purchasers' Guarantees had been correct or had not been breached (NATURALRESTITUTION), or, at the election of Selling Stockholders, by payment of the amount necessary to restore the damage suffered by the respective Selling Stockholders to the warranted position (SCHADENSERSATZ). 5a.2 All claims of Selling Stockholders arising under this Agreement shall be time-barred on the second anniversary of Closing. 5a.3 Selling Stockholders have the right to claim damages because of breach of Purchasers' Guarantees only, if the aggregate amount of all claims exceeds EUR 500,000.00, but then for the full amount of such claims (FREIGRENZE). 14/23 The aggregate liability of the Purchasers under Section 5a.1 is in any event limited to EUR 1,000,000.00. Selling Stockholders shall have no right to claim damages because of breach of Purchasers' Guarantees if and as long as the respective Individual Purchase Price has been paid to the respective Selling Stockholder and the Selling Stockholder has not repaid the Individual Purchase Price to Purchasers. 5a.4 The Parties are in agreement that the remedies that Selling Stockholders may have against Purchasers for breach of obligations set forth in this Agreement are solely governed by this Agreement, and the remedies provided for by this Agreement shall be the exclusive remedies available to Selling Stockholders. SECTION 6 NON-COMPETE 6.1 Mr. Eberhard Farber agrees that he will not for a period of two years after Signing directly or indirectly compete with the Company or its subsidiaries. For purposes of this Section 6.1 "compete" means to undertake, to be engaged (whether as an employee, director or advisor) in, or to hold an interest or a profit participation in (other than through the Company), the software business for archiving (ARCHIVIERUNG) or document management (DOKUMENTENMANAGEMENT) within Germany or any other jurisdiction the Company itself or through its subsidiaries is currently active. 6.2 The restrictions contained in Section 6.1 do not affect or prohibit the right to acquire or hold shares of any class, for passive investment purposes only, amounting to less than five percent of the capital of a competing company. In addition, the restrictions contained in Section 6.1 do not apply to CoWare AG, Munchen, and Gauss Interprise AG, Hamburg. 6.3 Mr. Eberhard Farber agrees that he will not for a period of two years after Signing directly or indirectly solicit or actively seek to entice away any employee of the Company or its subsidiaries. 6.4 For each case of violation of the stipulations set forth in Sections 6.1 and Section 6.3, notwithstanding whether committed intentionally or negligently, 15/23 the violating Party shall pay a contractual penalty in the amount of EUR 100,000.00 to Purchasers. This Section 6.4 does, however, not preclude Purchasers to claim actual damages. SECTION 7 TRANSFER OF REMAINING SHARES 7.1 If a Selling Stockholder (a "TRANSFERRING STOCKHOLDER") wishes to sell any of the Remaining Shares in whole or in part, then such Transferring Stockholder must give written notice (the "TRANSFER NOTICE") to Purchasers of his intention, the number of Remaining Shares proposed to be sold (the "OFFERED SHARES") and the proposed purchase price (the "OFFER PRICE"). For purposes of receiving Transfer Notices, GAP LP shall act as a representative (EMPFANGSBEVOLLMACHTIGTER) for all Purchasers, i.e. the Transferring Stockholders shall only give Transfer Notice to GAP LP. On receipt of the Transfer Notice, Purchasers shall have the right to elect to buy all or some of the Offered Shares and to accept the offer made by the Transferring Stockholder at the Offer Price specified in the Transfer Notice by giving written notice to the Transferring Stockholder as soon as possible but in any event not later than fourteen (14) calendar days of receiving the Transfer Notice indicating the number of Offered Shares to be purchased and how such Offered Shares shall be allocated among GAP LP, GAP Coinvestment, GapStar and GAPCO KG (the "ACCEPTANCE NOTICE"). For purposes of giving the Acceptance Notice, GAP LP shall act as a representative for Purchasers, i.e. GAP LP shall give the notice as set forth in the preceding sentence on behalf of all Purchasers. With the acceptance of the offer the Transferring Stockholder and Purchasers enter into the share purchase agreement regarding such Offered Shares pursuant to which the Transferring Stockholder will guarantee that he owns beneficially the Offered Shares being sold to the Purchasers and has good and valid title to such Offered Shares which are free and clear of any third party rights, and are not pledged, assigned, charged or used as a security. Purchasers may assign its rights under this Section 7.1 to any of its affiliated investment partnerships. 7.2 If Purchasers do not wish to purchase the Offered Shares pursuant to Section 7.1, they shall inform the Transferring Stockholder about this decision as soon as possible, but not later than fourteen (14) calendar days of receiving Transfer 16/23 Notice (the "NON-ACCEPTANCE NOTICE"). Without undue delay, but not later than fourteen (14) calendar days after receipt of the Non-Acceptance Notice, Purchasers shall inform the Transferring Stockholder as to the method of disposition of the Offered Shares, e.g. by sale in a block trade, conducting of a road-show, etc. For a period of six (6) weeks after receipt of the Non-Acceptance Notice (the "SALES PERIOD"), (i) the Transferring Stockholder may sell the Offered Shares at a price equal to or higher than the Offer Price in a block trade (i.e. not through the stock exchange) and (ii) Purchasers and the Transferring Stockholder shall consult with each other in an effort to achieve an orderly disposition of the Offered Shares. 7.3 If the Offered Shares are not sold during the Sales Period, then after the lapse of the Sales Period and provided that the Transferring Stockholder has acted in accordance with Sections 7.1 and 7.2, the Transferring Stockholder shall be free to sell the Offered Shares (i) at a price equal to or higher than the Offer Price or (ii) at another price (the "NEW PRICE") if the Transferring Stockholder has offered in writing the Offered Shares for sale to Purchasers at the New Price (the "NEW TRANSFER NOTICE") and Purchasers have not given notice to buy the Offered Shares at the New Price within seven (7) calendar days of receiving the New Transfer Notice or (iii), if the New Price is not exceeding market price at the close of business (SCHLU(BETA)KURS) at the date of the New Transfer Notice, at this market price; Section 7.1 sHall apply MUTATIS MUTANDIS. 7.4 For each case of violation of the stipulations set forth in Sections 7.1 and 7.2, notwithstanding whether committed intentionally, negligently or without negligence, the violating Selling Stockholder shall pay to Purchasers a contractual penalty in the amount of 10 % of the proceeds from the sale of the Offered Shares. This Section 7.4 does, however, not preclude Purchasers to claim actual damages. 7.5 The restrictions set forth in this Section 7 shall not apply to the transfer of Remaining Shares to a GmbH (GESELLSCHAFT MIT BESCHRANKTER HAFTUNG) or AG (AKTIENGESELLSCHAFT) incorporated under German law (the "HOLDING COMPANY") if (i) the Holding Company is wholly owned by the Selling Stockholders, their respective spouses or their direct descendants and (ii) if the Holding Company has acceded to this Agreement. If the Holding Company ceases to be wholly owned by the Selling Stockholders or their direct descendants, the Holding Company shall retransfer the respective Remaining 17/23 Shares to such Selling Stockholder that initially transferred the Remaining Shares to the Holding Company. 7.6 The provision of this Section 7 shall terminate twelve (12) months after Closing. SECTION 7A PRESS RELEASES 7a.1 Neither Party shall, without the prior written consent of the other Parties, disclose the contents of this Agreement to third parties or make any information relating thereto available to third parties. This shall not, however, apply to the extent a Party or any affiliate of a Party may be obliged to make any announcement or disclosure under applicable laws or regulations (including, but not limited to the rules of relevant stock exchanges). In addition after the first public announcement regarding this Agreement, Purchasers may disclose this Agreement and the transactions contemplated hereby to their investors in order to satisfy their periodic reporting obligations and internally consistent with past practice. For clarification purposes, this provision shall not apply to disclosures on a no-name basis. 7a.2 Except for disclosures or statements required under applicable laws or regulations, any press releases or public statements by one Party in connection with this Agreement shall be mutually agreed upon between the Parties prior to the release hereof. SECTION 7B RESCISSION RIGHTS (RUCKTRITTSRECHTE) 7b.1 If the Other Stockholders rescind or contest the validity (ANFECHTEN) of the Other Agreement with Purchasers, for reasons whatsoever, Purchasers shall have the right to rescind (ZURUCKTRETEN) this Agreement without any liability to the Selling Stockholders within 10 Banking Days following receipt of the notice by the Other Stockholders that the Other Stockholders rescind or contest the validity of the Other Agreement. 18/23 7b.2 Each Party shall have the right to rescind (ZURUCKTRETEN) this Agreement without any liability to any of the Parties if (i) antitrust clearance (see Sections 3.2.2 and 3.2.3 above) has not been obtained on or prior to five (5) Banking Days after expiration of the 4-month period set forth in Section 3.2.2 (iii) or (ii) the Company has not filed for the registration of the consummation of the Capital Increase in the commercial register as contemplated in the Participation Agreement on or prior to ten (10) Banking Days after expiration of the 4-month period set forth in Section 3.2.2 (iii). 7b.3 The Selling Stockholders shall have the right to rescind (ZURUCKTRETEN) this Agreement without any liability to any of the Parties if Purchasers have not paid the respective Individual Purchase Price in accordance with Sections 2.2 and 2.3 within ten (10) Banking Days after Closing. SECTION 7C ADDITIONAL CONDITIONS PRECEDENT 7c.1 The entire Agreement shall be subject to the condition precedent (AUFSCHIEBENDE BEDINGUNG) that the Purchasers have entered into the Participation Agreement with the Company on or prior to August 19, 2002. For clarification purposes, if the condition precedent set forth in this Section 7c.1 has not been fulfilled, this Agreement has never become effective (WIRKSAM). 7c.2 The entire Agreement shall also be subject to the condition precedent (AUFSCHIEBENDE BEDINGUNG) that the Purchasers have entered into the Other Agreement with the Other Stockholders on or prior to August 19, 2002. For clarification purposes, if the condition precedent set forth in this Section 7c.2 has not been fulfilled, this Agreement has never become effective (WIRKSAM). SECTION 8 MISCELLANEOUS 8.1 All expenses, costs, fees and charges in connection with the transactions contemplated under this Agreement including, without limitations, legal 19/23 services, shall be borne by the Party commissioning the respective costs, fees and charges. 8.2 In this Agreement the headings are inserted for convenience only and shall not affect the interpretation of this Agreement; where a German term has been inserted in italics it alone (and not the English term to which it relates) shall be authoritative for the purpose of the interpretation of the relevant English term in this Agreement. All Annexes to this Agreement constitute an integral part of this Agreement. 8.3 "BANKING DAYS" shall mean days banks are open for business in Frankfurt/Main. 8.4 The Selling Stockholders shall not be jointly and severally liable under this Agreement, i.e. they shall only be responsible for their respective obligations and liabilities incurred under this Agreement (TEILSCHULDNER). 8.5 Amendments to this Agreement, including this provision, must be made in writing (including telecopy) by the Parties or in any other legally required form, if so required. 8.6 The Selling Stockholders shall not be entitled to assign any rights or claims under this Agreement without the written consent of Purchasers. 8.7 All notices and other communications hereunder shall - unless expressly provided otherwise - be made in writing and shall be delivered or sent by registered mail or courier to the addresses below or to such other addresses which may be specified by any Party to the other Party in the future in writing: for Purchasers: c/o General Atlantic Service Corporation 3 Pickwick Plaza Greenwich, Connecticut 06830 USA Attn: Matthew Nimetz Telecopy: +01-203-618-9207 20/23 with copy to: Freshfields Bruckhaus Deringer Prannerstrasse 10 80333 Munchen Germany Attn: Dr. Peter Nussbaum Telecopy: +49-89-20702-100 for Eberhard Farber Geyerstra(beta)e 42 80469 Munchen with copy to: Peters, Schonberger & Partner Schackstrasse 2 80539 Munchen Germany Attn: Dr. Klaus D. Hofner Telecopy: +49-89-38172-204 for Helga Farber Knobelstra(beta)e 8a 80538 Munchen with copy to: Peters, Schonberger & Partner Schackstrasse 2 80539 Munchen Germany Attn: Dr. Klaus D. Hofner Telecopy: +49-89-38172-204 8.8 Should any provision of this Agreement be held wholly or in part invalid or unenforceable, the validity or enforceability of the other parts shall not be affected thereby. In place of the invalid or unenforceable provision the Parties shall agree on an appropriate valid and enforceable provision which serves best the economic interest of the contract Parties originally pursued by the invalid or unenforceable provision. 21/23 8.9 This Agreement shall be governed by and construed in accordance with the laws of Germany. The exclusive jurisdiction for legal actions from or in connection with this Agreement is Munich, Germany (Regional Court Munich I).
August 12 2002 August 12 2002 - ------------, ------------ ------------, ------------ General Atlantic Partners (Bermuda), L.P.: GAP Coinvestment Partners II, L.P.: By: GAP (Bermuda) Limited its general partner By: /s/ Frank Hemkelmann By: /s/ Frank Hemkelmann ----------------------------- ---------------------------- Name: Frank Hemkelmann Name: Frank Hemkelmann --------------------------- -------------------------- August 12 2002 August 12 2002 - ------------, ------------ ------------, ------------ GapStar, LLC GAPCO GmbH & Co. KG: By: General Atlantic Partners, LLC, By: GAPCO Management GmbH, its managing member its general partner By: /s/ Frank Hemkelmann By: /s/ Frank Hemkelmann ----------------------------- ---------------------------- Name: Frank Hemkelmann Name: Frank Hemkelmann --------------------------- -------------------------- August 12 2002 August 12 2002 - ------------, ------------ ------------, ------------ Eberhard Farber Helga Farber /s/ Eberhard Farber /s/ Helga Farber - -------------------------------- -------------------------------- Name: Eberhard Farber Name: Helga Farber --------------------------- --------------------------
22/23 ANNEX I REMAINING SHARES ---------------- - -------------------------------------------------------------------------------- SELLING STOCKHOLDERS REMAINING SHARES - -------------------------------------------------------------------------------- Eberhard Farber 569,050 - -------------------------------------------------------------------------------- Helga Farber 376,500 - -------------------------------------------------------------------------------- 23/23 ANNEX II
- ---------------------------------------------------------------------------------------------------------------------------- SELLING STOCKHOLDERS PURCHASED PURCHASE PRICE FOR PURCHASED PURCHASE PRICE FOR PURCHASED SHARES SHARES SOLD TO PURCHASED SHARES SHARES SOLD TO PURCHASED SHARES SOLD TO GAPSTAR GAP LP SOLD TO GAP LP GAP SOLD TO GAP COINVESTMENT COINVESTMENT - ---------------------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------------------- Eberhard Farber 868,374 EUR 5,644,431 65,338 EUR 424,697 64,888 - ---------------------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------------------- Helga Farber 694,700 EUR 4,515,550 52,270 EUR 339,755 51,910 - ---------------------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------------------- ============================================================================================================================ TOTAL 1,563,074 EUR 10,159,981 117,608 EUR 764,452 116,798 - ----------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------- SELLING STOCKHOLDERS PURCHASE PRICE FOR PURCHASED SHARES PURCHASE PRICE FOR PURCHASED SHARES SOLD TO GAP CO KG PURCHASED SHARES SOLD TO GAPSTAR SOLD TO GAPCO KG - ---------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------- Eberhard Farber EUR 421,772 1,400 EUR 9,100 - ---------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------- Helga Farber EUR 337,415 1,120 EUR 7,280 - ---------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------- ======================================================================================== TOTAL EUR 759,187 2,520 EUR 16,380 - ----------------------------------------------------------------------------------------
EX-99 6 ex6sc13d-ixos.txt EXHIBIT 6 EXHIBIT 6 to SCHEDULE 13D SHARE PURCHASE AGREEMENT By and between 1. General Atlantic Partners (Bermuda), L.P. Clarendon House, 2 Church Street Hamilton HM 11 Bermuda as "GAP LP" 2. GAP Coinvestment Partners II, L.P. c/o General Atlantic Service Corporation 3 Pickwick Plaza Greenwich, Connecticut 06830 USA as "GAP COINVESTMENT" 3. GapStar, LLC c/o General Atlantic Service Corporation 3 Pickwick Plaza Greenwich, Connecticut 06830 USA as "GAPSTAR" 4. GAPCO GmbH & Co. KG c/o General Atlantic Partners GmbH Konigsallee 62 40212 Dusseldorf as "GAPCO KG" GAP LP, GAP Coinvestment, GapStar and GAPCO KG, collectively, as the "PURCHASERS" [GRAPHIC OMITTED - LOGO] FRESHFIELDS BRUCKHAUS DERINGER 2/23 5. Hans Strack-Zimmermann Josefstalerstrasse 14 83727 Schliersee 6. Sibylle Strack-Zimmermann Josefstalerstrasse 14 83727 Schliersee the Parties to 5. through 6., collectively, as the "SELLING STOCKHOLDERS" dated August 12, 2002 3/23 PREAMBLE A. IXOS SOFTWARE AG is a German stock corporation with its corporate seat in Grasbrunn and registered in the commercial register at the lower court Munich under HRB 116846 (the "COMPANY"). The share capital of the Company amounts to Euro 19,724,659.00 and is split into 19,724,659 non-par value bearer shares (NENNWERTLOSE, AUF DEN INHABER LAUTENDE STUCKAKTIEN) with a nominal participation in the share capital of Euro 1.00 per share. The shares are listed on the Regulated Market with trading at the Neuer Markt Segment of the Frankfurt Stock Exchange (listing number 506150) and have a quotation on the Nasdaq National Market (listing number 916742) through an ADR program in the United States. The Company's shares are evidenced in three global share certificates (GLOBALURKUNDEN) and in three global dividend certificates related hereto (SAMMELGEWINNANTEILSSCHEINE) (collectively "CERTIFICATES"). The Certificates are held in trust by Clearstream Banking AG, Frankfurt. B. The Selling Stockholders hold the following shares in the Company: ----------------------------------------------------------------------- SELLING STOCKHOLDER NUMBER OF SHARES ----------------------------------------------------------------------- Hans Strack-Zimmermann 1,653,525 ----------------------------------------------------------------------- Sibylle Strack-Zimmermann 1,176,500 ----------------------------------------------------------------------- All shares held by the Selling Stockholders are collectively referred to hereinafter as "SELLING STOCKHOLDERS' SHARES". C. Purchasers are interested to acquire up to approx. 29.9% of the shares of the Company by (i) subscribing for up to 1,800,000 new shares to be issued to Purchasers in a capital increase from authorized capital (GENEHMIGTES KAPITAL) with exclusion of the pre-emption rights in accordance with Section 5.5 of the Company's articles of association (the "CAPITAL INCREASE") and (ii) acquiring shares directly from the Selling Stockholders and from Eberhard and Helga Farber (the "OTHER STOCKHOLDERS") by entering into a share purchase agreement with the Other Stockholders (the "OTHER AGREEMENT"). For purposes of subscribing for the new shares in the context of the Capital Increase Purchasers and the Company envisage to enter into a participation 4/23 agreement outlining their respective obligations in the course of the Capital Increase (the "PARTICIPATION AGREEMENT"). The Parties are aware and know that the Purchasers and the Selling Stockholders may possess certain non-public information concerning the Company and its subsidiaries. The Parties hereby explicitly confirm that they have entered into this Agreement irrespective of any non-public information and that the purchase price to be paid by the Purchasers to the Selling Stockholders under this Agreement has been determined on a valuation of the Company which is independent from the stock exchange price for the Company's shares. D. The Selling Stockholders wish to sell an aggregate of 1,800,000 Selling Stockholders' Shares (the "PURCHASED SHARES") to Purchasers, and Purchasers wish to purchase the Purchased Shares at a price equal to EUR 6.50 per share. The Selling Stockholder' Shares which remain with the Selling Stockholders and are not sold to the Purchasers are set forth in ANNEX I and are collectively referred to hereinafter as the "REMAINING SHARES". Now, therefore, the Parties agree as follows: SECTION 1 SALE AND ASSIGNMENT OF PURCHASED SHARES 1.1 Selling Stockholders hereby sell and assign their respective Purchased Shares (see Preamble D. above and Annex I) to Purchasers with all rights and obligations pertaining thereto. Moreover, Selling Stockholders hereby assign to Purchasers their respective claims for delivery (HERAUSGABEANSPRUCH) of the Certificates vis-a-vis Clearstream Banking AG. The Purchased Shares shall be allocated among GAP LP, GAP Coinvestment, GapStar and GAPCO KG as set forth in the ANNEX II hereto. Purchasers hereby accept these sales and assignments. 5/23 1.2 The sale and assignment of the respective Purchased Shares and the assignment of the claims for delivery of the Certificates is subject to all Conditions Precedent (as defined in Section 3.2 below) and to the conditions precedent set forth in Section 7c. The assignment of the respective Purchased Shares is also subject to (additional condition precedent; AUFSCHIEBENDE BEDINGUNG) the payment of the respective Individual Purchase Price (as defined in Section 2.2 below) in accordance with Section 2 below. 1.3 Purchasers shall inform Selling Stockholders in writing without undue delay that the Conditions Precedent (as defined in Section 3.2 below) and the conditions precedent set forth in Section 7c have been fulfilled. For purposes of this notification, Peters, Schonberger & Partner, attn: Dr. Klaus D. Hofner (see Section 8.7 below) shall act as a representative of the Selling Stockholders (EMPFANGSBEVOLLMACHTIGTER). Without undue delay after receipt of this notification, the Selling Stockholders shall give irrevocable instructions to their respective deposit bank (with a copy to Freshfields Bruckhaus Deringer, attn. Dr. Peter Nussbaum (see below Section 8.7)) to transfer the Purchased Shares to a single depository account of Purchasers to be notified to Selling Stockholders by Purchasers prior to Closing against simultaneous (ZUG-UM-ZUG) payment of the Individual Purchase Price (as defined in Section 2.2). 1.4 Purchasers are exclusively entitled to the profits of the current business year as well as the profits of preceding business years not yet distributed to the Selling Stockholders (i.e. profits carried forward and profits of preceding business years with respect to which no resolution to distribute the profits has been passed). SECTION 2 PURCHASE PRICE 2.1 As purchase price for the sale and assignment of the Purchased Shares pursuant to Section 1.1 above Purchasers shall pay to Selling Stockholders a cash consideration of EUR 6.50 (in words: Euro six and fifty cents) per Purchased Share. The purchase prices paid to the Selling Stockholders shall be allocated among GAP LP, GAP Coinvestment, GapStar and GAPCO KG as set forth in the ANNEX II hereto. 6/23 2.2 The purchase price paid to each Selling Stockholder according to the preceding Section 2.1 and Annex II (the "INDIVIDUAL PURCHASE PRICE") shall be made by wire transfer against simultaneous (ZUG-UM-ZUG) transfer of the Purchased Shares to the depository accounts of Purchasers (see Section 1.3 above) to the following Selling Stockholder's bank accounts: Hans Strack-Zimmermann Bank: Deutsche Bank Munchen Bank Sorting Code : 70070010 Account No.: 2110153 Sibylle Strack-Zimmermann Bank: Deutsche Bank Munchen Bank Sorting Code : 70070010 Account No.: 2110146 2.3 Each Individual Purchase Price is payable on the date of Closing (as defined in Section 3.1). 2.4. In the event that an Individual Purchase Price is not paid in accordance with this Section 2, Purchasers shall pay to the affected Selling Stockholders 4 % p.a. interest above the prevailing three months Frankfurt EURIBOR rate as published on Closing for the prior Banking Day in the BORSEN-ZEITUNG on any outstanding portion thereof. SECTION 3 SIGNING, CLOSING, CONDITIONS PRECEDENT 3.1 Signing and Closing shall each have the following meaning: 3.1.1 "SIGNING" shall be the day on which this Agreement has been duly executed. 3.1.2 "CLOSING" shall be not later than five Banking Days (as defined in Section 8.3) after the Conditions Precedent (as defined in the Section 7/23 3.2) and the conditions precedent set forth in Section 7c have been fulfilled. 3.2 The sale and assignment of the Purchased Shares to Purchasers is - in addition to the payment of the Individual Purchase Price (see Section 2.2 above) - subject to the following conditions precedent (AUFSCHIEBENDE BEDINGUNGEN) (the "CONDITIONS PRECEDENT"), unless one or all of them have been duly waived by the Purchasers: 3.2.1 The Purchasers have subscribed for up to 1,800,000 new shares of the Company to be issued in the Capital Increase as contemplated in the Participation Agreement and the Company has filed for the registration of the consummation of the Capital Increase in the commercial register. 3.2.2 In so far as the proposed concentration is subject to the German Act against Restraints on Competition (GWB), one of the following must take place: (i) Notification from the Federal Cartel Office (FCO) that the prohibition requirements according to Sec. 36 GWB are not fulfilled; or (ii) Expiry of the one month time limit from submission of a complete notification to the FCO as laid down in Sec. 40 para 1 GWB, without the parties having been notified by the FCO that it has entered into the examination of the proposed concentration; or (iii) Expiry of the four month time limit, or an extended time limit, from submission of a complete notification to the FCO as laid down in Sec. 40 para 2 GWB, without the FCO having issued a prohibition order. 3.2.3 Insofar as the planned concentration has to be notified in other countries in accordance with the anti-trust laws applicable in those countries and execution of the proposed concentration is prohibited until the proposed concentration has been approved by the appropriate 8/23 national cartel authorities, the national cartel authorities in these countries must have give all the necessary approvals. 3.2.4 The conditions precedent set forth in Section 7c shall have been satisfied. SECTION 4 SELLING STOCKHOLDERS' GUARANTEES 4.1 Each of the Selling Stockholders guarantees (GARANTIERT) to Purchasers by way of an independent guarantee pursuant to ss. 311 (1) German Civil Code (BGB) and subject to the limitations set forth in Section 5 that the following statements are true and correct as of Signing and of Closing (collectively "SELLING STOCKHOLDERS' GUARANTEES"): 4.1.1 Such Selling Stockholder has the legal capacity to execute, deliver and perform his or its obligations under this Agreement. 4.1.2 The execution, delivery and performance by such Selling Stockholder of this Agreement and the transactions of such Selling Stockholder contemplated hereby, (i) if applicable, have been duly authorized by all necessary action of the Selling Stockholder, (ii) do not violate, conflict with or result in any breach or contravention of, or the creation of any security interest under, any contractual obligation of such Selling Stockholder, or any legal requirement or order applicable to such Selling Stockholder, and (iii) do not violate any judgment, injunction, award, decree or order of any nature or any agreement against, or binding upon, such Selling Stockholder. Such Selling Stockholder is not party to, or bound by, any agreement that is currently in effect, granting rights to any third party which are inconsistent with the rights to be granted by such Selling Stockholder in this Agreement. 4.1.3 The Company is duly incorporated and validly existing under the laws of Germany. The Purchased Shares as described in Annex II and all rights pertaining thereto (i) exist in the amounts set out herein and (ii) are fully paid-up and have not been repaid. 9/23 4.1.4 Such Selling Stockholder owns beneficially its Purchased Shares being sold to the Purchasers and has good and valid title to such Purchased Shares which are free and clear of any third party rights, and are not pledged, assigned, charged or used as a security. Such Selling Stockholder has the unrestricted power and authority to transfer its Purchased Shares to the Purchasers. 4.1.5 Except for any filings mandatory under statutory law (e.g., without limitations, filings in accordance with the German Securities Trading Act (WPHG)) or any waiting periods under the current insider trading policy of the Company to which the Selling Stockholders are subject (if applicable), no approval, compliance, exemption, or other action by, or notice to, or filing with, any Regulatory Authority or any other third party, and no lapse of a waiting period under any legal requirement, order or contractual obligation is necessary or required in connection with the execution, delivery or performance, by or enforcement against such Selling Stockholder of this Agreement or the transactions of such Selling Stockholder contemplated hereby. 4.1.6 This Agreement has been duly executed and delivered by such Selling Stockholder and constitutes the legal, valid and binding obligation of such Selling Stockholder, enforceable against such Selling Stockholder under German law in accordance with its terms, except as enforceability may be limited by applicable insolvency or other similar laws relating to or affecting the rights of creditors. 4.1.7 There are no actions, suits, proceedings, claims, arbitrations or investigations pending or, to the knowledge of such Selling Stockholder, threatened, against such Selling Stockholder which could impact the validity of the transfer of title to the Purchased Shares and/or the clearance of the Purchased Shares of any third party rights. 4.1.8 This Agreement does not contain any untrue statements by the Selling Stockholders. 4.1.9 Such Selling Stockholder (i) knows that the Purchasers may possess certain non-public information concerning the Company and/or its subsidiaries that may or may not be independently known to such 10/23 Selling Stockholder (all of such non-public information referred to in this paragraph is hereinafter referred to as the "NON-PUBLIC INFORMATION"), (ii) has entered into this Agreement and agrees to consummate the transactions contemplated by this Agreement notwithstanding that it is aware that the Non-Public Information may exist and that the Non-Public Information has not been disclosed to such Selling Stockholder, (iii) confirms and acknowledges that neither the existence of Non-Public Information, the substance of any Non-Public Information nor the fact that Non-Public Information has not been disclosed to such Selling Stockholder is material to it or to its determination to enter into this Agreement and consummate the transactions contemplated hereby, (iv) acknowledges that it is a sophisticated seller with respect to the Purchased Shares and has independently and without reliance upon the Purchasers or the Company and based on such information as such Selling Stockholder has deemed appropriate in its independent judgment made its own analysis and decision to enter into this Agreement and (v) acknowledges that the Purchasers have not made and do not make any representation or warranty, whether express or implied, of any kind or character except as expressly set forth in this Agreement and the Purchasers have no obligations to such Selling Stockholder, whether express or implied, including, without limitation, fiduciary obligations, except for those express obligations set forth herein. 4.2 "REGULATORY AUTHORITY" shall be defined as the government of any nation, state, city, locality or other political subdivision thereof, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including, without limitations, the Deutsche Borse AG. 4.3 Except for the Selling Stockholder's Guarantees as set forth in Section 4.1 the Selling Stockholders do not give any additional guarantees in respect to the Purchased Shares and/or the Company. 11/23 SECTION 4A PURCHASERS' GUARANTEES 4a.1 Each of the Purchasers guarantees (GARANTIERT) to Selling Stockholders by way of an independent guarantee pursuant to ss. 311 (1) German Civil Code (BGB) and subject to the limitations set forth in Section 5a that the following statements are true and correct as of Signing and of Closing (collectively "PURCHASERS' GUARANTEES"): 4a.1.1 Such Purchaser has the power and authority to execute, deliver and perform its obligations under this Agreement. 4a.1.2 The execution, delivery and performance by such Purchaser of this Agreement and the transactions of such Purchaser contemplated hereby, (i) have been duly authorized by all necessary action of the Purchaser, (ii) do not contravene the terms of the organizational documents, or any amendment thereof, of such Purchaser, (iii) do not violate, conflict with or result in any breach or contravention of, or the creation of any security interest under, any contractual obligation of such Purchaser, or any legal requirement or order applicable to such Purchaser, and (iv) do not violate any judgment, injunction, award, decree or order of any nature or agreement against, or binding upon, such Purchaser. Such Purchaser is not party to, or bound by, any agreement that is currently in effect, granting rights to any third party which are inconsistent with the rights to be granted by such Purchaser in this Agreement. 4a.1.3 Except for any mandatory statutory law measures (e.g., without limitations, antitrust approval (see Section 3.2.1) or filings in accordance with the German Securities Trading Act (WPHG)), no approval, compliance, exemption, authorization, or other action by, or notice to, or filing with, any Regulatory Authority or any other third party, and no lapse of a waiting period under any legal requirement, order or contractual obligation is necessary or required in connection with the execution, delivery or performance, by or enforcement against such Purchaser of this Agreement or the transactions of such Purchaser contemplated hereby. 12/23 4a.1.4 This Agreement has been duly executed and delivered by such Purchaser and constitutes the legal, valid and binding obligation of such Purchaser, enforceable against such Purchaser in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or other similar laws relating to or affecting the rights of creditors. 4a.1.5 There are no actions, suits, proceedings, claims, arbitrations or investigations pending or, to the knowledge of such Purchaser, threatened, against such Purchaser purporting to enjoin or restrain the execution, delivery or performance by such Purchaser of this Agreement. 4a.1.6 This Agreement does not contain any untrue statements of a material fact by the Purchasers. 4a.2 Except for the Purchasers' Guarantees as set forth in Section 4a.1, Purchasers do not give any additional guarantees in respect to this Agreement. SECTION 5 REMEDIES FOR PURCHASERS 5.1 In the event of any breach or non-fulfillment by Selling Stockholders of any of the Selling Stockholders' Guarantees listed in Section 4.1, Selling Stockholders shall be liable for putting Purchasers into the same position that they would have been in if the Selling Stockholders' Guarantees had been correct or had not been breached (NATURALRESTITUTION), or, at the election of Purchasers, by payment of the amount necessary to restore the damage suffered by the respective Purchaser to the warranted position (SCHADENSERSATZ). 5.2 All claims of Purchasers arising under this Agreement shall be time-barred on the second anniversary of Closing, except for all claims of Purchasers in respect of liabilities for defects of title arising from a breach in respect of Section 4.1.1 through 4.1.4 and 4.1.6 which shall be time barred on the seventh anniversary of Closing. 13/23 5.3 Purchasers have the right to claim damages because of breach of Selling Stockholders' Guarantees only, if the aggregate amount of all claims exceeds EUR 500,000.00 but then for the full amount of such claims (FREIGRENZE). The aggregate liability of the Selling Stockholders under Section 5.1 is in any event limited to 50 % of the respective Individual Purchase Price, provided that any claims of Purchasers arising from a breach of the Selling Stockholders' Guarantees contained in Sections 4.1.3 and 4.1.4 shall be limited to the respective Individual Purchase Price. 5.4 The Parties are in agreement that the remedies that Purchasers may have against Selling Stockholders for breach of obligations set forth in this Agreement are solely governed by this Agreement, and the remedies provided for by this Agreement shall be the exclusive remedies available to Purchasers. The Parties are further in agreement that under no circumstances shall Selling Stockholders' Guarantees be construed as representations of Selling Stockholders with respect to the quality of the Purchased Shares within the meaning of Section 443 German Civil Code (GARANTIE FUR DIE BESCHAFFENHEIT DER SACHE) and therefore, Purchasers explicitly waive the application of Section 444 German Civil Code. SECTION 5A REMEDIES FOR SELLING STOCKHOLDERS 5a.1 In the event of any breach or non-fulfillment by Purchasers of any of the Purchasers' Guarantees listed in Section 4a.1 Purchasers shall be liable for putting Selling Stockholders into the same position that they would have been in if the Purchasers' Guarantees had been correct or had not been breached (NATURALRESTITUTION), or, at the election of Selling Stockholders, by payment of the amount necessary to restore the damage suffered by the respective Selling Stockholders to the warranted position (SCHADENSERSATZ). 5a.2 All claims of Selling Stockholders arising under this Agreement shall be time-barred on the second anniversary of Closing. 5a.3 Selling Stockholders have the right to claim damages because of breach of Purchasers' Guarantees only, if the aggregate amount of all claims exceeds EUR 500,000.00, but then for the full amount of such claims (FREIGRENZE). 14/23 The aggregate liability of the Purchasers under Section 5a.1 is in any event limited to EUR 1,000,000.00. Selling Stockholders shall have no right to claim damages because of breach of Purchasers' Guarantees if and as long as the respective Individual Purchase Price has been paid to the respective Selling Stockholder and the Selling Stockholder has not repaid the Individual Purchase Price to Purchasers. 5a.4 The Parties are in agreement that the remedies that Selling Stockholders may have against Purchasers for breach of obligations set forth in this Agreement are solely governed by this Agreement, and the remedies provided for by this Agreement shall be the exclusive remedies available to Selling Stockholders. SECTION 6 NON-COMPETE 6.1 Mr. Hans Strack-Zimmermann agrees that he will not for a period of two years after Signing directly or indirectly compete with the Company or its subsidiaries. For purposes of this Section 6.1 "compete" means to undertake, to be engaged (whether as an employee, director or advisor) in, or to hold an interest or a profit participation in (other than through the Company), the software business for archiving (ARCHIVIERUNG) or document management (DOKUMENTENMANAGEMENT) within Germany or any other jurisdiction the Company itself or through its subsidiaries is currently active. 6.2 The restrictions contained in Section 6.1 do not affect or prohibit the right to acquire or hold shares of any class, for passive investment purposes only, amounting to less than five percent of the capital of a competing company. In addition the restrictions contained in Section 6.1 do not apply to Gauss-Interprise AG, Hamburg and Brainloop AG, Munich. 6.3 Mr. Hans Strack-Zimmermann agrees that he will not for a period of two years after Signing directly or indirectly solicit or actively seek to entice away any employee of the Company or its subsidiaries. 6.4 For each case of violation of the stipulations set forth in Sections 6.1 and Section 6.3, notwithstanding whether committed intentionally or negligently, the violating Party shall pay a contractual penalty in the amount of EUR 15/23 100,000.00 to Purchasers. This Section 6.4 does, however, not preclude Purchasers to claim actual damages. SECTION 7 TRANSFER OF REMAINING SHARES 7.1 If a Selling Stockholder (a "TRANSFERRING STOCKHOLDER") wishes to sell any of the Remaining Shares in whole or in part, then such Transferring Stockholder must give written notice (the "TRANSFER NOTICE") to Purchasers of his intention, the number of Remaining Shares proposed to be sold (the "OFFERED SHARES") and the proposed purchase price (the "OFFER PRICE"). For purposes of receiving Transfer Notices, GAP LP shall act as a representative (EMPFANGSBEVOLLMACHTIGTER) for all Purchasers, i.e. the Transferring Stockholders shall only give Transfer Notice to GAP LP. On receipt of the Transfer Notice, Purchasers shall have the right to elect to buy all or some of the Offered Shares and to accept the offer made by the Transferring Stockholder at the Offer Price specified in the Transfer Notice by giving written notice to the Transferring Stockholder as soon as possible but in any event not later than fourteen (14) calendar days of receiving the Transfer Notice indicating the number of Offered Shares to be purchased and how such Offered Shares shall be allocated among GAP LP, GAP Coinvestment, GapStar and GAPCO KG (the "ACCEPTANCE NOTICE"). For purposes of giving the Acceptance Notice, GAP LP shall act as a representative for Purchasers, i.e. GAP LP shall give the notice as set forth in the preceding sentence on behalf of all Purchasers. With the acceptance of the offer the Transferring Stockholder and Purchasers enter into the share purchase agreement regarding such Offered Shares pursuant to which the Transferring Stockholder will guarantee that he owns beneficially the Offered Shares being sold to the Purchasers and has good and valid title to such Offered Shares which are free and clear of any third party rights, and are not pledged, assigned, charged or used as a security. Purchasers may assign its rights under this Section 7.1 to any of its affiliated investment partnerships. 7.2 If Purchasers do not wish to purchase the Offered Shares pursuant to Section 7.1, they shall inform the Transferring Stockholder about this decision as soon as possible, but not later than fourteen (14) calendar days of receiving Transfer Notice (the "NON-ACCEPTANCE NOTICE"). Without undue delay, but not later 16/23 than fourteen (14) calendar days after receipt of the Non-Acceptance Notice, Purchasers shall inform the Transferring Stockholder as to the method of disposition of the Offered Shares, e.g. by sale in a block trade, conducting of a road-show, etc. For a period of six (6) weeks after receipt of the Non-Acceptance Notice (the "SALES PERIOD"), (i) the Transferring Stockholder may sell the Offered Shares at a price equal to or higher than the Offer Price in a block trade (i.e. not through the stock exchange) and (ii) Purchasers and the Transferring Stockholder shall consult with each other in an effort to achieve an orderly disposition of the Offered Shares. 7.3 If the Offered Shares are not sold during the Sales Period, then after the lapse of the Sales Period and provided that the Transferring Stockholder has acted in accordance with Sections 7.1 and 7.2, the Transferring Stockholder shall be free to sell the Offered Shares (i) at a price equal to or higher than the Offer Price or (ii) at another price (the "NEW PRICE") if the Transferring Stockholder has offered in writing the Offered Shares for sale to Purchasers at the New Price (the "NEW TRANSFER NOTICE") and Purchasers have not given notice to buy the Offered Shares at the New Price within seven (7) calendar days of receiving the New Transfer Notice or (iii), if the New Price is not exceeding market price at the close of business (SCHLU(BETA)KURS) at the date of the New Transfer Notice, at this market price; Section 7.1 shall apply MUTATIS MUTANDIS. 7.4 For each case of violation of the stipulations set forth in Sections 7.1 and 7.2, notwithstanding whether committed intentionally, negligently or without negligence, the violating Selling Stockholder shall pay to Purchasers a contractual penalty in the amount of 10 % of the proceeds from the sale of the Offered Shares. This Section 7.4 does, however, not preclude Purchasers to claim actual damages. 7.5 The restrictions set forth in this Section 7 shall not apply to the transfer of Remaining Shares to a GmbH (GESELLSCHAFT MIT BESCHRANKTER HAFTUNG) or AG (AKTIENGESELLSCHAFT) incorporated under German law (the "HOLDING COMPANY") if (i) the Holding Company is wholly owned by the Selling Stockholders, their respective spouses or their direct descendants and (ii) if the Holding Company has acceded to this Agreement. If the Holding Company ceases to be wholly owned by the Selling Stockholders or their direct descendants, the Holding Company shall retransfer the respective Remaining 17/23 Shares to such Selling Stockholder that initially transferred the Remaining Shares to the Holding Company. 7.6 The provision of this Section 7 shall terminate twelve (12) months after Closing. SECTION 7A PRESS RELEASES 7a.1 Neither Party shall, without the prior written consent of the other Parties, disclose the contents of this Agreement to third parties or make any information relating thereto available to third parties. This shall not, however, apply to the extent a Party or any affiliate of a Party may be obliged to make any announcement or disclosure under applicable laws or regulations (including, but not limited to the rules of relevant stock exchanges). In addition, after the first public announcement regarding this Agreement, Purchasers may disclose this Agreement and the transactions contemplated hereby to their investors in order to satisfy their periodic reporting obligations and internally consistent with past practice. For clarification purposes, this provision shall not apply to disclosures on a no-name basis. 7a.2 Except for disclosures or statements required under applicable laws or regulations, any press releases or public statements by one Party in connection with this Agreement shall be mutually agreed upon between the Parties prior to the release hereof. SECTION 7B RESCISSION RIGHTS (RUCKTRITTSRECHTE) 7b.1 If the Other Stockholders rescind or contest the validity (ANFECHTEN) of the Other Agreement with Purchasers, for reasons whatsoever, Purchasers shall have the right to rescind (ZURUCKTRETEN) this Agreement without any liability to the Selling Stockholders within 10 Banking Days following receipt of the notice by the Other Stockholders that the Other Stockholders rescind or contest the validity of the Other Agreement. 18/23 7b.2 Each Party shall have the right to rescind (ZURUCKTRETEN) this Agreement without any liability to any of the Parties if (i) antitrust clearance (see Sections 3.2.2 and 3.2.3 above) has not been obtained on or prior to five (5) Banking Days after expiration of the 4-month period set forth in Section 3.2.2 (iii) or (ii) the Company has not filed for the registration of the consummation of the Capital Increase in the commercial register as contemplated in the Participation Agreement on or prior to ten (10) Banking Days after expiration of the 4-month period set forth in Section 3.2.2 (iii). 7b.3 The Selling Stockholders shall have the right to rescind (ZURUCKTRETEN) this Agreement without any liability to any of the Parties if Purchasers have not paid the respective Individual Purchase Price in accordance with Sections 2.2 and 2.3 within ten (10) Banking Days after Closing. SECTION 7C ADDITIONAL CONDITIONS PRECEDENT 7c.1 The entire Agreement shall be subject to the condition precedent (AUFSCHIEBENDE BEDINGUNG) that the Purchasers have entered into the Participation Agreement with the Company on or prior to August 19, 2002. For clarification purposes, if the condition precedent set forth in this Section 7c.1 has not been fulfilled, this Agreement has never become effective (wirksam). 7c.2 The entire Agreement shall also be subject to the condition precedent (AUFSCHIEBENDE BEDINGUNG) that the Purchasers have entered into the Other Agreement with the Other Stockholders on or prior to August 19, 2002. For clarification purposes, if the condition precedent set forth in this Section 7c.2 has not been fulfilled, this Agreement has never become effective (WIRKSAM). SECTION 8 MISCELLANEOUS 8.1 All expenses, costs, fees and charges in connection with the transactions contemplated under this Agreement including, without limitations, legal 19/23 services, shall be borne by the Party commissioning the respective costs, fees and charges. 8.2 In this Agreement the headings are inserted for convenience only and shall not affect the interpretation of this Agreement; where a German term has been inserted in italics it alone (and not the English term to which it relates) shall be authoritative for the purpose of the interpretation of the relevant English term in this Agreement. All Annexes to this Agreement constitute an integral part of this Agreement. 8.3 "BANKING DAYS" shall mean days banks are open for business in Frankfurt/Main. 8.4 The Selling Stockholders shall not be jointly and severally liable under this Agreement, i.e. they shall only be responsible for their respective obligations and liabilities incurred under this Agreement (TEILSCHULDNER). 8.5 Amendments to this Agreement, including this provision, must be made in writing (including telecopy) by the Parties or in any other legally required form, if so required. 8.6 The Selling Stockholders shall not be entitled to assign any rights or claims under this Agreement without the written consent of Purchasers. 8.7 All notices and other communications hereunder shall - unless expressly provided otherwise - be made in writing and shall be delivered or sent by registered mail or courier to the addresses below or to such other addresses which may be specified by any Party to the other Party in the future in writing: for Purchasers: c/o General Atlantic Service Corporation 3 Pickwick Plaza Greenwich, Connecticut 06830 USA Attn: Matthew Nimetz Telecopy: +01-203-618-9207 20/23 with copy to: Freshfields Bruckhaus Deringer Prannerstrasse 10 80333 Munchen Germany Attn: Dr. Peter Nussbaum Telecopy: +49-89-20702-100 for Hans Strack-Zimmermann Josefstalerstrasse 14 83727 Schliersee with copy to: Peters, Schonberger & Partner Schackstrasse 2 80539 Munchen Germany Attn: Dr. Klaus D. Hofner Telecopy: +49-89-38172-204 for Sibylle Strack-Zimmermann Josefstalerstrasse 14 83727 Schliersee with copy to: Peters, Schonberger & Partner Schackstrasse 2 80539 Munchen Germany Attn: Dr. Klaus D. Hofner Telecopy: +49-89-38172-204 8.8 Should any provision of this Agreement be held wholly or in part invalid or unenforceable, the validity or enforceability of the other parts shall not be affected thereby. In place of the invalid or unenforceable provision the Parties shall agree on an appropriate valid and enforceable provision, which serves best the economic interest of the contract Parties originally pursued by the invalid or unenforceable provision. 21/23 8.9 This Agreement shall be governed by and construed in accordance with the laws of Germany. The exclusive jurisdiction for legal actions from or in connection with this Agreement is Munich, Germany (Regional Court Munich I).
August 12 2002 August 12 2002 - ------------, ------------ ------------, ------------ General Atlantic Partners (Bermuda), L.P.: GAP Coinvestment Partners II, L.P.: By: GAP (Bermuda) Limited its general partner By: /s/ Frank Hemkelmann By: /s/ Frank Hemkelmann ----------------------------- ---------------------------- Name: Frank Hemkelmann Name: Frank Hemkelmann --------------------------- -------------------------- August 12 2002 August 12 2002 - ------------, ------------ ------------, ------------ GapStar, LLC GAPCO GmbH & Co. KG: By: General Atlantic Partners, LLC, By: GAPCO Management GmbH, its managing member its general partner By: /s/ Frank Hemkelmann By: /s/ Frank Hemkelmann ----------------------------- ---------------------------- Name: Frank Hemkelmann Name: Frank Hemkelmann --------------------------- -------------------------- August 12 2002 August 12 2002 - ------------, ------------ ------------, ------------ Hans Strack-Zimmermann Sibylle Strack-Zimmermann /s/ Hans Strack-Zimmermann /s/ Sibylle Strack-Zimmermann - -------------------------------- -------------------------------- Name: Hans Strack-Zimmermann Name: Sibylle Strack-Zimmermann --------------------------- --------------------------
22/23 ANNEX I REMAINING SHARES ---------------- - -------------------------------------------------------------------------------- SELLING STOCKHOLDERS REMAINING SHARES - -------------------------------------------------------------------------------- Hans Strack-Zimmermann 653,525 - -------------------------------------------------------------------------------- Sibylle Strack-Zimmermann 376,500 - -------------------------------------------------------------------------------- 23/23 ANNEX II
- ---------------------------------------------------------------------------------------------------------------------------- SELLING STOCKHOLDERS PURCHASED PURCHASE PRICE FOR PURCHASED PURCHASE PRICE FOR PURCHASED SHARES SHARES SOLD TO PURCHASED SHARES SHARES SOLD TO PURCHASED SHARES SOLD TO GAPSTAR GAP LP SOLD TO GAP LP GAP SOLD TO GAP COINVESTMENT COINVESTMENT - ---------------------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------------------- Hans Strack-Zimmermann 868,374 EUR 5,644,431 65,338 EUR 424,697 64,888 - ---------------------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------------------- Sybille Strack-Zimmermann 694,700 EUR 4,515,550 52,270 EUR 339,755 51,910 - ---------------------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------------------- ============================================================================================================================ TOTAL 1,563,074 EUR 10,159,981 117,608 EUR 764,452 116,798 - ----------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------- SELLING STOCKHOLDERS PURCHASE PRICE FOR PURCHASED SHARES PURCHASE PRICE FOR PURCHASED SHARES SOLD TO GAP CO KG PURCHASED SHARES SOLD TO GAPSTAR SOLD TO GAPCO KG - ---------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------- Hans Strack-Zimmermann EUR 421,772 1,400 EUR 9,100 - ---------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------- Sybille Strack-Zimmermann EUR 337,415 1,120 EUR 7,280 - ---------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------- ======================================================================================== TOTAL EUR 759,187 2,520 EUR 16,380 - ----------------------------------------------------------------------------------------
EX-99 7 ex7sc13d-ixos.txt EXHIBIT 7 EXHIBIT 7 to SCHEDULE 13D REGISTRATION RIGHTS AGREEMENT among IXOS SOFTWARE AG, GENERAL ATLANTIC PARTNERS (BERMUDA), L.P., GAP COINVESTMENT PARTNERS II, L.P., GAPSTAR, LLC and GAPCO KG GMBH & CO. KG ________________________ Dated: September 17, 2002 ________________________ TABLE OF CONTENTS PAGE ---- 1. Definitions. ....................................................... 1 2. General; Securities Subject to this Agreement........................ 5 (a) Grant of Rights. ...................................... 5 (b) Registrable Securities. ............................... 5 (c) Holders of Registrable Securities. .................... 5 3. Demand Registration.................................................. 6 (a) Request for Demand Registration. ....................... 6 (b) Incidental or "Piggy-Back" Rights with Respect to a Demand Registration................................ 7 (c) Effective Demand Registration and Offering. ........... 7 (d) Expenses. ............................................. 8 (e) Underwriting Procedures. .............................. 8 (f) Selection of Underwriters. ............................ 8 4. Incidental or "Piggy-Back" Registration.............................. 8 (a) Request for Incidental Registration. ................... 8 (b) Termination of Registration. .......................... 9 (c) Expenses. ............................................. 9 5. Form 3 Registration.................................................. 9 (a) Request for a Form 3 Registration. .................... 9 (b) Form 3 Underwriting Procedures. .......................10 (c) Limitations on Form 3 Registrations. ..................10 (d) Expenses. .............................................11 (e) No Demand Registration. ...............................11 6. Holdback Agreements..................................................11 (a) Restrictions on Public Sale by Designated Holders. .....11 (b) Restrictions on Public Sale by the Company. ...........11 7. Registration Procedures..............................................12 (a) Obligations of the Company. ...........................12 (b) Seller Information. ...................................15 (c) Notice to Discontinue. ................................15 (d) Registration Expenses. ................................15 8. European Listings....................................................16 9. Indemnification; Contribution........................................17 (a) Indemnification by the Company. .......................17 (b) Indemnification by Designated Holders. ................17 (c) Conduct of Indemnification Proceedings. ...............18 (d) Contribution. .........................................19 10. Rule 144.............................................................19 (a) Rule 144 Compliance. ..................................19 (b) ADS Facility. .........................................20 11. Miscellaneous........................................................20 (a) Recapitalizations, Exchanges, etc. ....................20 (b) No Inconsistent Agreements. ...........................20 i (c) Remedies. .............................................20 (d) Amendments and Waivers. ...............................20 (e) Notices. ..............................................21 (f) Successors and Assigns; Third Party Beneficiaries. ....22 (g) Counterparts. .........................................22 (h) Headings. .............................................22 (i) GOVERNING LAW. ........................................22 (j) Severability. ........................................22 (k) Rules of Construction. ................................23 (l) Entire Agreement. .....................................23 (m) Further Assurances. ...................................23 (n) Other Agreements. .....................................23 ii REGISTRATION RIGHTS AGREEMENT REGISTRATION RIGHTS AGREEMENT, dated September 17, 2002 (this "Agreement"), among IXOS Software AG, a German stock corporation (the "Company"), General Atlantic Partners (Bermuda), L.P., a Bermuda exempted limited partnership ("GAP LP"), GAP Coinvestment Partners II, L.P., a Delaware limited partnership ("GAP Coinvestment"), GapStar, LLC, a Delaware limited liability company ("GapStar") and GAPCO KG GmbH & Co. KG, a German limited partnership ("GAPCO KG") WHEREAS, pursuant to the Participation Agreement, dated August 12, 2002 (the "Participation Agreement"), among the Company, GAP LP, GAP Coinvestment, GapStar and GAPCO KG, the Company has agreed to issue and sell to GAP LP, GAP Coinvestment, GapStar and GAPCO KG, an aggregate of 1,800,000 Ordinary Shares (as hereinafter defined); WHEREAS, pursuant to certain Share Purchase Agreements, dated August 12, 2002 among GAP LP, GAP Coinvestment, GapStar, GAPCO KG and certain selling shareholders of the Company named therein (the "Selling Shareholders"), the Selling Shareholders have agreed to sell to GAP LP, GAP Coinvestment, GapStar and GAPCO KG, an aggregate of 3,600,000 Ordinary Shares; WHEREAS, the Company has implemented a "Level III" American Depositary Receipt Program pursuant to which American Depositary Shares (as defined in the Deposit Agreement) representing Ordinary Shares have been (i) deposited with The Bank of New York, as Depositary, pursuant to the Deposit Agreement (as hereinafter defined) (ii) registered under the Securities Act (as hereinafter defined) and the Exchange Act (as hereinafter defined) and (iii) listed for trading on The Nasdaq Stock Market, Inc. ("Nasdaq"); WHEREAS, (i) the General Atlantic Shareholders (as hereinafter defined) may wish to sell their Ordinary Shares in the United States through a sale on Nasdaq (or another United States securities exchange) of American Depositary Shares representing such Ordinary Shares and (ii) as a result, the registration of such Ordinary Shares pursuant to the Securities Act may be necessary and required as a condition and prerequisite to such sales; and WHEREAS, in order to induce each of GAP LP, GAP Coinvestment, GapStar and GAPCO KG to purchase Ordinary Shares from the Company and the Selling Shareholders, the Company has agreed to grant registration rights with respect to the Registrable Securities (as hereinafter defined) as set forth in this Agreement. NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows: 1. DEFINITIONS. As used in this Agreement the following terms have the meanings indicated: 1 "AFFILIATE" shall mean any Person who is an "affiliate" as defined in Rule 12b-2 under the Exchange Act. "AGREEMENT" mean this Agreement as the same may be amended, supplemented or modified in accordance with the terms hereof. "APPROVED UNDERWRITER" has the meaning set forth in Section 3(f) of this Agreement. "BUSINESS DAY" means any day other than a Saturday, Sunday or other day on which commercial banks in the State of New York or the city of Frankfurt, Germany are authorized or required by law or executive order to close. "CLOSING PRICE" means, with respect to the Registrable Securities, as of the date of determination, (a) if the Registrable Securities are listed on a United States or European securities exchange, the closing price per share of a Registrable Security on such date published in THE WALL STREET JOURNAL (NATIONAL EDITION), HANDELSBLATT or other comparable European financial newspaper, if no such closing price on such date is published in THE WALL STREET JOURNAL (NATIONAL EDITION), HANDELSBLATT or other comparable European financial newspaper, the average of the closing bid and asked prices on such date, as officially reported on the principal securities exchange on which the Registrable Securities are then listed or admitted to trading; or (b) if the Registrable Securities are not then listed or admitted to trading on any United States securities exchange or comparable European securities exchange but are designated as either national market system securities by the NASD or comparable European securities system by a comparable association of securities dealers, the last trading price per share of a Registrable Security on such date; or (c) if there shall have been no trading on such date or if the Registrable Securities are not designated as national market system securities by the NASD or comparable European securities system by a comparable association of securities dealers, the average of the reported closing bid and asked prices of the Registrable Securities on such date as shown by the National Market System of The Nasdaq Stock Market or comparable European market system and reported by any member firm of The New York Stock Exchange, Inc. or comparable European securities exchange selected by the Company; or (d) if none of (a), (b) or (c) is applicable, a market price per share determined in good faith by the Company's Board of Directors or, if such determination is not satisfactory to the Designated Holder for whom such determination is being made, by a nationally recognized investment banking firm selected by the Company and such Designated Holder, the expenses for which shall be borne equally by the Company and such Designated Holder. If trading is conducted on a continuous basis on any exchange, then the closing price shall be at 4:00 P.M. New York City time. "COMMISSION" means the United States Securities and Exchange Commission or any similar agency then having jurisdiction to enforce the Securities Act. "COMPANY" has the meaning set forth in the preamble to this Agreement. "COMPANY UNDERWRITER" has the meaning set forth in Section 4(a) of this Agreement. 2 "DEMAND REGISTRATION" has the meaning set forth in Section 3(a) of this Agreement. "DEPOSIT AGREEMENT" means the Deposit Agreement, dated as of September 25, 1998 and as amended from time to time, among the Company, The Bank of New York, as Depositary, and all holders and beneficial owners from time to time of ADRs (as defined therein); "DESIGNATED HOLDER" means each of the General Atlantic Shareholders and any transferee of any of them to whom Registrable Securities have been transferred in accordance with Section 11(f) of this Agreement, other than a transferee to whom Registrable Securities have been transferred pursuant to a Registration Statement under the Securities Act or Rule 144 or Regulation S under the Securities Act (or any successor rule thereto). "$" or "DOLLAR" means United States dollars. "?" or "EURO" means the official currency of the European Union. "EXCHANGE ACT" means the United States Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder. "EUROPEAN LISTING" has the meaning set forth in Section 8(a) of this Agreement. "EUROPEAN LISTING OR PUBLIC OFFERING EXPENSES" has the meaning set forth in Section 8(d) of this Agreement. "EUROPEAN PUBLIC OFFERING" has the meaning set forth in Section 8(c) of this Agreement. "FORM 3 INITIATING HOLDERS" has the meaning set forth in Section 5(a) of this Agreement. "FORM 3 REGISTRATION" has the meaning set forth in Section 5(a) of this Agreement. "GAPCO KG" has the meaning set forth in the preamble to this Agreement. "GAP COINVESTMENT" has the meaning set forth in the preamble to this Agreement. "GAP LP" has the meaning set forth in the preamble to this Agreement. "GAPSTAR" has the meaning set forth in the preamble to this Agreement. "GENERAL ATLANTIC SHAREHOLDERS" means GAP LP, GAP Coinvestment, GapStar, GAPCO KG and any Permitted Transferee thereof to whom Registrable Securities are transferred in accordance with Section 11(f) of this Agreement. 3 "HOLDERS' COUNSEL" has the meaning set forth in Section 7(a)(i) of this Agreement. "INCIDENTAL REGISTRATION" has the meaning set forth in Section 4(a) of this Agreement. "INDEMNIFIED PARTY" has the meaning set forth in Section 9(c) of this Agreement. "INDEMNIFYING PARTY" has the meaning set forth in Section 9(c) of this Agreement. "INITIATING HOLDERS" has the meaning set forth in Section 3(a) of this Agreement. "INSPECTOR" has the meaning set forth in Section 7(a)(vii) of this Agreement. "LIABILITY" has the meaning set forth in Section 9(a) of this Agreement. "MARKET PRICE" means, on any date of determination, the average of the daily Closing Price of the Registrable Securities for the immediately preceding thirty (30) days on which the national securities exchanges are open for trading. "NASD" means the National Association of Securities Dealers, Inc. "NASDAQ" has the meaning set forth in the recitals to this Agreement. "ORDINARY SHARES" means the ordinary shares of the Company or any other share capital of the Company into which such shares are reclassified or reconstituted. "PARTICIPATION AGREEMENT" has the meaning set forth in the recitals to this Agreement. "PERSON" means any individual, firm, corporation, partnership, limited liability company, trust, incorporated or unincorporated association, joint venture, joint stock company, limited liability company, government (or an agency or political subdivision thereof) or other entity of any kind, and shall include any successor (by merger or otherwise) of such entity. "RECORDS" has the meaning set forth in Section 7(a)(vii) of this Agreement. "REGISTRABLE SECURITIES" means each of the following: (a) any and all Ordinary Shares owned by the Designated Holders or issued or issuable upon conversion of any convertible securities or exercise of any warrants acquired by any of the Designated Holders after the date hereof, (b) any other Ordinary Shares acquired or owned by any of the Designated Holders if such Designated Holder is an Affiliate of the 4 Company, (c) any Ordinary Shares issued or issuable to any of the Designated Holders with respect to the Registrable Securities by way of stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization or otherwise and any Ordinary Shares or voting common stock issuable upon conversion, exercise or exchange thereof, and (d) any American Depositary Shares (as defined in the Deposit Agreement) or other depositary receipts representing any of the foregoing. "REGISTRATION EXPENSES" has the meaning set forth in Section 7(d) of this Agreement. "REGISTRATION STATEMENT" means a registration statement filed pursuant to the Securities Act. "SECURITIES ACT" means the United States Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder. "SELLING SHAREHOLDERS" has the meaning set forth in the recitals to this Agreement. "SUBSEQUENT GENERAL ATLANTIC PURCHASER" means any Affiliate of GA that, after the date hereof, acquires any Ordinary Shares. "VALID BUSINESS REASON" has the meaning set forth in Section 3(a) of this Agreement. 2. GENERAL; SECURITIES SUBJECT TO THIS AGREEMENT. (a) GRANT OF RIGHTS. The Company hereby grants registration rights to the Designated Holders upon the terms and conditions set forth in this Agreement. (b) REGISTRABLE SECURITIES. For the purposes of this Agreement, Registrable Securities will cease to be Registrable Securities, when (i) a Registration Statement (other than a Form F-6 or successor thereto) covering such Registrable Securities has been declared effective under the Securities Act by the Commission and such Registrable Securities have been disposed of pursuant to such effective Registration Statement, (ii) the entire amount of the Registrable Securities proposed to be sold in a single sale, in the opinion of counsel satisfactory to the Company and the Designated Holder, each in their reasonable judgment, may be distributed to the public in the United States without any limitation as to volume pursuant to Rule 144 (or any successor provision then in effect) under the Securities Act, (iii) the Registrable Securities are proposed to be sold or distributed by a Person not entitled to the registration rights granted by this Agreement, or (iv) such Registrable Securities have been distributed pursuant to Rule 144 (or any successor provision then in effect) under the Securities Act. (c) HOLDERS OF REGISTRABLE SECURITIES. A Person is deemed to be a holder of Registrable Securities whenever such Person owns of record Registrable Securities, or holds an option or warrant to purchase, or a security convertible into or exercisable or exchangeable for, Registrable Securities, whether or not such acquisition or conversion has actually been effected. If the Company receives conflicting 5 instructions, notices or elections from two or more Persons with respect to the same Registrable Securities, the Company may act upon the basis of the instructions, notice or election received from the registered owner of such Registrable Securities. Registrable Securities issuable upon exercise of an option or warrant or upon conversion of another security shall be deemed outstanding for the purposes of this Agreement. Notwithstanding the foregoing, a holder of warrants, options or a security convertible into or exercisable or exchangeable for Registrable Securities shall not be entitled to notice of any registration pursuant to this Agreement or to participate in any registration statement filed pursuant to or in accordance with this Agreement during any period while such warrant, option or other security is not yet eligible by its terms for exercise, conversion or exchange by the holder into or for Registrable Securities. 3. DEMAND REGISTRATION. (a) REQUEST FOR DEMAND REGISTRATION. One or more of the General Atlantic Shareholders as a group, acting through GAP or its written designee (the "Initiating Holders"), may make a written request to the Company to register, and the Company shall register, under the Securities Act (other than pursuant to a Registration Statement on Form F-4, S-4 or S-8 or any successor thereto and other than solely pursuant to a Registration Statement on Form F-6) (each, a "Demand Registration"), the number of Registrable Securities stated in such request. Notwithstanding the foregoing, the Company shall not be obligated to effect (i) more than two Demand Registrations for the General Atlantic Shareholders, collectively; and (ii) a Demand Registration if the Initiating Holders propose to sell their Registrable Securities at an aggregate price (calculated based upon the Market Price of the Registrable Securities on the date the Company receives the request for the Demand Registration) to the public for less than $10,000,000. For purposes of the preceding sentence, two or more Registration Statements filed in response to one demand shall be counted as one Demand Registration. If the Board of Directors of the Company, in its good faith judgment, determines that any registration of Registrable Securities should not be made or continued because it would interfere in any material respect with any financing, acquisition, corporate reorganization or merger or other material transaction or activity involving the Company (a "Valid Business Reason"), the Company may (x) postpone filing a Registration Statement relating to a Demand Registration for a reasonable period not in excess of ninety (90) days from the date of notice provided in the manner described below, and (y) in case a Registration Statement has been filed relating to a Demand Registration, if the Valid Business Reason has not resulted from actions taken by the Company, the Company, upon the approval of a majority of the Company's Board of Directors, such majority to include at least one General Atlantic Director (as defined in the Participation Agreement), may cause such Registration Statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such Registration Statement. The Company shall give written notice of its determination to postpone or withdraw a Registration Statement, before taking any such action and of the fact that the Valid Business Reason for such postponement or withdrawal no longer exists promptly after the occurrence thereof. Notwithstanding anything to the contrary contained herein, the Company may not postpone or withdraw a filing under this Section 3(a) more than once in any twelve (12) month period. Each request for a Demand Registration by the Initiating Holders shall state the amount of the Registrable Securities proposed to be sold and the intended method of disposition thereof. 6 (b) INCIDENTAL OR "PIGGY-BACK" RIGHTS WITH RESPECT TO A DEMAND REGISTRATION. Each of the Designated Holders (other than Initiating Holders which have requested a registration under Section 3(a)) may offer its or his Registrable Securities under any Demand Registration pursuant to this Section 3(b). Within five (5) Business Days after the receipt of a request for a Demand Registration from an Initiating Holder, the Company shall (i) give written notice thereof to all of the Designated Holders (other than Initiating Holders which have requested a registration under Section 3(a)) and (ii) subject to Section 3(e), include in such registration all of the Registrable Securities held by such Designated Holders from whom the Company has received a written request for inclusion therein within ten (10) Business Days of the receipt by such Designated Holders of such written notice referred to in clause (i) above. In connection with any Incidental Registration under this Section 3(b) involving an underwritten offering, the Company shall not be required to include any Registrable Securities in such underwritten offering unless such Designated Holders thereof accept the terms of the underwritten offering as agreed upon between the Company, the Initiating Holders and the Approved Underwriter, and then only in such quantity as the Approved Underwriter believes will not jeopardize the success of the offering. Each such request by such Designated Holders shall specify the number of Registrable Securities proposed to be registered. The failure of any Designated Holder to respond within such 10-day period referred to in clause (ii) above shall be deemed to be a waiver of such Designated Holder's rights under this Section 3 with respect to such Demand Registration. Any Designated Holder may waive its rights under this Section 3 prior to the expiration of such 10-day period by giving written notice to the Company, with a copy to the Initiating Holders. If a Designated Holder sends the Company a written request for inclusion of part or all of such Designated Holder s Registrable Securities in a registration, such Designated Holder shall not be entitled to withdraw or revoke such request without the prior written consent of the Company in its sole discretion unless, as a result of facts or circumstances arising after the date on which such request was made relating to the Company or to market conditions, such Designated Holder reasonably determines that participation in such registration would have a material adverse effect on such Designated Holder. (c) EFFECTIVE DEMAND REGISTRATION AND OFFERING. The Company shall use its reasonable best efforts to cause any Demand Registration to become and remain effective not later than ninety (90) days after it receives a request under Section 3(a) hereof. A registration shall not constitute a Demand Registration until Registrable Securities are sold pursuant to such demand or such registration statement has become effective and remains continuously effective for the lesser of (i) the period during which all Registrable Securities registered in the Demand Registration are sold and (ii) one hundred twenty (120) days; PROVIDED, HOWEVER, that a registration shall not constitute a Demand Registration if (x) after such Demand Registration has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Initiating Holders and such interference is not thereafter eliminated or (y) the conditions specified in the underwriting agreement, if any, entered into in connection with such Demand Registration are not satisfied or waived, other than by reason of a failure by the Initiating Holder or (z) the Company postpones filing or withdraws the Registration Statement pursuant to a Valid Business Reason in accordance with Section 3(a). 7 (d) EXPENSES. The Company shall pay all Registration Expenses in connection with a Demand Registration, whether or not such Demand Registration becomes effective. (e) UNDERWRITING PROCEDURES. If the Company or the Initiating Holders holding a majority of the Registrable Securities held by all of the Initiating Holders so elect, the Company shall use its reasonable best efforts to cause such Demand Registration to be in the form of a firm commitment underwritten offering and the managing underwriter or underwriters selected for such offering shall be the Approved Underwriter selected in accordance with Section 3(f). In connection with any Demand Registration under this Section 3 involving an underwritten offering, none of the Registrable Securities held by any Designated Holder making a request for inclusion of such Registrable Securities pursuant to Section 3(b) hereof shall be included in such underwritten offering unless such Designated Holder accepts the terms of the offering as agreed upon by the Company, the Initiating Holders and the Approved Underwriter. If the Approved Underwriter advises the Company that the aggregate amount of such Registrable Securities requested to be included in such offering is sufficiently large to jeopardize the success of such offering, then the Company shall include in such registration or offering only the aggregate amount of Registrable Securities that the Approved Underwriter believes may be sold without so jeopardizing the success of such offering and shall reduce the amount of Registrable Securities to be included in such registration, FIRST as to the Company, SECOND as to the Designated Holders (who are not Initiating Holders and who requested to participate in such registration pursuant to Section 3(b) hereof) as a group, if any, and THIRD as to the Initiating Holders as a group, pro rata within each group based on the number of Registrable Securities owned by each such Designated Holder or Initiating Holder, as the case may be. (f) SELECTION OF UNDERWRITERS. If any Demand Registration or Form 3 Registration, as the case may be, of Registrable Securities is in the form of an underwritten offering, the Company shall select and obtain an investment banking firm of international reputation to act as the managing underwriter of the offering (the "Approved Underwriter"); PROVIDED, HOWEVER, that the Approved Underwriter shall, in any case, also be approved by the Initiating Holders or Form 3 Initiating Holders, as the case may be, such approval not to be unreasonably withheld. 4. INCIDENTAL OR "PIGGY-BACK" REGISTRATION. (a) REQUEST FOR INCIDENTAL REGISTRATION. If the Company proposes to file a Registration Statement under the Securities Act with respect to an offering of Ordinary Shares by the Company for its own account (other than a Registration Statement on Form F-4, S-4 or S-8 or any successor thereto and other than solely pursuant to a Registration Statement on Form F-6) or for the account of any shareholder of the Company other than the Designated Holders, then the Company shall give written notice of such proposed filing to each of the Designated Holders at least twenty (20) days before the anticipated filing date, and such notice shall describe the proposed registration and distribution and offer such Designated Holders the opportunity to register the number of Registrable Securities as each such Designated Holder may request (an "Incidental Registration"). The Company shall use its reasonable best efforts (within twenty (20) days of the notice provided for in the preceding sentence) to cause the managing underwriter or underwriters in the case of a proposed underwritten offering (the 8 "Company Underwriter") to permit each of the Designated Holders who have requested in writing to participate in the Incidental Registration to include its Registrable Securities in such registration on the same terms and conditions as the securities of the Company or the account of such other shareholder, as the case may be, included therein. In connection with any Incidental Registration under this Section 4(a) involving an underwritten offering, the Company shall not be required to include any Registrable Securities in such underwritten offering unless the Designated Holders thereof accept the terms of the underwritten offering as agreed upon between the Company, such other stockholders, if any, and the Company Underwriter, and then only in such quantity as the Company Underwriter believes will not jeopardize the success of the offering by the Company. If the Company Underwriter determines that the registration, offering or listing of all or part of the Registrable Securities which the Designated Holders have requested to be included would jeopardize the success of such offering, then the Company shall be required to include in such Incidental Registration, to the extent of the amount that the Company Underwriter believes may be sold without so jeopardizing the success of such offering FIRST, all of the securities to be offered for the account of the Company; SECOND, the Registrable Securities to be offered for the account of the Designated Holders pursuant to this Section 4 and the other shareholders for whose account the Registration Statement is filed pro rata based on the number of Registrable Securities owned by each such Designated Holder or other shareholder; and THIRD, any other securities requested to be included in such offering. (b) TERMINATION OF REGISTRATION. If, at any time after giving such written notice in accordance with Section 4(a) and prior to the effective date of the registration statement filed in connection with such Incidental Registration, the Company shall determine for any reason to withdraw such registration statement and terminate its proposed Incidental Registration, then the Company may, at its election, given written notice of such determination to each holder of Registrable Securities and thereupon the Company shall be relieved of its obligation to register any Registrable Securities in connection with such registration (but not from its obligation to pay the Registration Expenses in connection therewith to the extent provided in Section 4(c)). (c) EXPENSES. The Company shall bear all Registration Expenses in connection with any Incidental Registration pursuant to this Section 4, whether or not such Incidental Registration becomes effective. 5. FORM 3 REGISTRATION. (a) REQUEST FOR A FORM 3 REGISTRATION. Upon the Company becoming eligible for use of Form F-3 or Form S-3 (or any successor form thereto) under the Securities Act in connection with a public offering of its securities, in the event that the Company shall receive from one or more of the General Atlantic Shareholders as a group, acting through GAP or its written designee (the "Form 3 Initiating Holders"), a written request that the Company register, under the Securities Act on Form F-3 or Form S-3 (or any successor form then in effect) (a "Form 3 Registration"), all or a portion of the Registrable Securities owned by such Form 3 Initiating Holders, the Company shall give written notice of such request to all of the Designated Holders (other than Form 3 Initiating Holders which have requested a Form 3 Registration under this Section 5(a)) as promptly as practicable but in any event at least fifteen (15) Business Days before the anticipated filing date of such Form 3 Registration Statement, and such notice shall 9 describe the proposed registration and offer such Designated Holders the opportunity to register the number of Registrable Securities as each such Designated Holder may request in writing to the Company, given within ten (10) Business Days after their receipt from the Company of the written notice of such registration. With respect to each Form 3 Registration, the Company shall subject to Section 5(b), (i) include in such offering the Registrable Securities of the Form 3 Initiating Holders and (ii) use its reasonable best efforts to (x) cause such registration pursuant to this Section 5(a) to become and remain effective as soon as practicable, but in any event not later than ninety (90) days after it receives a request therefor and (y) include in such offering the Registrable Securities of the Designated Holders (other than Form 3 Initiating Holders which have requested a Form 3 Registration under this Section 5(a)) who have requested in writing to participate in such registration on the same terms and conditions as the Registrable Securities of the Form 3 Initiating Holders included therein. (b) FORM 3 UNDERWRITING PROCEDURES. If the Company or the Form 3 Initiating Holders holding a majority of the Registrable Securities held by all of the Form 3 Initiating Holders so elect, the Company shall use its reasonable best efforts to cause such Form 3 Registration pursuant to this Section 5 to be in the form of a firm commitment underwritten offering and the managing underwriter or underwriters selected for such offering shall be the Approved Underwriter selected in accordance with Section 3(f). In connection with any Form 3 Registration under Section 5(a) involving an underwritten offering, the Company shall not be required to include any Registrable Securities in such underwritten offering unless the Designated Holders thereof accept the terms of the underwritten offering as agreed upon between the Company, the Approved Underwriter and the Form 3 Initiating Holders, and then only in such quantity as such underwriter believes will not jeopardize the success of such offering by the Form 3 Initiating Holders. If the Approved Underwriter believes that the registration of all or part of the Registrable Securities which the Form 3 Initiating Holders and the other Designated Holders have requested to be included would jeopardize the success of such public offering, then the Company shall be required to include in the underwritten offering, to the extent of the amount that the Approved Underwriter believes may be sold without so jeopardizing the success of such offering, FIRST, all of the Registrable Securities to be offered for the account of the Form 3 Initiating Holders, pro rata based on the number of Registrable Securities owned by such Form 3 Initiating Holders; SECOND, the Registrable Securities to be offered for the account of the other Designated Holders who requested inclusion of their Registrable Securities pursuant to Section 5(a), pro rata based on the number of Registrable Securities owned by such Designated Holders; and THIRD, any other securities requested to be included in such offering. (c) LIMITATIONS ON FORM 3 REGISTRATIONS. If the Board of Directors of the Company has a Valid Business Reason, the Company may (x) postpone filing a Registration Statement related to Form 3 Registration for a reasonable period not in excess of ninety (90) days from the date of notice provided in the manner described below, and (y) in case a Registration Statement has been filed relating to a Form 3 Registration, if the Valid Business Reason has not resulted from actions taken by the Company, the Company, upon the approval of a majority of the Company's Board of Directors, such majority to include at least one General Atlantic Director (as defined in the Participation Agreement), may cause such Registration Statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such Registration Statement. The Company shall give written notice of its determination to 10 postpone or withdraw a registration statement before taking such action and of the fact that the Valid Business Reason for such postponement or withdrawal no longer exists promptly after the occurrence thereof. Notwithstanding anything to the contrary contained herein, the Company may not postpone or withdraw a filing due to a Valid Business Reason more than once in any twelve (12) month period. In addition, the Company shall not be required to effect more than three Form 3 Registrations for the General Atlantic Shareholders, collectively, or any registration pursuant to Section 5(a), (i) within ninety (90) days after the effective date of any other Registration Statement of the Company, (ii) if within the twelve (12) month period preceding the date of such request, the Company has effected two (2) Form 3 registrations, (iii) if Form F-3 or Form S-3 are not available for such offering by the Form 3 Initiating Holders or (iv) if the Form 3 Initiating Holders, together with the Designated Holders (other than Form 3 Initiating Holders which have requested an Form 3 Registration under Section 5(a)) registering Registrable Securities in such registration, propose to sell their Registrable Securities at an aggregate price (calculated based upon the Market Price of the Registrable Securities on the date the Company receives the request for the Form 3 Registration) of less than $5,000,000. (d) EXPENSES. The Company shall bear all Registration Expenses in connection with any Form 3 Registration pursuant to this Section 5, whether or not such Form 3 Registration become effective. (e) NO DEMAND REGISTRATION. No registration requested by any Designated Holder pursuant to this Section 5 shall be deemed a Demand Registration pursuant to Section 3. 6. HOLDBACK AGREEMENTS. (a) RESTRICTIONS ON PUBLIC SALE BY DESIGNATED HOLDERS. To the extent not inconsistent with applicable law and to the extent (i) requested by the Company, the Initiating Holders or the Form 3 Initiating Holders, as the case may be, in the case of a non-underwritten public offering and (ii) requested by the Approved Underwriter or the Company Underwriter, as the case may be, in the case of an underwritten public offering, each Designated Holder of Registrable Securities agrees (x) not to effect any public sale or distribution of any Registrable Securities or of any securities convertible into or exchangeable or exercisable for such Registrable Securities, including a sale pursuant to Rule 144 under the Securities Act, and (y) not to make any request for a Demand Registration, an Incidental Registration or Form 3 Registration under this Agreement, during the 90 day period or such shorter period, if any, mutually agreed upon by such Designated Holder and the requesting party, beginning on the effective date of such Registration Statement (except as part of such registration). No Designated Holder of Registrable Securities subject to this Section 6(a) shall be released from any obligation under any agreement, arrangement or understanding entered into pursuant to this Section 6(a) unless all other Designated Holders of Registrable Securities subject to the same obligation are also released. (b) RESTRICTIONS ON PUBLIC SALE BY THE COMPANY. The Company agrees not to effect any public sale or distribution of any of its securities, or any securities convertible into or exchangeable or exercisable for such securities (except pursuant to registrations on Form F-4, S-4 or S-8 or any successor thereto), during the period 11 beginning on the later of (i) the effective date of any Registration Statement in which the Designated Holders of Registrable Securities are participating and (ii) the commencement of a public distribution of Registrable Securities pursuant to such Registration Statement and ending on the earlier of (i) the date on which all Registrable Securities registered on such Registration Statement are sold and (ii) one hundred twenty (120) days after the effective date of such Registration Statement (except as part of such registration). 7. REGISTRATION PROCEDURES. (a) OBLIGATIONS OF THE COMPANY. Whenever registration of Registrable Securities has been requested pursuant to Section 3, Section 4 or Section 5 of this Agreement, the Company shall use its reasonable best efforts to effect the registration and sale of such Registrable Securities in accordance with the intended method of distribution thereof as quickly as practicable, and in connection with any such request, the Company shall, as expeditiously as possible: (i) prepare and file with the Commission a Registration Statement on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the sale of such Registrable Securities in accordance with the intended method of distribution thereof, and cause such Registration Statement to become effective; PROVIDED, HOWEVER, that (x) before filing a Registration Statement or prospectus or any amendments or supplements thereto, the Company shall provide counsel selected by the Designated Holders holding a majority of the Registrable Securities being registered in such registration ("Holders' Counsel") and any other Inspector with an adequate and appropriate opportunity to review and comment on such Registration Statement and each prospectus included therein (and each amendment or supplement thereto) to be filed with the Commission, subject to such documents being under the Company's control, and (y) the Company shall notify the Holders' Counsel and each seller of Registrable Securities of any stop order issued or threatened by the Commission and take all action required to prevent the entry of such stop order or to remove it if entered; (ii) prepare and file with the Commission 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 the lesser of (x) one hundred twenty (120) days and (y) such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold, and comply with the provisions of the Securities 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 sellers thereof set forth in such Registration Statement; (iii) furnish to each seller of Registrable Securities, prior to filing a Registration Statement, at least one copy of such Registration Statement as is proposed to be filed, and thereafter such number of copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits thereto), and the prospectus included in such Registration Statement (including each preliminary prospectus) and any prospectus filed under Rule 424 under the Securities Act as each such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller; 12 (iv) register or qualify such Registrable Securities under such other securities or "blue sky" laws of such jurisdictions as any seller of Registrable Securities may request, and to continue such qualification in effect in such jurisdiction for as long as permissible pursuant to the laws of such jurisdiction, or for as long as any such seller requests or until all of such Registrable Securities are sold, whichever is shortest, and do any and all other acts and things which may be reasonably necessary or advisable to enable any such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller; PROVIDED, HOWEVER, that the Company shall not be required to (x) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 7(a)(iv), (y) subject itself to taxation in any such jurisdiction or (z) consent to general service of process in any such jurisdiction; (v) notify each seller of Registrable Securities at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon the happening of any event as a result of which, the prospectus included in such Registration Statement contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading and the Company shall promptly prepare a supplement or amendment to such prospectus and furnish to each seller of Registrable Securities a reasonable number of copies of such supplement to or an amendment of such prospectus as may be necessary so that, after delivery to the purchasers of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (vi) enter into and perform customary agreements (including an underwriting agreement in customary form with the Approved Underwriter or Company Underwriter, if any, selected as provided in Section 3, Section 4 or Section 5, as the case may be) and take such other actions as are prudent and reasonably required in order to expedite or facilitate the disposition of such Registrable Securities, including causing its appropriate officers to participate in "road shows" and other information meetings organized by the Approved Underwriter or Company Underwriter; (vii) make available at reasonable times for inspection by any seller of Registrable Securities, any managing underwriter participating in any disposition of such Registrable Securities pursuant to a Registration Statement, Holders' Counsel and any attorney, accountant or other agent retained by any such seller or any managing underwriter (each, an "Inspector" and collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company's and its subsidiaries, officers, directors and employees, and the independent public accountants of the Company, to supply all information reasonably requested by any such Inspector in connection with such Registration Statement. Records that the Company determines, in good faith, to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors (and the Inspectors shall confirm their agreement in writing in advance to the Company if the Company shall so request) unless (x) the disclosure of such Records is necessary, in the Company's judgment, to avoid or correct a 13 misstatement or omission in the Registration Statement, (y) the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction after exhaustion of all appeals therefrom or (z) the information in such Records was known to the Inspectors on a non-confidential basis prior to its disclosure by the Company or has been made generally available to the public. Each seller of Registrable Securities agrees that it shall, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at the Company's expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential; (viii) if such sale is pursuant to an underwritten offering, use its reasonable best efforts to obtain a "cold comfort" letter from the Company's independent public accountants in customary form and covering such matters of the type customarily covered by "cold comfort" letters as Holders' Counsel or the managing underwriter reasonably requests; (ix) furnish, at the request of any seller of Registrable Securities on the date such securities are delivered to the underwriters for sale pursuant to such registration or, if such securities are not being sold through underwriters, on the date the Registration Statement with respect to such securities becomes effective, an opinion, dated such date, of counsel representing the Company for the purposes of such registration, addressed to the underwriters, if any, and to the seller making such request, covering such legal matters with respect to the registration in respect of which such opinion is being given as the underwriters, if any, and such seller may reasonably request and are customarily included in such opinions; (x) comply with all applicable rules and regulations of the Commission, and make available to its security holders, as soon as reasonably practicable but no later than fifteen (15) months after the effective date of the Registration Statement, an earnings statement covering a period of twelve (12) months beginning after the effective date of the Registration Statement, in a manner which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder; (xi) cause all such Registrable Securities to be listed on each securities exchange, on which similar securities issued by the Company are then listed, PROVIDED that the applicable listing requirements are satisfied; (xii) keep Holders' Counsel advised in writing as to the initiation and progress of any registration under Section 3, Section 4 or Section 5 hereunder; (xiii) cooperate with each seller of Registrable Securities and each underwriter participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the NASD; (xiv) take all steps reasonably necessary to effect the deposit of all such Registrable Securities that are not then held in the form of American Depository Shares, into the facility that is the subject of the Deposit Agreement or such successor facility as the Company may then sponsor, and to prepare and file with the Commission any amendment to an existing Registration Statement on Form F-6 or a new 14 Registration Statement on Form F-6 to cover any American Depositary Shares held by any Designated Holder or that will be held by any purchaser of Registrable Securities to be sold under any Registration Statement. (xv) take all other steps reasonably necessary to effect the registration of the Registrable Securities contemplated hereby. (b) SELLER INFORMATION. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish, and such seller shall furnish, to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. (c) NOTICE TO DISCONTINUE. Each Designated Holder of Registrable Securities agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 7(a)(v), such Designated Holder shall forthwith discontinue disposition of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until such Designated Holder's receipt of the copies of the supplemented or amended prospectus contemplated by Section 7(a)(v) and, if so directed by the Company, such Designated Holder shall deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Designated Holder's possession, of the prospectus covering such Registrable Securities which is current at the time of receipt of such notice. If the Company shall give any such notice, the Company shall extend the period during which such Registration Statement shall be maintained effective pursuant to this Agreement (including, without limitation, the period referred to in Section 7(a)(ii)) by the number of days during the period from and including the date of the giving of such notice pursuant to Section 7(a)(v) to and including the date when sellers of such Registrable Securities under such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by and meeting the requirements of Section 7(a)(v). (d) REGISTRATION EXPENSES. The Company shall pay all expenses arising from or incident to its performance of, or compliance with, this Agreement, including, without limitation, (i) Commission, stock exchange and NASD registration and filing fees, (ii) all fees and expenses incurred in complying with securities or "blue sky" laws (including reasonable fees, charges and disbursements of counsel to any underwriter incurred in connection with "blue sky" qualifications of the Registrable Securities as may be set forth in any underwriting agreement), (iii) all printing, messenger and delivery expenses, (iv) the fees, charges and disbursements of counsel to the Company and of its independent public accountants and any other accounting fees, charges and expenses incurred by the Company (including, without limitation, any expenses arising from any "cold comfort" letters or any special audits incident to or required by any registration or qualification) and any legal fees, charges and expenses incurred by the Company and, in the case of a Demand Registration or a Form 3 Registration, one counsel on behalf of the Initiating Holders or the Form 3 Initiating Holders, as the case may be, and (v) any liability insurance or other premiums for insurance obtained for the benefit of the Company and/or its directors and officers in connection with any Demand Registration or piggy-back registration thereon, Incidental Registration or Form 3 Registration pursuant to the terms of this Agreement, regardless of whether such Registration Statement is declared effective. All of the expenses described in the preceding sentence of this Section 7(d) are referred to herein as 15 "Registration Expenses." The Designated Holders of Registrable Securities sold pursuant to a Registration Statement shall bear the expense of any broker's commission or underwriter's discount or commission relating to registration and sale of such Designated Holders Registrable Securities and, subject to clause (iv) above, shall bear the fees and expenses of their own counsel, accountants and advisors. 8. EUROPEAN LISTINGS. (a) In addition to the rights of the Designated Holders under Sections 3, 4 and 5 of this Agreement, in the event of the admission or listing of any Ordinary Shares of the Company to or on a European stock exchange (a "European Listing"), including, without limitation, The London Stock Exchange, the Neuer Market, Easdaq and the Frankfurt Stock Exchange, the Company shall take such action as may be necessary or required to include in such European Listing all Registrable Securities held by the Designated Holders such that the Designated Holders are able to freely transfer such Registrable Securities to the same extent as any other holder of Ordinary Shares of the Company on such European stock exchange, and to maintain any such European Listing, subject to any "close periods" under the rules of such European stock exchanges. In accordance with this Section 8(a), the Company agrees to take such action as may be necessary or required to include all Registrable Securities held by the Designated Holders under the Company's listing on the Neuer Market as soon as practicable after the date hereof. (b) Without limiting the generality of subsection (a), the Company shall take such action, including, without limitation, preparing, printing and circulating listing particulars and other offering documents setting forth current information regarding the Company, to the extent reasonably required to facilitate and permit the offering and sale of Registrable Securities by, and on behalf of, the Designated Holders on such European stock exchange. (c) If any part of the equity share capital of the Company is to be offered in Europe by the Company or any of its shareholders in a manner requiring the publication of a prospectus or listing particulars (a "European Public Offering"), pursuant to a firm commitment underwriting, the Company shall (i) each such time give written notice to the Designated Holders of its intention to do so and (ii) use its best efforts to include in such European Public Offering all of the Registrable Securities held by such Designated Holders from whom the Company has received written request for inclusion thereof within ten (10) Business Days of the receipt by such Designated Holders of the notice referred to in clause (i) above, to the same extent as provided by the incidental or "piggy-back" rights held by the Designated Holders pursuant to Section 4 and as contemplated by Section 7. (d) The Company shall pay all expenses arising from or incident to its performance of, or compliance with, this Section 8, including, without limitation, (i) listing, filing and other fees required to effect a European Listing or European Public Offering, (ii) all fees and expenses incurred in complying with securities laws or rules of the applicable European jurisdiction or stock exchange (including reasonable fees, charges and disbursements of counsel to any underwriter incurred in connection with such compliance as may be set forth in any underwriting agreement), (iii) all printing, messenger and delivery expenses, (iv) the fees, charges and disbursements of counsel to 16 the Company and of its independent public accountants and any other accounting fees, charges and expenses incurred by the Company (including, without limitation, any expenses arising from any "cold comfort" letters or any special audits incident to or required by any European Listing or European Public Offering) and any legal fees, charges and expenses incurred by the Company, and (v) any liability insurance or other premiums for insurance obtained for the benefit of the Company and/or its directors and officers in connection with any European Listing or European Public Offering, regardless of whether such European Listing becomes effective or such European Public Offering commences. All of the expenses described in the preceding sentence of this Section 8(d) are referred to herein as "European Listing or Public Offering Expenses." In the event any of the Registrable Securities held by the Designated Holders are sold pursuant to a European Public Offering, each Designated Holder shall bear the respective expense of any broker's commission or an underwriter's discount or commission relating to the sale of the Registrable Securities owned by such Designated Holder and each shall bear the respective fees and expenses of their own counsel, accountants and advisors. 9. INDEMNIFICATION; CONTRIBUTION. (a) INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify and hold harmless each Designated Holder, its partners, directors, officers and each Person who controls (within the meaning of Section 15 of the Securities Act) such Designated Holder from and against any and all losses, claims, damages, liabilities and expenses (including reasonable costs of investigation) (each, a "Liability and collectively, "Liabilities"), arising out of or based upon any untrue, or allegedly untrue, statement of a material fact contained in any Registration Statement, prospectus or preliminary prospectus or notification or offering circular or listing particulars (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) or arising out of or based upon 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 under the circumstances under which such statements were made, except insofar as such Liability arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission contained in such Registration Statement, preliminary prospectus or final prospectus or such other document in reliance and in conformity with information concerning such Designated Holder furnished in writing to the Company by such Designated Holder expressly for use therein, including, without limitation, the information furnished to the Company pursuant to Section 9(b). The Company shall also provide customary indemnities to any underwriters of the Registrable Securities, their officers, directors and employees and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act) to the same extent as provided above with respect to the indemnification of the Designated Holders of Registrable Securities. (b) INDEMNIFICATION BY DESIGNATED HOLDERS. In connection with any Registration Statement, European Listing or European Public Offering in which a Designated Holder is participating pursuant to Section 3, Section 4, Section 5 or Section 8 hereof, each such Designated Holder shall promptly furnish to the Company in writing such information with respect to such Designated Holder as the Company may reasonably request or as may be required by law for use in connection with any such Registration Statement, prospectus, listing particulars or offering circular and all information required to be disclosed in order to make the information previously 17 furnished to the Company by such Designated Holder not materially misleading or necessary to cause such Registration Statement not to omit a material fact with respect to such Designated Holder necessary in order to make the statements therein not misleading. Each Designated Holder agrees to indemnify and hold harmless the Company and its officers and directors, any underwriter retained by the Company and each Person who controls (within the meaning of Section 15 of the Securities Act) the Company or such underwriter to the same extent as the foregoing indemnity from the Company to the Designated Holders, but only if such statement or alleged statement or omission or alleged omission was made in reliance upon and in conformity with information with respect to such Designated Holder furnished in writing to the Company by such Designated Holder expressly for use in such registration statement, preliminary or final prospectus, offering circular or listing particulars including, without limitation, the information furnished to the Company pursuant to this Section 9(b); PROVIDED, HOWEVER, that the total amount to be indemnified by such Designated Holder pursuant to this Section 9(b) shall be limited to the net proceeds (after deducting any underwriters' discounts and commissions) received by such Designated Holder in the offering to which the Registration Statement, prospectus, offering circular or listing particulars relates. (c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person entitled to indemnification hereunder (the "Indemnified Party") agrees to give prompt written notice to the indemnifying party (the "Indemnifying Party") after the receipt by the Indemnified Party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which the Indemnified Party intends to claim indemnification or contribution pursuant to this Agreement; PROVIDED, HOWEVER, that the failure so to notify the Indemnifying Party shall not relieve the Indemnifying Party of any Liability that it may have to the Indemnified Party hereunder (except to the extent that the Indemnifying Party is materially prejudiced or otherwise forfeits substantive rights or defenses by reason of such failure). If notice of commencement of any such action is given to the Indemnifying Party as above provided, the Indemnifying Party shall be entitled to participate in and, to the extent it may wish, jointly with any other Indemnifying Party similarly notified, to assume the defense of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such Indemnified Party. The Indemnified Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be paid by the Indemnified Party unless (i) the Indemnifying Party agrees to pay the same, (ii) the Indemnifying Party fails to assume the defense of such action with counsel reasonably satisfactory to the Indemnified Party or (iii) the named parties to any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and such parties have been advised by such counsel that either (x) representation of such Indemnified Party and the Indemnifying Party by the same counsel would be inappropriate under applicable standards of professional conduct or (y) there may be one or more legal defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party. In any of such cases, the Indemnifying Party shall not have the right to assume the defense of such action on behalf of such Indemnified Party, it being understood, however, that the Indemnifying Party shall not be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all Indemnified Parties. No Indemnifying Party shall be liable for any settlement entered into without its written consent, which consent shall not be unreasonably withheld. No Indemnifying Party shall, without the consent of such 18 Indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which such Indemnified Party is a party and indemnity has been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability for claims that are the subject matter of such proceeding. (d) CONTRIBUTION. If the indemnification provided for in this Section 9 from the Indemnifying Party is unavailable to an Indemnified Party hereunder in respect of any Liabilities 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 Liabilities in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party in connection with the actions which resulted in such Liabilities, as well as any other relevant equitable considerations. The relative faults of such Indemnifying Party and Indemnified Party 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 Party, 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 as a result of the Liabilities referred to above shall be deemed to include, subject to the limitations set forth in Sections 9(a), 9(b) and 9(c), any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding; PROVIDED that the total amount to be contributed by any Designated Holder shall be limited to the net proceeds received by such Designated Holder in the offering. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 9(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. 10. RULE 144. (a) RULE 144 COMPLIANCE. The Company covenants that it shall (a) file any reports required to be filed by it under the Exchange Act and (b) take such further action as each Designated Holder of Registrable Securities may reasonably request (including providing any information necessary to comply with Rule 144 under the Securities Act), all to the extent required from time to time to enable such Designated Holder to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by (i) Rule 144 under the Securities Act, as such rule may be amended from time to time, or Regulation S under the Securities Act or (ii) any similar rules or regulations hereafter adopted by the Commission. The Company shall, upon the request of any Designated Holder of Registrable Securities, deliver to such Designated Holder a written statement as to whether it has complied with such requirements. 19 (b) ADS FACILITY. In conjunction with any sales of Registrable Securities by a Designated Holder in accordance with Rule 144 under the Securities Act, the Company shall take all steps reasonably necessary to effect the deposit of all such Registrable Securities that are not then held in the form of American Depositary Shares into the facility that is the subject of the Deposit Agreement, or such successor facility as the Company may then sponsor, and to prepare and file with the Commission any amendment to an existing Registration Statement on Form F-6 or a new Registration Statement on Form F-6 to cover any American Depositary Shares held by any Designated Holder or that will be held by any purchaser of Registrable Securities to be sold pursuant to Rule 144 under the Securities Act. 11. MISCELLANEOUS. (a) RECAPITALIZATIONS, EXCHANGES, ETC. The provisions of this Agreement shall apply to the full extent set forth herein with respect to (i) the Common Shares, (ii) any and all shares of voting common stock of the Company into which the Common Shares are converted, exchanged or substituted in any recapitalization or other capital reorganization by the Company and (iii) any and all equity securities of the Company or any successor or assign of the Company (whether by merger, consolidation, sale of assets or otherwise) which may be issued in respect of, in conversion of, in exchange for or in substitution of, the Common Shares and shall be appropriately adjusted for any stock dividends, splits, reverse splits, combinations, recapitalizations and the like occurring after the date hereof. The Company shall cause any successor or assign (whether by merger, consolidation, sale of assets or otherwise) to enter into a new registration rights agreement with the Designated Holders on terms substantially the same as this Agreement as a condition of any such transaction. (b) NO INCONSISTENT AGREEMENTS. The Company represents and warrants that it has not granted to any Person the right to request or require the Company to register any securities issued by the Company, other than the rights granted to the Designated Holders herein. The Company shall not enter into any agreement with respect to its securities that is inconsistent with the rights granted to the Designated Holders in this Agreement or grant any additional registration rights to any Person or with respect to any securities which are not Registrable Securities which are prior in right to or inconsistent with the rights granted in this Agreement, except that the Company may grant registration rights held by the General Atlantic Shareholders to any Subsequent General Atlantic Purchaser. (c) REMEDIES. The Designated Holders, in addition to being entitled to exercise all rights granted by law, including recovery of damages, shall be entitled to specific performance of their rights under this Agreement. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Agreement and hereby agrees to waive in any action for specific performance the defense that a remedy at law would be adequate. (d) AMENDMENTS AND WAIVERS. Except as otherwise provided herein, the provisions of this Agreement may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given unless consented to in writing by (i) the Company and (ii) the General Atlantic Shareholders 20 holding Registrable Securities representing (after giving effect to any adjustments) at least a majority of the aggregate number of Registrable Securities owned by all of the General Atlantic Shareholders. Any such written consent shall be binding upon the Company and all of the Designated Holders. Notwithstanding the first sentence of this Section 11(d), the Company, without the consent of any other party hereto (other than the General Atlantic Shareholders) may amend this Agreement to add any Subsequent General Atlantic Purchaser as a party to this Agreement as a General Atlantic Shareholder. (e) NOTICES. All notices, demands and other communications provided for or permitted hereunder shall be made in writing and shall be made by registered or certified first-class mail, return receipt requested, telecopier, courier service or personal delivery: (i) if to the Company: IXOS Software AG Bretonischer Ring 12 D-85630 Grasbrunn/Munchen Germany Telecopy: 011-49-89____ Attention: Chief Executive Officer with a copy to: (ii) if to the General Atlantic Shareholders: c/o General Atlantic Service Corporation 3 Pickwick Plaza Greenwich, CT 06830 Telecopy: (203) 622-8818 Attention: David Rosenstein with a copy to: Paul, Weiss, Rifkind, Wharton & Garrison 1285 Avenue of the Americas New York, NY 10019-6064 Telecopy: (212) 757-3990 Attention: Douglas A. Cifu, Esq. (iii) if to any other Designated Holder, at its address as it appears on the record books of the Company. All such notices, demands and other communications shall be deemed to have been duly given when delivered by hand, if personally delivered; when delivered by courier, if delivered by commercial courier service; five (5) Business Days after being deposited in the mail, postage prepaid, if mailed; and when receipt is mechanically 21 acknowledged, if telecopied. Any party may by notice given in accordance with this Section 11(e) designate another address or Person for receipt of notices hereunder. (f) SUCCESSORS AND ASSIGNS; THIRD PARTY BENEFICIARIES. This Agreement shall inure to the benefit of and be binding upon the heirs, legatees, legal representatives, successors and permitted assigns of each of the parties hereto as hereinafter provided. The Demand Registration rights, the Form 3 Registration rights, and the rights as to European Listings and European Public Offerings and related rights of the Designated Holders contained in Sections 3, 5 and 8 hereof, shall be (i) with respect to any Registrable Security that is transferred to an Affiliate of a Designated Holder, automatically transferred to such Affiliate and (ii) with respect to any Registrable Security that is transferred in all cases to a non-Affiliate, transferred only with the consent of the Company. The incidental or "piggy-back" registration rights of the Designated Holders contained in Sections 3(b), 4, 5 and 8 hereof and the other rights of each of the Designated Holders with respect thereto shall be, with respect to any Registrable Security, automatically transferred to any Person who is the transferee of such Registrable Security. All of the obligations of the Company hereunder shall survive any such transfer. Except as provided in Section 9, no Person other than the parties hereto and their heirs, legatees, legal representatives, successors and permitted assigns is intended to be a beneficiary of any of the rights granted hereunder. (g) COUNTERPARTS. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. (h) HEADINGS. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. (i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW OF ANY JURISDICTION. The parties hereto irrevocably submit to the exclusive jurisdiction of any state or federal court sitting in the County of New York, in the State of New York over any suit, action or proceeding arising out of or relating to this Agreement or the affairs of the Company. To the fullest extent that may effectively do so under applicable law, the parties hereto irrevocably waive and agree not to assert, by way of motion, as a defense or otherwise, any claim that they are not subject to the jurisdiction of any such court, any objection that they may not or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. (j) SEVERABILITY. If any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired, unless the provisions held invalid, illegal or unenforceable shall substantially impair the benefits of the remaining provisions hereof. 22 (k) RULES OF CONSTRUCTION. Unless the context otherwise requires, references to sections or subsections refer to sections or subsections of this Agreement. (l) ENTIRE AGREEMENT. This Agreement is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto with respect to the subject matter contained herein. There are no restrictions, promises, representations, warranties or undertakings with respect to the subject matter contained herein, other than those set forth or referred to herein. This Agreement supersedes all prior agreements and understandings among the parties with respect to such subject matter. (m) FURTHER ASSURANCES. Each of the parties shall execute such documents and perform such further acts as may be reasonably required or desirable to carry out or to perform the provisions of this Agreement. (n) OTHER AGREEMENTS. Nothing contained in this Agreement shall be deemed to be a waiver of, or release from, any obligations any party hereto may have under, or any restrictions on the transfer of Registrable Securities or other securities of the Company imposed by, any other agreement including, but not limited to, the Participation Agreement. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 23 IN WITNESS WHEREOF, the undersigned have executed, or have caused to be executed, this Registration Rights Agreement on the date first written above. IXOS SOFTWARE AG By: /s/ Peter Rau --------------------------------------- Name: Peter Rau Title: Chief Financial Officer By: /s/ Manuel Dohr --------------------------------------- Name: Manuel Dohr Title: Vice President Corporate Human Resources and Legal GENERAL ATLANTIC PARTNERS (BERMUDA), L.P. By: GAP (BERMUDA) LIMITED; its General Partner By: /s/ Frank Henkelmann --------------------------------------- Name: Frank Henkelmann Title: Attorney-in-Fact GAP COINVESTMENT PARTNERS II, L.P. By: /s/ Frank Henkelmann --------------------------------------- Name: Frank Henkelmann Title: Attorney-in-Fact GAPSTAR, LLC By: GENERAL ATLANTIC PARTNERS, LLC, its Managing Member By: /s/ Frank Henkelmann --------------------------------------- Name: Frank Henkelmann Title: Attorney-in-Fact 24 GAPCO KG GMBH & CO. KG By: GAPCO KG MANAGEMENT GMBH, its General Partner By: /s/ Frank Henkelmann --------------------------------------- Name: Frank Henkelmann Title: Attorney-in-Fact 25 -----END PRIVACY-ENHANCED MESSAGE-----