-----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, HQzxZC99xhiiUP0Ol+/QZW6ilYn15VNVk5xjpwljiUJEmIeA2lfsWtUDtK9uSxN0 haUF0XTVO9mLBFuVLpIfKg== 0000950142-03-001895.txt : 20031022 0000950142-03-001895.hdr.sgml : 20031022 20031022163307 ACCESSION NUMBER: 0000950142-03-001895 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20031022 GROUP MEMBERS: GAP (BERMUDA) LIMITED GROUP MEMBERS: GAP COINVESTMENT PARTNERS II, L.P. GROUP MEMBERS: GAPCO GMBH &COKG 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/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-54821 FILM NUMBER: 03952169 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 IRS NUMBER: 133503735 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A 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/A 1 sc13da2-ixos.txt IXOS SOFTWARE AG - AMENDMENT NO. 2 ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 _______________________ SCHEDULE 13D Under the Securities Exchange Act of 1934 (AMENDMENT NO. 2) _______________________ 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) _______________________ OCTOBER 20, 2003 (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 15 - ----------------------------- ----------------------------- - -------------------------------------------------------------------------------- NAME OF REPORTING PERSON 1 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 5,737,000 ------------------------------------------------ 9 SOLE DISPOSITIVE POWER -0- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 5,737,000 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,737,000 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 26.7% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON OO - -------------------------------------------------------------------------------- - ----------------------------- ----------------------------- 101388106 Page 3 of 15 - ----------------------------- ----------------------------- - -------------------------------------------------------------------------------- NAME OF REPORTING PERSON 1 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 5,737,000 ------------------------------------------------ 9 SOLE DISPOSITIVE POWER -0- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 5,737,000 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,737,000 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 26.7% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- - ----------------------------- ----------------------------- 101388106 Page 4 of 15 - ----------------------------- ----------------------------- - -------------------------------------------------------------------------------- NAME OF REPORTING PERSON 1 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 5,737,000 ------------------------------------------------ 9 SOLE DISPOSITIVE POWER -0- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 5,737,000 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,737,000 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 26.7% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON CO - -------------------------------------------------------------------------------- - ----------------------------- ----------------------------- 101388106 Page 5 of 15 - ----------------------------- ----------------------------- - -------------------------------------------------------------------------------- NAME OF REPORTING PERSON 1 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 Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF SHARES -0- BENEFICIALLY OWNED BY ------------------------------------------------ EACH REPORTING 8 SHARED VOTING POWER PERSON WITH 5,737,000 ------------------------------------------------ 9 SOLE DISPOSITIVE POWER -0- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 5,737,000 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,737,000 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 26.7% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON OO - -------------------------------------------------------------------------------- - ----------------------------- ----------------------------- 101388106 Page 6 of 15 - ----------------------------- ----------------------------- - -------------------------------------------------------------------------------- NAME OF REPORTING PERSON 1 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 5,737,000 ------------------------------------------------ 9 SOLE DISPOSITIVE POWER -0- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 5,737,000 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,737,000 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 26.7% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- - ----------------------------- ----------------------------- 101388106 Page 7 of 15 - ----------------------------- ----------------------------- - -------------------------------------------------------------------------------- NAME OF REPORTING PERSON 1 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 5,737,000 ------------------------------------------------ 9 SOLE DISPOSITIVE POWER -0- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 5,737,000 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,737,000 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 26.7% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- - ----------------------------- ----------------------------- 101388106 Page 8 of 15 - ----------------------------- ----------------------------- - -------------------------------------------------------------------------------- NAME OF REPORTING PERSON 1 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 5,737,000 ------------------------------------------------ 9 SOLE DISPOSITIVE POWER -0- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 5,737,000 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,737,000 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 26.7% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON CO - -------------------------------------------------------------------------------- - ----------------------------- ----------------------------- 101388106 Page 9 of 15 - ----------------------------- ----------------------------- ITEM 1. SECURITY AND ISSUER. This Amendment No. 2 to Schedule 13D is filed by the undersigned to amend and supplement the Schedule 13D, dated September 17, 2002, as amended by Amendment No. 1 to Schedule 13D, dated May 21, 2003, relating 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. Unchanged. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. Unchanged. ITEM 4. PURPOSE OF TRANSACTION. Item 4 is hereby amended and supplemented by the addition of the following: "Pursuant to a Business Combination Agreement, dated October 20, 2003, entered into between the Company and Open Text Corporation, an Ontario company ("Open Text"), Open Text agreed to launch a tender offer in accordance with the German Takeover Act, to purchase at least 67% of the Bearer Ordinary Shares of the Company outstanding at the end of the day on which the tender offer period expires. Open Text agreed to offer a tender offer consideration in cash, or, alternatively, at the option of the tendering shareholder, common shares of Open Text and warrants to purchase common shares of Open Text (the "Share and Warrant Consideration")." - ----------------------------- ----------------------------- 101388106 Page 10 of 15 - ----------------------------- ----------------------------- ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. Item 5 is hereby amended and restated in its entirety as follows: (a) As of the date hereof, GAP, GAP LP, GapStar, GAPCO II, KG and GmbH Management each own of record no Bearer Ordinary Shares, 4,982,138 Bearer Ordinary Shares, 372,456 Bearer Ordinary Shares, 374,387 Bearer Ordinary Shares, 8,019 Bearer Ordinary Shares and no Bearer Ordinary Shares, respectively, 0.0%, 23.2%, 1.7%, 1.7%, 0.04% and 0.0%, respectively, of the Company's issued and outstanding Bearer Ordinary Shares (based an aggregate number of Bearer Ordinary Shares outstanding equal to 21,524,659 as of December 16, 2002, as disclosed in the Company's Amendment No.1 to its Annual Report on Form 20-F, for the fiscal year ended June 30, 2002, filed on June 30, 2003). By virtue of the fact that (i) the GAP Managing Members (other than Mr. Robbins) 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 5,737,000 Bearer Ordinary Shares, or 26.7% 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 5,737,000 Bearer Ordinary Shares that may be deemed to be owned beneficially by each of them. (c) Not Applicable. - ----------------------------- ----------------------------- 101388106 Page 11 of 15 - ----------------------------- ----------------------------- (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. Item 6 is hereby amended and supplemented by the addition of the following: "GAP LP, GAPCO II, KG and GapStar executed a support letter, dated October 20, 2003, addressed to Open Text's board of directors, pursuant to which, each of GAP LP, GAPCO II, KG and GapStar agreed to (i) tender their Bearer Ordinary Shares into the tender offer and not to withdraw such before the expiration of the tender offer period; (ii) avoid taking any action that would reduce the likelihood of success of Open Text's tender offer; and (iii) avoid encouraging or soliciting, in their capacity as shareholders of the Company, offers competing with Open Text's tender offer; and (iv) pay an aggregate amount of (euro)600,000 if (A) a competing offer is launched prior to or on March 1, 2004, (B) is consummated resulting in a majority of the Company's share capital being acquired by a person other than Open Text, and (C) the price per Bearer Ordinary Share paid by such competing bidder exceeds by 20% the value of the Share and Warrant Consideration offered for each Bearer Ordinary Share. In addition, each of - ----------------------------- ----------------------------- 101388106 Page 12 of 15 - ----------------------------- ----------------------------- GAP LP, GAPCO II, KG and GapStar agreed in their support letter (i) not to sell, assign, transfer or pledge (subject to certain exceptions) any of the shares or warrants of Open Text they may receive in Open Text's tender offer, and (ii) (A) to release the Company, affiliates, successors and assigns of claims they may have under the participation agreement, dated August 12, 2002, entered into GAP LP, GAPCO II, KG, GapStar and the Company, and the registration right agreement dated August 12, 2002, entered into GAP LP, GAPCO II, KG, GapStar and the Company, and (B) to represent that they had not initiated any claims under these agreements and that, to the best of their actual knowledge, without investigation, there was no factual basis or circumstances that would support such claims. The support letter executed by GAP LP, GAPCO II, KG and GapStar was also signed by the Company. The foregoing summary of the support letter executed by each of GAP LP, GAPCO II, KG and GapStar and the Company is qualified in its entirety by reference to Exhibit 2 which is incorporated herein by reference." 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: Support Letter, dated October 20, 2003, by GAP LP, GAPCO II, KG and GapStar to Open Text. Exhibit 3: Power of Attorney dated December 20, 2002 appointing Thomas J. Murphy, Attorney-in-Fact for GAP (filed as Exhibit 1 to the Amendment No. 2 to the Schedule 13D filed by GAP regarding Predictive Systems, Inc. (File No. 005-57275)) is hereby incorporated by reference. Exhibit 4: Power of Attorney dated December 20, 2002 appointing Thomas J. Murphy, Attorney-in- - ----------------------------- ----------------------------- 101388106 Page 13 of 15 - ----------------------------- ----------------------------- Fact for GAPCO II (filed as Exhibit 2 to the Amendment No. 2 to the Schedule 13D filed by GAP regarding Predictive Systems, Inc. (File No. 005-57275)) is hereby incorporated by reference. - ----------------------------- ----------------------------- 101388106 Page 14 of 15 - ----------------------------- ----------------------------- 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 October 22, 2003. 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 sole 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 15 of 15 - ----------------------------- ----------------------------- GAPCO GMBH & CO. KG By: GAPCO Management GmBH, Its general partner By: /s/ Matthew Nimetz --------------------------------------- Name: Matthew Nimetz Title: Managing Director GAPCO MANAGEMENT GMBH By: /s/ Matthew Nimetz --------------------------------------- Name: Matthew Nimetz Title: Managing Director EX-99 3 ex1sc13da2-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: October 22, 2003 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 sole 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/ Matthew Nimetz --------------------------------------- Name: Matthew Nimetz Title: Managing Director GAPCO MANAGEMENT GMBH By: /s/ Matthew Nimetz --------------------------------------- Name: Matthew Nimetz Title: Managing Director EX-99 4 ex2sc13da2-ixos.txt EXHIBIT 2 EXHIBIT 2 to SCHEDULE 13D October 20, 2003 Open Text Corporation Dear Sirs: This letter sets out the terms and conditions upon which the undersigned agree to support a tender offer (the "Offer") that your wholly-owned subsidiary ("Offeror") will make to purchase all of the issued and outstanding shares of common stock (the "Shares") of IXOS Software AG (the "Company") on the terms of a Business Combination Agreement dated October 20, 2003 between you ("Open Text"), the Offeror and the Company (the "BCA"). Capitalized terms used herein and not defined herein shall have the meanings set forth in the BCA. Each of the undersigned represent and warrant to the Offeror that as of the date hereof it is the sole beneficial owner of an aggregate of the number of Shares set forth under its name below (collectively the "Seller's Shares"), that it has the exclusive right to dispose of the Seller's Shares as provided in this letter and that the Seller's Shares to be acquired by the Offeror from the Undersigned pursuant to the Offer will be acquired with good and marketable title, free and clear of any and all liens, charges, restrictions, security interests, adverse claims, pledges, encumbrances and demands or rights of others of any nature or kind whatsoever. Subject to the terms and conditions of this letter and unless this letter and the obligations of the undersigned hereunder have terminated as provided herein, the undersigned (i) agree to declare the acceptance of the Offer of the Offeror on the first banking day after the publication of the Offer following the formalities set forth in the Offer documents, and (ii) agree not to challenge or withdraw from any such acceptance, instructing their respective banks to accept the Offer and properly execute the transfer of the Sellers' Stock under the Offer, which instruction shall include the transfer of all rights in the Sellers' Stock and all documents certifying these stockholdings. The undersigned will be free to elect to accept either the Cash Consideration or the Share and Warrant Consideration under the Offer. The undersigned shall timely, and in any case without undue delay, follow all instructions issued by the depository bank when executing the Offer that are consistent with the Offer documents. Each of the undersigned agrees that it will: (a) not take any action of any kind which may reduce the likelihood of success of or delay the take up of and payment for Shares deposited under the Offer or the completion of the Offer; and (b) not option, sell, transfer, pledge (other than a pledge by GapStar, LLC to a lender to secure a bona fide loan made by such lender, a primary purpose of which is not to defeat the intention of the parties under this paragraph), encumber, grant a security interest in, hypothecate or otherwise convey the Seller's Shares, or any right or interest therein, to any person, entity or group or agree to do any of the foregoing. Each of the undersigned agrees, severally and not jointly, solely in its capacity as stockholder of the Company, to support the Offer, including the voting of the Seller's Shares (or delivering a proxy to Open Text to vote on its behalf), if any, to use all commercially reasonable efforts to assist Open Text and the Company to successfully complete the transactions contemplated in the BCA and not to take any action inconsistent with the obligations of the Company under the BCA. If the undersigned elect to accept the Share and Warrant Consideration, then each of the undersigned severally and not jointly agrees not to directly or indirectly sell, offer to sell, grant any option for the sale of, assign, transfer, pledge (other than a pledge by GapStar, LLC to a lender to secure a bona fide loan made by such lender, a primary purpose of which is not to defeat the intention of the parties under this paragraph), hypothecate, or otherwise encumber or dispose of any legal or beneficial interest in any of the Shares and Warrants comprising the Share and Warrant Consideration received under the Offer or the Shares received upon exercise of the Warrants (the "Warrant Shares"), or sell short common shares in the capital of Open Text or undertake any monetization or derivative or similar transaction having economic effect that is the same or substantially the same as any of the foregoing, in each case within the period of twelve months after the Closing Date; provided, however, that (i) the foregoing shall not prevent any undersigned from exercising the Warrants at any time prior to the expiration thereof, (ii) each of the undersigned may at any time transfer such Shares, Warrants and Warrant Shares to any Affiliate so long as any such Affiliate agrees in writing in favour of Open Text, as a condition to such transfer, to the restrictions set forth in this paragraph and (iii) the foregoing shall not prevent any undersigned from selling or otherwise disposing of its Shares, Warrants and Warrant Shares in connection with a sale of Open Text, by way of merger, amalgamation, tender offer, consolidation or otherwise. For the purposes hereof, "Affiliate" with respect to a person, any other person that directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, such person. Effective upon the Closing Date, each of the undersigned, on its own behalf and on behalf of its successors and permitted assigned (the undersigned and such person or entity, a "Releasor"), hereby releases and forever discharges the Company and each of its respective Affiliates, successors and assigns, together with their respective officers, directors, servants, employees and agents (each a "Releasee" and collectively the "Releasees"), from all causes of action, damages, -2- suits, losses, expenses, demands, debts, accounts, liabilities, contracts and all other claims and rights whatsoever existing up to or on date hereof or hereafter arising (collectively, the "Claims") which the respective Releasor now has or may hereafter have against the Releasees relating directly or indirectly to (a) the Participation Agreement dated August 12, 2002 between each of the undersigned and the Company; and (b) the Registration Rights Agreement dated September 17, 2002 between each of the undersigned and the Company (collectively, the "Agreements"). Each of the undersigned, on its own behalf and on behalf of its successors and permitted assigns represents and warrants, severally and not jointly, to Open Text that it has not made any claims or commenced any action or proceeding, and that to the best of its actual knowledge, without investigation, there is no factual basis or circumstance that would support any such claim, action or proceeding, in each case as of the time of execution of this letter, and agrees, severally and not jointly, not to make any claim or commence any action or proceeding relating directly or indirectly to the Agreements, in each case against the Releasees or any person, firm, corporation or other entity in which any claim, action or proceeding would arise against any of the Releasees for contribution or indemnity or other relief from, over and against any such Releasee or which otherwise results in any such Releasee suffering or incurring any liability, damages, costs or expenses, whether under common law or by equity or by statute or contract or otherwise. Neither any undersigned nor any of its representatives, agents, officers, directors, employees, controlling shareholders or general partner shall, in its capacity as a stockholder of the Company, directly or indirectly in any manner (a) entertain, solicit or encourage any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its Shareholders) with respect to, (b) furnish or cause to be furnished any information to any persons or entities (other than Open Text and the Offeror) in connection with, (c) engage in negotiations concerning or have any substantive discussions with any such third party proposing, (d) endorse or recommend a proposal of, (e) enter into any contract or understanding relating to, or (f) otherwise facilitate any effort or attempt to make or implement, in each case, a Competing Transaction. Each undersigned shall, unless it is advised by outside counsel that such disclosure is not permitted by applicable statutory confidentiality obligations, notify Open Text and the Offeror immediately if any such inquiries or proposals are received by, any such information is requested from or any such negotiations or discussions are sought to be initiated or continued with, it in its capacity as a stockholder of the Company, or any of its of its representatives, agents, officers, directors, employees, controlling shareholders or general partner acting on its behalf in such capacity, and provide Open Text and the Offeror with a copy of the material terms and conditions of such Competing Transaction and any agreement that the undersigned proposes to enter into in respect of such Competing Transaction and access to all information provided by the undersigned to the party proposing the Competing Transaction to the extent not previously provided to Open Text and the Offeror. Each undersigned shall be responsible for any breach by its representatives, agents, officers, employees, controlling shareholders or general partner of any of this provision. Neither any of the undersigned nor any of its representatives agents, officers, directors, employees, controlling shareholders or general partner will, in its capacity as a stockholder of the Company, recommend or actively support any Competing Transaction launched by any third party during the time from the Signing Date until the Expiration Date of the Offer, provided that if the Competing Transaction constitutes a Superior Tender Offer and is recommended by the Company's Supervisory Board pursuant to its fiduciary duty under German Takeover Law, then unless this letter and the obligations of the undersigned hereunder are or have terminated as provided in the immediately following paragraph below, the undersigned's obligations under this paragraph and the third paragraph hereof shall terminate and the undersigned shall have no obligation to support the Offer, and further provided that if the Company's Supervisory Board subsequently determines to recommend the Offer as it may be amended or replaced by Open Text and the Offeror, the obligations of the undersigned under this paragraph and the third paragraph hereof shall continue in effect and the undersigned shall suspend and cease any negotiations or other discussions in respect of any Competing Transaction or any inquiry or proposal relating thereto. For the purposes hereof, "Competing Transaction" means any proposal or any transaction (other than as contemplated by the BCA) regarding (i) any merger, consolidation, share exchange, business combination, joint venture or other similar transaction or series of related transactions involving the Company or any of its subsidiaries; (ii) any loans, advances or capital contributions to, or other investments in the Company, other than as contemplated by the BCA; (iii) any sale, lease, exchange, transfer, license or other disposition of any material portion of assets of the Company or any of its subsidiaries out of the ordinary course of business other than as contemplated by the BCA; (iv) any tender offer, take-over bid, exchange offer or similar transaction or series of related transactions made by any party or entity involving the acquisition or lock up of 10% or more of the outstanding Shares, coupled with or followed by an offer for the balance of the outstanding Shares, other than as contemplated by the BCA; (v) the acquisition by any party or any group of persons acting jointly or in concert (other than the Purchaser and its Affiliates), directly or indirectly, of beneficial ownership of, or the formation of any group of persons acting jointly or in concert to acquire beneficial ownership of, 10% or more of the then outstanding Shares of the Company or any of its subsidiaries, which is coupled with or followed by an offer for the balance of the outstanding Shares; or (vi) any other substantially similar transaction or series of related transactions that would hinder the consummation of the transactions contemplated by, or otherwise defeat the purposes of, the BCA. This letter and the obligations of the Parties thereunder shall terminate upon the following, except for the final paragraph of this letter, which shall survive in the event of a termination pursuant to clause (i) below as a result of the BCA -3- being terminated pursuant to Section 20.1(g) thereof: (i) the termination of the BCA in accordance with its terms; (ii) the failure to receive any required approval of the undersigned's acquisition of the Shares, the Warrants and the Warrant Shares under applicable antitrust and cartel laws (provided such approval does not require any divestitures or similar actions), unless waived by all parties to this letter; (iii) by the undersigned in the event that the undersigned do not consent in writing to any amendment thereto that modifies the consideration to be offered to the undersigned (other than an increase in such consideration) by notice in writing to Open Text given within two banking days of receipt of notice of such amendment; or (iv) any of the Offer Conditions has not been satisfied on or prior to the time of expiration of the Offer on the Expiration Date and has not been waived by Open Text, and Open Text having delivered notice thereof to the undersigned. The undersigned agree that if (A) (i) the Offeror has published the Offer in accordance with the BCA, (ii) a competing bidder (other than Open Text or its Affiliates) subsequently launches a Superior Tender Offer on or prior to March 1, 2004 and (iii) such Superior Tender Offer is consummated resulting in a majority of the outstanding share capital of the Company being acquired by any person other than Open Text and its Affiliates and (B) the price per share of common stock of the Company paid to the undersigned pursuant to such Superior Tender Offer exceeds by 20% or more the value of the Share and Warrant Consideration offered for each share of common stock of the Company under the Offer, the undersigned shall thereupon be jointly and severally obliged to immediately pay to Open Text an aggregate amount in cash equal to (euro)600,000. Such amount shall be allocated among the undersigned as determined by the undersigned in their sole discretion. This payment obligation is not dependent upon any undersigned or any of its representatives, agents, officers, directors, employees or controlling shareholders or general partner being in breach of any of the covenants set forth in this letter. In the event (i) of any willful breach by any undersigned of any provision of this letter and (ii) that a majority of the outstanding share capital of the Company is acquired in a Competing Transaction announced by any person other than Open Text and/or its associated companies or Affiliates on or prior to April 1, 2004, the undersigned shall thereupon be obliged to pay to Open Text, concurrent with their receipt of proceeds in connection with such Competing Transaction, an amount equal to 20% of the amount, if any, by which the price per share of common stock of the Company paid to the undersigned under the Competing Transaction exceeds the value of the Share and Warrant Consideration offered for each share of common stock of the Company under the Offer. Such amount shall be paid, at the election of the undersigned, in cash or in the consideration paid in such Competing Transaction. This letter shall be governed by the laws of the State of New York without regard to the conflicts of law principles thereof. For the purposes of this letter and the purposes of the transactions contemplated hereby, the undersigned shall be represented by GAP LP as their duly authorized representative, and all actions, declarations and representations made by GAP LP are binding on the undersigned.
General Atlantic Partners (Bermuda), L.P. GAP Coinvestment Partners II, L.P. By GAP (Bermuda) Limited, its General Partner ("GAP 374,387 Shares LP") 4,982,138 Shares By: /s/ Matthew Nimetz By: /s/ Matthew Nimetz ----------------------------------------------- ---------------------------------- Matthew Nimetz Matthew Nimetz Vice President A General Partner GapStar, LLC by General Atlantic Partners, LLC, its GAPCO GmbH & Co. KG By GAPCO Management sole member GmbH, its general partner 374,456 Shares 8,019 Shares By: /s/ Matthew Nimetz By: /s/ Matthew Nimetz ----------------------------------------------- ---------------------------------- Matthew Nimetz Matthew Nimetz A Managing Member Managing Director
Accepted and agreed to on the 20th day of October, 2003. OPEN TEXT CORPORATION By: /s/ Tom Jenkins ---------------------------------------------------- Tom Jenkins Chief Executive Officer -----END PRIVACY-ENHANCED MESSAGE-----