EXHIBIT 4
to SCHEDULE 13D
PARTICIPATION AGREEMENT
By and between
1. General Atlantic Partners (Bermuda), L.P.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ 11
Bermuda
as "GAP LP"
2. GAP Coinvestment Partners II, L.P.
c/o General Atlantic Service Corporation
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
as "GAP COINVESTMENT"
3. GapStar, LLC
c/o General Atlantic Service Corporation
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
as "GAPSTAR"
4. GAPCO GmbH & Co. KG
c/o General Atlantic Partners GmbH
▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
as "GAPCO KG"
GAP LP, GAP Coinvestment, GapStar and GAPCO KG,
collectively, as "GENERAL ATLANTIC"
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and
5. IXOS SOFTWARE ▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇
as the "COMPANY"
- GAP LP, GAP Coinvestment, GapStar, GAPCO KG, and the Company
each a "PARTY" and collectively the "PARTIES" -
dated August 12, 2002
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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.
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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
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 1,570,083
▇▇▇▇▇ ▇▇▇▇▇▇ 1,175,590
▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇ 1,652,926
▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇ 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:
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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
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(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 ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and the substitute member
(ERSATZMITGLIED), ▇▇. ▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇, 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).
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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 ▇▇▇▇▇▇▇, 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.
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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
▇▇.▇▇. 73 (3) German Securities Exchange Act (BORSG), 65 ▇▇▇▇▇, 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"):
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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
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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.
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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
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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.
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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).
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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.
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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.
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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
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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
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
17/19
USA
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇-▇▇▇▇
with copy to:
Freshfields Bruckhaus ▇▇▇▇▇▇▇▇
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Attn: Dr. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇-▇▇▇▇▇-▇▇▇
and
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
1285 Avenue of the Americas
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Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telecopy: ▇▇▇-▇▇▇-▇▇▇-▇▇▇▇
for the Company
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Attn.: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇
Telecopy: ▇▇▇ ▇▇-▇▇▇▇-▇▇-▇▇▇▇
with copy to:
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
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18/19
Germany
Attn.: Dr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: ▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇
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/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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GapStar, LLC GAPCO GmbH & Co. KG:
By: General Atlantic Partners, LLC, By: GAPCO Management GmbH,
its managing member its general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇
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IXOS SOFTWARE AG IXOS SOFTWARE AG
/s/ ▇▇▇▇▇ ▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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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