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
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(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:
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"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 ▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ 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.
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"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.
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"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
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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 ▇-▇, ▇-▇ 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.
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(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).
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(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 ▇-▇, ▇-▇ 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 ▇-▇, ▇-▇ 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 ▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇-▇▇____
Attention: Chief Executive Officer
with a copy to:
(ii) if to the General Atlantic Shareholders:
c/o General Atlantic Service Corporation
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, 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/ ▇▇▇▇▇ ▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇
Title: Chief Financial Officer
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President Corporate Human
Resources and Legal
GENERAL ATLANTIC PARTNERS (BERMUDA), L.P.
By: GAP (BERMUDA) LIMITED;
its General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Attorney-in-Fact
GAP COINVESTMENT PARTNERS II, L.P.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Attorney-in-Fact
GAPSTAR, LLC
By: GENERAL ATLANTIC PARTNERS, LLC,
its Managing Member
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Attorney-in-Fact
24
GAPCO KG GMBH & CO. KG
By: GAPCO KG MANAGEMENT GMBH,
its General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Attorney-in-Fact
25